5-2403; 5-2503; 5-1402.60; 5-2700
 
                        Filed January 26, 1995
 
                        Byron K. Orton
 
 
 
             BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
RONALD E. McCARTY,    
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                      File No. 471633
 
PFIZER GENETIC, INC.,      
 
                                        A P P E A L
 
     Employer,   
 
                                      D E C I S I O N
 
and         
 
            
 
WAUSAU INSURANCE COMPANIES,     
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
 
 
5-2403; 5-2503; 5-1402.60; 5-2700
 
 
 
     Claimant filed a review-reopening after a prior appeal decision of 
 
September 12, 1986.  Claimant believed that current surgeries for the 
 
cervical spine and low back were related to the original injury of May 
 
9, 1977.  The employer denied causal connection alleging that a March 
 
1977 injury was the cause.  The causal connection to the May 9, 1977 
 
injury was established based upon a finding in the September 12, 1986 
 
appeal decision stating that the March 1977 injury had completely 
 
healed.  Causal connection was also established by testimony of the 
 
treating doctor and an independent medical examination requested by the 
 
employer.  The statute of limitations did not apply as the claimant was 
 
entitled to lifetime medical benefits.  Employer was found responsible 
 
for all costs of the section 85.39 medical examination as it was made 
 
at their request.  No alternate medical care was appropriate as the 
 
treating doctor was still capable of making referrals to other doctors 
 
who would then be authorized by means of that referral.  Claimant 
 
failed to establish entitlement to past medical expenses as no itemized 
 
statements were presented so as to determine the reasonable and 
 
necessary costs of those treatments.  Future medical benefits were 
 
ordered specifically with respect to the surgeries on the cervical 
 
spine and the low back.
 
 
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            RONALD MCCARTY,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 471633
 
            PFIZER GENETICS,              :
 
                                          :       R E V I E W - 
 
                                                R E O P E N I N G
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in review-reopening brought by 
 
            Ronald McCarty as a result of injuries to his neck and low 
 
            back which occurred on May 9, 1977.  This matter has been 
 
            subject to multiple hearings on the issues of liability and 
 
            medical benefits.  The most recent decision entered was 
 
            dated September 12, 1986, which was an appeal decision 
 
            allowing benefits in favor of claimant.  Subsequent to that 
 
            date the employer has denied liability for medical benefits 
 
            under section 85.27 effective July 29, 1991.  Claimant has 
 
            filed review-reopening requesting further medical benefits 
 
            and the payment of section 85.39 expenses.  
 
            
 
                 This case was heard and fully submitted at Sioux City, 
 
            Iowa, on August 18, 1994.  The record in the proceeding 
 
            consists of joint exhibits 1 through 49 and claimant's 
 
            exhibits A, B, C; testimony from claimant, Ronald McCarty.  
 
            Claimant was represented by Thomas Plaza, Attorney at Law.  
 
            The defendants were represented by Frank Harrison, Attorney 
 
            at Law.
 
            
 
                                      ISSUES
 
            
 
                 The issues presented to determination are as follows:
 
            
 
                 .  Whether the request for medical benefits is barred 
 
            by section 85.26 because of a causal connection to a March 
 
            1977 injury which was not adjudicated;
 
            
 
                 .  Whether the claimant is entitled to reimbursement 
 
            for an employer requested section 85.39 examination expense;
 
            
 
                 .  Whether alternate medical care is appropriate under 
 
            section 85.27, and;
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 .  Whether claimant is entitled to payment of medical 
 
            expenses for requested treatment and the causal connection 
 
            to the May 9, 1977 injury.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony of the witness and having 
 
            examined all of the evidence in the record, the deputy 
 
            industrial commissioner finds:
 
            
 
                 Ronald McCarty was injured on May 9, 1977, while 
 
            working for the employer.  The issue of liability was 
 
            previously adjudicated with respect to the back and cervical 
 
            spine injuries.  In March 1977 claimant had injured his 
 
            cervical spine and low back while performing duties for the 
 
            employer.  It was found in the prior adjudication that the 
 
            March 1977 low back and cervical spine injury recovered and 
 
            claimant returned to perform normal duties.  (App. Decn. 
 
            September 12, 1986).  Relitigation of that fact question is 
 
            inappropriate as the general doctrines res judicata and 
 
            issue preclusion preclude such.  
 
            
 
                 On July 29, 1991, the employer and insurance carrier 
 
            denied payment of further medical expenses concerning the 
 
            neck problems.  (joint exhibit 15).  The employer contends 
 
            as a factual matter that claimant's current problems are not 
 
            causally connected to the May 9, 1977 work-related injury.  
 
            The employer sent claimant to a section 85.39 medical 
 
            examination with Quentin Durward, M.D., a board certified 
 
            neurosurgeon.  (jt. ex. 1).  Dr. Durward opined that the 
 
            injury occurring in 1977 damaged the C5-6 disc and caused 
 
            the degenerative changes to occur.  (jt. ex. 1, page 12).  
 
            He also believed that no reoccurrence had caused the current 
 
            symptomatology and that it was simply a continuance or 
 
            worsening of the same condition.  (jt. ex. 1, p. 17).  Dr. 
 
            Durward did not differentiate between the two accidents 
 
            which occurred in 1977.  (jt. ex. 1, p. 23).  
 
            
 
                 Claimant had previously been authorized to treat with 
 
            Paul Arnesen, M.D., an orthopedic surgeon for the May 9, 
 
            1977 injury.  Dr. Arnesen believed that normal work 
 
            activities would not have had a substantial effect if 
 
            claimant had not been subjected to the prior injury of May 
 
            9, 1977.  (jt. ex. 39).
 
            
 
                 Dr. Arnesen recommends extending the prior low back 
 
            fusion to the L3-4 level along with a decompression in the 
 
            cervical spine and a fusion.  (jt. ex. 40, p. 13).  Dr. 
 
            Arnesen no longer performs surgery and has recommended that 
 
            the procedures be performed by other physicians.  Dr. 
 
            Arnesen has previously referred claimant to William Hicks, 
 
            M.D., for prescribing of medication effective July 2, 1990.  
 
            (jt. ex. 35).
 
            
 
                 It is found that Drs. Arnesen and Hicks are both 
 
            treating physicians as determined by prior order of the 
 
            industrial commissioner and because of the subsequent 
 
            referral of Dr. Arnesen to Dr. Hicks.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 It is found that the current treatment for the cervical 
 
            spine and the low back is causally connected to the May 9, 
 
            1977 work injury based upon the medical opinions of Drs. 
 
            Arnesen and Durward.  There has been no intervening injury 
 
            which would cause claimant to incur further problems.  
 
            Furthermore, claimant was issued permanent work restrictions 
 
            and permanent impairment as a result of the May 9, 1977 
 
            injury.  This indicates a lifelong condition which will 
 
            continually result in aches and pains.  The prior finding by 
 
            the industrial commissioner that the March 1977 injury had 
 
            completely resolved prior to the subsequent injury indicates 
 
            that no continuing problem would have resulted had claimant 
 
            not been reinjured at his place of employment on May 9, 
 
            1977.  Therefore, the March injury does not break the causal 
 
            connection.  Dr. Arnesen's statement that normal work 
 
            activities would not substantially effect the spine if not 
 
            for the prior injury must be given great weight because of 
 
            his status as a treating physician and because of a lack of 
 
            intervening incidents.
 
            
 
                 Claimant estimated that he has incurred $550 in 
 
            additional medical expenses for treatment of the May 9, 1977 
 
            injury subsequent to the denial of July 29, 1991.  Claimant 
 
            failed to submit an itemized list of expenses for medical 
 
            treatment and prescriptions so as to establish the exact 
 
            amount of entitlement.  Insufficient evidence exists to 
 
            establish whether such treatment was reasonable and 
 
            necessary and whether the costs are fair and reasonable.
 
            
 
                         REASONING AND CONCLUSIONS OF LAW
 
            
 
                 The first issue is whether the request for medical 
 
            benefits is barred by section 85.26 because it relates to a 
 
            prior injury of March 1977 that was not adjudicated.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 An original proceeding for benefits must be commenced 
 
            within two years from the date of the occurrence of the 
 
            injury for which benefits are claimed or within three years 
 
            from the date of the last payment of weekly compensation 
 
            benefits if weekly compensation benefits have been paid 
 
            under section 86.13.  Section 85.26(1).  A proceeding in 
 
            review-reopening must be commenced within three years from 
 
            the date of the last payment of weekly benefits under either 
 
            an award for payments or an agreement for settlement.  
 
            Section 85.26(2).  The "discovery rule" may extend the time 
 
            for filing a claim where weekly benefits have not yet been 
 
            paid.  The rule does not extend the time for filing a claim 
 
            where benefits have been paid.  Orr v. Lewis Cent. School 
 
            Dist., 298 N.W.2d 256 (Iowa 1980).  Under the rule, the time 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            during which a proceeding may be commenced does not begin to 
 
            run until the claimant, as a reasonable person, should 
 
            recognize the nature, seriousness and probable compensable 
 
            character of the condition.  The reasonableness of 
 
            claimant's conduct is to be judged in light of the 
 
            claimant's education and intelligence.  Claimant must know 
 
            enough about the condition to realize that it is both 
 
            serious and work connected.  Orr, 298 N.W.2d at 261; 
 
            Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980).
 
            
 
                 Failure to timely commence an action under the 
 
            limitations statute is an affirmative defense which 
 
            defendants must prove by a preponderance of the evidence.  
 
            DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 
 
            (1940).
 
            
 
                 Having found that a causal connection exits to the May 
 
            9, 1977 injury and not to the March 1977 injury it follows 
 
            that the statute of limitations does not bar claimant from 
 
            receiving further medical benefits under section 85.27.
 
            
 
                 The second issue is whether the employer is responsible 
 
            for payment of expenses incurred under section 85.39 with 
 
            respect to the examination by Dr. Quentin Durward. 
 
            
 
                 Section 85.39 permits an employee to be reimbursed for 
 
            subsequent examination by a physician of the employee's 
 
            choice where an employer-retained physician has previously 
 
            evaluated "permanent disability" and the employee believes 
 
            that the initial evaluation is too low.  The section also 
 
            permits reimbursement for reasonably necessary 
 
            transportation expenses incurred and for any wage loss 
 
            occasioned by the employee's attending the subsequent 
 
            examination.
 
            
 
                 Defendants are responsible only for reasonable fees 
 
            associated with claimant's independent medical examination.  
 
            Claimant has the burden of proving the reasonableness of the 
 
            expenses incurred for the examination.  See Schintgen v. 
 
            Economy Fire & Casualty Co., File No. 855298 (App. April 26, 
 
            1991).  Defendants' liability for claimant's injury must be 
 
            established before defendants are obligated to reimburse 
 
            claimant for independent medical examination.  McSpadden v. 
 
            Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980)
 
            
 
                 It is held that the examination by Dr. Durward was 
 
            requested by the employer pursuant to section 85.39.  The 
 
            employer is responsible for all such expenses incurred 
 
            including, x-rays and tests. 
 
            
 
                 The third issue is whether alternate medical care is 
 
            appropriate and necessary.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 It is held that no further change in medical care is 
 
            appropriate under the circumstances.  Dr. Arnesen, while not 
 
            performing surgery, is capable of making an appropriate 
 
            referral.  A referral is considered authorized when it is 
 
            made for reasonable and necessary care and treatment.  
 
            Having found that the further surgeries on the neck and low 
 
            back are causally connected to the May 9, 1977 injury it 
 
            follows that Dr. Arnesen may make appropriate referrals for 
 
            such surgeries.  Furthermore, Dr. Arnesen has also referred 
 
            claimant to Dr. Hicks for treatment.  In this respect Dr. 
 
            Hicks is now an authorized treating physician for the May 9, 
 
            1977 injury.  Dr. Hicks may also consult and make 
 
            appropriate referrals for further surgery.
 
            
 
                 The final issue is whether claimant is entitled to 
 
            payment of medical expenses under section 85.27 for 
 
            treatment causally connected to the May 9, 1977 injury with 
 
            respect to a decompression of the cervical spine with 
 
            corresponding fusion and extension of the fusion in the low 
 
            back.  Having found that there is a causal connection to the 
 
            May 9, 1977 injury, it follows that such medical treatment 
 
            is compensable under section 85.27.  The employer shall pay 
 
            for all reasonable and necessary expenses incurred by 
 
            claimant with respect to this further treatment.  
 
            
 
                 Claimant has incurred expenses subsequent to July 29, 
 
            1991.  Claimant failed to submit itemized listings of those 
 
            expenses for medical treatment and prescriptions so as to 
 
            allow the trier of fact to determine whether the expenses 
 
            were fair and the treatment reasonable and necessary.  The 
 
            estimate of $550 of out-of-pocket expenses is insufficient 
 
            to establish by a preponderance of the evidence the 
 
            entitlement to section 85.27 benefits during that period of 
 
            time.  The request for reimbursement is denied due to the 
 
            failure to establish the exact amount of medical expenses. 
 
            
 
                                      ORDER
 
            
 
                 IT IS, THEREFORE, ORDERED:
 
            
 
                 Defendants, Pfizer Genetics, Inc. and Wausau Insurance 
 
            Companies shall pay for claimant's reasonable and necessary 
 
            medical and transportation expenses as outlined in the 
 
            opinion, including but not limited to further surgeries on 
 
            the cervical spine including a decompression and fusion 
 
            along with further surgeries on the low back including an 
 
            extension of the fusion.  
 
            
 
                 It is further ordered that the employer pay for all 
 
            costs of the independent medical examination with Dr. 
 
            Quentin Durward including the costs of x-rays and other 
 
            tests performed as a result of that examination.
 
            
 
                 It is further ordered that Paul Arnesen, M.D., and 
 
            William Hicks, M.D., are authorized treating physicians for 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            claimant's May 9, 1977 work injury.
 
            
 
                 It is further ordered that Drs. Arnesen and Hicks may 
 
            make appropriate referrals for treatment of claimant and 
 
            those referrals shall be treated as authorized treating 
 
            physicians.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1 as necessary.
 
            
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Signed and filed this __________ day of August, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Thomas Plaza
 
            Attorney at Law
 
            701 Pierce St, STE 200
 
            PO Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Frank Harrison
 
            Attorney at Law
 
            2700 Grand Ave, STE 111
 
            Des Moines, Iowa  50312
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                       52403 52503 51402.60 52700
 
                                       Filed August 24, 1994
 
                                       Marlon D. Mormann
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            RONALD MCCARTY,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                           File No. 471633
 
            PFIZER GENETICS,    
 
                                             R E V I E W - 
 
                                           R E O P E N I N G
 
                 Employer, 
 
                                           D E C I S I O N
 
            and       
 
                      
 
            WAUSAU INSURANCE,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            52403 52503 51402.60 52700
 
            
 
            Claimant filed a review-reopening after a prior appeal 
 
            decision of September 12, 1986.  Claimant believed that 
 
            current surgeries for the cervical spine and low back were 
 
            related to the original injury of May 9, 1977.  The employer 
 
            denied causal connection alleging that a March 1977 injury 
 
            was the cause.  The causal connection to the May 9, 1977 
 
            injury was established based upon a finding in the September 
 
            12, 1986 appeal decision stating that the March 1977 injury 
 
            had completely healed.  Causal connection was also 
 
            established by testimony of the treating doctor and an 
 
            independent medical examine requested by the employer.  The 
 
            statute of limitations did not apply as the claimant was 
 
            entitled to lifetime medical benefits.  Employer was found 
 
            responsible for all costs of the section 85.39 medical 
 
            examination as it was made at their expense.  No alternate 
 
            medical care was appropriate as the treating doctor was 
 
            still capable of making referrals to other doctors who would 
 
            then be authorized by means of that referral.  Claimant 
 
            failed to establish entitlement to past medical expenses as 
 
            no itemized statements were presented so as to determine the 
 
            reasonable and necessary costs of those treatments.  Future 
 
            medical benefits were ordered specifically with respect to 
 
            the surgeries on the cervical spine and the low back.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ANNE E. KOZAK & JANE C. KOZAK,  
 
                        
 
                 Claimant,                           File No.  474930
 
                        
 
            vs.                                        A P P E A L
 
                        
 
            IOWA ELECTRIC LIGHT and POWER,           D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed May 15, 1990 is affirmed and modified as follows:
 
            Stromley v. Iowa Packaging Corp., file No. 652607 
 
            (Declaratory Ruling, May 2, 1985) states in relevant part:
 
               In each of these instances, however, the right to receive 
 
            benefits is based upon qualifying pursuant to section 85.42 
 
            or section 85.44 and is based upon the facts in existence at 
 
            the time of the injury causing death of the employee.
 
               Section 85.31 does not create a new category of persons 
 
            who are entitled to benefits but merely determines how long 
 
            a person may receive benefits if they qualified at the time 
 
            of the injury.
 
            The facts in this case show the following:  The employer 
 
            paid benefits to the claimants (decedent's children) until 
 
            August 28, 1985.  The total distribution from the trust 
 
            established by the decedent for the benefit of his children 
 
            (Anne and Jane) was $145,238.  Workers' compensation 
 
            represented an $80,130.06 contribution to that amount (Jt. 
 
            Ex. 10).  The workers' compensation benefits represent 55.2% 
 
            of the total distribution ($80,130.06 î $145,238).
 
            The trust distributions for Anne for the years 1985-1988 
 
            were $13,988; $9,019; $14,610; and $11,195 respectively (Jt. 
 
            Ex. 10).  Anne's adjusted gross income for years 1985-1988 
 
            was $3,977; $8,329; $3,633; and $5,469 respectively (Jt. Ex. 
 
            11).
 
            The trust distributions for Jane for the years 1985-1988 
 
            were $8,354; $14,694; $7,954; and $9,398 respectively.  
 
            Jane's adjusted gross income for years 1985-1988 was $2,791; 
 
            $4,404; $5,302; and $4,240 (Jt. Ex. 12).
 
            Jane testified at the hearing on August 17, 1989 she was 
 
            living with her mother and stepfather at the time and had 
 
            been living there for approximately four months.  Also, at 
 
            the time of the hearing she was employed as a sales clerk in 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            a clothing store working 40 hours a week at $3.75 per hour 
 
            (Tr., pp. 73 and 90-91).
 
            Jane and Anne were clearly dependent upon the trust 
 
            established by their father (the decedent employee in this 
 
            matter).  Anne was continually actually dependent upon that 
 
            trust from the time of her father's death until she reached 
 
            the age of twenty-five.  Anne's benefits under the Iowa 
 
            workers' compensation law under the facts of this case 
 
            should continue until she reached age 25 pursuant to Iowa 
 
            Code section 85.31(1)(b).  Anne is therefore entitled to 
 
            benefits from the time the employer stopped paying benefits 
 
            (August 28, 1985) until age 25 (August 6, 1988).
 
            Jane had not reached the age 25 when the trust terminated.  
 
            Jane was continually actually dependent upon the trust from 
 
            the time of her father's death until the last distribution 
 
            of the trust was made (July 21, 1989).  When the trust 
 
            terminated she was living with her mother and stepfather but 
 
            was working a 40 hour week.  When the trust terminated she 
 
            was no longer an actual dependent of her father.  Under 
 
            these facts benefits under the Iowa workers' compensation 
 
            law should continue until July 21, 1989 for Jane.  Jane is 
 
            entitled to benefits from the time the employer stopped 
 
            paying benefits (August 28, 1985) until the trust made its 
 
            last distribution (July 21, 1989).
 
 
 
                                   ORDER
 
 
 
            THEREFORE, it is ordered
 
            That defendant pay to Anne E. Kozak one hundred fifty-three 
 
            point four two nine (153.429) weeks of workers' compensation 
 
            dependent's benefits for the period from August 28, 1985 to 
 
            her twenty-fifth birthday on August 6, 1988 at the rate of 
 
            ninety-seven and 25/100 dollars ($97.25) per week in the 
 
            total amount of fourteen thousand nine hundred twenty and 
 
            97/100 dollars ($14,920.97) commencing on August 28, 1985.
 
            That defendant pay to Jane C. Kozak one hundred fifty-three 
 
            point four two nine (153.429) weeks of workers' compensation 
 
            dependent's benefits for the same period of time at the rate 
 
            of ninety-seven and 25/100 dollars ($97.25) per week in the 
 
            total amount of fourteen thousand nine hundred twenty and 
 
            97/100 dollars ($14,920.97) commencing on August 28, 1985 
 
            and then defendant is ordered to pay Jane C. Kozak an 
 
            additional workers' compensation dependent's weekly benefits 
 
            for the period from Anne's twenty-fifth birthday on August 
 
            6, 1988 until July 21, 1989 at the rate of one hundred 
 
            ninety-four and 49/100 dollars ($194.49) per week.
 
            That all accrued benefits are to be paid in a lump sum.
 
            That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            That the costs of this action, including the cost of the 
 
            transcript, are charged to defendant pursuant to rule 343 
 
            IAC 4.33.  Claimant submitted a statement of costs.  
 
            Claimant is specifically entitled to the transcript of 
 
            deposition of David E. Schoenthaler in the amount of 
 
            ninety-two and 30/100 dollars ($92.30) and the transcript of 
 
            deposition of John A. Broman, M.D., in the amount of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            forty-three and 40/100 dollars ($43.40).  The other costs on 
 
            claimant's statement of costs are considered to be trial 
 
            preparation expenses and are not enumerated as allowable 
 
            costs in rule 343 IAC 4.33.
 
            That defendant files claim activity reports as requested by 
 
            this agency pursuant to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael J. Motto
 
            Attorney at Law
 
            1000 First Bank Center
 
            201 W. 2nd St.
 
            Davenport, Iowa 52801
 
            
 
            Mr. Alfred E. Willett
 
            Mr. Mark H. Rettig
 
            Attorneys at Law
 
            P.O. Box 2877
 
            Cedar Rapids, Iowa 52406
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                              1901
 
                                              Filed November 19, 1992
 
                                              Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ANNE E. KOZAK & JANE C. KOZAK,  
 
                        
 
                 Claimant,                           File No.  474930
 
                        
 
            vs.                                        A P P E A L
 
                        
 
            IOWA ELECTRIC LIGHT and POWER,           D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            1901
 
            Dependents were aged 14 and 11 when decedent was killed in a 
 
            work-related accident.  Decedent established a trust for the 
 
            care of these children.  The children were dependent upon 
 
            the trust until it was terminated.  The children were aged 
 
            25 and 23 when the trust was terminated.  It was held that 
 
            the older child was an actual dependent until age 25 and the 
 
            younger child was an actual dependent until the trust was 
 
            terminated when she was 23.  At the time of the hearing 
 
            (approximately two months after the trust terminated) the 
 
            younger child was living with her mother and stepfather and 
 
            was working a forty-hour week.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
                                        
 
         ANNE E. KOZAK & JANE C. KOZAK  :
 
                                         :
 
              Claimants,                 :        File No.  474930
 
                                         :
 
         VS.                             :
 
                                            R E V I E W - R E 0 P E N I N 
 
         G
 
         IOWA ELECTRIC LIGHT  and  POWER,:
 
                                            D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening from a memorandum 
 
         of agreement under Iowa Code section 86.14 and Division of 
 
         Industrial Services Rule 343-4.1(2) and a determination of death 
 
         benefits based on dependency under Iowa Code section 85.31 
 
         Division of Industrial Services Rule 343-4.1(4).  A memorandum of 
 
         agreement was filed on September 13, 1977 showing that John R. 
 
         Kozak died of electrocution on August 22, 1977.  The rate of 
 
         compensation was shown to be $194.49 per week. official notice is 
 
         taken of the memorandum of agreement pursuant to Iowa 
 
         Administrative Procedure  Act  17A.14(4).  Employer paid  
 
         benefits to the surviving daughters until August 28, 1985 at 
 
         which time employer terminated benefits because Anne E. Kozak had 
 
         obtained her baccalaureate degree and Jane C. Kozak had quit 
 
         attending cosmetology school.
 
         
 
              The daughters now petition the industrial commissioner to 
 
         determine whether they are entitled to further benefits because 
 
         they were and are "actually dependant" as those words are used in 
 
         Iowa Code section 85.31 l.b.  A hearing was held in Davenport, 
 
         Iowa on August 17, 1989 and the case was fully submitted at the 
 
         close of the hearing.  Claimant's were represented by Michael J. 
 
         Motto.  Defendant was represented by Alfred E.. Willett.
 
         
 
              Both attorneys requested permission for claimants to submit 
 
         the 1987 and 1988 income tax returns of Anne E. Kozak as part of 
 
         joint exhibit 11.  Division of Industrial Services Rule 343-4.31 
 
         provides "no evidence shall be taken after the hearing."  
 
         Therefore, these two exhibits cannot be admitted and considered 
 
         as evidence in the case.  They have been added to exhibit 11, but 
 
         will not be considered in the determination of this case.  Anne 
 
         E. Kozak, however, did testify about her income for these two
 
         
 
         
 
         
 
         KOZAK VS. IOWA POWER AND LIGHT
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         years and this testimony can be considered as evidence in this 
 
         case.
 
         
 
              The record consists of the testimony of Anne E. Kozak, 
 
         claimant; and Jane C. Kozak, claimant; David Schoenthaler, 
 
         attorney and trustee of the testamentary trust for the benefit  
 
         of claimants; David Sjulin, employer's claim representative; and 
 
         joint exhibits 1 through 18.  Defendant's attorney submitted an 
 
         excellent trial brief at the time of the hearing.  Both  
 
         attorneys submitted outstanding posthearing briefs.  The deputy 
 
         ordered a transcript of the hearing.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         employer and claimants' decedent at the time of his death; that 
 
         the death did arise out of and in the course of employment with 
 
         employer; and that the rate of compensation is $194.49 per week.
 
         
 
                                      ISSUES
 
         
 
              The parties requested a decision on whether claimant's 
 
         individually, were "actually dependent" on August 28, 1985 when 
 
         benefits were terminated, and if so, whether petitioners are 
 
         entitled to additional benefits, and if so, the amount of 
 
         benefits to which petitioners, individually, are entitled.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              John R. Kozak died on August 22, 1977, from electrocution. 
 
         He was divorced on February 1, 1977, and therefore, he left no 
 
         surviving spouse.  He was survived by his two  daughters.  Anne  
 
         E. Kozak, born on August 6, 1963 was 14 years old at the time of  
 
         her father's death.  Jane C. Kozak, born on June 19, 1966, was 11 
 
         years old at the time of her father's death.  Shortly after his 
 
         divorce, on February 1, 1977, claimants' decedent executed a will 
 
         on February 7, 1977 (exhibit 1). The will designated a 
 
         testamentary trust for the benefit of his daughters until the 
 
         youngest child became age 23.  David E. Schoenthaler, an 
 
         attorney, was named as trustee of the testamentary trust.  The 
 
         will directed the trustee to expend such sums from the income and 
 
         principal of the trust as the trustee in the exercise of his sole 
 
         discretion deemed necessary or advisable to provide for the 
 
         "proper.care, support, maintenance, education and general 
 
         welfare" of his two daughters.  Schoenthaler was appointed 
 
         trustee on September 14, 1977.  On October 13, 1977, pursuant to 
 
         Iowa Code section 85.49, the district court designated that 
 
         employer was to pay the workers' compensation benefits to the 
 
         clerk of the district court and
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         KOZAK VS. IOWA POWER AND LIGHT
 
         Page 3
 
         
 
         
 
         that she in turn was to turn the workers' compensation benefits 
 
         over to the trustee to be administered as part of the 
 
         testamentary trust (ex. 7).  The trustee made annual accountings 
 
         to the court (exs. 2-5).  The trustee distributed income and 
 
         principal in equitable, but not necessarily equal, amounts until 
 
         Jane was age 23 at which time the trust was terminated on July 
 
         21, 1989 pursuant to the terms of the will (exs. 8 & 9).
 
         
 
              The initial amount of property that the trust received from 
 
         the estate was not placed in evidence.  However, on September 30, 
 
         1985, the remaining assets in the trust were $81,683.64 (ex. 2). 
 
         The evidence shows that the trustee made normal expenditures for 
 
         such things as lodging, utilities, food, clothing, automobiles, 
 
         automobile licenses, automobile repairs, automobile insurance, 
 
         medical insurance premiums, hospital expenses, doctor 
 
         bills,dental bills ' college or trade school tuition and books, 
 
         income taxes and the costs of administering the trust (exs. 2-5; 
 
         17, pages 32-39).  A flow chart prepared by the trustee's legal 
 
         assistant shows that the trust had received $80,130.06 from 
 
         workers' compensation benefits between September 1977 and 
 
         September 1985 (exs. 10 & 16).  Workers' compensation benefits 
 
         were terminated by employer on August 28, 1985 because Anne had 
 
         finished college and obtained a baccalaureate degree and Jane had 
 
         dropped out of cosmetology school (ex. 18).  Over the life of the 
 
         trust from September 1977 and through December 1988, the trust 
 
         expended $145,238 for the daughters from the trust assets.  The 
 
         trust assets consisted of both the workers' compensation payments 
 
         made by employer and the property which the trust received from 
 
         the father's estate (ex. 10).
 
         
 
              When the workers, compensation benefits were terminated, as 
 
         of August 28, 1985, Anne was 22 years old and Jane was 19 years 
 
         old.  When the testamentary trust terminated on July 21, 1989, 
 
         Anne was 25 years old and just a few days short of being 26 years 
 
         old.  Jane was 23 years old when the trust terminated.  These two 
 
         young women, like other young women their age, either attended 
 
         school or worked.  Sometimes they worked full time, sometimes 
 
         they worked part-time, and sometimes they were unemployed.  Their 
 
         jobs were typically minimum wage jobs up to $5 per hour jobs.  
 
         After the death of their father, these young women lived 
 
         separately.  Sometimes they incurred rent, sometimes they shared 
 
         rent with friends, and sometimes they lived with friends without 
 
         paying any rent.  Sometimes Jane lived at home with her mother 
 
         and step-father, presumably without paying any rent.  Each 
 
         daughter received social security benefits in the:amount of $195 
 
         per month.  These benefits were reportedly paid to the mother 
 
         while the girls were minors and it was believed that the money 
 
         was used for the benefit of the children.  No accounting for the 
 
         receipt or expenditures of these funds was introduced into 
 
         evidence.  Anne received her own social security benefit checks 
 
         after she reached her majority (ex. 17, p. 82).  Jane's social 
 
         security
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KOZAK VS. IOWA POWER AND LIGHT
 
         Page 4
 
         
 
         
 
         benefits were terminated in May of 1984, when she finished high 
 
         school (ex. 10).  Anne's social security benefits were terminated 
 
         in May of 1985 after she graduated from college with her first 
 
         baccalaureate degree (ex. 10).
 
         
 
              The income tax returns of the individual petitioners showed 
 
         that some years they did not have any earnings.  In other years 
 
         they earned a few hundred dollars.  In other years they reported 
 
         earnings of approximately $2,000; $3,000 or $5,000 (exs. 11 & 
 
         12).  After Anne's benefits from the trust terminated, she took 
 
         out a loan in the amount of $1,500 in order to finish college and 
 
         to obtain her masters degree.  She testified that this loan is
 
         still unpaid (tr. pp. 47 & 48).
 
         
 
              Jane suffered from type I, insulin dependent, diabetes 
 
         mellitis, from the time that she was 11 years old and has been in 
 
         fragile health since that time.  She received checkups at the 
 
         University of Iowa once or twice a year.  Occasionally she was 
 
         hospitalized for short periods of time (ex. 15a,; ex. 15 pp. 
 
         13-16).  This entailed significant medical expense (exs. 13 & 
 
         15a). According to John A. Broman, M.D., Jane's family physician, 
 
         her diabetes has never been controlled.  She is required to 
 
         maintain an 1800 calorie diet every day and to administer insulin 
 
         injections to herself three times a day (ex. 15, pp. 10, 20, 39, 
 
         40, 42 & 44).  She has been able to work full or part-time most 
 
         of the time (ex. 15, p. 34).  At one time, Anne had to pay from 
 
         the trust over $3,000 in medical expenses for a knee injury which 
 
         was not covered by her medical insurance policy because it did 
 
         not cover outpatient care (ex. 17, p. 57).
 
         
 
              According the Schoenthaler, both girls were "shook up" by 
 
         the "upheaval" of their fathers sudden and unexpected death 
 
         shortly after the divorce and separation of their parents (ex. 
 
         17,.,pp. 19, 49 & 50).  Anne required psychological counseling 
 
         (ex. 17, p. 49).  Jane required psychiatric treatment (ex. 16, p. 
 
         18).  Schoenthaler was quite concerned about the health status of 
 
         Jane and for this reason he prepaid one year of medical insurance 
 
         premiums in advance when he terminated tho testamentary trust 
 
         (ex. 17, pp. 26, 39-42, 86 & 87).
 
         
 
              The monthly expenses for the daughters both, as shown by the 
 
         trustee (exs. 2-5) and by their own account (ex. 14), were for 
 
         simple costs of living, such as rent, utilities, groceries, 
 
         clothing and automobile expenses (ex. 14).  Schoenthaler did not 
 
         presume to know if Anne and Jane were legally dependent, but 
 
         stated that he definitely believed that they were factually and 
 
         financially dependent when the workers, compensation benefits 
 
         stopped (ex. 17, pp. 63-73 & 87).  Schoenthaler was a classmate 
 
         of the decedent father and he believed that the trust 
 
         expenditures were reasonable for their state in life.  He 
 
         testified that he distributed the money in the manner their 
 
         father would have
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KOZAK VS. IOWA POWER AND LIGHT
 
         Page 5
 
         
 
         
 
         done if he.were living (ex. 17, pp. 79 & 80; transcript p. 116).  
 
         Schoenthaler testified that Anne had definitely relied on the 
 
         trust when she studied for her masters degree a year after she 
 
         received her baccalaureate degree (tr. p. 87).
 
         
 
              At the time of the hearing, Jane was employed in a clothing 
 
         store at home for $3.75 per hour and was living with her mother 
 
         and step-father impliedly without making any contribution for 
 
         rent. Jane agreed that she had about $7,000 in savings at the 
 
         time of the hearing.  She received $4,000 from the final 
 
         distribution of the trust and received another $3,000 in a 
 
         savings account from her grandmother (tr. pp. 96, 97 & 100).  
 
         Anne testified she also received a gift of cash in a similar 
 
         amount from her grandmother.
 
         
 
              Anne testified that she had just received her  bachelors 
 
         degree when tho workers' compensation benefits stopped.  She said 
 
         she worked a year and then decided to study for a masters degree.  
 
         Anne's trust benefits terminated prior to the termination of the 
 
         trust because Schoenthaler attempted to equalize somewhat the 
 
         final distribution, because Anne, due to her college expenses  
 
         had received considerable more money from the trust than Jane.  
 
         Both Anne Kozak and Jane Kozak testified that they relied on all 
 
         of the various sources of income in order to simply maintain 
 
         themselves.  Moreover, Anne had to borrow money in order to 
 
         finish her masters degree (tr. pp 47 & 48).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The issue in this case is whether Anne Kozak and Jane  
 
         Kozak, individually, were "actually dependent" as that term is 
 
         used in Iowa Code section 85.31 l.b. when their benefits were  
 
         terminated by employer on August 28, 1985. The pertinent portions 
 
         of section 85.31 read as follows:
 
         
 
                 1. When death results from the injury, the employer
 
              shall pay the dependents who were wholly dependent on
 
              the earnings of the employee for support at the time  of
 
              the injury, during their lifetime, compensation upon
 
              the basis of eight percent per week of the  employee's
 
              average weekly spendable earnings, commencing from the
 
              date of death as follow:
 
         
 
         
 
         
 
                 b. To any child of the deceased until the child
 
              shall reach the age of eighteen, provided that a child
 
              beyond eighteen years of age shall receive benefits to
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              the age of twenty-five if actually dependent, and the
 
              fact that a child is under twenty-five years of age and
 
              is enrolled as a full-time student in any accredited
 
         
 
         
 
         
 
         KOZAK VS. IOWA POWER AND LIGHT
 
         Page 6
 
         
 
         
 
              educational institution shall be a prima facie showing
 
              of actual dependency.
 
         
 
              Although the Supreme Court of Iowa has not addressed the 
 
         particular issue in this case, they did provide a definition of 
 
         dependency in the case of Murphy v. Franklin County, 259 Iowa 
 
         703, 145 N.W.2d 465 (1966). A full discussion of how that 
 
         definition was adopted is shown on pages 706 and 707 of the Iowa 
 
         report.
 
         
 
                   Defendants place great stress on the  definition of
 
              dependency, citing Serrano v. Cudahy Packing Co., 194
 
              Iowa 689, 690, 190 N.W. 132. "What is the  meaning of
 
              dependency?  Clearly a person cannot at the same time
 
              be dependent and self-sustaining.  The definition of
 
              dependent as found in Webster's Dictionary is:  'Relying
 
              on, or subject to, something else for support; not able
 
              to exist, or sustain itself; not self-sustaining.,
 
              This definition has found judicial approval in many
 
              cases.  See Rock Island Bridge & Iron Works v.
 
              Industrial Com., 287 Ill. 648 (122 N.E. 830)."
 
         
 
                   We note, however, that the court follows this rather
 
              restrictive definition with the following:  "No person
 
              can be regarded as a dependent 'whose financial
 
              resources at his command or within his power to command
 
              by the exercise of such efforts on his part as he
 
              reasonably ought to exert in view of the existing
 
              conditions are sufficient to sustain himself and family
 
              in a manner befitting his class and position in life
 
              without being supplemented by the outside assistance
 
              which has been received or some measure of it.' ***  No
 
              one is a dependent within the meaning of our Compensa-
 
              tion Act who has sufficient means at hand to supply
 
              present necessities, rating them according to the
 
              dependent's class and position in life.  Blanton v.
 
              Wheeler & Howes Co., 91 Conn. 226."
 
         
 
                   [4] Thus dependency is related in this state to the
 
              dependent's station in life.  This appears to be the
 
              rule in the great majority of jurisdictions.
 
         
 
                   (5]  "A showing of actual dependency does not
 
              require proof that, without decedent's contributions,
 
              claimant would have lacked the necessaries of life.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The test is whether his contributions were relied on by
 
              claimant to maintain claimant's accustomed mode of
 
              living.
 
         
 
                   "It follows that income from other sources is not
 
              necessarily inconsistent with a state of actual depen-
 
         
 
         
 
         KOZAK VS. IOWA POWER AND LIGHT
 
         Page 7
 
         
 
         
 
              dency."  Larson, Workmen's Compensation Law, Volume II,
 
              section 63.11, page 102, and cases cited.
 
         
 
                   (6]  ""Dependency' and "support' under the workmen's
 
              compensation law are not capable of certain definition.
 
              The definition and application of these words should
 
              not be too severely restricted.  If a contribution is
 
              made to the ordinary comforts and conveniences which
 
              are reasonably appropriate to parties in their station
 
              in life, it should be considered as support and the
 
              recipient regarded as a dependent." (Emphasis in
 
              opinion) Lighthill v. McCurry, 175 Neb. 547, 552, 122
 
              N.W.2d 468, 471.
 
         
 
              The court added these final comments at page 707 of the Iowa 
 
         Report:
 
         
 
                   While evidence of the parents' financial status was
 
              not complete or detailed as it might have been, it is
 
              clear that this family was not affluent, had substan-
 
              tial debts and the normal burdens of a farm family of
 
              six.  The financial contributions were substantial.
 
         
 
                   "In determining whether dependency in fact existed,
 
              regard may be had as much for the way of life disclosed
 
              by the evidence as to a mathematical balancing of
 
              accounts."
 
         
 
              An application of the Murphy decision to the instant case is 
 
         as follows.  By reference to the Serrano case, the supreme court 
 
         found that it was too restrictive to say that a person was not 
 
         dependent if a person could earn some money to sustain 
 
         themselves.  By reference to the Blanton case the supreme court 
 
         determined that whether a person can "sustain himself and family 
 
         in a manner befitting his class and position in life" should be a 
 
         dimension of the definition of dependency.  Noting that this 
 
         appears to be the rule in the great majority of jurisdictions, 
 
         the Iowa Supreme Court legally defined actual dependency for Iowa 
 
         as follows:
 
         
 
                   [5]  "A showing of actual dependency does not
 
              require proof that, without decedent's contributions,
 
              claimant would have lacked the necessaries of life.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The test is whether his contributions were relied on by
 
              claimant to maintain claimant's accustomed mode of
 
              living.
 
         
 
                   "It follows that income from other sources is not
 
              necessarily inconsistent with a state of actual depen-
 
              dency."  Larson, Workmen's Compensation Law, Volume II,
 
              section 63.11, page 102, and cases cited.
 
         
 
         
 
         
 
         KOZAK VS. IOWA POWER AND LIGHT
 
         Page 8
 
         
 
         
 
              In this case, Anne Kozak and.Jane Kozak did establish that 
 
         all of the income they received from workers, compensation 
 
         benefits, the trust, social security and their own  earnings were 
 
         needed to maintain their accustomed mode of living.  They have 
 
         further demonstrated that their accustomed mode of living was not 
 
         extravagant or unreasonable, but rather quite similar to other 
 
         young women who were approximately their age and in the same 
 
         stage of life. In addition, these two young women had added 
 
         burdens of psychological problems for which both required 
 
         professional treatment which arose out of the disruption to their 
 
         lives caused by the divorce or their parents, in their  early  
 
         formative years, quickly followed by the sudden and unexpected 
 
         death of their father by electrocution.  Jane had and has the 
 
         added burden of a daily restricted diet and three daily 
 
         injections of insulin for diabetes mellitis which has never been 
 
         controlled and  has given her a great deal of difficulty even 
 
         though she has been able to work within her limits.
 
         
 
              The court gives further guidance for purposes of workers' 
 
         compensation that the definition of dependency and support 
 
         "should not be too severely restricted."  The final instruction 
 
         of the court is relied upon in this case.  That instruction is, 
 
         "If a contribution is made to the ordinary comforts and 
 
         conveniences which are reasonably appropriate to parties in their 
 
         station in life, it should be considered as support and the 
 
         recipient regarded as a dependent."  (Emphasis in opinion) 
 
         Lighthill v. Mccurry, 175 Neb. 547, 552, 122 N.W.2d 468,  471.
 
         
 
              Thus, it is now determined that all of the income which Anne 
 
         Kozak and Jane Kozak received is determined to be support and 
 
         that the petitioners are regarded and determined to be actual 
 
         dependents.
 
         
 
              With respect to the fact that, these two young women 
 
         received savings accounts from their grandmother in the general 
 
         area of $3,000 and may or may not have received the benefit of 
 
         the social security benefits paid to their mother during their 
 
         minority, the final statement of the Murphy court was that,  "In  
 
         determining whether dependency in fact existed, regard may be had 
 
         as  much  for the way of life disclosed by the evidence as to a 
 
         mathematical balancing of accounts."   Anne Kozak and Jane Kozak 
 
         have not lead opulent or extravagant ways of life. The evidence 
 
         discloses that they lived very ordinary lives and were forced to 
 
         use the available money quite carefully.  From the evidence 
 
         presented, it is shown that their spending never exceeded the 
 
         necessities of life for persons of their age and status of life.  
 
         Furthermore, Jane has required regular significant medical 
 
         expense outlays for the treatment of her severe diabetes.  Anne 
 
         was forced to pay over $3,000 in medical expenses for an athletic 
 
         injury because her medical insurance policy did not cover 
 
         outpatient care.  It  is
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KOZAK VS. IOWA POWER AND LIGHT
 
         Page 9
 
         
 
         
 
         determined that the evidence in this case is well within the 
 
         bounds of the rule set down in the Murphy case.
 
         
 
              The petitioners are determined to be actually dependent on 
 
         August 28, 1985, when the workers' compensation benefits were 
 
         terminated without any investigation on the part of employer as 
 
         to whether petitioners were actually dependent or not.  The 
 
         testimony of Sjulin, employer's claim representative and the 
 
         termination letter from employer show that benefits were 
 
         terminated solely because the petitioners were, "no longer 
 
         full-time students in an accredited educational institution and 
 
         are beyond eighteen years of age." (ex. 18, tr. pp. 121 & 122).  
 
         Sjulin testified that employer paid total benefits in the amount 
 
         of $81,296.82 (ex. 16, tr.p. 123).  The witness agreed that no 
 
         investigation was undertaken that he was aware of to determine 
 
         actual dependency and that the benefits were terminated because 
 
         petitioners were over 18 years of age and not full-time students 
 
         (tr. pp. 124 & 125).  It is determined in this case, however, 
 
         that whether a child over 18 years of age is a full-time student 
 
         or not is not the only test of dependency.  Whether a child over 
 
         18 years of age is a full-time student or not is simply one 
 
         possible test which made its way as an evidentiary standard into 
 
         the statute in order to benefit those children who continue their 
 
         education on a full-time basis.
 
         
 
              The declaratory ruling of Industrial Commissioner Robert E. 
 
         Landess in Stromley v. Iowa Packaging Corp., file 652607, dated 
 
         May 2, 1985, is noted and quoted for these comments of 
 
         commissioner Landess:
 
         
 
                   a child under the age of eighteen is no longer
 
              entitled to benefits upon reaching age eighteen unless
 
              he or she was mentally or physically incapacitated from
 
              earning at the time of the death or can show in fact
 
              dependency.  Dependency is established as of the time
 
              and under the conditions present at the time of the
 
              triggering event-the injury producing death.  In order
 
              for a person to receive benefits for being dependent
 
              they must be able to show that condition of dependency
 
              present at the time of the injury and continuing in an
 
              unbroken chain.  A full time student under age twenty-
 
              five is aided by a rebuttable presumption of actual
 
              dependency.
 
         
 
                   One cannot flitter in and out of:the condition of
 
              dependency.  Just as a spouse cannot reestablish depen-
 
              dency after remarriage by a subsequent dissolution, a
 
              dependent child once no longer.actually dependent can-
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              not reestablish dependency by deciding to go to school,
 
              for example, at age 24 after having been independent
 
              and self-supporting for several years..
 
         
 
         
 
         
 
         KOZAK VS. IOWA POWER AND LIGHT
 
         Page 10
 
         
 
         
 
                   In this case the entitlement to benefits of the
 
              children at the time of the remarriage of the spouse is
 
              contingent upon their having remained dependent upon
 
              the decedent continuously from the date of the injury.
 
              A child under age eighteen is aided by the conclusive
 
              presumption of whole dependency and a child under age
 
              twenty-five is aided by a rebuttable presumption of
 
              actual dependency.  In this case neither presumption
 
              applies.  Both children are over age eighteen and
 
              neither is enrolled in school.
 
         
 
                   In order to continue to be entitled to benefits
 
              either child must show a continuation of actual depen-
 
              dency from the date of the injury.  One cannot flow in
 
              and out of dependency as the duration of benefits ter-
 
              minates when actual dependency terminates.  Once con-
 
              cluded for the purpose of these statutes it cannot be
 
              reinstated.
 
         
 
              The petitioners in this case were minor children 
 
         conclusively presumed to be dependents at age 11 and age 14 when 
 
         benefits began on August 23, 1977.  Iowa Code section 85.42.  
 
         Claimant's counsel asserts:
 
         
 
              ...      there is absolutely no evidence that either Anne or
 
              Jane "flittered" in and out of the condition of
 
              dependency.  They never left that condition.  Anne
 
              remained in a condition of dependency upon not only the
 
              proceeds of the trust set up by her father in his Will
 
              but on the worker's [sic] compensation benefits being
 
              provided thereto, up until her 25th birthday.  Although
 
              she took some time off from school to work immediately
 
              after obtaining her undergraduate degree, she went back
 
              to school and was in the process of obtaining her
 
              masters degree prior to the time she turned age 25 on
 
              August 6, 1988.  Jane remains in a condition of depen-
 
              dency, having neither the means nor opportunity to
 
              maintain the mode of living to which she has been
 
              accustomed without the worker's compensation death
 
              benefits being paid to her through the trust, and based
 
              on the evidence will continue to remain as such until
 
              her 25th birthday.  She is in need of ongoing medical
 
              care for her diabetes, all of which had been paid by
 
              the trust, with the aid of the worker's [sic] compensa-
 
              tion benefits being paid into the same, up until the
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              time that the benefits were terminated the the trust
 
              discontinued.
 
         
 
         (claimants' brief page 8)
 
         
 
         
 
         
 
         KOZAK VS. IOWA POWER AND LIGHT
 
         Page 11
 
         
 
         
 
              It is.the determination of this decision that both 
 
         petitioners, Anne Kozak and Jane Kozak, were actually dependent 
 
         on August 28, 1985, when workers' compensation benefits were 
 
         terminated without any investigation by employer as to whether 
 
         petitioners were or were not actually dependent.  It is further 
 
         determined that the petitioners continued to be actually 
 
         dependent within the context of Iowa Code section 85.31 l.b. 
 
         until Anne reached age 25 and Jane appeared at the hearing and 
 
         thereafter, for the reason that the contributions of their father 
 
         from social security, workers' compensation and the assets of his 
 
         estate were relied upon by his daughters to maintain their 
 
         accustomed mode of living.  These contributions were made for the 
 
         ordinary comforts and conveniences which are reasonably 
 
         appropriate to the daughters for their station in life and should 
 
         be considered as support and the recipients regarded as 
 
         dependents.  See Murphy page 707.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That the petitioners, Anne Kozak and Jane Kozak, relied upon 
 
         the social security benefits, workers' compensation benefits and 
 
         the estate and trust assets of their father to maintain the 
 
         standard of living to which they were accustomed on August 28, 
 
         1985, when the workers' compensation benefits were terminated.
 
         
 
              That petitioners continued to rely on all of these available 
 
         resources after that time until Anne reached age 25 and Jane 
 
         appeared at the hearing and thereafter.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That the petitioners, Anne Kozak and Jane Kozak, were 
 
         "actually dependent" on all of the sources of income their father 
 
         left for them from the time of his death until Anne attained age 
 
         25 and Jane appeared at the hearing and thereafter, within the 
 
         context of Iowa Code section 85.31 l.b.
 
         
 
                                      ORDER
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to Anne E. Kozak one hundred fifty-three 
 
         point four two nine (153.429) weeks of workers' compensation 
 
         dependent's benefits for the period from August 28, 1985 to her 
 
         twenty-fifth birthday on August 6, 1988 at that rate of ninety-
 
         
 
         
 
         
 
         KOZAK VS. IOWA POWER AND LIGHT
 
         Page 12
 
         
 
         
 
         seven and 25/100 dollars ($97.25) per week in the total amount of 
 
         fourteen -thousand nine hundred twenty and 97/100 dollars 
 
         ($14,920.97) commencing on August 28, 1985.
 
         
 
              That defendant pay to Jane C. Kozak one hundred fifty-three 
 
         point four two nine (153.429) weeks of workers' compensation 
 
         dependent's benefits for the same period of time at the rate of 
 
         ninety-seven and 25/100 dollars ($97.25) per week in the total 
 
         amount of fourteen thousand nine hundred twenty and 97/100 
 
         dollars ($14,920.97) commencing on August 28, 1985 and then 
 
         defendant is ordered to pay Jane C. Kozak an additional one 
 
         hundred forty-nine point five seven one (149.571) weeks of 
 
         workers' compensation dependent's benefits for the period from 
 
         Anne's twenty-fifth birthday on August 6, 1988 to Jane's 
 
         twenty-fifth on June 19, 1991 at the rate of one hundred 
 
         ninety-four and 49/100 dollars ($194.49) per week in the total 
 
         amount of twenty-nine thousand ninety and 06/100 dollars 
 
         ($29,090.06) commencing on August 6, 1988.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action, including the cost of the 
 
         transcript, are charged to defendant pursuant to Division of 
 
         Industrial Services Rule 343-4.33.  Claimant submitted a 
 
         statement of costs.  Claimant is specifically entitled to the 
 
         transcript of deposition of David E. Schoenthaler in the amount 
 
         of ninety-two and 30/100 dollars ($92.30) and the transcript of 
 
         deposition of John A. Broman, M.D., in the amount of forty-three 
 
         and 40/100 dollars ($43.40).  The other costs on claimant's 
 
         statement of costs are considered to be trial preparation 
 
         expenses and are not enumerated as allowable costs in Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              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 15th day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                       WALTER R. MCMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         KOZAK VS. IOWA POWER AND LIGHT
 
         Page 13
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Michael Motto
 
         Attorney at Law
 
         1000 First Bank Center
 
         201 W. 2nd St.
 
         Davenport, Iowa  52801
 
         
 
         Mr. Alfred E. Willett
 
         Attorney at Law
 
         815 Merchants National Bank Bldg.
 
         PO Box 2877
 
         Cedar Rapids, Iowa  52406
 
         
 
         Mr. Andrew P. Matthews
 
         Attorney at Law
 
         PO Box 351
 
         Cedar Rapids, Iowa  52406
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1902
 
                                         Filed May, 15, 1990
 
                                         Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ANNE E. KOZAK & JANE C. KOZAK
 
                           :
 
              Claimants,  :                File No.  474930
 
                           :
 
         VS.               :
 
                                       :    R E V I E W - R E 0 P E N I N 
 
         G
 
         
 
         IOWA ELECTRIC LIGHT and POWER,
 
                                              D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         1902
 
         
 
              This is a case of first impression.  It determines the 
 
         meaning of the words "actually dependent" in Iowa Code section 
 
         85.32 1.b.  The determination is based on the  definition  of 
 
         dependency in Iowa established in the case of Murphy vs. Franklin 
 
         Co..  That case said the test is not whether a person is or can 
 
         be self-sustaining, it is not whether the dependent has the 
 
         necessities of life, but rather the test is whether a person has 
 
         sufficient income from all sources to maintain their standard of 
 
         living according to their accustomed state in life.
 
         
 
              These children were 11 and 14 when their father was 
 
         electrocuted, which was shortly after their parents were divorced 
 
         and the children also became separated from each other.  Both 
 
         young women required either psychological treatment of 
 
         psychiatric treatment.  The youngest was in fragile health due  
 
         to Type,.I insulin dependent diabetes mellitus which required a 
 
         daily 1800 calorie diet and three insulin injections a day and 
 
         had never been controlled. Decedent left social security 
 
         benefits, workers' compensation benefits and a testamentary trust 
 
         containing his estate assets for the children.  Claimants 
 
         demonstrated only moderate or normal spending habits for their 
 
         state in life.  Both petitioners had either no earnings or 
 
         moderate earnings typical of their age and state in life.
 
         
 
              Employer terminated benefits after the oldest daughter 
 
         received her college degree and the youngest daughter, at the 
 
         same time, quit cosmetology school.  The oldest was 22 and the 
 
         youngest was 19 when workers' compensation benefits were 
 
         terminated. Defendant did not investigate to determine "actual 
 
         dependency," but based termination of benefits on the fact that 
 
         neither child was a fall-time student.  Held:  Petitioners were 
 
         determined to be dependents and both awarded benefits to age 25.