BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MARILYN JOAN TWADDLE,
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 529223
 
         
 
         GLENWOOD STATE HOSPITAL SCHOOL,
 
                                                        R E V I E W -
 
              Employer,
 
                                                     R E O P E N I N G
 
         and
 
                                                      D E C I S I O N
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by Marilyn 
 
         Joan Twaddle, claimant, against Glenwood State Hospital School an 
 
         agency of the State of Iowa who is self-insured for the purposes 
 
         of the Iowa Workers' Compensation Acts, employer, for recovery of 
 
         further workers' compensation benefits as a result of an injury 
 
         on January 3, 1979.  A memorandum of agreement for this injury 
 
         was filed on January 18, 1979.  On April 26, 1988 a hearing was 
 
         held on claimant's petition and the matter was considered fully 
 
         submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses:  Bob Renner and Anna Miller.  The exhibits 
 
         received into the evidence at the hearing are listed in the 
 
         prehearing report.  According to the prehearing report the 
 
         parties stipulated to the following matters:
 
         
 
              1.  On January 3, 1979, claimant received an injury which 
 
         arose out of and in the course of her employment with the State;
 
         
 
              2.  Claimants rate of weekly compensation in the event of an 
 
         award of weekly benefits from this proceeding shall be $131.10 
 
         per week;
 
         
 
              3.  Claimant is not seeking temporary total disability or 
 
         healing period benefits in this proceeding;
 
         
 
              4.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole; and,
 
         
 
              5. If permanent disability benefits are awarded, they shall 
 
         begin as of May 2, 1985.
 
                                      
 

 
         
 
         
 
         
 
         TWADDLE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         PAGE   2
 
         
 
                                     ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether there is a causal relationship between the work 
 
         injury and the claimed permanent disability; and,
 
         
 
             II.  The extent of claimant's entitlement to weekly benefits 
 
         for permanent disability.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant's work history consists only of her employment at 
 
         the Glenwood State Hospital School in Glenwood, Iowa.  She began 
 
         as a teacher's aide in July, 1966 and eventually was promoted to 
 
         teacher and teacher supervisor.  Claimant's last performance 
 
         evaluation indicated, in the opinion of her supervisors, that her 
 
         performance exceeded job requirements.  According to her 
 
         supervisor in exhibit 18, claimant was absence from her 
 
         employment after the work injury herein from January 4, 1979 
 
         through January 30, 1979.  On February 1, 1979 claimant tried to 
 
         perform the job assigned but was, in the opinion of the 
 
         supervisor, unable to walk easily in the performance of her 
 
         duties.  On August 1, 1979 she was reassigned to special 
 
         instruction.  According to the supervisor, she worked at this job 
 
         which was somewhat easier physically until the end of August.  At 
 
         that time her supervisor stated that she was unable to carry out 
 
         her duties.  Claimant has been absent from work since September 
 
         4, 1979 until the present time except for an attempt to return to 
 
         work for three days in October, 1979.  Claimant's supervisor 
 
         stated that claimant has never refused an assignment and 
 
         willingly tried any assignment given to her.
 
         
 
              Claimant initially was injured on January 3, 1979 by a 
 
         mentally retarded student who, according to the history provided 
 
         to physicians herein and claimant's testimony, pulled her down 
 
         with her left arm and then struck her in the back.  Claimant 
 
         testified that she has experienced chronic symptoms since that 
 
         time.
 
         
 
              According to histories claimant has provided to physicians 
 
         and her testimony, claimant also injured her back in a car 
 
         accident in 1971.  Claimant said that she was hospitalized for 
 
         six weeks and for a period of time after this hospitalization 
 
         wore a back brace.  The diagnosis according to the medical 
 
         evidence at that time was a compression fracture of the Ll 
 
         vertebra.  Claimant has consistently told physicians in this case 
 
         that although her low back would bother her intermittently, she 
 
         was doing reasonably well until the injury on January 3, 1979.  
 
         Claimant also had prior injuries to her legs several years before 
 
         the work injury.  There is no indication that she expressed any 
 
         chronic leg difficulties to her physicians prior to January 3, 
 
         1979.  Approximately a year before the work injury, claimant was 
 

 
         
 
         
 
         
 
         TWADDLE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         PAGE   3
 
         
 
         
 
         diagnosed and treated for endogenous depression or depression 
 
         caused by a chemical imbalance in the brain due to lower levels 
 
         of serotonin.  This treatment consisted of medication termed 
 
         "Elavil" and support psychotherapy.  According to claimant's 
 
         psychiatrist, James Davis, M.D., claimant responded well to this 
 
         therapy and she had no psychiatric disorder or depression at the 
 
         time of the work injury in this case.
 
         
 
              Claimant's medical history since January 3, 1979 is 
 
         extensive with repeated examinations and evaluations by a host of 
 
         physicians in a multitude of specialties.  Claimant's primary 
 
         care or family physician initially was the physician at Glenwood 
 
         State Hospital, Charles Stinard, M.D.  Dr. Stinard has since died 
 
         and claimant's regular care is now in the hands of a board 
 
         certified internist, James J. Sheehan, M.D.  Claimant's primary 
 
         complaints have remained essentially unchanged since 1979.  These 
 
         complaints involve mid-back pain and numbness radiating into the 
 
         left shoulder, left chest area and into the left extremity.  At 
 
         times this numbness would extend into the fingers.  Also, 
 
         claimant has complained of low back pain and numbness on the left 
 
         side radiating into the hip and down into the left extremity.  
 
         The consistency of claimant's complaints during his treatment of 
 
         claimant was specifically verified by Dr. Sheehan in his 
 
         deposition in December, 1986.
 
         
 
              After a continuation of symptoms following the injury and 
 
         initial treatment by Dr. Stinard, claimant was first referred for 
 
         orthopedic evaluation to William Hamsa, Jr., M.D., an orthopedic 
 
         surgeon.  After his testing and evaluation of claimant, Dr. Hamsa 
 
         concluded that claimant suffered from dorsal-lumbar and 
 
         lumbo-sacral strain from the injury superimposed upon significant 
 
         osteoporosis of both the dorsal and lumbar spine as well as 
 
         probably old compression deformity at Ll.  Dr. Hamsa prescribed 
 
         corrective work habits, use of a lumbar corset and avoidance of 
 
         lifting and bending.  Claimant was admitted for neurological 
 
         testing in January, 1979.  Neurologist, Joel Cotton, M.D., and 
 
         Clifford Danneel, M.D., both found no neurological abnormalities 
 
         from their testing of claimant and claimant was discharged from 
 
         the hospital with a prescription for physical therapy and 
 
         medication.  Dr. Cotton stated that the left side numbness may be 
 
         related in part to the injury of January 3, 1979.  Dr. Cotton 
 
         reexamined claimant in August, 1979 and his findings remain 
 
         unchanged.  Dr. Cotton at the time stated that the cause of 
 
         claimant's symptoms was uncertain.  He also stated that the role 
 
         of the injury was uncertain and that the "Situational and 
 
         emotional factors appear to be contributory.
 
         
 
              Later in 1979 claimant began treating with Behrouz Rassekh, 
 
         M.D., a neurosurgeon who again admitted claimant to the hospital 
 
         for further testing and a myelography test of the spine.  After 
 
         this testing was completed Dr. Rassekh diagnosed that claimant 
 
         had degenerative disc disease at L4-5 and cervical spondylosis at 
 
         the C5-6 level on the left.  Initially surgery was scheduled but 
 
         cancelled when funding of the procedure was not assured.  A 
 
         second surgery was cancelled due to upper respiratory problems.  
 
         Surgery was not scheduled after that time.  Dr. Rassekh stated as 
 
         follows with reference to the issue of causation and the January 
 
         3, 1979 work injury:  "As far as the injury is concerned, these 
 
         problems are not related to the injury but the injury could be an 
 
         aggravating factor both in the cervical and lumbar pre-existing 
 
         problem."
 
         
 
              At the request of Dr. Rassekh, claimant's psychological 
 

 
         
 
         
 
         
 
         TWADDLE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         PAGE   4
 
         
 
         
 
         state was reevaluated by Dr. Davis who concluded after his 
 
         examination as follows:  "[N]o psychiatric disorder other than a 
 
         transient situational disturbance secondary to her chronic pain 
 
         and inability to be gainfully employed."  Dr. Davis stated in a 
 
         report in January, 1980 that he felt that the claimant's pain was 
 
         organic in nature, not psychological.  Dr. Cotton reexamined 
 
         claimant in March, 1980 and his original opinions again remain 
 
         unchanged and he felt that surgery would not solve claimant's 
 
         complaints due to the emotional overlay.  On April, 1980, Dr. 
 
         Davis concluded that claimant's depression at that time was a 
 
         result of her chronic pain and prescribed a treatment program 
 
         consisting of anti-depressant medication and supportive therapy.  
 
         In June, 1980 claimant underwent counseling at a pain center from 
 
         Bradley M. Berman, M.D.  In July, 1980, claimant was reevaluated 
 
         yet another time by Dr. Hamsa who again concluded nothing new.  
 
         He stated that claimant was going to have to "put up with her 
 
         symptoms.  Dr. Hamsa said further that the disability was 
 
         "chronicity of her symptoms rather than any loss of function by 
 
         orthopedic examination."  In September, 1980, another 
 
         psychiatrist, Michael L. Egger, M.D., evaluated claimant and 
 
         found no evidence of any active psychiatric disorder or 
 
         depression.  By this time, Dr. Stinard concluded that claimant's 
 
         condition was permanent and that she was completely and totally 
 
         disabled.
 
         
 
              In July, 1981 claimant was examined by another orthopedic 
 
         surgeon, Ronald K. Miller, M.D.  Dr. Miller likewise found no 
 
         neurological deficits and a "large functional overlay."  He 
 
         stated that orthopedically claimant could be able to handle light 
 
         work although she would have "some impairment in her ability to 
 
         walk and stand on a day in and day out basis."  Also in July, 
 
         1981, claimant was evaluated by another psychiatrist, Ronald L. 
 
         Bendorf, M.D.  Dr. Bendorf diagnosed that claimant had 
 
         "continuing depression with a great deal of somatic, overlay 
 
         pertaining to the physical limitations.
 
         
 
              Between 1981 and 1984 claimant remained under the active 
 
         care of Dr. Stinard until he became ill.  Claimant began treating 
 
         with Dr. Sheehan in June, 1984.  Dr. Sheehan then referred 
 
         claimant to the Rheumatology Division of Creighton University 
 
         Medical Department and specifically to Jay Kenik, M.D., and John 
 
         A. Hurley, M.D., both rheumatologists.  These doctors concluded 
 
         that claimant has "soft tissue rheumatism with some fibrositis."
 
         
 
              Eventually, Dr. Sheehan concluded as did Dr. Stinard that 
 
         claimant was not physically able to be employed in any capacity. 
 
          The doctor stated that given his experience with claimant, she 
 
         would only be able to work at a job two hours a day if you 
 
         consider one hour of traveling to and from work.  She cannot 
 
         stand more than a few minutes and cannot lift, push or pull.  She 
 
         cannot sit down with repetitive arm movements.  Surgery is not a 
 
         viable option in the opinion of Dr. Sheehan and specialists he 
 
         has consulted.
 
         
 
              Claimant was evaluated by Oscar M. Jardon, M.D., an 
 
         associate professor of medicine at the University of Nebraska 
 
         Medical Center, Orthopedics Department.  Dr. Jardon attempted to 
 
         rate claimant's permanent partial impairment but the rating in 
 
         his written reports was confusing.  These reports state that the 
 
         doctor first rates claimant as having a 10 percent disability but 
 
         later on states that she has an additional 10 percent for a total 
 
         of 25 percent.  He also includes in his rating the old 
 
         compression fracture.
 

 
         
 
         
 
         
 
         TWADDLE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         PAGE   5
 
         
 
         
 
         
 
              In his deposition, Dr. Jardon stated that claimant's 
 
         cervical spondylosis is probably related to claimant's work 
 
         injury herein due to the lack of complaints prior to that time.  
 
         He concludes that although claimant, from an orthopedic 
 
         standpoint, could perform some work she would still have "grave 
 
         problems" and could not do repetitive lifting over 10 pounds and 
 
         no prolonged standing, walking or sitting.  Overall, the doctor 
 
         did not believe that claimant could work eight hours at a time in 
 
         a job.  He explains that the prior existing organic depression 
 
         has magnified the orthopedic problems to the extent that claimant 
 
         is not employable.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that she was testifying truthfully.
 
         
 
              It should be noted for the record that although a decision 
 
         from an administrative law judge from the U.S. Social Security 
 
         Administration was admitted into the evidence, it played no part 
 
         in making the forgoing decision.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  After reading claimant's brief there appears to be some 
 
         confusion as to the significance of a memorandum of agreement 
 
         filed in this case and the issues in a review-reopening 
 
         proceeding such as the one at bar.  A memorandum of agreement 
 
         conclusively establishes an employer-employee relationship and 
 
         the occurrence of an injury arising out of and in the course of 
 
         employment.  Trenhaile v. Quaker Oats Co., 228 Iowa 711, 292 N.W. 
 
         799 (1940); Fickbohm v. Ryal Miller Co., 228 Iowa 919, 292 N.W. 
 
         801 (1940).  However, it does not establish the nature and extent 
 
         of disability.  Freeman v. Luppes Transport Company, Inc., 227 
 
         N.W.2d 143 (1975).  A claimant does not have to show a change of 
 
         condition from a voluntary payment of benefits pursuant to a 
 
         memorandum of agreement.  Caterpillar Tractor Co. v. Mejorado, 
 
         No. 86-485, slip op at 2 (Iowa August 1987).
 
         
 
              II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist  
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  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 
 

 
         
 
         
 
         
 
         TWADDLE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         PAGE   6
 
         
 
         
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant contends that she has 
 
         suffered total disability as a result of the work injury due to 
 
         significant and permanent impairment to the body as a whole.  
 
         First the evidence established that she has suffered significant 
 
         permanent impairment.  There is little dispute among the medical 
 
         experts in this case that claimants upper and lower back 
 
         conditions, termed spondylosis and degenerative disc disease, is 
 
         permanent and she has extreme difficulty walking, sitting, 
 
         standing and bending.  There is also little question that the 
 

 
         
 
         
 
         
 
         TWADDLE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         PAGE   7
 
         
 
         
 
         work injury aggravated these prior existing conditions.
 
         
 
              The preponderance of the evidence submitted establishes that 
 
         this aggravation permanently worsened or accelerated the 
 
         condition.  Most of the orthopedic surgeons and neurosurgeons 
 
         rendering an opinion in this case directly traced claimant's 
 
         current complaints to the January 3, 1979 injury.  Only Dr. 
 
         Cotton disputes such a causal connection on the basis of a lack 
 
         of neurological findings.  The primary dispositive factor in this 
 
         case is claimant's lack of symptomatology prior to the January 3, 
 
         1979 injury and a clear and consistent pattern of complaints 
 
         since that time.
 
         
 
              Also, there is little question in this case that claimant 
 
         suffers from endogenous depression prior to January 3, 1979.  A 
 
         preponderance of the evidence shows that claimant currently 
 
         suffers from an aggravation of that depression condition today as 
 
         a result of her chronic pain and inability to return to work.  
 
         The views of Dr. Davis, the primary treating psychiatrist, are 
 
         given the greatest weight.  According to Dr. Davis, claimant had 
 
         no psychiatric disorder or depression on the date of injury, 
 
         January 3, 1979, because his treatment prior to that time was 
 
         successful.  Also, according to Dr. Davis, it claimant's current 
 
         symptoms are in part functional, such a functional pain is the 
 
         result of her current depression caused by the January 3, 1979 
 
         injury.
 
         
 
              Defendants argue that disability caused by such depression 
 
         is not compensable.  This is incorrect. in the opinion of this 
 
         administrative law judge, it matters little whether the pain and 
 
         disability are the result of the orthopedic problem, or the 
 
         result of functional depression, if both were caused by the 
 
         original injury.  There is no physician in this case that 
 
         believes that claimant is malingering or that the pain is not 
 
         real.  Claimant's scenario in this case is all too familiar in 
 
         back cases in the experience of this agency.  Claimant's pain 
 
         results in depression which results in additional pain which 
 
         results in additional depression and so on.  Only immediate and 
 
         aggressive treatment of both the orthopedic and emotional 
 
         problems after the work injury and in an aggressive work 
 
         hardening program to return the injured worker to work can break 
 
         this cycle.  Unfortunately for claimant and her employer the 
 
         cycle was not broken in this case and it is unlikely that it will 
 
         be broken in the future.  The preponderance of the evidence 
 
         demonstrates that claimant's condition causes severe permanent 
 
         impairment.  The physicians who attempted to rate claimant's 
 
         functional impairment further establish a 10 to 20 percent 
 
         permanent partial impairment due to chronic symptoms.
 
         
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City R. Co., 
 
         219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical impairment or 
 
         restriction on work activity may or may not result in such a loss 
 

 
         
 
         
 
         
 
         TWADDLE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         PAGE   8
 
         
 
         
 
         of earning capacity.  The extent to which a work injury and a 
 
         resulting medical condition has resulted in an industrial 
 
         disability is determined from examination of several factors.  
 
         These factors include the employee's medical condition prior to 
 
         the injury, immediately after the injury and presently; the situs 
 
         of the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimants medical condition before the work injury was 
 
         certainly not excellent but she had no chronic pain or 
 
         ascertainable disabilities prior to January, 1979.  Claimant was 
 
         able to fully perform physical tasks in her teaching duties 
 
         involving repetitive bending, prolonged standing, sitting and 
 
         walking.
 
         
 
              Claimant's physicians have given claimant a significant 
 
         permanent impairment rating to her body as a whole.  Any 
 
         impairment prior to the work injury is not important as the 
 
         record does not indicate that such impairment resulted in a 
 
         permanent work disability.  A portion of a disability between a 
 
         preexisting condition and an injury is proper only when there is 
 
         some ascertainable disability which existed independently before 
 
         the work injury.  Varied Enterprises v. Sumner, 353 N.W.2d 407 
 
         (Iowa 1984).
 
         
 
              Claimant's physicians have indicated that claimants work 
 
         activities cannot involve repetitive bending, twisting, stooping; 
 
         or, prolonged sitting, standing or walking.  Claimant would be 
 
         unable to sit and perform repetitive tasks with her extremities 
 
         such as typing or filing.  Claimant must bed rest for significant 
 
         portions of a normal work day.  Most of the physicians in this 
 
         case believe that claimant is unable to physically perform even 
 
         the simple tasks necessary to obtain a sedentary job due to 
 
         physical problems aggravated by her mental state.
 
         
 
              Claimant remains unemployed despite a reasonable effort to 
 
         return to work at the state hospital.  Claimant has chosen not to 
 
         rely upon the odd-lot doctrine to establish a case for permanent 
 
         total disability.  This doctrine is a procedural device designed 
 
         to shift the burden of proof with respect to employability to the 
 
         employer when claimant demonstrates a reasonable but unsuccessful 
 
         effort to look for work.  Klein v. Furnas Elec. Co., 384 N.W.2d 
 
         370, 375 (Iowa 1986).  However, the industrial commissioner has 
 
         directed that this doctrine cannot be applied by a deputy unless 
 
         it is identified as an issue in the last prehearing conference 
 
         and listed as a contested issue in the hearing assignment order. 
 
          As this is not the case, the odd-lot doctrine was not applied.
 
         
 
              It is clear that age is one of the factors to be considered 
 
         in assessing the extent of industrial disability of loss of 
 
         earning capacity.  Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).  Claimant herein is 65 years old and nearing the end 
 
         of her working career.. Her loss of future earnings from 
 

 
         
 
         
 
         
 
         TWADDLE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         PAGE   9
 
         
 
         
 
         employment due to her disability is not as severe as would be the 
 
         case for a younger individual.  However, claimant was only 56 
 
         years of age at the time of injury.  Also, in Diederich, 219 Iowa 
 
         587, 258 N.W. 899 (1935) which involved a 59 year old street car 
 
         motorman, the court demonstrated that advanced age does not 
 
         prohibit a finding of permanent total disability.  As in 
 
         Diederich, it was not shown that claimant had made plans to 
 
         retire or to leave the work force at any specified time in the 
 
         future.
 
         
 
              Although claimant has a post high school education and 
 
         exhibited above average intelligence at the hearing, vocational 
 
         rehabilitation does not appear to be a viable alternative due to 
 
         her physical problems and her age.
 
         
 
              After examination of all the factors, and without the use of 
 
         any so called odd-lot doctrine, it is found as a matter of fact 
 
         that claimant has suffered a total loss of her earning capacity 
 
         from her work injury.  The claimant is physically and mentally 
 
         unable to work.  Based upon such a finding, claimant is entitled 
 
         as a matter of law to permanent total disability benefits under 
 
         Iowa Code section 85.34(3) indefinitely during the period of her 
 
         disability.
 
         
 
              It was agreed at hearing that the parties would work out the 
 
         Iowa Code section 85.38 credit issue on their own given their 
 
         stipulations if the undersigned would simply order that such 
 
         credit be given.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On January 3, 1979 claimant suffered an injury to her 
 
         back which arose out of and in the course of employment with the 
 
         State of Iowa.  Claimant was attacked by a resident of the 
 
         Glenwood State hospital who pulled her to the ground and struck 
 
         tier in the upper and lower back regions.  Claimant suffered back 
 
         strain as a result and this back strain aggravated a prior 
 
         existing condition of spondylolysis, arthritis, compression 
 
         fracture and degenerative disc disease.
 
         
 
              3.  The work injury of January 3, 1979 was a cause of a 
 
         10-20 percent permanent partial impairment to the body as a whole 
 
         and of permanent restrictions upon claimant's physical activities 
 
         consisting of no lifting or bending or prolonged walking, 
 
         standing or sitting.  The aggravation work injury resulted in 
 
         chronic pain and numbness in the upper and lower back; chronic 
 
         pain and numbness of the left shoulder, chest and arm; pain and 
 
         numbness in the lower back, left hip and left leg.
 
         
 
              4.  The work injury of January 3, 1979 and the resulting 
 
         pain and disability also resulted in endogenous depression 
 
         condition which further restricts claimants activity by 
 
         increasing the intensity of the chronic pain and numbness.  
 
         Claimant had no chronic pain and/or ongoing depression at the 
 
         time of the work injury on January 3, 1979.
 
         
 
              5.  The work injury of January 3, 1979 and the resulting 
 
         permanent partial impairment was and remains to be at the present 
 
         time a cause of permanent total loss of earning capacity.  
 
         Claimant was 56 years of age at the time of injury.  She had no 
 
         retirement plans or any other plans to leave the work force at 
 

 
         
 
         
 
         
 
         TWADDLE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         PAGE  10
 
         
 
         
 
         the time of the work injury.  Claimant had no other disabilities 
 
         at the time of the work injury.  Claimant is physically unable at 
 
         the present time to perform even sedentary work on a regular 
 
         basis.  Claimant has not worked in any capacity since October, 
 
         1979.  Vocational rehabilitation is not feasible due to 
 
         claimant's functional limitations and her advanced age.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent total disability benefits as awarded 
 
         below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendant, the State of Iowa, shall pay to claimant 
 
         permanent total disability benefits for an indefinite period of 
 
         time beginning on May 2, 1985 (the end of the voluntary payment 
 
         of benefits as set forth in the prehearing report) during the 
 
         period of her disability.
 
         
 
              2.  Defendant, the State of Iowa, shall pay accrued weekly 
 
         benefits in a lump sum and shall receive a credit against this 
 
         award for all benefits previously paid as set forth in the 
 
         prehearing report.
 
         
 
              3.  Defendant, the State of Iowa, shall receive credit for 
 
         previous payments of benefits under a non-occupational group 
 
         insurance plan, pursuant to Iowa Code section 85.38(2) and the 
 
         stipulation in the prehearing report.
 
         
 
              4.  Defendant, the State of Iowa, shall pay interest on 
 
         benefits awarded herein as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendant, the State of Iowa, shall pay the costs of 
 
         this action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              6.  Defendant shall file activity report upon payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
         
 
              Signed and filed this 28th day of July, 1988.
 
         
 
         
 
         
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Dennis M. Gray
 
         Mr. Jacob J. Peters
 
         Attorneys at Law
 
         233 Pearl St.
 
         P. O. Box 1078
 
         Council Bluffs, Iowa 51502
 
         
 

 
         
 
         
 
         
 
         TWADDLE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         PAGE  11
 
         
 
         
 
         Mr. Greg Knoploh
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1804
 
                                                   Filed July 28, 1988
 
                                                   LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MARILYN JOAN TWADDLE,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                       File No. 529223
 
         GLENWOOD STATE HOSPITAL SCHOOL,
 
                                                        R E V I E W -
 
              Employer,
 
                                                      R E O P E N I N G
 
         and
 
                                                       D E C I S I O N
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1804
 
         
 
              Claimant was awarded permanent total disability benefits as 
 
         a result of a work injury caused by an attack from a mentally 
 
         retarded resident of a state institution.  The permanent total 
 
         disability was the result, in part, of functional depression.  
 
         This depression arose by a reactivation of a prior existing 
 
         tendency toward endogenous depression.  However, the treating 
 
         psychiatrist stated that claimant had no ongoing depression at 
 
         the time of the work injury.  The odd-lot doctrine was not used 
 
         because it was not pled in this case, however, the claimant was 
 
         found not to be physically capable of work, therefore, the 
 
         odd-lot would not be applicable in any event.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARY ANN SPLINTER,
 
         
 
              Claimant,
 
                                                    File No. 531277
 
         vs.
 
         
 
         WALSER MOVERS, INC.,                         A P P E A L
 
         
 
               Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         AID INSURANCE SERVICES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE  CASE
 
         
 
              Claimant appeals from a rehearing decision denying a request 
 
         for full commutation of benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         rehearing proceeding; joint exhibits 1 through 29; and 
 
         defendants' exhibits A through F.  Both parties filed briefs on 
 
         appeal, and claimant filed a reply brief.
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              1.  Whether defendants have waived the right to appeal by 
 
         voluntary payment of the full commutation.
 
         
 
              2.  Whether claimant and defendants entered into an accord 
 
         and satisfaction which bars review of the deputy's approval of 
 
         the full commutation.
 
         
 
              3. Whether defendants are estopped from seeking review of 
 
         the approval of the full commutation.
 
         
 
              4.  Whether a full commutation of benefits is in the best 
 
         interest of the claimant.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The rehearing decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally set forth 
 
         herein.
 
              Briefly stated, Delbert Splinter died as a result of an 
 
         injury at his place of work on March 14, 1979, when a crane he 
 
         was operating broke and the cab he was in was crushed.  
 
         Thereafter, benefit payments to his surviving spouse, claimant in 
 
         this action commenced.
 
         
 

 
         
 
         
 
         
 
         SPLINTER V. WALSER MOVERS, INC.
 
         Page   2
 
         
 
         
 
              Defendants instituted a third party action against the 
 
         manufacturer of the crane, with claimant as prosecutrix, and 
 
         with David Kintzinger as attorney for both claimant and 
 
         defendants.
 
         
 
              A settlement was reached in the third party action for 
 
         $250,000.  Claimant's signature was obtained on a settlement 
 
         document, which she was told would not be used if she changed 
 
         her mind.  Defendant AID Insurance agreed to the settlement 
 
         with the understanding that $140,000 of the settlement would be 
 
         placed in an annuity that would pay claimant an amount in 
 
         excess of her workers' compensation benefits, or $1,290 per 
 
         month for life, with twenty years certain.  The settlement also 
 
         contemplated that $83,000 in attorney fees and $26,000 in costs 
 
         would be paid out of the proceeds.  Upon acceptance of this 
 
         settlement, AID released the third party from the lawsuit.
 
         
 
              Claimant then sought the advice of a banker, who told her 
 
         she would be better off with $140,000 in cash.  Claimant 
 
         recognized that under a cash settlement she would have to pay 
 
         taxes on the interest earned, but she would continue to own the 
 
         principal.
 
         
 
              Marilyn Terrell, senior claims specialist for AID 
 
         Insurance, testified that she was contacted by Attorney David 
 
         Kintzinger on April 23, 1984, indicating that claimant 
 
         preferred a lump sum distribution rather than an annuity.  It 
 
         was then contemplated by the parties that approval by the 
 
         commissioner of a commutation of claimant's benefits would be 
 
         sought, which would be paid out of the settlement proceeds 
 
         pursuant to AID's third party lien.
 
         
 
              Marilyn Terrell testified that the commuted value of the 
 

 
         
 
         
 
         
 
         SPLINTER V. WALSER MOVERS, INC.
 
         Page   3
 
         
 
         
 
         benefits at that time would have been approximately $175,000, 
 
         which she pointed out was more than the settlement amount of 
 
         $140,000.  She expressed doubt whether the industrial 
 
         commissioner would approve the commutation at the lower amount.  
 
         The deputy industrial commissioner originally indicated that a 
 
         commutation for an amount less than claimant was entitled to 
 
         under the commissioner's tables would not be approved.  
 
         However, it was later indicated that payment of the $140,000 
 
         and AID's waiver of its lien for the previously paid $72,000 in 
 
         benefits would satisfy the commuted value.
 
         
 
              In the estate probate proceedings, the parties requested 
 
         approval of a lump sum payment of $110,000 to claimant and 
 
         $30,000 to her minor children from the settlement proceeds on 
 
         March 30, 1984, subject to the approval of the industrial 
 
         commissioner of a full commutation.  A guardian ad litem 
 
         appointed for the children filed a report which indicated that 
 
         a full commutation of the benefits would equal $178,822.  After 
 
         seeing the report, claimant expressed a desire for a full 
 
         commutation in the amount of $178,822, and Kintzinger withdrew 
 
         from the case due to a perceived conflict of interest.
 
         
 
              With new legal counsel, claimant filed a petition 
 
         requesting full commutation on December 7, 1984.  Defendants 
 
         initially filed a resistance to the petition.  Claimant 
 
         rejected offers from the insurance company to settle the claim 
 
         for various amounts.  However, on February 12, 1985, defendants 
 
         withdrew their objection to the request for a full commutation 
 
         of all future benefits payable to Mrs. Splinter, "the precise 
 
         amount of which will be calculated in accordance with the 
 
         tables set forth in the rules of the Industrial Commissioner.O  
 
         (Joint Exhibit 18)  On March 8, 1985, the insurance carrier 
 
         filed a consent to commutation, with $178,822 as the 
 

 
         
 
         
 
         
 
         SPLINTER V. WALSER MOVERS, INC.
 
         Page   4
 
         
 
         
 
         contemplated amount.  The consent also made reference to a 
 
         "waiver of the petition" by defendants.  Marilyn Terrell 
 
         testified that the insurance carrier's waiver referred to was 
 
         intended only as an agreement to waive hearing on the 
 
         application.
 
         
 
              As a result of the consent, the deputy commissioner issued 
 
         a ruling granting a request for full commutation on March 15, 
 
         1985.  A draft dated March 15, 1985, in the amount of 
 
         $191,336.17, reflecting a full commutation (including a 
 
         recognition that the sixth anniversary of decedent's death had 
 
         then been reached, plus past unpaid benefits and interest) was 
 
         issued, and the draft was presented for payment by claimant to 
 
         a bank on March 20, 1985.   On the same day the Iowa Supreme 
 
         Court issued its opinion in Sidles Distributing Company v. 
 
         Heath, 366 N.W.2d 1 (Iowa 1985), which held that the 
 
         commissionerOs tables for commutation values improperly used a 
 
         simple interest factor, and that a compound interest factor 
 
         must be used.
 
         
 
              On April 3, 1985, defendants timely requested a rehearing 
 
         based on the Sidles case.  Claimant placed the funds in a 
 
         revocable trust and began receiving interest on April 5, 1985.  
 
         Claimant filed a resistance to the motion for rehearing on 
 
         April 16, 1985, but the rehearing was granted the same day.
 
         
 
              On June 6, 1986, claimant made a motion for adjudication 
 
         of law points or summary judgment, requesting a finding that 
 
         use of the simple interest discount table was required for 
 
         claimant's commutation request.  The motion was overruled.
 
         
 
              The rehearing was held on June 24, 1986.  The deputy 
 
         commissioner found that the rehearing was not barred by the 
 

 
         
 
         
 
         
 
         SPLINTER V. WALSER MOVERS, INC.
 
         Page   5
 
         
 
         
 
         previous agreements between the parties; that the order 
 
         approving the commutation was a proposed agency decision and a 
 
         request for rehearing had been granted before the decision 
 
         became a final decision; that Sidles and House File 2484, Acts 
 
         of the 71st Iowa General Assembly, required that claimantOs 
 
         commutation be computed using a compound interest factor; that 
 
         claimant's commutation amount was now less than $130,000; and 
 
         that a commutation was no longer in her best interest.
 
         
 
              The record in prior proceedings in this case establishes 
 
         that claimant was 34 years old at the time of decedent's death, 
 
         and that decedent's rate of compensation was $265.
 
         
 
                              APPLICABLE LAW
 
         
 
              Iowa Code section 85.45 provides in part:
 
         
 
                 Future payments of compensation may be commuted to a 
 
              present worth lump sum payment on the following 
 
              conditions:
 
         
 
                 1.  When the period during which compensation is 
 
              payable can be definitely determined.
 
         
 
                 2.  When it shall be shown to the satisfaction of 
 
              the industrial commissioner that such commutation will 
 
              be for the best interest of the person or persons 
 
              entitled to the compensation, or that periodical 
 
              payments as compared with a lump sum payment will 
 
              entail undue expense, hardship, or inconvenience upon 
 
              the employer liable therefor.
 
         
 
                 ....
 
         
 
                 4.  When a person seeking a commutation is a 
 
              surviving spouse, a permanently and totally disabled 
 
              employee, or a dependent who is entitled to benefits as 
 
              provided in section 85.31, subsection 1, paragraphs "c" 
 
              and "d", the future payments which may be commuted 
 
              shall not exceed the number of weeks which shall be 
 
              indicated by probability tables designated by the 
 
              industrial commissioner for death and remarriage, 
 
              subject to the provisions of chapter 17A.
 
         
 
              Iowa Code section 17A.15(3) provides:
 
         
 
                 When the presiding officer makes a proposed 
 
              decision, that decision then becomes the final decision 
 
              of the agency without further proceedings unless there 
 
              is an appeal to, or review on motion of, the agency 
 
              within the time provided by rule.  On appeal from or 
 
              review of the proposed decision, the agency has all the 
 
              power which it would have in initially making the final 
 
     
 
         
 
         
 
         
 
         
 
         SPLINTER V. WALSER MOVERS, INC.
 
         Page   6
 
         
 
         
 
              decision except as it may limit the issues on notice to 
 
              the parties or by rule.  In cases where there is an 
 
              appeal from a proposed decision or where a proposed 
 
              decision is reviewed on motion of the agency, an 
 
              opportunity shall be afforded to each party to file 
 
              exceptions, present briefs and, with the consent of the 
 
              agency, present oral arguments to the agency members 
 
              who are to render the final decision.
 
         
 
              Iowa Code sections 17A.10(l) and (2) provide:
 
         
 
                 Unless precluded by statute, informal settlements of 
 
              controversies that may culminate in contested case 
 
              proceedings according to the provisions of this chapter 
 
              are encouraged.  Agencies shall prescribe by rule 
 
              specific procedures for attempting such informal 
 
              settlements prior to the commencement of contested case 
 
              proceedings.  This subsection shall not be construed to 
 
              require either party to such a controversy to utilize 
 
              the informal procedures or to settle the controversy 
 
              pursuant to those informal procedures.
 
         
 
                 The parties to a contested case proceeding may, by 
 
              written stipulation representing an informed mutual 
 
              consent, waive any provision of this chapter relating 
 
              to such proceedings.  In addition to consenting to such 
 
              a waiver in individual cases, an agency may, by rule, 
 
              express its consent to such a waiver as to an entire 
 
              class of cases.
 
         
 
              Iowa Code section 17A.12(5) provides:
 
         
 
                 Unless precluded by statute, informal disposition 
 
              may be made of any contested case by stipulation, 
 
              agreed settlement, consent order or default or by 
 
              another method agreed upon by the parties in writing.
 
         
 
              Iowa Code section 86.27 provides:
 
         
 
                 Notwithstanding the terms of the Iowa administrative 
 
              procedure Act, no party to a contested case under any 
 
              provision of the "Workers' Compensation Act" may settle 
 
              a controversy without the approval of the industrial 
 
              commissioner.
 
         
 
              Division of Industrial Services Rule 343-4.24 
 
              provides:
 
         
 
                 Any party may file an application for rehearing of a 
 
              decision in any contested case by a deputy commissioner 
 
              within twenty days after the issuance of the decision.  
 
              A copy of such application shall be timely mailed by 
 
              the applicant to all parties of record not joining 
 
              therein.  Such an application for rehearing shall be 
 
              deemed denied unless the deputy commissioner rendering 
 
              the decision grants the application within twenty days 
 
              after its filing.
 
         
 
              In computing the present value in a commutation of workers, 
 

 
         
 
         
 
         
 
         SPLINTER V. WALSER MOVERS, INC.
 
         Page   7
 
         
 
         
 
         compensation benefits, a compound interest factor, rather than a 
 
         simple interest factor, is to be used.Sidles Distributing Company 
 
         v. Heath, 366 N.W.2d 1 (Iowa 1985).  A hearing officer's decision 
 
         is merely a proposed decision.  The statute makes the hearing 
 
         officer an adjunct of the agency rather than an independent 
 
         decision maker.  Iowa State Fairgrounds Security v. Iowa Civil 
 
         Rights Commission, 322 N.W.2d 293 (Iowa 1982).  A deputy 
 
         industrial commissioner may modify a proposed decision while he 
 
         or she still has jurisdiction within the twenty day period for 
 
         appeal under Iowa Industrial Commissioner Rule 343-4.29.  
 
         Huntzinger v. Moore Business Forms, Inc., 320 N.W.2d 545 (Iowa 
 
         1982).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant contends on appeal that defendants were barred from 
 
         seeking a rehearing because the original commutation amount was 
 
         already paid to claimant.  The record is clear that there was a 
 
         stipulation entered into by the parties, an order approving the 
 
         commutation was entered by the deputy commissioner, payment of 
 
         the funds was made, and the draft was presented for payment to 
 
         the bank by claimant.  The record shows that the parties, up 
 
         until March 20, 1985, had contemplated a full commutation in the 
 
         amount indicated by the commissioner's tables prior to the 
 
         Sidles decision.
 
         
 
              However, the deputy commissioner's decision approving the 
 
         full commutation was a proposed agency decision only.  Under Iowa 
 
         Code section 17A.15(3) and Industrial Commissioner's Rule 4.24 
 
         and 4.27, that decision would not become a final agency decision 
 
         until twenty days had elapsed without an appeal or motion for 
 
         review.  A motion for review was made by defendants within the 
 
         twenty days.  The deputy still maintained jurisdiction over his 
 
         decision during that period, including the power to modify the 
 
         decision.  The fact that defendants had already paid the commuted 
 
         funds to claimant prior to seeking review of the decision does 
 
         not alter the nature of the deputy's decision.  An agreement 
 
         between the parties cannot abrogate the statute or the 
 
         commissioner's rule.  Thus, the defendants did not waive their 
 
         right to review of the decision under 17A.15(3) by paying the 
 
         commuted funds.
 
         
 
              It is noted that sections 17A.10 and 17A.12(5) do authorize 
 
         informal settlements between the parties, but both sections 
 
         contain the caveat that such an informal settlement is possible 
 
         only if not precluded by statute.  Sections 85.45 and 86.27, of 
 
         the Code, require the approval of the industrial commissioner for 
 
         an informal settlement or commutation.  In this case, the 
 
         approval of the deputy commissioner would not constitute approval 
 
         by the commissioner unless the decision became a final agency 
 
         decision under section 17A.15(3).  Since the deputy's decision 
 
         was suspended by the timely motion for review and later modified 
 
         by the deputy, the commutation settlement was not approved by the 
 
         commissioner.
 
         
 
              Claimant also argues that defendants cannot pursue a review 
 
         of the deputy's decision because one of the settlement documents 
 
         stated that defendants were executing a "waiver to petition" for 
 
         commutation.  There is no indication that defendants ever 
 

 
         
 
         
 
         
 
         SPLINTER V. WALSER MOVERS, INC.
 
         Page   8
 
         
 
         
 
         intended to waive the right to review the deputy's decision under 
 
         chapter 17A.  Rather, the record indicates that the intent of 
 
         such language was to facilitate and expedite the approval of the 
 
         claimant's petition for full commutation without the necessity of 
 
         a hearing on the request.  Furthermore, it is questionable 
 
         whether or not defendants have the ability to waive a right 
 
         granted to them by statute.
 
         
 
              Similarly, section 17A.15(3) would operate to negate 
 
         claimant's argument that payment of the commuted funds 
 
         constituted an accord and satisfaction that prohibits defendants 
 
         from pursuing review of the approved order.  There was no accord 
 
         and satisfaction where the approval of the deputy commissioner 
 
         was required, and that approval was still subject to review or 
 
         appeal.
 
         
 
              Even if the agreement between the parties did constitute an 
 
         accord and satisfaction, it was an understanding based on a 
 
         mutual mistake of fact.  Both parties based their agreement on 
 
         the prior tables of the industrial commissioner to determine the 
 
         amount of funds claimant would receive under the full 
 
         commutation.  The decision in the Sidles case established that 
 
         those tables were based on an improper factor.  Thus, both 
 
         parties entered into their agreement for settlement in the belief 
 
         that claimant would receive approximately $178,822 under the full 
 
         commutation.  In fact, claimant was only entitled to a much lower 
 
         amount.  The mutual mistake as to the amount involved constitutes 
 
         a mistake of fact negating an accord and satisfaction.
 
         
 
              Finally, the defendants are not estopped from pursuing their 
 
         motion for review under section 17A.15(3).  Claimant has invested 
 
         the funds and received interest thereon, but claimant was 
 
         informed of defendants' motion for review within a few days of 
 
         receiving the funds, and has not spent the funds or otherwise 
 
         adversely relied upon the original ruling.  The record does not 
 
         show that claimant has relied upon the agreement to her 
 
         detriment.
 
         
 
              On appeal, claimant renews her request for full  
 
         commutation. The defendants agree that a commutation is in 
 
         claimant's best interest.  She has had the funds in her 
 
         possession for some time.  Claimant has invested those funds in a 
 
         prudent manner.  A commutation computed under a compound interest 
 
         factor pursuant to the Sidles decision is in her best interest.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Decedent Delbert J. Splinter died on March 14, 1979 in 
 
         an accident that arose out of and in the course of his 
 
         employment.
 
         
 
              2.  Claimant was the spouse of decedent.
 
         
 
              3.  Claimant was 34 years old at the time of decedent's 
 
         death.
 
         
 
              4.  Decedent's rate of compensation was $265.
 
         
 
              5.  Claimant previously received a full commutation of 
 

 
         
 
         
 
         
 
         SPLINTER V. WALSER MOVERS, INC.
 
         Page   9
 
         
 
         
 
         benefits in the amount of $191,336.17.
 
         
 
              6.  The commutation of benefits was approved by a deputy 
 
         industrial commissioner.
 
         
 
              7.  The deputy industrial commissioner's decision was a 
 
         proposed agency decision.
 
         
 
              8.  Subsequent to the approval and payment of the 
 
         commutation but before the time allowable for review or appeal of 
 
         the deputy commissioner's decision had expired, the Iowa Supreme 
 
         Court decided the case of Sidles Distribution Company v. Heath, 
 
         366 N.W.2d 1 (Iowa 1985).
 
         
 
              9.  Defendants timely requested a rehearing of the deputy 
 
         industrial commissioner's decision approving full commutation.
 
         
 
             10.  On rehearing on June 24, 1986, the deputy industrial 
 
         commissioner modified his decision to reflect utilization of a 
 
         compound interest factor and denied a commutation as not being in 
 
         claimant's best interest.
 
         
 
             12.  Claimant has not detrimentally relied on the prior 
 
         approval of payment of commuted benefits.
 
         
 
             13.  Claimant had not remarried as of the date of the 
 
         rehearing.
 
         
 
             14. A full commutation of benefits is in claimant's best 
 
         interest.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's request for full commutation of benefits is 
 
         governed by House File 2484, Acts of the 71st General Assembly, 
 
         and the tables of the Iowa Industrial Commissioner as revised 
 
         subsequent to the decision of the Iowa Supreme Court in Sidles 
 
         Distributing v. Heath, 366 N.W.2d 1 (Iowa 1985) and must be 
 
         computed to a present value based upon a compound interest 
 
         factor.
 
         
 
              Defendants have not waived their right to seek review of the 
 
         commutation approval.
 
         
 
              Defendants are not estopped from seeking review of the 
 
         deputy's commutation approval.
 
         
 
              Defendants are not barred by accord and satisfaction from 
 
         seeking a review of the commutation approval.
 
         
 
              A full commutation of benefits is in the best interest of 
 
         claimant.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed in part 
 
         and reversed in part.
 
         
 
         
 
                                      ORDER
 
         
 

 
         
 
         
 
         
 
         SPLINTER V. WALSER MOVERS, INC.
 
         Page  10
 
         
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay unto claimant the sum of one 
 
         hundred twenty-eight thousand five hundred thirty-two and 87/100 
 
         dollars ($128,532.87) representing the commuted value of all 
 
         remaining compensation benefits as of the date of the filing of 
 
         this decision.
 
         
 
              That defendants, upon payment of sums due under this order, 
 
         are forever released and discharged from any and all liability to 
 
         claimant under the Iowa Workers' Compensation Law which is now in 
 
         existence or may exist in the future as a result of the death of 
 
         Delbert J. Splinter on March 14, 1979.
 
         
 
              That defendants are to pay the costs of this action.
 
         
 
         
 
              Signed and filed this 14th day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                DAVID E. LINQUIST
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         
 

 
         
 
         
 
         
 
         SPLINTER V. WALSER MOVERS, INC.
 
         Page  11
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Louis P. Pfeiler
 
         Attorney at Law
 
         Washington Park Law Building
 
         679 Bluff Street
 
         Dubuque, Iowa 52001
 
         
 
         Mr. Cecil L. Goettsch
 
         Attorney at Law
 
         1100 Des Moines Building
 
         Des Moines, Iowa 50309
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                       3303.10
 
                                                       Filed 4-14-88
 
                                                       David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARY ANN SPLINTER,
 
         
 
              Claimant,
 
                                                    File No. 531277
 
         vs.
 
         
 
         WALSER MOVERS, INC.,                         A P P E A L
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         AID INSURANCE SERVICES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         3303.10
 
         
 
              Defendants agreed to and paid a full commutation of benefits 
 
         to deceased worker's widow.  However, defendants timely sought 
 
         and received a review of the deputy's decision approving the full 
 
         commutation in light of the supreme court's decision in Sidles 
 
         Distributing Co. v. Heath, 366 N.W.2d 1 (Iowa 1985).  The supreme 
 
         court decision was issued on the day the worker's spouse 
 
         deposited the commutation check in the bank.  Held that the 
 
         deputy's decision was not a final agency decision since review 
 
         was sought within 20 days; that Sidles was applicable and that 
 
         the commutation amount would be computed using a compound 
 
         interest factor; that neither accord and satisfaction or estoppel 
 
         prevented defendants from seeking review of the commutation 
 
         approval; and that commutation was in claimant's best interest.
 
         
 
         
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WAYNE SOLOMON,
 
         
 
              Claimant,
 
                                                     FILE NO. 533658
 
         vs.
 
                                                      R E V I E W -
 
         RUAN TRANSPORT COMPANY,
 
                                                    R E 0 P E N I N G
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         IOWA INSURANCE GUARANTY ASSOCIATION,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by Wayne 
 
         Solomon, claimant, against Ruan Transport Company, employer 
 
         (hereinafter referred to as Ruan), and Carriers Insurance Company 
 
         by the Iowa Insurance Guaranty Association, insurance carrier, 
 
         defendants, for the recovery of additional workers' compensation 
 
         benefits as a result of an injury on May 14, 1979.  A prior 
 
         review-reopening decision for this injury was filed on August 27, 
 
         1981.  On October 26, 1987, a hearing was held on claimant's 
 
         petition and the matter was considered fully submitted at the 
 
         close of the hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses: Kathryn Schrot, Phyllis Solomon, Jan J. 
 
         Engquist, Mary Lower, and Jerry Munsy.  The exhibits received 
 
         into the evidence at the hearing are listed in the prehearing 
 
         report.  According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On March 14, 1979, claimant received an injury which 
 
         arose out of and in the course of employment with Ruan.
 
         
 
              2.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $244.00.
 
              3.  Claimant is not seeking temporary total, disability or 
 
         healing period benefits in this proceeding.
 
         
 

 
         
 
         
 
         
 
         SOLOMON V. RUAN TRANSPORT COMPANY
 
         Page   2
 
         
 
         
 
              4.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability 
 
         to the body as a whole.
 
         
 
              5.  Permanent disability benefits shall begin as of 
 
         February 25, 1981.
 
         
 
              6.  With reference to the expenses requested by the 
 
         claimant in the prehearing report, it was agreed that the 
 
         medical providers involved would testify as to the 
 
         reasonableness of their charges for medical treatment and that 
 
         the defendants are not offering contrary evidence.  It was 
 
         further agreed that the expenses are connected to the medical 
 
         condition upon which the claim herein is based but the issue of 
 
         their causal connection to any work injury remains an issue to 
 
         be decided herein.
 
         
 
                                   ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether claimant is entitled to additional benefits for 
 
         permanent disability for an alleged change of condition; and,
 
         
 
             II.  The extent of claimant's entitlement to medical benefits 
 
         under Iowa Code section 85.27.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As with any 
 
         attempted summarization, the foregoing may contain conclusionary 
 
         statements with reference to the evidence presented.  Such 
 
         conclusions should be considered as preliminary findings of 
 
         fact.
 
         
 
              The agency file in this case contains the 1981 
 
         review-reopening decision.  Of significance is the following 
 
         excerpt from the Orecitation of the evidence" in that decision:
 
         
 
                 On the day of the present hearing, claimant 
 
              described his condition as somewhat improved as he is 
 
              able to lift greater weight and do more repetitions 
 
              than he was doing in the past.  He claimed that he uses 
 
              his TENS unit more, that he has headaches, that he has 
 
     
 
         
 
         
 
         
 
         
 
         SOLOMON V. RUAN TRANSPORT COMPANY
 
         Page   3
 
         
 
         
 
              pain in the lower part of his neck and up the back of 
 
              his neck to the base of his skull, that he still uses 
 
              his cervical collar off and on, that he has a popping 
 
              and cracking in his neck bone and that he has trouble 
 
              turning his neck to the right with less difficulty 
 
              turning to the left.  He asserted that he does 
 
              strengthening exercises and weight lifting daily.  
 
              Swimming had been suggested by Dr. Janda, but claimant 
 
              testified he has not done any swimming because funding 
 
              was not provided by the insurance carrier.
 
         
 
              . . .
 
         
 
                 Dr. Janda saw claimant on January 27, 1981 at the 
 
              request of defendants' attorney.  On examination, 
 
              flexion at forty-five degrees and full extension 
 
              produced slight pain.  Lateral flexion and rotation 
 
              were fifty percent of normal with pain on right lateral 
 
              rotation and left lateral flexion.  There was 
 
              tenderness and spasm in the right trapezius muscle.  
 
              The doctor's impression was post-traumatic neck pain 
 
              with residual muscle spasm in the right trapezius.  
 
              Claimant was sent to a licensed physical therapist, 
 
              Lynn R. Peterson, for evaluation of strength.  Peterson 
 
              found:
 
         
 
                   This patient [claimant] was able to lift 
 
                   approximately 73# floor to waste [sic] doing the 
 
                   type of activity that he would have to for his 
 
                   job.  However, at the end of the exercise, he did 
 
                   complain of severe burning neck and upper back 
 
                   pain . . . . It appears his cardiovascular status 
 
                   is sufficient to tolerate his job . . . however, 
 
                   do [sic] to the increased pain in his neck 
 
                   resulting from lifting of the weights, at this 
 
                   point he is able to lift approximately 73#.
 
         
 
              . . .
 
         
 
                 John R. Walker, M.D., orthopedic surgeon, saw 
 
              claimant in March of 1980 at which time the pain 
 
              claimant experienced on the right had gone away and 
 
              apparently had done so in November of 1979.  Dr. Walker 
 
              determined that claimant was unable to lift more than 
 
              sixty pounds at that time because the lifting would 
 
              cause pain.  Claimant's complaints were pain at the 
 
              base of his skull radiating into the occiput region 
 
              with headaches sometimes lasting for up to three days, 
 
              a constant burning in the upper thoracic spine, pain on 
 
              lifting in excess of thirty to thirty-five pounds and 
 
              pain on bouncing while riding.  On physical examination 
 
              claimant was found to guard his neck.  Tenderness was 
 
              present in some spots and some motions caused pain.  
 
              X-rays showed the fracture at C-7 to be well healed and 
 
              that of C-5 to be partially healed.  Dr. Walker rated 
 
              claimant at fifteen percent on something other than 
 
              loss of motion.  He expressed the opinion that claimant 
 
              would be unable to return to his job as a truck driver 
 
              "unless he is extremely well-motivated and will put up 
 

 
         
 
         
 
         
 
         SOLOMON V. RUAN TRANSPORT COMPANY
 
         Page   4
 
         
 
         
 
              with undue pain."  In the event claimant did return, 
 
              Dr. Walker suspected that he would not last too long.  
 
              The doctor recommended exercises, heat and massage.
 
         
 
                 Dr. Walker clarified his previous report in a letter 
 
              dated April 30, 1980 by saying that he expected 
 
              claimant would show further improvement and by refuting 
 
              any inference that claimant would be able to return to 
 
              employment substantially similar to what he was doing 
 
              at the time of injury.
 
         
 
                 When claimant was seen in July of 1980 Dr. Walker 
 
              again expressed doubts that claimant would be able to 
 
              go back to truck driving.  He proposed hospitalization 
 
              for injection and therapy.
 
         
 
                 Claimant's most recent visit to Dr. Walker took 
 
              place on March 6, 1981.  The doctor found claimant 
 
              "improving somewhat."  Tenderness continued to be 
 
              present at C-5, C-7, T-1, T-2 and T-3.  Extremes of 
 
              forward flexion and extension caused discomfort.  The 
 
              doctor believed claimant should continue exercising.
 
         
 
              Also of significance in this decision is the following 
 
         findings of fact made in the 1981 review-reopening decision:
 
         
 
                 That claimant has work experience as a laborer in a 
 
              junk yard, a truck driver, a wheeler, an electrician, a 
 
              manager of a grain storage facility and a crane 
 
              operator.
 
         
 
              . . .
 
         
 
                 That claimant is unable to return to work at the 
 
              type of work he was doing at the time of his accident.
 
         
 
              . . .
 
         
 
                 That Dr. Walker rated claimant's permanent partial 
 
              disability at fifteen (15) percent of the body as a 
 
              whole.
 
         
 
                 That Dr. Janda rated claimant's impairment at ten 
 
              (10) percent of the whole person with five (5) percent 
 
              of that rating attributable to pain.
 
         
 
              Ultimately, the deputy commissioner in 1981 awarded weekly 
 
         benefits to claimant for a 30 percent permanent partial 
 
         disability to the body as a whole.
 
         
 
              In his brief, claimant's description of his medical 
 
         treatment since 1981 was, for the most part, accurate and except 
 
         for a few modifications to achieve objectivity, this description 
 
         is reiterated below.
 
         
 
              Dr. Janda:  Claimant's primary treating physician, Wayne 
 
         Janda, M.D., continued to see claimant after the July, 1981 
 
         hearing.  By November, 1981, claimant was said to have healed 
 
         fractures of C-5 and C-7 with residual neck and shoulder girdle 
 

 
         
 
         
 
         
 
         SOLOMON V. RUAN TRANSPORT COMPANY
 
         Page   5
 
         
 
         
 
         pain.  His physical therapy continued and his lifting was 
 
         continuing to improve.  When last seen by Dr. Janda in April of 
 
         1982 (claimant moved from Mason City to Council Bluffs), he still 
 
         had tenderness "particularly over the spinous process at C7" and 
 
         he was "unable to elevate both arms overhead because of pain in 
 
         the neck and left shoulder."  Dr. Janda stated he was "still 
 
         disabled from his regular employment.O
 
         
 
              Park Lane:  Claimant testified that he was a passenger in a 
 
         tractor owned by himself and his then wife when on October 19, 
 
         1982, his son, who was driving the vehicle, went to sleep and the 
 
         vehicle turned over on its side.  Claimant was seen at Park Lane 
 
         Medical Center with complaints of tenderness in the left scapula 
 
         and right knee pain, sore ribs and other abrasions and 
 
         contusions.  X-rays were negative.  Upon a diagnosis of left 
 
         shoulder and right knee sprain, claimant was treated with a 
 
         posterior splint and crutch training.  Claimant testified he had 
 
         no chronic problems after this incident.  In his deposition, 
 
         claimant denied receiving medical treatment after this accident.
 
         
 
              Veterans Administration:  Claimant testified that when he 
 
         moved from Mason City to the Council Bluffs/Omaha area in 1981, 
 
         he requested through his attorney continued medical care in that 
 
         area for his work related injury complaints.  Claimant alleges 
 
         that when he received no authorization and then was without 
 
         funds, he sought care from the Veterans Administration doctors.  
 
         Veterans Administration records reflect that when seen in early 
 
         April, 1986, he continued to have neck pain from the 1979 vehicle 
 
         accident (Exhibit 2).  X-rays did not disclose the neck fractures 
 
         earlier evaluated following the 1979 accident but did show 
 
         "hypertrophic changes" and "spurring" of T5 and degenerative 
 
         changes.  Claimant was referred to a neurosurgeon.  The 
 
         neurosurgeon saw claimant July 22, 1986 with complaints of C6-7 
 
         pain, medication was ordered and claimant was discharged.  He was 
 
         seen again January 7, 1987 with similar complaints and evaluated 
 
         to have "hypertrophic changes with spurring at T5" and again 
 
         referred to neurosurgery and given medications.  Claimant was 
 
         first seen at VA in June and July, 1987.  At that time the 
 
         complaints were the same with pain in the neck, shoulder and back 
 
         of head to the left hand.  Physical therapy was started and a 
 
         neck collar was prescribed.  Physical therapy continued for 
 
         twelve sessions.
 
         
 
              Dr. Walker:  Claimant was re-examined by John R. Walker, 
 
         M.D., on April 30, 1986.  Physical complaints included pain at 
 
         the base of the skull; headaches; cervical stiffness and pain; 
 
         pain between the shoulder blades; and, numbness in the left arm, 
 
         hand and a few fingers.  Examination disclosed cervical spine 
 
         pain and loss of motion, numbness into left hand fingers, 
 
         decreased left grip and tenderness at T4-6.  X-rays disclosed 
 
         "marked posterior ridging at C5-6 and spurring at C6.O  A 
 
         comparison of films from 1981 to 1986 showed "marked progression 
 
         of the spurring in both the 5th and 6th cervical discs."  Dr. 
 
         Walker diagnosed a herniated nucleus pulposus of C5 involving the 
 
         C6 nerve root and recommended myelogram and disc fusion.  Dr. 
 
         Walker further stated that the claimant's condition had worsened 
 
         since he was last seen in 1981 and claimant had not improved and 
 
         an additional ten percent (10%) impairment was evaluated due to 
 
         the change since 1981.
 

 
         
 
         
 
         
 
         SOLOMON V. RUAN TRANSPORT COMPANY
 
         Page   6
 
         
 
         
 
         
 
              Dr. Iwerson:  In August, 1986, claimant was evaluated by 
 
         orthopedist, Frank J. Iwerson, M.D., at the request of the Social 
 
         Security Administration.  Complaints were of neck and shoulder 
 
         pain with the inability to abduct both the shoulders 
 
         simultaneously.  Examination disclosed pain over the cervical, 
 
         trapezius and scapular areas.  The doctor noted a substantial 
 
         loss of motion.  X-rays disclosed narrowing of C6.  Dr. Iwerson 
 
         said claimant was unable to work as a trucker and suggested 
 
         rehabilitation.
 
         
 
              Dr. Mawk:  At defendants' request, claimant was evaluated by 
 
         neurosurgeon, John R. Mawk, M.D., at the University of Nebraska 
 
         Medical Center.  Dr. Mawk was not provided many relevant portions 
 
         of claimant's prior medical records.  In July, 1987, Dr. Mawk 
 
         evaluated posterior neck pain with limitation of neck motion, 
 
         diagnosed a "myofascial syndrome" with "supratentorial overlay" 
 
         which "make him (claimant) ineligible for his usual occupation as 
 
         a truck driver."  Dr. Mawk recommended retraining.  Dr. MawkOs 
 
         restrictions at that time were to lift over 50 pounds only 
 
         occasionally with no carrying over 50 pounds and occasionally 
 
         carrying not over 25 pounds.  Claimant could occasionally climb 
 
         and reach.  Defendants sent claimant for further physical therapy 
 
         evaluation by the Working Back Institute in Omaha, Nebraska.  The 
 
         physical therapist at this institute found limitation in all 
 
         loaded activities and unloaded activities requiring use of both 
 
         arms and in bending and kneeling.  Dr. Mawk then released 
 
         claimant to driving activities but imposed more severe 
 
         limitations than earlier on his activities: no standing, sitting 
 
         or standing over three hours at one time but claimant is able to 
 
         do so over 7 or 8 hours if allowed to change positions, no 
 
         lifting or carrying over 25 pounds with lifting and carrying over 
 
         20 pounds only occasionally.  Dr. Mawk evaluated impairment but 
 
         did not comment on a comparison of his condition in 1981 and 
 
         1987.  Dr. Mawk admitted in his deposition that he had not 
 
         reviewed all of claimant's records.
 
         
 
              Claimant's recitation of his work history since 1981 in the 
 
         brief was partially adopted in this decision with however some 
 
         significant additions.
 
         
 
              Claimant worked steadily for employer herein, Ruan Transport 
 
         Company, for about ten years prior to the accident of 1979.  By 
 
         the July, 1981 arbitration hearing claimant's move to Omaha was 
 
         completed.  The hearing officer in the arbitration wrote:  OIt is 
 
         to be hoped that the family's move to Omaha will provide claimant 
 
         with opportunities for other types of work for the employer to 
 
         whom he has shown such devotion.O  Unfortunately, claimant's 
 
         efforts in Omaha to return to work for Ruan there were 
 
         unsuccessful.  In December, 1981, claimant attempted 
 
         unsuccessfully to obtain approval of a partial commutation for a 
 
         crop and feeder operation from this agency.
 
         
 
              Castars:  Claimant first work following the 1981 hearing as 
 
         an owner/operator for Castars Enterprises, Inc.  In approximately 
 
         April, 1982, after the failed attempt for a partial commutation 
 
         to obtain funds for a crop/feeder operation, claimant and his 
 
         wife sold some lots and a mobile home and put a down payment on a 
 
         1979 International tractor.  A "Carrier-Contractor Equipment 
 

 
         
 
         
 
         
 
         SOLOMON V. RUAN TRANSPORT COMPANY
 
         Page   7
 
         
 
         
 
         Operating Agreement" was dated and signed June 3, 1982 between 
 
         Castars and W & P (Wayne and Phyllis Solomon) Trucking.  Claimant 
 
         testified he actually started hauling for Castars prior to the 
 
         written agreement.  Claimant said that after several months of 
 
         hauling he was not fully paid except for expenses and a few 
 
         payments on the truck.  He then ceased to haul for Castars.  
 
         Claimant sued Castars for his contractual entitlement (Exhibit H) 
 
         but Castars filed for bankruptcy.  Claimant stated that neither 
 
         he nor his wife have been paid what was due from this 
 
         employment.
 
         
 
              Bestways:  In the fall of 1982, after the Castars hauling 
 
         ended, claimant and his son began working as owner/operators for 
 
         Bestways.  Certificates of Qualification and Road Test and 
 
         Examination are dated October 1, 1982.  While hauling on contract 
 
         for Bestways, the vehicle accident of October 19, 1982 occurred.  
 
         Claimant's son then left and claimant became an employed driver.  
 
         Claimant and his wife testified that Bestways went "essentially" 
 
         out of business leaving him stranded again without a job.  In a 
 
         letter from the owner of Bestways, an Arthur Bilton stated that 
 
         claimant was terminated for attempting to obtain money from him 
 
         for alleged truck repairs which Bilton felt were unnecessary.
 
         
 
         Also he claimed that claimant was fired for a bad driving record, 
 
         drinking while driving, reckless driving and rudeness to 
 
         employees.  Interestingly, according to one of claimant's 
 
         subsequent employer's representative of Bestways told them that 
 
         claimant was a satisfactory employee with a good driving record 
 

 
         
 
         
 
         
 
         SOLOMON V. RUAN TRANSPORT COMPANY
 
         Page   8
 
         
 
         
 
         and good customer relations.  Claimant's 1982 tax information 
 
         introduced by testimony indicated a 1982 net loss of $583.00.
 
         
 
              K & K Trucking:  In late 1982, claimant and his wife were 
 
         divorced and the tractor, for lack of payment, was repossessed.  
 
         Claimant later in May, 1983, found work for K & K Transport as a 
 
         driver.  Claimant's application for employment is part of Everett 
 
         Alger's deposition testimony.  There is a dispute between Alger 
 
         and claimant as to the reason(s) why he left K & K's employment 
 
         in the summer of 1983.  Alger testified claimant told a co-driver 
 
         in Chicago that he was quitting to go into the hospital and that 
 
         the tractor was brought back to Omaha by the co-driver.  Claimant 
 
         testified that he experienced difficulty and pain while driving 
 
         but that he returned the vehicle to Omaha and there quit because 
 
         of pain.  Claimant stated that he did not drive with a co-driver.  
 
         No medical records were submitted to substantiate any receipt of 
 
         medical treatment by claimant while in Chicago.  In his 
 
         deposition, claimant testified that he had lied in the K & K 
 
         application for employment as to his prior neck injury.  The 
 
         application submitted into the evidence indicated that claimant 
 
         told K & K of the prior neck injury but denied any continuing 
 
         problems after the injury.
 
         
 
              U.P.S.:  Claimant's weekly workers' compensation benefits 
 
         ended in the summer of 1983.  He testified that he went to 
 
         Chicago to care for his sister and seek work.  While there, 
 
         claimant said that he sought employment at a variety of jobs but 
 
         primarily as a truck driver.  Claimant testified that he was 
 
         advised that most places were not hiring and that there were many 
 
         union teamster employees on layoff.  Late in 1983, claimant found 
 
         seasonal work as a U.P.S. driver.  Tax records introduced through 
 
         testimony show gross wages for U.P.S. in 1983 of $1,379.00.  
 
         Commissioner's exhibit 2 confirms that he was hired on October 
 
         17, 1983 and left U.P.S. on November 23, 1983.  After that 
 
         seasonal work ended claimant again became unemployed.
 
         
 
              T.P.I.:  Claimant testified that he next worked for T.P.I. 
 
         as a driver.  A proported letter from T.P.I.Os owner, Ken Peters, 
 
         is reproduced at page 6 of exhibit D.  Claimant, however, did not 
 
         work from March 25, 1984 through April 1 of 1985 as reflected by 
 
         the exhibit since claimant admitted at hearing to changing the 
 
         dates of the Peters letter in order to establish a longer work 
 
         history and in order to obtain employment with Larsen Trucking.  
 
         He said that he worked at T.P.I. for a relatively short time.  An 
 
         investigator for defendants herein testified that he was not able 
 
         to locate any such employer in the Chicago area.  Claimant was 
 
         cross-examined extensively on his apparent perfect match of 
 
         typing and spacing in the date change.  Defendants obviously 
 
         contended that claimant had forged the entire Peters letter.  
 
         Claimant did not indicate at hearing why he might have left 
 
         T.P.I. employment.
 
         
 
              Larsen Trucking Co.:  Claimant testified that he continued 
 
         to seek employment in Chicago without success and while there 
 
         obtained some welfare benefits.  Claimant said that he continued 
 
         to care for his sister until she died in approximately April, 
 
         1985, after which he returned to Omaha.  Claimant applied for 
 
         work at Larsen in July, 1985, using the Peters' letter as a 
 
         reference, and started working later that month.  Claimant 
 

 
         
 
         
 
         
 
         SOLOMON V. RUAN TRANSPORT COMPANY
 
         Page   9
 
         
 
         
 
         admitted that he lied on the Larsen application concerning his 
 
         availability of doing heavy manual work, no prior job injuries, 
 
         no prior receipt of workers' compensation benefits and the dates 
 
         of the T.P.I. employment.  In his deposition claimant testified 
 
         that he left Larsen's employment because he figured that he would 
 
         not be paid for his work due to Larsen's financial trouble.  
 
         Actually, claimant was terminated because he was arrested and 
 
         incarcerated in Missouri for operating his truck while 
 
         intoxicated.  At hearing claimant admitted his arrest but stated 
 
         that he was found not guilty of OWI at trial.  Doug Larsen 
 
         testified in his deposition that claimant initially called him on 
 
         the night of the arrest seeking $75 to purchase a new battery for 
 
         the truck.  After he sent the money to claimant, claimant called 
 
         back a few hours later asking for $500 bail bond money and 
 
         eventually admitted being arrested for OWI.  Larsen said that he 
 
         then traveled to Missouri to pick up the truck and found the 
 
         engine operating for no apparent reason.
 
         
 
              Continental Express:  Claimant's last work experience was 
 
         for Continental Express.  Claimant said that he drove about five 
 
         loads but did not get paid for this work.
 
         
 
              Claimant testified at hearing that he has not been convicted 
 
         of operating a motor vehicle while under the influence of an 
 
         alcoholic beverage and that he has a valid Iowa driver's license. 
 
          Court records in Missouri show that claimant was not convicted 
 
         of OWI following his arrest but only of improper lane changes.  
 
         However, his driving privilege in Missouri was suspended in 
 
         October, 1985, due to an arrest while driving with a blood 
 
         alcohol content of .13 percent or more by weight.  Also, driving 
 
         records from the States of Illinois, Wisconsin and Iowa show that 
 
         claimant's driving privileges in these states are likewise 
 
         suspended due to the Missouri suspension and a conviction in the 
 
         State of Wisconsin for operating while intoxicated.  Claimant 
 
         responded that he was not convicted in the State of Wisconsin 
 
         because he simply did not appear following his arrest.  Claimant 
 
         also testified that he has never received any notice of his 
 
         current suspension.  The Wisconsin records show a conviction for 
 
         OWI after trial in which claimant did not participate because he 
 
         failed to appear.  At hearing, claimant admitted to a history of 
 
         alcoholism which, in part, was the reason for his divorce but 
 
         claimed that he has now reformed and no longer drinks.  Claimant 
 
         admitted at hearing that a conviction for drunk driving prohibits 
 
         employment as a truck driver for at least five years.
 
         
 
              From his demeanor while testifying claimant did not appear 
 
         to be telling the truth.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              In a review-reopening proceeding, claimant has the burden of 
 
         establishing by a preponderance of the evidence that he suffered 
 
         a change of condition or a failure to improve and medically 
 
         anticipated as a proximate result of his original injury, 
 
         subsequent to the date of the award or agreement for compensation 
 
         under review, which entitles him to additional compensation.  
 
         Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969); 
 
         Meyers v. Holiday Inn of Cedar Falls, Iowa, Iowa App., 272 
 
         N.W.2d (1978).  Such a change of condition is not limited to a 
 

 
         
 
         
 
         
 
         SOLOMON V. RUAN TRANSPORT COMPANY
 
         Page  10
 
         
 
         
 
         physical change of condition.  A change in earning capacity 
 
         subsequent to the original award which is approximately caused by 
 
         the original injury also constitutes a change in condition under 
 
         Iowa Code sections 85.27(2) and 86.14(2).  See McSpadden v. Big 
 
         Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Blacksmith 
 
         v.All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
         
 
              In the case sub judice, claimant has failed to establish a 
 
         significant change of condition.  Claimant's primary problem was 
 
         his lack of credibility as pointed out by defense counsel both at 
 
         hearing and in his excellent brief.  The circumstances of 
 
         claimant's lying both in employment applications and in sworn 
 
         testimony are much too numerous to justify on grounds of a 
 
         desperate attempt to survive as contended in claimant's brief.  
 
         Claimant's most significant untruthfulness lies in his attempts 
 
         to deceive defendants and this agency about his past driving 
 
         record.  One can overlook a few inconsistencies in his deposition 
 
         on the basis of a poor memory, but a failure to mention the 
 
         Missouri drunk driving arrest which led to his termination at 
 
         Larsen in his deposition cannot be justified as mere memory loss.  
 
         Also, this man has been a truck driver for almost 20 years and 
 
         this deputy is not so naive as to think that claimant would be 
 
         unaware of the status of his current driving privileges.
 
         
 
              Admittedly, the views of Dr. Walker in this case were 
 
         important.  He was the only physician rendering an opinion in 
 
         this proceeding who had actually examined claimant both before 
 
         and after the 1981 arbitration hearing.  However, most of the 
 
         problems noted by Dr. Walker were constituted subjective 
 
         complaints given to him by claimant who is not found to be 
 
         credible in this proceeding.  There is no other independent 
 
         verification of claimant's pain complaints.  Although the x-rays 
 
         do show some additional "spurring", there is no medical evidence 
 
         as to the cause of such spurring.  It is the experience of this 
 
         agency that such spurring can be due to many factors such as 
 
         degenerative arthritis and not necessarily the result of a trauma 
 
         or a work injury.
 
         
 
              Also, at first glance the medical capabilities assessment by 
 
         Dr. Mawk appears to be very significant.  However, the assessment 
 
         of claimant's capabilities discussed in the arbitration decision 
 
         from a report by Lynn Peterson in 1981, quoted in the summary, 
 
         only indicated that claimant could lift up to 73 pounds, not what 
 
         he could lift comfortably.  Claimant complained at the time of 
 
         the 1981 test that he had severe neck pain after performing such 
 
         physical excertion.  Consequently, the 25 pound lifting 
 
         restriction claimant now has may or may not be significant and 
 
         claimant has failed to demonstrate that this represents a change 
 
         from his previous condition.  Finally, the capabilities 
 
         assessment by Dr. Mawk and others is again based upon claimant's 
 
         subject complaints to them and claimant is not found to be 
 
         credible.
 
         
 
              However, even if claimant had demonstrated a small amount of 
 
         additional impairment since 1981, the added impairment did not 
 
         result in any significant additional industrial disability.  A 
 
         showing of only a slight change of condition without any new 
 
         restrictions in employment does not constitute a sufficient 
 
         change in condition to warrant reopening a prior award.  Doyle v. 
 

 
         
 
         
 
         
 
         SOLOMON V. RUAN TRANSPORT COMPANY
 
         Page  11
 
         
 
         
 
         Land O'Lakes, Inc., Appeal Decision filed November 30, 1987.  
 
         Claimant was found not to be qualified to return to truck driving 
 
         in the 1981 arbitration decision.  This apparently has not 
 
         changed as of the present time.  If the evidence shows anything, 
 
         it is that claimant was able to tolerate a considerable amount of 
 
         truck driving since 1981.  By his own testimony, claimant only 
 
         left one of his driving jobs for an alleged neck problem.  It is 
 
         true that claimant is now significantly worse off because of his 
 
         inability to return to truck driving, but this is not due to the 
 
         neck injury but due to his driving record and use of alcohol 
 
         while driving.  Claimant implied in this proceeding that his 
 
         alcoholism is due in part from pain caused by the work injury but 
 
         there is absolutely no support in the medical evidence for such a 
 
         causal connection relationship.
 
         
 
              Claimant seeks reimbursement for the expense of the 
 
         treatment and examination by Dr. Walker in this proceeding.  
 
         Claimant is entitled to reimbursement for the reasonable 
 
         treatment of his work injury under Iowa Code section 85.27.  
 
         However, defendants are entitled to chose the care under that 
 
         code section.  There has been no showing by claimant that 
 
         defendants authorized any care by Dr. Walker.  It also has not 
 
         been shown that defendants have ever denied the causal connection 
 
         of claimant's chronic neck problems to the work injury in such a 
 
         manner as to lose the right to chose the care under that code 
 
         section.  Therefore, claimant's request for reimbursement of the 
 
         expenses listed in the prehearing report will be denied.
 
         
 
              As claimant was not found to be telling the truth in this 
 
         proceeding, all of the costs will be assessed against him.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was not a credible witness.
 
         
 
              2.  It could not be found that claimant suffered a change of 
 
         physical condition since the arbitration decision of August, 
 
         1981.  It could not be found that claimant suffered from 
 
         additional restrictions on claimant's potential employment 
 
         opportunities.  Claimant has worked as an over-the-road truck 
 
         driver on several occasions since August, 1981, and the work 
 
         injury and any chronic problems with claimant's neck has never 
 
         been the cause of claimant leaving such employment.
 
         
 
              3.  Claimant is currently unable to return to work as a 
 
         truck driver in any capacity due to his arrests and convictions 
 
         for driving a motor vehicle while under the influence of an 
 
         alcoholic beverage or while having a blood alcohol content level 
 
         of at least 13 percent or one or more by weight.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has not established entitlement to additional 
 
         workers' compensation benefits.
 
         
 
         
 
                                      ORDER
 

 
         
 
         
 
         
 
         SOLOMON V. RUAN TRANSPORT COMPANY
 
         Page  12
 
         
 
         
 
         
 
              1.  Claimant shall take nothing from this proceeding.
 
         
 
              2.  Claimant shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 8th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        LARRY P. WALSHIRE
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey, III
 
         Attorney at Law
 
         214 N. Adams
 
         P. 0. Box 679
 
         Mason City, Iowa 50401
 
         
 
         Mr. Cecil L. Goettsch
 

 
         
 
         
 
         
 
         SOLOMON V. RUAN TRANSPORT COMPANY
 
         Page  13
 
         
 
         
 
         Attorney at Law
 
         1100 Des Moines Bldg.
 
         Des Moines, Iowa 50309-2464
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2905
 
                                                 Filed January 8, 1988
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WAYNE SOLOMON,
 
         
 
              Claimant,
 
         
 
                                                    FILE NO.  533658
 
         vs.
 
                                                      R E V I E W -
 
         RUAN TRANSPORT COMPANY,
 
                                                    R E 0 P E N I N G
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         IOWA INSURANCE GUARANTY ASSOCIATION,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         2905
 
         
 
              Claimant failed to show a change of condition of sufficient 
 
         significance to warrant additional benefits.  Claimant was not 
 
         found to be credible and the medical reports based upon 
 
         subjective complaints were not given much weight in the 
 
         proceeding.  However, regardless of any slight change of 
 
         condition, the change of condition did not result in any 
 
         significant additional industrial disability or restrictions on 
 
         claimant's employment.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                            :
 
            THOMAS E. MILLER,               :
 
                                            :
 
                 Claimant,                  :
 
                                            :        File No. 603095
 
            vs.                             :
 
                                            :          A P P E A L
 
            NEUMANN BROTHERS, INC.,         :
 
                                            :        D E C I S I O N
 
                 Employer,                  :
 
                                            :
 
            and                             :
 
                                            :
 
            BITUMINOUS INSURANCE COMPANIES, :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            
 
                 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 June 21, 1990, is affirmed and is adopted as 
 
            the final agency action in this case, with the following 
 
            additional analysis:
 
            
 
                 When two interpretations of a limitations statute are 
 
            possible, the one giving the longer period to a litigant 
 
            seeking relief is to be preferred and applied.  John Deere 
 
            Dubuque Works v. Meyers, 410 N.W.2d 255 (Iowa 1987), (citing 
 
            Orr v. Lewis Cent. School Dist., 298 N.W.2d 256 (Iowa 1980) 
 
            and Sprung v. Rasmussen, 180 N.W.2d 430 (Iowa 1970)).
 
            
 
                 Workers' compensation statutes are to be liberally 
 
            construed in favor of the worker and the worker's 
 
            dependents.  Caterpillar Tractor Co. v. Shook, 313 N.W.2d 
 
            503 (Iowa 1981); McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
            181, 192 (Iowa 1980).  Its beneficent purpose is not to be 
 
            defeated by reading something into the statute that is not 
 
            there.  Cedar Rapids Community School v. Cady, 278 N.W.2d 
 
            298 (Iowa 1979).
 
            
 
                 While the record made at hearing is not altogether 
 
            clear, it is apparent that claimant underwent an 
 
            arthroscopic procedure in spring 1983 and had some period of 
 
            temporary total disability related to that procedure.  Had 
 
            claimant not granted defendants the credit under the 
 
            district court settlement, claimant clearly would have been 
 
            entitled to temporary total disability benefits during that 
 
            period and, as credit amounts functioned in lieu of and in 
 
            substitution for temporary total disability benefits during 
 
            any such period, claimant de facto was receiving weekly 
 
            benefits during such period and, under any fair reading of 
 
            the statute of limitations in section 85.26(2), properly 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            filed his petition in review-reopening on or about July 20, 
 
            1984.
 
            
 
                 Defendants would argue that, before workers' 
 
            compensation weekly benefits can be deemed to have been made 
 
            under a credit agreement such as this one, claimant must 
 
            file notice with the insurer that claimant is actively 
 
            utilizing the credit amount.  We find nothing in the statute 
 
            that supports defendants' position.  Defendants would have 
 
            us place an affirmative duty on claimant where the 
 
            legislature has not placed such a duty.  We believe that, 
 
            had the legislature felt such duty appropriate, the 
 
            legislature would have expressly so stated.  Defendants' 
 
            argument, therefore, is not adopted.
 
            
 
                 Defendants shall pay the costs of the appeal, including 
 
            the preparation of the hearing transcript.
 
            
 
                 Signed and filed this ____ day of ____________, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                                  BYRON K. ORTON
 
                                             INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas S. Reavely
 
            Attorney at Law
 
            100 Court Avenue, Suite 203
 
            Des Moines, Iowa  50309
 
            
 
            Mr. William D. Scherle
 
            Attorney at Law
 
            803 Fleming Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 9999
 
                                                 Filed December 31, 1991
 
                                                 BYRON K. ORTON
 
                                                 LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                            :
 
            THOMAS E. MILLER,               :
 
                                            :
 
                 Claimant,                  :
 
                                            :        File No. 603095
 
            vs.                             :
 
                                            :          A P P E A L
 
            NEUMANN BROTHERS, INC.,         :
 
                                            :        D E C I S I O N
 
                 Employer,                  :
 
                                            :
 
            and                             :
 
                                            :
 
            BITUMINOUS INSURANCE COMPANIES, :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed June 21, 1990, 
 
            with short additional analysis.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS E. MILLER,
 
                                          File No. 603095
 
              Claimant,
 
                                         R E V I E W
 
          VS.
 
                                         R E 0 P E N I N G
 
          NEUMANN BROTHERS, INC.,
 
                                         D E C I S I 0 N
 
               Employer,
 
          
 
          and
 
          
 
          BITUMINOUS INSURANCE COMPANIES,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by Thomas 
 
         E. Miller, claimant, against Neumann Brothers, Inc., employer 
 
         (hereinafter referred to as Neumann), and Bituminous Insurance 
 
         Companies, insurance carrier, defendants, for recovery of further 
 
         workers' compensation benefits as a result of an injury on June 
 
         27, 1979.  A memorandum of agreement for this injury was filed on 
 
         July 10, 1979.  A prior review-reopening decision which awarded 
 
         both healing period and permanent partial disability benefits was 
 
         issued by this agency on July 27, 1981.  On June 4, 1990, a 
 
         hearing was held on claimant's petition for review-reopening in 
 
         this proceeding and the matter was considered fully submitted at 
 
         the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to various items.  However, during the hearing, the 
 
         parties agreed to limit the  issues that will be dealt with in 
 
         this decision.  Therefore, there is no need to reiterate the 
 
         stipulations in this decision.
 
         
 
         
 
         
 
         MILLER V. NEUMANN BROTHERS, INC.
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      ISSUE
 
         
 
              The only issue submitted by the parties is whether the 
 
         petition for review-reopening filed herein on July 20, 1984, is 
 
         barred as untimely under Iowa Code section 85.26.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all the evidence, 
 
         the deputy industrial commissioner finds as follows:
 
         
 
              A credibility finding is not necessary to this decision as 
 
         there appears to be no dispute as to the facts related by the 
 
         witnesses who testified at the hearing.  The dispute lies with 
 
         the interpretation of those facts.
 
         
 
              On June 27, 1979,, while working as a carpenter for Neumann, 
 
         claimant fell approximately 20 feet onto a concrete floor 
 
         injuring his hand, ankle and ribs.  In a final agency decision, a 
 
         former deputy industrial commissioner found that claimant 
 
         suffered permanent partial disability as a result of this injury 
 
         and benefits were awarded accordingly.  There is no dispute that 
 
         more than three years has elapsed from the time of this decision 
 
         and any payment of weekly benefits as a result of that decision.
 
         
 
              As a result of the injury, claimant not only pursued his 
 
         workers' compensation claims but also a claim soon after the 
 
         injury against a co-employee for gross negligence under the law 
 
         at that time.    The insurance carrier in that third party claim 
 
         is the same carrier as the defendant carrier herein.  As a result 
 
         of the third party claim, there was a settlement.  In this 
 
         settlement, claimant received on or about March 21, 1983, a cash 
 
         payment of  $12,000, together with clerk costs and a commitment 
 
         to pay future costs of arthroscopic surgery.  In return, claimant 
 
         executed a document termed a "RELEASE AND DISMISSAL WITH 
 
         PREJUDICE," which was filed with the district court ending the 
 
         third party lawsuit. The parties identified two portions of the 
 
         document as relevant to the review-reopening claim herein.  The 
 
         unnumbered first paragraph states, in part, as follows:
 
          
 
               ... Thomas E. Miller...  hereby release, aquit and
 
               forever discharge...  their insurer and all other
 
               persons ... from any and all liability whatsoever,
 
               including all claims, demands and cases [sic] of
 
               action of every nature, except workmen's compensa-
 
               tion claims .... (Emphasis added)
 
         
 
              The fifth number paragraph of the same document states, in 
 
         part, as follows:
 
         
 
         
 
         
 
         MILLER V. NEUMANN BROTHERS, INC.
 
         Page 3
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              That in consideration of the Release by Bituminous Insurance 
 
              Company and/or Neumann Brothers Construction Company of 
 
              their worker's compensation lien against the proceeds of 
 
              this settlement, I hereby grant and acknowledge to them a 
 
              credit of SIX THOUSAND ($6,000) DOLLARS against any future 
 
              compensation or medical benefits which I may be entitled to 
 
              under the worker's compensation laws of the State of Iowa. 
 
              (Emphasis Added)
 
         
 
              This document was signed by the claimant in March of 1983 
 
         and claimant received payment of the $12,000 in March of 1983.  
 
         There was no dispute that less than three years has elapsed since 
 
         the payment of the settlement proceeds in March of 1983.
 
         
 
              It is specifically found that the $6,000 credit was intended 
 
         by the parties at the time to be an advanced payment to be 
 
         applied against any future liability of the employer and 
 
         Bituminous for workers' compensation benefits both weekly and 
 
         medical.  This is apparent from the clear language of the 
 
         document.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              In all cases, claimant must establish by a preponderance of 
 
         the evidence that he filed his claim with the agency within the 
 
         prescribed period of time provided in Iowa Code section 85.26.  
 
         Such a showing is necessary to demonstrate this agency's subject 
 
         matter jurisdiction over the controversy and a condition 
 
         precedent to filing suit for workers' compensation benefits under 
 
         Iowa law.  Mousel v. Bituminous Material & Supply Co., 169 N.W.2d 
 
         763 (Iowa 1969).  Generally, Iowa Code section 85.26 provides 
 
         that claims for benefits must be filed within two years of the 
 
         date of injury or within three years of the date of the last 
 
         payment of weekly benefits under an award of benefits or a 
 
         settlement under Iowa Code section 86.13.
 
         
 
              In the case sub judice, the fighting issue is whether the 
 
         $6,000 credit provided for in the dismissal document which was 
 
         executed in March of 1983, constitutes a payment of weekly 
 
         benefits under Iowa Code section 86.13 to invoke the three year 
 
         extension of the limitations period.  Iowa Code section 86.13 
 
         provides, in part, as follows:
 
         
 
              If an employer or insurance carrier pays weekly compensation 
 
              benefits to an employee, the employer or insurance carrier 
 
              shall file with the industrial commissioner on forms 
 
              prescribed by the
 
         
 
         
 
         
 
         MILLER V. NEUMANN BROTHERS, INC.
 
         Page 4
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              industrial commissioner a notice of the commencement of the 
 
         payments ...
 
         
 
              This section goes on to state that if the notice is not 
 
         filed, the limitation period for filing a claim is no longer 
 
         applicable.  It also states that such voluntary payment is not an 
 
         admission of liability.  Also, this section states as follows:
 
         
 
              This section does not prevent the parties from reaching an 
 
              agreement of settlement regarding compensation.  However, 
 
              the agreement is valid only if signed by all parties and 
 
              approved by the industrial commissioner
 
         
 
              The purpose of the current language of Iowa Code section 
 
         86.13, which was passed to abolish the old memorandum of 
 
         agreement system, was to allow employers and their insurance 
 
         carriers to make voluntary payments of workers' compensation 
 
         benefits without advanced approval of the industrial commissioner 
 
         and without admission of liability.  Approval of the industrial 
 
         commissioner is only required when there is a final settlement of 
 
         the compensation claim.  The April 1983 dismissal document in 
 
         this case specifically states that it is not a settlement of any 
 
         workers' compensation claim.  Consequently, the approval of the 
 
         commissioner was not necessary.
 
         
 
              Therefore, as it was specifically found as a matter of fact 
 
         that the claimant and Bituminous intended that $6,000 of the 
 
         $12,000 payment was to be an advanced payment of both weekly and 
 
         medical benefits, it is concluded that the $6,000 payment 
 
         claimant received on March of 1983 was a voluntary payment of 
 
         weekly benefits under Iowa Code section 86.13.  Consequently, it 
 
         is also concluded that the review-reopening petition filed in 
 
         this case is timely under Iowa Code section 85.26.
 
         
 
                                      ORDER
 
         
 
              1. The parties are directed to attempt to resolve the 
 
         dispute as to the entitlement to further weekly and medical 
 
         benefits along with Bituminous' entitlement to credit under the 
 
         March 1983 agreement.  In the event no agreement is reached, the 
 
         parties should seek another hearing before this agency for 
 
         further findings and orders.
 
         
 
              2. Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
         
 
         MILLER V. NEUMANN BROTHERS, INC.
 
         Page 5
 
         
 
         
 
              Signed and filed this 21st day of June, 1990.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas S. Reavely
 
         Attorney at Law
 
         100 Court Ave, Suite 203
 
         Des Moines IA 50309
 
         
 
         Mr. William D. Scherle
 
         Attorney at Law
 
         803 Fleming Bldg
 
         Des Moines IA 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         2403
 
                                         Filed June 21, 1990
 
                                         LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS E. MILLER,
 
                                           File No. 603095
 
              Claimant,
 
                                              R E V I E W
 
         VS.
 
                                         R E 0 P E N I N G 
 
         NEUMANN BROTHERS, INC.,
 
                                         D E C I S I 0 N 
 
              Employer,
 
         and
 
         
 
         BITUMINOUS INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         2403
 
         
 
              Held that when claimant received money and settlement of a 
 
         third party claim and where the workers, compensation carrier 
 
         allowed claimant to keep a portion of the settlement in return 
 
         for an agreement that the claimant would provide the carrier with 
 
         a credit on any future compensation benefits, the payment 
 
         constitutes a payment of weekly benefits.  A review-reopening 
 
         filed within three years of the date of this payment is timely.