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.