BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES J. CAMPOLO,
 
         
 
              Claimant,                             File No. 669181
 
         
 
         vs.
 
                                                      A P P E A L
 
         BRIAR CLIFF COLLEGE,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and                                           F I L E D
 
         
 
         UNITED STATES FIDELITY &                     FEB 26 1988
 
         GUARANTY COMPANY,
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                            STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a commutation decision denying 
 
         commutation of benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         commutation proceeding; claimant's exhibits 1 through 4; 
 
         defendants' exhibits A through H.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                  ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              1.  The deputy erred in not determining the period for which 
 
         compensation is payable is definitely determinable.
 
         
 
              2.  Claimant's issues I through IV raise the issue of 
 
         whether the deputy erred in determining commutation was not in 
 
         claimant's best interest.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Briefly stated, claimant seeks a full commutation of 
 
         benefits under an award recovered as a result of her husband's 
 
         death. Claimant has not remarried, and was 44 years old on the 
 
         date of the hearing, December 16, 1985.  Her children were 17, 15 
 
         and 14 years old on that date.  She stated she has no plans to 
 
                                                
 
                                                         
 
         remarry.
 
         
 
              Claimant is employed part time as a counselor for Briar 
 
         Cliff College earning $13,665 per year.  She holds a Masters 
 
         Degree in clinical psychology.  Claimant's salary is expected to 
 
         increase approximately 3.8 percent per year.  Claimant stated an 
 
         intention to return to full-time employment when her children are 
 
         graduated from high school.  Claimant's employment benefits 
 
         include a pension plan whereby her employer would match up to 
 
         five percent of her salary, although claimant does not utilize 
 
         this benefit. Other benefits include medical insurance for 
 
         herself, including 80 percent medical coverage, life insurance of 
 
         two and one-half times her salary, and 60 percent salary 
 
         long-term disability insurance less social security benefits 
 
         received.
 
         
 
              In addition, claimant's employment entitles her children to 
 
         attend Briar Cliff College or several other colleges tuition-free 
 
         (up to $6,400 annually) under a reciprocal agreement.  Under this 
 
         plan, her children would only need to pay for books, 
 
         transportation and fees which were estimated to be $400 to $450 
 
         per year, and personal expenses which were estimated to be $900 
 
         to $1,000 per year.  Claimant indicated her oldest child desired 
 
         to attend Creighton University, which is not part of the 
 
         reciprocal agreement, where her estimated cost, including 
 
         tuition, housing and books, would be $9,000 annually.  Tuition 
 
         costs at Briar Cliff College are approximately $4,800 annually.
 
         
 
              Claimant received a lump sum distribution of workers' 
 
         compensation benefits in 1985 totaling approximately $57,661.  
 
         She receives benefits of $303.26 per week, or $15,779.52 
 
         annually. One-half of her workers' compensation payments go 
 
         toward attorney fees.  Claimant receives social security payments 
 
         for her three children of $13,536 annually which will decrease by 
 
         one-third as each child reaches age 18 or graduates from high 
 
         school, whichever is later.
 
         
 
              Prior to her husband's death, claimant and her husband had 
 
         $27,000 in savings.  Claimant received $36,000 in life insurance 
 
         upon her husband's death, which has been invested so that the 
 
         principal remains intact and the interest is also largely 
 
         preserved.  She spent $10,000 for a van.  She and her children 
 
         now have in excess of $95,000 in immediate withdrawal accounts 
 
         bearing interest at the rate of 5.25 percent annually.  She also 
 
         has in excess of $99,000 in money market certificates, earning an 
 
         unknown amount of interest described by claimant as originally 
 
         nine percent but now less, for a total savings of $194,615.82.  
 
         She stated she earns approximately $13,704 annually in interest.
 
         
 
              Claimant's present monthly income from all sources, 
 
         including workers' compensation payments, is $4,722.11, or 
 
         $58,539.79 annually.  Her financial affidavit shows total yearly 
 
         expenses for claimant and her children as $20,220.  She owns a 
 
         home valued at $35,000, with an encumbrance of $19,600, and a 
 
         life insurance policy with a face value of $2,000.  She has a net 
 
                                                
 
                                                         
 
         worth of $222,115.82.
 
         
 
              Claimant's monthly expenses include $290 for her house 
 
         payment, $89 per month for parochial school tuition, and $94.50 
 
         for health insurance for her children.  Claimant testified as to 
 
         plans to improve the home with needed additional kitchen space 
 
         costing approximately $6,000, kitchen appliances costing $1,900, 
 
         replacement of a furnace costing approximately $5,000, 
 
         replacement of carpeting costing approximately $1,500, exterior 
 
         painting costing approximately $2,000, and interior remodeling 
 
         and painting costing approximately $1,000.  Claimant's oldest 
 
         daughter was treated for cancer which has resulted in 
 
         extraordinary medical expenses of $2,500 not covered by 
 
         insurance.  Claimant described her efforts to keep expenses to a 
 
         minimum by doing much of the household repairs and remodeling 
 
         herself.
 
         
 
              Claimant's proposal for the commuted funds would involve 
 
         payments of $58,703.61 for attorney fees, and the remaining 
 
         $88,055.42 would be invested in a trust for the parochial and 
 
         post high school education of claimant's children, for remodeling 
 
         of the home, a retirement fund for claimant, and for unexpected 
 
         medical expenses for her daughter's illness.
 
         
 
              Claimant has consulted members of the Briar Cliff College 
 
         business department about her plans, as well as with John C. 
 
         Kelley, a professional financial investment broker.  Mr. Kelley 
 
         assumed a principal of $50,000 to $60,000 for the educational 
 
         trust and recommended three alternatives:  (1) Triple A bonds 
 
         with an interest rate of 10.2 percent; (2) a Kemper Corporation 
 
         government bond fund with interest of 11.79 percent and a penalty 
 
         for early withdrawal; and (3) a Putman government bond fund with 
 
         interest of 12.18 percent, with an additional 7.3 percent 
 
         purchase commission.  All three funds would provide monthly 
 
         payments, and all three would result in increased state and 
 
         federal income tax obligations for claimant.  Mr. Kelly also 
 
         expressed doubts that claimant was earning as high as nine 
 
         percent on any of her savings.
 
         
 
                               APPLICABLE LAW
 
         
 
              The citations of law in the commutation decision are 
 
         appropriate to the issues in the evidence.
 
         
 
                                 ANALYSIS
 
         
 
              Claimant requested a commutation at a time when she still 
 
         had three minor children who were dependents of decedent.  If 
 
         claimant does not remarry, she is entitled to benefits for life 
 
         under section 85.31(1)(a) of the Code.  If she remarries without 
 
         dependent children, she is entitled to a lump sum payment 
 
         equivalent to two years' benefits.  If she remarries while her 
 
         children are dependent, the children are entitled to receive the 
 
         benefits until they are no longer eligible.  Her children are 
 
         eligible as dependents under section 85.31(1)(b) until the age of 
 
                                                
 
                                                         
 
         18, or until the age of 25 if actually enrolled as full-time 
 
         students.  Claimant testified that all three of her children have 
 
         expressed an interest in pursuing a college education.
 
         
 
              Thus, it is clear that the period during which compensation 
 
         is payable is not definitely determinable, as contemplated by 
 
         section 85.45(1).  Dependent children have a contingent right as 
 
         successor beneficiaries in the event of remarriage.  The 
 
         existence of dependent children, their ages, and whether they are 
 
         attending an accredited institution of higher learning in the 
 
         event of remarriage, all operate to determine the period under 
 
         which compensation will be payable and, thus, the first 
 
         requirement of the commutation under section 85.45(1) is not 
 
         met.
 
         
 
              Even if a determinable period for receipt of compensation 
 
         could be definitely ascertained, the second requirement to be met 
 
         before a commutation is granted is a showing that the commutation 
 
         of weekly benefits is in the claimant's best interest.
 
         
 
              Claimant's age, education, and history as a money manager 
 
         are relevant factors in determining if the commutation is in her 
 
         best interest.  Claimant has had the responsibility of managing a 
 
         good sum of money for some time prior to the hearing.  She has 
 
         commendably taken steps to insure the protection of the principal 
 
 
 
                                 
 
                                                         
 
         and has used professional financial advice for her commutation 
 
         request.  However, she has not shown responsibility in maximizing 
 
         the rate of return of the fund she has held to date.  She has 
 
         invested over $90,000 in a fund that pays interest of only 5.25 
 
         percent.  The other investments, again over $90,000, earn an 
 
         unknown amount of interest which claimant thought originally 
 
         earned nine percent but now apparently earns less.  Claimant was 
 
         unsure at the hearing of the amount of interest a substantial 
 
         portion of her assets was earning, and was also unaware of the 
 
         rate of home mortgage interest she was paying.  Thus, her 
 
         financial management record to date has been only adequate at 
 
         best.
 
         
 
              Claimant's financial condition and the reasonableness of her 
 
         plan for the commuted funds are factors to be considered.  She 
 
         desires the commuted funds to establish a trust for her 
 
         children's college education, make home repairs, provide for 
 
         medical expenses, and set up a retirement system for herself.
 
         
 
              The record also shows that if a commutation was granted, a 
 
         great deal of the amount would go toward the payment of attorney 
 
         fees.  The amount remaining would leave only nine years of 
 
         payments for claimant who was 44 years at the time of the hearing 
 
         and who had no pension plan or other provisions for retirement.
 
         
 
              Claimant has not shown that she would profit from the 
 
         commutation of benefits considering the present discount rate.  
 
         Of the three investment options presented by Mr. Kelley, one 
 
         produces no greater rate of return and two produce only a 
 
         slightly higher return.  In addition, one of those two requires 
 
         payment of a commission and the other has a penalty for early 
 
         withdrawal.  They are not recommended by him as investment 
 
         vehicles because of the need of availability of the funds for 
 
         educational purposes. Claimant would not derive a significant 
 
         benefit in terms of greater financial return from a commutation.
 
         
 
              In addition, the record shows that claimant's proposed use 
 
         of the funds would result in a greater tax burden to her.  Her 
 
         present receipt of weekly benefits is not taxable.  If the 
 
         benefits were commuted and invested as claimant proposes, the 
 
         interest earned thereon would be taxable to her.
 
         
 
              Claimant already has considerable assets to provide for the 
 
         needs she recites.  Her income exceeds her expenses by over 
 
         $30,000 per year.  Her children's college education may be 
 
         provided tuition-free if any of many participating colleges are 
 
         chosen.  Although the list of colleges may involve schools some 
 
         distance from claimant's home, there are other colleges among the 
 
         participants within the state of Iowa and nearby, including Briar 
 
         Cliff College itself.  This is not to say that claimant's 
 
         children must attend one of these colleges, but their eligibility 
 
         to do so tuition-free is an asset and a relevant factor and 
 
         indicates that a college education will be available to them even 
 
         if a commutation is not granted.  If the tuition-free colleges 
 
         are unacceptable, other funds exist to provide for college 
 
                                                
 
                                                         
 
         tuition, such as the substantial savings or the continued weekly 
 
         workers' compensation benefits.  Thus claimant is not in need of 
 
         the commuted funds to provide a college education for her 
 
         children.
 
         
 
              Similarly, claimant's income and assets would provide a 
 
         source for her home repairs without endangering claimant's 
 
         ability to provide the necessities of life.  Her stated intent to 
 
         use the commuted funds for retirement is unpersuasive in light of 
 
         the fact she already has available to her a pension plan at her 
 
         place of employment with the advantage of contribution by her 
 
         employer, yet she has not taken advantage of this opportunity.  
 
         Although she lists unforeseen medical expenses of her daughter as 
 
         an additional reason for her request, only $2,500 of expenses 
 
         appear in the record.  There is no indication that greater 
 
         expenses are likely to occur other than periodical transportation 
 
         costs to Houston, Texas for monitoring of her medical progress.
 
         
 
              Finally, claimant's family situation and her responsibility 
 
         to dependents are relevant factors.  The statute contemplates the 
 
         receipt of weekly benefits.  Weekly compensation benefits 
 
         represent a safeguard against the hazards of mismanagement, and 
 
         guarantee an income to the family unit to meet the basic needs 
 
         and necessities of life in the event other sources of income 
 
         fail.
 
         
 
              In summary, then, a commutation of benefits is appropriate 
 
         only when a balancing test shows that the benefits of claimant's 
 
         intended use of the commuted funds outweigh the detriments to 
 
         claimant.  The contingent interest of dependent children in this 
 
         case make the period during which compensation is payable not 
 
         capable of being definitely determined.  In addition, a 
 
         commutation is not in claimant's best interest.  Commutation of 
 
         weekly benefits at this time is inappropriate.
 
         
 
                           FINDINGS OF FACT
 
         
 
              1.  Claimant is the unremarried surviving spouse of Charles 
 
         Campolo and was awarded workers' compensation benefits as a 
 
         result of her husband's work-related death on March 26, 1981.
 
         
 
              2.  Claimant had three dependent children, ages 17, 15, and 
 
         14 at the time of hearing.
 
         
 
              3.  Claimant seeks a commutation to pay her attorney fees 
 
         balance, to pay costs of home improvements, to pay extraordinary 
 
         costs of her daughter's illness, to provide for her retirement, 
 
         and to pay for her children's parochial and post high school 
 
         education.
 
         
 
              4.  Claimant's children have a contingent right to benefits 
 
         should she remarry before the youngest child reaches age 18 or 
 
         finishes his schooling to age 25.
 
         
 
              5.  Claimant has approximately $99,000 invested in money 
 
                                                
 
                                                         
 
         market certificates yielding a probable return of less than nine 
 
         percent.
 
         
 
              6.  Claimant has approximately $95,000 invested in passbook 
 
         savings accounts yielding a return of 5.25 percent.
 
         
 
              7.  Claimant could earn higher returns with like security 
 
         for her principal and with other investments.
 
         
 
              8.  Claimant has made only minimal provision for her 
 
         retirement.
 
         
 
              9.  Claimant has a Masters Degree.
 
         
 
              10.  Claimant's current assets and income are sufficient to 
 
         pay the home improvement, medical and educational costs.
 
         
 
              11.  The proposed commutation trust would not yield a return 
 
         significantly greater than that generated when a compound 
 
         discount factor is applied to claimant's workers' compensation 
 
         payment expectation and would be subject to federal and state 
 
         income taxes which could offset any return above the amount 
 
         claimant receives in periodic workers' compensation payments.
 
         
 
                           CONCLUSIONS OF LAW
 
         
 
              The period for which compensation is payable cannot be 
 
         definitely determined.
 
         
 
              A full commutation is not in claimant's best interest.
 
 
 
              WHEREFORE, the decision of the deputy is affirmed.
 
 
 
                                      ORDER
 
 
 
              THEREFORE, it is ordered:
 
         
 
              That claimant's request for commutation of benefits is 
 
         denied.
 
         
 
              That claimant pay costs on appeal including the 
 
         transcription of the hearing proceeding.
 
         
 
              Signed and filed this 26th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Charles T. Patterson
 
                                                
 
                                                         
 
         Attorney at Law
 
         200 Home Federal Building
 
         P.O. Box 3086
 
         Sioux City, Iowa  51102
 
         
 
         Mr. P. D. Furlong
 
         Attorney at Law
 
         401 Commerce Building
 
         Sioux City, Iowa  51101
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            3303.10
 
                                            Filed February 26, 1988
 
                                            DAVID E. LINQUIST
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES J. CAMPOLO,
 
         
 
              Claimant,                              File No. 669181
 
         
 
         vs.
 
                                                      A P P E A L
 
         BRIAR CLIFF COLLEGE,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         UNITED STATES FIDELITY &
 
         GUARANTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         3303.10
 
         
 
              In his commutation proceeding, claimant's minor children had 
 
         a contingent interest in death benefits.  Variables such as 
 
         college attendance by any of the minor children would affect the 
 
         period during which compensation was payable, and therefore the 
 
         period was not determinable.  In addition, commutation was not 
 
         shown to be in claimant's best interest.
 
 
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         CARL E. ARINGDALE,
 
         
 
              Claimant,
 
                                                         File No. 672251
 
         vs.
 
                                                           A P P E A L
 
         FRENCH & HECHT,
 
                                                         D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from a commutation decision in which 
 
         claimant was granted a full commutation of his entitlement to 
 
         permanent total disability benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         hearing; claimant's exhibits 1 through 9; and defendant's 
 
         exhibits 1 and 2 together with the briefs and filings of both 
 
         parties on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendant states the following issues on appeal:
 
         
 
                 Claimant's commutation represents an unreasonable 
 
              deprivation of property without due process of law within 
 
              the meaning of the Fourteenth Amendment to the United States 
 
              Constitution and the applicable provisions of the Iowa 
 
              Constitution.
 
         
 
                 A.  Failure to consider whether payment of Claimant's 
 
              future benefits in a lump sum will entail undue expense, 
 
              hardship and inconvenience upon Employer within the meaning 
 
              of Section 85.45(2) of the Iowa Code represents a denial of 
 
              equal protection.
 
         
 
            B.  The granting of a full commutation to Claimant in light 
 
         of Claimant's shortened actual life expectancy constitutes an 
 
         arbitrary and capricious application of the statutory standard 
 
         for granting commutations.
 
                                        
 
                              REVIEW OF THE EVIDENCE
 

 
         
 
         
 
         
 
         ARINGDALE V. FRENCH & HECHT
 
         Page   2
 
         
 
         
 
         
 
              The commutation decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be reiterated herein.
 
         
 
              Briefly stated, claimant was adjudged permanently totally 
 
         disabled by an appeal decision filed December 12, 1983 as a 
 
         result of a work injury he sustained on April 13, 1981.  Claimant 
 
         has petitioned for a full commutation of his entitlement to 
 
         permanent total disability benefits.
 
         
 
              Claimant plans to use the money from the commutation to 
 
         purchase a $35,000 home, to pay off his car loan and to place the 
 
         remaining funds in a conservatorship.  The apartment in which 
 
         claimant currently lives is not compatible with his physical 
 
         limitations.  Claimant admits that the monthly income he would 
 
         receive from the conservatorship would be less than his current 
 
         monthly income; however, he expects that his monthly expenses 
 
         would decrease.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Defendant argues on appeal that the financial impact upon 
 
         the employer as a result of a commutation of benefits must be 
 
         considered before a commutation is granted.  Further, defendant 
 
         argues that failure to do so is a violation of due process as 
 
         guaranteed by the Fourteenth Amendment.  However, the Iowa 
 
         Supreme Court has stated that O-commutation turns on what is in 
 
         the best interest of the worker, not on what is in the best 
 
         interest of the employer or insurance carrier."  Dameron v. 
 
         Neumann Bros., Inc., 339 N.W.2d 160, 165 (Iowa 1983).  See also, 
 
         Diamond v. Parsons Co., 256 Iowa 915, 129 N.W.2d 608 (1964).  
 
         Further Iowa Code section 85.45, which provides when future 
 
         payments of compensation may be commuted, does not provide for 
 
         consideration of hardship to an employer as a result of a 
 
         commutation of benefits.
 
         
 
              The applicable law and analysis of the commutation decision 
 
         is adequate and accurate and is adopted herein.
 
         
 
              The findings of fact, conclusions of law and order of the 
 
         commutation decision are adopted herein.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant is 60 years of age.
 
         
 
              2.  Claimant is permanently and totally disabled as a result 
 
         of an injury arising out of and in the course of his employment 
 
         on April 13, 1981.
 
         
 
              3.  Subsequent to his injury, claimant underwent a 
 
         decompressive posterior cervical laminectomy at C4 through C7 and 
 
         a foraminotomy at C6-7 with decompression of the nerve root at 
 
         C7.
 
         
 
              4.  In addition to orthopedic problems, claimant is 
 
         moderately hypertensive, has some pulmonary disease with mild to 
 
         moderate obstructive components consistent with small airway 
 
         disease, and chronic bronchitis.
 

 
         
 
         
 
         
 
         ARINGDALE V. FRENCH & HECHT
 
         Page   3
 
         
 
         
 
         
 
              5.  Claimant's orthopedic condition is stable.
 
         
 
              6.  Claimant must avoid bending, twisting, turning, jars, 
 
         and jerks.
 
         
 
              7.  Claimant has a tenth grade education.
 
         
 
              8.  Claimant has a walking limitation of 500 feet and a 
 
         weight limitation of ten pounds.
 
         
 
              9.  Claimant is unable to sit, stand, or walk for long 
 
         periods.
 
         
 
             10.  To assist claimant with complying with his limitations, 
 
         he needs parking close to his living quarters, nonslip floors, a 
 
         kitchen which can be arranged to avoid bending and reaching, and 
 
         a bathroom with safety rails.
 
         
 
             11.  Claimant currently is living in an apartment which does 
 
         not meet his needs.
 
         
 
             12.  Claimant owes money on a car.
 
         
 
             13.  Claimant gives one-third of his weekly compensation 
 
         check to his attorney.
 
         
 
             14.  In addition to his workers' compensation benefits, 
 
         claimant receives a pension and social security disability.
 
         
 
             15.  Claimant's mental condition is good.
 
         
 
             16.  Based on life expectancy tables the period of claimant's 
 
         entitlement is determinable.
 
         
 
             17.  Claimant's actual life expectancy is less than that 
 
         indicated by the tables.
 
         
 
             18.  Claimant has no persons financially dependent upon him.
 
         
 
             19.  Claimant has two children and four grandchildren.
 
         
 
             20.  Granting a commutation will decrease claimant's normal 
 
         
 
         monthly living expenses.
 
         
 
             21.  Claimant contemplates a conservatorship to assist with 
 
         the management of his money.
 
         
 
             22.  It would be in claimant's best interest to improve his 
 
         living arrangement, to pay off his car, and to invest.the 
 
         remainder of his money after the payment of attorney fees.
 
         
 
             23.  Claimant's life expectancy on his last birthday was 962 
 
         weeks.
 
         
 
             24.  Claimant's weekly rate of compensation is $282.82.
 
         
 
             25.  The period for which compensation is payable is 
 

 
         
 
         
 
         
 
         ARINGDALE V. FRENCH & HECHT
 
         Page   4
 
         
 
         
 
         definitely determinable.
 
         
 
             26.  A commutation is in claimant's best interest.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established entitlement to a full commutation.
 
         
 
              WHEREFORE, the commutation decision of the deputy is 
 
         affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant furnish defendant and this agency with 
 
         documentation showing establishment of a conservatorship to 
 
         supervise the funds remaining after he purchases a home, 
 
         satisfies his car loan, and pays his attorney's fees.
 
         
 
              That defendant pay claimant the full commuted value of his 
 
         benefits.
 
         
 
              That defendant pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 14th day of April, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                                  ROBERT C. LANDESS
 
                                                  INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. James M. Hood
 
         Attorney at Law
 
         302 Union Arcade Bldg.
 
         Davenport, Iowa 52801
 
         
 
         Mr.Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa 52801
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     3303.10
 
                                                     Filed April 14, 1987
 
                                                     ROBERT C. LANDESS
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CARL E. ARINGDALE,
 
         
 
              Claimant,
 
                                                      File No. 672251
 
         VS.
 
                                                        A P P E A L
 
         FRENCH & HECHT,
 
                                                      D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         3303.10
 
         
 
              Claimant had been awarded benefits for permanent total 
 
         disability by an appeal decision filed December 12, 1983.  
 
         Claimant brought this action seeking a full commutation.  The 
 
         deputy granted this commutation.
 
         
 
              On appeal defendant argues that it would place a hardship 
 
         upon the employer to pay the claimant's entitlement in a lump 
 
         sum.  Iowa Code section 85.45, which provides when future 
 
         payments of compensation may be commuted, does not provide for 
 
         consideration of hardship to an employer as a result of a 
 
         commutation of benefits.  See also Diamond v. Parsons Co., 256 
 
         Iowa 915, 129 N.W.2d 608 (1984); Dameron v. Neumann Bros., Inc., 
 
         339 N.W.2d 160 (Iowa 1983).
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        CORA M. TUTTLE,
 
        
 
            Claimant,
 
        
 
        vs.                               File No. 672377
 
        
 
        THE MICKOW CORPORATION,            R E M A N D
 
        
 
            Employer,                   D E C I S I O N
 
        
 
        and
 
        
 
        GREAT WEST CASUALTY,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        This case has been remanded by a district court decision "for 
 
        determination of the appropriate rate of compensation and 
 
        interest due the petitioner." The district court decision was 
 
        subsequently affirmed by the court of appeals and the supreme 
 
        court denied further review.
 
        
 
        The record on remand consists of the transcript of the 
 
        arbitration hearing, claimant's exhibits 1 through 6, 14 through 
 
        19, and 21 through 30, and the filings and stipulations of the 
 
        parties throughout this proceeding.
 
        
 
                                      ISSUES
 
        
 
        The issues on remand are the appropriate rate of compensation and 
 
        the amount of interest due claimant.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        Iowa Code section 85.36 (1981) provides, in part:
 
        
 
        The basis of compensation shall be the weekly earnings of the 
 
        injured employee at the time of the injury. Weekly earnings means 
 
        gross salary, wages, or earnings of an employee to which such 
 
        employee would have been entitled had he worked the customary
 
        
 
        TUTTLE V. THE MICKOW CORPORATION
 
        Page 2
 
        
 
        
 
        hours for the full pay period in which he was injured, as 
 
        regularly required by his employer for the work or employment for 
 
        which he was employed, computed or determined as follows and then 
 
        rounded to the nearest dollar:
 
        
 
        
 

 
        
 
 
 
 
 
        6. In the case of an employee who is paid on a daily, or hourly 
 
        basis, or by the output of the employee, the weekly earnings 
 
        shall be computed by dividing by thirteen the earnings, not 
 
        including overtime or premium pay, of said employee earned in the 
 
        employ of the employer in the last completed period of thirteen 
 
        consecutive calendar weeks immediately preceding the injury.
 
        
 
        Iowa Code subsection 85.61(12) (1981) provides:
 
        
 
        "Gross earnings" means recurring payments by employer to the 
 
        employee for employment, before any authorized or lawfully 
 
        required deduction or withholding of funds by the employer, 
 
        excluding irregular bonuses, retroactive pay, overtime, penalty 
 
        pay, reimbursement of expenses, expense allowances, and the 
 
        employer's contribution for welfare benefits.
 
        
 
                                      ANALYSIS
 
        
 
        The issue of appropriate rate of compensation for owner/operator 
 
        truck drivers is an issue that has perplexed decision makers in 
 
        this agency as well as courts from other jurisdictions. A recent 
 
        appeal decision by this agency offers guidance in resolving the 
 
        issue. In Dale A. Christensen v. Hagen, Inc., File No. 643433, 
 
        March 26, 1985, it was determined that the method of determining 
 
        the appropriate weekly earnings of independent truck operators 
 
        was to divide by three the net revenue of their truck. It was 
 
        also determined that the fuel surcharge was not included in the 
 
        net revenue of the truck and the average weekly salary of the 
 
        husband and wife as co-drivers was equal. The general method used 
 
        in Christensen will also be used in the instant case. Because of 
 
        the facts of the instant case certain modifications in making the 
 
        calculation of the weekly earnings is appropriate to arrive at 
 
        the revenue generated from the operation of the truck and to 
 
        arrive at the decedent's weekly earnings. The revenue generated 
 
        from the operation of the truck will be referred to as the 
 
        revenue of the truck and will be the basis for calculating the 
 
        rate in this case.
 
        
 
        
 
        Subsection 85.61(12), supra, excludes "irregular bonuses, 
 
        retroactive pay, overtime, penalty pay, reimbursement of 
 
        expenses, expense allowances, and the employer's contribution for 
 
        welfare
 
        
 
        TUTTLE V. THE MICKOW CORPORATION
 
        Page 3
 
        
 
        
 
        benefits" from gross earnings. "The express mention of one thing 
 
        in a statute implies the exclusion of others." State v. Hatter, 
 
        414 N.W.2d 333, 337 (Iowa 1987). Only those items mentioned 
 
        should be excluded from the gross earnings of an employee. One of 
 
        those items expressly excluded is reimbursement of expenses. 
 
        Mickow reimbursed the decedent for certain of his expenses, 
 
        namely the fuel surcharge and reimbursed [fuel] permits. The 
 
        deposition of Walter J. Annett, general manager of Mickow, which 
 
        is claimant's exhibit 23, explains in some detail what most of 
 
        the items are on the settlement sheet which is claimant's exhibit 
 
        5. Reimbursement for surcharge is explained beginning at page 139 
 
        of exhibit 23. The amount for the reimbursed permits is explained 
 
        beginning at page 55 of exhibit 23. The amount paid to the 
 
        decedent for fuel surcharge and reimbursed permits should not be 
 
        included in gross earnings.
 
        
 
        Under the employment agreement (claimant's exhibit 2, paragraph 
 
        I-5), the decedent was also responsible for paying for licensing 
 

 
        
 
 
 
 
 
        and truck insurance so that the equipment would be operated in 
 
        full compliance with the law. Walter Annett indicated that the 
 
        method of paying for these items was for Mickow to pay the 
 
        amounts due and then to periodically deduct a portion of the 
 
        total amount from the payments due the decedent. In this manner, 
 
        Mickow paid the amounts and was reimbursed by the employee. 
 
        Decedent had the ultimate economic responsibility for these 
 
        items. Nothing in the employment contract identifies how much, if 
 
        any, of the payments represented a reimbursement for 
 
        business-related expenses. This method of making deductions from 
 
        the revenue of the truck before payment was made to decedent 
 
        would not reduce the revenue of the truck. The deductions for 
 
        these items should not be excluded in calculating decedent's 
 
        weekly earnings!
 
        
 
        The method of Mickow paying an item and decedent reimbursing for 
 
        this item also appeared to be what was done with other items. For 
 
        example, in the settlement sheet dated April 16, 1981 (Cl. Ex. 5) 
 
        decedent appears to have generated gross earnings from pulling 
 
        "Mercer #039836" but decedent reimbursed Mickow for "Mercer Ins." 
 
        and "Mercer Ded."
 
        
 
        The settlement sheet also indicates that Mickow paid decedent for 
 
        drop-off or stop-off charges and "bounce" miles. The settlement 
 
        sheet further indicates that decedent reimbursed Mickow for a 
 
        brokerage fee and and trailer rental. The drop-off charges and 
 
        "bounce" miles would be part of revenue of the truck. It is 
 
        unclear whether the brokerage fee should be excluded pursuant to 
 
        subsection 85.61(12). The payment for trailer rental appears to 
 
        be a payment like maintenance of the tractor which was the 
 
        economic responsibility of decedent. Defendants have not shown 
 
        that decedent's gross earnings should be reduced by the amount of 
 
        the brokerage fee or the trailer rental. The brokerage fee and 
 
        the trailer rental will not be excluded.
 
        
 
        Defendants argue that certain expenses associated with the costs 
 
        of operation of equipment which are the economic
 
        
 
        TUTTLE V. THE MICKOW CORPORATION
 
        Page 4
 
        
 
        
 
        responsibility of the decedent should be deducted from the 
 
        amounts paid to the decedent to determine decedent's gross 
 
        earnings. This argument is not persuasive for a variety of 
 
        reasons. One reason is that the language of the statute is clear 
 
        that gross earnings is the starting point for calculation of 
 
        benefits. Defendants' argument in effect makes a net income or 
 
        profit the starting point. Defendants' argument is not 
 
        consistent with the language of the statute. Statutory 
 
        interpretation should avoid absurd or impractical results. See 
 
        Metier v. Cooper Transport Co., Inc., 378 N.W.2d 907, 913 (Iowa 
 
        1985). Any attempt to do as defendants advocate would lead to 
 
        absurd results. For example, if an employee's cost of operating 
 
        in a 13 week period or any other time period exceeded the revenue 
 
        generated for that same time period, the result of defendants' 
 
        position would be that an employee would not receive benefits 
 
        because the gross earnings would be less than zero. 
 
        Interpretation of statutes that result in absurd results such as 
 
        this are not favored by the courts. Defendants' interpretation 
 
        would also lead to impractical results. A creative mind could 
 
        conjure up a magnitude of difficulties for this agency in 
 
        attempting to calculate such things as depreciation, operating 
 
        expenses, fair market rental of equipment, excise taxes, rate of 
 
        return on investment, interest expense, etc., in determining how 
 
        the revenue generated by the employee's operation should be 
 

 
        
 
 
 
 
 
        reduced by equipment costs. Two examples should demonstrate the 
 
        impracticality of such an interpretation of the statute. One 
 
        example would be that two employees who are paid exactly the same 
 
        amount would have very different rates of compensation merely 
 
        because one had depreciation expense and the other did not or 
 
        merely because one chose to treat a cost as a depreciation item 
 
        rather than an expense item for income tax purposes. The second 
 
        example would be that this agency would have to be expert in 
 
        taxation, accounting, and finance in order to properly separate 
 
        the costs of furnishing the labor from the costs of furnishing 
 
        the equipment. It is interesting to note that defendants attempt 
 
        to do so by using the decedent's federal income tax return 
 
        despite the fact that applicable federal tax laws and Iowa's 
 
        workers' compensation laws are clearly not in pari materia.
 
        
 
        Two other matters need to be addressed. The first is how to 
 
        consider the labor provided by decedent's wife when she drove. 
 
        The deputy found that decedent's wife's output was 42 percent of 
 
        the total family output. This finding was based upon an 
 
        examination of the April and May logbooks for 1981 and appears to 
 
        be accurate. Part of the revenue of the truck included the labor 
 
        of decedent's wife as co-driver. In this case one-third of the 
 
        revenue of the truck represents the earnings of both the decedent 
 
        and his spouse and the spouse's share of the combined earnings is 
 
        42 percent of the total earnings.
 
        
 
        TUTTLE V. THE MICKOW CORPORATION
 
        Page 5
 
        
 
        
 
        The last matter to be addressed is that this matter was remanded 
 
        for determination of the appropriate interest as well as the rate 
 
        of compensation. The parties in their arguments make no 
 
        particular argument regarding the interest. Interest accrues at 
 
        the rate of 10 percent per year pursuant to Iowa Code section 
 
        85.30.
 
        
 
        In summary, decedent's weekly earnings are his share of one-third 
 
        of the amount of revenue generated from one operation of his 
 
        truck. Claimant has proved that those amounts should include the 
 
        appropriate revenues plus "bounce" miles and stop-off or drop-off 
 
        charges. Fuel surcharges and reimbursed permits are reimbursement 
 
        of expenses and should not be included. The other items that 
 
        decedent reimbursed Mikow for are not reimbursement of expenses, 
 
        expense allowances, or any other exclusion contained in 
 
        subsection 85.61(12). The other items such as license fees, truck 
 
        insurance, trailer rent, and brokerage fees are not excluded from 
 
        decedent's gross earnings. Decedent's spouse's share of the 
 
        revenue of the truck was 42 percent.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Decedent's weekly earnings is his share of one-third of the 
 
        revenue generated from the operation of his truck.
 
        
 
        2. Decedent's share of the charge for hauling, "bounce" miles, 
 
        and drop-off or stop-off charges are included in the revenue 
 
        generated from the operation of the truck.
 
        
 
        3. Fuel surcharge and reimbursed permits are not included in the 
 
        revenue of the truck.
 
        
 
        4. License fees, truck insurance, trailer rent and brokerage fees 
 
        are not excluded from the revenue of the truck.
 
        
 
        5. The payments to decedent for revenue generated from the 
 

 
        
 
 
 
 
 
        operation of the truck were (from claimant's exhibit 5):
 
        
 
        3/12/81   1,961.00 x 75%         1,470.75
 
                  801.72 x 95%             761.63
 
                      Total                           2,232.38
 
        
 
        3/19/81   560.35 x 75%           420.26
 
                  Sammons #70981         511.50
 
                      Total                             931.76
 
        
 
        3/26/81   1,419.84 x 75        1,064.88
 
                    699.72 x 95%         664.73
 
                  Bounce                  60.00
 
                  Maverick #2083         673.09
 
                      Total                            2,462.70
 
        
 
        TUTTLE V. THE MICKOW CORPORATION
 
        Page 6
 
        
 
        
 
        4/2/81    1,123.64 x 75%        842.73
 
                    170.84 x 95%        162.30
 
                          Total                     1,005.03
 
        
 
        4/9/81    2,066.51 x 75%      1,549.88
 
                          Total                     1,549.88
 
        
 
        4/16/81   1,098.04 x 95%      1,043.14
 
                  Mercer #039836        562.43
 
                          Total                     1,605.57
 
        
 
        4/23/81     864.77 x 75%        648.58
 
                    bounce              135.00
 
                          Total                       783.58
 
        
 
        4/30/81   1,548.81 x 75%      1,161.61
 
                    344.63 x 95%        327.40
 
                    stop-off charge     100.00
 
                          Total                     1,589.01
 
        
 
        5/7/81      917.70 x 75%        688.28
 
                    stop-off charge      50.00
 
                          Total                       738.28
 
        
 
        5/21/81     581.02 x 75%        435.77
 
                    396.54 x 95%        376.71
 
                    Helms #453789       349.06
 
                          Total                     1,161.54
 
        
 
        5/28/81     784.55 x 75%        588.41
 
                          Total                       588.41
 
        
 
        6/4/81    2,277.47 x 75%      1,708.10
 
                  bounce                 50.00
 
                  bounce                 60.00
 
                  Mercer #046997        743.48
 
                          Total                     2,561.58
 
        
 
        6/18/81     627.90 x 75%        470.93
 
                  Jones #185502         588.90
 
                  " "  #185650         477.14
 
                  bounce                 50.00
 
                  bounce                 40.00
 
                  bounce                100.00
 
                  bounce                 60.00
 
                         Total                         1,786.97
 

 
        
 
 
 
 
 
        
 
                         Total revenue of the truck  $18,996.69
 
        
 
        6. Claimant, decedent's wife, as a co-driver of decedent's truck, 
 
        furnished 42 percent of the labor.
 
        
 
        TUTTLE V. THE MICKOW CORPORATION
 
        Page 7
 
        
 
        
 
        7. The weekly earnings of decedent and his wife represent 
 
        one-third of the revenue of the truck.
 
        
 
        8. The decedent's weekly earnings are calculated:
 
                     Total revenue of the truck    $18,996.69
 
                       Divided by 13 weeks equals    1,461.28
 
                       Divided by 1/3 equals           487.09
 
                       Less wife's share (42%)         204.58
 
        
 
                       Decedent's weekly earnings  $  282.51
 
        
 
        9. At the time of his death in June 1981, decedent was married 
 
        and entitled to two exemptions.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Decedent's rate of compensation is $176.48.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants pay claimant weekly compensation at the rate of 
 
        one hundred seventy-six and 48/100 dollars ($176.48) per week 
 
        commencing on June 11, 1981 and continuing until such time as 
 
        claimant becomes disqualified for compensation.
 
        
 
        That interest is to accrue on this award at a rate of ten percent 
 
        (10%) per year pursuant to section 85.30, Code of Iowa, from the 
 
        date payments become due.
 
        
 
        That any accrued but unpaid amounts shall be paid in a lump sum.
 
        
 
        That defendants are to pay the Second Injury Fund two thousand 
 
        dollars ($2,000.00).
 
        
 
        That defendants are to pay unto claimant a burial benefit in the 
 
        amount of one thousand dollars ($1,000.00).
 
        
 
        That costs including the costs of this remand are taxed to 
 
        defendants pursuant to Division of Industrial Services Rule 
 
        343-4.33.
 
        
 
        That defendants be given credit for amounts previously paid.
 
        
 
        That defendants shall file claim activity reports as required by 
 
        this agency pursuant to Division of Industrial Services Rule 
 
        343-3.1(2).
 
        
 
        TUTTLE V. THE MICKOW CORPORATION
 
        Page 8
 
        
 
        
 
        Signed and filed this 20th day of December, 1988.
 
        
 
        
 

 
        
 
 
 
 
 
                                          DAVID E. LINQUIST 
 
                                       INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CORA M. TUTTLE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 672377
 
            THE MICKOW CORPORATION,       :
 
                                          :        R E M A N D
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GREAT WEST CASUALTY,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This case is returned to the industrial commissioner on 
 
            remand from the district court for determination of rate in 
 
            light of the decision of the supreme court in D & C Express 
 
            Inc. v. Sperry, 450 N.W.2d 842 (Iowa 1990). 
 
            
 
                 The record on remand consists of the transcript of the 
 
            arbitration hearing, claimant's exhibits 1 through 6, 14 
 
            through 19, and 21 through 30, and the filings and 
 
            stipulations of the parties throughout this proceeding.
 
            
 
                                      issue
 
            
 
                 The sole issue on remand is the appropriate rate in 
 
            light of the decision of the supreme court in D & C Express 
 
            Inc. v. Sperry, 450 N.W.2d 842 (Iowa 1990).
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision filed October 15, 1984 
 
            adequately and accurately reflects the pertinent evidence 
 
            and it will not be set forth herein.
 
            
 
                                  applicable law
 
            
 
                 The citations of law in the remand decision filed 
 
            December 20, 1988 are appropriate to the issue and evidence.  
 
            Additional law will discussed in the analysis of the 
 
            evidence. 
 
            
 
                                     analysis
 
            
 
                 The sole issue on remand is the appropriate rate in 
 
            light of the supreme court's recent decision wherein the 
 
            supreme court stated:
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                    We cannot improve on the language employed by 
 
                 the district court. ... We quote and adopt it as 
 
                 our own:
 
            
 
                         It is not absurd to deduct known 
 
                      expenses to arrive at actual wages. ... 
 
                      Many factors, such as interest paid, 
 
                      depreciation, [and other matters] enter 
 
                      into a determination of taxable income 
 
                      that would not be applicable to 
 
                      determine actual wages....
 
            
 
                    The district court then quoted Iowa Code 
 
                 section 85.36(8), which we have noted above, and 
 
                 went on to state:
 
            
 
                         There is evidence in the record that 
 
                      the standard wage rate for drivers is 
 
                      25% of the gross receipts.  The burden 
 
                      is on [Sperry] to show his actual 
 
                      earnings.  If he cannot do so, then... 
 
                      the provisions of section 85.36(8) 
 
                      should apply.
 
            
 
            D & C Express v. Sperry, 450 N.W.2d 842, 845 (Iowa 1990).
 
            
 
                 The parties did not have the benefit of Sperry when the 
 
            facts were presented in the instant case.  While there is 
 
            evidence of some of decedent's expenses, it is unclear that 
 
            all of decedent's actual expenses are known.  Actual 
 
            expenses such as fuel costs, maintenance and repair of 
 
            decedent's vehicle are not among the expenses list in 
 
            claimant's exhibit 5.  Walter Annett, the general manager 
 
            for defendant employer, testified that decedent would be 
 
            required to pay fuel, maintenance, repairs and other 
 
            operating expenses (transcript, page 129).  Neither party 
 
            requested submission of additional evidence to prove 
 
            decedent's actual expenses.  Since decedent's actual 
 
            expenses are not known, it is concluded that rate should be 
 
            determined pursuant to Iowa Code section 85.36(8).  
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            The case sub judice, the method to determine rate is not 
 
            clear.  During the hearing, Walter Annett testified that the 
 
            amount paid the owner operators represented equipment rental 
 
            and that no part of the monies paid the drivers represented 
 
            compensation for driving the truck.  Annett testified:
 
            
 
                 Q.  Let me ask you your view as general manager of 
 
                 Mickow.  Is it your view that the entire sum of 
 
                 the earnings of the truck relates to labor 
 
                 performed by the operator?
 
            
 
                 A.  No, sir.  It's -- the total sum would be 
 
                 equipment rental only.  There's no labor involved 
 
                 whatsoever.
 
            
 
                 Q.  So the total sum is?
 
            
 
                 A.  $21,386.86 for equipment rental.
 
            
 
                 Q.  Why do you say that relates to equipment 
 
                 rental only?
 
            
 
                 A.  That's what it is,  We're just leasing 
 
                 equipment.  We're not leasing people.
 
            
 
                 ....
 
            
 
                 Q.  So I understand your view then is you're 
 
                 relating that twenty-one thousand you paid the 
 
                 owner operator in this case, twenty-one thousand 
 
                 for equipment rental and he provides his driver 
 
                 free then?
 
            
 
                 A.  Right.
 
            
 
            (Tr., pp. 97-98.)
 
            
 
                 It would be absurd to think that the total earnings of 
 
            the truck did not represent at least a portion of decedent's 
 
            labor in operation of the truck.  There is evidence in the 
 
            record that one-third of the decedent's gross receipts for a 
 
            thirteen week period were used by the insured to determine 
 
            decedent's earnings, plaintiff's exhibit 15.  Gross receipts 
 
            for this analysis are equal to the total amount decedent 
 
            received from Mickow and everyone else decedent hauled for 
 
            while employed by Mickow.
 
            
 
                 Decedent's gross receipts are:
 
            
 
                 3/12/81   1,961.00 x 75%        1,470.75
 
                           801.72 x 95%            761.63
 
                             Total                            2,232.38
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 3/19/81   560.35 x 75%            420.26
 
                           Sammons #70981          511.50
 
                             Total                              931.76
 
            
 
                 3/26/81   1,419.84 x 75%        1,064.88
 
                           699.72 x 95%            664.73
 
                           Bounce                   60.00
 
                           Maverick #2083          673.09
 
                              Total                           2,462.70
 
            
 
                 4/2/81    1,123.64 x 75%          842.73
 
                           170.84 x 95%            162.30
 
                             Total                            1,005.03
 
            
 
                 4/9/81    2,066.51 x 75%        1,549.88
 
                             Total                            1,549.88
 
            
 
                 4/16/81   1,098.04 x 95%        1,043.14
 
                           Mercer #039836          562.43
 
                             Total                            1,605.57
 
            
 
                 4/23/81   864.77 x 75%            648.58
 
                           bounce                  135.00
 
                             Total                              783.58
 
            
 
                 4/30/81   1,548.81 x 75%        1,161.61
 
                           344.63 x 95%            327.40
 
                           stop-off charge         100.00
 
                             Total                            1,589.01
 
            
 
                 5/7/81    917.70 x 75%            688.28
 
                           stop-off charge          50.00
 
                             Total                              738.28
 
            
 
                 5/21/81   581.02 x 75%            435.77
 
                           396.54 x 95%            376.71
 
                           Helms #453789           349.06
 
                             Total                            1,161.54
 
            
 
                 5/28/81   784.55 x 75%            588.41
 
                             Total                              588.41
 
            
 
                 6/4/81    2,277.47 x 75%        1,708.10
 
                           bounce                   50.00
 
                           bounce                   60.00
 
                           Mercer #046997          743.48
 
                             Total                            2,561.58
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 6/18/81   627.90 x 75%            470.93
 
                           Jones #185501           588.90
 
                           "  "  #185650           477.14
 
                           bounce                   50.00
 
                           bounce                   40.00
 
                           bounce                  100.00
 
                           bounce                   60.00
 
                             Total                            1,786.97
 
                             Total Gross Receipts           $18,996.69
 
            
 
                 Decedent's gross receipts for thirteen weeks preceding 
 
            the accident are $18,996.69.  Excluded from the calculation 
 
            is fuel surcharges pursuant to Iowa Code section 85.61(12) 
 
            which excludes "irregular bonuses, retroactive pay, 
 
            overtime, penalty pay, reimbursement of expenses, expense 
 
            allowances and the employer's contribution for welfare 
 
            benefits."   Decedent's average gross receipts are 
 
            determined by dividing gross receipts by thirteen weeks.  
 
            One-third of decedent's average gross receipts represents 
 
            decedent's earnings from operation of the truck.  Claimant, 
 
            decedent's wife, as co-driver of decedent's truck, furnished 
 
            42 percent of the labor.  Earnings from decedent as driver 
 
            of the truck represent 58 percent of the earnings from the 
 
            operation of the truck.
 
            
 
                 Decedent's weekly earnings are calculated:
 
            
 
                    Total gross receipts                 $18,996.69
 
            
 
                      Divided by 13 weeks equals           1,461.28
 
                      Divided by 1/3 equals                  487.09
 
                      Less wife's share (42%)                204.58
 
            
 
                      Decedent's weekly earnings         $   282.51
 
            
 
                 At the time of his death in June 1981, decedent was 
 
            married and entitled to two exemptions.  The rate of 
 
            compensation for a married individual entitled to two 
 
            exemptions with $282.51 in average weekly earnings is 
 
            $176.48.
 
            findings of fact
 
            1.  Decedent's actual expenses for operating the truck are 
 
            unknown.
 
            2.  Decedent's gross receipts from the operation of the 
 
            truck are $18,996.69.  Gross receipts, for this analysis are 
 
            equal to the total amount decedent received from Mickow and 
 
            everyone else decedent hauled for while employed by Mickow.
 
            3.  One-third of decedent's gross receipts represents wages 
 
            of the driver.
 
            4.  Claimant, decedent's wife, as co-driver of decedent's 
 
            truck, furnished 42 percent of the labor for the operation 
 
            of the truck.
 
            5.  Decedent's weekly earnings are $282.51.
 
            
 
                                conclusion of law
 
            
 
                 Decedent's rate of compensation is $176.48.
 
            
 
                                      Order
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay claimant weekly compensation at the 
 
            rate of one hundred seventy-six and 48/100 dollars ($176.48) 
 
            per week commencing on June 11, 1981 and continuing until 
 
            such time as claimant becomes disqualified for compensation.
 
            
 
                 That interest is to accrue on this award at a rate of 
 
            ten percent (10%) per year pursuant to Iowa Code section 
 
            85.30 from the date payments become due.
 
            
 
                 That accrued but unpaid amounts shall be paid in a lump 
 
            sum.
 
            
 
                 That costs including the costs of this remand are taxed 
 
            to defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants be given credit for amounts previously 
 
            paid.
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of January, 1991.
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Roger L. Ferris
 
            Attorney at Law
 
            1900 Hub Tower
 
            699 Walnut Street
 
            Des Moines, Iowa 50309
 
            
 
            Mr. R. Ronald Pogge
 
            Attorney at Law
 
            2700 Grand Ave., Suite 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            3003
 
            Filed January 18, 1991
 
            Clair R. Cramer
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CORA M. TUTTLE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 672377
 
            THE MICKOW CORPORATION,       :
 
                                          :        R E M A N D
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GREAT WEST CASUALTY,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            3003
 
            The sole issue on remand is the appropriate rate in light of 
 
            the decision of the supreme court in D & C Express Inc. v. 
 
            Sperry, 450 N.W.2d 842 (Iowa 1990).  Actual expenses such as 
 
            fuel costs, maintenance, and repair of decedent's vehicle 
 
            are not part of the record.  Since decedent's actual 
 
            expenses are unknown, it is concluded that rate should be 
 
            determined pursuant to Iowa Code section 85.36(8).
 
            There is evidence in the record that one-third of the 
 
            decedent's gross receipts for a thirteen week period were 
 
            used by the insurer to determine decedent's earnings.  Gross 
 
            receipts for this analysis are equal to the total amount 
 
            decedent received from Mickow and everyone else decedent 
 
            hauled for while employed by Mickow.  Excluded from the 
 
            calculation of gross receipts are fuel surcharges pursuant 
 
            to Iowa Code section 85.61(12).  Claimant, decedent's wife, 
 
            as co-driver of decedent's truck, furnished 42 percent of 
 
            the labor.  Earnings from decedent as driver of the truck 
 
            represent 58 percent of the earnings from the operation of 
 
            the truck.  
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BIRDEEN HIMSCHOOT,
 
         
 
              Claimant,
 
                                                    File Nos. 672778
 
         vs.                                                  733235
 
         
 
         MONTEZUMA MANUFACTURING,
 
                                                      A P P E A L
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE,                     F I L E D
 
         
 
              Insurance Carrier,                      APR 15 1988
 
         
 
         and                                 IOWA INDUSTRIAL COMMISSIONER
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                            STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening decision awarding 
 
         permanent partial disability, healing period benefits, mileage, 
 
         and medical expenses.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing; one joint medical exhibit; claimant's 
 
         exhibits 1 through 3; defendant Second Injury Fund's exhibits 4 
 
         through 6; and defendant employer and insurance carrier's 
 
         exhibits 7 and 8.  All parties filed briefs on appeal.
 
         
 
                                    ISSUES
 
         
 
              The issues on appeal are:
 
         
 
              1.  Whether claimant is entitled to benefits from the second 
 
         injury fund;
 
         
 
              2.  Whether claimant is entitled to temporary total 
 
         disability benefits, additional healing period benefits, or 
 
         medical expenses; and
 
         
 
              3.  Whether claimant's condition is an occupational 
 
                    disease.
 
         
 
                         REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
                                                
 
                                                         
 
         reflects the pertinent evidence and it will not be totally 
 
         reiterated herein.
 
         
 
              Claimant started working for defendant employer on September 
 
         23, 1980 as a production worker.  Her job required many 
 
         repetitious hand movements with both hands.  Shortly after she 
 
         began working she experienced a numb and tingling feeling as if 
 
         her fingers had fallen asleep.  She saw her personal physician, 
 
         Nyle Kauffman, M.D.  She reported to him on October 22, 1980 that 
 
         she had numbness in her arms.  Dr. Kauffman referred her to Lynn 
 
         Kramer, M.D., a neurologist.  Dr. Kramer saw claimant on April 
 
         27, 1981 and wrote to Dr. Kauffman the next day that claimant had 
 
         bilateral carpal tunnel syndrome, right greater than left, and a 
 
         ganglion cyst on the median nerve on the right.
 
         
 
              On June 4, 1981, Bruce Sprague, M.D., performed surgery 
 
         which was a release of right transverse carpal ligament and 
 
         excision of ganglion of volar surface right wrist.  The diagnosis 
 
         on that day was bilateral carpal syndrome and ganglion, volar 
 
         surface, right wrist.  On September 9, 1981, Dr. Sprague released 
 
         claimant to return to work without any restriction.
 
         
 
              Claimant returned to work on September 10, 1981 and began to 
 
         have more problems with the left hand.  There was a layoff from 
 
         October 20, 1981 to January 8, 1982.  After claimant returned to 
 
         work following the layoff, she continued to have problems with 
 
         the left hand and the employer sent her to Robert Carney, M.D.  
 
         On February 12, 1982, Dr. Carney saw her and on February 19, 1982 
 
         took her off work because of pain in the left wrist.
 
         
 
              On March 22, 1982, Albert L. Clemens, M.D., saw claimant for 
 
         pain in the left wrist and a stiff right index finger.  He 
 
         diagnosed her as having left carpal tunnel syndrome and 
 
         recommended a release operation which was performed in surgery on 
 
         April 9, 1982.  On July 6, 1982, Dr. Clemens released her for 
 
         light work for one month.
 
         
 
              Claimant testified that there was no light duty work at the 
 
         employer.  Mary Van Gorp, office manager, and Jack Ramsey, 
 
         foreman for the employer, also testified that the employer did 
 
         not accept a light duty release.  Claimant did report for work in 
 
         August 1982 without a full release from a doctor.  She indicated 
 
         that she felt she could not do the work and she resigned.
 
         
 
              Van Gorp testified that she had a conversation with claimant 
 
         in July 1982 and it was agreed that claimant would not work for 
 
         one more month and that claimant would get a full release and 
 
         return to work.  Claimant testified that she had no recollection 
 
         of the conversation but would believe Van Gorp if Van Gorp 
 
         testified that the conversation took place.
 
         
 
              Claimant testified that in July of 1982, she indicated to 
 
         Ramsey that her right hand still was not right and the employer 
 
         made an appointment for claimant to see Dr. Carney.  He saw her 
 
         on August 10, 1982 and indicated she had recurrence of the 
 
                                                
 
                                                         
 
         ganglion just above the previous ganglionectomy area.
 
         
 
              Dr. Clemens performed surgery on the ganglion on December 
 
         10, 1984 and removed it.  Claimant testified that this surgery 
 
         did not affect the function to her right hand or arm.  She also 
 
         testified at the time of the hearing that she had numbness and 
 
         tingling in her hands and that she would not have the grip nor 
 
         the dexterity to do production work for the employer.
 
         
 
              In a letter dated January 15, 1985, Dr. Carney stated, "In 
 
         regards to the ganglion recurring, this too is not unusual, in my 
 
         opinion.  When a person returns to a repetative [sic] type of 
 
         work causing strain to the previous problem area this could 
 
         indeed occur."  Dr. Clemens, in a letter dated June 1, 1983, 
 
         stated:
 
         
 
                   It was my opinion that her bilateral carpal tunnel 
 
              syndromes, for which she underwent surgery, as well as her 
 
              original ganglion of her wrist, were related to her 
 
              employment.  The recurrence of the ganglion in the same 
 
              place, is not an unusual circumstance.  It is usually 
 
              related to the same type of repetitive work and I felt this 
 
              was the case in this lady's problems.
 
         
 
         (Joint Medical Exhibit, page 54)
 
         
 
              In a letter dated May 25, 1984, Paul From, M.D., stated that 
 
         the original ganglion was related to her employment but did not 
 
         express an opinion whether the recurrence was or was not related 
 
         to employment.  In a letter dated January 17, 1984, Dr. Sprague 
 
         stated:
 
         
 
              Her ganglion has reoccurred, which is something that happens 
 
              10% of the time following excision of ganglions, which we 
 
              feel is probably due to some mucoid cells that are left in 
 
              the area that will again produce the ganglionous process.
 
         
 
                   I do not feel the ganglion is a work-aggrevated [sic] 
 
              condition; the carpal tunnel syndromes are a work-aggrevated 
 
              [sic] condition.
 
         
 
         (Jt. Med. Ex., p. 44)
 
         
 
         In a letter dated March 13, 1985, Dr. Clemens stated, "I have 
 
         seen her once since the surgery, namely January 10, 1985, and to 
 
         my knowledge, as of that date, she had recovered completely from 
 
         the surgery and I have no knowledge of her current status."  (Jt. 
 
         Med. Ex., p. 51)
 
         
 
              Since claimant's resignation in August of 1982 she has spent 
 
         some of the time in school and worked at various jobs.  Some of 
 
         the time is not accounted for in the record.  She attended 
 
         community college from September 1982 until May 1983.  She has 
 
         not returned to work for the employer.  She still has numbness, 
 
         no grip strength, pain in her right arm, and minor problems with 
 
                                                
 
                                                         
 
         her left arm.  These problems have made doing the various jobs 
 
         she has tried difficult.  Dr. Carney, in September 1982, wrote a 
 
         letter stating that claimant terminated her job as a result of 
 
         carpal tunnel syndrome.
 
         
 
              Claimant did not receive workers' compensation checks after 
 
         August 1982.  Defendant employer and insurance carrier did not 
 
         give claimant written notice of termination of compensation 
 
         benefits.
 
         
 
                               APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                 ANALYSIS
 
         
 
              Claimant argues on appeal that she has sustained two 
 
         separate injuries and as a consequence is entitled to benefits 
 
         from the second injury fund.  Claimant's arguments are not 
 
         persuasive.  The record clearly indicates that the original 
 
         diagnosis following claimant's first complaints was that claimant 
 
         had bilateral carpal tunnel syndrome, the right greater than the 
 
         left.  That diagnosis was made by Dr. Kramer on April 27, 1981 
 
         and by Dr. Sprague on June 4, 1981.  These diagnoses were made 
 
 
 
                  
 
                                                         
 
         before February 12, 1982, the date claimant asserts in the date 
 
         of the second injury.  It should be noted that the date February 
 
         12, 1982 which claimant asserts is the date of the second injury 
 
         is merely the date claimant sought medical treatment for the 
 
         carpal tunnel syndrome in her left hand.
 
         
 
              Claimant argues that the separate memoranda of agreement for 
 
         injuries of April 27, 1981 and February 12, 1982 establish as a 
 
         matter of law that there are two separate injuries.  This 
 
         argument is also not persuasive.  A memorandum of agreement 
 
         establishes an employer-employee relationship and that the injury 
 
         arose out of and in the course of employment.  It does not 
 
         indicate what the injuries were or if any permanent impairment 
 
         resulted.  It does not establish any fact relating to liability 
 
         of the second injury fund.  In this case, the second injury fund 
 
         specifically did not stipulate that there were two injuries that 
 
         arose out of and in the course of employment.  Claimant has not 
 
         proved by the greater weight of evidence that she received two 
 
         separate injuries and is not entitled to benefits from the second 
 
         injury fund.
 
         
 
              Claimant also argues on appeal that she is entitled to 
 
         additional healing period benefits and medical benefits for the 
 
         injury on April 27, 1981.  The injury discussed in the appeal 
 
         brief is the ganglion cyst and claimant asserts she is entitled 
 
         to healing period benefits from the date the recurrence of the 
 
         cyst was diagnosed (August 10, 1982) to a reasonable time for 
 
         recuperation from the surgery which was performed on December 10, 
 
         1984.  In order for claimant to receive the healing period 
 
         benefits, the claimant must prove that the injury resulted in 
 
         permanent partial disability.
 
         
 
              Claimant's own testimony indicated that her condition was 
 
         the same before and after each of the surgeries for the ganglion 
 
         cyst. The medical exhibits do not demonstrate the ganglion cyst 
 
         was the cause of any permanent partial disability.  Dr. Clemens 
 
         states that it was not the cause of any permanent partial 
 
         disability. Claimant had returned to work in September 1981 after 
 
         the first surgery which was performed on June 4, 1981.  She did 
 
         work several jobs after she quit at the employer in August 1982.  
 
         Claimant is not entitled to healing period benefits as she has 
 
         not proved that the ganglion cyst was the cause of any permanent 
 
         disability.
 
         
 
              Even if claimant is not entitled to healing period benefits, 
 
         she may be entitled to temporary disability benefits if she 
 
         proves that she was unable to work due to the injury (the 
 
         ganglion cyst). Claimant has not met her burden of proof.  There 
 
         is no evidence that claimant's inability to return to work in 
 
         August 1982 was due to the ganglion cyst.  Just as there is no 
 
         evidence that claimant's inability to return to work in August 
 
         1982 was due to the ganglion cyst, there is also insufficient 
 
         evidence to conclude that claimant was unable to work after the 
 
         surgery in December 1984.  Claimant has the burden of proving the 
 
         period of temporary disability, if any.  Claimant has not 
 
                                                
 
                                                         
 
         provided sufficient evidence to determine the period of temporary 
 
         disability.  While Dr. Clemens' letter of March 13, 1985 states 
 
         that claimant had recovered completely from the surgery by 
 
         January 10, 1985, it is not sufficient to determine a period of 
 
         disability.  Also, claimant's own testimony as discussed 
 
         previously indicated that her condition was the same before and 
 
         after each of the surgeries for the ganglion cyst.  Claimant is 
 
         not entitled to temporary disability benefits because of the 
 
         ganglion cyst.
 
         
 
              Dr. Carney, Dr. Clemens, and Dr. From expressed the general 
 
         opinion that the ganglion cyst and its recurrence are work 
 
         related.  The defendants should pay the medical expenses for the 
 
         excision on December 10, 1984.
 
         
 
              Claimant also argues she is entitled to additional healing 
 
         period benefits for the injury of February 12, 1982 because she 
 
         was not given notice of termination of benefits as required by 
 
         Iowa Code section 86.13.  Dr. Clemens released claimant to do 
 
         light duty work for one month on July 6, 1982.  The employer did 
 
         not have light duty work.  Claimant reported to the employer on 
 
         August 7, 1982 without obtaining a full release but quit because 
 
         she thought she could not do the work.  The complaints she had 
 
         about her condition were the same at the time she quit and at the 
 
         time of the hearing.  She was paid benefits through August 8, 
 
         1982 but was not given written notice of the termination of those 
 
         benefits.  Claimant had discussed with her employer and it was 
 
         the employer's understanding that claimant was to receive 
 
         benefits until August 8, the date she was to return to work.  
 
         Claimant had previously received compensation for surgery in 1981 
 
         and returned to work at which time the benefits would have ended.  
 
         Under these circumstances, she had constructive notice that 
 
         compensation would be terminated and she should have known that 
 
         they would terminate on August 8, 1982.  Claimant is entitled to 
 
         thirty days of temporary disability benefits from the time she 
 
         had constructive notice of the termination of benefits.  She is 
 
         entitled to benefits from August 9, 1982 through September 8, 
 
         1982.
 
         
 
              The final argument on appeal by claimant is that as an 
 
         alternative to second injury fund benefits, she has suffered an 
 
         occupational disease and should be awarded permanent partial 
 
         disability.  Under the facts presented in this case, claimant's 
 
         carpal tunnel syndrome is the result of an injury and is not an 
 
         occupational disease.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  Claimant became an employee of the employer on September 
 
         23, 1980.
 
         
 
              2.  Claimant's job required numerous repetitive hand, wrist 
 
         and arm movements with both upper extremities.
 
         
 
              3.  Shortly after the claimant started to work she 
 
                                                
 
                                                         
 
         experienced numbness in both hands and pain that went up into her 
 
         arms, the right arm worse than the left; a funny feeling in her 
 
         right index finger; loss of grip strength; and a ganglion cyst on 
 
         her right wrist.
 
         
 
              4.  Claimant's employment was the cause of bilateral carpal 
 
         tunnel syndrome.
 
         
 
              5.  All of claimant's symptoms occurred at the same time and 
 
         were first recorded when she saw her personal physician, Dr. 
 
         Kauffman, on October 22, 1980.
 
         
 
              6.  Dr. Carney, Dr. Kramer, Dr. Sprague, Dr. Clemens, Dr. 
 
         Solomon, Dr. Blair, Dr. Paulsen, and Dr. From all confirmed that 
 
         claimant suffered from bilateral carpal tunnel syndrome even 
 
         though the surgery on the right hand and the left hand were 
 
         performed at different times.
 
         
 
              7.  The ganglion cyst on her right wrist which appeared at 
 
         approximately the same time as the bilateral carpal tunnel, and 
 
         the recurrence of it, were caused by her employment.
 
         
 
              8.  The ganglion cyst and the recurrence of it did not cause 
 
         her to miss any time from work.
 
         
 
              9.  The employer did not send an Auxier notice to the 
 
         claimant when they terminated her temporary benefits in August of 
 
         1982.
 
         
 
              10.  On August 8, 1982, claimant had constructive notice 
 
         that her benefits would be terminated.
 
         
 
              11.  Claimant has suffered a 10 percent permanent physical 
 
         impairment of the right hand and a five percent permanent 
 
         physical impairment of the left hand.
 
         
 
              12.  Claimant incurred the medical expenses as shown on 
 
         claimant's exhibit 2 for excision of the recurrence of the 
 
         ganglion cyst.
 
         
 
              13.  Claimant incurred mileage expenses for her treatment as 
 
         shown on claimant's exhibit 1 for her work-related injuries.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              The work related injury of bilateral carpal tunnel was the 
 
         cause of permanent disability and also certain medical expenses.
 
         
 
              The claimant is entitled to an additional 30 days or 4.286 
 
         weeks of healing period benefits from August 9, 1982 through 
 
         September 8, 1982 due to the failure of the insurance carrier to 
 
         send an Auxier notice.
 
         
 
              The claimant is entitled to 10 percent permanent partial 
 
         disability for functional impairment of the right hand and five 
 
                                                
 
                                                         
 
         percent permanent partial disability for functional impairment to 
 
         the left hand.
 
         
 
              Ten percent of the right hand converts to nine percent of 
 
         the upper extremity and five percent of the left hand converts to 
 
         five percent of the upper extremity.
 
         
 
              Nine percent of the right upper extremity converts to five 
 
         percent of the body as a whole and five percent of the left upper 
 
         extremity converts to three percent of the body as a whole for a 
 
         combined value of eight percent of the body as a whole.
 
         
 
              Because the claimant has received only one injury, and not 
 
         separate injuries, claimant is not entitled to benefits from the 
 
         second injury fund.
 
         
 
              There is a causal connection between the work injury and the 
 
         ganglion cyst.
 
         
 
              The ganglion cyst was not the cause of either temporary or 
 
         permanent disability.
 
         
 
              The claimant is entitled to payment of medical expenses for 
 
         a section 85.39 examination and the excision of the recurrence of 
 
         the ganglion cyst as shown on claimant's exhibit 2 in the amount 
 
         of $1,253.00.
 
         
 
              The claimant is entitled to payment of mileage expenses in 
 
         the amount of $272.16 as shown in claimant's exhibit 1.
 
         
 
              The claimant is not entitled to any additional healing 
 
         period benefits or temporary disability benefits due to the 
 
         recurrence of the ganglion cyst.
 
 
 
                             
 
                                                         
 
         
 
              Claimant's bilateral carpal tunnel and ganglion cyst are 
 
         injuries and are not occupational diseases.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant forty (40) weeks (.08 x 500) of 
 
         permanent partial disability benefits at the rate of one hundred 
 
         twenty-eight and 48/100 dollars ($128.48) for a total amount of 
 
         five thousand one hundred thirty-nine and 20/100 dollars 
 
         ($5,139.20).  Said payments to be due from September 9, 1982.
 
         
 
              That defendants pay claimant's mileage expense in the amount 
 
         of two hundred seventy-two and 16/100 dollars ($272.16) as shown 
 
         on claimant's exhibit 1.
 
         
 
              That defendants pay claimant's medical expenses in the 
 
         amount of one thousand two hundred fifty-three and no/100 dollars 
 
         ($1,253.00) as shown on claimant's exhibit 2.
 
         
 
              That defendants pay all these benefits to claimant in a lump 
 
         sum.
 
              That interest will accrue on the healing period benefits and 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.30.
 
         
 
              That defendants pay the costs of the review-reopening 
 
         proceeding and claimant pay the costs on appeal including the 
 
         cost of the transcription of the hearing proceeding.
 
         
 
              That defendants are to file a final report when this award 
 
         is paid.
 
         
 
         
 
              Signed and filed this 15th day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         Terrace Center, Suite 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
                                                
 
                                                         
 
         
 
         Mr. Richard Book
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa  50409
 
         
 
         Mr. Greg Knoploh
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
 
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40; 1402.60
 
                                                 1801; 1802; 1803
 
                                                 2203; 3202; 4000.1
 
                                                 Filed 4-15-88
 
                                                 David E. Linquist
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BIRDEEN HIMSCHOOT,
 
         
 
              Claimant,
 
                                                   File Nos. 672778
 
         vs.                                                 738235
 
         
 
         MONTEZUMA MANUFACTURING,
 
                                                    A P P E A L
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         1402.40; 1801
 
         
 
              Claimant was not allowed temporary disability benefits for a 
 
         work-related recurrence of a ganglion cyst.  Claimant has not 
 
         proved that she was unable to work for any period of time because 
 
         of the recurrence of the ganglion cyst.
 
         
 
         1402.60
 
         
 
              Doctors had indicated that the ganglion cyst and its 
 
         recurrence were work related.  Therefore, claimant was allowed 
 
         medical benefits for the recurrence.
 
         
 
         1802
 
         
 
              Claimant's condition was the same before and after surgery 
 
         for the ganglion cyst.  The medical exhibits did not demonstrate 
 
         the cyst was the cause of any permanent partial disability. 
 
         Claimant was not entitled to healing period benefits for the 
 
         cyst.
 
         
 
         1803
 
         
 
                                                
 
                                                         
 
              Claimant had suffered bilateral carpel tunnel syndrome 
 
         because of the work injury.  The bilateral carpal tunnel was one 
 
         injury when symptoms for both hands occurred at the same time, 
 
         even though treatment and surgery for each arm occurred on 
 
         different dates about a year apart.  Claimant had a functional 
 
         disability of the body as a whole because she had impairment of 
 
         both hands, right greater than the left.
 
         
 
         2203
 
         
 
              Under the facts of this case claimant's bilateral carpal 
 
         tunnel syndrome was the result of an injury and is not an 
 
         occupational disease.
 
         
 
         3202
 
         
 
              Since bilateral carpal tunnel was found to be one injury 
 
         there was no second injury fund liability even though claimant 
 
         filed two petitions, two claim files were processed, and the 
 
         surgeries occurred about a year apart.
 
         
 
         4000.1
 
         
 
              Claimant was allowed an additional 30 days of benefits for 
 
         healing period benefits because the employer failed to send a 
 
         section 86.13/Auxier notice.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            BIRDEEN HIMSCHOOT,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :    File Nos. 672778/738235
 
            MONTEZUMA MANUFACTURING, :
 
                      :          R E M A N D
 
                 Employer, :
 
                      :        D E C I S I O N
 
            and       :
 
                      :
 
            FIREMAN'S FUND INSURANCE,     :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            The Iowa Court of Appeals issued its ruling in this case on 
 
            February 22, 1990.  That decision affirmed the district 
 
            court decision filed December 12, 1989, which remanded this 
 
            case to this agency for further award of healing period 
 
            benefits.
 
            ACCORDINGLY, IT IS ORDERED:
 
            Defendants shall pay to claimant additional healing period 
 
            benefits from August 9, 1982, through August 23, 1983, 
 
            pursuant to Iowa Code section 86.13.
 
            Defendants shall receive credit for any section 86.13 
 
            benefits previously paid.
 
            Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Dennis L. Hanssen
 
            Attorney at Law
 
            2700 Grand Ave., Suite 111
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa 50309
 
            
 
            Mr. Greg Knoploh
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1802
 
            Filed February 26, 1991
 
            Clair R. Cramer
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            BIRDEEN HIMSCHOOT,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :    File Nos. 672778/738235
 
            MONTEZUMA MANUFACTURING, :
 
                      :          R E M A N D
 
                 Employer, :
 
                      :        D E C I S I O N
 
            and       :
 
                      :
 
            FIREMAN'S FUND INSURANCE,     :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            5-1802
 
            Pursuant to a remand from the Iowa Court of Appeals, further 
 
            healing period benefits were awarded.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         DONALD LOWE,
 
                                                 File  Nos. 673326
 
              Claimant,
 
                                                            776977
 
                                                            805718
 
         VS.
 
         
 
         IOWA STATE PENITENTIARY,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and,
 
         
 
         STATE OF  IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         __________________________________________________________________
 
         
 
                                     INTRODUCTION
 
         
 
              This case involves three proceedings in arbitration brought 
 
         by Donald Lowe against Iowa State Penitentiary, his former 
 
         employer, and the State of Iowa as insurance carrier.
 
         
 
              Claimant alleges that he sustained compensable injuries on 
 
         June 11, 1981, October 3, 1984 and September 26, 1985.  He 
 
         acknowledges receipt of all compensation due for temporary total 
 
         disability or healing period in relation to the first two 
 
         injuries.  Claimant acknowledges receipt of compensation for 
 
         temporary total disability or healing period running through 
 
         December 5, 1985 following the third injury.  Claimant seeks 
 
         additional compensation for healing period and also compensation 
 
         for permanent disability.  Claimant urges that he is permanently 
 
         and totally disabled.  Claimant also seeks to recover $2,919.09 
 
         in medical expenses.
 
         
 
              The case was heard at Burlington, Iowa on January 8, 1987.  
 
         The record was reopened to allow entry of a report from a 
 
         physician whom claimant had failed to disclose in his discovery 
 
         responses.  The record in this proceeding consists of claimant's 
 
         exhibits 1 through 25 and defendants' exhibits A through F. The 
 
         record also contains testimony from Donald Lowe, Debra Lowe, 
 
         Frank Lowe, Betty Lowe and William Haley.
 
         
 
                                   ISSUES
 
         
 
              The issues presented for determination are whether any of 
 
         the three injuries is a proximate cause of any disability which 
 
         now or formerly afflicted Donald Lowe and determination of his 
 
         entitlement to compensation for temporary total disability, 
 
         healing period and permanent disability.  Claimant urges 
 
         application of the odd-lot doctrine.  Claimant also seeks to 
 
         recover certain medical expenses in the amount of $2,919.09.
 
         
 
                             SUMMARY OF EVIDENCE
 

 
         
 
         
 
         
 
         LOWE V. IOWA STATE PENITENTIARY
 
         Page   2
 
         
 
         
 
         
 
              Donald Lowe is a 41-year-old high school graduate who held a 
 
         number of different jobs between 1963 and 1979 when he commenced 
 
         employment at the Iowa State Penitentiary.  His prior jobs 
 
         included drill press operator, stock man, oiler on a crane, farm 
 
         hand, feed salesman, grain buyer, truck driver, street sweeper 
 
         operator and factory work.  Claimant was in the army reserve 
 
         where he stated that he got paid for just sitting on his butt for 
 
         16 hours a weekend and watching other people do their thing.
 
         
 
              Claimant began work at the Iowa State Penitentiary at Fort 
 
         Madison in January, 1979.  He worked as an exercise officer 
 
         escorting inmates between the cell house and an exercise area.  
 
         He stated that the job required that he be on his feet most of 
 
         the time.
 
         
 
              Claimant asserts three incidents of injury to his groin 
 
         area.  The first occurred on June 11, 1981 when he was kicked in 
 
         the groin by an inmate.  He was treated by Vasant F. Pawar, M.D. 
 
         with rest and medication.  He returned to work without 
 
         restriction in approximately 30 days (claimant's exhibit 23, page 
 
         6).
 
         
 
              The second incident occurred on October 3, 1984 when 
 
         claimant slipped on steps on work and strained himself in an 
 
         attempt to avoid falling.  He was again treated by Dr. Pawar with 
 
         antibiotics, pain medication and rest (claimant's exhibit 23, 
 
         pages 7 and 8).  When claimant's complaints did not resolve, he 
 
         was first referred to a urologist in Keokuk, Iowa who, in turn, 
 
         referred him to the University of Iowa Hospitals and Clinics in 
 
         Iowa City.  He was diagnosed as having an infection and was 
 
         treated with medication and rest.  Claimant was apparently not 
 
         impressed with the physicians at Iowa City who examined him.
 
         
 
              When claimant's pain did not resolve an exploratory surgery 
 
         was performed which resulted in discovery of a bulging weakness 
 
         in claimant's abdomen which was diagnosed as evidence of a direct 
 
         inguinal hernia.  The weakness was repaired.  During the surgery 
 
         claimant's left testicle was examined and no abnormalities were 
 
         noted (claimant's exhibit 10).  When claimant's complaints did 
 
         not resolve following recovery from the surgery, a second surgery 
 
         was performed which resulted in removal of his left testicle.  
 
         Subsequent examination of the testicle found no abnormalities.
 
         
 
              Claimant recovered from the surgery and, on April 22,  1985, 
 
         returned to work.  At that time he appeared to have relief from 
 
         his painful symptoms (claimant's exhibit 23, pages 14, 32 and 
 
         33).  In his testimony, claimant denied experiencing complete 
 
         relief.
 
         
 
              On September 26, 1985 claimant was again kicked in the groin 
 
         and returned to Dr. Pawar.  He was treated by pain medication and 
 
         rest.  When the pain did not resolve, Dr. Pawar referred claimant 
 
         to a urologist in Springfield who found nothing abnormal and, in 
 
         turn, referred claimant to a pain clinic.  At the pain clinic, a 
 
         diagnosis of nerve entrapment of the genitofemoral nerve was 
 
         made, but the results of the nerve blocks used in making the 
 
         diagnosis were not completely reliable.  A second nerve block 
 
         attempt was recommended which was to be followed by a 
 

 
         
 
         
 
         
 
         LOWE V. IOWA STATE PENITENTIARY
 
         Page   3
 
         
 
         
 
         genitofemoral neurectomy if indicated (claimant's exhibit 23, 
 
         pages 16-18).
 
         
 
              Dr. Pawar was not fully convinced that the neurectomy was 
 
         indicated and referred claimant to the Mayo Clinic for a further 
 
         evaluation.  The Mayo Clinic diagnosed claimant as having 
 
         adductor tendonitis and recommended a course of physical therapy 
 
         (claimant's exhibit 23, pages 19 and 20).  While at the Mayo 
 
         Clinic a Minnesota Multiphasic Personality Inventory was 
 
         performed which showed claimant to be mildly depressed and 
 
         pessimistic.  It also indicated that his number of physical 
 
         symptoms and concern about bodily functions was fairly typical 
 
         for medical patients.    Abnormalities were not noted.  Claimant 
 
         did, however, refuse an offer to perform a nerve block in order 
 
         to seek some relief from his pain (defendants' exhibit A).
 
         
 
              The deposition of Dr. Pawar was taken May 28, 1986, 
 
         approximately one month after claimant had been to the Mayo 
 
         Clinic.  At that time, no benefit had been obtained from the 
 
         physical therapy which claimant was performing.  Claimant 
 
         testified that, by the time of hearing, there had still been no 
 
         relief of his pain as a result of the physical therapy.
 
         
 
              Claimant testified that he experiences continual severe pain 
 
         in his left groin.  He stated that he does not know of any work 
 
         that he could perform.  He has looked for some work but found 
 
         none.  He stated that his day to day activities include sitting 
 
         in a recliner for 13 to 17 hours per day.  He expressed 
 
         difficulty getting out of bed, dressing, brushing his teeth, 
 
         getting up from the toilet or taking a bath.  He stated that he 
 
         had some residual discomfort following the 1981 injury, but that 
 
         the major change in his condition occurred in September, 1985.  
 
         Claimant did drive himself to and from the Mayo Clinic and stated 
 
         that he can mow his lawn.  He also performs other activities and 
 
         chores about his home on occasion.
 
         
 
              Claimant testified that he used a large amount of sick leave 
 
         following his 1984 surgery.  He stated that his employment at the 
 
         Iowa State Penitentiary has been terminated and that since June 
 
         of 1986 he has paid all his own medical insurance premiums.
 
         
 
              Debra Lowe, claimant's wife during the past seven and 
 
         one-half years, testified regarding claimant's injuries.  She 
 
         stated that the difference in his physical abilities has existed 
 
         since 1981.  She generally confirmed claimant's testimony 
 
         regarding his abilities and limitations.
 
         
 
              Frank Lowe, claimant's father, testified that claimant 
 
         currently does not seem able to get around.  He felt that he 
 
         would be unable to drive a tractor.  He testified that, prior to 
 
         claimant's injuries, he had on occasion helped at the.family 
 
         farm, but had not subsequently.
 
         
 
              Betty Lowe, claimant's mother, testified that claimant was 
 
         physically limited, but that he hadn't driven a tractor on the 
 
         farm since 1978 or 1979 and hadn't helped with chores since he 
 
         was a child.
 
         
 
              William Haley, claimant's father-in-law, testified that 
 

 
         
 
         
 
         
 
         LOWE V. IOWA STATE PENITENTIARY
 
         Page   4
 
         
 
         
 
         claimant currently does little like he used to.  He stated that 
 
         claimant had ceased going fishing, walking, climbing stairs, 
 
         lifting, moving heavy things or engaging in sports at family 
 
         gatherings.   He stated that claimant appeared to be in great 
 
         pain last Christmas.
 
         
 
              Claimant has been seen by a variety of physicians and 
 
         subjected to a variety of diagnostic procedures.  No consensus 
 
         has been reached regarding the physiological cause of claimant's 
 
         complaints.  Ian D. Hay, a consultant in endocrinology and 
 
         internal medicine at the Mayo Clinic, reported a diagnosis of 
 
         left thigh adductor tendonitis which was expected to improve 
 
         (defendants' exhibit A).  Narayana S. Ambati, M.D., chief of 
 
         urology at the Veterans Administration Medical Center in Fresno, 
 
         California, and formerly an associate professor of urology at the 
 
         University of Iowa, indicated that any disability should be 
 
         temporary and that recovery should be permanent (defendants' 
 
         exhibit B).  Roger B. Traycoff, M.D., in a report dated January 
 
         21, 1986, stated that the results of diagnostic tests were 
 
         consistent with denervation of either the genitofermoral or 
 
         ilioinguinal nerves (claimant's exhibit 11).
 
         
 
              John P. Allen, in a report of November 11, 1986, found 
 
         claimant to have subjective complaints of pain with a guarded 
 
         prognosis for improvement.  He found no compelling evidence that 
 
         claimant was limited and observed claimant to be able to walk in 
 
         the room, sit down, dress and undress.  He felt that claimant was 
 
         able to be employed, but that such should be a light duty type of 
 
         employment.  Dr. Allen felt that further follow-up treatment to 
 
         diagnose claimant's condition was warranted (defendant's 
 
         exhibitEF).
 
         
 
              Dr. Pawar felt that tendonitis is often a result of injury, 
 
         that it could result from being kicked and that claimant's 
 
         current condition is directly related to being kicked on 
 
         September 26, 1985 (claimant's exhibit 23, pages 24 and 43-58).  
 
         Dr. Pawar felt that claimant has at least an 80% disability 
 
         (claimant's exhibit 23, page 23).  On another occasion, he 
 
         indicated that claimant was totally disabled (claimant's exhibit 
 
         12).
 
         
 
              The Illinois Department of Rehabilitation Services has 
 
         declined to provide services to claimant as they felt that he did 
 
         not exhibit any rehabilitation potential (claimant's exhibit 
 
         20).
 
         
 
              Claimant was evaluated by Marian S. Jacobs, a qualified 
 
         vocational consultant.  Jacobs concluded that Lowe has 
 
         demonstrated skills that transfer to a variety of jobs classified 
 
         as light or sedentary work, but that in view of the nature of his 
 
         pain, there are few, if any, jobs available to him.  Jacobs 
 
         further concluded that Lowe may expect to earn approximately 
 
         $3.50 per hour in a job if he were successful in obtaining 
 
         employment (claimant's exhibit 24, pages 7 and 8).
 
         
 
              Claimant submitted bills for the following medical 
 
              services:
 
         
 
                   Mayo Clinic             $1,938.40   (exhibit 14)
 

 
         
 
         
 
         
 
         LOWE V. IOWA STATE PENITENTIARY
 
         Page   5
 
         
 
         
 
                   Memorial Hospital          631.65   (exhibit 18)
 
                   Memorial Hospital            5.00   (exhibit 19)
 
                   Springfield Clinic          30.00   (exhibit 21)
 
                   Memorial Medical Center    314.04   (exhibit 22)
 
                   Total                   $2,919.09
 
         
 
              Claimant also seeks to recover costs including fees from 
 
         Cheryl Newman Liles, Certified Shorthand Reporter, in the amount 
 
         of $287.00 for reporting and transcribing the deposition of Dr. 
 
         Pawar (claimant's exhibit 25).
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              In the prehearing report, the parties stipulated to the 
 
         occurrence of claimant's 1984 and 1985 injuries.  There was no 
 
         stipulation ' however, regarding the occurrence of the 1981 
 
         injury.  Claimant's testimony in that regard is well corroborated 
 
         by medical records and is accepted as correct.  It is therefore 
 
         found that claimant did sustain an injury which arose out of and 
 
         in the course of his employment when he was kicked in the groin 
 
         by an inmate on or about June 11, 1981.
 
         
 
              No claim is made for temporary total disability or healing 
 
         period with regard to the 1981 and 1984 injuries.  When claimant 
 
         returned to work following the 1981 injury there was no 
 
         indication that any permanent disability resulted and none 
 
         appears at this time.  The employer's liability for the 1981 
 
         injury has been fully satisfied.
 
         
 
              Claimant's period of recuperation following the 1984 injury 
 
         was somewhat extended.  A surgical procedure was performed.  
 
         Claimant nevertheless returned to work without any apparent 
 
         permanent restrictions with regard to his physical activities.  
 
         Dr. Pawar indicated that claimant had complete relief of his 
 
         pain.  There is no satisfactory evidence that any degree of 
 
         permanent disability resulted from the 1984 injury.
 
         
 
              The bulk of claimant's problems seem to have originated at 
 
         the time of the 1985 injury.  Based upon the testimony from Dr. 
 
         Pawar and the timing and sequence of events it is found that the 
 
         injury of September 26, 1985 is a proximate cause of the extended 
 
         healing period and permanent partial disability with which 
 
         claimant is afflicted.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 26, 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              Healing period runs until the earlier of a return to work, 
 
         recuperation to the point that the employee is medically capable 
 
         of returning to substantially similar employment, or it is 
 
         medically indicated that significant improvement from the injury 
 

 
         
 
         
 
         
 
         LOWE V. IOWA STATE PENITENTIARY
 
         Page   6
 
         
 
         
 
         is not anticipated [85.34(1)] .
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.   Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              The medical practitioners have not reached a consensus 
 
         regarding the nature or source of claimant's physical ailments.  
 
         Their opinions range from total disability to no disability 
 
         whatsoever.  The diagnoses range from genitofemoral neuropathy to 
 
         adductor tendonitis.  Neither of those two conditions is 
 
         inherently the type of thing which would necessarily produce 
 

 
         
 
         
 
         
 
         LOWE V. IOWA STATE PENITENTIARY
 
         Page   7
 
         
 
         
 
         total disability.  Dr. Traycoff felt that there was a 
 
         physiological basis for claimant's complaints.  The Minnesota 
 
         Multiphasic Personality Inventory provided no indication of 
 
         malingering.  The existence of claimant's complaints of pain is 
 
         found to be supported by the objective medical evidence in the 
 
         record.  The severity, however, is not as well established.  
 
         Claimant has refused offered tests or attempts to relieve his 
 
         pain.  It would normally be expected that a person in severe pain 
 
         would actively seek relief, particularly through procedures such 
 
         as nerve blocks which have little chance of producing any further 
 
         permanent impairment.  The drive from southern Iowa to Rochester, 
 
         Minnesota in one day would be a substantial achievement.  Mowing 
 
         the lawn, while not necessarily particularly strenuous, seems to 
 
         be a physical activity that is greater than claimant's admitted 
 
         capabilities.  It is certainly understandable that claimant would 
 
         not want to return to work of the nature he performed at the 
 
         penitentiary which subjected him to abuse and attacks from 
 
         inmates.  This does not, however, constitute a basis for total 
 
         disability.  Claimant urged application of be odd-lot doctrine.  
 
         The evidence in the case, however, does not constitute a prima 
 
         facie showing of total disability.  Even if such a showing were 
 
         made the evidence from Dr. Allen and Marian Jacobs rebuts any 
 
         claim of total disability under the odd-lot doctrine or 
 
         otherwise.  The evidence from Marian Jacobs and Dr. Allen is 
 
         relied upon as being the most accurate in the record when 
 
         determining claimant's industrial disability.  When all the 
 
         factors of disability are considered it is found that claimant 
 
         has a 40% permanent partial disability when the same is evaluated 
 
         industrially.  It is further found that claimant's entitlement to 
 
         healing period ended on July 1, 1986, the approximate date at 
 
         which the therapy recommended by the Mayo Clinic was discontinued 
 
         and subsequent to which claimant has not entered into any active 
 
         course of medical treatment.  No significant improvement in his 
 
         condition appears to have occurred or to have been expected 
 
         subsequent to July 1, 1986.
 
         
 
              Defendants seek credit under the plan document for long term 
 
         disability (defendants' exhibit C).  The credit under section 
 
         85.38(2) is an affirmative defense which must be raised and 
 
         proved by the defendant.  Such was successfully done in this 
 
         case.  Section 13 of the plan document, which is entitled 
 
         Scheduled Benefits, contains the following statement:
 
         
 
              MONTHLY INCOME.  The monthly income which accrues under 
 
              this Plan Document for any month, because of a Person's 
 
              total disability, shall be his Scheduled Monthly Income 
 
              Benefit less any payments for that month for which he 
 
              and any of his dependents are eligible to receive 
 
              under... Workers' Compensation, any other state 
 
              sponsored sickness or disability benefit payable, and 
 
              other group disability benefit for which the Person is 
 
              or becomes eligible.
 
         
 
         Exhibit C clearly shows that the group plan is one which 
 
         qualifies for credit under the provisions of section 85.38(2).of 
 
         the code.  The plan is provided by the employer without cost to 
 
         the employees, and official notice is taken of that fact since it 
 
         is a common benefit provided to all state employees, including 
 
         the undersigned.  The terms of the plan document provide a 
 

 
         
 
         
 
         
 
         LOWE V. IOWA STATE PENITENTIARY
 
         Page   8
 
         
 
         
 
         reduction in the amount paid by the group plan for amounts paid 
 
         by workers' compensation.  That reduction clearly satisfies the 
 
         second requirement of the statute since it prevents payment of 
 
         both full workers' compensation and full group benefits.  
 
         Defendants' assertion that the deputy industrial commissioner who 
 
         hears the case has no jurisdiction to determine this issue is 
 
         without merit since jurisdiction is fully provided in Chapter 86 
 
         of the code.  The employer's argument that a double benefit would 
 
         result if group benefits were not applied for until after the 
 
         workers' compensation case was determined is also without merit.  
 
         Under those circumstances, the appropriate deduction for the 
 
         amount of the workers' compensation benefit would be made or 
 
         taken by the group LTD carrier.  In some cases, the workers' 
 
         compensation benefit may completely satisfy the group disability 
 
         income benefit and the group carrier would not make payment over 
 
         and above the amount of the workers' compensation.   Accordingly, 
 
         the employer is entitled to full credit for the $9,733.29 of 
 
         group disability income benefits paid prior to January 4, 1987 
 
         and for any paid subsequent thereto.  Claimant's medical expenses 
 
         in the amount of $2,919.09, as shown in exhibits 15, 18, 19, 21 
 
         and 22, are all shown to have been related to his complaints 
 
         resulting from the groin injury and are the responsibility of the 
 
         employer.  It should be noted, however, that the defendant is not 
 
         entitled to credit for amounts paid by claimant's medical 
 
         insurance for services provided subsequent to June 1, 1986 when 
 
         the defendant ceased providing part of the cost of that insurance 
 
         coverage.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Donald Lowe was injured on September 26, 1985 when he 
 
         was kicked in the groin by an inmate.
 
         
 
              2.  Following the injury claimant was medically incapable of 
 
         performing work in employment substantially similar to that he 
 
         performed at the time of injury until July 1, 1986 when it was 
 
         medically indicated that further significant improvement from the 
 
         injury was not anticipated.
 
         
 
              3.  Claimant has failed to establish his credibility with 
 
         regard to the severity of his complaints although the existence 
 
         of complaints has been established.
 
         
 
              4.  The physiological source of claimant's pain has not been 
 
         identified, but objective evidence of physiological abnormalities 
 
         exists.
 
         
 
              5.  Claimant's medical expenses in the amount of $2,919.09 
 
         were incurred for treatment resulting from the injury of 
 
         September 26, 1985.
 
         
 
              6.  Claimant has suffered a substantial loss of earning 
 
         capacity as a result of the injury and is limited to light work.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 

 
         
 
         
 
         
 
         LOWE V. IOWA STATE PENITENTIARY
 
         Page   9
 
         
 
         
 
              2.  The injury claimant sustained on September 26, 1985 is a 
 
         proximate cause of his inability to return to his employment with 
 
         the Iowa State Penitentiary, of the medical expenses incurred as 
 
         a result of the injury and of the permanent partial disability 
 
         with which he is currently afflicted.
 
         
 
              3.  When evaluated in industrial terms, claimant has a 40% 
 
         permanent partial disability.
 
         
 
              4.  Defendants are entitled to credit for amounts paid under 
 
         the group long term disability plan.
 
         
 
                                     ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant an 
 
         additional twenty-nine and five-sevenths (29 5/7) weeks of 
 
         compensation for healing period at the stipulated rate of two 
 
         hundred twenty-two and 64/100 dollars ($222.64) per week 
 
         commencing December 6, 1985.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant two 
 
         hundred (200) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of two hundred twenty-two and 
 
         64/100 dollars ($222.64) per week commencing July 2, 1986.
 
         
 
              IT IS FURTHER ORDERED that defendants receive credit for 
 
         amounts paid under the State of Iowa Long Term Disability Plan in 
 
         the stipulated amount of nine thousand seven hundred thirty-three 
 
         and 29/100 dollars ($9,733.29) computed as of January 4, 1987 and 
 
         credit for all amounts subsequently paid under such plan.  The 
 
         credit is to be applied on a week by week basis to the healing 
 
         period and permanent partial disability awarded in this 
 
         decision.
 
         
 
              IT IS FURTHER ORDERED that any amounts remaining past due, 
 
         after application of the credits provided herein, shall be paid 
 
         in a lump sum together with interest pursuant to section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the claimant for 
 
         the following medical expenses:
 
         
 
         
 
         
 
         
 
                  Mayo Clinic              $1,938.40
 
                  Memorial Hospital           631.65
 
                  Memorial Hospital             5.00
 
                  Springfield Clinic           30.00
 
                  Memorial Medical Center     314.04
 
                  Total                    $2,919.09
 
         
 
              IT IS FURTHER ORDERED that costs of this proceeding are 
 
         assessed against defendants including court reporter fees for 
 
         Cheryl Newman Liles in the amount of two hundred eighty-seven 
 
         dollars ($287.00).
 
         
 
         
 
                   Signed and filed this 8th day of July, 1987.
 
         
 

 
         
 
         
 
         
 
         LOWE V. IOWA STATE PENITENTIARY
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, Iowa 52632
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Hoover State Office Building
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           1108, 1402.30, 1402.40, 
 
                                           1403.30
 
                                           1701, 1802, 1803, 4100
 
                                           Filed July 8, 1987
 
                                           MICHAEL G. TRIER
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         DONALD LOWE,
 
                                                 File  Nos. 673326
 
              Claimant
 
                                                            776977
 
                                                            805718
 
         VS.
 
         
 
         IOWA STATE PENITENTIARY,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and,
 
         
 
         STATE OF  IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         1108, 1402.30, 1402.40, 1403.30, 1701, 1802, 1803, 4100
 
         
 
              Claimant's injuries   were well established, but the extent 
 
         of disability to be expected from such injuries was much less 
 
         than that which was claimed.  The odd-lot doctrine was held to 
 
         not place claimant into the category of total disability.  
 
         Claimant awarded healing period and 40% permanent partial 
 
         disability.  The employer was granted credit for the group long 
 
         term disability plan payments where a copy of the plan document 
 
         was offered into evidence.  Official notice was taken of the fact 
 
         that the State of Iowa contributes toward the cost of its group 
 
         LTD plan.