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.