Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ALTON GUIDRY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  730004
 
            SWIFT INDEPENDENT PACKING,    :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Alton 
 
            Guidry, claimant, against Swift Independent Packing Company, 
 
            employer, and National Union Fire Insurance Company, 
 
            insurance carrier, defendants for benefits as the result of 
 
            an injury that occurred on March 25, 1983.  The hearing was 
 
            held in Des Moines, Iowa, on June 28, 1989, and the case was 
 
            fully submitted at the close of the hearing.  Claimant was 
 
            represented by Dennis M. McElwain.  Defendants were 
 
            represented by Judith Ann Higgs.  The record consists of the 
 
            testimony of Alton Guidry, claimant; Anita Howell, 
 
            vocational rehabilitation specialist; claimant's exhibits 1 
 
            through 87 and defendants' exhibits A through C.  The deputy 
 
            ordered a transcript of the hearing.  Both attorneys 
 
            submitted excellent posthearing briefs.
 
            
 
                                    stipulations
 
            
 
                 The parties stipulated that claimant sustained an 
 
            injury on March 25, 1983, which arose out of and in the 
 
            course of employment with employer and that the injury was 
 
            the cause of temporary disability.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant is entitled to temporary disability 
 
            benefits, and if so, the extent of benefits to which he is 
 
            entitled.
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the extent of benefits to which he is 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            entitled.
 
            
 
                 Whether claimant is entitled to certain medical 
 
            benefits under Iowa Code section 85.27.
 
            
 
                   entitlement to temporary disability benefits
 
            
 
                 Claimant is entitled to 262.571 weeks of healing period 
 
            benefits.
 
            
 
                 Claimant testified that while working night cleanup he 
 
            was washing cans with a pressure hose when his, "back went."  
 
            He reported it to the foreman.  This was Thursday, March 24, 
 
            1983.  He attempted to work the following night, Friday, 
 
            March 25, 1983.  He indicated that he started to work, but 
 
            the foreman sent him home because he would have to do 
 
            climbing and other strenuous work (transcript pages 25-27).  
 
            He said the injury occurred suddenly when he was lifting the 
 
            buckets up and washing them (exhibit C, p. 17).  Ever since 
 
            the injury, he has had pain in his back that shoots down 
 
            both legs (ex. C, p. 18).  He testified that he went to see 
 
            the chiropractor on Saturday morning, March 26, 1983 (ex. C, 
 
            p. 26).  Kurt Vollers, D.C., confirmed that the accident 
 
            date was March 24, 1983, and that he first treated claimant 
 
            on March 26, 1983 (ex. 1).  Therefore, claimant's healing 
 
            period should begin on the first date that he was unable to 
 
            perform his job which is March 25, 1986.  
 
            
 
                 Dan M. Rhodes, M.D., at the Morningside Mercy Medical 
 
            Park, employer's physician, ordered bed rest on March 29, 
 
            1983.  Dr. Rhodes and John Redwine, M.D., also of the 
 
            Morningside Clinic, continued claimant off work and 
 
            eventually referred claimant to John Dougherty, M.D., an 
 
            orthopedic surgeon, on April 11, 1983 (exs. 3-9).  Dr. 
 
            Dougherty obtained an EMG, a myelogram, and a discogram 
 
            (exs. 26-30).  On October 5, 1983, Dr. Dougherty performed a 
 
            hemilaminectomy of L4/5 and L5/S1 with removal of disc space 
 
            and a spinal fusion from L4 to the sacrum.  The donor site 
 
            was the left ilium.  He further described this as a 
 
            bilateral sacral fusion with bilateral transverse process 
 
            fusion (ex. 31, p. 5).  Claimant testified that the day 
 
            after the surgery, his legs became cold, real cold, ice 
 
            cold, and they atrophied (tr. pp. 34-37).  Later he 
 
            developed cramps in his legs and they turned black (tr. pp. 
 
            41-43).  On April 12, 1984, Dr. Dougherty confirmed that his 
 
            left leg was atrophied and remains cold (ex. 17).  On 
 
            January 8, 1985, Dr. Dougherty recommended an evaluation at 
 
            the Mayo Clinic because of the atrophy of the left leg and 
 
            coldness in the left leg (ex. 20).  On August 13, 1985, Dr. 
 
            Dougherty debated whether a second surgery or a pain clinic 
 
            might improve claimant's condition.  He did not actually 
 
            state that claimant had reached maximum medical recovery, 
 
            but said it was a "possibility" and assessed a 20 to 25 
 
            percent permanent partial impairment rating to the body as a 
 
            whole.  He restricted claimant from significant lifting, 
 
            excessive bending, and sitting in one spot for prolonged 
 
            periods of time (ex. 23).  On November 18, 1985, Dr. 
 
            Dougherty said the pain center was discussed at Mayo Clinic 
 
            and it was still a feasible option for claimant's continued 
 
            complaints of back and leg pain (ex. 24).  On March 5, 1986, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            he said that the pain clinic was still probably worth a try, 
 
            but he ruled out further surgical intervention on that date.
 
            
 
                 Doctors at the Mayo Clinic, B.F. Morrey, M.D., an 
 
            orthopedic surgeon and M.J. Ebersold, M.D., a neurosurgeon, 
 
            did not believe that additional surgery would benefit 
 
            claimant.  On October 4, 1985, Dr. Morrey stated, "In Mr. 
 
            Guidry's particular instance, we do feel as though he has a 
 
            slight pseudarthrosis; that means, that not all the back 
 
            fusion has taken solidly."  (ex. 46).  This did not explain 
 
            the back pain and like Dr. Ebersold, he did not recommend a 
 
            second surgical procedure (exs. 43-46).  Dr. Morrey added, 
 
            "It is difficult to know what will occur in time, but I 
 
            would generally feel as though some improvement in time 
 
            should be expected." (ex. 46).  
 
            
 
                 Claimant testified that he requested, and received 
 
            approval, from the insurance carrier to see Maurice 
 
            Margules, M.D., in Council Bluffs.  Claimant added, "...I 
 
            was looking to try to get better so I went to see him." (tr. 
 
            p. 39).  Dr. Margules, a neurosurgeon, in consultation with 
 
            Robert D. Sellers, M.D., a vascular surgeon, hospitalized 
 
            claimant from March 30, 1986 to April 8, 1986.  Dr. Margules 
 
            stated, "Patient at this time is unable to perform any 
 
            sustained physical exertion.  He is unable to sit for more 
 
            than a short period of time without pain, unable to stand 
 
            without pain, unable to walk without pain, and he can do 
 
            only this type of exertion for a short period of time."  
 
            (exs. 47 & 49).  
 
            
 
                 An aortogram on April 4, 1986, disclosed (1) moderate 
 
            narrowing of common iliac artery, left; (2) minor 
 
            arteriosclerotic narrowing of distal abdominal aorta; and 
 
            (3) minimal narrowing at origin of left anterior tibial 
 
            artery.   (ex. 53; ex. 60, p. 2).  Claimant was hospitalized 
 
            again a short time later on June 16, 1986, for claudication, 
 
            left leg, following previous transfemoral angioplasty (ex. 
 
            61).  Dr. Sellers testified that following the balloon 
 
            angioplasty, "There was some subsequent improvement but he 
 
            continued to have problems, so that I then surgically 
 
            reconstructed the artery by a aortoiliac endarterectomy that 
 
            was done on January 29th, 1988." (ex. 81, p. 8; ex. 65).
 
            
 
                 On December 23, 1986, March 24, 1987 and July 10, 1987, 
 
            Dr. Sellers reported he continued to treat claimant for 
 
            coolness in his left leg, shooting pains to his foot, and 
 
            circulatory problems involving his legs (exs. 70-72).  On 
 
            July 10, 1987, Dr. Sellers said claimant was still under his 
 
            care for a circulatory problem and coolness in his left leg.  
 
            He stated he would not rate the neurological problem and 
 
            referred the insurance carrier to Dr. Margules.  Dr. Sellers 
 
            did rate the arterial problem.  He stated, "At this time, I 
 
            would estimate that he is having 5-10% impairment of the 
 
            whole person on the basis of the circulatory problem.  To 
 
            this the neurological component would have to be added."  
 
            (ex. 72).  On January 6, 1988, Dr. Sellers noted that he 
 
            arranged an noninvasive arterial study in an attempt to 
 
            determine whether the back injury was the cause of his 
 
            arterial problem (ex. 73).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 On February 4, 1988, Dr. Sellers stated, "It is my 
 
            impression that the arteriosclerotic problems are 
 
            coincidental to his work injury."  (ex. 75).  In his 
 
            deposition, Dr. Sellers explained, "What I am attempting to 
 
            say is that I don't think that his work injury caused the 
 
            problem, but rather, that the subsequent treatment of his 
 
            work injury aggravated an underlying and pre-existing 
 
            problem." (ex. 81, p. 34).  
 
            
 
                 On March 2, 1988, Dr. Sellers stated he saw claimant 
 
            after the aortoiliac endarterectomy and, "He is recovering 
 
            very satisfactorily at this time.  His wound has healed and 
 
            he is walking better.  He continued to have some back 
 
            problems."  (ex. 76).
 
            
 
                 Dr. Sellers testified that he performed a postsurgical 
 
            noninvasive vascular study on April 5, 1988, and the test 
 
            was within normal limits.  Therefore, he considered the 
 
            surgery successful and, "More importantly, it was successful 
 
            because Mr. Guidry felt better and functioned better." (ex. 
 
            81, p. 25).  Thus, claimant attained maximum medical 
 
            improvement on April 5, 1988.  In fact the surgery was so 
 
            successful that the 5 to 10 percent impairment rating for 
 
            the circulatory problem which he gave on July 10, 1987, was 
 
            revoked.  It was no longer correct because claimant did not 
 
            now have any disability related to the circulatory problem 
 
            (ex. 81, pp. 25 & 26).  
 
            
 
                 Therefore, from the foregoing evidence it is determined 
 
            that claimant is entitled to healing period benefits from 
 
            March 25, 1983, the day after the injury when claimant first 
 
            became unable to work, until April 5, 1988, when claimant 
 
            was relieved of the vascular problem which had caused 
 
            circulatory problems in the lower extremities of coldness, 
 
            blackness, and atrophy which symptoms first occurred the day 
 
            after his back surgery.  This is a period of 262.571 weeks.  
 
            
 
                 On April 6, 1988, Dr. Sellers wrote:
 
            
 
                 Non-invasive vascular studies carried out on Mr. 
 
                 Alton Guidry on April 5, 1988, showed a clearcut 
 
                 improvement when compared to those of January 12, 
 
                 1988.  These studies now are normal both at rest 
 
                 and after exercise.
 
            
 
                 While Mr. Guidry is having some occasional 
 
                 abdominal discomfort, he is basically getting 
 
                 along remarkably better than he was before his 
 
                 operation.
 
            
 
            (Exhibit 78)
 
            
 
                 Defendants contend that the healing period should end 
 
            on August 13, 1985, when Dr. Dougherty assigned an 
 
            impairment rating.  However, Dr. Dougherty could only state 
 
            on that date that maximum medical recovery was only a 
 
            possibility.  He stated, "With regard to reaching his 
 
            maximum recovery, which is, I think, a possibility here, 
 
            then I would feel he's probably sustained 20-25% permanent 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            partial disability of his body." (ex. 23, p. 2).  In the 
 
            same letter, Dr. Dougherty seriously reconsidered a complete 
 
            new reevaluation and a second surgery and secondly he 
 
            considered sending claimant to a pain center which are 
 
            indications that he did not, in fact, truly believe that 
 
            claimant had reached maximum medical recovery.  The second 
 
            evaluation and surgery or the pain center might yet still 
 
            improve his condition.  Moreover, even though the physicians 
 
            at the Mayo Clinic ruled out a second surgery, they did 
 
            agree that a pain clinic might be helpful (exs. 43-46).  The 
 
            main reason that justifies the long healing period in this 
 
            case is the fact that claimant developed the circulatory 
 
            problems in his legs immediately after the back surgery and 
 
            the cause of the problem was not diagnosed or corrected 
 
            until Dr. Margules called in Dr. Sellers who eventually 
 
            alleviated the condition according to his statement on April 
 
            5, 1988.  The evidence from the responses of Dr. Margules 
 
            and Dr. Sellers confirm the fact that claimant had not 
 
            reached the point where it was "medically indicated that 
 
            significant improvement from the injury is not anticipated."  
 
            Iowa Code section 85.34(1).
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 It is determined that the injury of March 24, 1983, was 
 
            not the cause of any permanent vascular problem based on the 
 
            testimony of Dr. Sellers related in the foregoing section.  
 
            
 
                 It is determined that the injury of March 24, 1983, was 
 
            the cause of permanent disability to claimant's back and 
 
            legs.
 
            
 
                 The parties stipulated that the type of permanent 
 
            disability is industrial disability to the body as a whole.
 
            
 
                 Dr. Dougherty assessed a 20-25 percent permanent 
 
            partial disability of his body which is interpreted to mean 
 
            a permanent impairment to the body as a whole (ex. 23, p. 
 
            2).  Dr. Ebersold, at the Mayo Clinic, determined that 
 
            claimant had a 15 percent permanent partial disability which 
 
            is interpreted as a 15 percent permanent impairment to the 
 
            body as a whole (ex. 45).  Dr. Morrey, at the Mayo Clinic, 
 
            concurred in a 15 percent permanent partial impairment of 
 
            the body which is interpreted as a 15 percent permanent 
 
            impairment to the body as a whole (ex. 46).  Dr. Morrey 
 
            further stated that claimant's symptoms were quite real as 
 
            confirmed by the MMPI which was performed at their clinic 
 
            (ex. 43).  Dr. Morrey further imposed restrictions of no 
 
            heavy lifting, twisting or bending of more than 50 pounds as 
 
            a single bend to more than 20 pounds on a repetitive basis 
 
            (ex. 46).  Dr. Margules said, "Mr. Guidry has a partial 
 
            permanent physical disability which is rated at 25% of the 
 
            body as a whole." (ex. 57).  This too, is determined as a 
 
            permanent impairment rating rather than a disability rating.
 
            
 
                 On January 16, 1988, Dr. Margules stated, "It is our 
 
            opinion, at this time, that Mr. Guidry will not be able to 
 
            engage in any physical activity leading to gainful 
 
            employment.  This limitation, in our opinion, is permanent 
 
            in nature." (ex. 58).  This rating must be discounted 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            however, because it predates the successful vascular surgery 
 
            of Dr. Sellers on January 29, 1988.
 
            
 
                 With respect to causal connection, all of these doctors 
 
            proceeded on the history of the injury that occurred on 
 
            March 24, 1983, and all of the doctors were clearly 
 
            evaluating claimant for the disability which stemmed from 
 
            this injury.  No other cause was suggested by any of the 
 
            doctors or by any other evidence.  Claimant denied any prior 
 
            back injuries (tr. p. 14) and there is no evidence of any 
 
            prior back problems of any kind.  Furthermore, claimant 
 
            contended that when he transferred to the Sioux City plant 
 
            he was required to take a physical examination and indicated 
 
            that he would not have been granted a transfer if he had any 
 
            serious health problems (tr. p. 17).  Claimant's testimony 
 
            was not controverted, contradicted, rebutted or refuted.  
 
            
 
                 Consequently, it is determined that the injury of March 
 
            24, 1983, was the cause of claimant's permanent impairment 
 
            and permanent disability to his back and legs.
 
            
 
                 The restrictions imposed by Dr. Dougherty and Dr. 
 
            Morrey foreclosed claimant from returning to his previous 
 
            employment in the packing house as a janitor, butcher, and 
 
            night cleanup person, as well as, many of the easiest to 
 
            obtain and sometimes best paying jobs in the competitive 
 
            employment market.  Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218, 220 (Appeal Decision January 30, 1979); Rohrberg v. 
 
            Griffin Pipe Products Co., I Iowa Industrial Commissioner 
 
            Report 282 (1984).  Claimant's only prior employment was as 
 
            a janitor and delivery man for a pharmacy for five or six 
 
            years in his home town of Rayne, Louisiana, for which he was 
 
            paid $25 a week.  Thus, claimant has no transferrable skills 
 
            and whether he could obtain a job as a janitor, delivery man 
 
            or butcher within his restrictions imposed by Dr. Dougherty 
 
            and Dr. Morrey is questionable.
 
            
 
                 Claimant's inability to return to employer increases 
 
            his industrial disability because he was a stable career 
 
            employee of this employer from 1961 until the time of his 
 
            injury in 1983, a period of 22 years.  He started to work 
 
            for employer at the Kansas City plant in 1961 (tr. p. 13).  
 
            When that plant closed, he transferred to Stockton, 
 
            California, and moved his family to the new location (tr. 
 
            pp. 16 & 17).  When that facility closed, he transferred to 
 
            Rochelle, Illinois (tr. pp. 18 & 19).  When that plant 
 
            closed he transferred to Sioux City in 1981 (tr. p. 19).  
 
            The Sioux City plant then closed in 1986.  Claimant 
 
            testified:
 
            
 
                 A. Well, I figured I had a job at least until I 
 
                 was 65.  My future was pretty well made.  I had a 
 
                 good time at that plant and I was figuring on 
 
                 working until I was retirement age at Swift 
 
                 because it was a good company to work for.
 
            
 
                 Q.  Had you even considered any career 
 
                 alternatives?
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 A.  Well, I figured Swift would be a career for 
 
                 me.  I had stayed there that long.
 
            
 
                 Q.  Would there be any particular benefits that 
 
                 would accrue to you if you worked to age 65?
 
            
 
                 A.  Yeah, there would have.  Yeah, I would have 
 
                 had a pretty good pension coming from Swift.  I 
 
                 would have had 30 some years, close to 40 years.
 
            
 
                 Q.  Did you have an understanding approximately 
 
                 what that pension would have been?
 
            
 
                 A.  Yeah, it probably would have run me seven, 
 
                 eight hundred dollars probably, you know.
 
            
 
            (transcript page 23)
 
            
 
                 Whether claimant would have actually worked until 65 is 
 
            speculative, but nevertheless, claimant had established a 
 
            22-year work history of stable employment that was 
 
            permanently disrupted by this injury.  Umpress v. Armstrong 
 
            Rubber Co., file number 723184 (Appeal Decision filed August 
 
            27, 1987).
 
            
 
                 Claimant, born October 30, 1939, was 43 years old at 
 
            the time of the injury, 49 years old at the time of the 
 
            hearing, and 51 years old at the time of this decision.  
 
            Claimant's industrial disability is more severe because this 
 
            injury occurred at the peak of his earnings career which 
 
            was, in fact, a long-term stable earnings career.  Claimant 
 
            was earning $10.75 per hour at the time of the injury (ex. 
 
            A, p. 3; tr. pp. 18 & 19).  Becke v. Turner-Busch, Inc., 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            34 (Appeal Decision  1979); Walton v. B & H Tank Corp., II 
 
            Iowa Industrial Commissioner Report 426 (1981); McCoy v. 
 
            Donaldson Company, Inc., IAWC Decisions of the Iowa 
 
            Industrial Commissioner 400 (1989).
 
            
 
                 Claimant's industrial disability is further increased 
 
            by the fact that he attended a segregated parochial school 
 
            to eighth grade and a segregated high school through the 
 
            ninth grade and completed about one-half of the tenth grade 
 
            when he was forced to quit school because his wife got 
 
            pregnant and he got married and raised a family (tr. pp. 10 
 
            & 11).  Claimant had not obtained a GED nor had he received 
 
            any further training or education of any kind (tr. p. 12).  
 
            In addition, claimant is a black man and as such there are 
 
            some similarities with Guyton who was approximately 40 years 
 
            old, born in Mississippi and had only a limited education.  
 
            Guyton was found to be permanently and totally disabled 
 
            under the odd-lot doctrine, however, odd-lot is not one of 
 
            the issues to be determined in this case.  Guyton v. Irving 
 
            Jensen Co., 373 N.W.2d 101 (Iowa 1985).  
 
            
 
                 Retraining is one of the factors to be considered in 
 
            determining industrial disability.  Conrad v. Marquette 
 
            School, Inc., IV Iowa Industrial Commissioner Report 74, 89 
 
            (1984).  In this case, defendants offered claimant no 
 
            vocational rehabilitation of record.  Claimant testified 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            that a lady called him once and he told her he would be glad 
 
            to go to vocational rehabilitation or have someone come to 
 
            his home, but he, "...but I've never heard no more from 
 
            that." (tr. p. 55).  Claimant testified that he sought out 
 
            vocational rehabilitation on his own because he was trying 
 
            to get better and he didn't know whether he would be able to 
 
            return to his work at Swift, but the state agency told him 
 
            that he should wait until he completed the treatment he was 
 
            undergoing at that time (tr. pp. 56-58).  He stated he never 
 
            returned because he has never gotten any better (tr. pp. 58 
 
            & 59).
 
            
 
                 Claimant contends that he is permanently and totally 
 
            disabled.  Claimant testified that has not looked for any 
 
            work because he continues to have pain in his back and 
 
            shooting pain into his legs.  Claimant stated, "...It takes 
 
            me every day now just to survive.  Trying to make it is what 
 
            I'm doing because I'm not getting any better.  I don't 
 
            have--I can't look at no future anymore."  (tr. p. 59).  
 
            Claimant indicated that he would like to be employed in some 
 
            capacity, but:
 
            
 
                 ...My whole life has stopped.  This is what has 
 
                 happened.  My life has stopped.  My friends that I 
 
                 had, relationships that I had, the things that I 
 
                 used to do, I can't do anymore.  The relationships 
 
                 that I had with friends, fellow workers, that's 
 
                 all gone.  I'm isolated is what it is.  It's more 
 
                 of an isolation is what it is.
 
            
 
            (transcript pages 73 & 74)
 
            
 
                 None of the doctors have told claimant that he was 
 
            totally unable to work, with the exception of Dr. Margules, 
 
            but the circulation problem has been corrected since Dr. 
 
            Margules made that statement.  Dr. Dougherty and Dr. 
 
            Ebersold recommended that claimant would be helped if he 
 
            tried to return to a productive life, but this also occurred 
 
            at the time when claimant's leg was cold, turned black and 
 
            atrophied.  Considering the evidence in its entirety, it 
 
            would appear that claimant could perform some kinds of 
 
            limited work within the restrictions imposed by Dr. 
 
            Dougherty and Dr. Morrey.  It is difficult to determine the 
 
            true extent of claimant's disability because he has not 
 
            attempted any kind of work and it appears that some limited 
 
            work is possible.  Schofield v. Iowa Beef Processors, Inc., 
 
            II Iowa Industrial Commissioner Report 334, 336 (1981).
 
            
 
                 An employee making a claim for industrial disability 
 
            will benefit by showing some attempt to find work.  Hild v. 
 
            Natkin & Co., I Iowa Industrial Commissioner Report 144 
 
            (Appeal Decision 1981); Beintema v. Sioux City Engineering 
 
            Co., II Iowa Industrial Commissioner Report 24 (1981); Cory 
 
            v. Northwestern States Portland Cement Company, Thirty-third 
 
            Biennial Report of the Industrial Commissioner 104 (1976).  
 
            Claimant's contention that he is not able to perform any 
 
            work is not supported by any medical evidence after the 
 
            vascular problem was corrected by Dr. Sellers on April 5, 
 
            1988.  
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 In making a determination of industrial disability, it 
 
            is proper to take into consideration a claimant's plans for 
 
            retirement or early retirement.  Swan v. Industrial 
 
            Engineering Equipment Co., IV Iowa Industrial Report 353 
 
            (1984); McDonough v. Dubuque Packing Co., Vol. I no. 1, 
 
            State of Iowa Industrial Commissioner Decisions 152 (1984).  
 
            
 
                 Likewise, claimant's incentive and motivation to work 
 
            is a consideration in the determination of industrial 
 
            disability.  In this case, claimant testified that he 
 
            applied for and received social security disability benefits 
 
            in 1985 that were back dated to six months after the date of 
 
            injury in this case (tr. p. 51).  His continuing disability 
 
            was reevaluated or reviewed one time since his benefits 
 
            started and he continues to receive $735 a month in social 
 
            security disability benefits (tr. p. 52).  Claimant also 
 
            testified that when the plant closed in 1986 his employer 
 
            began paying him a disability pension in the amount of 
 
            $333.33 per month (tr. pp. 53 & 54).  This income is not too 
 
            far different from what claimant was earning when he was 
 
            working when the tax consequences on the two incomes are 
 
            compared.  Thus claimant did not have a great financial 
 
            incentive to work.  Furthermore, in 1986 and thereafter, 
 
            several of claimant's hospital admission records and other 
 
            histories showed that claimant stated that he was "retired" 
 
            (exs. 48, 40, 41 & 60).  At the same time there is evidence 
 
            of claimant's continued current physical disability because 
 
            Dr. Sellers continues to prescribe pain medications, 
 
            anti-inflammatory medications, antidepressant medications 
 
            and two circulatory medications.  Claimant takes all of 
 
            these pills daily (tr. pp. 47-49).
 
            
 
                 Thus, the industrial disability award for loss of 
 
            earnings capacity in this case is based upon a black male 
 
            citizen, with a ninth grade education obtained in segregated 
 
            schools in Louisiana, injured in his mid-forties at the peak 
 
            of his earnings career earing $10.75 per hour, who was a 
 
            stable 22-year career employee of employer with hopes for 
 
            normal company retirement, who is foreclosed from returning 
 
            to his former employment and most of the easy to obtain 
 
            employments in the competitive labor market because of his 
 
            work restrictions, who has had a bilateral spinal fusion 
 
            form L4 through S1 with continuing pain in his back and legs 
 
            who takes five different medications everyday.
 
            
 
                 Therefore, (1) based on all of the foregoing factors; 
 
            (2) all of the evidence introduced in this case; and (3) 
 
            considering all of the factors used to determined industrial 
 
            disability, Christensen v. Hagen, Inc., vol. I, no. 3, State 
 
            of Iowa Industrial Commissioner Decisions 529 (Appeal 
 
            Decision March 26, 1985); Peterson v. Truck Haven Cafe, 
 
            Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner 
 
            Decisions 654, 658 (Appeal Decision February 28, 1985); and 
 
            (4) applying agency expertise [Iowa Administrative Procedure 
 
            Act 17A.14(5)]; it is determined that claimant has sustained 
 
            a 65 percent industrial disability to the body as a whole.
 
            
 
                  causal connection-entitlement-medical expenses
 
            
 
                 It is determined that claimant is entitled to his 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            medical expenses in the amount of $18,593.02 which breaks 
 
            down as $3,576.50 for Dr. Sellers (ex. 85); $14,092.52 for 
 
            Jennie Edmundson Hospital (ex. 86); and $924 for Medical 
 
            Anesthesia Associates (ex. 87).
 
            
 
                 With respect to causal connection, Dr. Margules wrote, 
 
            "It is my opinion that the patient had pre-existing vascular 
 
            disease, which was aggravated by the trauma sustained on 
 
            March 25th, 1984, which has resulted in a thrombosis of the 
 
            Left common Iliac artery." (ex. 59).  Dr. Sellers wrote on 
 
            August 5, 1985, "As far as I can reconstruct his problems, 
 
            he had some underlying arterial sclerosis, and the injury 
 
            and subsequent hospitalization aggrevated [sic] this 
 
            problem." (ex. 68).  In his deposition, Dr. Sellers said he 
 
            made this statement upon a reasonable degree of medical 
 
            certainty and that his opinion had not changed since the 
 
            time it was given (ex. 81, pp. 17 & 18).  Dr. Sellers said 
 
            he had no clear explanation for the mechanism of the causal 
 
            connection, but suggests that it was caused by possibly 
 
            clotting or a hemorrhage into a lesion.  He found no 
 
            evidence of clotting, but felt that he could have 
 
            hemorrhaged into the plaque in his artery and that could be 
 
            the mechanism (ex. 81, pp. 19 & 20).  The doctor also 
 
            stated, "...But the subsequent arterial surgery and care was 
 
            needed for the circulatory problems, and the circulatory 
 
            problems do appear to have been aggravated by his 
 
            hospitalization at Marian Health Center for back surgery." 
 
            (ex. 81, p. 24).  Again, the doctor stated, "...Here what I 
 
            am attempting to say is that I don't think that his work 
 
            injury caused the problem but, rather, that the subsequent 
 
            treatment of his work injury aggravated an underlying and 
 
            pre-existing problem." (ex. 81, p. 34).  This dialogue then 
 
            transpired between defendants' counsel and Dr. Sellers:
 
            
 
                 Q.  But as I understand it, you're not able to 
 
                 tell us exactly what the mechanism of that 
 
                 aggravation might be?
 
            
 
                 A.  No, I'm not.
 
            
 
                 Q.  Okay.  That's just one of the things that 
 
                 medical science can't tell us at this point, is 
 
                 that right?
 
            
 
                 A.  Well, at this point in time, as I say, I can 
 
                 talk about what it might have been and perhaps if 
 
                 they'd put some dye in at the time as they were 
 
                 worried about his circulation at Marian, they 
 
                 might have been able to clarify that for us.
 
            
 
            (exhibit 81, p. 34)
 
            
 
                 An employer takes an employee as is, and therefore, 
 
            takes him subject to any active or dormant health 
 
            impairment.  Lawyer and Higgs, Iowa Workers' 
 
            Compensation--Law and Practice, section 4-2, page 21.  
 
            Likewise, defendants are responsible when treatment 
 
            aggravates or increases disability or medical treatment.  
 
            Lindeken v. Lowden, 229 Iowa 645, 295 N.W. 112 (1940); 
 
            Lawyer and Higgs, section 4.5, page 25.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 Defendants' counsel inquired as to why the 
 
            reconstruction surgery was needed after the balloon 
 
            angioplasty.  Dr. Sellers replied that balloon angioplasty 
 
            has a failure rate somewhere between 15 and 25 percent 
 
            because the narrowed area narrows back down again in the 
 
            healing process.  He stated that claimant also could have 
 
            had a further progression of his arterial disease.  His 
 
            expert medical opinion was as follows, "My own feeling is 
 
            that it probably was a failure of the balloon procedure 
 
            rather than any particular sudden change in his arterial 
 
            disease." (ex. 81, p. 35).  
 
            
 
                 Although Dennis Hayes, M.D., a general surgeon with a 
 
            specialty in vascular diseases, testified on behalf of 
 
            defendants, he did not controvert, contradict, refute or 
 
            rebut Dr. Sellers several statements on causation (ex. B).  
 
            It was Dr. Hayes' opinion that the single most contributing 
 
            factor to claimant's disease was smoking and that he felt 
 
            that smoking not only contributed, but was causative in 
 
            claimant's situation (ex. B, p. 18).  Dr. Hayes did agree 
 
            with Dr. Sellers that claimant's current complaints of pain 
 
            with the lower extremities was unrelated to atherosclerosis 
 
            and that he found no evidence of arterial occlusive disease 
 
            (ex. B, p. 28).
 
            
 
                 Wherefore, it is determined that claimant is entitled 
 
            to $18,593.02 in medical expenses for the charges of Dr. 
 
            Sellers, Jennie Edmundson Hospital and the anesthesiologist.
 
            
 
                                        
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant is entitled to 262.571 weeks of healing 
 
            period benefits for the period from March 25, 1983 to April 
 
            5, 1988.  Iowa Code section 85.34(1).
 
            
 
                 That the injury of March 24, 1983, was not the cause of 
 
            any permanent impairment or disability to claimant's 
 
            vascular system.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 
 
            18 N.W.2d 607 (1945).
 
            
 
                 That the injury of March 24, 1983, was the cause of 
 
            permanent disability to claimant's back and legs.  Bodish, 
 
            257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl, 236 Iowa 296 
 
            18 N.W.2d 607 (1945).
 
            
 
                 That claimant sustained a 65 percent industrial 
 
            disability to the body as a whole. Diederich v. Tri-City R. 
 
            Co., 219 Iowa 587, 593, 258 N.W. 899 (1935); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963).
 
            
 
                 That claimant is entitled to 325 weeks of permanent 
 
            partial disability benefits.  Iowa Code section 85.34(2)(u).
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 That the injury of March 24, 1983 to claimant's back 
 
            and his subsequent hospitalization and treatment aggravated 
 
            claimant's preexisting vascular disease and caused his 
 
            medical treatment and surgery by Dr. Sellers at Jennie 
 
            Edmundson Hospital and requisite anesthesiology services on 
 
            January 29, 1988.
 
            
 
                 That claimant is entitled to recover $3,576.52 for Dr. 
 
            Sellers; $14,092.52 for Jennie Edmundson Hospital and $924 
 
            for Medical Anesthesia Associates.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants are ordered to pay to claimant two 
 
            hundred sixty-two point five seven one (262.571) weeks of 
 
            healing period benefits at the stipulated rate of two 
 
            hundred fifty-five and 42/100 dollars ($255.42) per week in 
 
            the total amount of sixty-seven thousand sixty-five and 
 
            89/100 dollars ($67,065.89) commencing on March 25, 1983.
 
            
 
                 That defendants pay to claimant three hundred 
 
            twenty-five (325) weeks of permanent partial disability 
 
            benefits at the stipulated rate of two hundred fifty-five 
 
            and 42/100 dollars ($255.42) per week in the total amount of 
 
            eighty-three thousand eleven and 50/100 dollars ($83,011.50) 
 
            commencing on April 2, 1988.
 
            
 
                 That defendants are entitled to a credit for two 
 
            hundred sixty-six point four two nine (266.429) weeks of 
 
            workers' compensation benefits paid to claimant prior to 
 
            hearing at the rate of two hundred fifty-five and 42/100 
 
            dollars ($255.42) per week in the total amount of 
 
            sixty-eight thousand fifty-one and 30/100 dollars 
 
            ($68,051.30).
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That defendants pay to claimant or the provider of 
 
            medical services eighteen thousand five hundred ninety-three 
 
            and 02/100 dollars ($18,593.02) in medical expenses as 
 
            itemized above.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the cost 
 
            of the  transcript, are charged to defendants pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency, to include a form 2a showing 
 
            payments made to claimant prior to hearing, pursuant to rule 
 
            343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Harry Smith
 
            Attorney at Law
 
            PO Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St. STE 200
 
            PO Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          1802 51108.50 1402.40 52902 
 
                                          51402.40 51803 51804 52902 
 
                                          53100 51108.50 51402.60 52206 
 
                                          52501 52602 52700 52902
 
                                          Filed March 5, 1991
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            ALTON GUIDRY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  730004
 
            SWIFT INDEPENDENT PACKING,    :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1802
 
            Claimant awarded over five years of healing period benefits.  
 
            The day after his bilateral fusion of L4 through S1, 
 
            claimant experienced coldness, blackness and atrophy in his 
 
            legs.  Claimant saw several physicians over time, all with 
 
            the authorization of the insurance company, until eventually 
 
            a vascular surgeon diagnosed aortoiliac atherosclerosis with 
 
            claudication and performed an aortoiliac endarterectomy with 
 
            patch graphs.
 
            Claimant awarded healing period benefits from the day after 
 
            the injury when he first missed work until the day the 
 
            vascular surgeon said that the surgery was not only 
 
            successful medically, but claimant was restored to 
 
            functioning and feeling good again.
 
            
 
            51108350 1402.40 52902
 
            Claimant did not prove that the injury was the cause of his 
 
            atherosclerosis or vascular condition.  Furthermore, after 
 
            the vascular surgery, the surgeon revoked the permanent 
 
            impairment rating that he had awarded prior to the surgery 
 
            because the problem was corrected.  Claimant did prove that 
 
            the injury was the cause of permanent impairment and 
 
            disability to his back and legs.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            51402.40 51803 51804 52902 53100
 
            Claimant awarded 65 percent industrial disability.  
 
            Impairment ratings were 15, 15, 25 and 25 percent for the 
 
            back and legs.  Claimant was a black male, in his 
 
            mid-forties at the peak of his earnings capacity, with a 
 
            ninth grade education in segregated schools in Louisiana, 
 
            who as a stable 22-year employee of employer with hopes of 
 
            reaching normal retirement, earning $10.75 per hour at the 
 
            time of the injury, foreclosed from this employment and all 
 
            strenuous employments, who had three extensive surgeries, 
 
            who claimed to still have pain in his back and legs, who was 
 
            till taking five medications at the time of the hearing.  No 
 
            vocational rehabilitation was offered.  Claimant applied on 
 
            his own and was deferred because he was still under medical 
 
            treatment.
 
            Claimant might have been a permanent total disability case 
 
            except he applied for and received social security 
 
            disability benefits two years after the injury and began 
 
            receiving a company disability pension three years after the 
 
            injury.  He had not tried to perform any work.  None of the 
 
            doctors indicated he could not work at all.  There was no 
 
            vocational rehabilitation evidence.
 
            
 
            51108.50 51402.60 52206 52501 52602 52700 52902
 
            The vascular surgeon testified several times in several ways 
 
            that the injury was not the cause of claimant's 
 
            atherosclerosis, but that the injury, hospitalization and 
 
            treatment for his back aggravated his preexisting condition 
 
            and was the cause of the vascular treatment and surgery.  
 
            Claimant awarded $18,593.02 in medical expenses for the 
 
            vascular surgery that defendants refused to pay for.
 
            
 
 
 
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        KAY E. KONZ,
 
        
 
            Claimant,
 
        
 
        vs.                              File No. 730221 
 
        
 
        UNIVERSITY OF IOWA,                 A P P E A L
 
        
 
            Employer,                    D E C I S I O N
 
        
 
        and
 
        
 
        STATE OF IOWA,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
 
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant has appealed a denial of a motion to reconsider an order 
 
        by a deputy which had dismissed this matter for failure to 
 
        respond to a show cause order. Both parties filed appeal briefs. 
 
        Claimant has also filed an application for reinstatement. A 
 
        resistance to which was filed by defendant employer. Claimant 
 
        filed a reply to employer's resistance. The record on appeal 
 
        consists of the agency's file in this matter.
 
        
 
                                      ISSUE
 
        
 
        The real issue on appeal is whether the deputy correctly 
 
        dismissed this matter because claimant failed to respond to a 
 
        show cause order.
 
        
 
                                 REVIEW OF RECORD
 
        
 
        The record includes the following:
 
        
 
        March 20, 1985 - Claimant's original notice and petition filed 
 
        which alleged an injury date of March 21, 1983.
 
 
 
        June 25, 1985 - Claimant requested a continuance of the 
 
        prehearing conference because claimant's attorney would be out of 
 
        the country on the date set for the prehearing conference.
 
        
 
        KONZ V. UNIVERSITY OF IOWA
 
        Page 2
 
        
 
        
 
        August 20, 1985 - Claimant was ordered to show cause why the 
 
        matter should not be dismissed for failure to file a certificate 
 
        of readiness for prehearing conference as directed.
 
        
 
        June 11, 1986 - Claimant's attorney was not present for scheduled 
 
        prehearing conference.
 
        
 
        August 21, 1986 - The pretrial conference notes indicate that 
 
        both parties needed to complete discovery.
 
        
 
        July 9, 1987 - Claimant requested that the prehearing conference 
 

 
        
 
 
 
 
 
        scheduled for August 7, 1987 be continued for six months.
 
        
 
        February 9, 1988 - The agency issued a notice of automatic 
 
        dismissal for lack of prosecution. The notice stated that the 
 
        matter would be dismissed in thirty days unless good cause was 
 
        shown why it should not be dismissed.
 
        
 
        March 3, 1988 - Claimant filed a response to the notice of 
 
        automatic dismissal.
 
        
 
        July 18, 1988 - Claimant's counsel was not present for the 
 
        scheduled prehearing conference.
 
        
 
        July 28, 1988 - A deputy industrial commissioner issued an order 
 
        to show cause in which the parties were given twenty days to show 
 
        cause why sanctions should not be imposed.
 
        
 
        August 15, 1988 - An entry of appearance as attorney was filed on 
 
        behalf of claimant.
 
        
 
        September 7, 1988 - A deputy issued on order dismissing this 
 
        matter without prejudice because there was no response to the 
 
        show cause order.
 
        
 
        September 15, 1988 - Claimant filed a motion for reconsideration 
 
        of the order dated September 7, 1988.
 
        
 
        September 23, 1988 - The deputy denied the motion for 
 
        reconsideration.
 
        
 
        October 7, 1988 - Claimant filed a notice of appeal.
 
        
 
        December 7, 1988- Claimant filed an application for 
 
        reinstatement.
 
        
 
        December 28, 1988 - Defendant employer filed a resistance to the 
 
        application for reinstatement.
 
        
 
        KONZ V. UNIVERSITY OF IOWA
 
        Page 3
 
        
 
        
 
        January 10, 1989 - Claimant filed a reply to defendant employer's 
 
        resistance to claimant's application for reinstatement.
 
        
 
                                 APPLICABLE LAW
 
        
 
        Division of Industrial Services Rule 343-4.36 provides:
 
        
 
        If any party to a contested case or an attorney representing such 
 
        party shall fail to comply with these rules or any order of a 
 
        deputy commissioner or the industrial Commissioner, the deputy 
 
        commissioner or industrial commissioner may dismiss the action. 
 
        Such dismissal shall be without prejudice. The deputy 
 
        commissioner or industrial commissioner may enter an order 
 
        closing the record to further activity or evidence by any party 
 
        for failure to comply with these rules or an order of a deputy 
 
        commissioner or the industrial commissioner.
 
        
 
                                      ANALYSIS
 
        
 
        Claimant generally argues on appeal that there was good cause for 
 
        failure to respond to the show cause order and this matter should 
 
        have been allowed to proceed. Defendant employer generally argues 
 
        that there was no error in dismissing this matter. Division of 
 
        Industrial Services Rule 343-4.36 allows this agency to require 
 

 
        
 
 
 
 
 
        that parties prosecute contested cases within the jurisdiction of 
 
        the agency in a timely and orderly manner. In this Case, it is 
 
        clear from the record that this matter was not being timely 
 
        pursued. The matter was continued several times because 
 
        claimant's counsel did not appear at scheduled pretrial 
 
        conferences. On February 9, 1988 the agency went so far as to 
 
        inform the parties that this matter would be automatically 
 
        dismissed unless good cause was shown why it should not be 
 
        dismissed. On July 28, 1988 approximately only seven months after 
 
        the prior similar order, the parties were ordered to show cause 
 
        why this matter should not be dismissed. There was no response to 
 
        that show cause order. The matter was then dismissed. Claimant's 
 
        current counsel argues that there was good cause for failure to 
 
        respond to the show cause order. Claimant's prior counsel took no 
 
        action on the order and he failed to deliver it in a timely 
 
        manner to claimant's current counsel. It is clear that the 
 
        deputy's dismissal and motion denying reconsideration were 
 
        correct. The record is fraught with evidence of inactivity and 
 
        failure to prosecute. There was no timely response to the second 
 
        warning within a seven month period that this matter would be 
 
        dismissed unless good cause was shown otherwise. Claimant did 
 
        not, after the fact, demonstrate that there was good cause why
 
        this matter should not be dismissed. Therefore, claimant clearly 
 
        did not show the deputy erred in dismissing this matter. The 
 
        deputy dismissed this matter because claimant failed to respond 
 
        to
 
        
 
        KONZ V. UNIVERSITY OF IOWA
 
        Page 4
 
        
 
        
 
        the show cause order. The record also clearly indicates that 
 
        claimant did not respond timely to the show cause order.
 
        
 
        The discussion above disposes of the matter on appeal. However, 
 
        it should be noted that this decision should not be considered 
 
        support for the parties' argument that a dismissal pursuant to 
 
        Division of Industrial Services Rule 343-4.36 is analogous to a 
 
        default judgment pursuant to Iowa Rule of Civil Procedure 236.
 
        
 
        Claimant also seeks a reinstatement pursuant to Division of 
 
        Industrial Services Rule 343-4.34(3). The subrule provides:
 
        
 
        The action or actions dismissed may at the discretion of the 
 
        industrial commissioner and shall upon a showing that such
 
        dismissal was the result of oversight, mistake or other 
 
        reasonable cause, be reinstated. Applications for such 
 
        reinstatement, setting forth the grounds, shall be filed within 
 
        three months from      the date of dismissal.
 
        
 
        Claimant's application for reinstatement was filed in timely 
 
        compliance with that subrule.
 
        
 
        Claimant asserts in support of the application for reinstatement 
 
        that there was good cause for her failure to respond to a show 
 
        cause order which led to the dismissal of this matter. Claimant 
 
        argues that good cause existed because of problems of 
 
        transferring the case from one attorney to another necessitated 
 
        by the prior attorney assuming the position of mayor of Omaha.
 
        
 
        The record in this matter shows that claimant's current counsel 
 
        entered an appearance approximately two weeks after the show 
 
        cause order was issued and approximately three weeks before the 
 
        dismissal was ordered. The record also contains an affidavit of 
 
        claimant's prior counsel dated September 14, 1988 and filed 
 
        September 15, 1988 which states in relevant parts:
 

 
 
 
 
 
 
 
        
 
        3. During the pendency of this case, I became mayor of the city 
 
        of Omaha, upon the death of the former mayor.
 
        
 
        
 
        6. During the time period in which I was trying to complete the 
 
        turnover of my law practice, an Order to Show Cause (dated July 
 
        28, 1988) in this case was issued to my Red Oak, Iowa law office.
 
        
 
        7. The confusion and pace of my different duties led to my 
 
        inadvertently not taking any action on the Show Cause Order, and 
 
        also led to the order not
 
        
 
        KONZ V. UNIVERSITY OF IOWA
 
        Page 5
 
        
 
        
 
        being delivered to attorney David G. Hicks for him to take action 
 
        upon.
 
        
 
        The argument at page 4 of claimant's application that claimant's
 
        prior counsel did not have knowledge of the show cause order 
 
        appears to be inconsistent with the affidavit. Assuming for the 
 
        sake of argument that claimant's current counsel did not know of 
 
        the order, there is no reasonable cause given why this matter 
 
        should be reinstated. The information in this case reflects that 
 
        the show cause order was not heeded, first, because claimant's 
 
        prior counsel took no action on it and second, because he failed 
 
        to deliver it to claimant's current counsel. There is no good 
 
        explanation for these failures. Furthermore, there is 
 
        insufficient information in the record to conclude that the 
 
        alleged good cause for failure to respond to the show cause 
 
        order, namely prior counsel becoming mayor, was concurrent or 
 
        otherwise related in time to the show cause hearing. It should 
 
        also be noted that claimant's current application contains 
 
        arguments very similar to those rejected by a deputy industrial 
 
        commissioner in the ruling on motion to reconsider dated 
 
        September 23, 1988. That ruling was appealed to the undersigned 
 
        and the appeal was disposed of above. It is appropriate that 
 
        under all the circumstances of this case that the undersigned 
 
        exercise discretion and not reinstate this action.
 
        
 
        It has been determined that this matter should not be reinstated 
 
        pursuant to Division of Industrial Services Rule 343-4.34(3).
 
        Because this determination has been made it is unnecessary to 
 
        rule on arguments made by the parties whether the application for 
 
        reinstatement would be barred by the statute of limitations.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. On February 9, 1988 the agency issued a notice of automatic 
 
        dismissal for lack of prosecution. The notice stated that the 
 
        matter would be dismissed in thirty days unless good cause was 
 
        shown why it should not be dismissed.
 
        
 
        2. On July 28, 1988 a deputy industrial commissioner issued an 
 
        order to show cause in which the parties were given twenty days 
 
        to show why sanctions should not be imposed.
 
        
 
        3. Neither party responded to the July 28, 1988 agency order.
 
        
 
        4. On September 7, 1988 the deputy industrial commissioner issued 
 
        an order dismissing this matter without prejudice.
 
        
 
        5. The claimant failed to comply with an order of a deputy 
 
        industrial commissioner.
 

 
        
 
 
 
 
 
        
 
        KONZ V. UNIVERSITY OF IOWA
 
        Page 6
 
        
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        This matter should be dismissed without prejudice because 
 
        claimant failed to comply with an order of a deputy industrial 
 
        commissioner.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That this matter is dismissed without prejudice.
 
        
 
        That claimant's application for reinstatement is denied.
 
 
 
        That claimant pay all costs of this proceeding.
 
 
 
 
 
        Signed and filed this 31st day of January, 1989.
 
 
 
 
 
 
 
                                            DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         KAY E. KONZ,
 
         
 
             Claimant,
 
         
 
         VS.                                     File No. 730221
 
         
 
         UNIVERSITY OF IOWA,                       A P P E A L
 
         
 
             Employer,                           D E C I S I O N
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant has appealed a denial of a motion to reconsider an 
 
         order by a deputy which had dismissed this matter for failure to 
 
         respond to a show cause order.  Both parties filed appeal briefs.  
 
         Claimant has also filed an application for reinstatement.  A 
 
         resistance to which was filed by defendant employer.  Claimant 
 
         filed a reply to employer's resistance.  The record on appeal 
 
         consists of the agency's file in this matter.
 
         
 
                                      ISSUE
 
         
 
              The real issue on appeal is whether the deputy correctly 
 
         dismissed this matter because claimant failed to respond to a 
 
         show cause order.
 
         
 
                              REVIEW OF RECORD
 
         
 
              The record includes the following:
 
         
 
              March 20,1985 - Claimant's original notice and petition 
 
              filed which alleged an injury date of March 21, 1983.
 
         
 
              June 25, 1985 - Claimant requested a continuance of the 
 
              prehearing conference because claimant's attorney would be 
 
              out of the country on the date set for the prehearing 
 
              conference.
 
         
 
         
 
         
 
         
 
              August 20,1985 - Claimant was ordered to show cause why the 
 
              matter should not be dismissed for failure to file a 
 
              certificate of readiness for prehearing conference as 
 
              directed.
 
         
 

 
         
 
         
 
         KONZ V. UNIVERSITY OF IOWA
 
         Page   2
 
         
 
         
 
              June 11, 1986 - Claimant's attorney was not present for 
 
              scheduled prehearing conference.
 
         
 
              August 21, 1986 - The pretrial conference notes indicate 
 
              that both parties needed to complete discovery.
 
         
 
              July 9, 1987 - Claimant requested that the prehearing 
 
              conference scheduled for August 7, 1987 be continued for six 
 
              months.
 
         
 
              February 9, 1988 - The agency issued a notice of automatic 
 
              dismissal for lack of prosecution.  The notice stated that 
 
              the matter would be dismissed in thirty days unless good 
 
              cause was shown why it should not be dismissed.
 
         
 
              March 3, 1988 - Claimant filed a response to the notice of 
 
              automatic dismissal.
 
         
 
              July 18, 1988 - Claimant's counsel was not present for the 
 
              scheduled prehearing conference.
 
         
 
              July 28, 1988 - A deputy industrial commissioner issued an 
 
              order to show cause in which the parties were given twenty 
 
              days to show cause why sanctions should not be imposed.
 
         
 
              August 15, 1988 - An entry of appearance as attorney was 
 
              filed on behalf of claimant.
 
         
 
              September 7,1988 - A deputy issued on order dismissing this 
 
              matter without prejudice because there was no response to 
 
              the show cause order.
 
         
 
              September 15, 1988 - Claimant filed a motion for 
 
              reconsideration of the order dated September 7, 1988.
 
         
 
              September 23, 1988 - The deputy denied the motion for 
 
              reconsideration.
 
         
 
              October 7, 1988 - Claimant filed a notice of appeal.
 
         
 
              December 7,1988- Claimant filed an application for 
 
              reinstatement.
 
         
 
              December 28, 1988 - Defendant employer filed a resistance to 
 
              the application for reinstatement.
 
         
 
         
 
         
 
              January 10, 1989 - Claimant filed a reply to defendant 
 
              employer's resistance to claimant's application for 
 
              reinstatement.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Division of Industrial Services Rule 343-4.36 provides:
 
         
 
              If any party to a contested case or an attorney representing 
 
              such party shall fail to comply with these rules or any 
 
              order of a deputy commissioner or the industrial 
 
              Commissioner, the deputy commissioner or industrial 
 

 
         
 
         
 
         KONZ V. UNIVERSITY OF IOWA
 
         Page   3
 
         
 
         
 
              commissioner may dismiss the action.  Such dismissal shall 
 
              be without prejudice.  The deputy commissioner or industrial 
 
              commissioner may enter an order closing the record to 
 
              further activity or evidence by any party for failure to 
 
              comply with these rules or an order of a deputy commissioner 
 
              or the industrial commissioner.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant generally argues on appeal that there was good 
 
         cause for failure to respond to the show cause order and this 
 
         matter should have been allowed to proceed.  Defendant employer 
 
         generally argues that there was no error in dismissing this 
 
         matter.  Division of Industrial Services Rule 343-4.36 allows 
 
         this agency to require that parties prosecute contested cases 
 
         within the jurisdiction of the agency in a timely and orderly 
 
         manner.  In this Case, it is clear from the record that this 
 
         matter was not being timely pursued.  The matter was continued 
 
         several times because claimantOs counsel did not appear at 
 
         scheduled pretrial conferences.  On February 9, 1988 the agency 
 
         went so far as to inform the parties that this matter would be 
 
         automatically dismissed unless good cause was shown why it should 
 
         not be dismissed.  On July 28,1988 approximately only seven 
 
         months after the prior similar order, the parties were ordered to 
 
         show cause why this matter should not be dismissed.  There was no 
 
         response to that show cause order.  The matter was then 
 
         dismissed.  Claimant's current counsel argues that there was good 
 
         cause for failure to respond to the show cause order.  Claimant's 
 
         prior counsel took no action on the order and he failed to 
 
         deliver it in a timely manner to claimant s current counsel.  It 
 
         is clear that the deputy's dismissal and motion denying 
 
         reconsideration were correct.  The record is fraught with 
 
         evidence of inactivity and failure to prosecute.  There was no 
 
         timely response to the second warning within a seven month period 
 
         that this matter would be dismissed unless good cause was shown 
 
         otherwise.  Claimant did not, after the fact, demonstrate that 
 
         there was good cause why this matter should not be dismissed.  
 
         Therefore, claimant clearly did not show the deputy erred in 
 
         dismissing this matter.  The deputy dismissed
 
         
 
         
 
         this matter because claimant failed to respond  to the show cause 
 
         order.  The record also clearly indicates that claimant did not 
 
         respond timely to the show cause order.
 
         
 
              The discussion above disposes of the matter on appeal.  
 
         However, it should be noted that this decision should not be 
 
         considered support for the parties' argument that a dismissal 
 
         pursuant to Division of Industrial Services Rule 343-4.36 is 
 
         analogous to a default judgment pursuant to Iowa Rule of Civil 
 
         Procedure 236.
 
         
 
              Claimant also seeks a reinstatement pursuant to Division of 
 
         Industrial Services Rule 343-4.34(3). The subrule provides:
 
         
 
              The action or actions dismissed may at the discretion of the 
 
              industrial commissioner and shall upon a showing that such 
 
              dismissal was the result of oversight, mistake or other 
 
              reasonable cause, be reinstated.  Applications for such 
 
              reinstatement, setting forth the grounds, shall be filed 
 

 
         
 
         
 
         KONZ V. UNIVERSITY OF IOWA
 
         Page   4
 
         
 
         
 
              within three months from the date of dismissal.
 
         
 
              ClaimantOs application for reinstatement was filed in timely 
 
         compliance with that subrule.
 
         
 
              Claimant asserts in support of the application for 
 
         reinstatement that there was good cause for her failure to 
 
         respond to a show cause order which led to the dismissal of this 
 
         matter.  Claimant argues that good cause existed because of 
 
         problems of transferring the case from one attorney to another 
 
         necessitated by the prior attorney assuming the position of mayor 
 
         of Omaha.
 
         
 
              The record in this matter shows that claimantOs current 
 
         counsel entered an appearance approximately two weeks after the 
 
         show cause order was issued and approximately three weeks before 
 
         the dismissal was ordered.  The record also contains an affidavit 
 
         of claimantOs prior counsel dated September 14, 1988 and filed 
 
         September 15, 1988 which states in relevant parts:
 
         
 
              3. During the pendency of this case, I became mayor of the 
 
         city of Omaha, upon the death of the former mayor.
 
         
 
              6. During the time period in which I was trying to complete 
 
         the turnover of my law practice, an Order to Show Cause (dated 
 
         July 28,1988) in this case was issued to my Red Oak, Iowa law 
 
         office.
 
         
 
              7. The confusion and pace of my different duties led to my 
 
         inadvertently not taking any action on the Show Cause Order, and 
 
         also led to the order not being delivered to attorney David G. 
 
         Hicks for him to take action upon.
 
         
 
         
 
         
 
         
 
         
 
         
 
              The argument at page 4 of claimant's application that 
 
         claimant's prior counsel did not have knowledge of the show cause 
 
         order appears to be inconsistent with the affidavit.  Assuming 
 
         for the sake of argument that claimant's current counsel did not 
 
         know of the order, there is no reasonable cause given why this 
 
         matter should be reinstated.  The information in this case 
 
         reflects that the show cause order was not heeded, first, because 
 
         claimant's prior counsel took no action on it and second, because 
 
         he failed to deliver it to claimantOs current counsel.  There is 
 
         no good explanation for these failures.  Furthermore, there is 
 
         insufficient information in the record to conclude that the 
 
         alleged good cause for failure to respond to the show cause 
 
         order, namely prior counsel becoming mayor, was concurrent or 
 
         otherwise related in time to the show cause hearing.  It should 
 
         also be noted that claimant's current application contains 
 
         arguments very similar to those rejected by a deputy industrial 
 
         commissioner in the ruling on motion to reconsider dated 
 
         September 23, 1988.  That ruling was appealed to the undersigned 
 
         and the appeal was disposed of above.  It is appropriate that 
 
         under all the circumstances of this case that the undersigned 
 
         exercise discretion and not reinstate this action.
 
         
 

 
         
 
         
 
         KONZ V. UNIVERSITY OF IOWA
 
         Page   5
 
         
 
         
 
              It has been determined that this matter should not be 
 
         reinstated pursuant to Division of Industrial Services Rule 
 
         343-4.34(3).  Because this determination has been made it is 
 
         unnecessary to rule on arguments made by the parties whether the 
 
         application for reinstatement would be barred by the statute of 
 
         limitations.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1  On February 9, 1988 the agency issued a notice of 
 
         automatic dismissal for lack of prosecution.  The notice stated 
 
         that the matter would be dismissed in thirty days unless good 
 
         cause was shown why it should not be dismissed.
 
         
 
              2. On July 28, 1988 a deputy industrial commissioner issued 
 
         an order to show cause in which the parties were given twenty 
 
         days to show why sanctions should not be imposed.
 
         
 
              3. Neither party responded to the July 28, 1988 agency 
 
         order.
 
         
 
              4. On September 7,1988 the deputy industrial commissioner 
 
         issued an order dismissing this matter without prejudice.
 
         
 
              5. The claimant failed to comply with an order of a deputy 
 
         industrial commissioner.
 
         
 
         
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              This matter should be dismissed without prejudice because 
 
         claimant failed to comply with an order of a deputy industrial 
 
         commissioner.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That this matter is dismissed without prejudice.
 
         
 
              That claimantOs application for reinstatement is denied.
 
         
 
              That claimant pay all costs of this proceeding.
 
         
 
              Signed and filed this 31st day of January, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                             DAVID E. LINQUIST
 
                                          INDUSTRIAL COMMISSIONER