BEFORE THE IOWA INDUSTRIAL CO~MISSIONER
 
        
 
        
 
        BONNIE BAKALAR,
 
        
 
            Claimant,
 
                                          File No. 756871
 
        vs .
 
        
 
        WOODWARD STATE HOSPITAL-          A P P E A L
 
        SCHOOL,
 
        
 
            Employer,                   D E C I S I O N 
 
        
 
        and
 
        
 
        STATE OF Iowa,
 
        
 
        Insurance Carrier,
 
        Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        
 
        Defendant appeals from a decision by a deputy industrial 
 
        commissioner that the deputy had no authority to determine the 
 
        "finality" of an arbitration decision.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        Claimant was injured on January 23, 1984. A petition in 
 
        arbitration was filed on July 19, 1984. Claimant began to receive 
 
        long-term disability benefits from her employer at this time. On 
 
        October 21, 1986, a hearing assignment. order was issued in the 
 
        case. A hearing on the petition was held , on December 22, 1986. 
 
        In an arbitration decision filed May 22, 1987, claimant was 
 
        awarded permanent partial disability benefits. The deputy 
 
        declined to rule on what credit, if any, defendant employer was 
 
        entitled to for the long-term disability benefits paid. Neither 
 
        party filed an appeal of this decision.
 
        
 
        Thereafter, claimant made demand on the employer for payment of 
 
        the benefits awarded. The employer responded that it was taking a 
 
        credit for the long-term disability benefits paid, and that the 
 
        credit exceeded the benefits awarded.
 
        
 
        On April 25, 1988, the employer filed a motion to determine the 
 
        "finality" of the deputy's decision. On May 19, 1988, the deputy 
 
        overruled the motion, with a determination that he lacked the 
 
        authority to consider the motion. The employer then filed this 
 
        appeal to the commissioner on May 27, 1988,.
 
        
 
        BAKALAR VS. WOODWARD STATE HOSPITAL-SCHOOL
 
        Page 2
 
        
 
        
 
        On June 13, 1988, the claimant filed an action in the Iowa 
 
        District Court for Polk County for specific enforcement of the 
 
        deputy's decision pursuant to Iowa Code section 86.42. The 
 

 
        
 
 
 
 
 
        employer filed a resistance to this action, urging that the 
 
        District Court lacked jurisdiction to determine the matter. On 
 
        July 7, 1988, the employer filed a petition for declaratory 
 
        "judgment", which was treated as an action for a declaratory 
 
        ruling, to determine the "finality" of the deputy's decision.
 
        
 
        On August 23, 1988, an Order by the Industrial Commissioner was 
 
        filed, declining to issue a declaratory ruling. On October 3l, 
 
        1988, the District Court determined it had jurisdiction to 
 
        enforce the deputy's decision and consider the matter of credit. 
 
        The employer filed a motion for reconsideration, and the district 
 
        court reviewed and reaffirmed its ruling on November 18, 1988.
 
        
 
                                      ISSUES
 
        
 
        Defendant failed to set forth specific issues in its appeal. The 
 
        appeal will be considered generally and without regard to 
 
        specific issues.
 
        
 
                                 APPLICABLE LAW
 
        
 
        Iowa Code section 86.42 provides:
 
        
 
        Any party in interest may present a certified copy of an order or 
 
        decision of the commissioner, from which a timely petition for 
 
        judicial review has not been filed or if judicial review has been 
 
        filed, which has not had execution or enforcement stayed as 
 
        provided in section 17A.l9, subsection 5, or an order or decision 
 
        of a deputy commissioner from which a timely appeal has not been 
 
        taken within the agency and which has become final by the passage 
 
        of time as provided by rule and section 17A.15, or an agreement 
 
        for settlement approved by the commissioner, and all papers in 
 
        connection therewith, to the district court where judicial review 
 
        of the agency action may be commenced. The court shall render a 
 
        decree or judgment and cause the clerk to notify the parties. The 
 
        decree or judgment, in the absence of a petition for judicial 
 
        review or if judicial review has been commenced, in the absence 
 
        of a stay of execution or enforcement of the decision or order of 
 
        the industrial commissioner, or in the absence of an act of any 
 
        party which prevents a decision of a deputy industrial 
 
        commissioner from becoming final, has the same effect and in all 
 
        proceedings in relation thereto is the same as though rendered in 
 
        a suit duly heard and determined by the court.
 
        BAKALAR VS. WOODWARD STATE HOSPITAL-SCHOOL
 
        Page 3
 
        
 
        
 
        Iowa Code section 85.38(2) provides:
 
        
 
        In the event the disabled employee shall receive any benefits, 
 
        including medical, surgical or hospital benefits, under any group 
 
        plan covering nonoccupational disabilities contributed to wholly 
 
        or partially by the employer, which benefits should not have been 
 
        paid or payable if any rights of recovery existed under this 
 
        chapter, chapter 85A or chapter 85B, then such amounts so paid to 
 
        said employee from any such group plan shall be credited to or 
 
        against any compensation payments, including medical, surgical or 
 
        hospital, made or to be made under this chapter, chapter 85. or 
 
        chapter 85B. Such amounts so credited shall be deducted; from the 
 
        payments made under these chapters. Any nonoccupational plan 
 
        shall be reimbursed in the amount so deducted. This section shall 
 
        not apply to payments made under any group plan which would have 
 
        been payable even though there was an injury under this chapter 
 
        or an occupational disease under chapter 85A or an occupational 
 
        hearing loss under chapter 85B. Any employer receiving such 
 
        credit shall keep such employee safe and harmless from any and 
 

 
        
 
 
 
 
 
        all claims or liabilities that may be made against them by reason 
 
        of having received such payments Only to the extent of such 
 
        credit.
 
        
 
                                      ANALYSIS
 
        
 
        This appeal concerns the ruling of the deputy determining that he 
 
        lacked authority to further rule on this case. An arbitration 
 
        decision had been filed, and the time for appeal elapsed without 
 
        an appeal by either party. The defendant now appeals that ruling.
 
        
 
        Section 85.38(2), Code of Iowa, provides a credit for benefits 
 
        paid under group plans. A defendant may unilaterally establish 
 
        the amount of that credit. If the claimant determines that the 
 
        amount of the credit is inaccurate or unfair, the claimant can 
 
        seek a ruling by the industrial commissioner. See Olson v. 
 
        Department of Transportation, appeal Decision, October 30, 1986. 
 
        Claimant should seek such a determination by a separate petition, 
 
        rather than by motion in the prior case. Such a petition can be 
 
        filed without payment of a filing fee. This agency retains 
 
        jurisdiction at all times to determine the proper amount of 
 
        credit under section 85.38(2). Many times this issue does not 
 
        come to light until late in the proceedings, or even after all 
 
        applicable times for review or appeal are expired.
 
        
 
        The deputy properly ruled that he lacked authority to rule on the 
 
        credit issue or the "finality" of his arbitration decision. 
 
        Claimant's proper remedy was to institute a new contested case 
 
        proceeding with this agency on the credit issue.
 
        
 
        BAKALAR VS. WOODWARD STATE HOSPITAL-SCHOOL
 
        Page 4
 
        
 
        
 
                                 CONCLUSIONS OF LAW 
 
        
 
        The deputy properly overruled defendant's motion.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
        Signed and filed this 16th day of June, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                           DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BONNIE M. BAKALAR,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                     FILE NO. 756871
 
         WOODWARD STATE HOSPITAL-SCHOOL,
 
                                                 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 is a proceeding in arbitration brought by Bonnie M. 
 
         Bakalar, claimant, against Woodward State Hospital-School, her 
 
         employer, and the State of Iowa as insurance carrier.  The case 
 
         was heard, evidence closed and considered fully submitted on 
 
         December 22, 1986.  The record in this proceeding consists of 
 
         testimony from Bonnie M. Bakalar, Roger Marquart and Pam Carroll. 
 
          The evidence also includes claimant's exhibits 1 through 11, 13 
 
         and defendants' exhibits 1 through 20.  Claimant's exhibit 1, the 
 
         deposition of Thomas B. Summers, M.D., specifically includes 
 
         deposition exhibits 1, 2 and 3.  The exhibits offered by 
 
         defendants generally duplicate the exhibits offered by claimant 
 
         except as to the number assigned to the exhibit.
 
         
 
                                      ISSUES
 
         
 
              Claimant alleges that she slipped on ice in the course of 
 
         her employment at the Woodward State Hospital-School on January 
 
         23, 1984 and as a result thereof injured her lower back and her 
 
         left leg.  She seeks compensation for healing period through July 
 
         17, 1984 and an award for permanent partial disability. it was 
 
         stipulated that in the event of such an award the commencement 
 
         date for payment of permanent partial disability compensation is 
 
         July 17, 1984.  It was stipulated that claimant's rate of 
 
         compensation in the event of an award is $161.09 per week.  
 
         Defendants seek credit under section 85.38(2) for benefits paid 
 
         to claimant under a non-occupational group plan.  Claimant also 
 
         requested that the issue of credit entitlement be determined.  At 
 
         hearing the undersigned had indicated to the parties that he
 
         would consider that issue but on reconsideration the 
 
         undersigned declines to do so in accordance with paragraph 
 
         three of the hearing assignment order, the general agency 
 
         policy of enforcing paragraph three of the hearing assignment 
 

 
         
 
         
 
         
 
         BAKALAR V. WOODWARD STATE HOSPITAL-SCHOOL
 
         Page   2
 
         
 
         
 
         order and specific directives to the staff to not decide the 
 
         issue even if requested by both parties.
 
         
 
                           SUMMARY OF EVIDENCE
 
         
 
              The following is only a brief summary of pertinent evidence. 
 
          All evidence received at hearing was considered when deciding 
 
         the case even though it may not be specifically referred to in 
 
         this decision.
 
         
 
              Bonnie M. Bakalar is a 51 year old woman who resides in 
 
         Woodward, Iowa.  She graduated from high school near the top of 
 
         her class.  Shortly thereafter she commenced training to become a 
 
         registered nurse but dropped out in order to get married.  She 
 
         has practiced as a licensed practical nurse since 1960 
 
         intermittently.  She has also worked as a bookkeeper at a feed 
 
         and grain elevator and as a high school study hall supervisor.
 
         
 
              Claimant's medical history includes evidence of an 
 
         on-the-job injury that occurred in approximately July of 1970 
 
         (Defendants' Exhibit 1, page 3).  In connection therewith she was 
 
         examined by Thomas B. Summers, M.D., on June 14, 1971.  According 
 
         to Dr. Summers she reported that she had injured herself on June 
 
         8, 1970 while lifting a patient at the Park View Manor Nursing 
 
         Home where she was employed.  Her complaints involved primarily 
 
         her right hip at the time she was seen by Dr. Summers but she 
 
         reported having back complaints which had resolved (Def. Ex. 20, 
 
         pp. 7-9).  Dr. Summers was unable to find any evidence of serious 
 
         injury or residuals of injury.  He felt that the findings were 
 
         normal and that her complaints were out of proportion to the 
 
         findings (Def.  Ex. 20, P. 19).  Defendants' exhibit 10 shows the 
 
         diagnosis for that injury to have been a musculo-fascial sprain 
 
         of the right iliac crest.  Page 2 of exhibit 10 indicates that 
 
         claimant had pain in the abductor area when the straight leg 
 
         raising test was performed.  Claimant complained of sensory 
 
         changes in the right knee.  She exhibited reduced knee and ankle 
 
         reflexes (Ex. 10, p. 2).
 
         
 
              Defendants' exhibits 3 and 4 are office records from 
 
         claimant's family physician, J. I. Royer, D.O.
 
         
 
              On defendants' exhibit 4, at an entry dated July 10, 1978, 
 
         there appears to be a notation which reads, "varicose veins left 
 
         leg and knee" and the words "advised supp hose."
 
         
 
              An entry dated January 25, 1982 in defendants' exhibit 3 
 
         reports, "fell on icy sidewalk @ WSHS (presumably Woodard State 
 
         Hospital-School) yesterday 1-24-82, 11:55."  The following 
 
         notation also appears, "L sacroiliac area & iliac crest.O  The 
 
         entry of January 28, 1982 states, Ofeels like needles.O  The 
 
         following entry dated February 4, 1982, where legible, appears to 
 
         state, "can't lie down...no comfortable position...no change 
 
         bowel or bladder."
 
         
 
              An entry dated April 26, 1982 indicates that claimant 
 
         reported being kicked by a resident and injuring her neck and 
 
         cervical area (Def. Ex. 3).
 
         
 
              An entry in defendants' exhibit 3 dated January 24, 1984 
 

 
         
 
         
 
         
 
         BAKALAR V. WOODWARD STATE HOSPITAL-SCHOOL
 
         Page   3
 
         
 
         
 
         appears to read, "slipped on ice @ WSHS (presumably Woodard State 
 
         Hospital-School) yesterday, tried to catch herself & twisted 
 
         back, c/o pain R. hip & back, L. leg...Norgesic Forte #20 ... O  
 
         This entry seems to indicate that claimant reported slipping on 
 
         ice at Woodard State Hospital-School, that she had tried to catch 
 
         herself and twisted her back.  It also seems to indicate that she 
 
         made complaint of pain in her right hip and back and in her left 
 
         leg.  An entry of February 3, 1984 seems to indicate that 
 
         claimant's upper back seemed better but that her lower back was 
 
         worse.
 
         
 
              In early February, 1984, claimant's treatment was 
 
         transferred at the request of the employer to Scott B. Neff, D.O.  
 
         A CT scan of her back was performed on February 29, 1984 which 
 
         was interpreted as showing a small herniated L5-Sl disc with the 
 
         herniation being on the right side (Def. Ex. 19).  On March 5, 
 
         1984, Dr. Neff recommended that claimant obtain a lumbrosacral 
 
         corset (Def. Ex. 15, p. 3).  By March 26, 1984, claimant was 
 
         making complaint to Dr. Neff that the brace made her left leg 
 
         swell and feel worse.  She complained of pain in the left leg.  
 
         On April 16, 1984, Dr. Neff confirms the existence of swelling in 
 
         the left knee and calf (Def. Ex. 14).
 
         
 
              Dr. Neff initially was of the opinion that the defect in 
 
         claimant's spine as shown by the CT scan and the problem in her 
 
         left knee arose from the same injury (Ex. 14).  He went on to 
 
         relate, however, that he believed that she had a large venous 
 
         varicosity or popliteal vessel abnormality which was not related 
 
         to the injury (Def. Ex. 14 dated May 9, 1984).  By May 24, 1984, 
 
         Dr. Neff again indicated that the deep venous thrombosis was not 
 
         related to her injury at work and that she was off work due to 
 
         the thrombosis but that the problem in her spine and left leg, 
 
         which he felt resulted from the injury, were diminished (Def. Ex. 
 
         14).
 
         
 
              Claimant was referred to Bradley T. DeWall, M.D., for 
 
         treatment of the venous thrombosis.  Dr. DeWall felt that the 
 
         thrombosis was secondary to an injury to her leg.  By August 28, 
 
         1984, he felt that claimant's thrombosis had improved but that 
 
         she continued to have difficulty with her leg.  He felt that she 
 
         would continue to have restrictions with regard to lifting and 
 
         similar 
 
         
 
         activities due to her back and her knee and that she needed to be 
 
         able to change positions frequently due to the venous problem but 
 
         that it should not cause her difficulty with ambulation.  He went 
 
         on to state that claimant would have some disability due to her 
 
         lower back and leg but that she was not totally disabled from 
 
         performing licensed practical nurse work but would be disabled 
 
         from working at Woodward.  He felt that she had a good prognosis 
 
         for returning to work (Def. Ex. 18).
 
         
 
              On June 4, 1984, Dr. Neff modified his early opinions 
 
         regarding relationship between the thrombosis and the original 
 
         injury in January.  He stated that:
 
         
 
              She did indeed have pain in her knee, and that is why she 
 
              underwent diagnostic arthroscopy.  Following arthroscopy, a 
 
              dressing was placed on her leg, and she apparently had 
 

 
         
 
         
 
         
 
         BAKALAR V. WOODWARD STATE HOSPITAL-SCHOOL
 
         Page   4
 
         
 
         
 
              swelling which, she feels, brought on the phlebitis in her 
 
              calf.  I certainly cannot argue with the fact that any kind 
 
              of immobilization either cast or brace or dressing can cause 
 
              deep venous return to be slowed, and can exacerbate or cause 
 
              thrombophlebitis.
 
         
 
              Her leg was swollen before the arthroscopy, but she did not 
 
              have the severe calf pain.
 
         
 
              I am in somewhat of a dilemma as to how best to deal with 
 
              this.  She says that her leg was fine until she fell, and I 
 
              have told her that she has had varicose veins for sometime, 
 
              in my opinion.
 
         
 
              I guess the best way to resolve this is to have me state 
 
              that I feel that the brace on her leg, did worsen the 
 
              possibility or potential for thrombophlebitis, and could 
 
              certainly have contributed to it's development and degree.  
 
              If you will review the copies of office records, she did 
 
              have swelling in her leg and swelling behind the back of her 
 
              knee, before undergoing the arthroscopic examination.
 
         
 
              He felt that she was not yet ready to return to work due to 
 
         the phlebitis.  On June 27, 1984, he authorized claimant to 
 
         return to light or relatively sedentary work.  He clarified the 
 
         release on July 9, 1984 by indicating that she should avoid 
 
         squatting and handling patients.  On June 17, 1984, he issued 
 
         specific work restrictions (Def. Ex. 14).
 
         
 
              On July 19, 1984, Dr. Royer indicated to the Bankers Life 
 
         Company that claimant's thrombosis would require a year leave of 
 
         absence from work but that she could possibly do clerical work.  
 
         He attached a sheet showing very substantial activity 
 
         restrictions (Def. Ex. 8).
 
         
 
         
 
         
 
              On November 26, 1984, a myelogram was performed which was 
 
         interpreted as showing no abnormalities (Def  Ex. 13, p. 6).
 
         
 
              On February 14, 1985, Martin S. Rosenfeld, D.O., advised the 
 
         Bankers Life Insurance Company that his diagnosis of claimant was 
 
         sciatica without disc rupture.  He felt that her prognosis was 
 
         guarded.  He indicated that her functional limitations were to be 
 
         determined by what she could tolerate and that she should avoid 
 
         repetitive motions such as bending, squatting, reaching, 
 
         stretching, prolonged sitting and/or standing (Def. Ex. 13, p. 
 
         1).
 
         
 
              Claimant was examined by John A. Grant,.M.D.  The history he 
 
         received indicated that she firmly denied any previous back or 
 
         knee problems of any consequence but acknowledged occasional back 
 
         distress of short duration from pulled muscles.  His assessment 
 
         of claimant's case stated:
 
         
 
              As is so often the case with this type of back problem, we 
 
              are dealing with a patient who has been out of work for 15 
 
              months because of a back injury.  With each passing month, 
 
              the chance of her returning to active employment at her 
 

 
         
 
         
 
         
 
         BAKALAR V. WOODWARD STATE HOSPITAL-SCHOOL
 
         Page   5
 
         
 
         
 
              former job or at any job decreases significantly.  Her 
 
              examination in my office revealed obesity plus limited back 
 
              motion and limited straight leg raising, plus the effects of 
 
              what I feel is probably chondromalacia of the patella but, 
 
              other than this, there are no striking objective 
 
              abnormalities.  In answer to your accompanying questions, I 
 
              have the following comments.  I feel this lady has sustained 
 
              a strain of the lumbosacral spine which has become chronic 
 
              with associated muscular low back pain and that most likely 
 
              she has some chondromalacia of the left knee with early 
 
              degenerative change and, finally, that she is a status post 
 
              phlebitis of the left leg with the appearance that this is 
 
              now under good control.  I do not find any objective 
 
              abnormalities to suggest a ruptured intervertebral disk.
 
         
 
              In terms of treatment, I think it would be advisable for 
 
              this lady to lose weight, but I anticipate that this is 
 
              unlikely to happen.  It might be of some value to try a 
 
              transcutaneous nerve stimulator and certainly she should be 
 
              on an exercise program of Williams and Mackenzie exercises 
 
              as well as encourage her to be up and ambulating.  I would 
 
              strongly discourage any operative approach.  It might be of 
 
              some value for her to attend a back school or pain clinic in 
 
              an attempt to learn to "live around her symptoms".  As far 
 
              as I can determine, her signs and symptoms are consistent 
 
              with the objective findings.
 
         
 
         
 
              If this lady is to return to work she should avoid a job 
 
              that requires her to stand or walk other than on an 
 
              occasional basis and hopefully she would be allowed to sit 
 
              frequently but also be allowed to change positions in terms 
 
              of sitting, standing, and walking on a rather irregular 
 
              optional basis.  I think she should avoid lifting anything 
 
              over 20 pounds, but I see no reason she could not lift an 
 
              occasional object up to 20 pounds.  She should avoid any 
 
              bending from the waist but could probably tolerate 
 
              occasional kneeling or squatting.  It would be very 
 
              advisable that she not be required to climb or reach 
 
              overhead on other than a rare basis.  I think she could use 
 
              her hands and arms on a repetitive basis fairly frequently 
 
              provided this does not aggravate the back situation.  Motor 
 
              vehicle operation for short distances would probably be 
 
              acceptable.
 
         
 
              It is my feeling that this lady is probably totally disabled 
 
              from engaging in the work she was previously doing.  I think 
 
              it is going to be virtually impossible for her to ever 
 
              return to a job that requires lifting or repeated bending or 
 
              prolonged periods on her feet.  She does give information 
 
              suggesting that she has done bookkeeping work, and I would 
 
              think this is something she could do if she can get to the 
 
              point of sitting for reasonable periods of time.
 
         
 
              The final question seems to be somewhat repetitious of the 
 
              others, but I think this lady could return to a job that 
 
              does not require repeated bending, twisting or turning, that 
 
              allows sitting, standing and walking on a nonregimented 
 
              basis, that avoids any lifting of any consequence other than 
 

 
         
 
         
 
         
 
         BAKALAR V. WOODWARD STATE HOSPITAL-SCHOOL
 
         Page   6
 
         
 
         
 
              occasional objects up to 20 pounds, and that does not 
 
              require repeated bending.  Whether such work is available, 
 
              of course, is something I cannot answer.
 
              (Def. Ex. 12)
 
         
 
              He subsequently further specified her restrictions to 
 
         include a job that permitted random sitting, standing and walking 
 
         and that would avoid lifting that was no more than 25 to 35 
 
         pounds and only on an occasional or intermittent basis.  He felt 
 
         that she should avoid jobs that require twisting of the trunk or 
 
         repeated flexion or overhead work.  He recommended that she avoid 
 
         slippery uneven surfaces or climbing ladders or scaffolding (Def. 
 
         Ex. 12, p. 7).
 
         
 
              Thomas B. Summers, M.D., testified by way of deposition 
 
         (Claimant's Ex. 1).  He rated claimant as having an 18 percent 
 
         impairment of the body as a whole as a result of claimant's 
 
         injuries that occurred on January 23, 1984 (pp. 13 & 14).  He 
 
         felt that the thrombosis was a complication of that injury (p. 
 
         15).  He explained his opinion regarding the relationship of 
 
         thrombosis to the January, 1984, injury by stating that 
 
         accidental injury can cause contusion of soft tissues and 
 
         interfere with normal circulation which can cause blood clots to 
 
         form.  He stated that the occurrence is very common among 
 
         individuals following surgery, following he felt that the time 
 

 
         
 
         
 
         
 
         BAKALAR V. WOODWARD STATE HOSPITAL-SCHOOL
 
         Page   7
 
         
 
         
 
         sequence of events established the causal relationship between 
 
         the thrombosis and the January injury (pp. 44-46).
 
         
 
              Claimant testified at approximately 2:30 p.m., on January 
 
         23, 1984, she had used her car in connection with her employment 
 
         and in walking from the car toward the office she slipped on ice, 
 
         twisted her body and felt pain in her right lower back and left 
 
         leg.  She denied actually falling.  She testified that she 
 
         immediately notified her supervisor and that an instant report 
 
         was prepared.  The report makes no mention of injury to the left 
 
         leg (Def. Ex. 6).
 
         
 
              Claimant testified that she sought treatment from Drs Royer, 
 
         Neff, McClain and Rosenberg.  She stated that for a time she wore 
 
         a TENS unit.  She testified that she was sent to Iowa Orthotics 
 
         for a brace which she wore for a month or six weeks but while 
 
         wearing the brace her left leg started swelling noticeably.  She 
 
         stated that Dr. Neff then had her take the brace off.  Claimant 
 
         reported having arthroscopic surgery to her knee in May, 1984, 
 
         but stated that it did not help.
 
         
 
              Claimant testified that she liked her job and wanted to 
 
         return to work.  She stated that she talked with her immediate 
 
         supervisor who suggested a light duty return to work if a medical 
 
         release could be obtained.  Claimant testified that she obtained 
 
         a light duty release from Dr. Neff, but was then told by her 
 
         supervisors that there was no work available for her within the 
 
         restrictions that Dr. Neff had imposed.  Claimant has not 
 
         returned to work subsequently at any location.
 
         
 
              Claimant testified that she feels unable to do the work at 
 
         Woodard State Hospital-School due to her physical limitations.  
 
         Claimant stated that she does not know of any job at Woodard 
 
         State Hospital-School that she could perform.  She stated that 
 
         the state has not offered any other jobs to her.  She stated that 
 
         when released by Dr. Neff in July, 1984, she still had pain in 
 
         her back and leg and that the leg would give out at times.  She 
 
         stated that there has been no change in her condition in the last 
 
         year or so.  She complained of noticeable pain at all times in 
 
         her back.  She stated that it varies to the extent that on good 
 
         days she can walk about one and one-half blocks but that on bad 
 
         days, of which she has one or two per week, she requires pain 
 
         medication every four hours.  She complained that her leg will 
 
         give out on occasion and stated that she fell while walking to 
 
         the building for the hearing in this case and exhibited torn 
 
         clothing.  She stated that the left leg continues to become 
 
         swollen.
 
         
 
         
 
         
 
              Claimant testified that her health was good prior to the 
 
         January, 1984, injury although she had trouble with her right leg 
 
         and mid and upper back in the past.  She stated that the prior 
 
         instance had completely resolved without any residual 
 
         difficulties.
 
         
 
              Claimant testified that she could possibly work as a school 
 
         supervisor if she were able to avoid climbing stairs but that the 
 
         work paid much less than what she earned at Woodard.  Claimant 
 

 
         
 
         
 
         
 
         BAKALAR V. WOODWARD STATE HOSPITAL-SCHOOL
 
         Page   8
 
         
 
         
 
         felt that her skills were obsolete in the bookkeeping field and 
 
         that she would be unable to perform some of the functions that 
 
         she had previously performed at the grain elevator.  Claimant 
 
         testified that she feels that she is unable to do any work and 
 
         that the total disability payments of $677.04 per month that she 
 
         receives from the Bankers Life Company would terminate if she 
 
         obtains gainful employment.
 
         
 
              Claimant testified that since the injury she has ceased 
 
         performing much of the work around her home, all of which she had 
 
         previously done herself, and now hires help for the lawn and has 
 
         help from family members for some of her heavier housework.  She 
 
         stated that she has tried to rake and ride a riding lawn mower 
 
         but that it caused her too much pain.  She said that she had 
 
         assistance in starting the mower.
 
         
 
              Pam Carroll, claimant's niece, confirmed claimant's 
 
         testimony regarding claimant's limitations in caring for her 
 
         home.  She stated that claimant displays a great deal of 
 
         difficulty getting in or out of a car, walking distances and that 
 
         even getting up and down is a problem.  She observed claimant 
 
         fall while coming to the hearing.  Carroll testified that she has 
 
         performed painting, lawn mowing and shoveling of snow for 
 
         claimant since the injury but had not done so previously.  She 
 
         stated that she sees claimant almost daily.  Carroll testified 
 
         that her children sometimes play at claimant's house and that 
 
         claimant supervises them.
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              It was stipulated that claimant received an injury on 
 
         January 24, 1984 that arose out of and in the course of her 
 
         employment at the Woodard State Hospital-School.  Her testimony 
 
         regarding that incident of slipping on ice is accepted as 
 
         correct.  The result of that injury is the primary issue in this 
 
         case.
 
         
 
              The claimant has the burden of proving by a preponderance 
 
         of the evidence that the injury of January 24, 1984 is causally 
 
         related to the disability on which she now bases her 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).
 
         
 
              Following the injury claimant made immediate complaint of 
 
         pain in her back and there appears no evidence in the record to 
 
         indicate that her back was not injured to some degree in that 
 
         incident.  It does appear in Dr. Royer's notes that she also made 
 
         complaint regarding her left leg.  This would seem to provide 
 
         some indication that there was injury of some sort to the leg.  
 
         The real problem in claimant's leg seems to be related to the 
 

 
         
 
         
 
         
 
         BAKALAR V. WOODWARD STATE HOSPITAL-SCHOOL
 
         Page   9
 
         
 
         
 
         thrombosis, rather than to direct injury from falling.  There is 
 
         evidence in the record from 1978 to indicate that claimant had 
 
         preexisting varicose veins.
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              There is no indication in the record that varicose veins 
 
         were in any manner disabling prior to January 23, 1984.  It 
 
         appears that Drs. DeWall, Neff and Summers related the deep pain 
 
         thrombosis to the injury of January 23, 1984, either directly, or 
 
         as a result of treatment.  Claimant's burden of proof is 
 
         establishing probability.  When all material factors are 
 
         considered, it is found more likely than not that the injury of 
 
         January 23, 1984, either directly or as a result of treatment, 
 
         was a proximate cause of the thrombosis which developed.  A cause 
 
         is proximate if it is a substantial factor in bringing about the 
 
         results; it need not be the only cause.  Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 348 (Iowa 1980).  Injury resulting 
 
         from medical treatment is considered as being proximate to the 
 
         original injury.  Cross v. Hermanson Bros., 235 Iowa 739, 741, 16 
 
         N.W.2d 616, 617 (1944); Heumphreus v. State, 334 N.W.2d 757 (Iowa 
 
         1983); and Bradshaw, 251 Iowa 375, 101 N.W.2d 167 (1960).  It is 
 
         therefore found that the injury of January 23, 1984 was a 
 
         proximate cause of injury to claimant's low back and to her left 
 
         leg, particularly the region of the knee.  It is specifically 
 
         found to be a proximate cause of the thrombosis which developed 
 
         in claimant's left leg.
 
         
 
              Claimant's medical history shows that the thrombosis was 
 
         most likely an aggravation of a preexisting condition of varicose 
 
         veins.  The records also show prior back problems with claimant 
 
         and the injury to her spine is likewise determined to be an 
 
         aggravation of a preexisting condition.
 
         
 
         
 
              When an aggravation occurs in the performance of an 
 
         employee's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler, 252 Iowa 
 
         613, 620, 106 N.W.2d 591, 595 (1960).
 
         
 
              The CT scan performed early in claimant's treatment showed 
 
         disc herniation but a later myelogram failed to produce similar 
 
         results.  The difference could be due to some resolution of the 
 
         herniation or merely differences in the accuracy of the 
 
         diagnostic procedures.  Dr. Neff's reports show that claimant had 
 
         indicated to him that her back condition was resolving and that 
 
         her complaints regarding her back had diminished.  Nevertheless, 
 
         Dr. Neff has placed substantial activity restrictions on 
 
         claimant.  Similar restrictions have been recommended by Drs. 
 
         Summers, Rosenfeld and Grant.  Claimant has continuing complaints 
 
         regarding her back and left leg.  She has complaints regarding 
 
         her right hip but such do not appear to be significantly 
 
         disabling.
 
         
 
              The employer determined that it had no work that was within 
 

 
         
 
         
 
         
 
         BAKALAR V. WOODWARD STATE HOSPITAL-SCHOOL
 
         Page  10
 
         
 
         
 
         claimant's physical restrictions as imposed by Dr. Neff.  This is 
 
         an indication that she has sustained a substantial degree of 
 
         disability.  II Larson Workman's Compensation, section 57.61, 
 
         pages 10-164.90 through 10-164.95.  An employer's refusal to give 
 
         any sort of work to an injured claimant may justify an award of 
 
         disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 
 
         1980).  Claimant's motivation certainly seems suspect and her 
 
         complaints seem to be somewhat exaggerated in regards to the 
 
         findings of the medical practitioners.  She will lose her 
 
         disability pension if she returns to gainful employment.  It is 
 
         found that her current status of unemployment is not an accurate 
 
         indication of her actual earning capacity.  She does, 
 
         nevertheless, have some permanent disability, as diagnosed by Dr. 
 
         Summers.
 
         
 
              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 2511 
 
         257 (1963).
 
         
 
              When all the appropriate factors of industrial disability 
 
         are considered, it is found that claimant has sustained a 25 
 
         percent loss of earning capacity resulting from the injury of 
 
         January 24, 1983 and that her disability, when evaluated 
 
         industrially under section 85.34(2)(u), is a 25 percent permanent 
 
         partial disability which entitles her to receive 125 weeks of 
 
         compensation at the stipulated rate payable commencing July 17, 
 
         1984 as stipulated by the parties.
 
         
 
              As represented by the parties claimant has been paid healing 
 
         period through June 30, 1984.  The effective date of Dr. Neff's 
 
         release was July 17, 1984.  There is evidence which could support 
 
         a longer healing period, however, since the parties stipulated 
 
         that compensation for permanent partial disability commenced on 
 
         June 17, 1984, claimant's healing period entitlement is hereby 
 
         established as running from January 23, 1984 through July 16, 
 
         1984 with defendants having entitlement to credit for the amounts 
 
         previously paid through June 30, 1984.  The difference is two and 
 
         two-sevenths weeks payable commencing July 1, 1984.
 
         
 
              Even though the issue of credit entitlement will not be 
 
         ruled upon in this decision, some analysis of the precedents 
 
         would seem to be in order since the issue is one which both 
 
         parties want decided.  Section 85.38(2) has not been addressed by 
 
         the Iowa Supreme Court in the workers' compensation field but 
 
         similar issues exist and are well settled in the civil litigation 
 

 
         
 
         
 
         
 
         BAKALAR V. WOODWARD STATE HOSPITAL-SCHOOL
 
         Page  11
 
         
 
         
 
         field.  Work place injury litigation was originally conducted in 
 
         the courts.  In moving to an administrative process many 
 
         similarities continued to exist both in matters of procedure and 
 
         in elements of recovery.  Division of Industrial Services Rule 
 
         343-4.35 adopts the Iowa Rules of Civil Procedure except where a 
 
         conflicting agency rule exists.  The administrative process and 
 
         the courts both allow recovery of expenses of treatment, lost 
 
         income during a period of recuperation and compensation for 
 
         permanent disability or loss of earning capacity.  The collateral 
 
         source rule from civil practice has been statutorily confirmed in 
 
         the workers' compensation field by Code sections 85.3(l) and 
 
         85.38(l). It is generally applied to workers' compensation cases 
 
         in most jurisdictions as found in IV Larson Workman's 
 
         Compensation, section 97.51 et. seq.  Upon reviewing the 
 
         controlling precedents it would appear that the status quo or 
 
         normal rule is that there is no offset or credit and that the 
 
         allowance of a credit is the exception.  If no credit is applied, 
 
         the worker receives both the group benefit of payment and the 
 
         workers' compensation benefit.  Simply stated, if the record is 
 
         silent on the issue of credit, the claimant receives both.
 
         
 
              The proposition that the burden of proving an entitlement to 
 
         anything rests on the proponent is so well settled that Rule 
 
         14(f)(5) of the Rules of Appellant Procedure provides that the 
 
         citation of authority for that proposition is not necessary.  The 
 
         same rule regarding burden of proof applies in administrative 
 
         proceedings.  Wonder Life Company v. Liddy, 207 N.W.2d 27 (Iowa 
 
         1973).  The credit provided by section 85.38(2) is similar to the 
 

 
         
 
         
 
         
 
         BAKALAR V. WOODWARD STATE HOSPITAL-SCHOOL
 
         Page  12
 
         
 
         
 
         defenses of "paymentO or Oaccord and satisfaction" both of which 
 
         are affirmative defenses where the burden of pleading and proof 
 
         is placed on the defendant.  Electra Ad Sign v. Cedar Rapids 
 
         Truck Center, 316 N.W.2d 876 (Iowa 1982); Glenn v. Keedy, 248 
 
         Iowa 216, 80 N.W.2d 509 (1957).  The agency has formerly 
 
         recognized and applied the normal rules which place the burden of 
 
         showing an entitlement to a credit on the employer.  Argo v. Van 
 
         Hulzen Oil Company, IV Iowa Industrial Commissioner Report, 15 
 
         (1984); McCrady v. Iowa Beef Processors, Inc., IV Iowa Industrial 
 
         Commissioner Report, 239 (1984); and Hebensperger v. Motorola 
 
         Communications and Electronics, Inc., II Iowa Industrial 
 
         Commissioner Report, 187 (1981).
 
         
 
              The normal rules of res judicata and issue preclusion apply 
 
         in administrative proceedings.  Bd. of SupOrs, Carroll Cty. v. 
 
         Chi. & N.W. Trans. Co., 260 N.W.2d 813 (Iowa 1977).  Iowa Rule 
 
         of Civil Procedure 7 provides that an answer must state any 
 
         additional facts deemed to show a defense.  Iowa Rule of Civil 
 
         Procedure 101 requires that any defense which "...alleges any 
 
         matter in justification, excuse, release or discharge...must be 
 
         specifically pleaded.O  Payment, accord and satisfaction and the 
 
         section 85.38(2) credit are defenses of the type affected by 
 
         I.R.C.P. 101.  It has long been the law of this state that such 
 
         defenses are barred if not raised and litigated at the time of 
 
         trial.  Lynch v. Lynch, 250 Iowa 407, 94 N.W.2d 105, (1959); 
 
         Dewey v. Peck, 3 Iowa 242 (1872).  The general rule in civil 
 
         litigation so that with regard to any occurrence or accident, all 
 
         claims, theories of recovery and defenses must be raised and 
 
         tried at the trial or they are thereafter barred.  The doctrines 
 
         of res judicata and issue preclusion exist because (1) parties 
 
         should not be harassed by multiple litigations of the same case; 
 
         (2) rights of litigants should be established and not changed; 
 
         (3) efficient use of tribunals precludes retrial of the same 
 
         case; and, (4) prestige of the tribunal is lost if its decisions 
 
         are easily changed.  The general trend is to expand the theories 
 
         of res judicata or preclusion rather than to limit them.  A. 
 
         Vestil,Res Judicata/Preclusion, Chapters 4 & 5 (1969).
 
         
 
              Under I.R.C.P. 219 a judgment is defined as "every final 
 
         adjudication of any of the rights of the parties in an action..." 
 
         When tried to the court, the court issues written findings of 
 
         fact, separately stated conclusions of law and directs an 
 
         appropriate judgment.  The only time when an existing issue in a 
 
         case is not determined by the judgment is if it has been 
 
         bifurcated by a previously entered order in accordance with 
 
         I.R.C.P. 105 or 176.  Agency issues are bifurcated by Rule 
 
         343-4.2.  Orders which bifurcate issues are typically made both 
 
         in the courts and before the agency when the prehearing 
 
         conference is conducted.  In both forums issues that are not 
 
         raised at the prehearing conference, regardless of pleading 
 
         technicalities, are not permitted to be raised at the hearing or 
 
         trial.  In agency practice the failure to raise an issue 
 
         constitutes a waiver of that issue.  It has been applied to 
 
         prevent the defenses in the nature of notice under section 85.23, 
 
         limitations of action under section 85.26 and lack of 
 
         employer-employee status.  There is no generally recognized 
 
         precedent which permits defenses or issues to survive if they are 
 
         not timely raised.
 
         
 

 
         
 
         
 
         
 
         BAKALAR V. WOODWARD STATE HOSPITAL-SCHOOL
 
         Page  13
 
         
 
         
 
              The recent case of Olson v. Department of Transportation, 
 
         File No. 738244 (1986) is somewhat inconsistent with the other 
 
         precedents both within the agency and in general civil 
 
         litigation.
 
         
 
              Olson, contrary to the generally recognized practices, 
 
         allows the unraised 85.38(2) defense to survive the hearing and 
 
         places the burden of raising the issue and proving the lack of 
 
         the employer's entitlement to the credit on the claimant.  The 
 
         Olson decision specifically allowed the employer to take a 
 
         credit, even though facts showing entitlement to a credit had not 
 
         been established.  It is a precedent wherein the agency condones 
 
         non-payment of its awards due to collateral source payments even 
 
         though the facts which might warrant application of the credit 
 
         have not been established.
 
         
 
              The only reason Olson gives for its result is to avoid a 
 
         windfall to the claimant.  Wilson Food Corp. v. Cherry, 315 
 
         N.W.2d 756 (Iowa 1982).  The Olson case seems to treat group 
 
         benefit payments as the legal equivalent of payments made under 
 
         Chapter 85. Some distinctions do exist.  Group benefit payments 
 
         are not required to be reported to the agency under Code section 
 
         86.13. Group benefit payments have not been construed to 
 
         conclusively establish notice of injury under section 85.23. They 
 
         have not been held to constitute payment of compensation for 
 
         purposes of the statute of limitation under section 85.26. The 
 
         group benefit payments are paid in satisfaction of a separate 
 
         contractual obligation and are not identified as being made in 
 
         satisfaction of workers' compensation liability.  This is a 
 
         situation that differs substantially from that which exists when 
 
         crediting overpaid healing period benefits to a permanent 
 
         disability award.  Windfalls are not an uncommon occurrence in 
 
         any type of litigation.  They most frequently arise as a result 
 
         of actions taken or omitted by the attorneys representing the 
 
         parties.  If the failure to raise what would have been a valid 
 
         defense results in an award to the claimant, claimant has 
 
         received a windfall recovery.  The defense under section 85.38(2) 
 
         is no different from the others in that regard.  The credit is 
 
         mandatory, rather than discretionary, when the facts supporting 
 
         its application exist.  Windfalls arise only when defense council 
 
         fails to either obtain a stipulation from the claimant's counsel 
 
         that the credit is due or, identify the issue at the prehearing 
 
         conference.  Since the employer, rather than the claimant, makes 
 
         the actual payment to purchase the group coverage, selects the 
 
         provider of the group coverage and deals directly with the policy 
 
         instruments, it would seem that the employer would be in the 
 
         better position to have access to the terms and conditions of the 
 
         policy under which the group benefit is provided.
 
         
 
              Parties resort to litigation, before this agency and in the 
 
         courts, in order to obtain a final determination of their 
 
         relative rights and responsibilities.  When the agency makes a 
 
         final decision, the same may be enforced by having it entered as 
 
         a judgment in the District Court under section 86.4,2. It can be 
 
         urged that under Olson the agency decision is not final because 
 
         the issue of credit remains in dispute and undecided.  The 
 
         alternate course of conduct is for the claimant to have judgment 
 
         entered on the award in the District Court without any credit 
 
         being allowed as was done in the case Krohn v. Iowa School for 
 

 
         
 
         
 
         
 
         BAKALAR V. WOODWARD STATE HOSPITAL-SCHOOL
 
         Page  14
 
         
 
         
 
         the Deaf, Misc. No. 57-49, Pottawattamie County District court, 
 
         which is now on appeal to the Supreme Court.  Krohn involved 
 
         agency file numbers 670278 and 683281.  The decision of the 
 
         District Court in Krohn, which held that the defendant had lost 
 
         the right to seek the section 85.38(2) credit by failing to raise 
 
         it as an issue at the prehearing conference is consistent with 
 
         generally recognized principles of procedure.  The court stated, 
 
         in part:
 
         
 
                 This court finds that the Pre-Hearing Report serves a 
 
              salutory purpose of refining the issues for trial and both 
 
              parties, when entering into the Pre-Hearing Report, should 
 
              be bound thereby.
 
         
 
                 Accordingly the state cannot be heard to say after all 
 
              issues are tried and they have agreed that they do not want 
 
              credits to in effect thereafter say that they then want a 
 
              credit against any judgment that results.  To allow such 
 
              would be to allow the deputy commissioner to litigate all 
 
              the known issues as agreed by the parties and if the state 
 
              loses let them make an end run around the deputy's ruling 
 
              and thereafter claim a credit.  Under those circumstances 
 
              they couldn't lose, and the Pre-Hearing Report is 
 
              meaningless.
 
         
 
              In declining to rule upon the credit issue since it was not 
 
         raised at the prehearing conference, even though a ruling was 
 
         requested by both parties, it is recognized that it has been held 
 
         to be an abuse of discretion for a court to deny an amendment to 
 
         pleadings to conform to proof where the parties voluntarily tried 
 
         the issue.  Mooney v. Nagel, 251 Iowa 1052, 103 N.W.2d 76 (1960).  
 
         The practice of declining to permit an amendment to conform to 
 
         the proof of an issue voluntarily tried seems little different 
 
         from declining to rule upon an issue which was not raised at the 
 
         prehearing conference but which the parties agree and request to 
 
         have decided.  Since the issue of credit under 85.38(2) is not to 
 
         be determined no ruling is made herein regarding the burden of 
 
         raising the issue, the burden of proof of the issue, whether the 
 
         failure of either party to raise the issue prevents it from being 
 
         raised in the future, whether it is necessary for the claimant to 
 
         again petition the agency in order to avoid having the credit be 
 
         applied to her award (rightfully or wrongfully) or whether the 
 
         claimant may enforce her award through section 85.42 of the Code 
 
         without further litigation in the agency on the issue of the 
 
         credit.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On January 23, 1984, Bonnie M. Bakalar was a resident of 
 
         the State of Iowa, employed by the Woodard State Hospital-School 
 
         in the State of Iowa.
 
         
 
              2.  On January 23, 1984, Bonnie M. Bakalar injured her back 
 
         and her left leg when she slipped on ice on the employer's 
 
         premises while she was performing her duties as a licensed 
 
         practical nurse.
 
         
 
              3.  Following the injury claimant was medically incapable of 
 
         performing work in employment substantially similar to that she 
 

 
         
 
         
 
         
 
         BAKALAR V. WOODWARD STATE HOSPITAL-SCHOOL
 
         Page  15
 
         
 
         
 
         performed at the time of injury from January 23, 1984 until July 
 
         16, 1984 when it became medically indicated that further 
 
         significant improvement from the injury was not anticipated.
 
         
 
              4.  The injury sustained by claimant consisted of initially 
 
         a wrenching, twisting or strain of her spine and also of her left 
 
         knee.  Those initial injuries and treatment of those injuries was 
 
         a substantial factor in aggravating a preexisting varicose vein 
 
         condition in claimant's left leg which resulted in the 
 
         development of a deep vein thrombosis in claimant's left leg.
 
         
 
              5.  Claimant is a 51 year old divorced lady who is a high 
 
         school graduate.
 
         
 
              6.  Claimant is a licensed practical nurse and has 
 
         experience in clerical work.
 
         
 
              7.  The injury to claimant's spine was an aggravation of 
 
         preexisting conditions in her spine.
 
         
 
              8.  Prior to the injury claimant was capable of working as a 
 
         LPN but the medical restrictions which have been placed upon her 
 
         render her unable to perform the duties of an LPN at the Woodard 
 
         State Hospital-School.
 
         
 
              9.  Claimant is limited in her ability to bend, squat, lift, 
 
         carry, climb or in general perform rapid or strenuous movements.
 
         
 
         
 
             10.  Claimant's knowledge and training as a LPN and her 
 
         experience in clerical work, together with her residual physical 
 
         capabilities demonstrate that she has residual earning capacity.
 
         
 
             11.  When all the material factors of industrial disability 
 
         are considered, it is found that claimant has sustained a 25 
 
         percent loss of earning capacity as a result of the injuries she 
 
         sustained on January 23, 1984.
 
         
 
             12.  Claimant is not motivated to return to gainful 
 
         employment in view of the loss of permanent disability benefits 
 
         that would result if she were to do so.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant sustained injury to her back and left leg on 
 
         January 23, 1984 which arose out of and in the course of her 
 
         employment with the Woodard State Hospital-School.
 
         
 
              3.  The trauma sustained on January 23, 1984 and the 
 
         treatment applied are a proximate cause of the deep vein 
 
         thrombosis which developed in claimant's left leg.
 
         
 
              4.  Claimant is entitled to compensation for healing period 
 
         under section 85.34(l) commencing on January 23, 1984 and running 
 
         through July 16, 1984.  After allowing credit for amounts 
 
         previously paid as stipulated by the parties, a balance of two 
 

 
         
 
         
 
         
 
         BAKALAR V. WOODWARD STATE HOSPITAL-SCHOOL
 
         Page  16
 
         
 
         
 
         and two-sevenths weeks of compensation for healing period remains 
 
         due.
 
         
 
              5.  When all the applicable factors of industrial disability 
 
         are considered, it is found that claimant has sustained a 25 
 
         percent permanent partial disability, in industrial terms, which 
 
         entitles her to receive 125 weeks of compensation under section 
 
         85.34(2)(u) at the stipulated rate payable commencing July 17, 
 
         1984 as stipulated by the parties.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant two and 
 
         two-sevenths (2 2/7) weeks of compensation for healing period at 
 
         the rate of one hundred sixty-one and 09/100 dollars ($161.09) 
 
         commencing July 1, 1984.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant one 
 
         hundred twenty-five (125) weeks of compensation for permanent 
 
         partial disability at the rate of one hundred sixty-one and 
 
         09/100 dollars ($161.09) commencing July 17, 1984.
 
         
 
         
 
              IT IS FURTHER ORDERED that defendants pay all past due 
 
         accrued amounts in a lump sum together with interest pursuant to 
 
         section 85.30 at the rate of ten percent (10%) per annum.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 

 
         
 
         
 
         
 
         BAKALAR V. WOODWARD STATE HOSPITAL-SCHOOL
 
         Page  17
 
         
 
         
 
         action pursuant to Division of Industrial Commissioner Rule 
 
         343-4.33 including the following:
 
         
 
              Dr. Summers' report                          $150.00
 
              Dr. Summers' deposition testimony             150.00
 
              Johnson, Huney & Vaugh reporters' fees        187.56
 
                           Total                           $487.56
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by the agency pursuant to Division of 
 
         Industrial Commissioner Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 22nd day of May, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G.  TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Arthur C. Hedberg, Jr.
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309-139B
 
         
 
         Mr. Robert Wilson
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                       1108; 1402.30; 1802
 
                                                       1803; 2906
 
                                                       Filed May 22, 1987
 
                                                       MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         BONNIE M. BAKALAR,
 
         
 
              Claimant,
 
         VS.
 
                                                    FILE NO. 756871
 
         WOODWARD STATE HOSPITAL-SCHOOL,
 
         
 
                                                 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; 1802 1803; 2906
 
         
 
              Fifty-one year old claimant slipped on ice wrenching her 
 
         back and left knee.  She developed a deep venous thrombosis in 
 
         the knee which was held to be an aggravation of a preexisting 
 
         condition of varicose veins which was aggravated by the injury 
 
         and treatment employed by the treating physicians.  Claimant 
 
         awarded additional healing period and 25 percent PPD.  Where the 
 
         issue of entitlement to credit under section 85.38(2) was not 
 
         raised at the prehearing conference, it was not addressed in the 
 
         decision even though both parties requested that the issue be 
 
         ruled upon.   A detailed analysis of the procedures involving the 
 
         credit appears.
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
		                   :
 
         ROBERT L. MOSS,           :
 
		                   :
 
              Claimant,		   :
 
		                   :
 
		         vs.       :
 
		                   :      File No. 757108
 
         BARNEY CARLSON d/b/a CARLSON  :
 
         MIDWEST CHIPPING, 	   :
 
		                   :        A P P E A L
 
              Employer, 	   :
 
		                   :      D E C I S I O N
 
		         and       :
 
		                   :
 
         MISSOURI FOREST PRODUCTS  :
 
         ASSOC.,  		   :
 
                  		   :
 
              Insurance Carrier,   :
 
              Defendants.          :
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         April 22, 1991 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         Keokuk, Iowa 52632-1087
 
         
 
         Mr. George E. Wright
 
         Attorney at Law
 
         607 Eighth St.
 
         Fort Madison, Iowa 52627
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed November 18, 1991
 
            BYRON K. ORTON
 
            MAM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            ROBERT L. MOSS,	      :
 
                      		      :
 
                 Claimant, 	      :
 
		                      :
 
           		 vs.          :
 
                     		      :       File No. 757108
 
            BARNEY CARLSON d/b/a CARLSON:
 
            MIDWEST CHIPPING,         :         A P P E A L
 
                      		      :
 
                 Employer, 	      :       D E C I S I O N
 
                      		      :
 
		            and       :
 
                		      :
 
            MISSOURI FOREST PRODUCTS  :
 
            ASSOC.,   		      :
 
                      	 	      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed April 22, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROBERT L. MOSS,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 757108
 
            BARNEY CARLSON d/b/a CARLSON  :
 
            MIDWEST CHIPPING,   :
 
                      :         R E V I E W -
 
                 Employer, :
 
                      :       R E O P E N I N G
 
            and       :
 
                      :        D E C I S I O N
 
            MISSOURI FOREST PRODUCTS :
 
            ASSOC.,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            statement of the case
 
            This is a review-reopening proceeding upon the petition of 
 
            claimant, Robert L. Moss, against his employer, Benny 
 
            Carlson, d/b/a Carlson Midwest Chipping, and Missouri Forest 
 
            Products, insurance carrier.  The case was heard on April 4, 
 
            1991, at the Des Moines County Courthouse in Burlington, 
 
            Iowa.  The record consists of joint exhibits 1 through 5.  
 
            Additionally, the record consists of the testimony of 
 
            claimant.
 
            issues
 
            The issues to be determined are:
 
            
 
            1.  Whether there has been a change of condition since an 
 
            agreement for settlement was approved on December 22, 1986, 
 
            by then Deputy Industrial Commissioner Steven E. Ort; and,
 
            2.  Whether claimant is entitled to additional permanent 
 
            partial disability benefits.
 
            findings of fact
 
            The deputy, having heard the testimony and considered all 
 
            the evidence, finds:
 
            Claimant entered into a settlement agreement with defendants 
 
            on December 1, 1986.  The agreement was approved by then 
 
            Deputy Industrial Commissioner Steven E. Ort on December 22, 
 
            1986.  The settlement agreement provided that claimant had 
 
            sustained an injury to the lower extremity in the amount of 
 
            20 percent.  Claimant was paid for healing period benefits 
 
            and for 44 weeks of permanent partial disability benefits at 
 
            the rate of $254.70 per week.
 
            A review-reopening petition was filed on November 6, 1989.  
 
            Claimant alleged he was entitled to permanent partial 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            disability benefits for the left leg.
 
            At the hearing, claimant testified he was having problems 
 
            with his lower back and with his right leg.  Claimant 
 
            attributed the problems to the way he was walking and using 
 
            his left leg.  He testified that because of his February 2, 
 
            1984 injury to his left leg, he was now placing more weight 
 
            on his right leg, which in turn resulted in pain.  Claimant 
 
            also testified he experienced his back problems in October 
 
            of 1989.
 
            On November 20, 1989, claimant first saw Rick C. Courtney, 
 
            D.C.  Claimant was sent there per his attorney, James 
 
            Hoffman.  Claimant's last treatment with Dr. Courtney was on 
 
            December 7, 1989.  Treatment was conservative in nature.
 
            Dr. Courtney testified by way of deposition.  He described 
 
            claimant's complaints as:
 
            A.  Basically what the patient explained to me that he had a 
 
            twisted knee at that point in time and he did have a sore 
 
            back at the time that he did twist that knee but the injury 
 
            to the knee was what was giving him the most problems that 
 
            required him to go and eventually see an orthopedic surgeon.  
 
            Basically, it seemed, according to his history, that as time 
 
            produced, due to by mechanical problems from a knee injury, 
 
            he started developing a lot of problems with his low back 
 
            and spine and then up to headaches.
 
   ....
 
            Q.  Well, when do you understand that he began having these 
 
            back problems and headaches?
 
            A.  It seemed basically to start, of what I understand from 
 
            his history, that it started slowly, progressively getting 
 
            more and more problems in the low back/hip areas, pelvis, 
 
            started noticing a lot of back stiffness and headaches 
 
            accompanying that and seemed to happen over time.
 
            Q.  Do you know when it started in relation to the February, 
 
            1984 injury date?
 
            A.  No, I don't have a date in my mind, what he told me, 
 
            what the exact date as of like October or whatever of what 
 
            year, that he started having problems.  He just noticed of a 
 
            gradual basis that he was starting to have more and more 
 
            problems with the low back/hip area as well as his spine and 
 
            also headaches.
 
            Q.  And did you understand that those symptoms began within 
 
            a couple or three weeks after the injury?
 
            A.  All I knew from talking with him, that he did have a 
 
            sore hip/low back area after that which is natural with a 
 
            limping knee injury and, you know, you have to guard that 
 
            extremity and you have to be careful of that and it does 
 
            make your hip and low back sore.
 
            
 
            (Joint Exhibit 3, p. 9, ll. 5-14; p. 10, ll. 3-25)
 
            For purposes of an evaluation, Dr. Courtney saw claimant.  
 
            The chiropractor composed the following in his report of 
 
            October 4, 1990:
 
            IMPAIRMENT RATING
 
            The following impairment rating has been given to this 
 
            patient after complete orthopedic, neurologic, physical 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            examination performed on 11-20-89.  Consideration has been 
 
            given to this patients [sic] present and future impairment.  
 
            I feel the patient has reached a point of maximum medical 
 
            improvement under the care of Drs. Barrow and Jochims.
 
            RANGE OF MOTION
 
            Certain ROM were limited to the cervical and dorsolumbar 
 
            spines.  ROM is deferred so not to duplicate any rating = 0% 
 
            W.P.
 
            
 
                 ROM of left knee - Flexion 1203 (105) = 16% L.E.
 
                                    Extion 15% = 4% L.E.
 
            16 C 4 = 19% L.E. = 8% W.P.
 
            SENSORY IMPAIRMENT RATING (SIR)
 
            Greater ouricular neuralgia - bilateral = 38c 3% = 6%W.P.
 
                 
 
                 6%W.P. x 100% (freg.) x 50% (int.) = 3% W.P.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            MOTOR IMPAIRMENT RATING (MIR)
 
                 Superior cluneal (dorsal rami Li-3)  5% x 60% = 3% W.P.
 
                 Dorsal rami T12                      5% x 60% = 3% W.P.
 
                 Dorsal rami S1-53                    5% x 60% = 3% W.P.
 
                 (interferes with activity)
 
                  3c3c3 = 9% W.P.
 
            ADDITION IMPAIRMENT RATING (AIR)
 
            Post - meniscusectomy Surgery left knee = 10% L.E. = 4% W.P.
 
            PERMANENT IMPAIRMENT RATING OF WHOLE PERSON
 
            Summary 9 c 8 c 4 c 3 = 21% W.P.
 
                            20% W.P.
 
            These figures are based on the AMA's Guides to the 
 
            Evaluation of Permanent Impairment, Copyright 1988
 
            RECOMMENDATIONS
 
            It is my opinion that there is no reason to expect any major 
 
            improvement in Mr. Moss [sic] clinical picture in the 
 
            immediate future.  I feel he has reached a point of "maximum 
 
            medical improvement," further care in the form of spinal 
 
            manipulations and physiotherapy should be given P.R.N. to 
 
            support the patients [sic] present state of health.
 
            
 
            (Jt. Ex. 2, pp. 8 and 9)
 
            
 
            Claimant was sent to his treating orthopedic specialist, 
 
            Jerry L. Jochims, M.D., on January 8, 1991.  The examination 
 
            was for purposes of evaluation.  Dr. Jochims opined:
 
               His CURRENT PHYSICAL EXAMINATION demonstrates normal 
 
            signs in his left knee with exception of a very mildly 
 
            positive anterior drawer sign.  Aside from this he has a 
 
            moderately positive compression test.  Varus valgus testing 
 
            are normal with no evidence of ligamentous instability.  
 
            Rotatory strain about the knee is noncontributory.  The only 
 
            localizing tenderness is in the infrapetellar and 
 
            subpatellar area on a patellar compression test.  In 
 
            addition to this his examination in regards to neurologic of 
 
            the lowers is entirely within normal limits.  Straight leg 
 
            raising is normal.  Reflexes normal in the knees and ankles.  
 
            Gross motor testing about the lower extremities is normal 
 
            and ranges of motion in the back, hips, knees and ankles is 
 
            full.  Moderate obesity is noted.
 
               My IMPRESSION after review of normal back and normal knee 
 
            x-rays is that Mr. Moss's left knee has not deteriorated 
 
            radiographically.  I see no progression of an arthritic 
 
            process which is an excellent sign at this juncture this 
 
            long post injury in 1984 and subsequent surgery.  In 
 
            addition to this review of his back x-rays with normal 
 
            findings indicates normal disc space preservation.  No 
 
            evidence of compression fractures noted.  No significant 
 
            spur formation or congenital anomalies of the spine in the 
 
            lumbar region.
 
               Normal examination is noted.  No evidence of quad or calf 
 
            atrophy.
 
               IMPRESSION is that his weight is more likely within a 
 
            reasonable degree of medical certainty related to any 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            aggravation of his knee and/or back than is his old knee 
 
            injury.  I believe that the 20% allocation of impairment in 
 
            my previous rating does account for the fact that there 
 
            would be some future deficits in the knee and certainly I'm 
 
            not even sure that the subpatellar pain that he's noting at 
 
            present is so related to his old injury as to the liklihood 
 
            [sic] of aggravation by his weight.  I believe that his back 
 
            strain/sprain type phenomenon is not a structural anomaly, 
 
            nor do I see any surgical indications.  I cannot relate his 
 
            back problem which had its onset a year to a year and a half 
 
            ago to his knee nor to his old injury and believe again that 
 
            his condition in his back is more likely than not, within a 
 
            reasonably degree of medical certainty related to his 
 
            current weight.
 
               RECOMMENDATIONS at this time are for a back exercise 
 
            program along with leg exercise program with limitation of 
 
            deep knee bends.  I believe that weight reduction is 
 
            imperative and that that successful accomplishment of loss 
 
            of approximately 50 pounds would bring him into a parameter 
 
            of weight more consistent with his stature and which would 
 
            also give him some benefit with relief of the strain load on 
 
            his back and left knee.  It should be noted that I 
 
            reiterated to Mr. Moss my impressions and findings verbally 
 
            and indicated to him what I would have to put in writing and 
 
            he seems to have good understanding of that.
 
            
 
            (Jt. Ex. 5, pp. 13 and 14)
 
            The case law relating to review-reopening proceedings is 
 
            rather extensive.
 
            The opinion of the Iowa Supreme Court in Stice v. 
 
            Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 
 
            452 (1940) stated "that the modification of...[an] award 
 
            would depend upon a change in the condition of the employee 
 
            since the award was made."  The court cited the law 
 
            applicable at that time which was "if on such review the 
 
            commissioner finds the condition of the employee warrants 
 
            such action, he may end, diminish, or increase the 
 
            compensation so awarded" and stated at 1038:
 
            That the decision on review depends upon the condition of 
 
            the employee, which is found to exist subsequent to the date 
 
            of the award being reviewed.  We can find no basis for 
 
            interpreting this language as meaning that the commissioner 
 
            is to re-determine the condition of the employee which was 
 
            adjudicated by the former award.
 
            The court in Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 
 
            N.W.2d 109 (1957) cited prior decisions and added a new 
 
            facet to the review-reopening law by stating at page 69:
 
            But it is also true that unless there is more than a 
 
            scintilla of evidence of the increase, a mere difference of 
 
            opinion of experts or competent observers as to the 
 
            percentage of disability arising from the original injury 
 
            would not be sufficient to justify a different determination 
 
            by another commissioner on a petition for review-reopening.  
 
            Such is not the case before us, for here there was 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            substantial evidence of a worsening of her condition not 
 
            contemplated at the time of the first award.
 
            In a somewhat analogous vein, the Iowa Court of Appeals held 
 
            in Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 
 
            24, 25 (Iowa App. 1978) that a review-reopening petition may 
 
            allow a change in compensation when a claimant has failed to 
 
            improve to the extent initially anticipated.
 
            A major pronouncement came in the case of Gosek v. Garmer 
 
            and Stiles Co., 158 N.W.2d 731 (Iowa 1968).  The opinion 
 
            there, at 732, stated that "[o]n a review-reopening hearing 
 
            claimant has the burden of showing by a preponderance of the 
 
            evidence his right to compensation in addition to that 
 
            accorded by a prior agreement or adjudication."  The opinion 
 
            went on to discuss the common understanding that "if a 
 
            claimant sustained compensable injuries of which he was 
 
            fully aware at time of prior settlement or award, but for 
 
            some unexplainable reason failed to assert it, he cannot, 
 
            for the first time on subsequent review proceedings, claim 
 
            additional benefits."  The opinion continued at 733 "[b]ut 
 
            according to the apparent majority view, if a claimant does 
 
            not know of other employment connected injuries or 
 
            disability at time of any prior agreement or adjudication, 
 
            he is not ordinarily barred from later asserting it as a 
 
            basis for additional benefits."  The court went on to hold 
 
            at 735 that "cause for allowance of additional compensation 
 
            exists on proper showing that facts relative to an 
 
            employment connected injury existed but were unknown and 
 
            could not have been discovered by the exercise of reasonable 
 
            diligence, sometimes referred to as a substantive omission 
 
            due to mistake, at time of any prior settlement or award."
 
            Each of these cases rest upon some disparity between 
 
            claimant's actual or anticipated physical condition at the 
 
            time of the previous assessment and the physical condition 
 
            which exists at the time of the review-reopening proceeding.  
 
            Thus, the question initially becomes has claimant 
 
            established a change in his physical condition since the 
 
            time of the former proceeding.
 
            The required change of condition to satisfy the requirements 
 
            of review-reopening need not rest solely upon a change of 
 
            physical condition if economic hardships causally related to 
 
            a compensable injury but not contemplated within the initial 
 
            award or agreement are demonstrated.  An increase in 
 
            industrial disability may occur without a change in physical 
 
            condition.  A change in earning capacity subsequent to the 
 
            original award which is proximately caused by the original 
 
            injury also constitutes a change in condition.  Blacksmith 
 
            v. All-American, Inc., 290 N.W.2d 348 (1980); McSpadden v. 
 
            Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  The question 
 
            thus secondarily becomes whether or not claimant's 
 
            industrial disability has changed.
 
            With respect to the instant case, claimant has not proven by 
 
            a preponderance of the evidence there has been a change of 
 
            condition since the date the settlement agreement has been 
 
            approved.  Firstly, there is the back complaint.  Dr. 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Courtney did not treat claimant for that complaint until 
 
            November 20, 1989.  That was more than five years after the 
 
            work injury.  A back complaint more than five years after a 
 
            knee injury is too remote in time to relate to claimant's 
 
            February 2, 1984 fall on the ice.  Between the date of the 
 
            original injury and the onset of the back pain, there are 
 
            too many other intervening causes including claimant's 
 
            weight and his various heavy manual labor positions.  
 
            Additionally, there is no objective evidence for claimant's 
 
            back complaints.  Finally, Dr. Jochims, the initial treating 
 
            orthopedic surgeon, has attributed claimant's back condition 
 
            to claimant's current weight.
 
            Secondly, with respect to claimant's left knee, there has 
 
            been no change of condition.  Again, the treating surgeon 
 
            has determined there is no deterioration of the left knee.  
 
            Great deference is given to the opinion of Dr. Jochims.  He 
 
            examined the knee in 1984 shortly after the injury.  He also 
 
            examined the knee nearly seven years later.  He opined there 
 
            was a near normal examination with normal range of motion.  
 
            Dr. Courtney, on the other hand, only examined the left knee 
 
            over five years after the work injury.  While he assessed an 
 
            additional impairment rating of 10 percent more, I am not 
 
            sure how he arrived at this additional 10 percent future.  
 
            More weight is accorded to the opinion of Dr. Jochims.  
 
            There has not been a change of condition since the 
 
            settlement agreement has been approved.
 
            Finally, with respect to the right lower extremity, there is 
 
            no medical evidence which supports any complaints of the 
 
            right leg.  The only evidence presented is the testimony of 
 
            claimant at hearing who states his right leg aches from 
 
            switching his weight to his right leg.  This, in and of 
 
            itself, is not sufficient to establish a change of 
 
            condition.
 
            The next issue to address is whether claimant's medical bill 
 
            for $425 which is owed to Dr. Courtney is covered under 
 
            section 85.27.  That section provides in relevant portion.
 
            Iowa Code section 85.27 provides, in part:
 
            
 
                 The employer, for all injuries compensable under 
 
                 this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.  The employer shall also furnish 
 
                 reasonable and necessary crutches, artificial 
 
                 members and appliances but shall not be required 
 
                 to furnish more than one set of permanent 
 
                 prosthetic devices.
 
            
 
                     ...
 
            
 
                 For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such dissatis
 
                 faction to the employer, in writing if requested, 
 
                 following which the employer and the employee may 
 
                 agree to alternate care reasonably suited to treat 
 
                 the injury.  If the employer and employee cannot 
 
                 agree on such alternate care, the commissioner 
 
                 may, upon application and reasonable proofs of the 
 
                 necessity therefor, allow and order other care.  
 
                 In an emergency, the employee may choose the 
 
                 employee's  care at the employer's expense, 
 
                 provided the employer or the employer's agent 
 
                 cannot be reached immediately.
 
            Here, there was some testimony that claimant and/or his 
 
            attorney attempted to obtain permission from the insurance 
 
            carrier to see Dr. Courtney.  The procedure followed by 
 
            claimant to obtain that permission is unclear.  However, 
 
            claimant testified he saw Dr. Courtney initially for his 
 
            back problem, and claimant did not initially believe the 
 
            back problem was causally related to the knee injury.  The 
 
            major portion of Dr. Courtney's treatment was for spine 
 
            manipulations.  Therefore, it is the determination of the 
 
            undersigned that Dr. Courtney's medical treatment is not 
 
            causally related to the February 2, 1984 injury.  The 
 
            medical expenses are not covered under section 85.27.
 
            order
 
            THEREFORE, it is ordered:
 
            Claimant takes nothing further from these proceedings.
 
            Each party shall bear his/its own costs pursuant to rule 343 
 
            IAC 4.33.
 
            Signed and filed this ____ day of April, 1991.
 
            
 
            
 
                      ______________________________
 
                      MICHELLE A. McGOVERN
 
                      DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr James P Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Keokuk IA 52632-1087
 
            
 
            Mr George E Wright
 
            Attorney at Law
 
            607 Eighth St
 
            Fort Madison IA 52627
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-2905
 
                      Filed April 22, 1991
 
                      Michelle A. McGovern
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROBERT L. MOSS,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 757108
 
            BARNEY CARLSON d/b/a CARLSON  :
 
            MIDWEST CHIPPING,   :
 
                      :         R E V I E W -
 
                 Employer, :
 
                      :       R E O P E N I N G
 
            and       :
 
                      :        D E C I S I O N
 
            MISSOURI FOREST PRODUCTS :
 
            ASSOC.,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1905
 
            Claimant could not prove by a preponderance of the evidence 
 
            there was a change of condition since the date his 
 
            settlement agreement was approved.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
         
 
            JUDITH SEYMOUR,       
 
                        
 
                 Claimant,   
 
                       
 
            vs.         
 
                                                File No. 757523
 
            LIME ROCK SPRINGS CO., INC.,    
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            EMPLOYERS MUTUAL INSURANCE CO., 
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed September 29, 1992 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            
 
            Claimant and defendants shall share the costs of the appeal, 
 
            including the preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of September, 1993.
 
            
 
            
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            Copies To:
 
            
 
            Mr. Leslie E. Stokke
 
            Attorney at Law
 
            837 Higley Bldg
 
            Cedar Rapids, Iowa 52401
 
            
 
            Mr. D. Brian Scieszinski
 
            Attorney at Law
 
            801 Grand Ave., Ste 3700
 
            Des Moines, Iowa 50309-2727
 
            
 
 
         
 
 
 
         
 
                                           5-2404; 5-2500; 5-2600;
 
                                           5-2601.10; 2905
 
                                           Filed September 21, 1993
 
                                           BYRON K. ORTON
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                   
 
         JUDITH SEYMOUR,       
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                              File No. 757523
 
         LIME ROCK SPRINGS CO., INC.,    
 
                                               A P P E A L
 
              Employer,   
 
                                              D E C I S I O N
 
         and         
 
                     
 
         EMPLOYERS MUTUAL INSURANCE CO., 
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         5-2404; 2905
 
         Claimant's petition for review-reopening is barred by section 
 
         85.26.
 
         
 
              The petition for review-reopening was filed on July 17, 
 
         1991.  The evidence indicates that defendants paid weekly 
 
         benefits to claimant.  Exhibit 53 indicates the date of the last 
 
         payment for weekly benefits was made on November 10, 1986.  While 
 
         the arbitration decision was filed on February 22, 1989, no 
 
         weekly benefits were paid subsequent to that date.  The only 
 
         payment which claimant received after the February 22, 1989 
 
         decision date was a check in the amount of $432.00 which was a 
 
         reimbursement for mileage expenditures.  The date of that check 
 
         was May 9, 1989 (Joint Exhibit 54, pages 320-321).  Claimant 
 
         acknowledged in her deposition that subsequent to her arbitration 
 
         decision she only received the one check (Jt. Ex. 59, p. 39, 
 
         lines 1-19).  There was no check issued for weekly benefits.  
 
         Claimant's petition for review-reopening was filed more than 3 
 
         years after November 10, 1986, the date of the last payment of 
 
         weekly benefits.  Claimant's petition for review-reopening is 
 
         barred by section 85.26.
 
         
 
              Claimant cannot now claim that her petition for 
 
         review-reopening is allowable under the "Discovery Rule."  The 
 
         Supreme Court has refused to apply the "Discovery Rule" to the 
 
         three-year limitation period for a review-reopening.  Whitmer v. 
 
         International Paper Co., 314 N.W.2d 411 (Iowa 1982).  Claimant's 
 
         petition for review-reopening is barred.  Claimant is not 
 
         entitled to weekly benefits.
 
         
 
         5-2404; 5-2500; 5-2600; 5-2601.10
 
         Claimant is entitled to certain medical benefits pursuant to 
 
         section 85.27.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                           :
 
            JUDITH SEYMOUR,                :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :
 
                                           :         File No. 757523
 
            LIME ROCK SPRINGS CO., INC.,   :
 
                                           :      A R B I T R A T I O N
 
                 Employer,                 :
 
                                           :         D E C I S I O N
 
            and                            :
 
                                           :
 
            EMPLOYERS MUTUAL INSURANCE CO.,:
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendants.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding pursuant to section 86.14(2) of 
 
            the Iowa Code by Judith Seymour, claimant, against her 
 
            employer, Lime Rock Springs Company, and its insurance 
 
            carrier, Employers Mutual Insurance Companies, defendants.  
 
            Originally the case was heard and an arbitration decision 
 
            was filed on February 22, 1989.  No appeal was taken.
 
            
 
                 A combined petition for medical benefits and a petition 
 
            for review-reopening was filed on July 19, 1991.  The 
 
            hearing on the combined petition was held on June 16, 1992 
 
            at the office of the industrial commissioner in Des Moines, 
 
            Iowa.
 
            
 
                 The record consists of the testimony of claimant.  
 
            Additionally, the record is comprised of joint exhibit 1-60.
 
            
 
                                      ISSUES
 
            
 
                 The issues to be determined are:  1) Whether there is a 
 
            causal relationship between the work injury and any 
 
            temporary or permanent disability; 2) whether claimant is 
 
            entitled to any permanent partial disability benefits; 3) 
 
            whether claimant is entitled to any medical benefits 
 
            pursuant to section 85.27; 4) whether claimant has complied 
 
            with section 85.26 when claimant filed this action before 
 
            the industrial commissioner; and 5) whether claimant's claim 
 
            is barred by the doctrine of issue preclusion.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is now 42-years-old.  She has been 
 
            self-employed for the past six years.  Claimant has operated 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Judy's Country Corner Bar and Restaurant in Centralia, Iowa.
 
            
 
                 Claimant's work injury occurred on February 7, 1984.  A 
 
            bottle fell from a conveyor belt and struck claimant on the 
 
            right facial cheek while she was at her work station.  The 
 
            hearing deputy found the following facts in his decision of 
 
            February 22, 1989:
 
            
 
                 Wherefore, it is found:
 
            
 
                    1.  Claimant was injured on February 7, 1984 
 
                 while working for defendant employer when a bottle 
 
                 came off the conveyor belt and hit claimant in the 
 
                 face severely cutting her nose.
 
            
 
                    2.  Claimant was off work February 8, 1984 
 
                 through May 29, 1984, and October 16, 1984 through 
 
                 December 2, 1984 as a result of her work-related 
 
                 injury of February 7, 1984.
 
            
 
                    3.  Claimant being off work May 2, 1986 through 
 
                 July 14, 1986, December 8, 1986 through December 
 
                 31, 1986, and February 23, 1987 through March 9, 
 
                 1987 was not the result of her February 7, 1984 
 
                 injury.
 
            
 
                    4.  Claimant's present disability is not the 
 
                 result of her injury of February 7, 1984.
 
            
 
                    5.  Claimant has a permanent noticeable scar on 
 
                 the right side of her nose which resulted from her 
 
                 February 7, 1984 injury but this scar has not 
 
                 impaired claimant's usefulness or earnings in the 
 
                 job she held at the time of her injury.
 
            
 
                    6.  Claimant's medical bills and mileage 
 
                 subsequent to and including May 2, 1986 are not 
 
                 the result of claimant's injury of February 7, 
 
                 1984.
 
            
 
                    7.  All of claimant's prior medical bills and 
 
                 mileage connected therewith including the date of 
 
                 the injury of February 7, 1984 to and not 
 
                 including May 2, 1986 are the result of the 
 
                 February 7, 1984 injury.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            The deputy concluded that:
 
            
 
                 Therefore, it is concluded:
 
            
 
                    Claimant's injury on February 7, 1984 arose out 
 
                 of and in the course of her employment.
 
            
 
                    Claimant is not permanently partially disabled 
 
                 as a result of her injury on February 7, 1984.
 
            
 
                    Claimant has a permanent noticeable scar on the 
 
                 right side of her nose.  This scar does not impair 
 
                 the future usefulness and earnings of the employee 
 
                 in the employee's occupation at the time of 
 
                 receiving the injury and, therefore, there is no 
 
                 scheduled loss to this claimant.
 
            
 
                    Claimant's incapacitation beginning February 8, 
 
                 1984 through May 29, 1984 and October 16, 1984 
 
                 through December 2, 1984 are causally connected to 
 
                 claimant's injury on February 7, 1984.
 
            
 
                 Claimant is entitled to temporary total disability 
 
                 benefits for 22 6/7 weeks at the rate of $124.71 
 
                 per week for the period beginning February 8, 1984 
 
                 to May 29, 1984, inclusive, and October 16, 1984 
 
                 [sic] December 2, 1984, inclusive, in the amount 
 
                 of $2,850.50 [sic]
 
            
 
                 No appeal was filed.
 
            
 
                 Subsequent to the filing of the decision, claimant 
 
            filed a motion to correct, vacate or modify final judgment 
 
            order.  The motion was filed on February 22, 1990.  On 
 
            February 27, 1990 the employer and insurance carrier filed a 
 
            resistance to claimant's motion.  The deputy ruled on the 
 
            motion on March 15, 1990.  In his ruling, the deputy wrote:
 
            
 
                 Claimant's motion filed February 22, 1990 is 
 
                 denied.  As provided under Division of Industrial 
 
                 Services Rule 343-4.31, no evidence shall be taken 
 
                 after the hearing.  The record has been closed for 
 
                 over one year.
 
            
 
                 On July 19, 1991 claimant filed her combined petition 
 
            for a review-reopening andts or agreement for settlement as 
 
                 provided by section 86.13 for benefits under this 
 
                 chapter or chapter 85A or 85B has been made and 
 
                 the amount has not been commuted, or if a denial 
 
                 of liability is not filed with the industrial 
 
                 commissioner and notice of the denial is not 
 
                 mailed to the employee, on forms prescribed by the 
 
                 commissioner, within six months of the 
 
                 commencement of weekly compensation benefits, the 
 
                 commissioner may at any time upon proper 
 
                 application make a determination and appropriate 
 
                 order concerning the entitlement of an employee to 
 
                 benefits provided for in section 85.27.  The 
 
                 failure to file a denial of liability does not 
 
                 constitute an admission of liability under this 
 
                 chapter or chapter 85A, 85B, or 86.
 
            
 
                 An original proceeding for benefits must be commenced 
 
            within two years from the date of the occurrence of the 
 
            injury for which benefits are claimed or within three years 
 
            from the date of the last payment of weekly compensation 
 
            benefits if weekly compensation benefits have been paid 
 
            under section 86.13.  Section 85.26(1).  A proceeding in 
 
            review-reopening must be commenced within three years from 
 
            the date of the last payment of weekly benefits under either 
 
            an award for payments or an agreement for settlement.  
 
            Section 85.26(2).  The "discovery rule" may extend the time 
 
            for filing a claim where weekly benefits have not yet been 
 
            paid.  The rule does not extend the time for filing a claim 
 
            where benefits have been paid.  Orr v. Lewis Cent. Sch. 
 
            Dist., 298 N.W.2d 256 (Iowa 1980).  Under the rule, the time 
 
            during which a proceeding may be commenced does not begin to 
 
            run until the claimant, as a reasonable person, should 
 
            recognize the nature, seriousness and probable compensable 
 
            character of the condition.  The reasonableness of 
 
            claimant's conduct is to be judged in light of the 
 
            claimant's education and intelligence.  Claimant must know 
 
            enough about the condition to realize that it is both 
 
            serious and work connected.  Orr, 298 N.W.2d at 261; 
 
            Robinson v. Department of Transp., 296 N.W.2d 809 (Iowa 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            1980).
 
            
 
                 Failure to timely commence an action under the 
 
            limitations statute is an affirmative defense which 
 
            defendants must prove by a preponderance of the evidence.  
 
            DeLong v. Highway Commission, 229 Iowa 700, 295 N.W. 91 
 
            (1940).
 
            
 
                 The petition for review-reopening was filed on July 17, 
 
            1991.  The evidence before this deputy indicates that 
 
            defendants paid weekly benefits to claimant.  Exhibit 53 
 
            indicates the date of the last payment for weekly benefits 
 
            was made on November 10, 1986.  While the arbitration 
 
            decision was filed on February 22, 1989, no weekly benefits 
 
            were paid subsequent to that date.  The only payment which 
 
            claimant received after the February 22, 1989 decision date 
 
            was a check in the amount of $432.00 which was a 
 
            reimbursement for mileage expenditures.  The date of that 
 
            check was May 9, 1989 (Joint Exhibit 54, pages 320-321).  
 
            Claimant acknowledged in her deposition that subsequent to 
 
            her arbitration decision she only received the one check 
 
            (Jt. Ex. 59, p. 39, lines 1-19).  There was no check ip. 97.
 
            
 
                 Claimant can bring a claim for medical benefits at any 
 
            time.  Claimant has the burden of showing the treatment is 
 
            related to the work injury.  Watson v. Hanes Motor Co., I 
 
            Iowa Indus. Comm'r Rep. 356, 358 (1980).  Claimant bears the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            burden of showing charges are reasonable and necessary.  
 
            Poindexter v. Grant's Carpet Service, I-l Iowa Indus. 
 
            Comm'r Dec. 195 (Appeal Dec. 1984).  In order for claimant 
 
            to prevail on the issue of the reasonableness of medical 
 
            charges, claimant is required to present evidence, other 
 
            than the bills themselves to provide that the charges are 
 
            reasonable.  Anderson v. Highrise Construction Specialties, 
 
            Inc., File No. 850996 (Appeal Decision July 1, 1990).
 
            
 
                 Claimant, in her post-trial brief, argues as follows:
 
            
 
                    In the instant case, Claimant's condition has 
 
                 deteriorated since the arbitration award of 
 
                 February 22, 1989.  Said deterioration or 
 
                 worsening of condition has been in regard to 
 
                 continual utilization of multiple daily flushings, 
 
                 changes in medication, antibiotics, continual 
 
                 medical care at Mayo Clinic, and dental 
 
                 involvement and subsequent dental surgery 
 
                 performed by Dr. J. Thomas Howard.
 
            
 
                    Medical reports of Drs. Kern and Howard and the 
 
                 deposition of Dr. Kern illustrate that the care 
 
                 provided by both is for a condition directly 
 
                 related to the accident of February 7, 1984.  Dr. 
 
                 J. Thomas Howard, in his report of March 30, 1992, 
 
                 states, "This report is conclusive that the 
 
                 condition I have treated Judith Seymour for is 
 
                 related to her nose and face injury of 1984."  
 
                 Said report also substantiates the amount of 
 
                 $9,300.00 for dental treatment as a reasonable fee 
 
                 for work performed relating to the injury of 1984.
 
            
 
                    At the time of the prior award, there was no 
 
                 evidence to show that Claimant was aware of the 
 
                 fact that her medications would increase in cost, 
 
                 multiple daily flushings would be an essential 
 
                 part of her life, antibiotics and treatment would 
 
                 have to change and different medications be 
 
                 substituted, and that extensive dental involvement 
 
                 and care would be necessary.  In Gosek v. Garmer 
 
                 and Stiles Co., 158 N.W.2d 731 (Iowa 1968),
 
            
 
                    Cause for allowance of additional 
 
                    compensation exists on proper showing that 
 
                    facts relative to an employment connected 
 
                    injury existed but were unknown and could 
 
                    not have been discovered by the exercise of 
 
                    reasonable diligence, sometimes to [sic] 
 
                    referred to as a substantive omission due to 
 
                    mistake, at time of prior settlement or 
 
                    award.  See id. at 735
 
            
 
                 Defendants, in their brief, argue:
 
            
 
                    Now, some eight years or more after Claimant's 
 
                 alleged injury, Claimant relies upon the opinions 
 
                 of Dr. Kern to argue that all of Claimant's 
 
                 alleged complaints are related to her February 7, 
 
                 1984 injury.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                    It should be noted that Dr. Kern did not 
 
                 indicate that Claimant's present problems were 
 
                 caused by the bottle cap accident on February 7, 
 
                 1984 but indicated that her problems were the 
 
                 result of subsequent surgeries following this 
 
                 injury.  Depo. of Dr. Kern, Ex. 58, pp. 29-30.  As 
 
                 previously mentioned, the arbitration decision 
 
                 found that the subsequent surgeries were unrelated 
 
                 to the injury occurring on February 7, 1984.
 
            
 
                    In the present case, with the exception of 
 
                 Claimant's scar, Claimant's present medical 
 
                 condition and Claimant's subsequent surgeries were 
 
                 found to be unrelated to her February 7, 1984 
 
                 injury in the arbitration decision entered in this 
 
                 case.  Accordingly, pursuant to the doctrines of 
 
                 res judicata and issue preclusion, Claimant cannot 
 
                 now relitigate the issue of whether these 
 
                 conditions were related to this injury and 
 
                 Claimant is not entitled to compensation for any 
 
                 alleged disability or expenses flowing from the 
 
                 medical conditions or surgical procedures which 
 
                 were previously found to be unrelated to her 
 
                 February 7, 1984 injury.
 
            
 
                    Claimant has requested reimbursement for 
 
                 medical expenses related to certain dental work.  
 
                 The evidence in this case establishes such dental 
 
                 work was not related to her February 7, 1984 
 
                 injury.
 
            
 
                    Dr. Kern indicated in his deposition that 
 
                 Claimant's gum problems were unrelated to the 
 
                 bottle cap incident.  Depo. of Dr. Kern, Ex. 58, 
 
                 p. 26.  Dr. Kern also indicated that Claimant's 
 
                 toxic syndrome caused by the amalgam and mercury 
 
                 fillings was also unrelated to the bottle cap 
 
                 incident.  Depo. of Dr. Kern, Ex. 58, pp. 26-27.  
 
                 Dr. Kern indicated that Claimant's bridge work and 
 
                 crown work were also unrelated to the bottle cap 
 
                 incident.  Depo. of Dr. Kern, Ex. 58, p. 27.
 
            
 
                    Claimant testified at the original arbitration 
 
                 hearing that following the fourth surgery 
 
                 involving her nose on February 23, 1987 that she 
 
                 began experiencing pain going into her teeth and 
 
                 gum areas.  Arb. Dec. Ex. 57, p. 356.  Dr. Kern 
 
                 indicated that the surgery Claimant had on 
 
                 February 23, 1987 would be the type of surgery 
 
                 that could cause a patient to have pain into her 
 
                 teeth and gum area.  Depo. of Dr. Kern, Ex. 58, 
 
                 p. 32.  The arbitration decision in this case held 
 
                 that Claimant's surgery on February 23, 1987 was 
 
                 unrelated to Claimant's bottle cap injury on 
 
                 February 7, 1984.  Accordingly Claimant's claim 
 
                 for dental expenses flowing from the February 23, 
 
                 1987 surgery are not recoverable pursuant to the 
 
                 doctrines of res judicata and issue preclusion.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                    Dr. Kern also testified that Claimant had 
 
                 sustained a 50% impairment to her nasal area.  Dr. 
 
                 Kern indicated that the 50% impairment rating was 
 
                 the result of Claimant's subsequent surgeries.  As 
 
                 mentioned before, these surgeries were found to be 
 
                 unrelated to Claimant's bottle cap injury and 
 
                 accordingly any impairment resulting from these 
 
                 unrelated surgeries is not recoverable in this 
 
                 case.
 
            
 
                 Here, claimant is requesting payment or reimbursement 
 
            for medical expenses.  It has been extremely difficult for 
 
            this deputy to decipher claimant's claim.  She has neglected 
 
            to comply with paragraph 10 of the hearing assignment order 
 
            which was filed on February 18, 1992.  That paragraph 
 
            provides that:
 
            
 
                      10.  Requirements for Hearing Exhibits.  All 
 
                 depositions, discovery materials and medical 
 
                 records or reports which are to be considered by 
 
                 the hearing deputy shall be marked before the 
 
                 hearing and offered as an exhibit at the hearing.  
 
                 A party may highlight written materials.  All 
 
                 exhibits, especially medical records and reports, 
 
                 shall be organized by author in chronological form 
 
                 or in such other rational manner.  Each page of an 
 
                 exhibit shall be consecutively numbered.  Medical 
 
                 and non-medical materials shall not be included in 
 
                 the same exhibit.
 
            
 
     
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Claimant alleges she is owed for:
 
            
 
                 Mayo Pharmacy - Rochester               $  174.63
 
                   3-7-88 to 11-28-88
 
            
 
                 Mayo Clinic
 
                   10-28-87 through 10-17-90
 
            
 
                 CHARGES INCURRED:
 
            
 
                 10/28/87                                $  652.60
 
                 11/27/87                                    33.50
 
                 01/19/88                                    63.70
 
                 02/04/88                                    36.00
 
                 03/16/88                                   414.90
 
                 04/27/89                                    38.50
 
                 12/05/89                                    43.00
 
                 08/23/90                                    43.00
 
                 09/13/91                                   135.80
 
                                               TOTAL     $1,461.00
 
            
 
                 PAYMENTS MADE:
 
            
 
            10/20/88          Personal Payment           $  870.00
 
            06/02/89          Personal Payment               50.00
 
            07/21/89          Personal Payment               50.00
 
            09/18/89          Personal Payment               50.00
 
            11/15/89          Personal Payment               79.20
 
            12/08/89          Personal Payment               40.00
 
            02/12/90          Personal Payment               50.00
 
            03/23/90          Personal Payment               50.00
 
            05/30/90          Personal Payment               43.00
 
            10/17/90          Personal Payment               43.00
 
                                               TOTAL     $1,325.20
 
            
 
            BALANCE DUE:  $135.80
 
            
 
            University of Iowa            Unknown from documents 
 
            supplied
 
              4-5-85 to 7-24-87
 
            
 
            Thomas Howard, DDS.                          $9,300.00
 
              12-21-90 to 2-27-92
 
            (Exs. 32 & 33, pp. 192-199)                  (Ex. 32, p. 
 
            191)
 
            
 
            Medical mileage reimbursement                $  432.00
 
            previously paid by defendants            pd     432.00
 
            on 3-20-90                                            
 
            
 
            
 
                 The original arbitration decision divided medical 
 
            expenses into two categories.  The two categories are:  1) 
 
            medical charges and mileage from February 7, 1984 through 
 
            May 2, 1986; and 2) medical charges and mileage from May 3, 
 
            1986 through September 7, 1988, the date which was 15 days 
 
            prior to the date of the arbitration hearing and when all 
 
            exhibits were required to be listed on claimant's original 
 
            exhibit list.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 Since claimant elected not to appeal her decision of 
 
            February 22, 1989, the decision became final agency action.  
 
            Therefore, claimant is precluded from again raising the same 
 
            issue of medical expenses for the period from February 7, 
 
            1984 through May 2, 1986 and from May 3, 1986 through 
 
            September 7, 1988.  Matter of Kios, 346 N.W.2d 25 (Iowa 
 
            1984).
 
            
 
                 Therefore, the only medical benefits remaining to 
 
            discuss are those medical charges which have been incurred 
 
            from September 8, 1988 through May 16, 1992, the date the 
 
            review-reopening discovery deadlines had ended.
 
            
 
                 Claimant has testified that she paid the charges 
 
            incurred at Mayo Clinic.  She has requested reimbursement.  
 
            Claimant also has testified that she had incurred mileage 
 
            for traveling.
 
            
 
                 The medical expenses have been incurred after September 
 
            7, 1988.  Claimant has medical expenses at Mayo on April 27, 
 
            1989.  Claimant had treatment through April 2, 1992.  The 
 
            treatments have been for nasal atrophy.  Nasal atrophy is 
 
            the result of earlier surgeries (Ex. 58, p. 10, l. 21 
 
            through p. 11, l. 2).  Previously, the surgeries have been 
 
            deemed unrelated to claimant's work injury of February 9, 
 
            1984.  Claimant has not met her burden of proof that certain 
 
            medical charges from Mayo Clinic are causally related to 
 
            claimant's facial scar.  Likewise, there is no evidence 
 
            which causally relates claimant's pharmacy charges to her 
 
            work injury of February 7, 1984.  Claimant is not allowed 
 
            reimbursement for medical charges incurred at Mayo because 
 
            of nasal atrophy.
 
            
 
                 Next, there are the dental charges incurred with Dr. 
 
            Howard.  Under Gosek, supra, claimant can include dental 
 
            charges incurred subsequent to the filing of the arbitration 
 
            decision.  These charges were unknown at the time of the 
 
            first hearing, however, if claimant can causally relate the 
 
            charges to the work injury, she may recover the same.  The 
 
            dentist first examined claimant on December 21, 1990.  Dr. 
 
            Howard, in his report of March 30, 1992 causally relates his 
 
            treatment, at least in part, to claimant's work injury of 
 
            February 7, 1984 (Ex. 32, p. 191).  Dr. Howard apportions 
 
            his dental charges to work and nonwork-related charges.  He 
 
            deems $9,300 applicable to the work injury and states the 
 
            $9,300 is reasonable.  His opinion is unrefuted.  Therefore, 
 
            claimant is entitled to the reasonable and necessary dental 
 
            expenses of Dr. Howard which are causally related to the 
 
            February 7, 1984 work injury.  Dr. Howard calculates that 
 
            amount as $9,300.  Defendants are liable for the same.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are liable for reasonable and necessary 
 
            dental expenses of Dr. Howard which are causally related to 
 
            claimant's work injury of February 7, 1984 and which equate 
 
            to nine thousand three hundred and no/l00 dollars 
 
            ($9,300.00).
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 The parties shall pay their own costs pursuant to rule 
 
            343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this agency pursuant to rule 343 IAC 3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Leslie E. Stokke
 
            Attorney at Law
 
            837 Higley Building
 
            Cedar Rapids, Iowa  52402
 
            
 
            Mr. D. Brian Scieszinski
 
            Attorney at Law
 
            801 Grand Avenue  Suite 3700
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                       2404; 2500; 2600; 2601.10; 2905
 
                                       Filed September 29, 1992
 
                                       MICHELLE A. McGOVERN
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                           :
 
            JUDITH SEYMOUR,                :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :
 
                                           :         File No. 757523
 
            LIME ROCK SPRINGS CO., INC.,   :
 
                                           :      A R B I T R A T I O N
 
                 Employer,                 :
 
                                           :         D E C I S I O N
 
            and                            :
 
                                           :
 
            EMLOYERS MUTUAL INSURANCE CO., :
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendants.               :
 
            ___________________________________________________________
 
            
 
            
 
            2404; 2905
 
            Claimant's petition for review-reopening is barred by 
 
            section 85.26.
 
            
 
                 An original proceeding for benefits must be commenced 
 
            within two years from the date of the occurrence of the 
 
            injury for which benefits are claimed or within three years 
 
            from the date of the last payment of weekly compensation 
 
            benefits if weekly compensation benefits have been paid 
 
            under section 86.13.  Section 85.26(1).  A proceeding in 
 
            review-reopening must be commenced within three years from 
 
            the date of the last payment of weekly benefits under either 
 
            an award for payments or an agreement for settlement.  
 
            Section 85.26(2).  The "discovery rule" may extend the time 
 
            for filing a claim where weekly benefits have not yet been 
 
            paid.  The rule does not extend the time for filing a claim 
 
            where benefits have been paid.  Orr v. Lewis Cent. Sch. 
 
            Dist., 298 N.W.2d 256 (Iowa 1980).  Under the rule, the time 
 
            during which a proceeding may be commenced does not begin to 
 
            run until the claimant, as a reasonable person, should 
 
            recognize the nature, seriousness and probable compensable 
 
            character of the condition.  The reasonableness of 
 
            claimant's conduct is to be judged in light of the 
 
            claimant's education and intelligence.  Claimant must know 
 
            enough about the condition to realize that it is both 
 
            serious and work connected.  Orr, 298 N.W.2d at 261; 
 
            Robinson v. Department of Transp., 296 N.W.2d 809 (Iowa 
 
            1980).
 
            
 
                 Failure to timely commence an action under the 
 
            limitations statute is an affirmative defense which 
 

 
            
 
 
 
 
 
 
 
            defendants must prove by a preponderance of the evidence.  
 
            DeLong v. Highway Commission, 229 Iowa 700, 295 N.W. 91 
 
            (1940).
 
            
 
                 The petition for review-reopening was filed on July 17, 
 
            1991.  The evidence before this deputy indicates that 
 
            defendants paid weekly benefits to claimant.  Exhibit 53 
 
            indicates the date of the last payment for weekly benefits 
 
            was made on November 10, 1986.  While the arbitration 
 
            decision was filed on February 22, 1989, no weekly benefits 
 
            were paid subsequent to that date.  The only payment which 
 
            claimant received after the February 22, 1989 decision date 
 
            was a check in the amount of $432.00 which was a 
 
            reimbursement for mileage expenditures.  The date of that 
 
            check was May 9, 1989 (Joint Exhibit 54, pages 320-321).  
 
            Claimant acknowledged in her deposition that subsequent to 
 
            her arbitration decision she only received the one check 
 
            (Jt. Ex. 59, p. 39, lines 1-19).  There was no check issued 
 
            for weekly benefits.  claimant's petition for 
 
            review-reopening was filed more than 3 years after November 
 
            10, 1986, the date of the last payment of weekly benefits.  
 
            Claimant's petition for review-reopening is barred by 
 
            section 85.26.
 
            
 
                 Claimant cannot now claim that her petition for 
 
            review-reopening is allowable under the "Discovery Rule."  
 
            The Supreme Court has refused to apply the "Discovery Rule" 
 
            to the three-year limitation period for a review-reopening.  
 
            Whitmer v. International Paper Co., 314 N.W.2d 411 (Iowa 
 
            1982).  Claimant's petition for review-reopening is barred.  
 
            Claimant is not entitled to weekly benefits.
 
            
 
            
 
            2404; 2500; 2600; 2601.10
 
            Claimant is entitled to certain medical benefits pursuant to 
 
            section 85.27.
 
            
 
                 Claimant, as mentioned earlier, has filed a petition 
 
            for medical benefits pursuant to section 85.27.  Under 
 
            section 85.27 the employer shall furnish reasonable 
 
            surgical, medical, dental, osteopathic, chiropractic, 
 
            podiatric, physical rehabilitation, nursing, ambulance and 
 
            hospital services and supplies for all conditions 
 
            compensable under the workers' compensation law.  The 
 
            employer shall also allow reasonable and necessary 
 
            transportation expenses incurred for those services.  The 
 
            employer has the right to choose the provider of carappeal her decision of 
 
            February 22, 1989, the decision became final agency action.  
 
            Therefore, claimant is precluded from again raising the same 
 
            issue of medical expenses for the period from February 7, 
 
            1984 through May 2, 1986 and from May 3, 1986 through 
 
            September 7, 1988.  Matter of Kios, 346 N.W.2d 25 (Iowa 
 
            1984).
 
            
 
                 Therefore, the only medical benefits remaining to 
 
            discuss are those medical charges which have been incurred 
 
            from September 8, 1988 through May 16, 1992, the date the 
 
            review-reopening discovery deadlines had ended.
 
            
 
                 Claimant has testified that she paid the charges 
 
            incurred at Mayo Clinic.  She has requested reimbursement.  
 
            Claimant also has testified that she had incurred mileage 
 
            for traveling.
 
            
 
                 The medical expenses have been incurred after September 
 
            7, 1988.  Claimant has medical expenses at Mayo on April 27, 
 
            1989.  Claimant had treatment through April 2, 1992.  The 
 
            treatments have been for nasal atrophy.  Nasal atrophy is 
 
            the result of earlier surgeries (Ex. 58, p. 10, l. 21 
 
            through p. 11, l. 2).  Previously, the surgeries have been 
 
            deemed unrelated to claimant's work injury of February 9, 
 
            1984.  Claimant has not met her burden of proof that certain 
 
            medical charges from Mayo Clinic are causally related to 
 
            claimant's facial scar.  Likewise, there is no evidence 
 
            which causally relates claimant's pharmacy charges to her 
 
            work injury of February 7, 1984.  Claimant is not allowed 
 
            reimbursement for medical charges incurred at Mayo because 
 
            of nasal atrophy.
 
            
 
                 Next, there are the dental charges incurred with Dr. 
 
            Howard.  Under Gosek, supra, claimant can include dental 
 
            charges incurred subsequent to the filing of the arbitration 
 
            decision.  These charges were unknown at the time of the 
 
            first hearing, however, if claimant can causally relate the 
 
            charges to the work injury, she may recover the same.  The 
 
            dentist first examined claimant on December 21, 1990.  Dr. 
 

 
            
 
 
 
 
 
 
 
            Howard, in his report of March 30, 1992 causally relates his 
 
            treatment, at least in part, to claimant's work injury of 
 
            February 7, 1984 (Ex. 32, p. 191).  Dr. Howard apportions 
 
            his dental charges to work and nonwork-related charges.  He 
 
            deems $9,300 applicable to the work injury and states the 
 
            $9,300 is reasonable.  His opinion is unrefuted.  Therefore, 
 
            claimant is entitled to the reasonable and necessary dental 
 
            expenses of Dr. Howard which are causally related to the 
 
            February 7, 1984 work injury.  Dr. Howard calculates that 
 
            amount as $9,300.  Defendants are liable for the same.