BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        RONALD DUPREE,
 
        
 
             Claimant,
 
             
 
        vs.
 
                                                  File No. 840913
 
        CITY OF MOUNT PLEASANT, IOWA,
 
                                               A R B I T R A T I O N
 
            Employer,
 
                                                  D E C I S I O N
 
        and
 
        
 
        NORTHWESTERN NATIONAL                         F I L E D
 
        INSURANCE CO.,
 
                                                     JAN 30 1989
 
             Insurance Carrier,
 
             Defendants.                         INDUSTRIAL SERVICES
 
             
 
             
 
                                 STATEMENT OF THE CASE
 
        
 
             This is a proceeding in arbitration brought by claimant, 
 
             Ronald DuPree, against defendant employer, city of Mount 
 
             Pleasant, Iowa, and defendant insurance carrier, Northwestern 
 
             National Insurance Company, to recover benefits under the Iowa 
 
             Workers' Compensation Act as the result of an injury sustained on 
 
             December 10, 1986. This matter and two companion cases involving 
 
             similarly situated claimants was scheduled for hearing on May 10, 
 
             1988 in Burlington, Iowa. At that time, the matter was 
 
             bifurcated and the only issue to be determined was that of 
 
             claimant's weekly rate of compensation.
 
        
 
            By order of August 4, 1988, Deputy Industrial Commissioner 
 
        Helenjean Walleser indicated that a telephone conference call of 
 
        May 9, 1988 resulted in the parties agreeing that the matter 
 
        would be submitted by stipulated record in lieu of evidentiary 
 
        hearing. Deputy Walleser ruled that ample time had been available 
 
        for preparation of such stipulations and ordered the parties to 
 
        submit stipulated records or show cause as to why such 
 
        stipulations could not be timely made within sixty (60) days of 
 
        the order.
 
        
 
            Subsequently, claimant filed a response to that order on 
 
        October 5, 1988, including a proposed stipulation of facts and 
 
        allegations that defendants had failed to respond to the proposed 
 
        stipulations and subsequent correspondence.
 
        
 
            Deputy Walleser entered another order on November 7, 1988 
 
        finding that defendants had failed to comply with the August 4 
 
        order and closing the record as to further evidence regarding the 
 
        rate issue on defendants' part. The proposed stipulations 
 
        submitted by claimant were accepted and the parties given 
 
        forty-five (45) days from the filing of that order in which to 
 
        file briefs.
 
        
 
             Neither party having favored this office with briefs, the 
 

 
        
 
 
 
 
 
             rate issue is now ripe for determination on the stipulated facts 
 
             submitted by claimant.
 
        
 
                                      ISSUE
 
        
 
             Because this matter has been bifurcated, the only issue to 
 
             be determined is that of claimant's appropriate rate of weekly 
 
             compensation.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             On December 10, 1986, Ronald DuPree was attending a city 
 
             council meeting of the city of Mount Pleasant. In a tragic 
 
             incident that received great statewide publicity, Mr. DuPree and 
 
             two others were shot by a gunman disrupting the council meeting, 
 
             Ralph O. Davis. Mr. DuPree suffered wounds to the head and left 
 
             arm.
 
        
 
            Claimant's petition apparently alleges that he was employed 
 
        as a councilperson by the city of Mount Pleasant on the date of 
 
        his injuries. The stipulation referred to above sets forth that 
 
        claimant was employed on a part-time basis as a council member 
 
        from January, 1987 until March, 1987. Of course, this would 
 
        indicate that Mr. DuPree was not so employed at the time he 
 
        sustained his injuries. It is unclear whether this discrepancy 
 
        is based upon a typographical error or otherwise; in any event, 
 
        since the matter has been bifurcated and this issue is before the 
 
        deputy only for a determination of the appropriate rate of 
 
        compensation, it shall be assumed for purposes of this decision 
 
        that claimant was employed as a council member on December 10, 
 
        1986. He received an annual salary of $660.00 from the city of 
 
        Mount Pleasant as council member.
 
        
 
            Claimant was also employed at the time of his injury as a 
 
        sales manager at Blue Bird Midwest and was paid a monthly salary 
 
        of $2,516.67.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             In pertinent part, Iowa Code section 85.36 provides:
 
        
 
             The basis of compensation shall be the weekly earnings of 
 
             the injured employee at the time of the injury. Weekly 
 
             earnings means gross salary, wages, or earnings of an 
 
             employee to which such employee would have been entitled had 
 
             the employee worked the customary hours for the full pay 
 
             period in which the employee was injured, as regularly 
 
             required by the employee's employer for the work or 
 
             employment for which the employee was employed, computed or 
 
             determined as follows and then rounded to the nearest 
 
             dollar:
 
             
 
             * * *
 
             
 
             5. In the case of an employee who is paid on a yearly pay 
 
             period basis, the weekly earnings shall be the yearly 
 
             earnings divided by fifty-two.
 
             
 
             * * *
 
             
 
             10. If an employee earns either no wages or less than the 
 
             usual weekly earnings of the regular full-time adult laborer 
 
             in the line of industry in which the employee is injured in 
 
             that locality, the weekly earnings shall be one-fiftieth of 
 
             the total earnings which the employee has earned from all 
 
             employment during the twelve calendar months immediately 
 

 
        
 
 
 
 
 
             preceding the injury.
 
             
 
             It is clear that the fighting issue to be determined is 
 
             whether claimant's rate would be most appropriately determined 
 
             under section 85.36(5) or 85.36(10). Guidance comes from the 
 
             first, unnumbered paragraph of the section. Weekly earnings are 
 
             defined as gross salary to which claimant would have been 
 
             entitled had he worked the customary hours for the full pay 
 
             period in which he was injured as regularly required by his 
 
             employer "for the work or employment for which the employee was 
 
             employed." Since it is stipulated that claimant was paid on the 
 
             basis of an annual salary, it is evident that subparagraph 5 is 
 
             applicable. Therefore, it must be determined whether subparagraph 
 
             10 is equally applicable, and if so, whether it should be given 
 
             precedence in the rate determination.
 
        
 
            Subparagraph 10 has been discussed in several published 
 
        cases. One authority has commented that the subsection is 
 
        typically used to figure the rate for part-time workers, and is 
 
        beneficial to the worker who holds two jobs and whose injury 
 
        (death) on the part-time job causes an inability to work at 
 
        either job. Lawyer & Higgs, Iowa Workers' Compensation Law and 
 
        Practice, section 12-8, page 100. In Winters v. Te Slaa, I Iowa 
 
        Industrial Commissioner Report, 367 (1981), the industrial 
 
        commissioner determined that the rate for a fatally injured 
 
        part-time truck driver (claimant's decedent) was correctly to be 
 
        determined under section 85.36(10) where he had other wages 
 
        earned during the year prior to his death (although other 
 
        earnings that were not wages from employment were excluded). The 
 
        published decision does not set forth the basis upon which 
 
        claimant was paid by Te Slaa, but only the total wages received 
 
        during the calendar year prior to the fatal injury.
 
        
 
            In Ladd v. Ford Brothers Van & Storage Co., Thirty-fourth 
 
        Biennial Report of the Industrial Commissioner, 177 (1979), a 
 
        review-reopening decision determined by a deputy, claimant was 
 
        hired to load a truck as a spot laborer and broke his wrist on 
 
        the one day that he worked. He was held to be a part-time 
 
        laborer and section 85.36(10) was applied; the deputy questioned 
 
        whether claimant's line of industry would be spot labor or truck 
 
        loader and noted that no evidence was presented regarding what 
 
        would be considered "full-time" or "usual weekly earnings" for 
 
        either employment. In Tomlinson v. Langille, Thirty-fourth 
 
        Biennial Report of the Industrial Commissioner, 333 (1978), an 
 
        arbitration decision filed by a deputy, the parties disputed 
 
        whether claimant was paid on a weekly pay period basis, 
 
        defendants producing evidence reflecting that claimant appeared 
 
        to be a part-time employee. The deputy concluded that claimant 
 
        had failed to establish a full-time employment relationship and 
 
        applied section 85.36(10).
 
        
 
             A similar result was reached in Leslie v. Lucky Stores, 
 
             Inc., Thirty-third Biennial Report of the Industrial 
 
             Commissioner, 55 (1978). The fighting issue was whether claimant 
 
             was a full-time employee to be classed under 85.36(1) or 
 
             85.36(6). The review-reopening decision determined that the 
 
             first inquiry is to whether claimant was a part-time employee, 
 
             and thus required to have the weekly rate determined under 
 
             section 85.36(10). Although the deputy noted that the record was 
 
             inadequate, it was inferred that claimant was not a full-time 
 
             employee since he worked less than 40 hours per week and was 
 
             classified by the employer as a part-time employee. Claimant was 
 
             in that case relegated to the "lower" classification of section 
 
             85.36(10). Lang v. Humboldt Community School, IV Report of the 
 
             Iowa Industrial Commissioner, 220 (1984) was a determination of 
 
             the industrial commissioner involving a similar issue. Claimant 
 

 
        
 
 
 
 
 
             was injured while driving a school bus, but contended that he was 
 
             an employee of a separate business and that his income from both 
 
             sources should be combined in calculating his rate under 
 
             85.36(10). The commissioner determined that claimant's argument 
 
             implied that his wages as a school bus driver were less than the 
 
             regular full-time earnings for that line of industry, but 
 
             determined that the line of industry in question was school bus 
 
             driving and that the regularly scheduled hours claimant worked 
 
             did not represent part-time employment within that category, but 
 
             were full-time wages for that particular line of industry. The 
 
             stipulated facts indicate that claimant was employed "on a 
 
             part-time basis" as a council member. However, this is a legal 
 
             conclusion for the purpose of determining rate and is not subject 
 
             to a binding stipulation, since that would usurp the authority of 
 
             the industrial commissioner. Under the strictures of 
 
             subparagraph lO, the deputy must consider the full-time earnings 
 
             "in the line of industry in which the employee is injured in that 
 
             locality." If the "locality" is construed as meaning Mount 
 
             Pleasant, Iowa, the earnings of the several council members must 
 
             by definition be the "usual weekly earnings of the regular 
 
             full-time adult laborer in the line of industry." If "locality" 
 
             should be more broadly construed to include, for example, 
 
             similarly situated council members in cities of equivalent size 
 
             either within a given geographical radius, judicial district or 
 
             even statewide basis, there is a lack of evidence by which this 
 
             deputy could determine what the regular full-time hours might be. 
 
             A council member of a smaller community such as Mount Pleasant is 
 
             not necessarily directly equivalent to, for example, a council 
 
             member of a city the size of Des Moines. It is also noteworthy 
 
             that the position of council member may well be considered a 
 
             full-time position, even if the salary be only in the nature of a 
 
             token. Surely a political creature such as a councilperson is 
 
             expected to be accessible to the citizenry at all sorts of 
 
             irregular hours, not only through council meetings, but also in 
 
             dealing with complaints about city government departments, award 
 
             ceremonies, public speaking invitations and the like. It might 
 
             well be said that a councilperson is never off duty. If so, such 
 
             a person might never be deemed a truly part-time employee.
 
        
 
             It is apparently claimant's position from the stipulated 
 
             facts that the proper line of industry category to be used is 
 
             that of public administration managers and officials as defined 
 
             by the Dictionary of Occupational Titles published by the United 
 
             States Department of Labor. Yet, Lang v. Humboldt Community 
 
             School, supra., would indicate otherwise. The claimant in that 
 
             case was not classified as a bus driver in general, but a school 
 
             bus driver in particular.
 
        
 
            It as not been shown that section 85.36(10) is as applicable 
 
        to claimant's situation as is section 85.36(5). The latter 
 
        section clearly applies, while the former requires strained 
 
        construction at best. While the statute should be liberally 
 
        construed in favor of claimants, Caterpillar Tractor Company v. 
 
        Shook, 313 N.W.2d 503 (Iowa 1981), that construction must be 
 
        within reason. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
        N.W.2d 660 (1961).
 
        
 
            This deputy is aware that common and long-standing usage in 
 
        the Office of the Industrial Commissioner is to treat the 
 
        subparagraphs of section 85.36 as a descending ladder. That is, 
 
        that the appropriate approach is to begin with the first 
 
        subsection and work down, classifying a given claimant in the 
 
        first or "highest" subsection which appears applicable. However, 
 
        this deputy has discovered no published authority that would 
 
        support this approach and in fact, it is difficult to conceive of 
 
        how the "part-time" provisions of 85.36(10) might ever be applied 
 

 
        
 
 
 
 
 
        if this is the proper interpretation. A review of the statute 
 
        does not persuade this deputy that the legislature intended that 
 
        "higher" subsections be given preference or precedence over 
 
        "lower" subsections. Therefore, this approach is expressly 
 
        rejected. It is held that each subsection of Iowa Code section 
 
        85.36 should be considered in classifying a given claimant, and 
 
        the subsection most nearly encompassing the facts of the given 
 
        case should be employed. In this case, that is section 85.36(5).
 
        
 
             The deputy freely concedes that he is not entirely satisfied 
 
             with this result However, it appears to be mandated by the 
 
             statute. It is arguable that this decision could have the effect 
 
             of acting as a disincentive for public-spirited citizens to 
 
             accept public service positions in city governments. However, 
 
             the legislature has clearly shown the ability to make special 
 
             provisions for classifications such as volunteer firefighter, 
 
             advanced emergency medical care provider or reserve peace officer 
 
             where public policy demands. Iowa Code section 85.36(10)(a).
 
        
 
            Weekly benefits are calculated under Iowa Code section 
 
        85.37. The weekly benefit amount payable to any employee for any 
 
        one week is set forth as upon the basis of 80% of the employee's 
 
        weekly spendable earnings. However, a minimum weekly benefit 
 
        amount must be equal to the weekly benefit amount of a person 
 
        whose gross weekly earnings are 35% of the statewide average 
 
        weekly wage, or to the spendable weekly earnings of the employee, 
 
        whichever is less.
 
        
 
            Claimant was injured on December 10, 1986. The "Guide to 
 
        Iowa Workers' Compensation Claim Handling" published July 1, 
 
        1986, and therefore applicable to this case, is used to calculate 
 
        the benefit amount. The benefit amount set forth in the "Guide" 
 
        incorporates the concept of minimum weekly benefit amount. 
 
        Rounding claimant's gross weekly wage to the nearest dollar, the 
 
        table, at page 1 thereof, discloses that the rate for a married 
 
        individual with two exemptions averaging $13.00 per week is 
 
        $12.07.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             THEREFORE, based on the evidence presented, the following 
 
             ultimate facts are found:
 
        
 
            1. Claimant was injured by gunshot wounds on December 10, 
 
        1986.
 
        
 
            2. At the time of his injury, if claimant was employed by 
 
        the city of Mount Pleasant, Iowa, as councilperson, his annual 
 
        salary was $660.00 (or a weekly average of $12.69).
 
        
 
            3. At the time of his injury, claimant was married and 
 
        entitled to two exemptions.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
             WHEREFORE, based on the principles of law previously stated, 
 
             the following conclusion of law is made:
 
        
 
            1. Claimant's rate of weekly compensation must be 
 
        calculated under Iowa Code section 85.36(5).
 
        
 
                                      ORDER
 
             
 
             THEREFORE, IT IS ORDERED:
 
             
 
             Compensation shall be paid to claimant on the basis of a 
 

 
        
 
 
 
 
 
             weekly benefit amount of twelve and 07/100 dollars ($12.07).
 
        
 
            Because this matter has been bifurcated, the matter shall be 
 
        returned to the assignment docket for further proceedings.
 
        
 
            Signed and filed this 30th day of January, 1989.
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
                                       DAVID RASEY
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Dennis L. Hanssen
 
        Attorney at Law
 
        Suite 111, Terrace Center
 
        2700 Grand Avenue
 
        Des Moines, Iowa 50312
 
        
 
        Mr. Larry L. Shepler
 
        Attorney at Law
 
        Suite 102, Executive Square
 
        400 Main Street
 
        Davenport, Iowa 52801
 
        
 
        
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RONALD DUPREE,
 
         
 
              Claimant,
 
         
 
         vs.                                     File No. 840913
 
         
 
         CITY OF MOUNT PLEASANT, IOWA,               A P P E A L
 
         
 
              Employer,                          D E C I S I 0 N
 
         
 
         and                                          F I L E D
 
         
 
         NORTHWESTERN NATIONAL                       AUG 31 1989
 
         INSURANCE CO.,
 
                                           IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision which 
 
         determined claimant's rate of compensation.  In a ruling dated 
 
         March 17, 1989 the undersigned reinstated claimant's appeal 
 
         because the only issue on appeal is the rate of compensation.  
 
         The determination of that issue is dispositive of this contested 
 
         case.
 
         
 
              The record on appeal consists of the stipulations in this 
 
         matter.  Claimant filed a brief on appeal.
 
         
 
                                      ISSUE
 
              The issue on appeal is the rate of compensation.
 
                              REVIEW OF THE EVIDENCE
 
              The arbitration decision dated January 30, 1989 adequately 
 
         and accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              One preliminary matter needs to be discussed.  In claimant's 
 
         appeal brief the argument is made that the deputy erred in 
 
         rejecting a part of the stipulation.  The part of the stipulation 
 
         in question is the statement that claimant was employed on a 
 
         part-time basis by defendant employer.  While it is normally true 
 
         that stipulations are accepted, there are instances when 
 
         stipulations will be rejected.  Stipulations that are contrary to 
 
         the law or that resolve the conclusion of law at issue in a 
 
         contested case proceeding can be rejected.  The determination 
 
         whether claimant was "part-time" thus possibly making Iowa Code 
 
         section 85.36(10) applicable is the question at issue.  The 
 
         stipulation should be rejected to the extent that it would 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         resolve the conclusion of law at issue in this case.  
 
         Furthermore, while a deputy industrial commissioner may not 
 
         overrule another deputy industrial commissioner, the industrial 
 
         commissioner has the authority to overrule a deputy industrial 
 
         commissioner.  Therefore, the industrial commissioner could, if 
 
         necessary, overrule a deputy who determined that the stipulations 
 
         were to be accepted.  The deputy who made the arbitration 
 
         decision made no error in his treatment of the stipulations.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The issue to be resolved in this case is the rate of 
 
         compensation.  Claimant argues on appeal that Iowa Code section 
 
         85.36(10) is applicable and that as a result, income earned from 
 
         other employment should be included in calculating the proper 
 
         rate of compensation.
 
         
 
              Claimant's argument is not persuasive for a variety of 
 
         reasons.  Claimant cites no legal authority on point in support 
 
         of claimant's argument.  Claimant attempts to argue that an 
 
         elected city official who is paid an annual salary regardless of 
 
         the hours worked is in the same line of industry as other 
 
         employees of the government such as someone who works for the 
 
         Department of Corrections and is paid on a biweekly basis for 
 
         presumedly working forty hours a week.  The line of industry 
 
         involved in this matter is an elected city official who is paid 
 
         on an annual salary.  There is no indication in the record nor no 
 
         argument made that this claimant's earnings as an elected 
 
         official were less than the earnings of other similar elected 
 
         officials.  The deputy correctly discussed that an elected city 
 
         official may well be considered a full-time position because of 
 
         the demands placed on the official. Even if one were to assume 
 
         for the sake of argument that claimant worked less than full time 
 
         for defendant employer, there is no indication from the record in 
 
         this matter that claimant earned less than someone who worked 
 
         "full-time."  That is, there is no indication in the record what 
 
         an elected city official who worked "full-time" would earn.
 
         
 
              The deputy correctly stated:
 
         
 
                   It as [sic] not been shown that section 85.36(10) is as 
 
              applicable to claimant's situation as is section 85.36(5). 
 
              The latter section clearly applies, while the former 
 
              requires strained construction at best.  While the statute 
 
              should be liberally construed in favor of claimants, 
 
              Caterpillar Tractor Company v. Shook, 313 N.W.2d 503 (Iowa 
 
              1981), that construction must be within reason.  Barton v. 
 
              Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              It has not been shown that Iowa Code section 85.36(10) is 
 
         applicable in this case.  By contrast, it is clear that Iowa Code 
 
         section 85.36(5) does apply.  Claimant was paid an annual salary. 
 
         The annual salary should be divided by fifty-two in calculating 
 
         the weekly compensation in this case.
 
         
 
              1.  Claimant was injured by gunshot wounds on December 10, 
 
         1986.
 
         
 
              2.  At the time of his injury, claimant's annual salary, as 
 
         councilperson, was $660.00 (or a weekly average of $12.69).
 
         
 
              3.  At the time of his injury, claimant was married and 
 
         entitled to two exemptions.
 
         
 
                                CONCLUSION OF LAW
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's rate of weekly compensation must be calculated 
 
         under Iowa Code section 85.36(5).
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That compensation shall be paid to claimant on the basis of 
 
         a weekly benefit amount of twelve and 07/100 dollars ($12.07).
 
         
 
              Signed and filed this 31st day of August, 1989.
 
         
 
         
 
         
 
         
 
                                              
 
                                                 DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Suite 102, Executive Square
 
         400 Main Street
 
         Davenport, Iowa  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                           3001, 3003
 
                                            Filed August 31, 1989
 
                                            DAVID E. LINQUIST
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
                                        
 
         RONALD DUPREE,
 
         
 
              Claimant,
 
         
 
         vs.                                     File No. 840913
 
         
 
         CITY OF MOUNT PLEASANT, IOWA,               A P P E A L
 
         
 
              Employer,                          D E C I S I 0 N
 
         
 
         and
 
         
 
         NORTHWESTERN NATIONAL
 
         INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         3001, 3003
 
         
 
              Rate for councilperson was determined on basis of annual 
 
         salary.  Councilperson was employed full time in another job.  
 
         Rate calculated pursuant to Iowa Code section 85.36(5) using only 
 
         the annual salary paid for services as councilperson.  Iowa Code 
 
         section 85.36(10) which would have included income earned from 
 
         occupation in calculating rate was not applicable.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
        
 
 
 
 
 
        
 
                                           3002, 3003
 
                                           Filed January 30, 1989
 
                                           DAVID RASEY
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        RONALD DUPREE,
 
        
 
             Claimant,
 
             
 
        vs 
 
                                            File No. 840913
 
        CITY OF MOUNT PLEASANT, IOWA,
 
                                         A R B I T R A T I O N
 
             Employer,
 
                                            D E C I S I O N
 
        and
 
        
 
        NORTHWESTERN NATIONAL INSURANCE CO.,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        3002, 3002
 
        
 
             Rate for Mayor and councilpersons was determined on basis of 
 
             annual salary, not Iowa Code section 85.36(10).
 
             
 
        
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOANN SANKEY,
 
         
 
              Claimant,                               File No. 840914
 
         
 
         vs.                                            A P P E A L
 
         
 
         CITY OF MOUNT PLEASANT, IOWA,                D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        AUG 31 1989
 
         NORTHWESTERN NATIONAL
 
         INSURANCE CO.,                        IOWA INDUSTRIAL 
 
         COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision which 
 
         determined claimant's rate of compensation.  In a ruling dated 
 
         March 17, 1989 the undersigned reinstated claimant's appeal 
 
         because the only issue on appeal is the rate of compensation.  
 
         The determination of that issue is dispositive of this contested 
 
         case.
 
         
 
              The record on appeal consists of the stipulations in this 
 
         matter.  Claimant filed a brief on appeal.
 
         
 
                                      ISSUE
 
              
 
              The issue on appeal is the rate of compensation.
 
                                        
 
                              REVIEW OF THE EVIDENCE
 
              
 
              The arbitration decision dated January 30, 1989 adequately 
 
         and accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              One preliminary matter needs to be discussed.  In claimant's 
 
         appeal brief the argument is made that the deputy erred in 
 
         rejecting a part of the stipulation.  The part of the stipulation 
 
         in question is the statement that claimant was employed on a 
 
         part-time basis by defendant employer.  While it is normally true 
 
         that stipulations are accepted, there are instances when 
 
         stipulations will be rejected.  Stipulations that are contrary to 
 
         the law or that resolve the conclusion of law at issue in a 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         contested case proceeding can be rejected.  The determination 
 
         whether claimant was "part-time" thus possibly making Iowa Code 
 
         section 85.36(10) applicable is the question at issue.  The 
 
         stipulation should be rejected to the extent that it would 
 
         resolve the conclusion of law at issue in this case.  
 
         Furthermore, while a deputy industrial commissioner may not 
 
         overrule another deputy industrial commissioner, the industrial 
 
         commissioner has the authority to overrule a deputy industrial 
 
         commissioner.  Therefore, the industrial commissioner could, if 
 
         necessary, overrule a deputy who determined that the stipulations 
 
         were to be accepted.  The deputy who made the arbitration 
 
         decision made no error in his treatment of the stipulations.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The issue to be resolved in this case is the rate of 
 
         compensation.  Claimant argues on appeal that Iowa Code section 
 
         85.36(10) is applicable and that as a result, income earned from 
 
         other employment should be included in calculating the proper 
 
         rate of compensation.
 
         
 
              Claimant's argument is not persuasive for a variety of 
 
         reasons.  Claimant cites no legal authority on point in support 
 
         of claimant's argument.  Claimant attempts to argue that an 
 
         elected city official who is paid an annual salary regardless of 
 
         the hours worked is in the same line of industry as other 
 
         employees of the government such as someone who works for the 
 
         Department of Corrections and is paid on a biweekly basis for 
 
         presumedly working forty hours a week.  The line of industry 
 
         involved in this matter is an elected city official who is paid 
 
         on an annual salary.  There is no indication in the record nor no 
 
         argument made that this claimant's earnings as an elected 
 
         official were less than the earnings of other similar elected 
 
         officials.  The deputy correctly discussed that an elected city 
 
         official may well be considered a full-time position because of 
 
         the demands placed on the official. Even if one were to assume 
 
         for the sake of argument that claimant worked less than full time 
 
         for defendant employer, there is no indication from the record in 
 
         this matter that claimant earned less than someone who worked 
 
         "full-time."  That is, there is no indication in the record what 
 
         an elected city official who worked "full-time" would earn.
 
         
 
              The deputy correctly stated:
 
         
 
                   It as [sic] not been shown that section 85.36(10) is as 
 
              applicable to claimant's situation as is section 85.36(5). 
 
              The latter section clearly applies, while the former 
 
              requires strained construction at best.  While the statute 
 
              should be liberally construed in favor of claimants, 
 
              Caterpillar Tractor Company v. Shook, 313 N.W.2d 503 (Iowa 
 
              1981), that construction must be within reason.  Barton v. 
 
              Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              It has not been shown that Iowa Code section 85.36(10) is 
 
         applicable in this case.  By contrast, it is clear that Iowa Code 
 
         section 85.36(5) does apply.  Claimant was paid an annual salary. 
 
         The annual salary should be divided by fifty-two in calculating 
 
         the weekly compensation in this case.
 
         
 
              1.  Claimant was injured by gunshot wounds on December 10, 
 
         1986.
 
              
 
              2.  At the time of her injury, claimant's annual salary, as 
 
         councilperson, was $660.00 (or a weekly average of $12.69).
 
         
 
              3.  At the time of her injury, claimant was married and 
 
         entitled to three exemptions.
 
         
 
                                CONCLUSION OF LAW
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's rate of weekly compensation must be calculated 
 
         under Iowa Code section 85.36(5).
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That compensation shall be paid to claimant on the basis of 
 
         a weekly benefit amount of twelve and 07/100 dollars ($12.07).
 
         
 
              Signed and filed this 31st day of August, 1989.
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Suite 102, Executive Square
 
         400 Main Street
 
         Davenport, Iowa  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            3001, 3003
 
                                            Filed August 31, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOANN SANKEY,
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 840914
 
         
 
         CITY OF MOUNT PLEASANT, IOWA,                  A P P E A L
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         NORTHWESTERN NATIONAL
 
         INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         3001, 3003
 
         
 
              Rate for councilperson was determined on basis of annual 
 
         salary.  Councilperson was employed full time in another job.  
 
         Rate calculated pursuant to Iowa Code section 85.36(5) using only 
 
         the annual salary paid for services as councilperson.  Iowa Code 
 
         section 85.36(10) which would have included income earned from 
 
         occupation in calculating rate was not applicable.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                        
 
 
 
 
 
 
 
 
 
 
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOANNE SANKEY,
 
         
 
              Claimant,                                File No. 840914
 
         
 
         vs.                                        A R B I T R A T I O N
 
                                                      
 
         CITY OF MOUNT PLEASANT, IOWA,                 D E C I S I O N
 
         
 
              Employer,
 
                                                          F I L E D
 
              and
 
                                                         JAN 30 1989
 
         NORTHWESTERN NATIONAL
 
         INSURANCE  CO.,                             INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant, 
 
         Joanne Sankey, against defendant employer, city of Mount 
 
         Pleasant, Iowa, and defendant insurance carrier, Northwestern 
 
         National Insurance Company, to recover benefits under the Iowa 
 
         Workers' Compensation Act as the result of an injury sustained on 
 
         December 10, 1986.  This matter and two companion cases involving 
 
         similarly situated claimants was scheduled for hearing on May 10, 
 
         1988 in Burlington, Iowa.  At that time, the matter was 
 
         bifurcated and the only issue to be determined was that of 
 
         claimant's weekly rate of compensation.
 
         
 
              By order of August 4, 1988, Deputy Industrial Commissioner 
 
         Helenjean Walleser indicated that a telephone conference call of 
 
         May 9, 1988 resulted in the parties agreeing that the matter 
 
         would be submitted by stipulated record in lieu of evidentiary 
 
         hearing. Deputy Walleser ruled that ample time had been available 
 
         for preparation of such stipulations and ordered the parties to 
 
         submit stipulated records or show cause as to why such 
 
         stipulations could not be timely made within sixty (60) days of 
 
         the order.
 
         
 
              Subsequently, claimant filed a response to that order on 
 
         October 5, 1988, including a proposed stipulation of facts and 
 
         allegations that defendants had failed to respond to the proposed 
 
         stipulations and subsequent correspondence.
 
         
 
              Deputy Walleser entered another order on November 7, 1988 
 
         finding that defendants had failed to comply with the August 4 
 
         order and closing the record as to further evidence regarding the 
 
         rate issue on defendants' part.  The proposed stipulations 
 
         submitted by claimant were accepted and the parties given 
 
         forty-five (45) days from the filing of that order in which to 
 
         file briefs.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Neither party having favored this office with briefs, the 
 
         rate issue is now ripe for determination on the stipulated facts 
 
         submitted by claimant.
 
              
 
                                      ISSUE
 
         
 
              Because this matter has been bifurcated, the only issue to 
 
         be determined is that of claimant's appropriate rate of weekly 
 
         compensation.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              On December 10, 1986, Joanne Sankey was attending a city 
 
         council meeting of the city of Mount Pleasant as a council 
 
         member. In a tragic incident that received great statewide 
 
         publicity, Ms. Sankey and two others were shot by a gunman 
 
         .disrupting the council meeting, Ralph O. Davis.  Ms. Sankey 
 
         suffered wounds to the head and back.
 
         
 
              Claimant was paid an annual salary of $660.00 for her 
 
         services as council member.  She was also employed at the time of 
 
         her injury as a dietician for the Iowa Department of Corrections 
 
         and was paid a biweekly stipend of $1,141.60.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              In pertinent part, Iowa Code section 85.36 provides:
 
         
 
              The basis of compensation shall be the weekly earnings of 
 
              the injured employee at the time of the injury.  Weekly 
 
              earnings means gross salary, wages, or earnings of an 
 
              employee to which such employee would have been entitled had 
 
              the employee worked the customary hours for the full pay 
 
              period in which the employee was injured, as regularly 
 
              required by the employee's employer for the work or 
 
              employment for which the employee was employed, computed or 
 
              determined as follows and then rounded to the nearest 
 
              dollar:
 
         
 
              * * *
 
         
 
              5.  In the case of an employee who is paid on a yearly pay 
 
              period basis, the weekly earnings shall be the yearly 
 
              earnings divided by fifty-two.
 
         
 
              * * *
 
         
 
              10.  If an employee earns either no wages or less than the 
 
              usual weekly earnings of the regular full-time adult laborer 
 
              in the line of industry in which the employee is injured in 
 
              that locality, the weekly earnings shall be one-fiftieth of 
 
              the total earnings which the employee has earned from all 
 
              employment during the twelve calendar months immediately 
 
              preceding the injury.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is clear that the fighting issue to be determined is 
 
         whether claimant's rate would be most appropriately determined 
 
         under section 85.36(5) or 85.36(10).  Guidance comes from the 
 
         first, unnumbered paragraph of the section.  Weekly earnings are 
 
         defined as gross salary to which claimant would have been 
 
         entitled had he worked the customary hours for the full pay 
 
         period in which he was injured as regularly required by his 
 
         employer "for the work or employment for which the employee was 
 
         employed."  Since it is stipulated that claimant was paid on the 
 
         basis of an annual salary, it is evident that subparagraph 5 is 
 
         applicable. Therefore, it must be determined whether subparagraph 
 
         10 is equally applicable, and if so, whether it should be given 
 
         precedence in the rate determination.
 
         
 
              Subparagraph 10 has been discussed in several published 
 
         cases.  One authority has commented that the subsection is 
 
         typically used to figure the rate for part-time workers, and is 
 
         beneficial to the worker who holds two jobs and whose injury 
 
         (death) on the part-time job causes an inability to work at 
 
         either job.  Lawyer & Higgs, Iowa Workers' Compensation Law and 
 
         Practice, section 12-8, page 100.  In Winters v. Te Slaa, I Iowa 
 
         Industrial Commissioner Report, 367 (1981), the industrial 
 
         commissioner determined that the rate for a fatally injured 
 
         part-time truck driver (claimant's decedent) was correctly to be 
 
         determined under section 85.36(10) where he had other wages 
 
         earned during the year prior to his death (although other 
 
         earnings that were not wages from employment were excluded).  The 
 
         published decision does not set forth the basis upon which 
 
         claimant was paid by Te Slaa, but only the total wages received 
 
         during the calendar year prior to the fatal injury.
 
         
 
              In Ladd v. Ford Brothers Van & Storage Co., Thirty-fourth 
 
         Biennial Report of the Industrial Commissioner, 177 (1979), a 
 
         review-reopening decision determined by a deputy, claimant was 
 
         hired to load a truck as a spot laborer and broke his wrist on 
 
         the one day that he worked.  He was held to be a part-time 
 
         laborer and section 85.36(10) was applied; the deputy questioned 
 
         whether claimant's line of industry would be spot labor or truck 
 
         loader and noted that no evidence was presented regarding what 
 
         would be considered "full-time" or "usual weekly earnings" for 
 
         either employment.  In Tomlinson v. Langille, Thirty-fourth 
 
         Biennial Report of the Industrial Commissioner, 333 (1978), an 
 
         arbitration decision filed by a deputy, the parties disputed 
 
         whether claimant was paid on a weekly pay period basis, 
 
         defendants producing evidence reflecting that claimant appeared 
 
         to be a part-time employee.  The deputy concluded that claimant 
 
         had failed to establish a full-time employment relationship and 
 
         applied section 85.36(10).
 
              
 
              A similar result was reached in Leslie V. Lucky Stores,Inc., 
 
         Thirty-third Biennial Report of the Industrial Commissioner, 55 
 
         (1978).  The fighting issue was whether claimant was a full-time 
 
         employee to be classed under 85.36(1) or 85.36(6).  The 
 
         review-reopening decision determined that the first inquiry is to 
 
         whether claimant was a part-time employee, and thus required to 
 
         have the weekly rate determined under section 85.36(10).  
 
         Although the deputy noted that the record was inadequate, it was 
 
         inferred that claimant was not a full-time employee since he 
 
         worked less than 40 hours per week and was classified by the 
 
         employer as a part-time employee.  Claimant was in that case 
 
         relegated to the "lower" classification of section 85.36(10).   
 
         Lang v. Humboldt Community School, IV Report of the Iowa 
 
         Industrial Commissioner, 220 (1984) was a determination of the 
 
         industrial commissioner involving a similar issue.  Claimant was 
 
         injured while driving a school bus, but contended that he was an 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         employee of a separate business and that his income from both 
 
         sources should be combined in calculating his rate under 
 
         85.36(10).  The commissioner determined that claimant's argument 
 
         implied that his wages as a school bus driver were less than the 
 
         regular full-time earnings for that line of industry, but 
 
         determined that the line of industry in question was school bus 
 
         driving and that the regularly scheduled hours claimant worked 
 
         did not represent part-time employment within that category, but 
 
         were full-time wages for that particular line of industry.  The 
 
         stipulated facts indicate that claimant was employed "on a 
 
         part-time basis" as a council member.  However, this is a legal 
 
         conclusion for the purpose of determining rate and is not subject 
 
         to a binding stipulation, since that would usurp the authority of 
 
         the industrial commissioner.  Under the strictures of 
 
         subparagraph 10, the deputy must consider the full-time earnings 
 
         "in the line of industry in which the employee is injured in that 
 
         locality."  If the "locality" is construed as meaning Mount 
 
         Pleasant, Iowa, the earnings of the several council members must 
 
         by definition be the "usual weekly earnings of the regular 
 
         full-time adult laborer in the line of industry."  If "locality" 
 
         should be more broadly construed to include, for example, 
 
         similarly situated council members in cities of equivalent size 
 
         either within a given geographical radius, judicial district or 
 
         even statewide basis, there is a lack of evidence by which this 
 
         deputy could determine what the regular full-time hours might be.  
 
         A council member of a smaller community such as Mount Pleasant is 
 
         not necessarily directly equivalent to, for example, a council 
 
         member of a city the size of Des Moines. It is also noteworthy 
 
         that the position of council member may well be considered a 
 
         full-time position, even if the salary be only in the nature of a 
 
         token.  Surely a political creature such as a councilperson is 
 
         expected to be accessible to the citizenry at all sorts of 
 
         irregular hours, not only through council meetings, but also in 
 
         dealing with complaints about city government departments, award 
 
         ceremonies, public speaking invitations and the like.  It might 
 
         well be said that a councilperson is never off duty.  If so, such 
 
         a person might never be deemed a truly, part-time employee.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is apparently claimant's position from the stipulated 
 
         facts that the proper line of industry category to be used is 
 
         that of public administration managers and officials as defined 
 
         by the Dictionary of Occupational Titles published by the United 
 
         States Department of Labor.  Yet, Lang v. Humboldt Community 
 
         School, supra., would indicate otherwise.  The claimant in that 
 
         case was not classified as a bus driver in general, but a school 
 
         bus driver in particular.
 
         
 
              It has not been shown that section 85.36(10) is as 
 
         applicable to claimant's situation as is section 85.36(5).  The 
 
         latter section clearly applies, while the former requires 
 
         strained construction at best.  While the statute should be 
 
         liberally construed in favor of claimants, Caterpillar Tractor 
 
         Company v. Shook, 313 N.W.2d 503 (Iowa 1981), that construction 
 
         must be within reason.  Barton v. Nevada Poultry Co., 253 Iowa 
 
         285, 110 N.W.2d 660 (1961).
 
         
 
              This deputy is aware that common and long-standing usage in 
 
         the office of the Industrial Commissioner is to treat the 
 
         subparagraphs of section 85.36 as a descending ladder.  That is, 
 
         that the appropriate approach is to begin with the first 
 
         subsection and work down, classifying a given claimant in the 
 
         first or "highest" subsection which appears applicable.  However, 
 
         this deputy has discovered no published authority that would 
 
         support this approach and in fact, it is difficult to conceive of 
 
         how the "part-time" provisions of 85.36(10) might ever be applied 
 
         if this is the proper interpretation.  A review of the statute 
 
         does not persuade this deputy that the legislature intended that 
 
         "higher" subsections be given preference or precedence over 
 
         "lower" subsections.  Therefore, this approach is expressly 
 
         rejected.  It is held that each subsection of Iowa Code section 
 
         85.36 should be considered in classifying a given claimant, and 
 
         the subsection most nearly encompassing the facts of the given 
 
         case should be employed.  In this case, that is section 85.36(5).
 
         
 
              The deputy freely concedes that he is not entirely satisfied 
 
         with this result.  However, it appears to be mandated by the 
 
         statute.  It is arguable that this decision could have the effect 
 
         of acting as a disincentive for public-spirited citizens to 
 
         accept public service positions in city governments.  However, 
 
         the legislature has clearly shown the ability to make special 
 
         provisions for classifications such as volunteer firefighter, 
 
         advanced emergency medical care provider or reserve peace officer 
 
         where public policy demands.  Iowa Code section 85.36(10)(a).
 
         
 
              Weekly benefits are calculated under Iowa Code section 
 
         85.37. The weekly.benefit amount payable to any employee for any 
 
         one week is set forth as upon the basis of 80% of the employee's 
 
         weekly spendable earnings.  However, a minimum weekly benefit 
 
         amount must be equal to the weekly benefit amount of a person 
 
         whose gross weekly earnings are 35% of the statewide average 
 
         weekly wage, or to the spendable weekly earnings of the employee, 
 
         whichever is less.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was insured on December 10, 1986.  The "Guide to 
 
         Iowa Workers' Compensation Claim Handling" published July 1, 
 
         1986, and therefore applicable to this case, is used to calculate 
 
         the benefit amount.  The benefit amount set forth in the "Guide" 
 
         incorporates the concept of minimum weekly benefit amount. 
 
         Rounding claimant's gross weekly wage to the nearest dollar, the 
 
         table, at page 1 thereof, discloses that the rate for a married 
 
         individual with three exemptions averaging $13.00 per week is 
 
         $12.07.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant was injured by gunshot wounds on December 10, 
 
         1986.
 
         
 
              2.  At the time of her injury, claimant's annual salary, as 
 
         councilperson, was $660.00 (or a weekly average of $12.69).
 
         
 
              3.  At the time of her injury, claimant was married and 
 
         entitled to three exemptions.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              1.  Claimant's rate of weekly compensation must be 
 
         calculated under Iowa Code section 85.36(5).
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Compensation shall be paid to claimant on the basis of a 
 
         weekly benefit amount of twelve and 07/100 dollars ($12.07).
 
         
 
              Because this matter has been bifurcated, the matter shall be 
 
         returned to the assignment docket for further proceedings.
 
         
 
              Signed and filed this 30th day of January, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         Suite 1111 Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Suite 102, Executive Square
 
         400 Main Street
 
         Davenport, Iowa  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            3002, 3003
 
                                            Filed January 30, 1989
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOANNE SANKEY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 840914
 
         CITY OF MOUNT PLEASANT, IOWA,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         NORTHWESTERN NATIONAL
 
         INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         3002, 3003
 
         
 
              Rate for Mayor and councilpersons was determined on basis of 
 
         annual salary, not Iowa Code section 85.36(10).
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         DON D. VER STEEG,   
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                               File No. 840917
 
         CONTRACT TRANSPORT, 
 
                                            A R B I T R A T I O N
 
              Employer, 
 
                                               D E C I S I O N
 
         and       
 
                   
 
         GREAT WEST CASUALTY,     
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by Don Ver 
 
         Steeg, claimant, against Contract Transport, Inc., employer, 
 
         hereinafter referred to as Transport, and Great West Casualty 
 
         Company, insurance carrier, defendants, for the recovery of 
 
         further workers' compensation benefits as the result of an injury 
 
         on December 15, 1986.   A prior  Iowa Code section 86.13 
 
         agreement for settlement for this injury was filed on July 20, 
 
         1989.   On February 21, 1994, a hearing was held on claimant's 
 
         petition herein and the matter was considered fully submitted at 
 
         the close of this hearing. 
 
         
 
              The parties have submitted a hearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  The oral 
 
         testimony and written exhibits received during the hearing are 
 
         set forth in the hearing transcript.         
 
         
 
              With reference to the requested medical benefits, it was 
 
         stipulated that the fees and charges are fair and reasonable but 
 
         the reasonableness of the treatment and its causal connection to 
 
         the  work injury remains an issue to be decided herein.                                                  
 
                                     
 
                                     ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  The extent of claimant's entitlement to additional 
 
         disability benefits.
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
              II. The extent of claimant's entitlement to additional 
 
         medical benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all of the 
 
         evidence, the deputy industrial commissioner finds as follows:
 
         
 
              The statement of facts offered by claimant is adopted in its 
 
         entirety.
 
         
 
              This review-reopening proceeding arises out of an injury 
 
         occurring on December 15, 1986.  Don Ver Steeg was injured when 
 
         he attempted to unhook the fifth wheel on the semi-tractor 
 
         trailer that he operated for the employer.  The fifth wheel was 
 
         stuck and when he jerked on the control, Mr. Ver Steeg was thrown 
 
         back onto his back, landing on the concrete.  He was assisted by 
 
         several postal service employees and taken to the hospital, where 
 
         he was hospitalized for one week.  After release from the 
 
         hospital, Mr. Ver Steeg began his treatment with Dr. Bunten on 
 
         January 5, 1987.  Exhibit 1, p. 1.  Dr. Bunten's initial 
 
         assessment was a compression fracture injury to the L-1 vertebral 
 
         body.  As of June 26, 1987, in response to Mr. Ver Steeg's 
 
         symptoms in the neck, Dr. Bunten stated that MRI scanning showed 
 
         mild degenerative changes at the C5-C6 interspace, but no disc 
 
         protrusion and that an old avulsion fracture of the C-7 spinous 
 
         process was noted.  Mr. Ver Steeg underwent periodic evaluation 
 
         by Dr. Bunten and underwent physical therapy and work-hardening 
 
         treatment.
 
         
 
              On December 11, 1987, Dr. Bunten issued a work release for 
 
         light duty work activities as of December 14, 1987, almost 
 
         exactly one year after the date of injury.  Mr. Ver Steeg 
 
         testified that prior to the injury, he had been working an 
 
         average of 49 to 51 hours per week, which involved five nights of 
 
         performing the Waterloo run and one night of performing the Rock 
 
         Island run.  Mr. Ver Steeg testified that prior to the injury, he 
 
         would routinely accept extra work assignments on top of his 
 
         regularly scheduled work duties.
 
          
 
              Mr. Ver Steeg remained on the 17 1/2 hour work schedule 
 
         until May or June of 1989, when his schedule began to be 
 
         increased to his current 40 1/4 to 40 1/2 hours per week.  The 
 
         parties settled Mr. Ver Steeg's arbitration claims by settlement 
 
         documents filed with the Industrial Commissioner on July 20, 
 
         1989.  Exhibit 3.  Mr. Ver Steeg's cervical spine complaints were 
 
         settled in a special case settlement for the payment of $13,000.  
 
         Mr. Ver Steeg's lumbar spine complaints were settled on an 
 
         agreement for settlement basis for an amount of $2,000.  The 
 
         Supplemental to Agreement for Settlement shows that with this 
 
         payment, 7.38 percent industrial disability was paid by the 
 
         defendants toward the lumbar spine portion of the arbitration 
 
         claim.  Exhibit 3, p. 44.
 
         
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
              The terms of the parties' agreement for settlement provided 
 
         in Paragraph 11 that "the Employer will attempt to return the 
 
         Claimant to approximately a 40 hour per week work schedule and 
 
         the claimant will attempt to work the scheduled offer with no 
 
         guarantees by either party."  Exhibit 3, p. 41.  During the time 
 
         from May to November or December of 1989, Mr. Ver Steeg gradually 
 
         increased his hours worked up the point where he reached the 40 
 
         1/4 to 40 1/2 hours in November or December of 1989.  Mr. Ver 
 
         Steeg has continued to work that schedule since that time.  Mr. 
 
         Ver Steeg has accepted some offers of extra work since that time 
 
         and has declined some offers of extra work.  Mr. Ver Steeg 
 
         testified that he is not usually given offers of extra work, 
 
         because the employer's dispatchers understand the limitations 
 
         that the claimant has as a result of the initial injury.
 
         
 
              Mr. Ver Steeg testified that he is still working under the 
 
         last work restrictions assigned by Dr. Bunten on April 29, 1988.  
 
         Exhibit 1, pp. 11-12.  By its terms, the release recommended that 
 
         Mr. Ver Steeg could work a longer work week of 46 to 50 hours so 
 
         long as the work was on a more regularly scheduled straight run 
 
         that did not involve extra loading, unloading, hooking or 
 
         unhooking, or city type driving, and allowed more regular periods 
 
         of work and rest.  Exhibit 1, p. 6.  As testified to by Ms. 
 
         Nible, to her knowledge these restrictions have not been changed.  
 
         When he last saw Mr. Ver Steeg on June 26, 1992, Dr. Bunten 
 
         stated that Mr. Ver Steeg was getting along about as predicted 
 
         while working 40 hours per week and hooking and unhooking tractor 
 
         trailers, but without loading or unloading.  Exhibit 1, p. 13.  
 
         After an incident in 1993 where Mr. Ver Steeg injured his back at 
 
         home, Dr. McGuire released Mr. Ver Steeg to return to work at his 
 
         previous restrictions.  Exhibit 1, p. 14.  Mr. Ver Steeg 
 
         testified that following the 1993 incident, he returned to the 
 
         same medical status that he had before that incident.  Mr. Ver 
 
         Steeg testified that he has not applied for other work 
 
         assignments which had lifting or scheduling requirements in 
 
         excess of what his restrictions provide.  Ms. Nible testified 
 
         that extra work is provided on an on-call basis, not a 
 
         regularly-scheduled basis.
 
         
 
              Exhibit 4 shows that while Mr. Ver Steeg began his 
 
         employment with Contract Transport on October 22, 1984, and had 
 
         been a full-time employee until the December 15, 1986 injury, he 
 
         is now considered to have a part-time hire date of October 22, 
 
         1984, and a full-time hire date of January 1, 1990.  The 
 
         full-time hire date shown on Exhibit 4 was assigned after Mr. Ver 
 
         Steeg returned to the 40 1/4 to 40 1/2 hour work week in November 
 
         and December of 1989.  Mr. Ver Steeg testified that in the period 
 
         from approximately April of 1989 to January of 1990, when he was 
 
         considered by the employer to be a part-time employee, he had to 
 
         incur personal expense for employment benefits which were 
 
         otherwise paid by the employer for full-time employees.  Mr. Ver 
 
         Steeg testified that the loss of his original seniority date has 
 
         limited his ability to bid to other open positions which might 
 
         afford him more work hours per week than he is currently 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         scheduled to work.  The employer's drivers became unionized after 
 
         Mr. Ver Steeg returned to work and Ms. Nible testified that the 
 
         seniority dates were assigned by the union.  Ms. Nible testified 
 
         that employees were informed that they could contest their 
 
         seniority date within a certain period of time and that Mr. Ver 
 
         Steeg did not do so.  Mr. Ver Steeg testified that he was not 
 
         aware of any time limitation for contesting the assignment of 
 
         seniority dates and that when he did file a grievance over his 
 
         seniority date adjustment, the grievance was denied.
 
         
 
              Mr. Ver Steeg testified that he was released to return to 
 
         the Waterloo run, his original work assignment, by Dr. Bunten in 
 
         April of 1988, pursuant to the April 29, 1988 release.  Exhibit 
 
         1, pp. 11-12.  An opening in his previous work assignment 
 
         occurred at that time because the driver who had the work 
 
         assignment died of a heart attack.  Mr. Ver Steeg testified that 
 
         he did not receive the assignment to his prior run at that time 
 
         and that while he has applied for his prior run on two or three 
 
         occasions that it has come open since April of 1988, he has not 
 
         received the assignment to that run.  Ms. Nible testified that 
 
         while there have been some scheduling changes in recent years, 
 
         the Waterloo run still exists and employees only change scheduled 
 
         runs if the employee requests a change, quits or is fired.
 
         
 
              Mr. Ver Steeg testified that he has continued to receive 
 
         raises in his hourly rate of compensation and that those raises 
 
         are set by the United States Postal Service as requirements for 
 
         the contractors who contract with the postal service for the 
 
         delivery of mail.  Mr Ver Steeg testified that he likes his job 
 
         and wants to continue to work for the employer.  He testified 
 
         that he is able to perform his current work assignment but that 
 
         he must on a daily basis walk, do exercises, and soak in hot 
 
         water to relieve the symptoms that he still experiences.  Mr. Ver 
 
         Steeg testified that he makes every effort to perform the work 
 
         assigned to him to his employer's satisfaction.  Ms. Nible 
 
         testified that from her perspective, Mr. Ver Steeg's work has 
 
         indeed been satisfactory.
 
         
 
              It is further found that claimant received treatment from 
 
         Ronald Buten, M.D., on May 26, 1992 for continued back pain.  
 
         This treatment is found reasonable.  Defendants have contested 
 
         the causal connection of this treatment to the work injury.   Dr. 
 
         Buten clearly states in his report of this treatment that the 
 
         symptoms are residuals from the original work injury.    The 
 
         treatment is found causally connected to the injury of December 
 
         15, 1986.
 
                                 CONCLUSIONS OF LAW
 
         
 
              I.  In a review-reopening proceeding, claimant has the 
 
         burden of establishing by a preponderance of the evidence that he 
 
         suffered a change of condition or a failure to improve as 
 
         medically anticipated as a proximate result of his original 
 
         injury, subsequent to the date of the award or agreement for 
 
         compensation under review, which entitles him to additional 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         compensation.  Deaver v. Armstrong Rubber Co., 170 N.W. 2d 455 
 
         (Iowa 1969).  Meyers v Holiday Inn of Cedar Falls, 272 N.W. 2d 24 
 
         (Iowa Ct. App. 1978).  Such a change of condition is not limited 
 
         to a physical change of 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 under 
 
         Iowa Code section 85.26(2) and 86.14(2).  See McSpadden v Big Ben 
 
         Coal Co., 288 N.W. 2d 181, (Iowa 1980); Blacksmith v 
 
         All-American, Inc. 290 N.W. 2d 348 (Iowa 1980).
 
         
 
              Claimant asserts that he has suffered a non-physical change 
 
         in his earning capacity since the settlement.  Claimant has not 
 
         shown this.   By the terms of the settlement agreement, claimant 
 
         is now experiencing a best case scenario following the 
 
         settlement.  He is working up to 40-41 hours per week.  Even if 
 
         he were not, there was expressly no guarantee of hours at 
 
         Contract Transport.   
 
         
 
              Claimant contends that there was a loss of benefits from not 
 
         being considered full-time until January 1990, however, he has 
 
         not shown that this possibly did not exist at the time of the 
 
         settlement agreement, especially with no guarantee of full-time 
 
         status.  
 
         
 
              Claimant further contends that  a change in his seniority 
 
         date has reduced his ability to obtain a particular route to 
 
         Waterloo, a route that he feels would better accommodate for his 
 
         disability and one that he did before.  But again, he is 
 
         currently working all of the hours contemplated in the settlement 
 
         with no guarantees.  There was no mention of any particular route 
 
         being offered.
 
         
 
              Therefore, no change of condition has been shown and 
 
         claimant is not entitled to a review-reopening award.
 
         
 
              II.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of  reasonable medical expenses incurred for 
 
         treatment of a work injury.    Defendants claim that treatment by 
 
         Dr. Bunten was not authorized and claimant is not entitled to 
 
         reimbursement for the expense of such treatment under Iowa Code 
 
         section 85.27 which provides employers with the right to choose 
 
         the care.  However, section 85.27 applies only to injuries 
 
         compensable under chapters 85 and 85A of the Code and obligates 
 
         the employers to furnish reasonable medical care.  This agency 
 
         has held that it is inconsistent to deny liability or causal 
 
         connection of the care to the injury and the obligation to 
 
         furnish care on one hand and at the same time claim a right to 
 
         choose the care.  Kindhart v Fort Des Moines Hotel I Iowa 
 
         Industrial Comm'r Dec No. 3, 611 (App. Dec 1985);  Barnhart v Maq 
 
         Incorporated, I Ia Ind Commr Rpts 16 (App Dec 1981).   
 
         
 
              As the care was found reasonable and that defendants denied 
 
         liability for such care in the hearing report, the expense will 
 
         be awarded.
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
                                    ORDER
 
         
 
              1.  Claimant's claim for review-reopening is dismissed with 
 
         prejudice.
 
         
 
              2.  Defendants shall pay the bill of Dr. Buten in the amount 
 
         of two hundred twenty dollars ($220.00).    Claimant shall be 
 
         reimbursed if he has paid this bill.  Otherwise, defendants shall 
 
         pay Dr.  Bunten directly along with any lawful late payment 
 
         penalties imposed upon the account by the provider.
 
         
 
              3.  Defendants shall pay the costs of this action pursuant 
 
         to D.I.S. Rule 343 IAC 4.33, including reimbursement to claimant 
 
         for any filing fee paid in this matter.
 
         
 
              4.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to D.I.S. Rule 
 
         343 IAC 3.1.
 
         
 
              Signed and filed this ____ day of April, 1994.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Jon K. Swanson
 
         Attorney at Law
 
         900 Des Moines Bldg.
 
         Des Moines, IA  5031209
 
         
 
         Mr. Stephen W. Spencer
 
         Attorney at Law
 
         P.O. Box 9130
 
         Des Moines, IA  50306-9130
 
         
 
         
 
 
            
 
            
 
            
 
            
 
                                              5-1803
 
                                              Filed April 11, 1994
 
                                              Larry P. Walshire
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DON D. VER STEEG,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 840917
 
            CONTRACT TRANSPORT, 
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            GREAT WEST CASUALTY,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            5-1803
 
            Non-precedential, extent of disability case.
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
                                       2906; 2906; 4100; 51401; 51402.40; 
 
                                       51403.30; 1803.10; 51703; 51803; 
 
                                       53100; 3002; 3003; 52501; 2700 Filed 
 
                                       January 18, 1991 Walter R. McManus, 
 
                                       Jr.
 
         
 
                     DDlORE TlYE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ELOISA 11.  MfiCI~S,
 
         
 
              Cl1imant,
 
         
 
         vs.
 
                                         File Nos.  837488 & 840968 JOIIN 
 
         MOIIRLIlL & CO.,
 
                                          A R B I T R A T I 0 N
 
              Employer,
 
                                              D E C I 5 I 0 N
 
         and
 
         
 
         NATIONAL UNION FIRE INS.,
 
         
 
              Inc'urance Carrier,
 
              Defendants.
 
         
 
         
 
         2906
 
         
 
              Cl)imant's witnesses were not allowed to testify because 
 
         claimant's attorney did not file a witness' and exhibit list 
 
         within IS days of hearing as reuqired by paragraph six of the 
 
         hearing assignment order.  Claimant herself was allowed to testify 
 
         because she was party to the action.
 
         
 
              DefenJtnts' expert witness deposition was allowed in evidence 
 
         even though it was taken during the 15-day period prior to hearing 
 
         because cla~mant's attorney allowed the doctor to be deposed 
 
         during this period, the deposition appeared on defendants' timely 
 
         served exhibit list, and pargarph seven of the hearing a~~ignment 
 
         order provided that all evidentiary depositions need only be taken 
 
         by the date of hearing.
 
         
 
         2906; 400
 
         
 
              Claim~tnt's request to add odd-lot as an issue at the time of 
 
         hearing wa< denied because the petition did not allege this issue, 
 
         it was not designated as an issue at the prehearing conference, it 
 
         was not designated as a hearing issue on the hearing a,signment 
 
         oder, and pargraph eight of the hearing assignment order states 
 
         that amendments to pleadings which materially change the issues 
 
         for hearing are not allowed without a modific~ttion of the hearing 
 
         assignment order.  Claimant had not requested a modification of 
 
         the hearing assignment order prior to MACIAS V. ~OllN MORRELL & 
 
         CO.
 

 
         
 
 
 
 
 
 
 
 
 
         Page 2
 
         
 
         hearing.  Ueputies determine only issues raised at the prehearing 
 
         conference and designated as hearing issues on the hearing 
 
         assignment order.
 
         
 
         51401; 51402.~0; 51403.30
 
         
 
              Claim<tnt was struck by a car in the parking lot.  Later she 
 
         fell off a stand at work.  These admitted injuries were found to 
 
         be the ~~use of temporary and permanent disability based on 
 
         claimant's Testimony and the testimony of claimant's chosen 
 
         treating physician.  He was preferred over three of defendants' 
 
         doctors--one of whom was the regular company paid treating 
 
         physician for all company employees, and the other two were one 
 
         time examiners who were hired only for the purpose of giving an 
 
         opinion to be used in this litigation.
 
         
 
         1803.1
 
         
 
              The injuries were determined to be body as a whole rather 
 
         than scteduled member.  In the automobile accident claimant was 
 
         struck in the pelvis.  The pelvis is the body as a whole.  On both 
 
         injuries cliamant injured her hip.  The hip has been determined to 
 
         be the body as a whole.  Claimant's treating physician gave an 
 
         impairment rating for the body as a whole.
 
         
 
         51801
 
         
 
         
 
              Cl~'imant awarded temporary disability benefits for her time 
 
         off worh.
 
         
 
         51703
 
         
 
              Defendants were entitled to a credit for payments to claimant 
 
         during the same period of time.
 
         
 
         51803; ~3100
 
         
 
              Claimant awarded 10 percent industrial disability.  She was 
 
         21 year old, had a GED, but her learning ability was poor. 
 
         Althoug\\ no doctor imposed restrictions, it appeared she was 
 
         credible in stating she could only sit or stand for limited 
 
         periods of time.  According to a vocational rehabilitation 
 
         consulttnt, hired by claimant, she needed to be retrained which 
 
         was probably true.  She was earning almost $8 per hour at the time 
 
         s)\e was terminated and the rehabilitation consultant said she 
 
         coulJ only probably earn minimum wage ($3.35) to $5 per hour now.  
 
         Claimant had not actively sought work, but was earning about a-- 
 
         much on AbC and food stamps as she had earned the last year she 
 
         worked outside of her home, but opted to care for two minor 
 
         children instead.  Claimant was not motivated to work. There was a 
 
         dispute as to whether claimant was fired because employer could 
 
         not find any work she could do or whether she was fired for 
 

 
         
 
 
 
 
 
 
 
 
 
         excessvie absenteeism.  There was evidence to support MACIAS V. 
 
         JOllN MORRELL & CO.
 
         Page 3
 
         
 
         both reasons for termination.  It appeared claimant was fired 
 
         because of the injury because in spite of her absenteeism employer 
 
         had hired her back earlier ignoring the absenteeism. Her body as a 
 
         whole impairment rating was 3 percent.
 
         
 
         3003; 3003
 
         
 
              The permanent disability appeared to have occurred after the 
 
         second injury and claimant was awarded permanent disability 
 
         benefits based on the higher rate at the later date.
 
         
 
         52501; 2700
 
         
 
              Claimant was denied $955 in medical expense she incurred with 
 
         her own chosen treating physician.  Defendants had admitted 
 
         liability for the injuries and had provided a qualified physician 
 
         and were, therefore, entitled to choose the care.  Claimant did 
 
         not request permission to see this doctor and did not file an 
 
         action requesting alternate care.
 
         
 
         
 
 
 
 
 
 
 
 
 
                     flEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ELOISA 11.  MACIAS,
 
         
 
              Cl~~imant, 
 
                                    r i if-Fl
 
         vs.
 
         JOHN MOf~LL & CO , JhNi L~ 1<J,31File os 837488 & 840968
 
         
 
                                                   A R   I T R A T I  0 N
 
 
 
              Em',loyer,          l~O~s1l1lhl S[~V~[~     oe C I 5 I 0 N
 
 
 
         and
 
         NATIONAl UNION FIRE INS.,
 
         
 
              In<urance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Eloisa Macias, 
 
         claimant, against John Morrell and Company, employer and National- 
 
         Union Fire Insurance Company, insurance carr~er, defendants for 
 
         benefits as the result of an injury which occurred on November 1, 
 
         1986, when claimant was struck by a car in employer's parking lot 
 
         (file number 837488) and another injury on December 3, 1986, when 
 
         claimant slipped off of a stand at work (file number 840968).  A 
 
         hearing was held at Sioux City, Iowa, on January l8, 1989, and the 
 
         case was fully submitted at the close of the ljearing.  The record 
 
         consists of the testimony of Eloisa H. Macias, claimant; joint 
 
         exhibits I through 51 and defendants' exhibit A.  A transcript was 
 
         ordered by the deputy and defendants were charged with the initial 
 
         cost of the transcript with the ultimate cost to be taxed to the 
 
         nonprevailing party pursuant to Iowa CoJe section 86.19(l).  
 
         Claimant was represented by Thomas J. Hoffman.  Defendants were 
 
         represented by Thomas M. plaza. Both attorneys submitted 
 
         outstanding posthearing briefs.
 
         
 
                               PRELIMINARY MATTERS
 
         
 
              Defendants objected to the live testimony of Larry Kreuzberg, 
 
         Kari Oldenkamp, Monica Verros, Alicia Gonzalez, Marilyn VanVoorse, 
 
         and Kimberly Boetger for the reason that claimant did not serve a 
 
         witness list on defendants 15 days prior to the date of hearing as 
 
         required by paragraph six of the hearing assignment order.  The 
 
         hearing assignment order is dated August 22, 1988.  It designates 
 
         that the hearing will be held on January 18, 1909.  Fifteen days 
 
         prior to hearing is January 3, 1909.  Defendants' attorney stated 
 
         that he was given notice of these various witnesses on January 4, 
 
         1989; January 5, 1989; and MACIAS V. JOl-lN MORRELL & CO.
 
         page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
         January 16, 1989.  Claimant's attorney granted that he had not 
 
         served u witness list on defendants fifteen days prior to the date 
 
         of hearing.
 
         
 
              paragraph six of the hearing assignment order provides that a 
 
         list of all witnesses to be called at the hearing shall be served 
 
         \tpon opposing parties no later than fifteen days prior to 
 
         hearing.  It further states that only those witnesses listed will 
 
         be permitted to testify at the hearing unless their testimony is 
 
         clearly rebuttal or sur-rebuttal.
 
         
 
              Defendants' motion was sustained.  The live testimony of the 
 
         foregoi]]g witnesses was not allowed.  It is also noted that the 
 
         hearing assignment order shows that claimant's attorney only 
 
         reserved one and one-half hours for the testimony of only two 
 
         witnesses at the time of the prehearing conference and this 
 
         portion of the hearing assignment order was never amended 
 
         (transcript pages 14-27).
 
         
 
              Clcimant objected to the deposition testimony of Joel T. 
 
         Cotton, M.D., (joint exhibit 46) which was taken on January IO, 
 
         1989, for the reason that Dr. Cotton's name did not appear on a 
 
         witness list served 15 days prior to the date of hearing. 
 
         Defendants introduced the witness list (defendants' exhibit A). 
 
         Defendants' witness and exhibit list showed that it was timely 
 
         served on January 3, 1989.  Although Dr. Cotton's name does not 
 
         appear as one of the live witnesses, the document does show that 
 
         one of defendants' proposed exhibits is the deposition of Dr. Joel 
 
         T. Cotton to be taken on January IO, 1989.  Claimant's counsel 
 
         admitted that he voluntarily grant.ed this concession to 
 
         defendants' attorney prior to hearing.  Furthermore, paragraph 
 
         seven of the hearing assignment order states that all evidentiary 
 
         deposit.i.ons shall be taken by the date of the hearing. 
 
         Claimant's objection to exhibit 46 was overruled.  Joint exhibit 
 
         46, the deposition testimony of Joel T. Cotton, M.D., was admitted 
 
         into evidence (tr. pp. 28-35).
 
         
 
              Claimant then moved to add the issue of whether claimant is 
 
         an odd-lot employee to the hearing issues.  Defendants' objected 
 
         to this motion for the reason that the original notice and 
 
         petition did not allege that claimant was an odd-lot employee and 
 
         this was not designated as a hearing issue at the ti'me of the 
 
         prehearing conference and was not designated as a hearing issue on 
 
         the \iearing assignment order.  paragraph eight of the hearing 
 
         assignment order states that no further amendments to a party's 
 
         pleading which materially change the issues of the hearing will be 
 
         allowed wi.thout a modification of the hearing assignment order.  
 
         Claimant granted that the hearing assignment order had not beett 
 
         modified.
 
         
 
              Claimant's motion to add the issue of whether claimant was an 
 
         odd-j.ot employee was denied (tr. pp. 3-7).  Deputies decide only 
 
         icsues which are raised at the prehearing conference and which ale 
 
         designated as hearing issues on the hearing assignment MACIAS V. 
 
         JOHN MORRELL & CO.
 

 
         
 
 
 
 
 
 
 
 
 
         Page 3
 
         
 
         order.  Presswood v. Iowa Beef processors. Inc., file no. 735442 
 
         (Appeal Decision November l4, 1986).
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the ltearing:
 
         
 
              Thctt an employer-employee relationship existed between 
 
         claimant and employer at the time of the injuries.
 
         
 
              That claimant did sustain an injury on November 1, 1986 and 
 
         an injury on December 3, 1986, each of which arose out of and in 
 
         the course of employment with employer.
 
         
 
              That the rate of compensation for the injury of November 1, 
 
         1986, icE $206.66 per week and that the rate of compensation for 
 
         the injury of December 3, 1986, is $213.85 per week in the event 
 
         of an award of benefits.
 
         
 
              That defendants make no claim for credit for employee 
 
         nonoccuryational group health plan benefits paid to claimant prior 
 
         to hearing.
 
         
 
              That defendants paid claimant 4.714 weeks of temporary 
 
         disability benefits to claimant prior to hearing and that 
 
         defendants are entitled to a credit for these benefits in the 
 
         event of an award of benefits in this case.  More specifically, 
 
         defendants paid claimant 2.143 weeks of temporary disability 
 
         benefits for the injury of November 1, 1986, for the period of 
 
         November 2, 1986 through November 9, 1986' 'and again from 
 
         November 17, 1986 through November 23, 1986, in the total amount 
 
         of $443.32.  Also, defendants paid claimant 2.571 weeks of 
 
         temporary disability benefits for the injury of December 3, 1986, 
 
         for the period from December 4, 1986 through December 21, 1986, in 
 
         the total amount of $550.02.
 
         
 
              That there are no bifurcated claims.
 
         
 
              That the issue of medical benefits as shown on the hearing 
 
         assignment is limited to whether claimant is entitled to the 
 
         expenses of Horst G. Blume, M.D., in the total amount of $995 (ex. 
 
         2, deposition exhibit 14).
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether the injury was the cause of temporary disability.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits, and if so, the nature and extent of benefits to which he 
 

 
         
 
 
 
 
 
 
 
 
 
         is e,ttitled.
 
         
 
         
 
 
 
 
 
 
 
 
 
         MACIAS V. JOI[N MORRELL & CO.
 
         Page 4
 
         
 
              Whether the injury was the cause of permanent disability.
 
         
 
              Wh~'-ther claimant is entitled to permanent disability 
 
         benefit~, and if so, the nature and extent of benefits to which 
 
         claimant is entitled to include whether claimant is entitled to 
 
         schedule member or industrial disability benefits.
 
         
 
              Whether claimant Is entitled to the medical expenses of Horst 
 
         G. Blume, M.D., in the amount of $955.
 
         
 
                                 FINDINGS OF FACT
 
         
 
                CAUSAL CONNECTION-ENTITLEMENT-TEMPORARY DISABILITY
 
         
 
              The injury was the cause of temporary disability and claimant 
 
         is entitled to temporary disability benefits.
 
         
 
              Mad-ion Health Center records and Milton D. Grossman, M.D., 
 
         both gave these two injuries as the sole cause of claimant's 
 
         treatment and time off work for her periods of recovery for these 
 
         two inj\iries.
 
         
 
              Cltimant is entitled to temporary disability benefits for the 
 
         injury of November 1, 1986, from November 2, 1986 through November 
 
         9, 1986, a period one week (ex. 6, p. 1; ex. 16; ex 17). Dr. 
 
         Grossman took claimant off work a second time for the injury of 
 
         November I, 1986, from November 17, 1986 to November 24, 1986, a 
 
         second period of 1.143 weeks (ex. 6, pp. 6-9; ex. 19; ex. 20; ex. 
 
         2l).
 
         
 
              Dr. Grossman took claimant off work for the injury of 
 
         December 3, 1986, beginning on December 4, 1986 to December 22, 
 
         1986, (ex. 6, pp. 10-15; ex. 22; ex. 23).  This is a period of 
 
         2.571 weeks.
 
         
 
              Claimant's entitlement to temporary disability benefits then 
 
         is 4.714 weeks as calculated above.  The parties agreed that 
 
         defendants are entitled to a credit for 4.714 weeks of workers' 
 
         compens<ition benefits paid to claimant prior to hearing.
 
         
 
                      CASUAL CONNECTION-PERMANENT DISABILITY
 
         
 
              The injury was the cause of permanent disability.
 
         
 
              One treating physician, Dr. Grossman, the company paid 
 
         regular treating physician for all of defendants' employees 
 
         concluded, "After reviewing her past history and her physical 
 
         examination and her current x-rays, I am unable to find an organic 
 
         reason for the patient's complaints.  I do not feel that there has 
 
         been any medical impairment." (ex. 13, p. 2).
 
         
 
              At the same time another treating physician, Dr. Blume, 
 

 
         
 
 
 
 
 
 
 
 
 
         testified, "It's my opinion within reason medical probability that 
 
         the patient has sustained a permanent injury as a result of MACIAS 
 
         V, jOIlN MORRELL & CO.
 
         Page 5
 
         
 
         two accidents that the patient sustained, one November 1, 1986 and 
 
         December 3rd, 1986." (ex. 2, p. 20).  When these two opinions are 
 
         compared with all of the other evidence in this case, Dr Blume's 
 
         testimony is preferred over that of Dr. Grossman. Claiman\='s 
 
         first injury was traumatic.  She was struck by a vehicle that left 
 
         tire tread marks on her thigh.  She was hospitalized briefly.  She 
 
         had not fully recovered when she slipped off of the box at work 
 
         and became injured again.  This time she was hospitalized for 
 
         approximately four days.  Claimant testified that she has had 
 
         continuing complaints ever since these two injuries and her 
 
         testimony is corroborated by the reports of Dr. Grosman and Dr. 
 
         Blume.
 
         
 
                TYPE OF DISABILITY-INDUSTRIAL OR SCHEDULED MEMBER
 
         
 
              It is determined that claimant has sustained an industrial 
 
         disability to the body as a whole.
 
         
 
              When claimant was examined at the emergency room at Marion 
 
         Health Center on November I, 1986, the emergency room physician, 
 
         R. J. Creswell, M.D., recorded the following:
 
         
 
              This is a ~~-yearold female, who comes in stating she wa< 
 
              just struck by an automobile in a parking lot.  She states 
 
              the car was travelling at a fairly fast rate of speed when it 
 
              struck her in the left pelvis and left lower thigh region 
 
              knocking her down but not knocking her out.  When she fell, 
 
              she struck the right occipital pottion of her head.  Since 
 
              that time, she has been abl.e to walk but does complain of 
 
              pain in both sides of th'~ pelvis, the left distal femur 
 
              region, right knee region and right occipital region of the 
 
              head.
 
         
 
         exhibit 4 page 3; exhibit 9 page 5
 
         
 
              X-rays of the right knee, left femur, pelvis, skull and neck 
 
         series -dere all negative.  Dr. Creswell diagnosed, "Multiple soft 
 
         tissue t-rauma from car/pedestrian accident." (ex. 4, p. 3; ex. 9, 
 
         p. 5).
 
         
 
              Therefore, it is established that claimant was struck by the 
 
         car in the pelvis.  The pelvis is a part of the body as a whole.
 
         
 
              When claimant slipped off of the stand on December 3, 1986, 
 
         she twisted her left hip.  Dr. Grossman took x-rays of the pelvis 
 
         and left hip which were negative for fracture and he treated the 
 
         left hip and thigh (ex. 6, pp. 10-16).
 
         
 
              The hip is considered to be the body as a whole.  Lauhoff 
 
         Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); 2 A Larson The Law 
 

 
         
 
 
 
 
 
 
 
 
 
         of Workers' Compensation, 58.21, at 10-222 to 10-243 (1979).
 
         
 
              Dr. Blume found permanent impairment to both the left lower 
 
         extremity and also the back.  He stated, "As far as the limb is 
 
         MACIAS V. JOi]N MORRELL & CO.
 
         Page 6
 
         
 
         concerned it is -- it is probably twenty percent as far as the 
 
         left leq is concerned.  And to the low back I came up with a 
 
         figure of about two to five percent." (ex. 2, p. 22).
 
         
 
              John J. Dougherty, M.D., of Sioux City, a ~eurosurgeon and 
 
         Joel T. Cotton, M.D., a neurologist from Omaha, both concluded 
 
         that claimant did not sustain any permanent impairment to either 
 
         the left leg or her back (exs. 8, 46 & 47).  These doctors were 
 
         not treating physicians.  On the contrary, they were independent 
 
         medica]- evaluators for the defendants who each only saw the 
 
         claimant one time for the sole purpose of making an examination to 
 
         be used by defendants in this litigation.  Dr. Grossman, the 
 
         regularly retained company physician, also found that claimant has 
 
         no permanent impairment.  It is determined that the opinion of Dr. 
 
         [jlume is preferred over the opinions of Dr. Grossman, Dr. 
 
         Dougherty, and Dr. Cotton.  Rockwell Graphics Systems. Inc. v. 
 
         Prince, 366 N.W.2d 187, 192 (Iowa 1985).  Dr. Blume's testimony 
 
         when compared with the other evidence in this case is considered 
 
         to be more reliable.
 
         
 
              Therefore, it is determined that claimant has sustained an 
 
         industrial disability to the body as a whole.
 
         
 
                         ~~~~~LEMENT-pERMANENT DISABILITY
 
         
 
              It is determined that claimant has sustained a 10 percent 
 
         industrial disability to the body as a whole.
 
         
 
              Claimant, born May 9, 1965, was 21 years old at the time of 
 
         the two injuries and 23 years old at the time of the hearing. 
 
         Because of her young age, her disability is less severe than it 
 
         would be for an older person who is injured closer to the peak 
 
         years of their earning capacity.  Becke v. Turner-Busch. Inc, 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 34 
 
         (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa 
 
         Industrial Commissioner Report 426 (1981); McCoy v. Donaldson 
 
         Company. Inc., file numbers 782670 & 805200 (Appeal Decision April 
 
         23, 1989).
 
         
 
              Cl<timant does not have a high school education.  She only 
 
         completed the ninth grade.  She did later obtain a GED in 1984, 
 
         when she w<~s approximately 19 years of age.  Claimant did exhibit 
 
         an interest in some additional education before reentering the 
 
         employment market.  The ability for retraining is one of the 
 
         considerations in the determination of industrial disability. 
 
         Conrad v. ~uette School. Inc., IV Iowa Industrial Commissioner 
 
         Report 7&, 89 (1984).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
              Claimant's past employments have all been menial, manual 
 
         labor types of work.  A person with a disabled left leg and back 
 
         is not suited for these kinds of positions in the future. 
 
         Therefore, even though none of the physicians issued any work 
 
         restrictions, nevertheless, claimant may be precluded from at 
 
         least jobs which require prolonged standing or sitting since she 
 
         MACIAS V. JOllN MORRELL & CO.
 
         Page 7
 
         
 
         credibly claims she can only stand or sit for limited periods of 
 
         time.  [',ichael v. Harrison County, Thirty-fourth Biennial Report 
 
         of the Industrial Commissioner 218, 220 (Appeal Decision January 
 
         30, 197')); Rohrbera v. Griffin Pipe products Co., I Iowa 
 
         Industrial Commissioner Report 282 (1984).
 
         
 
              James T. Rogers, a certified professional rehabilitation 
 
         counsel<'r, examined claimant extensively as well as the medical 
 
         reports of Dr. Grossman, Dr. Blume, Dr. Creswell and the Marion 
 
         Health Center.  He administered several tests.  He reviewed 
 
         claimant's medical, personal, education and employment history. He 
 
         stated:
 
         
 
              The above scores indicate that Eloisa falls into the low 
 
              average range with regard to general ability to learn, verbal 
 
              ability and numerical ability and in the above average to 
 
              high average range in terms of spatial re~soning, form 
 
              perception, clerical speed and accuracy, fine finger 
 
              dexterity and hand/eye coordination.  She is significantly 
 
              below average in manual dexterity.  It should be noted that 
 
              this test was given in English and does not take into account 
 
              difficulties Eloisa may have with the English language.
 
         
 
         exhibit 3, page 6
 
         
 
              He further stated, "I believe that Eloisa falls into the 
 
         entry level wage category of $3.35 to $5.00 per hour with the 
 
         likelihood that she will be able to earn at the lower end of this 
 
         scale." (ex. 3, p. 7).  He stated that she had earned as much as 
 
         $7.90 per hour while employed for employer.  However, there is no 
 
         medical evidence that claimant is medically restricted from 
 
         returning to her former employment even though claimant credibly 
 
         contends that she can only stand or sit for limited periods of 
 
         time.  Claimant maintains that she was fired on September 4, 1987, 
 
         because of her two injuries and her continuous complaints stemming 
 
         from these two injuries.  Defendants on the other hand, maintai\\ 
 
         that claimant was fired for excessive absenteeism (ex. 25, p. 1; 
 
         ex. 49, p. 5).  Both parties are probably correct to some extent.  
 
         However, it is noticed that from the time she was hired in July of 
 
         1986, until she quit on June 3, 1987, she had approxin\ately 17 
 
         absences.  Nevertheless, in spite of this absenteeism record she 
 
         was rehired on June 24, 1987, and was fired on September 4, 1987, 
 
         after having only four absences. Absenteeism was no bar to her 
 
         rehire on June 24, 1987, after 17 absences.  Therefore, was 
 
         absenteeism the true reason for her dismissal on September 4, 
 
         1987, after only four absences? Claimant denied that she had been 
 

 
         
 
 
 
 
 
 
 
 
 
         warned that she would be fired for absences immediately prior to 
 
         her termination on September 4, 1987.  Defendants introduced no 
 
         witnesses to show that she had been warned.
 
         
 
              Prior to her injuries, claimant performed only the flushing 
 
         and breiking job.  Subsequent to these injuries, employer tried 
 
         MACIAS V. JOlJN MORRELL & CO.
 
         Page 8
 
         
 
         to accommodate her on several jobs such as splitting heads, 
 
         cheeking, the ears, temple meat, kidneys, trimming cheeks, 
 
         spinning guts, flushing, boxing and labeling (tr. pp. 147 & 148). 
 
         Nevertheless, claimant continued to complain to the nurses (ex. 5, 
 
         pp. 3-5) and to Dr. Grossman on February Il, 1987 and August 2?, 
 
         1987, about muscle cramps in her left leg (ex. 6, pp. 17 & 18).  
 
         on August 27, 1987, Dr. Grossman issued this restriction, "If 
 
         possible not to work on stand." However, it was necessary for 
 
         claimant to work on a stand because of her short height of only 4 
 
         feet 10 inches to perform practically any job for employer on the 
 
         production line.  Claimant further testified that she complai;\ed 
 
         to the nurses about her leg many more times then are recorded on 
 
         the nurse's notes.  Therefore, there is evidence that claimant may 
 
         well have been terminated because of her injuries and residual 
 
         complaints caused by these injuries.  The inability of employer to 
 
         find any work which claimant can do indicates a fairly serious 
 
         disability.
 
         
 
              At the same time, it must be realized that claimant has never 
 
         earned very much money through employment.  In 1984, when she was 
 
         19 years old, she reported $2,855 for federal income tax. In 1985, 
 
         when she was 20 years old, she reported $2,749 for federal income 
 
         tax (exs. 43 & 44).  Even though claimant submitted a brief list 
 
         of employers she contacted in an employment search (ex. 29) it is 
 
         clear that claimant has decided to stay home and take care of her 
 
         two minor children, ages approximately six years old and three 
 
         years old rather than to be actively employed outside of her home.  
 
         Claimant reported income in 1987, on her federal income tax, of 
 
         $6,917.  She now receives ADC in the amount of $367 per month and 
 
         food stamps in the amount of approximately $170 or $190 per month.  
 
         Defendants' counsel pointed out that she now receives 
 
         approximately $6,500 per year for not performing any work (tr. pp. 
 
         159 & 160).  Therefore, it is deteLmined that claimant has little, 
 
         if any, motivation to work in the way of financial incentives.
 
         
 
              Since claimant has not worked and has not seriously sought 
 
         work since she was terminated by employer, it is difficult to 
 
         determijte the true extent of her industrial disability. Schofield 
 
         v. Iowa Beef Processors Inc., II Iowa Industrial Commissioner 
 
         Report 334, 336 (1981).
 
         
 
              Claimant did work a short time for a subcontractor of 
 
         employed at employer's plant, but was fired after only a few days 
 
         on the job.  Claimant contended that employer caused her to be 
 
         fired.  The subcontractor maintains that she was fired for other 
 
         reasons (ex. 50).
 

 
         
 
 
 
 
 
 
 
 
 
         
 
              Dr. Blume determined that claimant's final overall impairment 
 
         rating was 3 percent to the body as a whole.  He said, "And so the 
 
         overall impairment--functional physical impairment to the body as 
 
         a whole is approximately three percent." (ex. 2, p. 22)
 
         
 
         
 
 
 
 
 
 
 
 
 
         MACIAS V. JOI]N MORRELL & CO.
 
         Page 9
 
         
 
              Vocational Rehabilitation Consultant Rogers concluded as 
 
         follows:
 
         
 
              1 feel that unless Eloisa is provided training which wi.ll 
 
              allow her to work in a more sedentary job, that she will not 
 
              only have difficulties obtaining future employment but also 
 
              in maintaining employment, particularly if she returns to a 
 
              packing house environment.
 
         
 
              RECOMMENDATIONS:
 
         
 
              l.  I suggest Eloisa be referred to the Nebraska Department 
 
              of Vocational Rehabilitation.  Eloisa is particularly in need 
 
              of guidance, counseling, psychological support and financial 
 
              assistance.
 
         
 
         
 
         
 
              2.  I have suggested to Eloisa that she may wish to expedite 
 
              her remedial training by involving herself in remedial 
 
              reading, math, language, grammar and spelling at the local 
 
              adult learning center.
 
         
 
         exhibit 3, pages 7 & 8
 
         
 
              Therefore, based on (1) the foregoing factors; (2) all of the 
 
         factors used to determine industrial disability, Christensen v. 
 
         Haqen~nc., vol. I, no. 3, State of Iowa Industrial Commissioner 
 
         Decisions 529 (Appeal Decision March 26, 1985); Peterson v. Truck 
 
         Haven Cafe Inc., vol. I, no. 3 State of Iowa Industri.al 
 
         Commissioner Decisions 654, 658 (Appeal Decision February 28, 
 
         1985); and (3) applying agency expertise [Iowa Administrative 
 
         Procedure Act l7A.l4(5)]; it is determined that claiman\ has 
 
         sustained a 10 percent industrial disability to the body as a 
 
         whole.
 
         
 
                                 MEDICAL EXPENSES
 
         
 
              It is determined that claimant is not entitled to the medical 
 
         expenses of Dr. Blume in the amount of $955 (Ex. 2, deposition ex. 
 
         14).  Dr. Blume was not an authorized physician. Defendants 
 
         admitted liability and were entitled to choose the care.  Claimant 
 
         chose to see Dr. Blume at the recommendation of her attorney.  She 
 
         was not referred there by Dr. Grossman who was providing active 
 
         medical treatment for employer at the time she first consulted Dr. 
 
         Blume on June 8, 1987.  An employer is required to provide 
 
         reasonable medical care, but at the same time is enti\-ied to 
 
         chose the care providers.  Iowa Code section 85.27.  Claimant did 
 
         not testify that she requested permission to see Dr. Blume at any 
 
         time.  There is no evidence that claimant filed a request for 
 
         alternate care.  Therefore, Dr. Blume is an unauthorized physician 
 
         and claimant is not entitled to recover her medical expense in the 
 

 
         
 
 
 
 
 
 
 
 
 
         amount of $955 for Dr. Blume.
 
         MACIAS V. JO!]N MORRELL & CO.
 
         Page 10
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         and fol!owing principles of law, these conclusions of law are 
 
         made:
 
         
 
              That the injuries of November 1, 1986 and December 3, 1986 
 
         were the cause of temporary disability.  Bodish v. Fischer Inc, 
 
         257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boqqs Co, 236 
 
         Iowa 296 18 N.W.2d 607 (1945).
 
         
 
              That claimant is entitled to 4.714 weeks of healing period 
 
         temporary disability benefits for the periods set forth in the 
 
         body of this decision.  Iowa Code section 85.34(l).
 
         
 
              That defendants are entitled to a credit for 4.714 weeks of 
 
         healing period temporary disability benefits as stipulated to by 
 
         the parties in the prehearing report.
 
         
 
              That the injury was the cause of permanent disability. 
 
         Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl, 236 Iowa 
 
         296 18 \~.W.2d 607 (1945).
 
         
 
              Th<it claimant sustained a 10 percent industrial disability 
 
         to the body as a whole.  Iowa Code section 85.34(2)"u".
 
         
 
              That claimant is entitled to 50 weeks of permanent partial 
 
         disability benefits.
 
         
 
              That claimant is not entitled to recover the medical expenses 
 
         incurred with Dr. Blume for the reason that he was not an 
 
         authorized physician.  Iowa Code section 85.27.
 
         
 
                                      ORDER
 
         
 
              Tf[~REFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant fifty (50) weeks of 
 
         permaneitt partial disability benefits at the rate of two hundred 
 
         thirteen and 85/100 dollars ($213.85) per week in the total amount 
 
         of ten thousand six hundred ninety-two and 50/100 dollars 
 
         ($l0,69?.50) commencing on December 22, 1986.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action, including the cost of the 
 
         transcrJpt, are charged to defendants pursuant to rule 343 IAC 
 
         4.33.
 

 
         
 
 
 
 
 
 
 
 
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to rule 343 IAC 3.1.
 
         
 
         
 
 
 
 
 
 
 
 
 
         MACIAS V. JOIIN MORRELL & CO.
 
         Page 11
 
         
 
              S~cjTned and filed this ;~~ay of January, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       WALTER R. MCMANUS, R.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Thomas J. Hoffman
 
         Attorney at Law
 
         PO Box j~2f1
 
         19 Ist Ave. NW
 
         Le Mars, Iowa 51031
 
         
 
         Mr. Thoi\a~ Plaza
 
         Attorney at Law
 
         200 Home Federal Bldg.
 
         PO Box 3086
 
         Sioux Ci.ty, Iowa 51102
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLES VAN,                  :
 
                                           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  832067
 
            CLARINDA CORRECTIONAL         :                841123
 
            TREATMENT COMPLEX,            :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Charles 
 
            Van, claimant, against Clarinda Correctional Treatment 
 
            Complex, employer, and State of Iowa, insurance carrier, 
 
            defendants, for benefits as the result of an injury that 
 
            occurred on August 27, 1986 (file 832067) and another injury 
 
            that occurred on December 9, 1986 (file 841123).  A hearing 
 
            was held in Council Bluffs, Iowa, on June 19, 1989, and the 
 
            case was fully submitted at the close of the hearing.  
 
            Claimant was represented by Sheldon Gallner.  Defendants 
 
            were represented by Shirley Ann Steffe.  The record consists 
 
            of the testimony of Charles H. Van, claimant; Arlinda K. 
 
            Van, claimant's wife; and joint exhibits 1 through 28.  The 
 
            deputy ordered a transcript of the hearing.  Defendants' 
 
            attorney submitted an excellent brief.  Claimant's attorney 
 
            did not submit a brief.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of both injuries.
 
            
 
                 That claimant sustained an injury on August 27, 1986 
 
            and another injury on December 9, 1986, both of which arose 
 
            out of and in the course of employment with employer.
 
            
 
                 That both injuries were the cause of temporary 
 
            disability.
 
            
 
                 That claimant is entitled to and was paid temporary 
 
            disability benefits from August 27, 1986 through December 8, 
 
            1986         for the injury of August 27, 1986; that 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            claimant is entitled to and was paid temporary disability 
 
            benefits from December 9, 1986 through November 20, 1987 for 
 
            the injury of December 9, 1986; that claimant's entitlement 
 
            to temporary disability benefits has been fully paid and is 
 
            not a disputed matter in this case at this time.
 
            
 
                 That the injury of August 27, 1986, was the cause of 
 
            permanent disability.
 
            
 
                 That the type of permanent disability, for the injury 
 
            of August 27, 1986, is industrial disability to the body as 
 
            a whole. 
 
            
 
                 That the injury of December 9, 1986, was simply an 
 
            exacerbation of the injury that occurred on August 27, 1986 
 
            and that the permanent disability in this case was caused by 
 
            the injury of August 27, 1986.
 
            
 
                 That the rate of compensation for both injuries is 
 
            $229.44 per week in the event of an award.
 
            
 
                 That all requested medical benefits for both injuries 
 
            has been or will be paid by defendants.
 
            
 
                 That claimant has received $11,784.15 of long-term 
 
            income disability benefits prior to hearing, but whether 
 
            defendant is entitled to a credit for these benefits is a 
 
            disputed matter.
 
            
 
                 That defendants have paid claimant 80 6/7 weeks of 
 
            workers' compensation permanent partial disability benefits, 
 
            at the rate of $229.44 per week, prior to the hearing on 
 
            June 19, 1989 and that defendants are in the process of 
 
            paying claimant 100 weeks of permanent partial disability 
 
            benefits based upon a 20 percent permanent functional 
 
            impairment rating issued by claimant's treating physician.
 
            
 
                 That there are no bifurcated claims.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant is entitled to additional permanent 
 
            partial disability benefits for the injury of August 27, 
 
            1986, and if so, the extent of benefits to which he is 
 
            entitled, to include whether claimant is an odd-lot 
 
            employee.
 
            
 
                 Whether defendants are entitled to a credit for 
 
            $11,784.15 in long-term income disability benefits paid to 
 
            claimant prior to hearing.
 
            
 
                             summary of the evidence
 
            
 
                 Claimant, born March 17, 1944, was 42 years old at the 
 
            time of the injury and 45 years old at the time of the 
 
            hearing.  Claimant completed the eighth grade and later 
 
            obtained a GED in the army (transcript page 52).  Claimant 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            testified that he was 17 years old when he was in the eighth 
 
            grade.  He quit school, he joined the army.  He received an 
 
            honorable discharge from the army with the rank of staff 
 
            sergeant.  Prior employments include highway labor for the 
 
            state of Missouri out of a union hall, with lifting 
 
            requirements from 40 to 250 pounds.  He also worked in the 
 
            meat packing industry for a short time (tr. pp. 17-20).
 
            
 
                 Claimant started to work for employer on September 2, 
 
            1980 as a correctional officer.  This job requires a lot of 
 
            walking, including up and down four flights of stairs, 
 
            checking fire security and making yard checks.  Claimant 
 
            worked in a unit which confined the mentally ill, the 
 
            criminally insane and child molesters.  He was also in 
 
            charge of solitary confinement.  This was a violent area and 
 
            daily he was required to stop fights between the prisoners 
 
            or inmates.  He also checked perimeter by driving a car.  He 
 
            also drove a car to transport inmates from one institution 
 
            to another.  Frequently, it was necessary to carry an inmate 
 
            in order to restrain him.  Claimant testified that he 
 
            weighed between 280 and 288 pounds when he began this job.  
 
            At the time of the hearing he weighed 320 pounds, but was 
 
            going to Weight Watchers and was losing weight then (tr. pp. 
 
            20-23).
 
            
 
                 On August 27, 1986, ten inmates arrived from Fort 
 
            Madison.  Prisoners are transported with a transportation 
 
            box, or tool box, which is about 24 inches long, 10 inches 
 
            deep and 10 or 12 inches wide.  This box contains handcuffs, 
 
            belly chains, leg irons, flash lights, and mace.  They call 
 
            it a transportation kit.  Claimant squatted down, took a 
 
            hold of the box and started to pull it when he felt a pop in 
 
            his lower back and his left leg went numb (tr. p. 23).  
 
            Nothing like this had ever happened before.  He reported the 
 
            injury to his superior immediately and was taken to the 
 
            Clarinda Hospital in a semi-stooped over position.  His leg 
 
            was numb and he could not walk.  He was treated by Adeline 
 
            Comeau, M.D., who prescribed physical therapy three or four 
 
            times a day every day.  Claimant was also treated by Michael 
 
            T. O'Neil, M.D., an orthopedic surgeon, who commuted from 
 
            Omaha to Clarinda (tr. pp. 24-26).
 
            
 
                 Claimant attempted to return to work on December 8, 
 
            1986, with pain in his back and left leg, which would go 
 
            numb if he sat or stood.  Sometimes he would fall down.  On 
 
            this first day back to work, claimant attempted to sit down 
 
            on a stool and his back popped and his leg went numb.  He 
 
            experienced the same pain that occurred on August 27, 1986.  
 
            He reported the injury, was sent to Clarinda Hospital and 
 
            Dr. Comeau had claimant transported to Clarkson Hospital in 
 
            Omaha for treatment again by Dr. O'Neil (tr. pp. 27 & 28).
 
            
 
                 Back surgery was performed on January 13, 1987.  This 
 
            relieved the constant pain, but his leg still goes numb and 
 
            he has problems walking, standing and sitting for long 
 
            periods.  Claimant testified that he has received extensive 
 
            physical therapy of heat, massage and ultrasound (tr. p. 
 
            29).  Claimant testified that he was terminated by employer 
 
            and he was told they were putting him on long-term 
 
            disability.  As a condition of receiving long-term 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            disability, he was required to apply for social security 
 
            disability benefits and social security disability benefits 
 
            were awarded to him (tr. p. 30).  Claimant was not offered a 
 
            sedentary job by employer.  Claimant did not know of any 
 
            jobs for employer that he could perform in his present condi
 
            tion (tr. p. 31).  Claimant testified that he has been 
 
            unable to garden or hunt since the surgery because he is 
 
            unable to walk on rough ground (tr. p. 31).  Claimant 
 
            testified that since the surgery, he experiences pain in 
 
            both legs, the left leg goes numb, three toes on the left 
 
            foot have been numb since the surgery, he only sleeps four 
 
            or five hours at night before he is awakened with leg cramps 
 
            that he has to get up and walk out.  His pain is worse on 
 
            cool, damp days (tr. p. 32 & 33).  
 
            
 
                 Claimant testified that the State of Iowa sent a 
 
            vocational rehabilitation counselor by the name of Al 
 
            Marchisio to see him on two or three occasions at his home.  
 
            Claimant said that Mr. Marchisio never recommended that he 
 
            return to work and never indicated that there were any jobs 
 
            that he could perform.  He last saw Marchisio in December of 
 
            1987 (tr. pp. 33 & 34). 
 
            
 
                 Claimant testified that he lies down three or four 
 
            times a day.  He cannot perform the job of security guard 
 
            because he cannot stand on his feet over 15 to 20 minutes at 
 
            the most before he gets cramps or muscle spasms in his lower 
 
            back and legs.  He can only walk four or five blocks.  
 
            Claimant testified that he is unable to drive, ride, or sit 
 
            for prolonged periods of time.  The trip from Clarinda to 
 
            Council Bluffs is 40 minutes and he was required to stop 
 
            three times to relieve the muscle spasms.  His wife normally 
 
            does the driving.  Claimant testified that he did not know 
 
            of any job that he can do because you cannot find an 
 
            employer where you can work a little while, sit down awhile 
 
            or lie down awhile.  Claimant maintained he could not 
 
            perform his old job as a correctional officer because it 
 
            requires a lot of walking, standing and physical exertion at 
 
            times to restrain inmates that become upset (tr. pp. 36-38).  
 
            Claimant asserted that Dr. O'Neil told him to go home and 
 
            stay, to lie on a heat pad and ice bag, and to stay off his 
 
            feet as much as possible (tr. pp. 35 & 38).  
 
            
 
                 Claimant admitted that he had not attempted to look for 
 
            any type of employment since his injury (tr. p. 39).  
 
            Claimant acknowledged that he had learned the ability to 
 
            know particular safety rules and procedures, the ability to 
 
            use good judgment and to deal with people in emergency and 
 
            other situations, to deal with incoming and outgoing 
 
            telephone calls, to deal with visitors, who are members of 
 
            the public, at the institution.  He handled his application 
 
            for long-term disability benefits and social security 
 
            disability benefits by filling out the forms (tr. pp. 
 
            40-43).  Claimant testified that he was not yet released by 
 
            Dr. O'Neil and that he was not aware that Dr. O'Neil said 
 
            that he could perform light work or sedentary work.  
 
            
 
                 Claimant testified that Marchisio did not recommend a 
 
            job to him, nor did he recommend retraining after reviewing 
 
            the tests he took at Creston Community College (tr. pp. 42 & 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            45).  Claimant was not provided a copy of the test results 
 
            and he never saw Marchisio again.  Marchisio did not advise 
 
            claimant that he was able to secure a light duty position 
 
            for claimant (tr. p. 46).  Claimant testified that he was 
 
            unable to work, but he would do so if he could (tr. p. 47).  
 
            The State of Iowa did not suggest he apply for a job in a 
 
            lesser capacity (tr. p. 48).  Claimant acknowledged that he 
 
            took a number of courses while employed by employer such as 
 
            CPR, personal safety, cultural awareness, stress and health 
 
            management, resident management, and con games.  He passed 
 
            tests for all of these in-service training courses (tr. pp. 
 
            50 & 51).  
 
            
 
                 Arlinda Van, claimant's wife of 11 years, testified 
 
            that prior to the injury, claimant was a little over weight, 
 
            but basically healthy.  His leg wasn't numb.  He takes 
 
            medication sometimes and his sleep patterns are disturbed.  
 
            He no longer takes care of the lawn or garden and he is 
 
            unable to hunt and fish.  He rests often and his back and 
 
            leg bother him.  She drove to the hearing.  They stopped 
 
            twice so he could stand up a little bit and walk around the 
 
            car.  He gets tired easier.  She acknowledged that he had 
 
            occasional back pain prior to this injury.
 
            
 
                 The medical evidence consists of the office notes, 
 
            reports and deposition testimony of Dr. O'Neil.  At his 
 
            deposition on May 24, 1988, Dr. O'Neil testified that he was 
 
            a board certified orthopedic surgeon who has been in 
 
            practice for 18 years.  He is licensed to practice in Iowa 
 
            and Nebraska.  His curriculum vitae is a deposition exhibit 
 
            and shows that he is an assistant professor of orthopedic 
 
            surgery at the University of Nebraska College of Medicine 
 
            (exhibit 22, deposition ex. 1).  
 
            
 
                 Dr. O'Neil testified that he first saw claimant on 
 
            September 5, 1986 at the Clarinda Hospital.  Claimant 
 
            described a back injury from picking up an 80 or 90 pound 
 
            tool box at which time he experienced a popping sensation in 
 
            his back and radicular pain (ex. 28, p. 6).  The doctor 
 
            noted that claimant was 6 foot 4 inches tall and weighed 333 
 
            pounds.  Because of his size, he is not a good candidate for 
 
            surgery, physical therapy is less effective and his 
 
            prognosis was quite guarded.  Range of motion in his 
 
            lumbosacral spine was limited to 50 percent in all 
 
            directions.  X-rays of the lumbosacral spine showed an L-5 
 
            S-l sacralization with a large bat-wing process at L5 on the 
 
            left side.  The L-5 S-1 interspace was narrowed.  
 
            
 
                 Dr. O'Neil diagnosed an acute lumbar disc herniation, 
 
            or at least a threatened lumbar disc herniation at L4 L5 on 
 
            the left side with a preexisting transitional vertebra at L5 
 
            S1.  Conservative treatment of bed rest and physical therapy 
 
            were prescribed (ex. 28, p. 9; ex. 27).  On October 3 the 
 
            patient reported that he had a deep vein thrombosis in the 
 
            left thigh and calf on October 1, 1986 and that he was being 
 
            treated with anticoagulant therapy (ex. 28, p. 10; ex. 26).  
 
            Dr. O'Neil said this was consistent with an L5 nerve root 
 
            involvement.  A CT scan was considered, but claimant was too 
 
            large to fit into the apparatus (ex. 28, p. 11).  
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Dr. O'Neil next saw claimant on December 9, 1986.  At 
 
            that time, claimant reported that he was sitting on a little 
 
            stool which tipped over and he slipped off the stool and 
 
            reinjured his back.  Claimant was sent to Clarkson Hospital 
 
            in Omaha.  At this time claimant received a preoperative 
 
            consultation and examination by Susanne E. Eilts, M.D. (exs. 
 
            24a, 24b & 24c).  She diagnosed that claimant had: (1) 
 
            hypertension, poorly controlled; (2) clinical history of 
 
            angina pectoris, controlled; (3) history of dependent edema; 
 
            and (4) left L-5 radiculopathy.  Claimant received x-rays, a 
 
            CT scan and a lumbosacral myelogram (exs. 19, 20 & 21).  
 
            These objective tests confirm the defect at L4-L5 as well as 
 
            the congenital sacralization of the fifth lumbar segment on 
 
            the left side, degenerative arthritic changes and bony osteo
 
            phytic spur formations.  
 
            
 
                 Dr. O'Neil continued to diagnose lumbar disc herniation 
 
            L4, L5 (ex. 22a, 22b & 22c).  Dr. O'Neil concluded that 
 
            claimant was not a good candidate for surgery because of his 
 
            size, but he doubted if he would have much improvement 
 
            without something other than bed rest and physical therapy 
 
            (exs. 23a & 23b).  Claimant went home for the holidays and 
 
            returned for surgery on January 9, 1987 (ex. 18).  
 
            
 
                 A lumbar laminotomy an L4 disc debridement, left was 
 
            performed on January 14, 1987 by Dr. O'Neil (exs. 15, 16a, 
 
            16b & 17).  Postsurgery, Dr. O'Neil saw claimant on February 
 
            6, 1987; March 6, 1987; April 10, 1987; and June 5, 1987 
 
            (ex. 11-14).  On July 14, 1987, the doctor said his 
 
            prognosis was guarded because of his weight (333 pounds) 
 
            (ex. 10).  On July 17, 1987, the doctor said that claimant 
 
            cannot drive a car for more than 30 minutes without a change 
 
            in position because of back, left buttock and leg pain.  Dr. 
 
            O'Neil reported that claimant also had early degenerative 
 
            changes of his left knee probably secondary to stress and 
 
            aggravated by his obesity (ex. 9).  On September 17, 1987, 
 
            claimant's weight remained at approximately 330 pounds.  Dr. 
 
            O'Neil concluded:
 
            
 
                 I do not believe that this man can return to his 
 
                 former work at the Clarinda Treatment Unit because 
 
                 of his back and because of his left leg.  His left 
 
                 knee problem is basically that of degenerative 
 
                 arthritis which is aggravated and complicated by 
 
                 his severe obesity.  He will not tolerate standing 
 
                 and walking for any length of time.  I believe 
 
                 that he will have difficulty sitting and driving a 
 
                 car or truck for eight hours a day because of his 
 
                 back and because of his knee.  I would not let him 
 
                 lift more than 30 pounds repeatedly because of his 
 
                 back condition and also because of his knee.  He 
 
                 will not have any problems with push or pull 
 
                 activities of the upper extremities.  I believe 
 
                 that the prognosis for this man returning to his 
 
                 former work as a guard or an attendant is poor.  
 
                 I'm not sure when he will be able to return to any 
 
                 type of work which requires standing, stooping, 
 
                 bending or lifting.
 
             
 
            (exs. 8a & 8b)
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 On September 28, 1987, Dr. O'Neil again stated that his 
 
            prognosis for returning to work as a guard is quite guarded 
 
            (ex. 6).  On November 30, 1987, Dr. O'Neil stated:
 
            
 
                 I believe that Mr. Van has reached maximum 
 
                 improvement and believe he is entitled to a 20 
 
                 percent permanent functional impairment as a 
 
                 result of his back injury and subsequent surgery.  
 
                 I believe this is a work-related injury.  I 
 
                 believe that this man should look for some type of 
 
                 work which does not require standing and walking 
 
                 and climbing and certainly none which requires 
 
                 stooping, lifting and bending.  Some type of 
 
            
 
                 light work or sedentary work would be more 
 
                 appropriate for Mr. Van.
 
            
 
            (ex. 5).
 
            
 
                 Dr. O'Neil repeated this information on December 17, 
 
            1987, in these words:
 
            
 
                 At the time of my last examination, I felt that 
 
                 Mr. Van had reached maximum improvement, and that 
 
                 he was entitled to a 20% permanent functional 
 
                 impairment as a result of his back injury and 
 
                 subsequent surgery.  I felt that his back 
 
                 condition was work related, and that he should 
 
                 look for some type of work which did not required 
 
                 long periods of standing, walking, stooping, 
 
                 bending and lifting.  I felt that light work or 
 
                 sedentatary [sic] work would be appropriate.
 
            
 
            (ex. 4)
 
            
 
                 Dr. O'Neil added that claimant did not have any 
 
            objective physical findings other than pain with straight 
 
            leg raising.  There were no objective neurological deficits.  
 
            The doctor reiterated that he did not feel that claimant 
 
            should return to work which requires any strenuous activity.  
 
            He stated again that his obesity (350 pounds) certainly is a 
 
            detrimental problem also (ex. 4).  On January 28, 1988, Dr. 
 
            O'Neil said that claimant's disability entitled him to a 
 
            disability hunting and fishing license (ex. 3).  On March 
 
            23, 1988, the doctor said that claimant's persistence of 
 
            back pain with flare-up in his buttock was directly related 
 
            to the initial back injury and he suggested additional 
 
            physical therapy on an outpatient basis.  On March 28, 1988, 
 
            claimant's condition was unchanged, he continued to have 
 
            flare-ups, he continued to receive physical therapy and 
 
            found it helpful.  Claimant was investigating a weight loss 
 
            program (ex. 1).  
 
            
 
                 In the deposition, Dr. O'Neil gave his professional 
 
            opinion, within a reasonable degree of medical certainty, 
 
            that the cause of the herniation at L4, L5 and the 
 
            laminotomy was the injury on August 27, 1986, while working 
 
            at the Clarinda Complex and picking up an 80 or 90 pound 
 
            tool box.  Dr. O'Neil added that the 20 percent permanent 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            functional impairment was the result of this back injury and 
 
            subsequent surgery.  The permanent restriction that Dr. 
 
            O'Neil would impose is that claimant should look for some 
 
            type of work which was mostly sedentary in nature.  He can
 
            not tolerate prolonged standing, walking or climbing.  He 
 
            will not tolerate stooping, bending, twisting and lifting.  
 
            He cannot ride in a car for very long.  His only chance of 
 
            getting back to some productive activity is a sedentary one 
 
            (ex. 28, pp. 19-22).  
 
            
 
                 Dr. O'Neil said that considering claimant's size and 
 
            the fact that he had a ruptured disc fragment in his back 
 
            that the surgery was successful because it diminished the 
 
            pain in his back and leg.  Dr. O'Neil added, "I never 
 
            thought he was going to be completely pain-free following 
 
            his operation." (ex. 28, p. 25).  Dr. O'Neil could not 
 
            determine whether the current pain was a result of activity, 
 
            claimant's obesity, scar tissue or possibly another disc 
 
            herniation (ex. 28, p. 25).  The doctor affirmed that 
 
            claimant could perform occasional bending or stooping.  The 
 
            doctor considered prolonged standing, sitting or walking as 
 
            doing it for three to four hours nonstop; or three to four 
 
            hours sitting in one position where he did not have the 
 
            opportunity to get up and move around a little bit and 
 
            stretch his legs.  Dr. O'Neil acknowledged that the 
 
            congenital malformation of partial sacralization at L5-S1 
 
            can cause increased stress at the next disc space above this 
 
            level and have a tendency to predispose a person to injury 
 
            more than if they did not have this condition (ex. 28, pp. 
 
            30 & 31).  The doctor repeated that this injury was the 
 
            cause of claimant's disability as well as his restrictions 
 
            and limitations (ex. 28, p. 31).
 
            
 
                 The tests performed by Mr. Marchisio at the Clarinda 
 
            Community College and the test results were not placed in 
 
            evidence.  Claimant's attorney contended that the test 
 
            results were not served on claimant or claimant's counsel.  
 
            Claimant's attorney contended that no reports from Mr. 
 
            Marchisio were served on claimant or claimant's counsel.  
 
            Mr. Marchisio did not testify at the hearing.  No 
 
            explanation was given why Mr. Marchisio stopped seeing 
 
            claimant.
 
            
 
                           applicable law and analysis
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 27, 
 
            1986 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. 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). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id., at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 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.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Claimant was age 42 at the time of the injury on August 
 
            27, 1986.  The loss is made worse in this case because it 
 
            occurred when claimant was near the peak of his earnings 
 
            capacity.  Claimant's physical loss, functional loss and 
 
            industrial loss is more detrimental to him than it would be 
 
            to an older or younger employee.  Becke v. Turner-Busch, 
 
            Inc., Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 34 (Appeal Decision  1979); Walton v. B & H 
 
            Tank Corp., II Iowa Industrial Commissioner Report 426 
 
            (1981); McCoy v. Donaldson Company, Inc., file numbers 
 
            782670 & 805200 (Appeal Decision April 28, 1989).  
 
            
 
                 Claimant has an eighth grade formal education and 
 
            obtained a GED while in the army.  He reads, writes and 
 
            completed a number of in-service training courses for 
 
            employer and passed tests for these courses.  As defense 
 
            counsel pointed out claimant is articulate, has 
 
            communication skills and experience at working with people.  
 
            Dr. O'Neil said that he could perform light work, sedentary 
 
            work and that he could use his upper extremities in push and 
 
            pull activities.  Therefore, it is determined that claimant 
 
            is not permanently and totally disabled as contended.
 
            
 
                 Claimant testified that he has not made any search of 
 
            any kind for any type of employment since his injury (tr. 
 
            pp. 38 & 39).  Since claimant has made no attempt to find 
 
            work, then he cannot be determined to be an odd-lot 
 
            employee.  Emshoff v. Petroleum Transportation Services, 
 
            file no. 753723 (Appeal Decision March 31, 1987); Collins v. 
 
            Friendship Village, Inc., file no.  679258 (Appeal Decision 
 
            October 31, 1988).  
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 An employee making a claim for industrial disability 
 
            will benefit by showing of some attempt to find work.  Hild 
 
            v. Natkin & Co., I Iowa Industrial Commissioner Report 144 
 
            (Appeal Decision 1981); Beintema v. Sioux City Engineering 
 
            Co., II Iowa Industrial Commissioner Report 24 (1981); Cory 
 
            v. Northwestern States Portland Cement Company, Thirty-third 
 
            Biennial Report of the Industrial Commissioner 104 (1976).  
 
            
 
                 Furthermore, since claimant has not sincerely sought 
 
            any employment within the limits permitted by Dr. O'Neil, 
 
            his potential for the labor market has not been tested and 
 
            makes it more difficult to ascertain how much industrial 
 
            disability he has actually suffered.  Schofield v. Iowa Beef 
 
            Processors, Inc., II Iowa Industrial Commissioner Report 
 
            334, 336 (1981).
 
            
 
                 It is clear that claimant is foreclosed from his former 
 
            work as a correctional officer and guard over violent types 
 
            of patients and inmates.  Dr. O'Neil further stated that he 
 
            was proscribed from performing strenuous work.   Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218, 220 (Appeal Decision January 
 
            30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa 
 
            Industrial Commissioner Report 282 (1984).  Claimant is 
 
            therefore, also foreclosed from his previous work on highway 
 
            construction and probably in the meat packing industry.
 
            
 
                 Claimant testified that employer told him to apply for 
 
            long-term disability benefits.  In so doing he was required 
 
            to apply for social security permanent disability benefits 
 
            and these benefits were awarded to him.  Claimant knew of no 
 
            work for employer that he could do.  Employer did not offer 
 
            him any light duty or sedentary work.  Employer did not 
 
            offer him any light duty or sedentary work at any other 
 
            facility that it operates within the state of Iowa.  
 
            Employer had claimant tested and evaluated by a vocational 
 
            rehabilitation consultant, but the test results, reports and 
 
            recommendations of the vocational rehabilitation consultant 
 
            are not in evidence.  The rehabilitation consultant did not 
 
            testify at the hearing.  Claimant testified that he was 17 
 
            years old when he quit school in the eighth grade.  It would 
 
            appear that retraining is not a feasible course of action 
 
            for claimant because: (1) the absence of evidence from defen
 
            dants' rehabilitation evaluation is some inference that 
 
            retraining was not feasible and (2) defendants directed him 
 
            to apply for long-term disability benefits and terminated 
 
            his employment with employer.  Claimant testified that after 
 
            his tests and evaluation that the rehabilitation consultant 
 
            did not contact him again.
 
            
 
                 Contrary to the testimony of claimant and his wife, 
 
            claimant was not healthy prior to the injury.  He suffered 
 
            from obesity, hypertension, angina pectoris, dependant 
 
            edema, had a slightly degenerative spine, and a degenerative 
 
            left knee.  This litany certainly provides a number of 
 
            disincentives for claimant to be motivated to look for work.  
 
            Added to that is the fact that claimant was receiving 
 
            long-term disability benefits, social security disability 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            benefits and permanent partial disability benefits at the 
 
            time of the hearing.  Defendants argument concerning an 
 
            apportionment is considered, but no specific apportionment 
 
            can be made on the impairment rating because defendants did 
 
            not provide any specific evidence of what that percentage 
 
            should be.  Varied Industries, Inc. v. Sumner, 353 N.W.2d 
 
            407 (Iowa 1984); Becker v. D & E Distributing Co., 247 
 
            N.W.2d 727, 731 (Iowa 1976); 2 Damages and Tort Actions, 
 
            section 15.34[1](a); 22 Am. Jur. 2nd, section 212.
 
            
 
                 Dr. O'Neil awarded a 20 percent permanent functional 
 
            impairment rating to the body as a whole and restricted 
 
            claimant from work which requires standing, walking, and 
 
            climbing and which requires repetitive stooping, lifting and 
 
            bending.  Claimant cannot drive for a long period of time.  
 
            
 
                 Defendants called no witnesses and introduced no 
 
            separate exhibits.
 
            
 
                 The Iowa Supreme Court has stated that an employer's 
 
            refusal to provide any work for an injured employee is a 
 
            factor to be taken into consideration in the determination 
 
            of industrial disability irrespective and independent of 
 
            functional impairment.  McSpadden v. Big Ben Coal Co., 288 
 
            N.W.2d 181, 192 (Iowa 1980).  In this case, after claimant 
 
            was evaluated by their own vocational rehabilitation 
 
            consultant, claimant was not recommended for vocational 
 
            rehabilitation, but rather was recommended to apply for 
 
            long-term disability benefits and was terminated.  Refusal 
 
            of an employer to employ an injured employee is strong 
 
            evidence of lack of employability.  
 
            
 
                 Professor Larson makes a point which applies to this 
 
            particular case, "At the outset, one might suppose that the 
 
            refusal of defendant-employer himself to employ the claimant 
 
            would be the strongest kind of evidence against that 
 
            employer."  Then he asserts what as a practical matter ought 
 
            to be obvious, "It is hardly necessary to labor the 
 
            inconsistency of permitting an employer to fire a man for 
 
            physical defects caused by his own employment conditions, 
 
            and then to disclaim compensation liability by presenting 
 
            medical evidence that the man is not really disabled after 
 
            all."  2 Larson, Workmen's Compensation Law, section 
 
            57.61(b) at pages 10-173 and 10-176.  If defendants could 
 
            find absolutely no work for claimant, but rather recommended 
 
            long-term disability, and if the social security 
 
            administration awarded permanent disability benefits, and 
 
            employer chose not to invest in any retraining for claimant, 
 
            then it is determined that claimant's industrial disability 
 
            is substantial.
 
            
 
                 Wherefore, based upon:  (1) the foregoing 
 
            considerations; (2) all of the considerations used to 
 
            determined industrial disability, Olson, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963); Peterson v. Truck Haven 
 
            Cafe, Inc., Vol. 1, No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 654, 658 (Appeal Decision February 
 
            28, 1985); (3) employing agency expertise [Iowa 
 
            Administrative Procedure Act 17A.14(5)], it is determined 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            that claimant has sustained an industrial disability of 50 
 
            percent to the body as a whole.
 
            
 
                 The commencement date of permanent partial disability 
 
            benefits is not the date of the deputies decision as 
 
            proposed by defendants citing Dickenson v. John Deere 
 
            Product Engineering, Vol 1, No. 2 Industrial Commissioner 
 
            Decisions 316, 319 (Appeal Decision November 1984).  Rather, 
 
            permanent partial disability begins at the termination of 
 
            healing period.  Iowa Code section 85.34(2); Teel v. McCord, 
 
            394 N.W.2d 405 (Iowa 1986).  
 
            
 
                 Defendants claim a credit for $11,784.15 for long-term 
 
            disability payments made to claimant prior to hearing.  The 
 
            parties stipulated that claimant did receive these benefits, 
 
            but claimant disputed that defendants are entitled to a 
 
            credit for a payment of the long-term disability benefits.  
 
            Claimant's attorney contended that there was an 
 
            administrative ruling governing the payment of long-term 
 
            disability, which held that there was to be no credit for 
 
            benefits paid up until December 30, 1988.  However, this 
 
            administrative ruling was not introduced into evidence.  
 
            
 
                 Iowa Code section 85.38(2) provides:
 
            
 
                    Credit for benefits paid under group plans.  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 85A 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.
 
            
 
                 Iowa Code section 79.20 provides:
 
            
 
                           EMPLOYEES DISABILITY PROGRAM
 
            
 
                    Employees disability program.  There is created 
 
                 a state employees disability insurance program 
 
                 which shall be administered by the executive 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 council and which shall provide disability 
 
                 benefits in an amount and for the employees as 
 
                 provided in this section.  The monthly disability 
 
                 benefits shall provide twenty percent of monthly 
 
                 earnings if employed less than one year, forty 
 
                 percent of monthly earnings if employed one year 
 
                 or more but less than two years, and sixty percent 
 
                 of monthly earnings thereafter, reduced by primary 
 
                 and family social security determined at the time 
 
                 social security disability payments commence, 
 
                 workers' compensation if applicable, and any other 
 
                 state sponsored sickness or disability benefits 
 
                 payable.
 
            
 
                 Thus, it can be seen from a reading of section 79.20, 
 
            that the State of Iowa Employees Disability Program was not 
 
            intended to provide claimant with a concurrent duplication 
 
            of benefits; that is, workers' compensation benefits and 
 
            also long-term disability benefits for the same period of 
 
            time.  Section 79.20 says that the long-term disability 
 
            benefits are to be reduced by the workers' compensation 
 
            benefits.  Likewise, it is clear that the state employee 
 
            long-term disability program was not intended to be a plan 
 
            "which would have been fully payable even though there was 
 
            an injury" under the worker's compensation laws provided in 
 
            Iowa Code section 85.38(2).  It is assumed that the policy 
 
            complies with the statute.  Thus defendants are entitled to 
 
            a credit pursuant to Iowa Code section 85.38 and Iowa Code 
 
            section 79.20.]
 
            
 
                 With respect to medical benefits, it has been 
 
            determined that when an employer's obligation for medical 
 
            expenses has been established, section 85.38(2) appears to 
 
            provide a method by which the employer may unilaterally act 
 
            to satisfy those liabilities.  Krohn v. State, 420 N.W.2d 
 
            463 (Iowa 1988).
 
            
 
                 Also, there is a line of authority within the agency 
 
            that if the group plan under which claimant received 
 
            benefits was contributed to by employer, then the employer 
 
            is entitled to a credit as a matter of law.  Furthermore, 
 
            that defendants are allowed to take whatever credit they 
 
            believe is appropriate under Iowa Code section 85.38(2) and 
 
            if claimant believes that the credit taken is improper he 
 
            may petition the agency for relief.  Presswood v. Iowa Beef 
 
            Processors, Inc., file no. 735442 (Appeal Decision November 
 
            14, 1986); Olson v. Dept of Transportation, file no. 738244 
 
            (Appeal Decision October 30, 1986) and Bakalar v. Woodward 
 
            State Hospital School, file no. 756871 (Appeal Decision June 
 
            16, 1989).
 
            
 
                 It cannot be determined whether the long-term 
 
            disability benefits were paid concurrently with the workers' 
 
            compensation benefits or whether they were paid at a 
 
            different time separately from the workers' compensation 
 
            benefits.
 
            
 
                 Workers' compensation is based upon the principle of 
 
            payment of weekly benefits being paid in fixed weekly amount 
 
            during disability.  That principle prohibits using amounts 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            overpaid in the past to satisfy currently due weekly 
 
            payments.  Division of Industrial Services Rule 343-8.4; 
 
            Comingore v. Shenandoah Art. Ice, etc. Company, 208 Iowa 
 
            430 226 N.W. 124 (1929); Van der Wilt v. Sherman Produce 
 
            Co., III Iowa Industrial Commissioner Report 265, 267 
 
            (Appeal Decision 1982).  If there was a period when 
 
            long-term disability benefits and workers' compensation 
 
            benefits were paid concurrently, defendants cannot take a 
 
            claim against future benefits which become due.  Principle 
 
            Financial, the long-term disability carrier, may have a 
 
            claim against claimant for an overpayment, but this agency 
 
            does not have jurisdiction over that issue.  
 
            
 
                 Employer is entitled to a credit for workers' 
 
            compensation benefits which came due, but were not paid 
 
            during times when group long-term disability benefits were 
 
            being paid.
 
            
 
                 There is no credit for the $50 minimum group disability 
 
            payment which is paid irrespective of workers' compensation 
 
            or other benefit(s) payments.
 
            
 
                 From the evidence submitted, the undersigned in not 
 
            able to compute the precise amount of credit entitlement.  
 
            Bland v. Glenwood STate Hospital School, file no. 819160, 
 
            filed December 28, 1989.
 
            
 
                                 findings of fact
 
            
 
                 Wherefore, based upon the evidence presented, the 
 
            following findings of fact are made:
 
            
 
                 That the parties stipulated that the injury of August 
 
            27, 1986, was the cause of any permanent disability and that 
 
            the injury of December 9, 1986, was only a temporary 
 
            exacerbation of the first injury.
 
            
 
                 That claimant made absolutely no job search of any kind 
 
            after the injury that occurred on August 27, 1986.
 
            
 
                 That claimant was 42 years old at the time of the 
 
            injury, has an eighth grade education, obtained a GED in the 
 
            army and completed employer in-service training courses and 
 
            passed these tests.
 
            
 
                 That Dr. O'Neil, the chief treating physician, awarded 
 
            claimant a 20 percent functional impairment to the body as a 
 
            whole.
 
            
 
                 That Dr. O'Neil restricted claimant from prolonged 
 
            standing, walking or climbing and repetitive stooping, 
 
            bending or lifting.  He added that claimant could only drive 
 
            for a limited period of time.
 
            
 
                 That Dr. O'Neil stated that claimant could not return 
 
            to his former employment as a correctional officer or guard 
 
            over potentially violent patients or inmates.
 
            
 
                 That Dr. O'Neil said that claimant was precluded from 
 
            performing strenuous work in the future.
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            
 
                 That an employer retained a vocational rehabilitation 
 
            consultant tested and evaluated claimant, but the test 
 
            results and the evaluator's reports are not in evidence and 
 
            there was no testimony from the evaluator.
 
            
 
                 That employer advised claimant to apply for long-term 
 
            disability benefits.
 
            
 
                 That in order to receive long-term disability benefits, 
 
            claimant was required to apply for social security 
 
            disability benefits.
 
            
 
                 That claimant was awarded social security disability 
 
            benefits.  
 
            
 
                 That employer did not offer claimant any light or 
 
            sedentary work which is the type of work that Dr. O'Neil 
 
            said that claimant was able to perform.
 
            
 
                 That claimant suffered from a number of disincentives 
 
            to work or to be motivated to work such as obesity, 
 
            hypertension, angina pectoris, dependant edema, and 
 
            degenerative arthritis in his left knee.
 
            
 
                 That claimant sustained an industrial disability in the 
 
            amount of 50 percent to the body as a whole.
 
            
 
                 That claimant received $11,784.15 in long-term 
 
            disability benefits from the State of Iowa prior to hearing.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based on the evidence presented and the 
 
            foregoing principles of law, the following conclusions of 
 
            law are made:
 
            
 
                 That the injury of August 27, 1986 was the cause of 
 
            permanent disability.
 
            
 
                 That claimant sustained an industrial disability of 50 
 
            percent to the body as a whole.
 
            
 
                 That claimant is entitled to 250 weeks of permanent 
 
            partial disability benefits.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he is an odd-lot 
 
            employee.
 
            
 
                 That the extent of defendants' entitlement to a claim 
 
            for credit under Iowa Code section 85.38(2) cannot be 
 
            determined from the evidence submitted at the hearing.
 
            
 
                 That claimant is not entitled to any further benefits 
 
            for the injury of December 9, 1986, as stipulated to by the 
 
            parties.
 
            
 
                                      order
 
            
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant two hundred fifty (250) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of Two Hundred Twenty-nine and 44/100 Dollars ($229.44) per 
 
            week in the total amount of Fifty-seven Thousand Three 
 
            Hundred Sixty Dollars ($57,360) commencing on November 21, 
 
            1987.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That defendants are entitled to a credit for eighty 
 
            point eight five seven (80.857) weeks of permanent partial 
 
            disability benefits paid at the time of hearing and the full 
 
            one hundred (100) weeks of permanent partial disability 
 
            benefits that they had planned to pay at the time of hearing 
 
            if in fact defendants have paid these benefits.
 
            
 
                 That the costs of this action, including the cost of 
 
            the transcript, are charged to defendants pursuant Division 
 
            of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
                 
 
                 Signed and filed this ____ day of February, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon Gallner
 
            Attorney at Law
 
            803 3rd Ave.
 
            PO Box 1588
 
            Council Bluffs, IA  51502
 
            
 
            Ms. Shirley A. Steffe
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, IA  50319