Petition — Woodward State Hospital-School v. Auxier

FILED

SEP 16 1978 |

r Supreme Court, U. S, \

In The

Supreme Court of the United States

October erm 1978

\v

ft).

VV

WOODWARD STATE HOSPITAL-SCHOOL

and STATE OF IOWA,

Petitioners,

VS.

PATRICIA AUXIER,

Respondent.

ray

Vv

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF IOWA

fay

Vv

RICHARD C. TURNER

Attorney General of Iowa

LEE M. JACKWIG

Assistant Attorney General

State Capitol

Des Moines, Iowa 50319

Telephone; (515) 281-5976

Counsel for Petitioners

COCKLE PRINTING CO., 1822 St. Mary’s Ave., Omaha

sa

TABLE OF CONTENTS

Pages

Ee ie I PO TART Sy TREE 2

Jurisdiction eae 2

a ns onpnobnecanenes 2

Constitutional Provisiom 0. ccc cccsccsccssecemeenen 3

Statement of the Casé ou... 3

Reasons for Granting the Writ:

i

II.

TIT.

The decision below purports to give an interest

in workers’ compensation benefits paid voluntar-

ily pursuant to a memorandum of :greement the

status of a property right to which due process

ERR Re a

The decision below misapplied due process stand-

ards set forth by this Court in eases involving

direct governmental action to a situation in

which no direct governmental action controls the

9

termination of workers’ commensation benefits.

The decision below penalizes employers and in-

surance carriers who voluntarily assume pay-

ment of workers’ compensation benefits under a

memorandum of agreement by requiring such

benefits to continue for at least thirty days after

the employers and insurance carriers have rea-

son to terminate benefits—in effect, the decision

below requires employers and insurance carriers

to forfeit their property without due process of

&

Certificate of Service

1i

13

16

16

ii

TABLE OF CONTENTS—Continued

Pages

Appendix:

A. Opinion of the Supreme Court of Iowa,

ive Bay 37, TORS np. E

B. Order of the Supreme Court of Towa,

Fite Jans 3, 1978 Le

C. Decree of the District Court of the State

of Iowa In and For Polk County, Filed

NN I en App. 14

D. Motion and Ruling at Time of Hearing

Before the Towa Industrial Commis-

© ie dee eae) Ry nets Sean PR ies need ARE App. 17

TABLE OF AUTHORITIES

CasEs :

Ashby v. Weinberger, 402 F. Supp. 1203 (E. D.

Ce SIR 6 AY wicca ccdetinreacnnenacnitcn ae

Auxier v. Woodward State Hospital-School, 266

N. W. 2d 139 (Iowa 1978) ~~... 2,6, 7,11, 14, 15

Board of Regents v. Roth, 408 U. S. 564, 92 S. Ct.

2701, 33 L. Ed. 2d 548 (1972) nee c oo) ae

Davis v. Caldwell, 53 F. R. D. 373 (N. D. Ga. 1971) ..... 8

Freeman v. Luppes Transport Co., Inc., 227 N. W.

i BI BIR. wie scecastetc seinandanainss cocoa anes 9

Goldberg v. Kelly, 397 U. S. 254, 90 S. Ct. 1011,

25 L. Ed. 2d 287 (1970) 12

iil

TABLE OF AUTHORITIES—Continued

Pages

Heim v. McCall, 239 U. S. 175, 36 S. Ct. 78, 60

Li Bal. 200 (008) 13

McCabe Inspection Service v. Willard, 240 F. 2d

942 (2nd Cir. 1957). ...... Ba Fie MES |

Mathews v. Eldridge, 424 U. S. 319, 96 S. Ct. 893,

; A ee lets he 11, 12

Parsons College v. North Central Association of

Colleges and Secondary Schools, 271 F. Supp.

eek en ee 11

Sandoval v. Industrial Commission, 144 Ariz. 132,

009 P. 2d 688, cert. denied 432 U. S. 906, 97

S. Ct. 2951, 53 Le. Hed. 2d 1078 (1977) ne cenensnneenumnen 8

Sauter v. Cedar Rapids & I C Ry., 204 Towa 394,

Ba Ts We WO CNBR neta tare 10

Silas v. Smith, 361 F. Supp. 1187 (E.D. Penn.

RE cikec einen tcc 10

STaTuTES

Section 85.26(2), Code of Towa, 1977 oiccccccccccscnsnmeen 9

Section 86.13, Code of Towa, 1971 cccceccccccccccceccceneneeen 7,9, 10

Section 86.26, Code of Lowa, 1973 ececcccoccccccsesemensssunsen 4

Section 86.34, Code of Towa, 1971 nucceccccoccccsccuscssemene 4, 5,9

Section 86.42, Code of Iowa, 1971 _. ......? 16

iv

TABLE OF AUTHORITIES—Continued

Pages

Section 86.43, Code of Lowa, 1971 Bie

Title 28, United States Code, Section 1257(3) =... 2

CoNSTITUTIONAL PROVISION

Fourteenth Amendment to the United States

Constitution 3

In The

Supreme Court of the Usited States

October Term 1978

,

Vv

No.

¢).

Vv

WOODWARD STATE HOSPITAL-SCHOOL

. and STATE OF IOWA,

Petitioners,

VS.

PATRICIA AUXTER,

Respondent.

ry

Vv

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF IOWA

y

Vv

Woodward State Hospital-School and the State of

Iowa, the Petitioners herein, respectfully pray that a writ

of certiorari issue to review the judgment and opinion of

the Supreme Court of Iowa entered May 17, 1978, on

which rehearing was denied June 23, 1978.

2

OPINION BELOW

This Petition seeks review of the Iowa Supreme

Court decision in the ease of Auxier v. Woodward State

Hospital-School, 266 N. W. 2d 139 (Iowa 1978), printed

herein as Appendix A. The Order of the Supreme Court

of Towa denying rehearing is unreported and is printed

herein as Appendix B.

O

JURISDICTION

The judgment of the Supreme Court of Iowa was

entered on May 17, 1978. A timely petition for rehearing

was denied on June 23, 1978. A jurisdiction of this Court

is invoked under Title 28, United States Code, Section

1257 (3).

QUESTION PRESENTED

What process, if any, is due a claimant prior to termi-

nation by an employer or its insurance carrier of weekly

workers’ compensation benefits which claimant had been

receiving pursuant to a voluntary open-ended memor-

andum of agreement between the claimant and the em-

ployer or its insurance carrier?

Cw

CONSTITUTIONAL PROVISION INVOLVED

Amendment XIV

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

—)

STATEMENT OF THE CASE

On May 26, 1971, Respondent Patricia Auxier (here-

inafter referred to as claimant) injured her ankle in the

course of her employment at Woodward State Hospital-

School (hereinalter referred to as hospital).'

Pursuant to a memorandum of agreement filed on

June 4, 1971 in accordance with Section 86.13, Code of

lowa, 1971, the hospital paid the claimant 113 weeks of

temporary total disability benefits.

In August of 1973, the hospital terminated the weekly

benefits and advised claimant’s attorney by letter as to

the reasons for such termination.

1 The State of lowa, including its varied divisions such as

Woodward State Hospital-School, is a self-insured employer

under the lowa Workers’ Compensation Act.

+

Pursuant to Section 86.34, Code of Iowa, 1971, claim-

ant filed an application for review-reopening against the

hospital on September 14, 1973. Claimant maintained that

her workers’ compensation benefits had been terminated

without due process of law. During the review-reopening

hearing on January 4, 1974, claimant made a motion re-

questing that she be paid compensation benefits from the

date said benefits were terminated to the date upon which

the deputy industrial commissioner would render his deci-

sion. ‘he deputy commissioner presiding at the hearing

overruled said motion. (See Appendix D.)

On November 20, 1974, the deputy industrial commis-

sioner rendered a review-reopening decision in which he

found that the claimant had sustained a fifteen per cent

permanent partial disability to the body as a whole, that

she was entitled to the statutory maximum in healing

period, and that certain medical bills were causally related

to the work-injury.

On December 2, 1974, claimant appealed the agency

decision to the Polk County Distriet Court pursuant to

Section 86.26, Code of Towa, 1978, again raising the issue

of pre-termination due process.

On October 29, 1976, the trial court reversed the

agency decision and ruled that as a matter of law claim-

ant was entitled to a hearing prior to any termination of

weekly benefits, that as a matter of law claimant was en-

titled to a ‘‘running award’’ with respect to temporary

total benefits, and that undisputed evidence established

that claimant was entitled to payment of twenty-one addi-

tional medical expenses. (The District Court decree is

printed herein as Appendix C.)

4)

On November 23, 1976, the hospital filed notice of

appeal to the Supreme Court of Iowa.

On May 17, 1978, the Iowa Supreme Court found that

a claimant’s interest in workers’ compensation benefits

is a property right which cannot be taken away without

due process of law and ruled that prior to termination of

workers’ compensation benefits in cases where a claimant

has not returned to work, employers or their insurance

carriers must provide notice with regard to: the contem-

plated termination, the time—not less than thirty days

after notice—when the termination was to occur, the rea-

sons for the termination, the fact that claimant could

submit rebuttal evidence to which the employer or insur-

ance carrier would have to further respond, and the fact

that the recipient had the right to petition for review-

reopening under Section 86.34, Code of Iowa. The Iowa

Supreme Court affirmed the trial court’s allowance of the

running award, but reversed the trial court on the issue

of the additional medical bills.

On May 26, 1978, the hospital petitioned the Iowa

Supreme Court for a rehearing on the ‘‘notice’’ determin-

ation arguing that a claimant’s interest in workers’ com-

pensation benefits received pursuant to a memorandum

of agreement is not a property right for which due process

standards are required.’

2 The hospital also requested rehearing regarding the lowa

Supreme Court's affirmance of the “running award;” how-

ever, said determination rests on lowa law and, accordingly,

is not further challenged before this Court.

6

On June 23, 1978, the Supreme Court of Iowa, without

opinion, denied the hospital’s petition for rehearing. It

is from said decision that the hospital now seeks relief.

-—-—- ()———

REASONS FOR GRANTING THE WRIT

I. The decision below purports to give an in-

terest in workers’ compensation benefits paid vol-

uriarily pursuant to a memorandum of agree-

ment the status of a property right to which due

process standards attach.

The Iowa Supreme Court disagreed with the trial

court’s finding that due process required a hearing prior

to the termination of benefits under a memorandum of

agreement situation; however, as set forth in the state-

ment of the case, the Iowa Supreme Court found that due

process under said arrangement does require some form

of notice prior to termination of benefits. Auaier v.

Woodward State Hospital-School, 266 N. W. 2d 189, 141-

142 (lowa 1978).

Although the lowa Supreme Court noted that there

was no statutory requirement for a hearing nor for notice

prior to the termination of benefits paid pursuant to a

memorandwn of agreement, the determination regarding

pre-termination notice was based initially on the assump-

tion that an interest in benefits paid voluntarily pursuant

to a memorandum of agreement is a property right which

cannot be taken away without due process of law and sub-

sequently on the application of the principle that required

7

notice or hearing—if not otherwise required by statute—

can be derived from common-law principles embodied in

the constitutional guaranty of due process of law. Auxier

v. Woodward State Hospital-School, 266 N.W.2d 139,

141-142 (Iowa 1978),

The hospital argued in the Appellants’ Brief, in the

Reply Brief, and in the Petition for Rehearing that an

interest in benelits paid voluntarily pursuant to a memor-

andum of agreement in accordance with Section 86.13,

Code of Lowa, 1971, does not constitute a property right

to which due process standards apply.’ It should be noted

3 Section 86.13, Code of lowa, 1971 reads as follows:

“If the mpage 4 and the employee reach an agreement

in regard to the compensation, a memorandum thereof

shall be filed with the industrial commissioner by the

employer or the insurance carrier, and unless the com-

missioner shall, within twenty days, notify the employer

or the insurance carrier and employee of his disap-

proval of the agreement by certified mail sent to their

addresses as given on the memorandum filed, the

agreement shall stand approved and be enforceable for

all purposes, except as otherwise provided in this and

chapters 85 and 87.

“In case the injured employee is a minor, either

he or his trustee may give a valid and binding release

for the compensation paid on his account.

“Such agreement shall be approved by said com-

missioner only when the terms conform to the provi-

sions of this and chapter 85.

“Any failure on the part of the employer or insur-

ance carrier to file such memorandum of agreement

with the industrial commissioner within thirty days

after the payment of weekly compensation is begun

shall stop the running of section 85.26 as of the date

of the first such payment.”

The 66th General Assembly of lowa (1976) struck unnum-

bered paragraph two; otherwise, present Section 86.13 re-

mains unchanged from the above-quoted version.

8

that no United States Supreme Court decision has ad-

dressed the specific issue presented in this case; further,

federal court decisions appear to be in dispute as to

whether or not workers’ compensation benefits paid under

a voluntary agreement create a significant property inter-

est to which strict aue process standards apply. Davis v.

Caldwell, 53 F.R.D. 373 (N.D. Ga. 1971); Board of

Regents v. Roth, 408 U.S. 564, 92 8. Ct. 2701, 33 L. Ed. 2d

548 (1972); Ashby v. Weinberger, 402 F. Supp. 1203 (EK. D.

N. Y. 1975); see also Sandoval v. Industrial Commission,

144 Ariz. 132, 559 P. 2d 688, cert. denied, 432 U.S. 906, 97

S. Ct. 2951, 53 L. Ed. 2d 1078 (1977)

Here on petition for a writ of certiorari the hospital

again maintains that the claimant did not successfully

raise a due process argument because the claimant failed

to demonstrate a property interest in or a legitimate

claim to such benefits.

“To have a property interest in a benefit, a per-

son clearly must have more than an abstract need or

desire for it... . He must, instead, have a legitimate

claim of entitlement to it... they (property inter-

ests) are created and their dimensions are defined by

existing rules or understandings that stem from an

independent source such as state law—rules or under-

standings that secure certain benefits and that sup-

port claims of entitlement to those benefits.” Board

of Regents v. Roth, 408 U. S. 564, 577, 92 S. Ct.

2701, 2709, 33 L. Ed. 2d 548 (1972).

Whereas a claimant may logically expect to receive

benefits pursuant to a “running award” determination by

the industrial commissioner following a hearing to stab-

lish the nature and extent of disability, a claimant may

not reasonably expect to receive “indefinite benefits” un-

9

der a memorandum of agreement. According to Towa

case law, a memorandum of agreement establishes only

that an employer-employee relationship existed at the

time of the injury and that the injury arose out of and

in the course of the employment. Freeman v. Luppes

Transport Company, Inc., 227 N. W. 2d 143 (Iowa 1975).

Where compensation is not commuted, the issue of the

extent of disability remains open fer adjustment in ac-

cordance with the facts upon application for a review-

reopening pursuant to Section 86.34, Code of Iowa.+ The

memorandum of agreement establishes neither the exist-

ence nor the extent of a disability. The typical open-

4 Section 86.34, Code of lowa, 1971 reads as follows:

“Any award for payments or agreement for settlement

made under this chapter where the amount has not

been commuted, may be reviewed by the industrial

commissioner or a deputy commissioner at the request

of the employer or of the employee at any time within

three years from the date of the last payment of com-

pensation made under such award or agreement, and

if on such review the commissioner finds the condition

of the employee warrants such action, he may end,

diminish, or increase the compensation so awarded or

agreed upon. Any party aggrieved by any decision or

order of the industrial commissioner or a deputy com-

missioner on a review of award or settlement as pro-

vided in this section, may appeal to the district court

of the county in which the injury occurred and in the

same manner as is provided in section 86.26.”

Section 86.34 was repealed by the 67th General Assembly

of lowa (1977). Review-reopenings are now provided for

ao 85.26 (2), Code of lowa, 1977, which reads as

ollows:

“2. Any award for payments or agreement for settle-

ment provided by section 86.13 for benefits under the

workers’ compensation or occupational disease law

may, where the amount has not been commuted, be

(Continued on next page)

10

ended memorandum of agreement cannot be the basis of

a judgment pursuant to Sections 86.42 and 86.43, Code of

Iowa. Sauter v. Cedar Rapids & I. C. Ry., 204 lowa 394,

214 N. W. 707 (1927).

The memorandum of agreement involves a contrac-

tual claim to benefits, the amount of which the other party

to the contract may dispute. Silas v. Smith, 361 F. Supp.

1187, 1192 (EH. D. Penn. 1973).5 The concept of due proc-

(Continued from previous page)

reviewed upon commencement of reopening proceed-

ings by the employer or the employee within three

years from the date of the last payment of weekly

benefits made under such award or agreement. Once

an award for payments or agreement for settlement as

provided by section 86.13 for benefits under the work-

ers’ compensation or occupational disease law has

been made where the amount has not been commuted

the commissioner may at any time upon proper appli-

cation make a determination and appropriate order

pees tr the entitlement of an employee to benefits

provided for in section 85.27.”

5 In Silas v. Smith, 361 F.Supp. 1187 (E.D. Penn. 1973), the

Pennsylvania Workmen’s Compensation Act provided that

the filing of a “Petition to Terminate or Modify a compen-

sation agreement or award’ acted as a supersedeas which

automatically suspended the compensation payments under

the award or agreement to the extent which the alleged

facts in the petition would require if proved. The claimant

unsuccessfully challenged this procedure as well as the com-

mon practice of pre-petition termination and the lack of any

provision requiring notice before filing the petition. After

the suit was filed, the Act was amended to provide that the

filing of such a petition would act automatically as a super-

sedeas only when the petition alleged either that the claim-

ant had returned to work at prior or increased earnings or

that the claimant had fully recovered based on an accom-

panying medical affidavit or examination report. In all

other cases, the effect of the petition would be left to the

(Continued on next page)

11

ess does “not control the voluntary arrangements or re-

lations of private citizens in their private dealings with

one another.” Parsons College v. North Central Associa-

tion of Colleges and Secondary Schools, 271 F. Supp. 65

(D. C. Ill. 1967).

II. The decision below misapplied due proc-

ess standards set forth by this Court in cases in-

volving direct governmental action to a situation

in which no direct governmental action controls

the termination of workers’ compensation bene-

fits.

The Iowa Supreme Court ruled that due process as it

relates to the situation in issue requires “a procedure for

notice of termination, similar to the scheme approved by

the United States Supreme Court in Mathews ...” Aux-

ier, 266 N. W. 2d 139, 142 (Iowa 1978). In Mathews v.

Eldridge, 424 U. S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18

(1976 )g this Court ruled that due process did not require

that the recipient of social security disability benefits be

(Continued from previous page)

discretion of the hearing referee, and such decision on the

supersedeas request could not be appealed. The Act was

also amended to provide for penalties if the filing was not

complied with. However, it must be carefully noted that

the Act was further amended to provide for the creation of

a fund which wouid be used to reimburse an insurance

carrier for benefits paid out because a supersedeas had

been denied, and where, upon outcome of the hearing, it

was determined that such benefits were not in fact payable.

Under the Auxier ruling, an insurance carrier does not

have even the right to contest the thirty-day notice period.

Had the decision provided a means to challenge said time

period, the likelihood of reimbursement to the insurance

carrier by the claimant would still be virtually nonexistent

insofar as there is no provision made in lowa law for an

insurance carrier to actually recover from the claimant bene-

fits paid which are later determined to have been incor-

rectly assessed.

12

accorded an opportunity for an evidentiary hearing prior

to termination of said benefits by the state agency divi-

sion of the social security administration. The Mathews

decision did discuss the notice afforded the recipient of

the governmentally controlled benefits.

The hospital respectfully calls to the attention of

this Court the fact that the state agency, the Iowa In-

dustrial Commissioner, does not become involved in the

termination of benefits under a memorandum of agree-

ment. (In both the private and public sector, the role of

the agency in approving a memorandum of agreement

submitted by the parties is minimal—no predetermined

amount of benefits is specified for approval.) The em-

ployer is the entity that determines whether benefits

should be terminated under said contract based upon

available medical information or the claimant’s return to

work. If the other party, the claimant, contests this, a

Review-Reopening proceeding may be commenced at which

point the agency will become involved. Clearly the due

process standards discussed in Goldberg v. Kelly, 397

U. S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970) and

Mathews v. Eldridge, 424 U. S. 319, 96 S. Ct. 893, 47

L. Ed. 2d 218 (1976) took into consideration that an ad-

ministrative agency controlled and directed the termina-

tion of benefits. There is no similar agency involvement

in the type of termination of benefits considered in this

appeal.®

6 Although the State Comptroller’s office now handles the

initial administration of state employee claims, the law in

effect at the time claimant’s injury occurred charged the

Industrial Commissioner’s office with the certification of

these compensation claims drawn upon the State Treasury.

(Continued on next page)

13

III. The decision below penalizes employ-

ers and insurance carriers who voluntarily assume

payment of workers’ compensation benefits under

a memorandum of agreement by requiring such

benefits to continue for at least thirty days after

the employers and insurance carriers have reason

to terminate benefits—in effect, the decision be-

low requires employers and insurance carriers to

forfeit their property without due process of

law.

The hospital submits that fundamental fairness does

not require thirty day notice before termination by a non-

agency of non-property interest benefits may occur. In-

deed, the thirty day notice requirement may result in

fewer memorandums of agreement being entered into in

the first instance.

Why would an employer enter into a memorandum of

agreement when the likelihood of paying an additional

thirty days of compensation that would not necessarily

(Continued from previous page)

However, administrative and judicial functions were vested

in separate individuals. The claimant’s case was managed

by an administrative officer acting as an agent of the state

as an employer and not of the state as government. That

is the State of lowa as ‘‘govenment” was not involved in the

decision to terminate compensation benefits. The State

sheds its cloak of official government action when adminis-

tering its internal affairs and providing benefits and services

for its employees. The proprietary functions of the State in

matters of employment is analogous to that of private per-

sons. Heim v. McCall, 239 U.S. 175, 36 S. Ct. 78, 60 L. Ed.

206 (1915). Furthermore, the lowa Supreme Court opinion

which is the basis of this request for a writ of certiorari does

not draw any distinction with regard to due process require-

ments in the case of a private sector employer and em-

ployee from these in the case of a public sector employer

and employee.

14

otherwise be required exists? For example, in a case

wherein only temporary total disability is immediately

recognizable, the employer who filed a memorandum of

agreement would often pay ‘‘X” amount of weeks of

benefits until receiving medical information that claimant

had fully recovered a few weeks earlier and no permanent

partial disability was medically evident. It was not un-

usual for the employer to terminate benefits and for the

claimant not to contest such decision unless later exper-

iencing a change in condition proximately caused by the

work injury and commencing a review-reopening within

three years from the last date benefits were paid. Now,

under the requirements of the present decision, the em-

ployer will be required to pay an additional thirty days of

benefits from the time the employer can reasonably deter-

mine that benefits may be terminated—irregardless of

whether or not the claimant would have challenged such

determination.

Towa Worker’s Compensation rates are substantiai

and cases are numerous. Even if employers will be able

to assume the obvious added expense that will arise pur-

suant to the Auxier notice requirement and will not cur-

tail the practice of entering into memorandums of agree-

ment, the fact remains that thirty days of workers’ com-

pensation benefits will be forfeited by such employers in

every such case without due process of law. ‘“The Act

‘should be administered and interpreted so as to encour-

age employers to comply with all of its requirements with

celerity and not to penalize those who humanely and more

than sufficiently meet the demands of the law’ (cita-

tions).” McCabe Inspection Service v. Willard, 240 F. 2d

942 (2nd Cir. 1957) referring to the Longshoreman’s and

Harbor Worker’s Compensation Act.

_

cr

The defendants maintain that the availability of the

review-reopening procedure, discussed above at pages 9,

10, assures the claimant an opportunity to be heard at a

meaningful time in a meaningful manner. In the typical

case, a claimant will receive some payment of compensa-

tion under the voluntarily entered memorandum of acree-

ment without the necessity or delay of having had to file

an application before the agency, to take discovery, to

present evidence at a hearing, and to await a decision—

receiving no weekly benefits in the meantime. Upon ter-

mination of such benefits, the claimant may assert a claim

for further benefits by filing a review-reopening action.

If the claimant is able to prove that such benefits should

have been continued, the employer or insurance carrier

will be ordered by the agency to pay any back compensa-

tion in addition to whatever compensation the nature and

extent of claimant’s disability at the time of the decision

may require. Again, it must be noted that there is no

similar provision in either the Auzier decision or in the

Towa Workers’ Compensation Act for the employer or in-

surance carrier to recover thirty or more days of com-

pensation paid despite medical evidence that reveals the

employee could have returned to work or had reached

maximum recovery at a point thirty or more days prior

to the time when benefits actually ceased. The excess

payment required by the Auzier decision deprives em-

ployers and insurance carriers of their property without

due process of law.

Vv

16 App. 1

CONCLUSION APPENDIX A

For all the foregoing reasons, the Petitioners respect-

fully request this Court to grant this Petition For a Writ IN THE SUPREME COURT OF IOWA

of Certiorari to the Supreme Court of Iowa. | PATRICIA AUXIER,

Respectfully submitted, Appellee,

RICHARD C. TURNER a

Attorney General of Iowa WOODWARD STATE HOSPITAL-SCHOOL,

LEE M. JACKWIG Employer,

Assistant Attorney General and

Counsel for Petitioners STATE OF IOWA,

Appellants.

CERTIFICATE OF SERVICE (Filed May 17, 1978)

I, Lee M. Jackwig, Assistant Attorney General for 56/60108

the State of Iowa, hereby certify that on the 13th day Appeal from Polk District Court—Leo Oxberger,

of September, 1978, I mailed three (3) copies of Brief Judge.

for Petitioner, correct 1st class postage pre-paid to: Appeal from review-reopening decision in worker’s

Harry W. Dahl 2sompensation case.—Affirmed in part, reversed in part.

5600 Grand Avenue Richard C. Turner, Attorney General, and Lee M.

Des Moines, lowa 50312

Jackwig, Assistant Attorney General, for appellants.

Counsel for Respondent

—e a ee Harry W. Dahl, of Des Moines, for appellee.

510 Central Natior al Bank Building Fred D. Huebner, of Des Moines, amicus curiae.

Des Moines, lowa 50309

Counsel for Amicus Curiae (In the Supreme En bane.

Court of Iowa) HARRIS, J.

I further certify that all parties required to be

A review-reopening decision by the deputy industrial

served have been served.

commissioner was reversed on appeal to the trial court.

/s/ Lee M. Jackwig Woodward State Hospital (the hospital) and the State of

Assistant Attorney General Iowa, as claimant’s employer, have appealed the trial

State Capitol ourt’s determination t We affirm i rt and re

Dies Miluéa, Bowe S004 court’s determination to us. We affirm in pa re-

verse in part.

App. 2

Patricia Auxier (claimant) was employed by the hos-

pital at Woodward. In February 1971 claimant, while at

home, broke her leg in an accident which was unrelated

to her employment. As soon as the cast was taken off

she returned to work where, on May 26, 1971, she was

tripped by one of the patients in the hospital. In her

fall she reinjured her right ankle.

On June 4, 1971 the hospital filed a report of the in-

jury. A memorandum of agreement was made and ap-

proved by the commission on June 7, 1971. Pursuant to

that agreement claimant was paid #47.81 for 113 weeks.

Payments were abruptly stopped August 2, 1973. The

only notice claimant received of termination of the pay-

ments was a letter to her attorney enclosing a warrant

for two weeks compensation from July 19, 1973 to Au-

gust 1, 1973:

“* * * With this State warrant we are discontinuing

further payments to your client, for the reason that the

Towa City report does not indicate that your client has

very much permanent partial disability. Also, medical

reports indicate that your client has other conditions not

related to her work injury. With this warrant we will

have paid your client a total of 113 weeks of workmen’s

compensation.”

Not surprisingly the parties are in disagreement as

to claimant’s exact physical condition at the time, and

are in sharp disagreement as to what infirmities derived

from claimant’s work-related injury.

On September 14, 1973 claimant filed her application

for review-reopening under § 86.34, The Code. She

App. 3

claimed her worker’s compensation benefits had been ter-

minated without her consent, while she was still disabled,

and in contravention of her rights to due process of law.

The deputy commissioner filed his decision on the review-

reopening on November 20, 1974. He found: (1) claim-

ant is five feet nine inches tall and weighs 220 pounds;

(2) claimant suffered her injury after being tripped by

a patient at Woodward; (3) under the memorandum of

agreement claimant was paid 113 weeks of compensation

at $47.81 per week; (4) upon the basis of various medi-

cal reports the commissioner concluded claimant suffered

many other ailments to her leg, back, nerve and blood

systems, which were not work related; (5) claimant’s per-

manent partial disability was 15 percent of the total body;

(6) compensation should have been paid to claimant for

75 weeks at $56 per week (permanent partial disability)

and 45 weeks at $57.39 per week (healing period). He

also allowed for payment of interest and a portion of ¢he

medical expenses claimed.

Claimant appealed the industrial commissioner’s de-

cision to the trial court which ruled the commissioner

erred as a matter of law in terminating the payments

without a hearing. The trial court accordingly ordered

payment of compensation to claimant for the period from

termination, August 1, 1973, to November 20, 1974, the

date of the review-reopening decision. The trial court

also ordered a “running award” paid for 300 weeks or

until it was established claimant’s disability is either per-

manent or total, whichever period is less. The trial court

separately allowed 21 other medical bills.

App. 4

I. The first issue is the hospital’s challenge to the

trial court’s holding the claimant was entitled to a pre-

termination hearing before disability benefits could be

stopped. Because there was no such hearing the trial

eourt ordered benefits paid until the date of the com-

missioner’s decision. There is no statutory requirement

for such a hearing so the dispute is whether one is de-

manded by the due process requirements of Amendment

14 to the United States Constitution and Art. T, $9, of

the Lowa Constitution.

Claimant, in support of her due process claim, relies

heavily on Goldberg v. Kelley, 397 U. S. 254, 90 S. Ct.

1011, 25 L. Ed, 2d 287 (1970). In Goldberg the major-

ity held procedural due process required that, before ter-

minating welfare benefits, the recipient must be accorded

an evidentiary hearing. The court set up the following

six requirements: (1) “timely and adequate notice de-

tailing the reasons for a proposed termination”; (2) “an

effective opportunity [for the recipient] to defend hy

confronting any adverse witnesses and by presenting his

own arguments and evidence orally’; (3) retained coun

sel, if desired; (4) an impartial decision-maker; (5) a

decision resting “solely on the legal rules and evidences

adduced at the hearing”; (6) a statement of reasons for

the decision and the evidence relied on, 3897 U. S. at 266-

271, 90 S. Ct. at 1019-1022, 25 L. Ed. 2d at 298-301.

The hospital, in resisting the claim, points to Mathews

v. Eldridge, 424 U. 8. 319, 96 S. Ct. 898, 47 L. Id. 2d 18

(1976). In Mathews the question was whether due proe-

ess requires that, prior to termination of social security

disability benefits, the recipient be accorded an oppor-

_

App. 5

tunity for an evidentiary hearing. In answering the

question the court used a balancing test which weighed

three factors: (1) the private interest affected; (2) the

risk of an erroneous deprivation of such interest through

the procedure used, and the probable value, if any, of

additional or substitute procedural safeguards, and (3)

the government’s interest including the function involved,

and the fiscal and administrative burdens and any addi-

tional burdens a new procedure would entail. 424 U. 8.

at 335, 96 S. Ct. at 903, 47 L. Ed. 2d at 33. All three

factors were variable. In balancing them the majority

in Mathews found no violation of due process for want

of a pretermination hearing under the facts presented.

Under the social security act, 42 U.S.C. § 423 El-

dridge, the claimant in Mathews, received a questionnaire

from a state agency charged with monitoring his condi-

tion. He answered the questionnaire claiming his condi-

tion had not improved and referred to medical sources

and his treating physicians. The state agency then ob-

tained reports from the physicians and considered them.

Thereafter it informed Eldridge by letter it had made a

tentative determination his disability had ceased in May

of 1972. The letter contained a statement of reasons for

the proposed termination of benefits and advised El-

(ridge he might request reasonable time in which to ob-

tain and submit additional information pertaining to his

condition. Although he challenged the- description of his

condition, Eldridge chose not to submit further evidence.

The agency made a final decision that Eldridge had

ceased to be disabled in May of 1972. This determina-

tion was accepted by the social security administration

App. 6

which notified Eldridge in July his benefits would termi-

nate after that month. It also advised him he had a right

to seek reconsideration by the state agency of the initial

determination within six months. Eldridge made no such

request but brought suit on the claim he had a constitu-

tional right for a pretermination hearing as specified in

Goldberg. His claim was denied by the majority. See

also Sandoval v. Industrial Commission, 144 Ariz. 132,

559 P. 2d 688, cert. denied 432 U. S. 906, 97 S. Ct. 2951,

53 L. Ed. 2d 1078 (1977).

The test of whether due process of law has been vio-

lated is whether the challenged practice or rule “offends

some principle of justice so rooted in the traditions and

conscience of our people as to be ranked as fundamental.”

Snyder v. Massachusetts, 291 U. 8. 97, 105, 54 S. Ct. 330,

105, 78 L. Ed. 2d 674, 677 (1934), overruled on other

grounds Malloy v. Hogan, 378 U. S. 1, 84 8S. Ct. 1489, 12

L. Ed. 2d 653 (1964); 90 A. L.R. 575. See 1 Antieau,

Modern Constitutional Law, § 5:110.

It is apparent to us, and is not seriously disputed

herein, that claimant’s interest in worker’s compensation

benefits is a property right which cannot be taken away

without due process of law. Analogous claims were

deemed property rights so protected in Ross v. City of

Des Moines, 249 N. W. 2d 648, 650 (Iowa 1977); Koelling

v. Trustees of Skiff Hospital, 259 Iowa 1185, 1197, 146

N. W. 2d 284, 296 (1966).

It is well settled the extent and nature of the hearing

required for due process varies according to the needs

and circumstances of a given case. But it is clear that

some pretermination notice is required, under Goldberg

App. 7

and the cases it cites, as a component of due process.

And it is now well settled that some opportunity must

be aecorded to protest and present proof as to why a

property right should not be terminated. Memphis Light,

Gas and Water v. Craft, — U. S. —, — 8S. Ct. —, —

L. Ed. 2d — (1978) (46 Law Week 4398).

We believe the due process clauses of both the fed-

eral and state constitutions require a procedure for no-

tice of termination, similar to the scheme approved by

the United States Supreme Court in Mathews, supra. It

is to be conceded Code chapter 86 specifies no such re-

quirements. But where a required notice (or hearing)

right is not given by statute it “* * * is derived in a

proper case from common-law principles embodied in

the constitutional guaranty of due process of law. * * *.”

2 Am. Jur. 2d, Administrative Law, § 398 at p. 203.

We hold, on the basis of fundamental fairness, due

process demands that, prior to termination of worker’s

compensation benefits, except where the claimant has dem-

onstrated recovery by returning to work, he or she is

entitled to a notice which, as a minimum,. requires the

following:

[1] the contemplated termination,

[2] that the termination of bei efits was to occur at

a specified time not less than 30 days after notice,

[3] the reason or reasons for the termination,

i4] that the recipient had the opportunity to sub-

mit any evidence or documents disputing or contradict-

ing the reasons given for termination, and, if such evi-

App. 8

dence or documents are submitted, to be advised whether

termination is still contemplated,

[5] that the recipient had the right to petition for

review-reopening under § 86.34.

Under the summary procedure employed in the in-

stant case there was no such notice. Accordingly the

trial court reached the right result in ruling the commis-

sioner erred as a matter of law in terminating claim-

ant’s benefits.

II. The second issue in this appeal has to do with

§ 85.53, The Code, which provides: “The employer shall

pay to the employee for injury producing temporary dis-

ability and beginning upon the eighth day thereof, weekly

compensation benefit payments for the period of his dis-

ability, including the periodical increase in cases to which

§ 85.32 [when compensation begins] applies.” Temporary

disability benefits paid under § 85.33 have come to be

ealled “running awards.” The deputy commissioner found

claimant was permanently disabled and thus not entitled

to a running award. The trial court on appeal found

claimant was not permanently disabled but only tem-

porarily disabled and therefore entitled to a running

award, either for 300 weeks or until such time as the

hospital at a hearing established one of two things: (1)

claimant’s temporary disability had terminated, or (2)

claimant had become permanently disabled.

Under these somewhat unique circumstances we must

review the claims by an injured claimant that her injury

is not permanent and by her employer that it is. The

trial court’s review of the decision of the industrial com-

App. 9

missioner of course was not de novo. In Holmes v. Bruce

Motor Freight, Inc., 215 N. W. 2d 296, 301 (Iowa 1974)

we explained existing rules on the scope of our review:

“* * * Whether a particular decision of the commis-

sioner be for the claimant or for the employer, the judi-

cial scope of review is to ascertain whether there is ‘suf-

ficient competent evidence in the record to warrant the

making of the order or decision.’ * * * [WJe regard the

commissioner’s fact-findings as tantamount to jury find-

ings; if a jury issue is presented, were the case tried

to a jury, the commissioner’s findings stand. Langford

v. Kellar Excavating & Grading, Inc., 191 N. W. 2d 667,

668 (Iowa) (‘We have variously expressed this rule by

saying his findings are binding upon us if supported by

substantial evidence; the facts determined by the indus-

trial commissioner have the same effect as a jury verdict;

and we may not interfere with such findings where there

is a conflict in the evidence or when reasonable minds may

disagree as to the inferences to be drawn from the evi-

dence, whether disputed or not.’); (Authority).”

More recently we discussed the scope of our de novo

review under the new administrative code. It is governed

by §17A.1°, The Code. The question is whether the

agency action is “* *-* unsupported by substantial evi-

dence in the record made before the agency when that

record is viewed as a whole; * * *.” §17A.19(f). City of

Davenport v. Public Employment Relations Board, —

N. W. 2d — (Iowa 1978), and authorities.

The question then is whether there was any substan-

tial evidence to support the commissioner’s finding claim-

ant’s injury was permanent. The commissioner’s findings

App. 10

are to be viewed in the light of the evidence as a whole.

Olson v. Goodyear Service Stores, 255 Towa 1112, 1121,

125 N. W. 2d 251, 256-257 (1963). We explained the re-

sponsibilities of the commissioner in making his findings

in Catalfo v. Firestone Tire and Rubber Co,, 213 N. W.

2d 506, 509-510 (Iowa 1973).

It appears from the statement of the trial court

[“* * * and my job will be to search the record to see

where the doctor testified that it was his opinion that

this was a permanent injury.”] that the trial court be-

lieved the evidence the disability was permanent should

be based on medical testimony.

The trial court searched in vain for any medical evi-

dence of permanency. The closest any medical testimony

got to the subject of permanency was the statement of

claimant’s physician, “it’s now hoped that she’ll [claim-

ant] finally begin to settle down and that she will be re-

lieved ultimately of some of her low back and right leg

discomfort.” Both parties take that statement to sup-

port their conflicting views on the subject of permanency.

The only possible support we can find for the com-

missioner’s holding that the claimant’s disability was per-

manent and not temporary was in the total pattern of

her physical condition.

Although the question is an extremely close one we

believe on balance the record cannot be said to support

the cemmissioner’s finding as to the permanency of

claimant’s disability. The trial court was right in so

finding. We find no merit in the hospital’s challenge to

the trial court’s allowance of the running award.

App. 11

III. The third issue in this appeal is controlled by

our scope of review. Code section 85.27 provides that

the employer shall pay reasonable health care services up-

on gaining notice or knowledge of an employee’s injury.

The section goes on to provide in material part: “Charges

believed to be excessive or unnecessary may be referred

to the industrial commissioner for determination, * * *.”

Twenty-five medical bills were presented by the claim-

ant. The commissioner ordered four of them paid. These

four are not involved in this appeal. Twenty-one bills

were disallowed by the commissioner because he deter-

mined the claimant had failed to present sufficient evi-

dence to prove a causal connection between the conditions

which were the subject of the treatment and the claim-

ant’s work-related injury.

The parties stipulated the amounts of the medical

bills were fair and reasonable. Accordingly Code section

85.27 required the hospital to furnish claimant with what-

ever was necessary and needed in treatment of her work-

related injury. Sister Mary Benedict v. St. Mary’s Cor-

poration, 255 Iowa 847, 854-856, 124 N. W. 2d 548, 553

(1963); Polson v. Meredith Publishing Company, 213

N. W. 2d 520 (Iowa 1973).

Claimant was entitled to recover the expenses in

treating whatever aggravation of her pre-existing condi-

tion was caused by her work-related injury. Yeager v.

Firestone Tire & Rubber Co., 253 Iowa 369, 374-375, 112

N. W. 2d 299, 302 (1961). On the question of what sort

of evidence might tend to connect up a disability and a

work-related injury we held in Anderson v. Oscar Mayer

& Co., 217 N. W. 2d 531, 536 (Iowa 1974) the commis-

App. 12

sioner could, but would not be required, to make an award

upon expert testimony that the present condition “might

be”? so causally connected.

We find the commissioner could find from this record

that the claimant failed to prove a causal connection he-

tween the work-related injury and the condition treated

in the 21 disallowed medical bills. Our review on that

question, like that of the trial court, is not de novo. In

division II of this opinion we pointed out that the com-

missioner’s findings are binding upon us if supported by

substantial evidence. We believe, on this assignment,

they were. It was error for the trial court to determine

claimant had established a causa] connection as a matter

of law.

In summary we affirm the trial court for ruling the

commissioner erred as a matter of law in terminating

claimant’s benefits. We affirm the tria! court’s allow-

ance of the running award. We reverse the trial court on

the question of the 21 medical bills and reinstate the com-

missioner’s disallowance of them. Tax costs two thirds

to the hospital and one third to claimant.

AFFIRMED IN PART, REVERSED IN PART,

BUT NOT REMANDED.

All Justices coneur.

ll Aol A ina 28

App. 13

APPENDIX B

IN THE SUPREME COURT OF IOWA

No. 2-60108

PATRICIA AUXIER,

Appellee,

vs.

WOODWARD STATE HOSPITAL-SCHOOL,

Employer,

and

STATE OF IOWA,

Appellants.

ORDER

(Filed June 23, 1978)

Appellants’ petition for rehearing, filed in the above

entitled matter, has been duly considered by the entire

membership of the court and is now overruled and denied.

Done this 23rd day of June, 1978.

/s/ C. Edwin Moore, Chief Justice

Iowa Supreme Court

Copies to:

Lee M. Jackwig

Assistant Attorney General

Fred D. Huebner

010 Central National Bank Bldg.

Des Moines, Ia. 50309

Harry W. Dahl

5600 Grand Ave.

Des Moines, Ia. 50312

App. 14

APPENDIX C

IN TILE DISTRICT COURT OF THE STATE OF IOWA

IN AND FOR POLK COUNTY

EQUITY NO. CE 3-1534

PATRICIA AUXIER, ,

Plaintiff,

VS.

WOODWARD STATE HOSPITAL and

STATE OF IOWA,

: Defendants.

DECREE

NOW ON THIS 29th day of October, 1976, the ahove-

captioned matter having been heard by the Court, >riefs

and arguments submitted by counsel, the Court finds that

the weight of the evidence before the Deputy Industrial

Commissioner upon review-reopening established as a

matter of law that the Claimant is entitled to a hearing

prior to a termination of weekly benefits and is entitled

to weekly compensation paid from the time the Industrial

Commissioner stopped it on August 1, 1973 to the date

of the review-reopening decision on November 20, 1974;

and that althouch there is no evidence of any permanent

disability as of this date in this record, based upon the

undisputed evidence in the record that the Claimant has

temporary total disability, as a matter of law she is en-

titled to a “running award” for a maximum of 300 weeks

or until such time at another hearing it is established that

her temporary disability has terminated or that she has

permanent disability; and that the undisputed evidence

shows that various medical, hospital, and other expenses

were for treatment of plaintiff’s injury and she is then

entitled to payment of the following:

App. 15

Dr. Ronald Bunten

Iowa Methodist Hospital

(1-7-74 to 1-15-74)

Iowa Methodist Hospital

(1-20-74 to 1-31-74)

lowa Methodist Hospital

(2-25-74 to 3-11-74)

Associated Anesthesiologists (1-21-74)

Dr. Dajani (7-26-73)

Osco Drug

Dr. McClain (7-18-72)

lowa Methodist Hospital

(11-20-71 and 2-21-72)

Boone Hospital (5-5 to 19-72)

Boone Hospital (5-29 to 6-6-72)

Mayo Clinie (5-19 to 24-72)

St. Mary Hospital (5-19 to 24-72)

Des Moines General Hospital

(7-18 to 29-72)

Dr. MeNerney (7-27 to 30-72)

College Clinie (7-17 to 30-72)

Dr. Loerke (8-1-72)

lowa Methodist Hospital (7-28-73)

Dr. Gustafson (7-17 to 11-19-73)

lowa Sickroom Supply (8-7 to 10-7-73)

Dallas County Hospital

Dallas County Hospital

Dallas County Ambulance (7-17-73)

Pathology Lab (8-2-73)

Dr. Preston

$780.00

477.90

937.45

1013.10

$122.50

50.00

6.52

25.00

681.00

(—670.50

1238.02

(—549.70

480.50

(—415.00

563.10

(—173.60

295.00

(—100.00

1525.40

80.00

200.00

56.00

710.05

223.07

25.13

44.15

9.50

42.00

17.00

20.00

paid)

paid)

paid)

paid)

paid)

IT IS THEREFORE HEREBY ORDERED AND

DECREED that the Review-Reopening Decision of the

Deputy Industrial Commissioner herein be and is hereby

App. 16

modified. The defendants are hereby ordered to pay com-

pensation to Claimant from August 1, 1973 to the date of

the Review-Reopening Decision on November 20, 1974, to

pay the above-listed medical and hospital bills, and to pay

weekly compensation to Claimant for a maximum of 300

weeks or until such time as the State of Iowa at a hearing

establishes that her temporary disability has terminated

or that she has permanent disability.

/s/ Leo Oxberger

Judge, Fifth Judicial District

State of lowa

App. 17

APPENDIX D

Motion and Ruling at time of Hearing before the

Towa Industrial Commissioner (Transcript page 7, line 16

to page 10, line 13),

Mr. Dahl: I think the only other thing that the

claimant has at this time is to make a motion. It is the

claimant’s position that the State of Towa deprived her

of workmen’s compensation benefits without due process

of law by stopping them as of August 1, 1973, without an

opportunity for a hearing and without the agreement of

the claimant, in line with the decision in Davis v. Cald-

well. It’s also the claimant’s position that as an employee

of the Government of the State of Towa, she was denied

equal protection of the law as accorded to other em-

ployees in private employment covered by the Iowa Work-

men’s Compensation Law. And she would ask at this

time that the Deputy Commissioner direct that payments

be bronght up to date and continued until such time as

it is determined that the claimant is no longer entitled

to benefits on a showing by the State, rather than a show-

ing by the claimant that she is still disabled.

Mr. McGrane; The State will resist that on both

grounds, and it is not a denial of due process. There has

been no determination yet thut a hearing is necessary in

order to stop payments. Also, as far as equal protec-

tion, | am not sure of his grounds, but T believe he is

referring to the judicial capacity and the investigative

capacity of both within the same agency, and I think

that they are sufficiently separated within that agency,

that there is no conflict and there is a full, clear, just de-

termination made by the agency involved, and there is no

App. 18

denial of equal protection. So I think there should not

be a resumption of payments until such determination

is made, Tf there were a hearing—If at this time pay-

ments were made and at a later time it was determined

payments were not justified, then it would impose quite

a burden, I would think, for a person, if not of consider-

able means, even to try and come up with the money to

refund it, which would be necessary if there was a de-

termination it wasn’t allowable. The State will there-

fore resist.

Mr. Dahl: IT am trying to help out the Commis-

sioner himself by perhaps obtaining a ruling that will

permit him to separate these functions as he had ree-

ommended in the 30th biennial report to the Governor,

This was filed last year, and at that time he said, “Al-

though this office agrees with all of the recommendations

(of the Governor’s Committee), we urge that the next

priority be given to one which does not require legisla-

tive action. This is the assigning of the responsibility

’ elaims

for determining the validity of State employees

to the General Services Department and adding a claims

adjuster to the department for this purpose. Although

no personnel division as such exists in the General Serv-

ices Departinent, the responsibility should definitely be

removed from the Industrial Commissioner. At present,

a State employee who is injured on the job must look to

this department for the initial determination of the com-

pensability of his claim. If his claim is denied, he must

then petition this same department for a hearing on his

claim. Although care is exercised in avoidine a conflict

of interest in aeting as both employer and arbitrator, it

does not seem just that an employee must go to the same

App. 19

agency that turned him down in the first instance to main-

tain his action to show that they were in error.”

Commissioner, I think that by ordering the payments

be continued pending the outcome of this case, that it

will remove any possible intimation that things are not

completely fair.

Mr. McGrane: In further resistance, IT think that

might in fact be outside of the power of the hearing ex-

aminer in this ease when a person who is responsible for

determining whether to continue those payments has

denied them, and that sole responsibility of this hearing

examiner is to determine the grounds for payment or non-

payment. And to order back pay, or whatever, without a

hearing, I think is beyond the power of this Commissioner.

The Deputy Industrial Commissioner: Mr. Dahl, your

motion will be overruled, and the relief that you are re-

questing is denied,