Mek Baccam v. ACH Food Companies, a/k/a Tones and Secura Insurance Company

IN THE COURT OF APPEALS OF IOWA

No. 18-1002
Filed March 6, 2019

MEK BACCAM,
Plaintiff-Appellant,

vs.

ACH FOOD COMPANIES, INC., a/k/a TONE'S, and SENTRY INSURANCE
COMPANY,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Paul R. Huscher,

Judge.

An injured worker appeals the district court’s judicial review decision in his

workers’ compensation case. AFFIRMED IN PART AND REVERSED IN PART.

Mark S. Soldat of Soldat & Parrish-Sams, PLC, West Des Moines, for

appellant.

Patrick V. Waldron and Michael S. Jones of Patterson Law Firm, L.L.P., Des

Moines, for appellees.

Heard by Doyle, P.J., and Mullins and McDonald, JJ.
2

MULLINS, Judge.

Mek Baccam appeals the district court’s ruling on his petition for judicial

review, which affirmed the workers’ compensation commissioner’s award of

benefits except on the issue of penalty benefits, which the district court remanded

to the commissioner. On appeal, Baccam contends the district court erred in:

(1) affirming the commissioner’s award of three percent permanent partial

disability (PPD), claiming the award was the result of multiple errors by the

commissioner; (2) failing to solely order the commissioner to determine penalty

benefits on remand; (3) affirming the denial of his request to tax all of the transcript

costs; and (4) taxing Baccam with three-quarters of the court costs.

I. Background Facts and Proceedings

Baccam sustained a work-related injury on June 12, 2012, when his leg

became caught between the forklift he was operating and a door frame. His

employer, ACH Food Companies, Inc., a/k/a Tone’s, provided bandages and ice

on-site and then transported Baccam to the emergency room. Baccam’s leg was

sutured and x-rayed. On the same day, Baccam was referred to an occupational-

medicine clinic where he was evaluated by Dr. Bingham. Following an

examination, Dr. Bingham released Baccam to return to work with the restriction

of sit-down duty only. Baccam did not report to work on June 13, as he voluntarily

took a vacation day. When he returned to work, his light-duty assignment resulted

in a change in the days he worked and the hours of his workday, and he was paid

a lower hourly wage than his normal assignment, with no opportunity for overtime.

Baccam returned to Dr. Bingham on June 15 with complaints of bruising,

redness, and warmth around the wound. The physician continued the existing
3

work restrictions. Baccam saw Dr. Bingham again on June 19 with complaints of

continued pain but acknowledged the pain had decreased. Dr. Bingham noted a

nearly full range of motion, some pain, and swelling. He modified Baccam’s work

restrictions to primarily sit-down duty with standing and walking as tolerated. Dr.

Bingham saw Baccam again on June 22 and noted mild swelling and a mild

limitation of motion. Baccam’s work restrictions were eased to include kneeling

and squatting as tolerated. Baccam’s work restrictions were fully lifted on June 29,

as Baccam indicated to Dr. Bingham he had little pain and some swelling but

believed he was capable of returning to work without restriction. At the hearing,

Baccam denied requesting the restriction release and testified that his symptoms

had remained, including tingling, burning, and numbness.

On June 25, Baccam filed a claim with Tone’s insurance company, Sentry,

about the injury, his symptoms, and change in work assignment. Baccam saw his

personal physician, Dr. Madson, on July 6 and reported soreness and swelling of

his leg. Dr. Madson noted no redness, sign of infection, or significant swelling. He

also noted Baccam walked with a normal gait. He assured Baccam the laceration

would continue to heal and any soreness or tenderness would resolve over time.

Baccam returned to Dr. Bingham on July 13, complaining of a pulling sensation in

his leg and an inability to exercise as he had before the injury. Dr. Bingham noted

some swelling and Baccam’s complaints of pain. He continued to recommend

Baccam work without restriction but referred him to physical therapy.

Baccam engaged in seven sessions of physical therapy from August 2 to

August 20. The physical therapist noted the leg pain was resolved, the strength of

the leg was five on a scale of five, and excellent range of motion. He discharged
4

Baccam to continue with exercises at home. Baccam returned to Dr. Bingham on

August 24, claiming he received no relief from physical therapy and still suffered

from swelling, tingling, and burning in his leg. Dr. Bingham noted some swelling

around the wound but a full range of motion and a normal gait. At Baccam’s

insistence, Dr. Bingham referred Baccam to an orthopedic surgeon, Dr. Kimelman.

On September 6, Dr. Kimelman evaluated Baccam for his reported

symptoms of tingling, numbness, and swelling. Baccam reported these symptoms

were mild but constant. Dr. Kimelman determined Baccam’s injury caused nerve

damage in the back of his leg but the damaged area would improve over time.

However, the nerves near the wound were lacerated and would likely not improve

so there was some permanency to Baccam’s injury, but it was “cosmetic and

superficial.”

Baccam returned to Dr. Kimelman on January 6, 2013 with complaints of

itching, burning, and numbness. Kimelman noted Baccam reported improvement

of the level of these symptoms. He recommended Baccam return in June, one

year after the injury, to determine if there was permanency to his issues. Baccam

returned in June and reported no change in his symptoms. Dr. Kimelman noted

Baccam walked with a normal gait, but measured loss in the girth of Baccam’s

injured leg as compared to the other. He also noted some decreased sensation

and local tenderness. Dr. Kimelman’s opinion after examination was that

Baccam’s condition was unlikely to change or worsen but resulted in some

permanence. On August 9, Dr. Kimelman opined Baccam sustained a one percent

impairment to his leg as determined by the American Medical Association Guides

to the Evaluation of Permanent Impairment, Fifth Edition. On August 15, Sentry
5

sent a letter to Baccam about Dr. Kimelman’s impairment rating, which warranted

2.2 weeks of PPD benefits and included a check for the period of June 27 through

July 11, 2013.

Baccam filed an arbitration petition with the workers’ compensation

commissioner in September. Baccam sought temporary partial disability (TPD)

benefits plus interest to compensate for the reduced hourly wage and the hours he

lost while on restricted duty. On March 25, 2014, Baccam completed an

independent medical exam with Dr. Taylor. Dr. Taylor reported Baccam could walk

without difficulty or a limp and he had full strength, no range-of-motion deficits, and

no noticeable visible differences between his legs, but Dr. Taylor noted Baccam

complained of pain upon palpation. He determined no further treatment was

needed and assigned a three percent impairment to Baccam’s leg. On October

14, Dr. Bingham opined that Dr. Kimelman’s assigned one percent impairment was

the maximum possible rating for Baccam.

Baccam’s arbitration petition proceeded to a hearing on November 17, held

before a deputy workers’ compensation commissioner. Baccam was the only

witness who testified. He testified that he continued to suffer from numbness,

burning, itching, and intermittent tingling in his leg. He also testified that he was

able to perform all his work duties but if he felt symptoms while working, he would

change position or massage his leg. Baccam also testified that outside of work,

he had less energy and was less active than he was before the accident.

Additionally, he testified that he believed his leg was superior than average before

the accident and, after the accident, his leg was below average.
6

The deputy commissioner issued a decision in October 2015. The deputy

concluded Baccam was entitled to TPD for the time the employer assigned him

light-duty work with a lower rate of pay. The deputy also determined Baccam

sustained a three percent impairment to his lower leg which entitled him to 6.6

weeks of PPD benefits plus interest to commence at the conclusion of his TPD

benefits. The deputy also found Baccam had established a delay or denial of his

TPD benefits and Sentry failed to provide evidence to establish a reasonable

cause or excuse for the delay. Based upon that finding, Baccam was entitled to

penalty benefits of forty percent of the TPD benefit award. The deputy also found

Baccam established a delay in the award of the PPD benefits since Sentry had not

paid the entire PPD award owed. However, the deputy also found Sentry provided

evidence of a reasonable cause for the delay through a reasonable investigation

by requesting the opinion from one of Baccam’s treating physicians and acting

promptly after receipt of the opinion. Based upon these findings, the deputy denied

an award of penalty benefits based upon the PPD award. The deputy further

denied Baccam’s request for taxation of the cost of the hearing transcript because

the deputy did not request submission of the transcript and Baccam requested the

transcript on his own accord. The deputy denied Baccam’s request for rehearing.

Baccam appealed the deputy’s decision to the workers’ compensation

commissioner. The appeal deputy, delegated by the commissioner, issued a

decision in September 2017, affirming the arbitration decision in part, but reversing

on the amount of TPD owed and the penalty benefits for the delayed payment of

PPD. The appeal deputy modified the temporary-benefits calculation to exclude

June 13, 2012, as Baccam chose to take a vacation day rather than report for work.
7

The appeal deputy also affirmed the three percent PPD award but awarded

additional penalty benefits plus interest based upon the lack of communication to

Baccam of the reason for delay in providing PPD benefit payments following the

end of Baccam’s entitlement to temporary benefits. The appeal deputy denied

Baccam’s application for rehearing.

In November 2017, Baccam sought judicial review of the appeal deputy’s

decision in the district court. Baccam claimed the appeal deputy erred in:

(1) misapplying the law by holding the medical opinions were superior to Baccam’s

subjective assessments provided in his testimony; (2) failing to specify the dollar

amount of the PPD award in the decision; (3) failing to impose a penalty in the

payment of PPD compensation; and (4) failing to tax the transcription cost.

Baccam also claimed the deputy commissioner violated Iowa Code section

17A.16(1) (2013) (requirements for contents of decisions).

In May 2018, the district court partially affirmed the appeal deputy’s

decision. The court determined the deputy commissioner did not misapply the law

or fail to consider all the evidence presented. In reading the deputy’s decision, the

court found the deputy did consider all evidence, including Baccam’s testimony,

and the deputy was entitled to determine the weight of his evidence in comparison

to the provided medical opinions. The court also found that “despite having clearly

labeled sections for her findings of fact and conclusions of law, the Deputy partially

blended her factual findings with her legal conclusions.” This finding resulted in a

failure to strictly abide by Iowa Code section 17A.16(1).1 However, the court

1
The statute provides: “A proposed or final decision shall include findings of fact and
conclusions of law, separately stated.” (Emphasis added.)
8

determined this was not reversible error because it was “possible to work backward

and to deduce what must have been [the agency’s] legal conclusions, and [its]

findings of fact.” See Ward v. Iowa Dep’t of Transp., 304 N.W.2d 236, 239 (Iowa

1981). The court also found that neither the deputy nor the appeal deputy erred in

failing to specifically enumerate the amount of PPD owed to Baccam. On the issue

of penalty benefits, the court found that Baccam met his burden to show a delay in

the payment of PPD, shifting the burden onto Sentry to provide a reasonable

excuse for the delay. However, there was no indication in the record that Sentry

requested evaluations or any medical opinions, which would be evidence of a

reasonable investigation. The court remanded the case back to the commissioner

with instructions for the commissioner to explain its finding that Sentry conducted

a reasonable investigation or to reevaluate for penalty benefits on Baccam’s award

of PPD. Finally, the court found no abuse of discretion for not taxing Sentry with

transcript costs. The court also denied Baccam’s motion to reconsider. Baccam

appeals.

II. Standard of Review

“The standards set forth in Iowa Code chapter 17A govern judicial review of

final decisions by the workers’ compensation commissioner.” Ramirez-Trujillo v.

Quality Egg, L.L.C., 878 N.W.2d 759, 768 (Iowa 2016); see also Iowa Code

§ 86.26 (2017). “The district court acts in an appellate capacity to correct errors of

law when reviewing the agency’s decision.” JBS Swift & Co. v. Hedberg, 873

N.W.2d 276, 279 (Iowa Ct. App. 2015). “[W]e review the district court decision to

decide if our legal conclusions mirror those reached by the district court.” Meyer

v. IBP, Inc., 710 N.W.2d 213, 225 (Iowa 2006). “If we reach the same conclusions,
9

we affirm; otherwise we may reverse.” Watson v. Iowa Dep’t of Transp., 829

N.W.2d 566, 568 (Iowa 2013). “Our review of a decision of the workers’

compensation commissioner varies depending on the type of error allegedly

committed by the commissioner.” Jacobson Transp. Co. v. Harris, 778 N.W.2d

192, 196 (Iowa 2010).

III. Analysis

A. Permanent Partial Disability

Baccam first argues the district court erred in affirming the commissioner’s

award of PPD. He contends the deputy’s decision awarding him 6.6 weeks of PPD

is not supported by substantial evidence, claiming the deputy failed to factor in his

permanent leg impairments of tingling, burning, itching, and the failure to return to

its pre-injury condition. Baccam contends these impairments must be considered

despite no rating methodology in the AMA Guide and argues that, though these

concerns are subjective and unratable, they can be quantified. He analogizes the

deputy’s task to that of juries who must award damages in personal-injury cases

for the subjective issues of pain and suffering, mental stress, anxiety, and loss of

consortium. Further, Baccam claims the deputy erroneously weighed the medical

opinions of the medical providers before the hearing, failing to give his testimony

about his impairments the appropriate consideration, despite the deputy’s own

finding that his testimony was credible. Baccam also claims the deputy

erroneously interpreted “loss” under Iowa Code section 85.34(2)(o) (2013) which

provides compensation for the loss of a leg. Baccam further argues the three

percent PPD compensation award was “the product of reasoning that is so illogical
10

as to render it wholly irrational, illogical, and/or [a] wholly unjustifiable application

of law to fact” and is “otherwise unreasonable, arbitrary, . . . [or] capricious.”

“We are bound by the agency’s factual determinations if supported by

‘substantial evidence in the record before the court when that record is viewed as

a whole.’” Hedberg, 873 N.W.2d at 280 (quoting Iowa Code § 17A.19(10)(f)).

“Substantial evidence is ‘the quantity and quality of evidence that would be

deemed sufficient by a neutral, detached, and reasonable person, to establish the

fact at issue when the consequences resulting from the establishment of that fact

are understood to be serious and of great importance.’” Mike Brooks, Inc. v.

House, 843 N.W.2d 885, 889 (Iowa 2014) (quoting Iowa Code § 17A.19(10)(f)(1)).

“‘Evidence is not insubstantial merely because different conclusions may be drawn

from the evidence.’ On appeal, our task ‘is not to determine whether the evidence

supports a different finding; rather, our task is to determine whether substantial

evidence . . . supports the findings actually made.’” Id. (ellipses in original) (quoting

Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 845 (Iowa 2011)).

Further, “[a]n agency’s action is ‘arbitrary’ or ‘capricious’ when it is taken without

regard to the law or facts of the case. . . . Agency action is ‘unreasonable’ when it

is ‘clearly against reason and evidence.’” Dico, Inc. v. Iowa Emp’t Appeal Bd., 576

N.W.2d 352, 355 (Iowa 1998) (ellipses in original) (quoting Soo Line R.R. v. Iowa

Dep’t of Transp., 521 N.W.2d 685, 688–89 (Iowa 1994)).

“[T]he commissioner, as fact finder, is responsible for determining the

weight to be given expert testimony. The commissioner is free to accept or reject

an expert’s opinion in whole or in part, particularly when relying on a conflicting

expert opinion.” Pease, 807 N.W.2d at 850. In this case, the deputy relied on the
11

opinion of Dr. Taylor to reach the three percent PPD award. The deputy

highlighted that Baccam’s own testimony supported Dr. Taylor’s opinion and that

Dr. Taylor’s opinion was the result of both a detailed examination of Baccam and

consideration of Baccam’s statements about his abilities and impairments. The

deputy found that, “Due to the specificity provided by Dr. Taylor in explaining the

rationale behind and justification for the [three] percent impairment rating, it is

determined the opinion of Dr. Taylor is entitled to the greater weight amongst the

medical providers.” The deputy recognized the flaws in the assessments from the

other doctors by identifying that Dr. Bingham did not examine Baccam at the time

of issuing his PPD rating and Dr. Kimelman did not give as detailed and specific

explanation as to how he arrived at his impairment rating. Baccam argues the

three percent impairment rating is insufficient. The deputy identified Baccam’s

argument “rest[ed] in large part upon his belief [that] his left leg was in superior

condition to the average individual’s at time of the work injury.” Ultimately, the

deputy determined Baccam provided no evidence to support his assertion of

superiority other than his testimony and would not assign a higher impairment level

without more convincing evidence.

Based on the record before us, we find the deputy gave due consideration

to Baccam’s testimony about his impairments and the deputy’s findings and

conclusions are supported by substantial evidence. Further, we find the deputy’s

application of the law to the facts was not irrational, illogical, or wholly unjustifiable.

B. Penalty Benefits

Baccam next claims the district court erred in remanding his case to the

commissioner with instructions to explain its finding that Sentry conducted a
12

reasonable investigation or reevaluate his award for PPD benefits. Baccam

contends the court should have remanded the case with the instruction to

reevaluate the award for penalty benefits only.

The deputy found Baccam was entitled to penalty benefits on his TPD

benefits because no benefits had been paid and there was no evidence to

establish a reasonable or probable cause or excuse for the delay in payment. The

deputy highlighted the lack of a contemporaneous conveyance to Baccam to

explain the delay or denial. As to penalty benefits on the PPD benefit award, the

deputy awarded Baccam 6.6 weeks of benefits but only 2.2 weeks of benefits had

been paid at the time of the decision. Thus the burden shifted to Sentry to prove

a reasonable or probable cause or excuse for the delay or denial. The deputy

found Dr. Kimelman issued his PPD rating on August 9, 2013 and Baccam was

issued a check accompanied with a letter explaining the payment, and so

determined Sentry had proven a reasonable investigation and the results which

formed the basis of the payment was provided to Baccam within six days. Based

upon these findings, the deputy denied penalty benefits on Baccam’s PPD award.

The appeal deputy largely affirmed the deputy, finding that Sentry was

engaged in a reasonable investigation between July 8, 2012, the time Baccam’s

entitlement to TPD ended, and when Dr. Kimelman gave his impairment rating on

August 9, 2013. However, no contemporaneous communication was sent to

Baccam to explain the delay. Therefore, the appeal deputy determined Baccam

was entitled to an additional penalty benefit of five percent plus interest.

The district court agreed with Baccam that neither the deputy nor appeal

deputy made a specific finding of fact to explain the finding that Sentry had
13

requested Dr. Kimelman’s opinion or if such a request was made, the delay was

attributable to Dr. Kimelman. Because of the lack of explanation for these findings,

the district court remanded the issue to the commissioner with instructions to

explain its finding that Sentry conducted a reasonable investigation and requested

Dr. Kimelman’s opinion or to reevaluate the award for penalty benefits on the PPD

award.

Iowa Code section 86.13(4)(a) authorizes the commissioner to award

additional benefits when there is “a denial, a delay in payment, or a termination of

benefits occurs without reasonable or probable cause or excuse known to the

employer or insurance carrier at the time of the denial, delay in payment, or

termination of benefits.” “[S]ection 86.13 is applicable when payment of

compensation is not timely made or when the full amount of compensation is not

paid.” Robbennolt v. Snap-On Tools Corp., 555 N.W.2d 229, 237 (Iowa 1996).

The workers’ compensation commissioner shall award
benefits under this subsection if the commissioner finds both of the
following facts:
(1) The employee has demonstrated a denial, delay in
payment, or termination of benefits.
(2) The employer has failed to prove a reasonable or probable
cause or excuse for the denial, delay in payment, or termination of
benefits.

Iowa Code § 86.13(4)(b). In order to be considered a reasonable or probable

cause or excuse, the excuse must satisfy the following criteria:

(1) The excuse was preceded by a reasonable investigation
and evaluation by the employer or insurance carrier into whether
benefits were owed to the employee.
(2) The results of the reasonable investigation and evaluation
were the actual basis upon which the employer or insurance carrier
contemporaneously relied to deny, delay payment of, or terminate
benefits.
14

(3) The employer or insurance carrier contemporaneously
conveyed the basis for the denial, delay in payment, or termination
of benefits to the employee at the time of the denial, delay, or
termination of benefits.

Id. § 86.13(4)(c). “[W]e review the commissioner’s statutory interpretation for

correction of errors at law.” Pettengill v. Am. Blue Ribbon Holdings, LLC, 875

N.W.2d 740, 745 (Iowa Ct. App. 2015), as amended (Feb. 16, 2016); see also Iowa

Code § 17A.19(10)(c).

During oral arguments, while arguing that no penalty benefits were

appropriate, Sentry conceded it no longer objected to the five percent ruling by the

appeal deputy. On our review, we agree with the appeal deputy’s interpretation

and application of section 86.13 in determining penalty benefits and conclude the

appeal deputy did not err in finding Baccam should be awarded penalty benefits of

five percent. We therefore reverse the district court’s decision on this issue.

C. Transcript and Court Costs

Lastly, Baccam contends the district court erred in failing to reverse the

deputy commissioner’s denial of his request to tax transcript costs to Sentry and

by taxing him with three-quarters of the court costs. He contends all other costs

he requested were taxed but the deputy failed to exercise her discretion and

consider his relative success on the merits by selectively taxing the transcript cost

to him.

“[D]etermining the appropriate taxation of costs is a matter specifically

delegated by the legislature to the discretion of the agency.” John Deere Dubuque

Works v. Caven, 804 N.W.2d 297, 300 (Iowa Ct. App. 2011). “Iowa Code section

86.40, along with its implementing rule, Iowa Administrative Code rule 876-4.33,
15

generally provides the framework for awarding all costs incurred in the hearing.”

Des Moines Area Reg’l Transit Auth. v. Young, 867 N.W.2d 839, 851 (Iowa 2015)

(Appel, J., dissenting). Those costs include “transcription costs when appropriate,”

Iowa Admin. Code r. 876-4.33(86), and “shall be taxed in the discretion of the

commissioner.” Iowa Code § 86.40. Further, “[t]he taxation of costs on judicial

review shall be in the discretion of the court.” Id. § 86.32 (2017). Therefore, we

“review the district court and [workers’] commissioner’s action in taxing costs for

an abuse of discretion.” Robbennolt, 555 N.W.2d at 238; see also Iowa Code §§

86.32, .40. “An abuse of discretion occurs when a court’s exercise of discretion is

clearly erroneous.” Solland v. Second Injury Fund of Iowa, 786 N.W.2d 248, 249

(Iowa 2010). “When reviewing the taxation of costs, we consider the success of

the applicant on the issues raised on appeal as shown by the record.” Robbennolt,

555 N.W.2d at 238.

After the November 17, 2014 hearing but before the deputy filed her

findings, Baccam, by a post-hearing brief, requested the taxation of the cost of the

hearing transcript. The deputy denied this request as “inappropriate, as the

[deputy] did not request the submission of the hearing transcript.” The deputy

further found Baccam “chose to request the transcript and submitted it . . . without

request; therefore [Baccam] shall bear the cost of the hearing transcript.” On

appeal, the appeal deputy failed to specifically address the issue of the transcript

cost in her decision or ruling on rehearing. The district court found no abuse of

discretion.

Iowa Administrative Code rule 876-4.30(86) provides, “When an appeal to

or review on motion of the commissioner is taken . . . a transcript of the proceedings
16

before the workers’ compensation commissioner shall be filed with the workers’

compensation commissioner” and “[t]he appealing party shall bear the initial cost

of transcription on appeal.” Accord Iowa Code § 86.24(4) (2013) (“A transcript of

a contested case proceeding shall be provided to the workers’ compensation

commissioner by an appealing party at the party’s cost.”). While Baccam was

required to provide the hearing transcript with the commissioner once he appealed

the initial arbitration decision, he was not required to provide one to the deputy

commissioner before she filed her initial arbitration decision. We therefore find the

deputy did not abuse her discretion in failing to tax the costs of the hearing

transcript in the initial decision.

On appeal, the appeal deputy repeated the same taxation of costs but did

not specifically address the issue of the transcript cost. When denying Baccam’s

rehearing application which requested the appeal deputy to specifically address

the transcript issue, the appeal deputy stated “[t]he matters asserted in the motion

were considered when the appeal was decided.” Based upon the record, we find

no abuse of discretion. Further, because Baccam “was only successful on a

fraction of [his] . . . issues at the district court level, we find the district court did not

abuse its discretion in its assessment of costs.” Weishaar v. Snap-On Tools Corp.,

506 N.W.2d 786, 791 (Iowa Ct. App. 1993). Costs on appeal are taxed to Baccam.

IV. Conclusion

We find substantial evidence supports the award of PPD benefits. We

agree with the appeal deputy’s interpretation and application of section 86.13 in

determining penalty benefits. We find no abuse of discretion in the allocation of

costs. Therefore, we affirm those parts of the district court judgment that affirm the
17

commissioner’s ruling on Baccam’s PPD benefits and taxation of transcript costs.

We reverse that part of the district court judgment remanding the case to the

workers’ compensation commissioner with directions. Costs on appeal are taxed

to Baccam.

AFFIRMED IN PART AND REVERSED IN PART.