BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ROBERTA ROWE, Claimant, vs. File No. 422267 GLENWOOD STATE HOSPITAL SCHOOL, A P P E A L Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed April 20, 1990, the ruling filed on June 16, 1989, the ruling on the motion for recusal, and all evidentiary rulings are affirmed and adopted as the final agency actions in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Gene Eaton Attorney at Law 416 Clay St., Box 429 Sidney, Iowa 51652 Mr. Robert D. Wilson Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 9998 Filed November 5, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROBERTA ROWE, Claimant, vs. File No. 422267 GLENWOOD STATE HOSPITAL SCHOOL, A P P E A L Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed April 20, 1990. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERTA ROWE, Claimant, File No. 422267 VS. R E V I E W GLENWOOD STATE HOSPITAL SCHOOL, R E 0 P E N I N G Employer, D E C I S I 0 N and STATE OF IOWA, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in review-reopening brought by Glenwood State Hospital-School and State of Iowa against Roberta Rowe. The case was heard and fully submitted on October 4,. 1989 at Council Bluffs, Iowa. The record in the proceeding consists of testimony from Alfred Marchisio, John L. Blodig, M.D., Roberta Rowe and James H. Rowe. The record also contains joint exhibit A. claimant's exhibits 1 through 5 and defendants' exhibits 1, 3, 4 and 5. ISSUES The issues identified for determination are whether there has been a substantial change in circumstances which would permit reopening of the award previously made in this case and, if so, determination of the extent of permanent disability which currently afflicts Roberta Rowe. SUMMARY OF EVIDENCE All the evidence referred to in the Introduction, as well as the demeanor of those who testified at hearing, was considered when deciding this case. The lack of a reference to any particular part of the record does not indicate that it was overlooked. ROWE v. GLENWOOD STATE HOSPITAL SCHOOL Page 2 On November 28, 1978, a review-reopening decision was entered which awarded claimant permanent total disability compensation payable at the weekly rate of $72.33 per week commencing October 27, 1976 and continuing thereafter for so long as the claimant remained totally disabled. As indicated by that decision, the claimant had not worked since the date of the original injury. She was diagnosed has having an hysterical reaction, conversion type with chronic pain syndrome, obesity, cervical erosion and status post-laminectomy. Psychiatrist John L. Blodig, M.D., expressed the opinion that her current physical and mental condition would last for "many, many years" and that any future improvement was doubtful. Neurosurgeon Daniel L. McKinney, M.D., expressed the opinion that claimant was not "fit for gainful employment." The decision indicates that at the time of hearing, claimant attended using crutches. She testified that she used the crutches daily and had a problem lifting any weight over ten pounds. The decision indicates that claimant had problems getting about in her own home. The employer and its insurance carrier appealed that review-reopening decision and on May 29, 1979 former Commissioner Robert C. Landess issued an appeal decision which vacated the award of permanent total disability and in lieu thereof awarded a running award of healing period compensation. Judicial review was taken and on December 27, 1979, Judge Harold S. Martin reinstated the deputy commissioner's original award of permanent total disability. The original review-reopening decision and the appeal decision both ordered defendants to continue to provide claimant with medical and psychiatric care as was needed. In the judicial review decision, Judge Martin noted that claimant's case was not necessarily hopeless and that if claimant did not avail herself of reasonable services offered by the defendants or if services improved her condition to the point of being able to return to gainful employment, then the award could be reduced to permanent partial disability, rather than permanent total. On February 27, 1986, the employer,.and its insurance carrier filed a petition for review-reopening asserting that there had been a change or improvement in claimant's condition which affected the extent of her disability. While the case was pending, claimant received services from Alfred Marchisio, a qualified vocational rehabilitation counselor and consultant. Under his direction, claimant was ROWE v. GLENWOOD STATE HOSPITAL SCHOOL Page 3 evaluated, by Dr. McKinney and placed through a physical capacity evaluation at Jennie Edmondson Hospital. Claimant stated that the physical capacity evaluation exacerbated her condition tremendously and caused her to be bedridden due to pain. When Marchisio arranged what was communicated to claimant to be a four-week period at the University of Nebraska Pain Center, she declined to attend out of fear that the program would subject her to the same type of "torture" which had been imposed upon her through the physical capacity evaluation. The case proceeded to hearing before effective steps could be taken to arrange further evaluation of the claimant. There appears to have been a serious communication difficulty with regard to the issue of whether there was to be a four-week period of treatment and of what that treatment would consist or whether there was initially to have been an evaluation in order to determine whether Roberta would be a viable candidate for the pain center program. Dr. McKinney, when deposed, stated that the University of Nebraska Pain Clinic program is usually able to cause the participants to cease the use of narcotic pain relievers and become more active, although its success rate for actually returning the patient to work has not been particularly high (exhibit A, pages 14 and 15). Dr. McKinney felt that claimant was unemployable when he evaluated her in 1988 (exhibit A, pages 7, 8, 33 and 34). He doubted that she could be rehabilitated to return to gainful employment, although he was unable to express an opinion on the issue one way or the other within a reasonable degree of certainty (exhibit A, pages 20, and 27-29). Dr. McKinney indicated that the best program for claimant would be to gradually increase her activity tolerance through a structured exercise program and then possibly proceed with a work hardening program (exhibit A, page 7). Claimant was evaluated by David K. Kentsmith, M.D., a psychiatrist. He found nothing to indicate that she had a psychiatric problem or that she was malingering (exhibit A, deposition exhibit 2, page 5). Between his two evaluations which were conducted in,July, 1985 and June, 1987, he found that she had not improved, but rather had become more dependent. He felt that she would not.benefit from psychological treatment (exhibit A, deposition exhibit 3). Dr. Blodig testified at the hearing that claimant's condition had not changed appreciably between his 1987 and 1989 examinations. Dr. Blodig expressed the opinion that claimant could not be rehabilitated to light or sedentary ROWE v. GLENWOOD STATE HOSPITAL SCHOOL Page 4 work due primarily to the severity of her pain and the length of time it has afflicted her. He felt that she would not be able to complete the four-week pain management course which had been recommended. Dr. Blodig did not feel that claimant's activities in her own home or caring for her own children indicated any ability to be gainfully employed. Claimant's testimony and that of her husband indicated some improvement in her condition from the time of the prior hearing, but it also showed continued major restriction of her activities. The degree of change could be characterized as minor. APPLICABLE LAW AND ANALYSIS In a review-reopening proceeding initiated by the employer, the employer has the burden of establishing by a preponderance of the evidence that the claimant has experienced a change of condition which was not anticipated at the time of the original award. Fischer v. W. F. Priebe & Co., 178 Iowa 512, 160 N.W. 48 (1916). The change of condition is not limited to a physical change of condition. A change in earning capacity can also constitute a basis for reopening. 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). The change of condition which warrants reopening a prior award must be substantial, rather than something which is trivial. It must be something which was not expected to occur, rather than something which would have been contemplated at the time of the original award. Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978); Gosek v. Garmer & Stiles Co., 158 N.W.2d 731 (Iowa 1968); Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957); Stice v. Consol. Ind. Coal Co., 228 Iowa 1031, 291 N.W. 452 (1940). Review-reopening is a statutory exception to the normal rules of preclusion and res judicata. It requires a change of condition in order to reopen. It is not merely a chance to relitigate the same facts and circumstances. There is no evidence from any physician in the record of this case which indicates that claimant's physical or psychological condition has changed appreciably from that which existed at the time of the original hearing. Claimant has increased her activities about her home apparently, but there is no evidence in the record of this case which equates those increased activities into sufficient physical capacity to obtain and maintain regular employment in a competitive labor market. The evidence fails to show that ROWE v. GLENWOOD STATE HOSPITAL SCHOOL Page 5 the apparent improvement in claimant's condition as evidenced by her increased household activities was not anticipated or contemplated. It is common for individuals to heal somewhat with the passage of time regardless of their injury or condition. Since the apparent improvement is small and is not corroborated by any medical practitioner, it is determined not to be sufficient to warrant reconsideration of the permanent disability award which was previously made in this case. Claimant's refusal to attend the pain management center is certainly evidence which could detract from her credibility and motivation. Where an employee refuses treatment which is offered, the normal result is to consider the case as if the treatment had been provided and the result which the physicians had anticipated had occurred. Stufflebean v. City of Fort Dodge, 233 Iowa 438, 9 N.W.2d 281 (1943); Soppe v. Fruehauf, file number 848618 (Arb. Decn. 1989). In this case, the burden of proof is a preponderance of the evidence. The greater weight of the evidence introduced indicates that while it is possible that the pain management program might improve claimant's condition to where she could be gainfully employed, that possibility appears slim or remote. The greater weight of the evidence is that even with reasonably successful participation in the program, she would still be disabled from gainful employment. The employer and its insurance carrier have failed to prove by a preponderance of the evidence that there has been any change of condition, either physical or economic, which would warrant reopening of this case. FINDINGS OF FACT 1. The evidence introduced has failed to demonstrate that it is probable that there has been any substantial change in claimant's physical, psychological or economic condition since this case was originally heard and decided in 1978. 2. The evidence introduced fails to show it to be probable that claimant's participation in the pain management program would have been sufficiently successful to have restored her ability to obtain and maintain gainful employment. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. ROWE v. GLENWOOD STATE HOSPITAL SCHOOL Page 6 2. The Glenwood State Hospital-School and State of Iowa have failed to prove, by a preponderance of the evidence, that there has been any change of circumstances or condition which would warrant reopening or reconsideration of the original award of permanent total disability under the provisions of Iowa Code section 86.14(2). ORDER IT IS THEREFORE ORDERED that defendants Glenwood State Hospital-School and the State of Iowa continue to pay Roberta Rowe weekly compensation for permanent total disability under the terms of the original review-reopening decision and judicial review decision. IT IS FURTHER ORDERED that the costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED 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 20th day of April, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Gene Eaton Attorney at Law 416 Clay Street Box 429 Sidney, Iowa 51652 Mr. Robert D. Wilson Assistant Attorney General Tort claims Division Hoover State Office Building Des Moines, Iowa 50319 5-1302.1, 5-2905 Filed April 20, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERTA ROWE, Claimant, File No. 422267 VS. R E V I E W GLENWOOD STATE HOSPITAL SCHOOL, R E 0 P E N I N G Employer, D E C I S I 0 N and STATE OF IOWA, Insurance Carrier, Defendants. 5-1302.1, 5-2905 Employer and insurance carrier failed to prove, by a preponderance of the evidence, that there had been the requisite change of condition to warrant reconsideration of the award previously made. Page 1 before the iowa industrial commissioner ____________________________________________________________ : SUSANO MEJORADO, : : Claimant, : File No. 438551 : vs. : A P P E A L : CATERPILLAR TRACTOR COMPANY, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy is affirmed and is adopted as the final agency action in this case, with the following additional analysis: Claimant's industrial disability is not affected by the fact that he has previously pursued a workers' compensation claim through the administrative and judicial forums. The "litigiousness" of claimant that the deputy relied upon in part is not a proper factor of industrial disability. However, the remainder of the deputy's decision was based on appropriate factors of industrial disability, and the determination of claimant's industrial disability as 45 percent is affirmed. Defendant shall pay the costs of the appeal, including the preparation of the appeal transcript. Signed and filed this ____ day of February, 1991. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. Michael W. Liebbe Attorney at Law 116 East 6th St. P.O. Box 339 Davenport, Iowa 52805-0339 Mr. Larry L. Shepler Attorney at Law Suite 102 Executive Square 400 Main Street Davenport, Iowa 52801 Page 2 9999 WRM Filed February 26, 1991 Clair R. Cramer before the iowa industrial commissioner ____________________________________________________________ : SUSANO MEJORADO, : : Claimant, : File No. 438551 : vs. : A P P E A L : CATERPILLAR TRACTOR COMPANY, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 9999 Summary affirmance of deputy's decision filed April 30, 1990, with short additional analysis. BEFORE THE IOWA INDUSTRIAL COMMISSIONER SUSANO MEJORADO, Claimant, File No. 438551 VS. R E V I E W - R E 0 P E N I N G CATERPILLAR TRACTOR, D E C I S I 0 N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding in review-reopening from a prior adjudication of benefits brought by Susano Mejorado, claimant against Caterpillar Tractor Company, employer and self-insured defendant for benefits as the result of an injury that occurred on August 21, 1975. A first report of injury and a memorandum of agreement was filed on August 28, 1975 and claimant was paid for a 31 percent industrial disability pursuant to the memorandum of agreement. A review-reopening proceeding from the memorandum of agreement was held on August 12, 1983 and a decision filed by Deputy Industrial Commissioner Judith Ann Higgs on January 26, 1984 determined that claimant had sustained a 36 percent industrial disability and awarded claimant an additional 25 weeks of permanent partial disability benefits. Industrial Commissioner Robert C. Landess affirmed the decision of the deputy industrial commissioner on September 28, 1984. Official notice is taken of these two prior decisions [Iowa Administrative Procedure Act 17A.14(4)]. The appeals to the district court, court of appeals and supreme court of the state of Iowa are not germane to the issues presented at the present time in this proceeding. A review-reopening from the prior adjudication of benefits was filed on October 12, 1987. A hearing was held on October 26, 1989 at Davenport, Iowa, and the case was fully submitted at the close of the hearing. Claimant was represented by Michael W. Liebbe. Defendant was represented by Larry L. Shepler. The record consists of the testimony of Susano Mejorado, claimant; Mary Ann Mejorado, claimant's wife; Loren Snyder, benefits payment supervisor; claimant's exhibit 1 and defendant's exhibits A and B. The deputy ordered a transcript of the hearing. Claimant's attorney submitted an excellent post-hearing brief. Defendant's attorney did not file a brief. MEJORADO VS. CATERPILLAR TRACTOR Page 2 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 the injury. That claimant sustained an injury on August 21, 1975 which arose out of and in the course of employment with employer. That the injury was the cause of both temporary and permanent disability and that claimant was paid both temporary and permanent disability benefits pursuant to the prior award of benefits. That the type of permanent disability, if the injury is found to be a cause of additional permanent disability, is industrial disability to the body as a whole. That the rate of compensation is $160 per week in the event of an award. That claimant's entitlement to medical benefits is no longer in dispute. That defendant seeks no credit for either employee non-occupational group health plan benefits or workers' compensation.benefits paid to claimant prior to hearing or after the prior award of benefits. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained a nonphysical change of condition since the earlier hearing that would entitle claimant to additional permanent partial disability benefits and if so the extent of benefits to which claimant is entitled. If additional benefits are awarded, there is an additional issue of the proper date for the commencement of benefits. Claimant withdrew the issue of whether claimant is an oddlot employee as shown on the hearing assignment order during the course of the hearing (transcript page 34). MEJORADO VS. CATERPILLAR TRACTOR Page 3 SUMMARY OF THE EVIDENCE Claimant, born August 11, 1930, was 45 years old at the time of the injury. He was 53 years old at the time of the first review-opening decision on January 26, 1984. He was 59 years old at the time of this hearing on October 26., 1989. Claimant has an eighth grade education and has not obtained a G.E.D. Claimant started to work for employer in 1967. He terminated employment with employer on a special plant closing voluntary early retirement program when the plant closed on August 30, 1988. Claimant was 58 years old at that time. He worked for employer for approximately 21 1/2 years (tr. p. 28). Claimant could have chosen to have been put on a master recall list with the possibility of employment at one of employer's other nine plants in other cities, but chose instead the early retirement program (exhibit 1). Claimant's reasons for choosing the early retirement program were that he had lived in the quad cities community for 37 years, since 1951. He owned his own home. He owned a rental property next door to his home. His dependant children were in school in the community. His wife had a good paying job where she had been employed for 26 years (tr. pp. 29 & 46). Loren Snyder, benefits payment supervisor, testified that going on the recall list only assured claimant that he would be considered for employment at some other plant. It did not guarantee employment at another plant. He testified that employer would examine the seniority and physical ability of anyone considered for recall. Two hundred thirty-six persons on the recall list had been re-employed.. Snyder did not testify or know how many total persons were on the recall list. He did not know anything about the circumstances of employment for the 236 employees who had been recalled, whether they had received the same kind of employment, better employment or worse employment. Snyder testified that claimant's retirement plan included lifetime medical coverage for himself and his family as well as a life insurance policy which begins to reduce at age 65. Claimant sustained a severe injury on August 21, 1985, when a piece flew out a machine and struck him at the base of the anterior right side of his neck. He immediately felt his arm drop, put up his hand and found blood. W. F. Dippel, M.D., had to split the sternum to enable him to get control of the bleeding. A medium sternotomy, ligation of the thyrocervical trunk artery, repair of the upper trunk of the brachial plexus with a 5-0 silk suture and placed bilateral chest tubes was carried out at that time (exhibit A, p. 1). Gay R. Anderson, M.D., summarized claimant's condition on April 23, 1983, in the following words: MEJORADO VS. CATERPILLAR TRACTOR Page 4 IN SUMMARY: We have:a man who has sustained a significant injury to the right brachial plexus with an upper plexus injury with permanent deficits as evidenced by atrophy, weakness, sensory deficits which in turn lead to a reduction in co-ordination and sensory feedback and therefore loss of efficiency, both in terms of power and fine definitive movement. This produces both outright reductions in strength on the neuromuscular strength loss basis as well as deficits because of lack of normal sensory feedback. This is not readily visible on cursory inspection of this individual, but is quite evident on more detailed neurologic testing, as already mentioned. (exhibit B, p. 3) Dr. Anderson assessed a 25 percent permanent functional impairment in agreement with i.C. Sarnecki, M.D., at the Industrial Injury Clinic at Neenah, Wisconsin (ex. B, p. 3). Industrial Commissioner Robert C. Landess evaluated claimant's disability in the following words in his appeal decision filed September 28, 1984: Defendant's second issue on appeal contests the extent of industrial disability found by the deputy. claimant, who is right handed, has incurred a severe injury to the upper right brachial plexus which has resulted in neurological impairment to the area between the cervical spine and the fingers of the right hand. Claimant suffers from pain and loss of coordination and gripping strength. Three doctors have determined an impairment rating of between 25 and 30 percent. Although defendant has commendably sought to provide claimant with light duty work that is within his physical limitations, claimant's labor grade classification, and earnings, have been downgraded since the industrial injury. Claimant's only areas of specialized training beyond eighth grade were welding and basic machine operation, both of which would require the manual dexterity and coordination in which claimant is now deficient. At age 53 with minimal formal education, he is not a likely candidate for successful vocational retraining. There is little doubt that as a result of his functional limitations, claimant's ability to compete for better paying positions has been impeded and his earnings potential diminished. In view of the foregoing considerations, the deputy's finding of 36 percent industrial disability was reasonable and just. MEJORADO VS. CATERPILLAR TRACTOR Page 5 The record discloses, claimant acknowledges, and commissioner Landess pointed out that employer provided claimant with excellent medical care and was extremely accommodating by providing claimant with a modified job in two different tool cribs. Claimant was one of the last employees to be terminated when the plant closed. After the plant closed on August 30, 1988, claimant did not search for employment in the competitive labor market. Claimant did not believe that he could find a job in the competitive labor market with the limitations of his right arm other than possibly menial minimum wage jobs like a fast-food restaurant. Instead, claimant chose to become self-employed performing automobile body work and minor automotive mechanical repair work within his capabilities. Automobiles had been his avocation for several years and over time his garage had become fully equipped to perform this work. Self-employment enabled claimant not to work when he did not feel well and to rest when necessary due to his right arm pain. Claimant testified that he grossed approximately $500 per month from automotive repairs. Mary Ann Mejorado, claimant's wife, estimated that he netted approximately $250 per month after he paid for supplies and parts. Claimant receives early retirement pension benefits in the gross amount of approximately $900 and a net amount of $807 per month. Claimant testified that self-employment allows him to be selective. He only takes simple jobs which he is sure he can perform because even though he can grip.or grasp with his right hand he is not able to lift with it. Furthermore, the arm does not rotate properly at the shoulder. He is not able to hold a cup of coffee in his right hand (tr. pp. 31-33, 38, 45, 48 & 53-57). At the time of the injury, claimant was earning $6.42 per hour on August 21, 1975 (tr. pp. 75 & 76). In 1983 when he worked in the tool crib, he earned $12.46 per hour (tr. p. 74). He was earning about $14 per hour when the plant closed (tr. pp. 46 & 47). APPLICABLE LAW AND ANALYSIS The parties have agreed that claimant has not encountered a change in physical condition subsequent to the prior adjudication of benefits caused by the original injury. The sole issue for determination in this case is whether claimant has sustained additional permanent disability due to a nonphysical change in condition caused by the closing of the plant on August 30, 1988 (claimant's brief page 3). MEJORADO VS. CATERPILLAR TRACTOR Page 6 Since this is a review-reopening from a prior adjudication of benefits, then the burden of proof is upon claimant to show a change of condition by a preponderance of the evidence. Caterpillar Tractor Company v. Mejorado, 410 N.W.2d 675 (Iowa 1987); Stice v. Consolidated Indiana Coal Co., 228 Iowa 1031, 291 N.W. 452 (1940). The employee must show "additional consequences, facts and circumstances" proximately caused by the original injury that occurred subsequent to the award being reviewed. Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959); Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969). A nonphysical change in condition will permit an additional award where there is a change in earning capacity without a change in physical condition subsequent to the original award. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Lawyer and Higgs, Workers' Compensation--Law & Practice, section 20-6, page 160. Claimant has sustained the burden of proof by a preponderance of the evidence that he has sustained an economic change of condition caused by the original injury subsequent to the prior award. With respect to the master recall list, claimant was not obligated to sign up for possible recall to one of the other nine plants in other locations of the country. Claimant was not required to leave the community in which he had lived for 37 years, owned his own home, owned a rental property next door, had a garage equipped to do automobile body and automotive mechanical repair work, where his wife had a good paying job of 26 years duration, and where his children were in school. Claimant was 58 years old, had an eighth grade education and was severely disabled. His employment prospects under any conditions are significantly diminished. Furthermore, defendant did not demonstrate that if claimant had signed the master recall list that he would have been recalled or that if he had been recalled he would have been recalled for suitable employment. Since claimant was 58 years old at the time of the plant closing and had a severely impaired right arm he was not too likely to be recalled as long as employer could find younger employees with better health and no limitations on their recall list. Even though 236 persons had been recalled there was no evidence as to how many people were on the list, what work they were recalled to, where it was located, or whether it was suitable employment, better employment or worse employment. Whether claimant could have or would have obtained suitable recall employment is purely speculative based upon the evidence in this record. Commissioner Landess clearly took into consideration the fact that employer had accommodated claimant and found work that he could perform in the tool crib. Therefore, claimant had been sheltered by employer from the competitive labor market. In MEJORADO VS. CATERPILLAR TRACTOR Page 7 spite of severe limitations and disability, claimant was, nevertheless, earning $12.46 per hour working in the tool crib due to employer's extraordinary commendable effort of providing claimant employment in spite of his severe limitations. Commissioner Landess stated, "Although defendant has commendably sought to provide claimant with light duty work that is within his physical limitations, claimant's labor grade classification, and earnings, have been downgraded since the industrial injury." Consideration, therefore, must now be given to the fact that claimant's earning capacity has been further downgraded, diminished and decreased by the fact that he has been forced into the competitive labor market at his age of 58 years, with his eighth grade education, his 25 to 30 percent impairment, and his work limitations. It is determined that the plant closing is a nonphysical change of condition which caused additional loss of earnings capacity over and above the factors used by Deputy Higgs and Commissioner Landess at the time of the review-reopening decision of September 28, 1984. It is acknowledged that the plant closing may have caused an economic downturn that effected the entire quad cities community. Webb v. Lovejoy Construction Co., II Iowa Industrial Commissioner Report 430 (Appeal Decision 1981). Nevertheless, claimant's earning capacity was further reduced and diminished over and above that of the other members of the community for the reason that claimant sustained this injury which caused a 25 percent physical impairment of his right arm. He can no longer work with two hands and two arms as other job applicants are able to do because he has a defunct right arm. His employability is probably further diminished by the fact that he has sustained a work-related injury, litigated a workers, compensation claim through this agency, the district court, the court of appeals, and the supreme court of the state of Iowa and in addition has now brought this additional litigation for review-reopening from the prior adjudication of benefits. Obviously prospective employers in the competitive labor market would prefer to avoid litigious permanently impaired employees who require job accommodations or modifications in order to be hired in the first place when healthy, educated persons are waiting to become employed. It is determined that the plant closing forced claimant into the competitive labor market and this is a nonphysical change of condition that was not given consideration at the time of the prior award. Therefore, considering (1) claimant's age of 58 at the time of the plant closing; (2) his eighth grade education without a G.E.D.; (3) the fact that he was foreclosed from returning to the areas where he had education, training and personal experience; (4) that claimant is not a candidate for vocational rehabilitation training; (5) that claimant has sustained a 25 MEJORADO VS. CATERPILLAR TRACTOR Page 8 percent permanent physical and functional impairment to the body as a whole; (6) that claimant has been forced into the competitive labor market as a severely impaired and disabled employee; (7) that claimant has sustained a prior serious job related injury which was litigated extensively; (8) based on all of the evidence in the record; (9) based on all of the factors used to determined industrial disability. Olson v. Goodyear Service Stores, 225 Iowa 1112, 125 N.W.2d 251 (1963); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985)]; and (10) employing agency expertise [Iowa Administrative Procedure Act 17A.14(5)], it is determined that claimant has sustained an industrial disability of 45 percent to the body as a whole. The second issue in this case is the commencement date of these benefits. The additional 9 percent or 45 weeks of benefits are to commence with the date of this decision. Bousfield v. Sisters of Mercy, 249 Iowa 64, 72 86 N.W.2d 109 (1957); Teel v. McCord, 394 N.W.2d 405, 407, 408 (Iowa 1986). FINDINGS OF FACT Wherefore, based upon the evidence presented, the following findings of fact are made: That claimant was employed by employer for approximately 21 and 1/2 years from 1967 to August 30, 1988. That claimant sustained a serious injury on August 21, 1985 which caused a 25 percent physical and functional impairment of the right arm leaving claimant with only limited use of this arm. That claimant was awarded industrial disability of 36 percent to the body as a whole on September 28, 1984. That this decision of the industrial commissioner was based on the fact that employer had accommodated claimant by providing modified employment in the tool crib. That tool crib employment was a lower pay grade, but, nevertheless, provided claimant with substantial earnings in spite of his impaired and disabled condition. That at the time the plant closed, claimant was earning $14 per hour or more as a tool crib employee. That at the present time, claimant is self-employed within his perceived abilities to work as an automobile body repairman and mechanical repairman earning a net amount of approximately $250 per month. MEJORADO VS. CATERPILLAR TRACTOR Page 9 That claimant made no search for employment in the competitive labor market. That it was purely speculative whether claimant could have obtained employment by placing his name on the master recall list rather than taking special plant closing voluntary early retirement due to the plant closing. That at the time the plant closed, claimant was 58 years of age, had an eighth grade education without a G.E.D. and was foreclosed from all jobs that he had previously been trained for and could do by experience. That claimant has sustained a 45 percent industrial disability to the body as a whole. CONCLUSIONS OF LAW Wherefore, based on the evidence presented and the foregoing principles of law, the following conclusions of law are made: That the closing of employer's plant on August 30, 1988, was a nonphysical change of condition which further diminished claimant's earning capacity due to the original injury which occurred after the previous adjudication of benefits. That claimant has sustained an industrial disability of 45 percent to the body as a whole. That claimant is entitled to an additional 45 weeks of permanent partial disability benefits. That the commencement date for these additional benefits is the date which this decision is signed and filed. ORDER THEREFORE, IT IS ORDERED: That defendant pay to claimant forty-five (45) weeks of permanent partial disability benefits at the rate of one hundred sixty dollars ($160) per week in the total amount of seven thousand two hundred dollars ($7,200) commencing on the date of this decision. That any payments not made when due will draw interest pursuant to Iowa Code section 85.30. That the costs of this action, including the cost of the transcript, are charged to defendants pursuant to Division of Industrial Services Rule 343-4.33. MEJORADO VS. CATERPILLAR TRACTOR Page 10 That defendant make claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 30th day of April, 1990. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Michael Liebbe Attorney at Law 116 E. 6th St. PO Box 339 Davenport, Iowa 52805-0339 Mr. Larry Shepler Attorney at Law 400 Main St Davenport, Iowa 52801 1401; 1402.40; 1803; 2905; Filed April 30, 1990 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER SUSANO MEJORADO, Claimant File No. 438551 VS. R E V I E W - R E 0 P E N I N G CATERPILLAR TRACTOR, D E C I S I 0 N Employer, Self-Insured, Defendant. 1404; 1402.40; 1803; 2905 Earlier award of deputy and the industrial commissioner was based on the fact that employer had accommodated severely injured employee by providing modified employment in the tool crib and claimant was earning $14 per hour at this job when the plant closed. It was held that the plant closing was a nonphysical change of condition that additionally reduced claimant's earning capacity that was not taken into consideration at the time of the earlier award caused by the original injury, but which occurred after the first hearing. Claimant was age 58 at the time of the plant closing, had an eighth grade education without a GED, had a 25 percent to 30 percent physical and functional permanent impairment, had work limitations and had a right arm which did not functional properly. Previous award was 36 percent industrial disability. This award was 45 percent industrial disability. Claimant awarded an additional 45 weeks of industrial disability. The fact that claimant did not sign up for the master recall list in no way reduced claimant's increased industrial disability because it was not shown that signing up for a recall would have provided claimant with any employment, let on suitable employment or nearly equivalent employment.