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.