BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : LAWRENCE R. SMALLEY, : : Claimant, : : vs. : : File No. 492251 DOMAIN INDUSTRIES/DOBOY FEED : DIVISION, : A P P E A L : Employer, : D E C I S I O N : and : : NEW HAMPSHIRE INSURANCE GROUP,: : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Claimant appeals from a review-reopening decision denying claimant additional industrial disability benefits. The record on appeal consists of the transcript of the review-reopening hearing and joint exhibits 1 through 18. Parties stipulated that the entire record of the first review-reopening proceeding shall be considered in the record. Both parties filed briefs on appeal. ISSUE The sole issue is whether claimant has proved entitlement to additional industrial disability benefits. REVIEW OF THE EVIDENCE The review-reopening decision filed June 22, 1989 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. APPLICABLE LAW The citations of law in the review-reopening decision are appropriate to the issues and evidence. Page 2 ANALYSIS The analysis of the evidence in conjunction with the law in the review-reopening decision is adopted. FINDINGS OF FACT 1. Claimant sustained a strain injury to his back when he experienced pain while lifting on March 29, 1978. 2. Claimant's prior award of 40 percent industrial disability was based on a weight restriction of 20 pounds and no prolonged bending stooping or twisting. 3. Claimant was born March 22, 1934. 4. Claimant received associate degrees in art and science from a community college subsequent to his work injury. Claimant also took some courses at Iowa State University but did not obtain a degree. 5. Claimant was hired by Preferred Risk on March 6, 1986 as a control data operator I and worked for more than one year without missing a day of work on account of his back. 6. Claimant's restrictions at the time of the second hearing were essentially the same as they were at the time of the first hearing. Claimant is restricted to working no more than eight hours a day; he is restricted to 20 pounds of lifting and no excessive bending, stooping or twisting of his lower back. 7. The prior appeal decision found that claimant had a permanent partial impairment of 20 percent of the body as a whole. 8. Both John H. Kelley, M.D., and Jerome G. Bashara, M.D., diagnosed claimant's condition as Grade II spondylolisthesis. 9. Dr. Kelley said that claimant's impairment from the injury of March 29, 1978 was eight percent, even though his overall impairment was 20 percent when his preexisting spondylolisthesis condition was considered. 10. Dr. Bashara increased his impairment rating from 20 percent to 25 percent after the hearing of January 28, 1982, but gave no specific justification for it in terms of claimant's ability or inability to do his job or to perform other work. 11. The AMA Guides to the Evaluation of Permanent Impairment, second edition, rates a Grade I or II spondylolisthesis at 20 percent impairment of the whole person. (Joint exhibit 3). 12. The medical evidence, especially the x-rays, shows that claimant's back complaints are due to congenital, developmental and degenerative conditions as distinguished Page 3 from the back strain that claimant encountered on March 29, 1978. 13. Claimant's earning capacity has not decreased because he now has associate degrees of art and science. Claimant is trained for and has experience, through his job with Preferred Risk, in semi-skilled work rather than unskilled work, and claimant is earning more money now than he was at the time of the injury on March 29, 1978. CONCLUSIONS OF LAW Claimant failed to prove that he sustained a change of physical or medical condition or a change of nonphysical or nonmedical condition that is worse than his condition at the time of his hearing on January 26, 1982. Claimant failed to prove entitlement to additional permanent partial disability benefits. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That claimant take nothing from this proceeding. That claimant pay the costs of this action including the costs of the transcription of the review-reopening hearing. Signed and filed this ____ day of September, 1990. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. Phil Vonderhaar Attorney at Law 840 Fifth Avenue Des Moines, Iowa 50309 Page 4 Mr. Roger L. Ferris Attorney at Law 1900 Hub Tower 699 Walnut Street Des Moines, Iowa 50309 5-2905, 5-1804 Filed September 24, 1990 CLAIR R. CRAMER before the iowa industrial commissioner ____________________________________________________________ : LAWRENCE R. SMALLEY, : : Claimant, : : vs. : : File No. 492251 DOMAIN INDUSTRIES/DOBOY FEED : DIVISION, : : A P P E A L Employer, : : D E C I S I O N and : : NEW HAMPSHIRE INSURANCE GROUP,: : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-2905, 5-1804 Claimant failed to prove that he sustained a change of physical or medical condition or a change of nonphysical or nonmedical condition that is worse than his condition at the time of his hearing on January 26, 1982. Claimant failed to prove entitlement to additional permanent partial disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LAWRENCE R. SMALLEY, Claimant, File No. 492251 vs. R E V I E W - DOMAIN INDUSTRIES/DOBOY FEED R E O P E N I N G DIVISION, D E C I S I O N Employer, F I L E D and JUN 05 1989 NEW HAMPSHIRE INSURANCE GROUP, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in review-reopening brought by Lawrence R. Smalley, claimant, against Domain Industries, Doboy Feed Division, employer, and New Hampshire Insurance Group, insurance carrier, for benefits as a result of an injury that occurred on March 29, 1978. A summary of the prior proceedings appears later. This hearing was held on January 11, 1988 at Des Moines, Iowa, and the case was fully submitted at the close of the hearing. Claimant was represented by Phillip Vonderhaar and defendants were represented by Roger L. Ferris. The record consists of the testimony of Lawrence R. Smalley, claimant, Roger Marquardt, vocational rehabilitation consultant, Robert G. Gill, computer operations manager, John E. Christensen, shift supervisor, and joint exhibits 1 through 18. Both attorneys submitted outstanding briefs. The deputy ordered a transcript of the hearing. STIPULATIONS The parties stipulated to the following matters: That an employer-employee relationship existed between claimant and employer at the time of the injury; That claimant sustained an injury on March 29, 1978 that arose out of and in the course of employment with employer; That causal connection and entitlement to temporary disability are not issues in this case at this time; 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 commencement date for additional permanent disability benefits, if such benefits are awarded, is August 14, 1983; That the rate of compensation in the event of an award is $136.74 per week; That claimant's entitlement to medical benefits has been paid by defendants; That defendants claim no credit for benefits paid under an employee nonoccupational group health plan or for workers' compensation benefits paid since the prior award was paid; That there are no bifurcated claims; That John H. Kelley, M.D., is a board-certified orthopaedic surgeon practicing in Des Moines, Iowa, and that he was the authorized physician beginning on September 20, 1984; That Jerome Bashara, M.D., is a board-certified orthopaedic surgeon practicing in Des Moines, Iowa, and that he examined claimant at claimant's request; and, That the evidence, transcript and prior decisions in this case are to be considered as a part of the record in this case. ISSUES The parties submitted the following issues for determination: Whether a change of condition occurred after the first hearing on January 26, 1982; Whether any change of condition found to have occurred is the cause of additional permanent disability; and, Whether claimant is entitled to permanent disability benefits. SUMMARY OF THE EVIDENCE Of all of the evidence that was introduced at both hearings, the following is a summary of the evidence most pertinent to this decision. Claimant was employed by defendant employer or its predecessors since 1962 or 1963. On March 29. 1978, claimant strained his back while unloading feed. R. A. Mandersheid, M.D., recorded that claimant "felt severe pain in the low back and numbness down the right leg." Claimant's final diagnosis on April 11, 1978 was "acute low back strain with left sciatic nerve irritation." Claimant then saw Robert Gitchell, M.D., an orthopaedic specialist on April 12, 1978 who diagnosed: "Acute lumbosacral strain resolving. Some mild nerve root irritation on the right but no severe evidence of disk rupture." Claimant also saw William R. Boulden, M.D., on July 11, 1978. Dr. Boulden said claimant should not do heavy lifting or stooping and that he should refrain from truck driving. Dr. Boulden's x-rays disclosed degenerative arthritis of the lumbar spine and degenerative spondylolisthesis at L5-S1. A neurologist, Frank M. Hudson, M.D., performed an EMG on September 7, 1978. He determined that claimant had a mild radiculopathy on the right. A myelogram was discussed but not performed. Dr. Hudson awarded a 15 percent permanent impairment. Jerome Bashara, M.D., examined claimant and assessed a 20 percent permanent partial physical impairment and recommended claimant be restricted to sedentary activity with no prolonged stooping, bending or twisting and no lifting more than 20 pounds. A hearing was held on January 26, 1982. A review-reopening decision was filed on May 24, 1982. Deputy Industrial Commissioner E. J. Kelly awarded claimant permanent total disability benefits. Factors taken into consideration at the time of that award were that claimant was 48 years old, a high school graduate and that his employment history was that of a truck driver. It was also noted that claimant was terminated by employer rather than reemployed. However, employer had reduced its workforce and eventually closed its local operation. Claimant was offered a job out of town, but declined it. The deputy remarked that employer did not assist claimant with vocational rehabilitation assistance. It was also noted that claimant had mechanical skills, but had chosen to enroll in accounting and bookkeeping courses at the area community college. Deputy Kelly commented that the possibility of being employed in the area of bookkeeping and accounting was not good for claimant because claimant's instructors had not been able to find an internship for him. He said claimant's age of 48 years was not conducive to finding employment. Also, claimant exhibited serious hearing loss impairment in both ears which required claimant to wear the most powerful hearing aid possible. Deputy Kelly also commented that claimant's physical propensities would in his opinion detract from his attractiveness in terms of job placement. He mentioned that claimant had a 15-20 percent impairment to the body as a whole, but that no surgery had been performed on claimant's back. Claimant was unable to return to truck driving work or manual labor. He said that claimant had not returned to gainful employment and that his chances for doing so were not good. Deputy Kelly determined that claimant was permanently and totally disabled, but that his award could be reduced if claimant actually was placed in employment in the future. On October 27, 1982, an appeal decision was filed by Deputy Industrial Commissioner Barry Moranville acting on behalf of Industrial Commissioner Robert C. Landess pursuant to Iowa Code section 86.3. Deputy Moranville reduced the award to an industrial disability of 40 percent of the body as a whole. Factors considered by Deputy Moranville were first of all, Dr. Bashara's permanent impairment rating of 20 percent of the body as a whole and Dr. Bashara's restrictions of no prolonged stooping, bending, or twisting and no lifting over 20 pounds. Deputy Moranville said that this injury represents a moderately severe permanent partial disability that goes beyond the minor but does not approach the intractable. He said that this was offset by claimant's very high mechanical aptitude, his accounting and bookkeeping studies, and his prospective associate of arts (A.A.) degree. He too found that claimant's age would be a detriment to finding work. Deputy Moranville said that Deputy Kelly's decision had great significance and was considered as part of the record in his decision. Deputy Moranville said that claimant was not permanently and totally disabled because he had good potential and should be encouraged to compete in the job market. He added that employer had no duty to provide vocational rehabilitation as a previous deputy suggested. He noted that claimant had been paid 151 weeks of benefits prior to hearing. He commented that claimant was motivated and industrious. Claimant did not work from the date of the injury on March 29, 1978 up to the time of the first hearing on January 26, 1982, except for one day when he tried to work and claimant determined that he could not do it. Claimant continued in school after the hearing financing his own education with $12,025 in student loans (exhibit 12) and by cash surrendering his $10,000 life insurance policy which yielded approximately $7,000 in cash surrender value (transcript, page 19). Claimant testified that he also received assistance from the State of Iowa Vocational Rehabilitation Service and the CETA program. Claimant testified that he received his associate of arts degree in April of 1983. He continued in the area community college and received his associate of science degree in the spring of 1984. He said that he also participated in a job search program sponsored by the vocational rehabilitation service for a couple of months (transcript, pages 20 and 21). They assisted him in preparing a resume (exhibit 11). Claimant then sought work from approximately June of 1984 to June of 1985. He made numerous attempts by making telephone calls, calling in person, filling out job applications and taking Iowa merit examinations (exhibit 11). A complete history of this effort appears in the analysis portion of this decision. Claimant was not able to find a job and he received numerous rejection letters (exhibit 11). Claimant testified that he was able to find only one temporary job for 60 days at Woodward State Hospital in approximately June of 1984. He required food stamps and heat assistance in order to continue to live (transcript, page 26). Claimant testified that he became broke and desperate He contacted the State of Iowa Vocational Rehabilitation Service again and enrolled in college at Iowa State University in order to get student loans again to have some money on which to live. Vocational rehabilitation paid his tuition and he lived off PELL grants and other student loans (transcript, pages 26-28). This time, claimant was working toward a bachelor of science in management information systems (transcript, page 30). Claimant had difficulty at Iowa State University due to (1) his poor hearing ability, (2) the crowded classes of 300-400 students, (3) his bad back, (4) the amount of walking required between classes on this large campus, and (5) difficulty understanding the foreign professors. Nevertheless, he received grades of "A," "B," and "C" in most of his courses until he quit in the fall of 1985 in order to take a job with Preferred Risk Insurance Company (transcript, pages 29-30). Claimant testified that, during the period of his job search from approximately mid-1984 to mid-1985, he felt a gradual decline in his back condition. He got the pain faster and it lasted longer (transcript, page 32). Claimant saw John H. Kelley, M.D., an orthopaedic surgeon on September 20, 1984. Dr. Kelley said that claimant had begun working about two weeks ago and he started having back and leg pain. The doctor said his pain is aggravated by work, but he is fairly comfortable if he sits (exhibit 2, page 6). Claimant's posture showed increased lumbar lordosis. X-rays disclosed a narrowing at L3-4 interspace with degenerative spurring throughout the lumbar spine. There was a grade I spondylolisthesis at L5-S1. His impression was degenerative disc disease associated with lumbar osteoarthritis and spondylolisthesis lumbosacral grade I. A CT scan confirmed the spondylolisthesis and identified degenerative arthrosis but there was no evidence of nerve root impingement. Dr. Kelley said claimant should continue to work. Also, that it will take him time to build up his back. If symptoms continue, he may have to consider a spinal fusion (exhibit 2, page 7). Claimant filed this original notice and petition on January 8, 1985. On November 1, 1985, Dr. Kelley said that claimant had a grade I spondylolisthesis and that he also injured his back at work in 1978. He said that claimant had a permanent partial impairment as a result of both situations. The portion attributable to the work injury was eight percent. He said claimant could do light work but no heavy lifting (exhibit 2, page 5). Claimant then saw Dr. Bashara on November 22, 1985. X-rays disclosed a grade I spondylolisthesis of L-5 on S-1, spina bifida occulta of L-5, a transitional L-5 vertebra. Dr. Bashara said he also had progression of his disc disease at L3-4, L4-5, L5 S-1 and some progression of his degenerative facet changes. Dr. Bashara examined Dr. Kelley's x-ray of September 20, 1984 and said it disclosed what appears to be an early form of spinal stenosis, secondary to facet hypertrophy, degenerative disc changes and complicated by his grade I spondylolisthesis of L-5 on S-1. Dr. Bashara concluded: DIAGNOSIS: 1. Grade I Spondylolisthesis, L-5 on S-1; and 2. Post-traumatic disc changes L-4-5, L-5 S-1 with early spinal stenosis; and 3. Degenerative arthritis of the lumbosacral spine. It is my feeling that the patient's back symptoms have progressed somewhat since his evaluation in 1981. I would give the patient a 25% permanent partial physical impairment of his body as a whole related to his back injury and subsequent difficulties. I have discussed with him today that if his symptoms continue to progress in the future, he may be a candidate for a lumbar myelogram decompression laminectomy and a fusion of his lumbar spine. (Exhibit 4, page 5) Defendants retained Roger Marquardt, a vocational rehabilitation consultant, on November 13, 1985 for the express purpose of finding claimant a job. Marquardt found claimant a job at Preferred Risk Insurance Company. A first contact was made in January of 1986. Claimant was interviewed two or three times. He was interviewed by the personnel department, the computer operations manager and the computer room supervisor. Claimant was hired on March 3, 1986 as a control data operator I at a salary of $12,075 per year plus employee benefits (transcript, page 91). Claimant worked at this job for one year without missing a single day from work on account of his back or for any other reason. Claimant testified that, nevertheless, he found the job difficult because he had to work fast, got fatigued, worked with his hands outstretched in front of him and his back kept getting worse. Claimant testified that he was taking 30 or 40 Ascriptins a day in order to control his pain. Claimant testified that he is also having problems with his shoulders and knees at this time (transcript, pages 39-43). In spite of his personal difficulties, claimant's attendance record was perfect from February 3, 1986 to February 3, 1987 when he missed a day due to a wisdom tooth. Claimant did not lose any time in either 1986 or 1987 due to his back (transcript, pages 81-84). The few days that he lost in early 1987 were not due to his back, but were due to his knee. Even though claimant did not complain at work about his back, he did see Dr. Kelley on August 18, 1986 for continued low back pain. Dr. Kelley noted that claimant's job required him to carry 10-20 pounds on occasion and he must lean over and reach to do his work. This time x-rays revealed a grade II spondylolisthesis at the lumbosacral level. The films showed considerable degenerative changes throughout the lumbar spine. Dr. Kelley said that the patient should be wearing a lumbosacral support and that he could continue to work wearing a support. The doctor said that he thought claimant would have as much pain working as he would performing his normal daily activities (exhibit 2, page 4). On October 10, 1986, Dr. Kelley said that claimant had a 20 percent permanent partial impairment of the body as a whole as a result of his back condition based on the AMA guides. This time, Dr. Kelley made no distinction between how much was caused by the work injury and how much was due to the spondylolisthesis and/or other degenerative factors (exhibit 2, page 4). Claimant testified that, between January and April of 1987, the job was getting him down (transcript, page 43). He admitted that he did not get the back support that Dr. Kelley prescribed. On April 23, 1987, claimant injured his left shoulder while working at Preferred Risk. This required claimant to have surgery and he has been off work ever since (transcript, pages 44 and 45). Prior to the shoulder injury, claimant saw Dr. Bashara on February 20, 1987. Dr. Bashara said that the spondylolisthesis had slipped from 10 millimeters to 14 millimeters between September 20, 1984 and August 18, 1986. This time, Dr. Bashara diagnosed a grade II spondylolisthesis, lumbar spine, L5-S1, symptomatic post-traumatic disc changes of L4-5 and L-5 S-1. In view of the progression of symptoms, Dr. Bashara recommended claimant not work more than eight hours a day, be restricted to 20 pounds of lifting and do no excessive bending, stooping and twisting of the lower back (exhibit 4, pages 2 and 3). He also said that claimant should wear his lumbosacral corset. Marquardt made a video of claimant's shift supervisor, John Christensen, performing claimant's job duties and sent it to Dr. Bashara to observe. Dr. Bashara replied to Marquardt as follows on June 5, 1987: Dear Mr. Marquardt: I have reviewed the 20 minute videotape recording of the job reenactment that was simulated for Mr. Smalley. There were two or three areas of concern and I would recommend that either the job be altered or Mr. Smalley find other employment. I would recommend that 1) he not work more than an 8 hour day; and 2) that he not lift more than 20 pounds at any one time; and 3) there appeared to be to [sic] much bending, stooping and twisting in the performance of his filing duties which I feel are not recommended; and 4) there was a large machine which he had to bend forward over and work on which is not recommended for a patient with the back condition that Mr. Smalley has. In summary, it would be my conclusion that based on Mr. Smalley's condition, he could not perform the duties that are required of the job that was demonstrated in the videotape which I reviewed. (Exhibit 4, page 1) On July 6, 1987, Dr. Kelley reviewed the video (exhibit 1) and said that based on his physical examination, claimant could do light work which did not require lifting over 20 pounds or prolonged bending or stooping. He inquired as to how much bending and stooping was required by the job (exhibit 2, page 3). Defendants' counsel wrote back to Dr. Kelley on November 10, 1987 stating that bending, stooping and lifting were infrequent and not repetitive. He reported that claimant works ten hours a day, four days a week. Lifting does not exceed 20 pounds. Typically it is seven or eight pounds. It is infrequent, not repetitive. Further, defendants' counsel stated that claimant could control how many of these activities he performed by the manner with which he chose to do the job (exhibit 12, page 2). Dr. Kelley wrote back on November 23, 1987 that claimant had a 20 percent permanent partial impairment to the body as a whole. He did not expect it to improve. He said that claimant should be able to perform the work which was described to him (exhibit 2, page 1). Claimant did not deny that there was latitude in the amount of bending, stooping, twisting and lifting depending upon how he chose to do the job. Claimant did protest, however, that the video was not representative of his job because it did not show the speed with which he had to do his work, it did not show the volume of the work he was required to perform and it did not show all of the jobs he was required to perform (transcript, pages 63-67). Claimant was examined by Theodore W. Rooney, D.O., a diplomate of the American Board of Internal Medicine and Rheumatology, on October 20, 1987 for "arthritis all over" which developed in the early 1970's. For the past nine years, claimant has suffered chronic joint pains in his knees, shoulders and his hands as well as his lower back. There were progressive deformities in his hands (exhibit 7). Claimant said that he received one pay raise after he had been with the company for six months. Gill and Christensen said the process had begun and claimant was slated to receive another increase when his shoulder injury occurred on April 23, 1987 and claimant left work at that time. Christensen said claimant would have received that pay raise. Claimant testified that he liked to buy old riding lawn mowers and motorcycles. He said he fixed them up and resold them, but he has not made any money doing it. Claimant said he owned four riding mowers and eight motorcycles. Claimant related that he rode a Honda 360 when he attended classes at Iowa State University. Claimant told that he rode a number of other motorcycles frequently, but these motorcycles have back rests on them so that he can lean back. He admitted that he owned a dirt bike also that he rides on a gravel road by the river (transcript, pages 79-81). Claimant acknowledged that he has a lot of aches and pains and other health problems such as generalized arthritis in his knee and shoulder. He also has either diabetes or high blood sugar. He quit eating ice cream and as a result he lost 60 pounds. His dress suit then was way too big for him. It was so large that it could not be altered to fit him. This oversized suit is the suit that he wore to interviews with prospective employers. Marquardt obtained a new suit for claimant that fit well and gave him special instructions on how to speak and act during his employment interview with Preferred Risk. Marquardt had assisted claimant with several other employment attempts, but none were successful until the Preferred Risk interview (transcript, pages 85 and 86). Claimant said that he can mow the grass with a riding mower, cook and do the laundry with an automatic washer and dryer. He does housework and grocery shopping. He said that he has done a little wood cutting with a chain saw. He admitted that he rides his motorcycles a lot. Claimant contended that the motorcycles were more comfortable than riding in a car (transcript, pages 97 and 107). Marquardt testified that, even though Marquardt's wife worked in the personnel department of Preferred Risk, the company nevertheless had an ad in the newspaper for a job in the computer department. Marquardt testified that he followed up on this newspaper advertisement. Marquardt contended that claimant went through a series of two or three interviews with two or three people alone and secured the job on his own merits. Marquardt also testified that claimant had a lot of latitude on how he did this job. He contended that claimant violated his own restrictions by not wearing the prescribed brace and by bending, stooping and lifting more than was required of him by the job. Robert G. Gill testified that he is the computer operations manager for Preferred Risk. He said that there were several other applicants for the job when claimant was hired. He interviewed one other prospective employee before he hired claimant. The personnel department recommended claimant to him. Claimant was interviewed twice. Gill testified that claimant missed no work for one full year from February 3, 1986 to February 3, 1987. On the latter date, claimant missed work due to a wisdom tooth. He verified that claimant received a raise after six months and that the second performance appraisal had already been started. He said claimant had wide latitude on how to do his job, but after his complaints and Dr. Bashara's restrictions of November, 1985, claimant was asked to sign a paper that he would obey them. Gill testified that typically claimant would lift approximately seven or eight pounds in his particular job. Gill testified that there are many opportunities for advancement in the computer operations and gave a number of examples of persons who had been advanced. John Christensen testified that he is the shift supervisor for the computer operations department at Preferred Risk. He interviewed claimant. He wanted to hire claimant because claimant wanted to work until retirement. Christensen complained that he frequently trained a number of people only to have them move on to another job. He said that claimant was qualified for this job. He verified that the video was representative of the work that claimant performed in his job. In addition, Christensen described in detail claimant's work activities. Christensen stated that the shift was ten hours, but that the employees worked less time due to lunch break, regular breaks, and time waiting for printouts. He also testified that frequently employees were done one or two hours before the shift ended. He said the typical lifting requirement was 7-10 pounds. He confirmed that claimant could regulate the amount of standing, bending, twisting and lifting by his own choice of methods in doing the job in several respects. He said that claimant would have gotten a raise from the evaluation which was in progress. Christensen stated that claimant's work was satisfactory, even though some improvements could have been made. APPLICABLE LAW AND ANALYSIS Iowa Code section 86.13(2) provides for a review-reopening when the condition of the employee warrants an end to, diminishment of, or increase of compensation subsequent to a prior award or settlement. The operative phrase in review-reopening is change of condition. Lawyer and Higgs, Iowa Workers' Compensation -- Law & Practice, section 20.2. The proponent must sustain the burden of proof by a preponderance of the evidence of a change of condition as a result of the original injury. Stice v. Consolidated Independent Coal Co., 228 Iowa 1031, 291 N.W. 452 (1940); Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959).' The employee must prove by a preponderance of the evidence that the increase in incapacity on which he bases his claim is the result of the original injury. Wagner v. Otis Radio & Elec. Co., 254 Iowa 990, 993-994, 119 N.W.2d 751, 753 (1963); Henderson, 250 Iowa 787, 793-794, 96 N.W.2d 321, 324 (1959). If there is substantial evidence of a worsening of condition not contemplated at the first award, then a review-reopening award is justified. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). Also, an additional allowance has been made when factors were unknown and could not have been discovered by the exercise of reasonable diligence at the time of the original award or settlement. Gosek v. Garmer & Stiles Co., 158 N.W.2d 731, 732 (Iowa 1968). Likewise, if a physical condition fails to improve to the extent anticipated, it can be the basis for an additional award in review-reopening. Meyers v. Holiday Inn, 272 N.W.2d 24 (Iowa Court of Appeals 1978). A change of condition may be something other than a physical or medical change of condition. A change in earning capacity, subsequent to the initial award caused by the original injury can also constitute a change of condition. 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). A redetermination of the condition of claimant as it was adjudicated by the prior award is inappropriate. Stice, 228 Iowa 1031, 1038, 291 N.W. 452, 456; Sheriff v. Intercity Express, Thirty-fourth Biennial Report of the Industrial Commissioner, 302 (Appeal Decision 1978) (District Court Affirmed). Claimant did not sustain the burden of proof by a preponderance of the evidence that he sustained a physical or medical change of condition caused by the injury of March 29, 1978 that occurred after the first hearing on January 26, 1982. The injury of March 29, 1978 was not a traumatic, hard-impact type of accidental injury. Instead, claimant simply experienced pain in his back and down his leg while lifting. X-rays disclosed a degenerative spine and spondylolisthesis. Claimant was diagnosed as having a strain. It was determined that claimant had sustained a 15-20 percent impairment, could no longer be employed as a truck driver, and should perform light or sedentary work. After the episode which caused claimant to see Dr. Kelley on September 20, 1984, claimant was again diagnosed as having a degenerative spine and spondylolisthesis. Dr. Kelley said that claimant had a 20 percent impairment, but only 8 percent was attributable to the injury of March 29, 1978. Dr. Kelley did not say that this 8 percent was caused after the hearing on January 26, 1982. It would appear that he meant it occurred on March 29, 1978 because that is the only date to which Dr. Kelley referred. Dr. Bashara increased claimant's impairment rating to 25 percent, but gave no specific reason for it. No corresponding change in physical ability or inability was described by either claimant or Dr. Bashara. As defendants' counsel pointed out, claimant's physical complaints were vague and ill-defined, both in his deposition and at the hearing (exhibit 17, pages 42-44; transcript, pages,32-34). The terms used by claimant "gradual decline," "worse," and "comes on faster and lasts longer" seem to fit the description of changes in the human body incident to the general processes of nature rather than a personal injury or a change of condition that would amount to a substantial worsening of claimant's condition. Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934); Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). Moreover, a difference in expert opinion, even by the same expert at a later date, regarding the degree or percentage of impairment is not a sufficient basis for a determination of a change of physical condition without some demonstrated change in claimant's ability or inability to perform his job or work in general. Bousfield, Id. The only other possible change in physical condition was that both Dr. Kelley and Dr. Bashara said that claimant's spondylolisthesis had increased from grade I to grade II while they were seeing him in 1986 and 1987. Neither doctor said that either the spondylolisthesis itself, or the increase from grade I to grade II were caused by the injury of March 29, 1978. In addition, defense counsel pointed out that a grade I and a grade II spondylolisthesis are both rated at 20 percent at table 53, page 57, Guides to the Evaluation of Permanent Impairment, Second Edition, published by the American Medical Association. It is also noted that Dr. Bashara did not say whether he used the AMA guides, the orthopaedic surgeon's guides, some other guides, or no guides at all. Dr. Kelley's impairment rating in this case appears to be the most informative and reliable rating. Rockwell Graphic Systems v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Dr. Bashara's x-rays on November 22, 1985 disclose (1) grade I spondylolisthesis of L5 on S1, (2) spina bifida occulta of L5, (3) a transitional vertebra, (4) Bertolotti syndrome on the right side, (5) progression in disc disease at L-3-4, L-4-5, and L-5 S-1, and (6) degenerative facet changes. Dr. Bashara examined Dr. Kelley's CT scan of September 20, 1984 and said that it showed an early form of spinal stenosis, secondary facet hypertrophy and degenerative disc changes complicated by his grade I spondylolisthesis. Thus, it appears that claimant's back condition is primarily congenital, developmental over his lifespan, and degenerative. Claimant's back problems fall into the category of changes in the human body incident to the general processes of nature that do not amount to a personal injury even though they may be contributed to by a life of hard work. Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). Dr. Bashara was hired to produce evidence that would give claimant a meritorious review-reopening claim, provided of course that such evidence does in fact exist. Dr. Bashara did not attribute any portion of claimant's condition at the time of his examinations on November 22, 1985 or February 20, 1987 to the injury of March 29, 1978. It is observed that claimant's back condition has not changed or progressed to the point where any of the doctors have either requested or recommended a myelogram or seriously suggested or recommended surgery. This status of his diagnosis and treatment is unchanged from the first hearing. Therefore, his condition has not demonstrated any change with respect to the diagnosis and treatment necessary to deal with it. Claimant has not been diagnosed as having a disc rupture or a nerve impingement at the time of the initial injury or at this time. Claimant's condition appears to be congenital, developmental and degenerative rather than caused by accident, incident or injury. It is understandable that claimant would have difficulty working with his back in this condition. Added to this, he is daily forced to endure chronic arthritic pain all over his body according to Dr. Rooney which was particularly bad in 1987 in his shoulder and his knee (exhibit 7). Claimant testified that he sometimes takes Ascriptins every two hours and as many as 30 or more in the course of a single day. It should be noted that, even though claimant saw Dr. Kelley on September 24, 1985 and Dr. Bashara on November 22, 1985 for his back, he nevertheless took the job at Preferred Risk on February 3, 1986, worked until April 23, 1987 and never lost a single day of work due to his back, even though he did lose a few days in early 1987 due to his knee. Claimant testified that he did not intend to return to work at Preferred Risk after his shoulder injury is well because he is unable to do the work (transcript, pages 39 and 82). However, Dr. Kelley pointed out that claimant's pain is going to be about the same whether he tries to work or just tries to perform daily activities outside of work. Defense counsel also raised a question in his brief which merits some consideration in this case: Not only has Claimant obtained and held a full-time position with Preferred Risk despite his back condition, but as Claimant testified at hearing, his back condition does not prevent him from riding his motorcycles, either in town or on gravel roads. (Tr. at 80, 81.) Claimant also works on the eight motorcycles he owns as a hobby. (Tr. at 79-80.) In addition, Claimant testified that this year he cut approximately one and one-half cords of wood with his chainsaw. (Tr. at 99.) One must wonder how a back condition that has deteriorated to the point that it prevents a person from performing the tasks required of a sedentary or light job can yet allow that same person to engage in physically demanding activities such as riding motorcycles and cutting wood. (Defendants' Brief, page 11) Claimant's restrictions are essentially the same now as they were at the time of the last hearing. Claimant's job duties do not require him to violate these restrictions. The job provides enough latitude to allow claimant to perform it within the restrictions. The employer requested claimant to sign a statement that he would not violate these restrictions in performing his job. Claimant's weight lifting restriction is 20 pounds. The average lift required by his job is seven or eight pounds. The video, Christensen's testimony, Gill's testimony, and claimant's testimony did not establish that excessive or prolonged stooping, bending or twisting are required by this job. Dr. Bashara said claimant is not supposed to work more than eight hours per day. Claimant does work ten clock hours per day, but works only a four-day week. When lunch break, regular breaks, down time while waiting for paper and the free time of one or two hours at the end of the shift are taken into consideration, claimant actually works only approximately eight hours per day, more or less. Both Dr. Kelley and Dr. Bashara recommended that claimant wear his back brace at work, but claimant is more comfortable without it and prefers not to wear it. From the foregoing evidence, it is concluded that claimant did not sustain the burden of proof by a preponderance of the evidence that he sustained a change in physical condition or medical condition after the hearing on January 26, 1982 which was caused by the injury of March 29, 1978. On the contrary, the much greater weight of the evidence is that claimant did not sustain a substantial worsening of his back condition after the first hearing. Furthermore, there is no evidence that any changes which have occurred in claimant's back were caused by the strain injury of March 29, 1978. , Has claimant sustained the burden of proof by a preponderance of the evidence that he sustained a nonphysical or nonmedical change of condition after the hearing on January 26, 1982 which was caused by the injury of March 29, 1978? Claimant contends that Deputy Moranville reduced the permanent total disability award of Deputy Kelly and based his 40 percent body as a whole award of industrial disability on factors which failed to materialize after the hearing. For instance, Deputy Moranville said claimant was highly motivated and industrious. Claimant was pursuing his own education at the time of the hearing and "was expected to finish an associate of arts degree in the summer of 1982." Deputy Moranville stated that claimant had "good potential" and "very good potential." Deputy Moranville commented that "[t]o be able to move the focus of his life away from his physical impairment is admirable and will stand him in good stead." (appeal decision, October 27, 1982, pages 3 and 4). Claimant's counsel very carefully summarized claimant's job search efforts in detail as follows: Six months before his graduation from the community college he began looking for work. (Exhibit 10, p. 3) He took State of Iowa merit employment tests and applied for jobs with the Iowa Department of Transportation, Iowa State University and the Animal Disease Lab connected with the university. (Id.) He was working with counselors at the Department of Public Instruction, the Rehabilitation, Education and Services branch. (Exhibit 10) By the time of his graduation in May of 1984, he had applied for several jobs but had had no luck. (Exhibit 10, p. 3) He met with a counselor at Iowa State University about the possibility of continuing his education but the counselor recommended that he not continue school. The counselor felt that additional college courses would not make him much more employable and during the time of schooling he would simply get older. (Id.) By July of 1984 his counselor noted that he was becoming somewhat depressed because he had not been able to find a job. (Exhibit 10, p. 4) He sought work at the Des Moines Area Community College and followed up on jobs listed in the Des Moines Register. He had also contacted the Department of Job Service in Boone but they had no leads for him. (Id.) His counselor finally decided that he should look for work through the Job Seeking Skills and Job Club in Des Moines. (Exhibit 10, pt 5) In December 1984 the decision was made to provide him with money for gas to commute daily to the Job Club. (Id.) The Job Club brought him no job. It was noted that he made a good effort through the club. (Exhibit 10, pp. 5-6) The feedback Mr. Smalley was receiving from those interviews he did have was that he might be better off with a computer science degree. (Id.) He spent six weeks in the Job Club with no success, the maximum amount of time allowed in the club. (Exhibit 10, p. 6, 10) The two year degrees from Area XI Community College were not being particularly helpful. (Exhibit 10, p. 7) Exhibit 11 demonstrates Mr. Smalley's job search efforts. He made about 50 written job applications during the year after his graduation from community college. (Exhibit 11, pp. 2-4) While he was in the Job Club he made about 115 other job inquiries. (Exhibit 11, pp. 85-98) He took numerous State of Iowa merit examinations, applied for part time work through Manpower and Kelly Services and even went so far as to consider stuffing envelopes. (Exhibit 11) About 25 of the employers bothered to send formal rejection letters. (Id.) None of these contacts or applications resulted in a job offer. By May 24, 1985, his counselors at the Iowa Department of Public Instruction decided that he could go to Iowa State University for further college education. It was decided that he needed more training to obtain an entry level employment position. (Exhibit 10, p. 12) They wrote, "You have tried every resource in your job search, to no avail." (Exhibit 10, P. 14) They authorized him to return to school and offered to pay his tuition and books because "we have found, after extensive placement assistance, that his two year degree from Area 11 is not as marketable as anticipated." (Exhibit 10, p. 8) (Claimant's Brief, pages 3-5) Claimant's counsel concluded as follows: In his 1982 appeal decision, Deputy Moranville had found a highly motivated individual pursuing an associate of arts degree that was to be completed in the summer of 1982; an individual with "very good potential" to compete in the job market. Within a few years of that evaluation we found Mr. Smalley to have even more education, further in debt, financially desperate and unable to find work despite heroic effort. (Exhibit 17, p. 36) He was ready to return to school, in major part, to have money through his student loans to met his daily necessities. Moranville's optimistic prediction of Mr. Smalley's employment future had proven to be terribly wrong. (Claimant's Brief, page 5) Claimant testified that his job search efforts were hampered by (1) his age, (2)his back injury that was the subject of a prior workers' compensation claim, (3) his poor hearing ability and the fact that he wears a hearing aid, and (4) his lack of prior experience in bookkeeping and accounting or business and computers. However, each of these factors was known and mentioned in both of the prior decisions. Deputy Kelly even flatly predicted that claimant would not be able to find work (1) because of his age, (2) because his professors could not find an internship for him, and (3) his "physical propensities" would detract from his attractiveness in terms of job placement (review-reopening decision, January 26, 1982, pages 7 and 8). Deputy Moranville stated that Deputy Kelly's decision has significance and is part of the entire record which he considered (appeal decision, October 27, 1982, page 2). Even assuming for purposes of argument only that Deputy Kelly's award of permanent total disability was too high and that Deputy Moranville's award of 40 percent industrial disability to the body as a whole was too low, it is not possible at this time to redetermine claimant's disability as it was determined by the prior award. Stice v. Consolidated Ind. Coal Co., 288 Iowa 1031, 291 N.W. 452 (1940); Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959). Likewise, the fact that employer did not rehire claimant and failed to provide vocational rehabilitation assistance has already been taken into consideration at both prior hearings. The operative phrase in industrial disability is "loss of earning capacity." Versteegh v. Rolscreen, IV Iowa Industrial Commissioner Report, 377 (1984). To determine industrial disability, many factors in addition to functional impairment are considered. Such factors include claimant's age, education, qualifications, experience and his inability because of the injury to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 11211 125 N.W.2d 251, 257 (1963). At the time of this decision, claimant is approximately 55 years of age. He has attained an associate of arts degree and an associate of science degree at the area community college and has accumulated some credit hours toward a degree in management information systems at Iowa State University. The fact that he is skilled at fixing small engines and has demonstrated mechanical ability are factors which were considered in the prior decisions. Claimant now has one year of experience as a data control operator. He still retains this job and can return to it if he chooses to do so. Claimant's earning capacity therefore is greater now than it was at the time of the earlier hearing. Claimant has elevated himself from the unskilled labor market to the semi-skilled labor market. Claimant started off at Preferred Risk with actual earnings of $12,075 per year. He received one wage increase after six months. A second wage increase was in progress when he injured his shoulder on April 23, 1987. His earnings at Doboy Feeds were only $10,400 per year (exhibit 5, page 5). Vocational rehabilitation consultants are frequently criticized. Claimant's counsel in this case stated that they paint a rosy picture and present decision makers with "pie in the sky." Frequently, vocational rehabilitation consultants testify in glowing terms of future but unproven employment possibilities and probabilities without any actual placement of claimant in a real world job. In this case, however, Marquardt performed! With Marquardt's assistance, claimant obtained a real world job which claimant has performed for over a year. In this case, Marquardt did not only prognosticate and predict, but was successful in helping claimant to be placed in actual employment, even though he too found claimant difficult to place having made some 20 attempts prior to Preferred Risk during a two- or three-month period of time. Claimant contended that favoritism was shown to claimant because Marquardt's wife worked in the personnel department at Preferred Risk. However, the evidence at hearing was that Marquardt learned of a job opening through his wife. Preferred Risk had an ad in the paper which Marquardt inquired about. Claimant did not interview with Marquardt's wife. Claimant interviewed with Roxanne, Gill and Christensen. Claimant was not hired outright. There were several other applicants and at least one other competitive interview for the job. Claimant was qualified for the job if not over-qualified. Claimant was interviewed at least twice. Christensen liked claimant and wanted to hire him because claimant wanted to work until retirement. Even assuming for purposes of argument only that claimant was shown favoritism, even though there is no direct evidence of it in the record, it has been demonstrated that claimant is employable as a control data operator and that he successfully performed this job without loss of time due to his back from February 3, 1986 to April 23, 1987 when he was forced to leave work due to a shoulder injury. Employer testified that claimant can return to the job when his shoulder is better. Why claimant and the State of Iowa Vocational Rehabilitation personnel could not find work for claimant and Marquardt could find work for him may be partially explained by the fact that claimant was job hunting in a suit that he wore before he lost 60 pounds. The suit fit so poorly that it could not even be tailored to fit him properly. Marquardt obtained a new suit for claimant. Marquardt also coached claimant on what to do and what to say. It is entirely possible that Marquardt is much more effective at placement than the other persons who worked with claimant. Marquardt did get claimant placed in a good job which he can perform and which he can return to if he wants to. This job uses claimant's education in business and computer training for which he trained at the area community college. Claimant testified that when it was time to go to work or go to school after the injury of March 29, 1978, he chose to go to school. When claimant chose to go to school, he received good grades and did well in school, particularly in view of his age, poor hearing, and the fact that he had been away from school most of his adult life. When claimant was contacted by Marquardt, he was attending Iowa State University, but he told Marquardt that he would rather work than attend school. When claimant chose to work, he obtained a job with Marquardt's assistance and successfully performed that job without loss of time due to his back for over a year until he injured his shoulder on April 23, 1987. Claimant was a credible witness. He is a sincere person and a highly motivated individual. That is proven by claimant's persistence and the expenditure of his own personal funds in order to obtain two degrees at the area community college. Claimant demonstrated that he is a hard-working person and a reliable employee. This is proven by one year of work at Preferred Risk without any absences for any reason for one full year and the accomplishment of learning a new line of work after age 50. It is understandable that claimant finds it difficult to work when he has arthritis all over his body and in particular in his knee and his shoulder. He lost a few days from work in early 1987 due to his knee. He was off work due to his shoulder at the time of this hearing. Claimant testified that some times it was necessary to take 30 or more Ascriptins a day and to take them as often as two hours apart. There was also evidence that claimant has either diabetes or high blood sugar. Under these circumstances, claimant's work which he performed at Preferred Risk is more commendable than other employees who have not had to work under these adverse and painful conditions. As a matter of evidence or proof, however, claimant did not sustain the burden of proof by a preponderance of the evidence that he has sustained a change of nonphysical or nonmedical condition after the hearing of January 26, 1982 which was caused by the back strain injury of March 29, 1978. The legal principle of the Gosek case does not apply here because claimant did not show facts that were unknown and could not be discovered by the exercise of reasonable diligence at the time of the first hearing. The legal principle of the Meyers v. Holiday Inn case does not apply here because it was not shown that claimant failed to improve as anticipated at the time of the earlier hearing. Both Gosek and Meyers are predicated on the legal principle of substantive omission due to a mistake. There is no evidence in this record of a substantive omission due to a mistake with respect to either claimant's physical/medical or nonphysical/nonmedical condition. If there has been a change in claimant's nonphysical/ nonmedical condition, then any change has been for the better. Claimant has two area community college degrees and some credit hours at a major university campus. Claimant is now employed in the field he studied at the area community college for more money than he was earning prior to this injury. Claimant performed his data control operator job in an exemplary manner even though he suffered many arthritis aches and pains in order to meet the requirements of the job without loss of time due to his back. He continued to do this job for over one year until he sustained an injury to his shoulder which has taken him off work. Claimant can return to this job if he chooses to do so and will probably receive another wage increase. FINDINGS OF FACT WHEREFORE, based upon the evidence presented, the following findings of facts are made: That claimant sustained a strain injury to his back when he experienced pain while lifting on March 29, 1978. That claimant's prior award of 40 percent industrial disability was based on a weight restriction of 20 pounds and no prolonged bending, stooping or twisting. That claimant's restrictions at the time of the second hearing were essentially the same as they were at the time of the first hearing and have not substantially increased. That the prior award was based on a 15-20 percent permanent impairment rating. That Dr. Kelley said that claimant's impairment from the injury of March 29, 1978 was 8 percent, even though his overall impairment was 20 percent when his preexisting spondylolisthesis condition was considered. That Dr. Bashara increased his impairment rating from 20 percent to 25 percent after the hearing of January 28, 1982, but gave no specific justification for it in terms of claimant's ability or inability to do his job or to perform other work. That the medical evidence, especially the x-rays, shows that claimant's back complaints are due to congenital, developmental and degenerative conditions as distinguished from the back strain that claimant encountered on March 29, 1978. That claimant's earning capacity.has not decreased, but rather increased, because he now has an associate of arts degree and an associate of science degree, he is trained for and has experience in semi-skilled work rather than unskilled work, and claimant is earning more money now than he was at the time of the injury on March 29, 1978. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the foregoing principles of law, the following conclusions of law are made: That claimant did not sustain the burden of proof by a preponderance of the evidence that he sustained a change of physical or medical condition or a change of nonphysical or nonmedical condition that is worse than his condition at the time of his hearing on January 26, 1982. That claimant did not sustain the burden of proof by a preponderance of the evidence that his present complaints are caused by the injury of March 29, 1978. That claimant is not entitled to additional permanent disability benefits. ORDER THEREFORE, IT IS ORDERED: That no further amounts are due to claimant from defendants as a result of the injury on March 29, 1978. That the costs of this action, including the cost of the transcript, are charged to claimant pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as required by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 5th day of June, 1989. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Phil Vonderhaar Attorney at Law 840 Fifth Avenue Des Moines, Iowa 50309 Mr. Roger L. Ferris Attorney at Law 1900 Hub Tower 699 Walnut Street Des Moines, Iowa 50309 51402.40, 51803, 52905, 52907 Filed June 5, 1989 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LAWRENCE R. SMALLEY, Claimant, File No. 492251 vs. R E V I E W DOMAIN INDUSTRIES/DOBOY FEED DIVISION, R E 0 P E N I N G Employer, D E C I S I 0 N and NEW HAMPSHIRE INSURANCE GROUP, Insurance Carrier, Defendants. 51402.40, 51803, 52905 Claimant failed to sustain the burden of proof by a preponderance of the evidence that he sustained either (1) a medical/physical or a (2) nonmedical/nonphysical change of condition after the first award caused by the original injury. Claimant was suffering from congenital, developmental and degenerative problems, rather than injury problems. 52907 Costs, including the cost of the transcript, assessed against claimant.