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.