BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ TED M. McINTOSH, Claimant, FILE NO. 500982 VS. D E C I S I 0 N LAUHOFF GRAIN COMPANY, 0 N Employer, R E M A N D and AETNA LIFE AND CASUALTY CO., Insurance Carrier, Defendants. __________________________________________________________________ INTRODUCTION On December 11, 1986 the Iowa Industrial Commissioner remanded the above entitled action to the undersigned. In that order the Industrial Commissioner stated: The supreme court remanded the instant case to the industrial commissioner for a determination on the record already made, on the question of impairment of the body as a whole. THEREFORE, this case is remanded to the original deputy who heard it in compliance with the supreme court ruling. ISSUE The only issue presented is whether claimant's injury was limited to the scheduled member or extended to the body as a whole. FACTS PRESENTED Dr. Ronald K. Miller, who testified by way of deposition, indicated he is an orthopedic surgeon and first saw claimant on October 17, 1980. Dr. Miller stated: "He suffered a fracture of his hip, which apparently was what they call a subcapital fracture, or a fracture at the-base of the head and neck junction." X-rays showed multiple Knowles pins, a flattening of the superior dome of the femoral head and an increase of bone density. Dr. Miller opined that claimant had a partial avascular necrosis which caused the flattening of the head. Dr. Miller revealed that a total hip replacement was carried out on November 11, 1980. Dr. Miller stated: A Okay. Basically, what we're doing is, this is a replica of a bone and what we're doing is, we're making a cut just right down below the round part and we make a cut here (indicating). And then we take this head out. And then we take a prosthetic device with a long stem. We ream out the center of this bone, drop it down in there and then glue it in place, using a special type of bone cement. And then essentially we end up with a device, sitting in here like this (indicating). On the other side of the hip joint, what we do is we have to go in and if there is any cartilage remnants left in there, we have to scrape those out. And then once we get down to bone, we use a little round device like this (indicating) with cutters on it, which looks somewhat like a cabbage grater, and it's put on a piece of power equipment, put into the acetabulum. It rotates at a high rate of speed and just grinds out a perfect half-circle, and depending upon what size cup that you want to use, we can either use a smaller or a larger or we actually have a third size -- there's actually five sizes of these. We can pretty much size them to the patient. Once we have reamed this and prepared it, then we make some large and small holes in here, put some glue in here, put a cup in, hold it and then it is essentially cemented in, in about ten minutes the cement is hardened. Q What is the composition of the socket? A It's what they call a high-density polyethylene. It's a very, very durable, very tough material. It is not rigid but if you put these two things together and you push them, you can feel just a little bit of give. Probably not much but it kind of functions a little bit as a spacer and to a very slight degree as a shock absorber. Q What is the composition of the ball itself? A The one that we used on him is a chrome, cobalt, molybdenum, manganese, stainless steel alloy on the stem. And most of them, the head is the same composition. On the one that we used on him, we used a ceramic head. Q Doctor, when was this surgery performed? A 11-11-80. APPLICABLE LAW An injury to a scheduled member may, because of aftereffects, result in permanent impairment of the body as a whole and in turn form the basis for a rating of industrial disability. Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores Co., 222-Iowa 272, 268 N.W. 598 (1936). ANALYSIS The original injury in this case was a fracture of the femoral neck sustained as the result of a fall on June 21, 1978. As the result of aftereffects claimant required a total hip replacement. Surgery by itself does not necessarily result in any impairment but some types of surgery are more likely to result in impairment than others. McINTOSH V. LAUHOFF GRAIN COMPANY Page 3 In the decision of February 11, 1983, the undersigned stated: Claimant has met his burden in proving that his injury extends into the body, and he is entitled to have his injury rated industrially. Dr. Miller's testimony, which is uncontroverted, indicates that although claimant's acetabulum was not injured in his accident, in order to repair his injury and make a total hip replacement, the physicians removed a portion of claimant's acetabulum in order to insert an artificial socket. Since the pathology of the resulting surgery went beyond the scheduled member, claimant is entitled to industrial disability. Dr. Miller's deposition also reveals that the muscles of claimant's buttock were impaired by the surgical procedure. Clearly, claimant's resultant impairment went beyond his lower extremity. This is also supported by claimant's exhibits 6 and 8 which was submitted by claimant without objection at the January 24, 1983 hearing and defendants' exhibit A which was submitted by defendants at the January 24, 1983 hearing. The aforementioned evidence by itself is sufficient to show claimant's disability was not limited to claimant's lower extremity. The statements of claimant and claimant's wife at the second evidentiary hearing only reinforced that determination. Claimant's pain was in his hip and back, not in his leg. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: FINDING 1. On June 21, 1978 claimant had an injury which the fracture at the base of the head and neck his left femur. FINDING 2. Claimant's injury resulted in a left hip replacement. FINDING 3. In replacing the hip, part of the acetabulum was removed. FINDING 4. As a result of the surgery the muscles of claimant's buttock were impaired as well as his hip. FINDING 5. The physicians opined that claimant's impairment was to the body. FINDING 6. Claimant's complaints of pain were not to the lower extremity but were to the hip and back. FINDING 7. As a result of his injury, claimant has suffered permanent impairment which extends into the body. CONCLUSION A. Claimant is entitled to have his impairment rated McINTOSH V. LAUHOFF GRAIN COMPANY Page 4 industrially. ORDER THEREFORE, the prior decision of the undersigned remains unchanged in its result. Signed and filed this 17th day of June, 1987. DAVID E. LINQUIST DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas L. Root Attorney at Law P. 0. Box 1502 Council Bluffs, Iowa 51501-1502 Mr. Philip J. Willson Attorney at Law 370 Midlands Mall P.0. Box 249 Council Bluffs, Iowa 51502 1402.20; 1803.1 Filed June 17, 1987 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ TED M. McINTOSH, Claimant, FILE NO. 500982 VS. D E C I S I 0 N LAUHOFF GRAIN COMPANY, 0 N Employer, R E M A N D and AETNA LIFE AND CASUALTY CO., Insurance Carrier, Defendants. _________________________________________________________________ _ 1402.20; 1803.1 Where lower extremity was injured but claimant later had total hip replacement. Claimant met burden of proving resultant injury went into body as a whole. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JUDY A. FISHER, Claimant, File No. 504237 vs. QUAKER OATS COMPANY, A P P E A L Employer, D E C I S I 0 N and F I L E D IDEAL MUTUAL INSURANCE COMPANY, MAY 24 1988 Insurance Carrier, Defendants. IOWA INDUSTRIAL COMMISSIONER STATEMENT OF THE CASE Claimant appeals from a review-reopening decision denying further benefits. The record on appeal consists of the transcript of the review-reopening proceeding; joint exhibits 1, 2, 2A and 7; and claimant's exhibits 3 through 6. Both parties filed briefs on appeal. ISSUES Claimant states the following issues on appeal: 1. Whether the deputy erred in failing to find the 1978 injury was a proximate cause of temporary total disability in 1984, 1985, and resulting medical expenses and costs. 2. Whether the deputy erred in failing to find temporary total disability constitutes a "change of condition." REVIEW OF THE EVIDENCE The review-reopening decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW When a worker sustains an injury, later sustains another injury, and subsequently seeks to reopen an award predicated on the first injury, he or she must prove one of two things: (a) that the disability for which he or she seeks additional compensation was proximately caused by the first injury, or (b) that the second injury (and ensuing disability) was proximately caused by the first injury. DeShaw v. Energy Manufacturing Company, 192 N.W.2d 777, 780 (Iowa 1971). Upon review-reopening, claimant has the burden to show that she has suffered a change in her condition since the original award was made. Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 21 (1959). A mere difference of opinion of experts as to the percentage of disability arising from an original injury would not be sufficient to justify a different determination on a petition for review-reopening. Rather, such a finding must be based on a worsening or deterioration of the claimant's condition not contemplated at the time of the first award. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). A failure of a condition to improve to the extent originally anticipated may also constitute a change of condition. Meyers v, Holiday Inn of Cedar Falls, 279 N.W.2d 24 (Iowa 1978). ANALYSIS The analysis of the evidence in conjunction with the law is adopted. Claimant has failed to show a change of condition since the original award of benefits. In addition, claimant has failed to carry her burden to show a causal connection between her present disability and her injury of April 1978. FINDINGS OF FACT 1. Claimant sustained an injury to her low back which arose out of and in the course of her employment on April 10, 1978 which injury resulted in the award of 10 percent permanent partial disability. 2. Claimant experienced low back pain on January 29, 1984 performing a bending maneuver while cleaning in her home. 3. Claimant never experienced a specific episode of low back pain at work in the time on or about January 29, 1984 for which she seeks temporary total disability compensation. 4. Claimant experienced a second episode of low back pain at home when she bent to pick up an item off the floor in March 1986. 5. Dr. Lehmann does not report claimant's at home episode. 6. Dr. Lehmann's opinion as to the cause of claimant's current complaints was based on an incomplete history. 7. Claimant's condition is not significantly different from her condition as of July 1981. CONCLUSIONS OF LAW Claimant has not established a change of condition such that she is entitled to an additional award. Claimant has not established that her April 10, 1978 injury was a proximate cause of her claimed current disability or was a proximate cause of her at home incident on January 29, 1984 and any ensuing disability. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That claimant take nothing further from this proceeding. That claimant pay costs of this proceeding pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 24th day of May, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Robert R. Rush Attorney at Law P.O. Box 2457 526 Second Avenue SE Cedar Rapids, Iowa 52406 Mr. James E. Shipman Attorney at Law 1200 MNB Building Cedar Rapids, Iowa 52401 1108.50; 2905 Filed May 24, 1988 David E. Linquist BEFORE THE IOWA INDUSTRIAL COMMISSIONER JUDY A. FISHER, Claimant, File No. 504237 vs. QUAKER OATS COMPANY, A P P E A L Employer, D E C I S I 0 N and IDEAL MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1108.50 Claimant who experienced a pain in her back while bending over cleaning a bathtub at home failed to show a causal connection between her disability and her original injury. 2905 Claimant who failed to establish a causal connection between her present disability and her original injury did not establish a change of conditions on review-reopening. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ILENE SMITH, claimant, File No. 505950 VS. : GLENWOOD STATE HOSPITAL-SCHOOL, R E V I E W - Employer, : R E 0 P E N I N G : and D E C I S I O N STATE OF IOWA, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in review-reopening brought by Ilene Smith, claimant, against Glenwood State Hospital School, employer, and State of Iowa, insurance carrier, to recover additional benefits under the Iowa Workers' compensation Act as a result of injuries sustained on April 24, 1978 and July 8, 1979 which arose out of and in the course of her employment. This matter came on for hearing before the undersigned deputy industrial commissioner April 20, 1988. The record was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant. Defendants' objection to claimant's exhibit 1 and 2 are sustained. Claimant failed to serve the exhibits in accordance with the hearing assignment order and clearly do not constitute rebuttal evidence. ISSUES Pursuant to the prehearing report and order submitted and approved April 20, 1988, the following issues are presented for resolution: 1. Whether claimant has experienced a change of condition under Iowa Code section 86.1.4 which is causally connected to the injuries of April 24,,1978 and July 8, 1979; and 2. Whether defendants are entitled to a credit under Iowa Code section 85.38(2). FACTS PRESENTED Claimant entered into an agreement for settlement, approved SMITH V. GLENWOOD STATE HOSPITAL-SCHOOL Page 2 by the industrial commissioner's office on February 11, 1983, which stipulated and agreed that as a result of claimant's injuries of April 24, 1978 and July 8, 1979, claimant has sustained an industrial disability of 60 percent of the body as a whole. The most complete medical.report--attached to the settlement documents was authored March 11, 1982 by Thomas B. Summers, M.D., Neurologist, who summarized claimant's medical history as: Mrs. Smith indicated that she had initially undergone surgery on the lower spine in 1970. Surgical treatment was carried out in St. Joseph's Hospital in Omaha, Nebraska, by Dr. Gerald Reis. Mrs. Smith indicated that she was uncertain as to what had precipitated symptoms. She stated that she had slipped on some water at work or did something but she never did fill out an accident report at the time. In any event, she was hospitalized for one month prior to the time of surgical treatment. She stated that pain was present in the lower back and the left leg was practically paralyzed. She had no control over the left lower extremity. Mrs. Smith stated that she 'got along fine' following surgical treatment. Prior to the time of that first lumbar laminectomy, Mrs. Smith had been employed as a licensed practical nurse at the Cass County Memorial Hospital in Atlantic, Iowa. She stated that she had remained off work for approximately three months following surgical treatment. Subsequently, Mrs. Smith returned to work. She obtained employment at the Glenwood State School for the Mentally Retarded in Glenwood, Iowa. She stated that she continued working regularly. Mrs. Smith stated that in October, 1978, she suffered an accidental fall while walking on an uneven sidewalk. She started having pain in the lower back and down the left lower extremity. Mrs. Smith was hospitalized in the Lutheran Medical Center in Omaha, Nebraska. The second lumbar laminectomy was carried out in November, 1978. Mrs. Smith stated that prior to each of these first two surgical procedures, extensive diagnostic studies were carried out including myelography and so on. In addition, conservative treatment had been employed initially consisting of physical therapy treatment and so on. Mrs. Smith stated that she had returned to work at the Glenwood State Hospital and School in January, 1979. SMITH V. GLENWOOD STATE HOSPITAL-SCHOOL Page 3 .The history further revealed that on or about July 7 or July 8, 1979, Mrs. Smith had suffered injury to her lower back in the course of her work when she and another staff member lifted a-patient from a kitchen type chair to the floor. The patient was having an epileptic seizure at the time. Mrs. Smith stated that she 'noticed it' when she first moved the patient. Within thirty minutes, her back started to bother her. Mrs. Smith stated that subsequently bed rest was carried out in the home setting for one month. Her condition did not improve. Accordingly, she was admitted to Lutheran Medical Center in Omaha, Nebraska, on August 1, 1979, and remained in the hospital until August 20, 1979. Diagnostic studies were carried out. Treatment consisted of physical therapy, traction, and bed rest. Mrs. Smith stated that she continued to have pain in the lower back and extension of the pain down the left lower extremity. Accordingly, Dr. Reis made arrangements for her to be immobilized in a plaster of Paris body cast in September, 1979. The immobilization was continued for three weeks. Mrs. Smith stated that this treatment did serve to relieve the pressure-like discomfort. Dr. Reis concluded that fusion would 'help to hold things together'. Mrs. Smith stated that she had been admitted to the Lutheran Medical Center on November 6, 1979. Surgical treatment in the form of spinal fusion was carried out on the following day. Mrs. Smith was discharged from the hospital on November 15, 1979. Mrs. Smith stated that she continued to wear a back brace following this third operative procedure and up until December, 1981. Mrs. Smith went on to state that myelography had been carried out before each of the first two operative procedures but not prior to the time of the third and most recent surgical procedure. Mrs. Smith stated that Dr. Reis advised her not to continue with employment in the capacity of a licensed practical nurse. Accordingly, Mrs. Smith had enrolled in the Iowa Western Community college in Council Bluffs, Iowa, in August, 1980. She pursued a course of study for a medical assistant. Mrs. Smith stated that it was necessary for her to cease her school activities in February, 1981. She stated SMITH V. GLENWOOD STATE HOSPITAL-SCHOOL Page 4 that her back started to get worse and nothing would relieve the discomfort. Mrs. Smith stated that on November 30, 1981, she had been admitted to the University of Nebraska Pain Center in Omaha, Nebraska, and remained in that facility until December 23, 1981. At that time, Mrs. Smith learned relaxation techniques and special exercises. It was possible for her to discontinue all medication. Mrs. Smith stated that she had been using Darvocet N-100 and Ativan. Mrs. Smith stated that her back had continued to bother her but she had learned to control the symptoms without the use of medication. She stated that she did do some of the exercises each and every day. Mrs. Smith stated that if she would sit too long or stand too long in one position, pain would develop in the lower back. On such occasions the left lower extremity would bother her. She stated that the discomfort in the left lower extremity was a 'drawing pain' extending from the left hip down the back or posterior aspect of the limb. Mrs. Smith stated that during periods of fatigue, she would limp on the left side. Mrs. Smith reported the presence of numbness involving the top or dorsum of the left foot and the outer or lateral aspect of the left leg and thigh. Dr. Summers' opinion of claimant's physical impairment is found in a letter dated August 31, 1982, also attached to the application for settlement, which reads: It is my opinion that the functional impairment or physical disability rating in the case of Mrs. Smith is approximately 40% of the body taken as a whole. I have ascribed a 10% impairment for each of the three surgical procedures and an additional 10% impairment because of the fact that Mrs. Smith has continued to experience symptoms. Claimant testified that at the time she entered into the agreement for settlement and for approximately six to eight months before she was not experiencing any "significant" amounts of pain. Claimant stated that at about this time she was also going to EKG training in Bellevue, Nebraska, having failed to complete classes at Iowa Western in medical assistant. Claimant explained she was actively seeking employment at the time of the settlement agreement but that she has been completely SMITH V. GLENWOOD STATE HOSPITAL-SCHOOL Page 5 unsuccessful in securing any employment since then. Claimant identified a number of hospitals, medical facilities, insurance companies and other establishments where she submitted applications either on her own or through Vocational Rehabilitation. Claimant testified that her failure to secure employment discouraged her which resulted in more pain. Claimant applied for and began receiving social security benefits in October 1985 which currently amount to $387 per month. Claimant testified that after her first injury she began working through the Iowa Department of Job Service and Vocational Rehabilitation and that her last contact with these organizations was in October 1986 when she completed a home bound project learning to do loom weaving at Camp Sunnyside. Claimant stated she does not own her own loom but uses one on loan from the Easter Seal Society which must be returned to the society when she can no longer use it. Claimant testified that she must pay for all of the material she uses and that although she has her items on display at a gift shop in Glenwood, she has not sold any items since approximately August 1987 and she does not have any regular customers. Claimant admitted that she has not submitted any applications for employment since she qualified for social security benefits. Claimant testified that compared to February 11, 1983, she is "definitely" in more pain now, that whereas in 1983 she was not taking any medication for pain, she now takes Motrin and aspirin, and that while in 1983 she could do her regular household tasks and drive her car as she wished, she cannot now drive only occasionally, cannot now lift, vacuum, sit in a bathtub, grocery shop, carry, and that some days there is so much pain that she cannot do anything. Claimant stated she occasionally watches her grandchildren for short periods of time but cannot babysit regularly because she cannot lift. Claimant acknowledged she taught an adult education class in quilting at Glenwood School one night per week for an eight week period and that there is no further training or job opportunities available for her in and around the Glenwood area. Claimant explained that in July 1985, she underwent a reversal of an intestinal bypass procedure. Claimant stated she is also taking treatment for diabetes and that she has had no other injuries, accidents or illnesses since February 1983. On cross-examination, claimant acknowledged she was diagnosed as having osteoporosis in June 1985, that she had a "substantial" weight gain of approximately 110 pounds following the reversal of the intestinal bypass surgery in 1985, that she currently weighs approximately 215 pounds and has pain in her back, left hip and leg. Claimant stated she currently can walk approximately three miles total in a week whereas in October 1987, she could walk approximately one mile per day. SMITH V. GLENWOOD STATE HOSPITAL-SCHOOL Page 6 APPLICABLE LAW AND ANALYSIS Iowa Code section 6.14(2) provides In a proceeding to reopen an award for payments' or agreement for settlement as provided by section 86.13, inquiry shall be into whether or not the condition of the employee warrants an end to, diminishment of, or increase of.compensation so awarded or agreed upon. The required change of condition to satisfy the requirements of review-reopening need not rest solely upon a change of physical condition if economic hardships causally related to a compensable injury but not contemplated within the initial award or agreement are demonstrated. An increase in industrial disability may occur without a change in physical condition. A change in earning capacity subsequent to the original award which is proximately caused by the original injury also constitutes a change in condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Claimant has acknowledged that she is not basing her claim for additional workers' compensation benefits on any change, of medical condition but rather a change in her industrial disability. Claimant argues that she has suffered economic hardships since the agreement for settlement; that her failure to obtain employment was not anticipated in the settlement in view of the vocational rehabilitation she was undergoing at that time; and that although she sought employment and completed all rehabilitation programs possible, she still has been unable to-secure employment. The record would clearly establish that subsequent to the agreement for settlement entered into in February 1983, claimant has been unable to secure any employment. Claimant has shown that she sought employment at a variety of establishments to no avail (at least until she began receiving social security disability benefits in October 1985). The record is undisputed that claimant completed or attempted to complete a number of rehabilitation programs and still was unable to secure employment even with the new skills acquired through these programs. As the industrial commissioner stated in Rowe v. Department of Transportation, File No. 451058, Appeal Decision filed July 23, 1986: It may be inferred from the claimant's work experiences, his position at the time of injury, and the amount of the settlement agreement itself--65 percent of the claimant's body as a whole--that claimant would reasonably anticipate securing later SMITH V. GLENWOOD STATE HOSPITAL-SCHOOL Page 7 employment in some form despite his injury. In light of claimant's industrial disability of 60 percent' at the time of settlement, the same inference might be applicable to this case. However, the industrial'commissioner in Rowe, went on to find that there was no evidence in the record to indicate that the economic hardships from which claimant suffered in the form of a failure to acquire employment originated from any source other than his work-related injury. The same is not true in the case sub judice. Since the 1983 agreement for settlement claimant has been diagnosed as suffering from osteoporosis, claimant has undergone treatment for diabetes, and claimant underwent a reversal of an intestinal bypass procedure. Claimant has gained, by her admission, in excess of 100 pounds. One need not have graduated from a medical school to be aware of the ramifications of excess weight on the back and on a back injury. In addition, claimant has failed to present any medical evidence that her failure to secure employment is traceable to the 1978 and 1979 injuries. For the undersigned to conclude that claimant's earning capacity has changed, it must also be concluded that that change was proximately caused by the work injuries. Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant has shown only a possibility of causal connection in this case. Claimant has failed to meet her burden of showing a probability of causal connection. To conclude otherwise would be to base a decision on mere speculation. Defendants should not be held liable for any changes in industrial disability which were not proximately caused by the work injuries. While the undersigned might conclude that claimant's failure to secure employment resulted from unanticipated changes since the agreement for settlement, the record shows that claimant has had a number of other health problems since the agreement for settlement which just as likely may have caused her unemployed status and for which defendants cannot be held responsible. Accordingly, claimant shall take nothing further as a result of these proceedings. The other issue need not be addressed. SMITH V. GLENWOOD STATE HOSPITAL-SCHOOL Page 8 FINDINGS OF FACT Wherefore, based on the evidence presented, the following findings of fact are made: 1. Claimant sustained injuries arising out of and in the course of her employment on April 24, 1978 and July 8, 1979. 2. Claimant entered into an agreement for settlement which was approved by the industrial commissioner's office on February 11, 1983 which established that claimant had sustained an industrial disability of 60 percent of the body as a whole as a result of the injuries of April 24, 1978 and July 8, 1979. 3. Claimant has been unable to secure employment since she entered into the agreement for settlement. 4. Since the agreement for settlement, claimant has had other health problems including being diagnosed with osteoporosis, undergoing treatment for diabetes, and undergoing a reversal of an intestinal bypass procedure which resulted in a weight gain in excess of 100 pounds. 5. Claimant has not shown her failure to secure employment is proximately caused by the work-related injuries. CONCLUSION OF LAW Therefore, based on the principles of law previously stated, the following conclusion of law is made: Claimant has failed to sustain her burden of proof to show a change of condition which was proximately caused by her work-related injuries of April 24, 1978 and July 8, 1979 which would entitle her to any further benefits under the Iowa Workers' Compensation Act. ORDER THEREFORE, it is ordered: Claimant shall take nothing further from these proceedings. Costs are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. SMITH V. GLENWOOD STATE HOSPITAL-SCHOOL Page 9 Signed and filed this 17th day of February, 1989. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. C. R. Hannan Attorney at Law 215 S Main St P.O. Box 1016 Council Bluffs, IA 51502 Mr. Robert D.' Wilson Assistant Attorney General Torts Claim Division Hoover State Office Building Des Moines, IA 50319 2905 Filed February 17, 1989 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER ILENE SMITH, Claimant, VS. : File No. 505950 GLENWOOD STATE HOSPITAL-SCHOOL, : : R E V I E W - Employer, : R E O P E N I N G and : D E C I S I O N STATE OF IOWA, Insurance Carrier, Defendants. 2905 Claimant sustained an injury arising out of and in the course of her employment and subsequently entered into an agreement for settlement for a 60% industrial disability. Claimant, since the time of settlement, has been unable to secure employment. Although her failure to get employment may be considered a change of condition under Rowe v. Department of Transportation (Appeal Decision filed July 23, 1986) claimant failed to establish a causal connection between this failure and her injury. Since the time of settlement, claimant was diagnosed with osteoporosis, diabetes and she gained 110 pounds. before the iowa industrial commissioner ____________________________________________________________ : JAMES D. MORTIMER, : : Claimant, : : vs. : : File No. 506116 FRUEHAUF CORPORATION, : : A P P E A L Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed February 22, 1990 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of September, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Paul J. McAndrew, Jr. Attorney at Law 122 South Linn St. Iowa City, Iowa 52240 Mr. Elliott R. McDonald, Jr. Attorney at Law P.O. Box 2746 Davenport, Iowa 52809 9998 Filed September 12, 1991 Byron K. Orton DRR before the iowa industrial commissioner ____________________________________________________________ : JAMES D. MORTIMER, : : Claimant, : : vs. : : File No. 506116 FRUEHAUF CORPORATION, : : A P P E A L Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed February 22, 1990. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JAMES D. MORTIMER, Claimant, vs. File No. 506116 FRUEHAUF CORPORATION, R E M A N D Employer, D E C I S I O N and CNA INSURANCE COMPANIES, Insurance Carrier, Defendants. ____________________________________________________________ This case has been remanded to this agency by the Iowa Supreme Court for a determination of claimant's industrial disability. FINDINGS OF FACT The findings of fact contained in the proposed agency decision filed February 22, 1990 are adopted as final agency action. CONCLUSIONS OF LAW Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the Page 2 situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Claimant was born on July 2, 1952. He was 36 years old at the time of the hearing. Claimant has a high school education, and has obtained some technical training in the areas of automotives and television repair. Claimant's work history includes retail work, general labor, forklift driving, farming, and manufacturing for a brief time. Subsequent to the work injury, claimant managed pizza restaurants, worked as a security guard and as a cook. Claimant's foot problems are severe. While in Oregon, claimant found he was unable to drive a truck because of his foot injury. Claimant also found while working in pizza restaurants that he was unable to be on his feet for an extended period of time. While performing farm work subsequent to his injury, claimant experienced a worsening of his foot condition when livestock would step on his foot. Claimant was advised by his physicians to avoid work that required him to stand on his feet. Claimant testified that he is unable to operate vehicles with a clutch, that he is unable to walk or stand excessively, and that he cannot withstand cold temperatures. Dr. Sprague originally rated claimant's foot injury as resulting in a 27 percent permanent impairment of the lower extremity. Subsequent to the original hearing, claimant's foot injury was rated by Dr. Van Ryn as 28 percent of the left lower extremity. Claimant has also suffered from depression. Claimant's Page 3 psychological condition has been causally connected to his foot injury by several doctors. Dr. Varner diagnosed a major depressive disorder, based on claimant's description of blue spells, crying spells, decreased concentration, decreased short-term memory, anxiety, irritability, and sleep disturbance since the foot injury. Claimant's depression was rated by Dr. Gibson as 25 percent. Dr. Gibson examined claimant in 1988 and found that claimant's psychological condition had been permanently aggravated. Claimant's preexisting psychological condition has been found to have been severely aggravated by his work injury. Dr. Gibson rated claimant's depression as a permanent condition and assigned a rating of impairment on November 9, 1988. Claimant's permanent disability therefore commenced on November 9, 1988. Based on these and all other factors of industrial disability, it is determined that claimant is permanently and totally disabled as a result of his foot injury and resulting mental condition. ORDER THEREFORE, it is ordered: That defendants are to pay unto claimant permanent total disability benefits at the rate of one hundred thirty-nine and 20/100 dollars ($139.20) per week during the period of his disability commencing November 9, 1988. That defendants shall pay accrued weekly benefits in a lump sum. That defendants shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendants are to be given credit for benefits previously paid. That defendants shall pay claimant's medical expenses. Defendants shall pay the future medical expenses of claimant necessitated by his work injury. That defendants shall file claim activity reports as required by this agency pursuant to rule 343 IAC 3.1(2). That defendants shall pay the costs of the appeal including the transcription of the hearing. All other aspects of the September 12, 1991 appeal decision are re-affirmed. Signed and filed this ____ day of April, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Paul J. McAndrew, Jr. Attorney at Law Page 4 122 S. Linn St. Iowa City, Iowa 52240 Mr. Elliott R. McDonald, Jr. Attorney at Law P.O. Box 2746 Davenport, Iowa 52809 1804 Filed April 21, 1994 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JAMES D. MORTIMER, Claimant, vs. File No. 506116 FRUEHAUF CORPORATION, R E M A N D Employer, D E C I S I O N and CNA INSURANCE COMPANIES, Insurance Carrier, Defendants. ____________________________________________________________ 1804 On remand from Supreme Court, claimant was awarded permanent total disability for his acute depression permanently aggravated by his foot amputation. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES D. MORTIMER, Claimant, File No. 506116 VS. R E V I E W FRUEHAUF CORPORATION R E 0 P E N I N G Employer, D E C I S I 0 N and CNA INSURANCE COMPANIES, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in review-reopening brought by claimant James D. Mortimer against defendant employer Fruehauf Corporation and defendant insurance carrier CNA Insurance Companies to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on August 14, 1978. This matter came on for hearing before the undersigned in Burlington, Iowa, on February 24, 1989. The matter was considered fully submitted at the close of hearing, although claimant subsequently filed a brief. The record in the proceeding consists of claimant's testimony, claimant's exhibits A through K, M and N, and defendants' exhibits 1 through 22. Claimant's exhibit L and 0 were offered but not admitted because they were not served on a list of proposed exhibits to be offered into evidence no later than fifteen days prior to hearing as required by the hearing assignment order filed herein on November 21, 1988. Claimant also offered exhibits 23 through 29, but ruling was reserved. Defendants also offered exhibits 30 through 41, but only as a contingency to be exercised in the event that claimant's exhibits 23 through 29 were to be admitted. MORTIMER v. FRUEHAUF CORPORATION Page 2 Claimant subsequently submitted a supplemental motion to reconsider the exclusion of exhibit 0, but the motion was overruled by the undersigned on May 2, 1989. Claimant also raised this issue in his post-hearing brief filed March 24, 1989. Claimant takes the position that the exhibit was actually served upon defendants and, to the extent that it contains the deposition of James Gibson, M.D., defendants participated in the deposition and are not prejudiced. Claimant takes the position that his attorney was misled by defense attorney Elliott McDonald because no objection was made prior to hearing (even though claimant's attorney wrote to apologize for serving a late exhibit list and requested that defendants raise any objection they might have) and because claimant's attorney was sick with the flu at the time the exhibit list should have been filed and thus was unable to prepare witness and exhibit lists. This deputy lacks jurisdiction to consider the merits of any of these arguments because it has long been the policy of the industrial commissioner that no deputy is empowered to modify or overrule an order entered by another deputy. The hearing assignment order of November 21, 1988 specified that a list of all proposed exhibits was to be served not later than fifteen days prior to the date of hearing. The hearing assignment order contained the following language: 6. Witness and Exhibit Lists. A list of all witnesses to be called at the hearing and a list of all proposed exhibits to be offered into the evidence at the hearing along with copies of all written exhibits not previously served shall be served upon opposing parties no later than fifteen (15) days prior to the date of hearing. Only those witnesses listed will be permitted to testify at the hearing unless their testimony is clearly rebuttal or sur-rebuttal. Medical records, practitioners reports and all other written evidence shall not be admitted as exhibits at the hearing unless they have been timely served upon an opposing party as ordered herein. The service of witness lists pursuant to this order does not modify the requirements of Iowa Rule of Civil Procedure 125c to supplement responses to discovery as to experts not less than thirty (301 days prior to hearing. [Emphasis in original.] However, claimant's brief raises two additional issues in support of admissibility of this exhibit. One is that the exhibit is properly admitted under the order as rebuttal testimony, and the other is that the deposition of Dr. MORTIMER v. FRUEHAUF CORPORATION Page 3 Gibson was properly and timely served within the terms of the hearing assignment order. It should be noted that the hearing assignment order distinguishes between witnesses and written evidence. The order specifies that witnesses may testify in rebuttal, but includes no such provision as to written evidence. Allegations that the exhibit was timely served stand unresisted, but mere service of the exhibit does not comply with the hearing assignment order. The order requires a list of exhibits to be offered into evidence. Any number of exhibits may be served on the opposing party during the course of litigation, but that does not serve to identify which exhibits the party intends to offer as evidence. To hold otherwise would allow parties to serve an avalanche of various exhibits prior to hearing, yet still conceal which of those exhibits are to be relied upon as evidence. This would defeat the purpose of requiring service of an exhibit list in advance of hearing. The undersigned has examined the deposition portion of exhibit 0 to determine whether the stipulation entered into by the parties could fairly be read as advance notice to defendants of claimant's intent to offer the deposition into evidence at this hearing. While realistically there is no question whatsoever but that defendants were well aware of claimant's intention to offer Dr. Gibson's deposition, this does not obviate claimant's responsibility under the hearing assignment order to serve formal notice. The stipulation entered into by respective counsel at the time of Dr. Gibson's deposition does not contain language contemplating such notification. The balance of exhibit 0 was not reviewed prior to preparing this decision. For all of these reasons, exhibits 0 and L must be excluded from evidence. It is irrelevant that Mr. McDonald did not disclose his objection in response to Mr. McAndrew's letter, as he had no such duty. While the undersigned may consider professional courtesy an admirable trait, he lacks jurisdiction to mandate its exercise. The situation presented is different with respect to exhibits 23 through 29. Once again, claimant did not serve intent to offer these exhibits as required by the hearing assignment order. The crucial distinction is that defendants themselves served notice of intent to offer these very exhibits. When claimant prepared his untimely (by six days) notice of exhibits to be offered, he excluded these exhibits in reliance upon defendants' earlier notification. Attached to claimant's brief as exhibit 6 is a cover letter dated January 25, 1989 signed by defendants' attorney. This MORTIMER v. FRUEHAUF CORPORATION Page 4 stated: "Attached please find my exhibit list and copies of the exhibits which I intend to offer at hearing." The hearing assignment order of November 21, 1988, contains an injunction to counsel that every reasonable effort should be made to avoid duplication. It is believed that this injunction is contained in every hearing assignment order issued by this agency in contested cases, although frequently ignored in practice. Division of Industrial Services Rule 343-4.22 provides that a deputy may enter an order which will control the subsequent course of action in litigation "unless modified to prevent manifest injustice. Claimant takes the position that this rule authorizes this deputy to modify the hearing assignment order. It does not. However, it codifies that which is certainly a policy of the industrial commissioner: preventing manifest injustice. To exclude these exhibits served by one party as notice of intent to offer where the other side, in detrimental reliance, avoids duplication by not serving similar intent would be to foster manifest injustice and trial by ambush. It is held that when any party serves an exhibit list pursuant to a hearing assignment order, all parties may justifiably assume that sufficient notice has been given as to those exhibits. It is hoped that this holding will have the salutary effect of encouraging professional courtesy and non-duplication of exhibits. Therefore, claimant's exhibits 23 through 29 are admitted into evidence. Consequently, defendants' exhibits 30 through 41 are also admitted. ISSUES Pursuant to the prehearing report submitted and approved at hearing, the parties have stipulated: to the existence of an employment relationship at the time of the injury; that claimant sustained an injury on August 14, 1978, arising out of and in the course of that employment; that the injury caused permanent disability; that the appropriate rate of weekly compensation is $139.20; that entitlement to medical benefits is no longer in dispute; that defendants paid claimant 195 weeks of compensation at the stipulated rate prior to hearing. Issues presented for resolution include: whether the injury is causally related to temporary disability as to claimant's mental condition; the extent of claimant's entitlement to compensation for temporary total disability or healing period; the extent of claimant's entitlement to compensation for permanent disability, the type of permanent MORTIMER v. FRUEHAUF CORPORATION Page 5 disability and the commencement date thereof; whether there is a lack of evidence of a substantial change in claimant's condition since the earlier review-reopening decision in this case; whether there is a lack of evidence of causation as to claimant's mental problems. REVIEW OF THE EVIDENCE Deputy Industrial Commissioner Joseph M. Bauer filed a Review-Reopening Decision in this case on January 13, 1983. He briefly described claimant's crush injury to the left foot, which resulted in the amputation of the first four toes, and concluded that claimant had sustained a 27 percent loss to the left leg. Deputy Bauer further found that claimant's injury aggravated a preexisting depressive condition and found a direct causal connection between the injury and subsequent psychological problems. In concluding that the depression was shown merely to be a temporary aggravation under the present record, Deputy Bauer held: However, although the present psychological problems have been in existence for some time, the "jury is still out" with regard to permanency of the depression. Claimant's depressive state may well be found to be permanent at some future time. However, viewing the record as a whole it is found that claimant has sustained a temporary aggravation of a preexisting depressive condition. Deputy Bauer found that the permanent effects of the injury were confined to the left lower extremity. Given that some knee motion restriction was noted, the deputy adopted the rating of B. L. Sprague, M.D., of 27 percent of the left lower extremity. Claimant testified that he was born on July 2, 1952 and was 36 years of age at the time of hearing. He graduated from high school in 1970 and has additional educational attainments since his prior hearing. He took an automotive course at Quincy Technical School in 1983 (excluding diesel mechanics) and has worked on a television repair correspondence course. Claimant testified that his work history prior to hearing included clerical, sales and, stocking work at a retail store while in high school, general labor for a box manufacturer, approximately two years as a truck driver and mill worker for a lumber company, work as a forklift driver for two different companies, farming in association with his father, and employment for only 4-6 weeks with defendant Fruehauf Corporation in 1978. Claimant's job involved hanging bumpers on trailers, a manufacturing position. MORTIMER v. FRUEHAUF CORPORATION Page 6 Claimant also testified to the jobs he had held after the work injury, but before his first hearing. These included managing two pizza stores, operating his own pizza store, acting as a security guard and working part-time in a lumber yard while in school. During this period of time claimant had continuing problems with his foot "breaking down" and suffered stress because his wife carried on an affair with a partner in one of the pizza stores where claimant worked. Claimant also testified to the positions he has held since his first hearing. His first job included employment at Furrow's Lumber Yard where he worked in the yard and drove a truck. However, he proved unable to drive the truck because he was unable to operate the clutch with his injured foot. Claimant moved to Portland, Oregon and worked approximately 56 hours per week as a mechanic and attendant at a gas station, and also worked for approximately 3-4 hours per week as a cook in a fast food restaurant. While working these jobs in Oregon, claimant experienced problems with his foot breaking down. The pad of skin and flesh over his amputated toes develops hairline cracks when he stands on his feet, which continue to widen the more he stands. These cracks also easily develop infections. Claimant visited the hospital in Oregon and was advised by Dr. Craig not to work. Thereupon, he returned to Iowa and underwent treatment with Dr. Sprague. claimant testified that he was off work from December 27, 1983 through August, 1984. He indicated that his foot was open and bleeding during almost all of this time. Claimant next returned to work with permission of Dr. Sprague at Lazzio's Pizza, where he worked as a manager. Naturally, restaurant work kept claimant on his feet much of the time. This again exacerbated his foot problem, so claimant saw Carl R. Kruse, M.D., who treated him with stitches, dressing, and advised him to leave work, so claimant quit that job. He was off work from November 13, 1984 until July, 1985. Dr. Kruse treated claimant with medications, Thorazine and psychological counseling. Dr. Kruse eventually referred claimant to Andre P. Edmonds, M.D., in July, 1985. Claimant indicated that Dr. Edmonds advised him that his metatarsal bones were shifting and spreading beyond the capacity of the skin graft to hold together. Claimant indicated that Dr. Edmonds advised that further surgery (increasing the amputation) might help, but that the results MORTIMER V. FRUEHAUF CORPORATION Page 7 could even be worse and that there was no "sure cure" for claimant's plight. Dr. Edmonds' records indicate that claimant was kept off work from July 23, 1985 through December 18, 1985. Claimant's next position was in a Lum's Restaurant as a part-time cook beginning in August, 1986 and lasting for about one month. Thereafter, he took a position as full-time cook at a Golden Corral Restaurant. Claimant also worked part-time at a business known as Rocket Plaza, but quit Golden Corral in March, 1987, when his hours were cut back there and took full-time position at Rocket Plaza. However, claimant's foot broke down yet again as of February 7, 1987. Claimant saw Dale F. Burton, M.D., who advised him to stay off his feet and not work. Claimant did quit his job with Rocket Plaza. After Dr. Burton gave claimant permission to return to work, he took a position as a janitor for a business known as Dye-Makers, where he worked approximately five hours per day until laid off on August 20, 1987. Thereafter, claimant took a position as a full-time general farm hand from September 14 through October 28, 1987. He then took a position working some 55-60 hours per week with another farm on October 28, 1987. While working in this cattle and hog operation claimant was off work for some five days in April, 1988. A skin graft near his ankle broke open when a cow stepped on claimant's foot. Claimant testified that Dr. Burton advised him that he would not have lost work from this episode but for the existence of the skin graft. Claimant further testified that his foot broke down again in August, 1988, and that he was off work for three days on Dr. Burton's advice. This was claimant's most recent foot breakdown prior to hearing, although he has commonly had minor cracks and splits since then that he has treated without medical attention and without losing work. Claimant forthrightly admitted that he has frequently been forced to lie to various employers during such minor episodes (claiming that he had influenza or the like) to get time off to give his foot a chance to rest and heal. Finally, claimant took a position as a herdsman with another farm approximately three weeks prior to hearing. This position gives claimant 11 hours per day, but he is on his feet most of the day and has been stepped on by hogs on MORTIMER v. FRUEHAUF CORPORATION Page 8 several occasions already. Claimant was so employed at the time of hearing. Claimant also testified as to his recurrent bouts of depression. He has been seen by the following psychiatric practitioners: Vernon P. Varner, M.D., Robert Anderson, M.D., Richard L. Newman, M.D., Barry W. Frieder, M.D., and James A. Gibson, M.D. Claimant indicated that each practitioner diagnosed depression caused by the foot injury. Claimant is now taking three medications for his depression: Ludamil, Zanarex, and Thorazine. Claimant testified to being quite fearful of further recurrence of his psychiatric problems. Claimant also testified to a number of tasks he now finds himself unable to perform or able to perform only with great difficulty. These include operating vehicles equipped with a clutch such as a truck or Bearcat, climbing on ladders, bending, walking distances, lengthy standing, and withstanding cold temperatures. Claimant also testified that in his belief he suffered no long-term psychiatric problems resulting from his former wife's unfaithfulness or the loss of his pizza business. He agreed on cross-examination that the loss of his pizza business was upsetting, but not nearly so much as his continuing left foot breakdowns. Although claimant did suffer depression in 1976, he testified that after treatment he suffered no further problems until his foot injury and was not required to consume medication. With respect to claimant's work history post-injury, he indicated that with the exception of his pizza business and Lum's Restaurant, most of his employment positions were lost due to continuing breakdowns of his left foot. On cross-examination, claimant agreed that he had undergone no major surgeries since his prior hearing and further agreed that his foot is now basically in the same condition as was the case then. Medical evidence predating the prior hearing shows that Bruce L. Sprague, M.D., wrote on October 4, 1982 that claimant had sustained a 27 percent impairment of his left lower extremity under the American Medical Association Guides to the Evaluation of Permanent Impairment. This was based on amputation of the great, second, third and fourth toes at the metatarsal phalangeal joint, a lack of knee extension and foot dorsiflexion and areas of decreased sensation. MORTIMER v. FRUEHAUF CORPORATION Page 9 Jerry L. Jochims, M.D., opined on August 13, 1979 that based on amputation, stiffness in the little toe and pain and scarring, claimant had sustained a 36 percent impairment to the lower extremity, also based on the American Medical Association guides. Vernon P. Varner, M.D., reported seeing claimant on March 30, 1981. Claimant reported at that time that since his injury he had never returned to functioning normally and had been repeatedly bothered by depressive symptoms, including at the time of the initial appointment blue spells, crying spells, decreased concentration, decreased short-term memory, increased anxiety and irritability along with substantial increases in food and alcohol consumption, a lessened libido and anhedonia and a full range sleep disturbance. Dr. Varner's impression was of major depressive disorder. Dr. Varner wrote on April 17, 1981 that claimant's work injury had required a remarkable change in his lifestyle and that the "accident and its attending disability has led directly to his significant depressive syndrome." Claimant was diagnosed as suffering major depressive disorder without melancholia. Dr. Varner continued that the onset of this depression could be very reliably traced and attributed directly to the work injury. Dr. Varner reported again on January 27, 1982 that claimant still had all of his earlier detailed depressive symptoms and reported that the symptoms had worsened. Dr. Varner wrote defense counsel on August 10, 1982 to report that claimant's psychiatric condition was at best unstable at that time, but that it was hopeful that claimant's mood would lift and outlook improve if he underwent a rehabilitation training program. Dr. Varner was at that time treating claimant's psychiatric condition with various medications, but found his psychiatric prognosis "difficult to detail at this time." He expected claimant to be able to function after his rehabilitation was complete, but noted that depression can at times be very difficult to deal with. Dr. Varner noted that claimant's loss of identity and his real functional disability secondary to his foot injury have been "devastating for him." Dr. Varner reported on October 1, 1982 that claimant's depressive illness had been difficult to treat, but that it appeared as though claimant was responding.nicely to a new anti-depressant medication and it was likely that he could experience a complete recovery. However, claimant suffered at least a 50 percent risk of having another depressive MORTIMER v. FRUEHAUF CORPORATION Page 10 episode at some time in his life and that if he did not recover from the depression, his lifelong disability could be far greater than "it appears at this time." He stated: Chronic depressive illness carries a high morbidity as well as a high mortality rate. In addition to the morbidity and mortality, depressed individuals are more inclined to have serious problems with alcohol, substance abuse and other physical disorders such as hypertension, gastrointestinal disease related to stress. The only impairment rating issued as to claimant's foot subsequent to the earlier hearing was by Jacques Van Ryn, M.D., on March 30, 1988. Employing the American Academy of Orthopaedic Surgeon's Manual for Orthopaedic Surgeons evaluation system, he found that claimant had sustained a 35 percent permanent partial impairment of the foot and ankle, which translated to a 28 percent permanent partial impairment of the left lower extremity. Janne Bachman-Lebsack, rehabilitation specialist for International Rehabilitation Associates, Inc., reported on November 9, 1987 that Dr. Van Ryn had indicated that claimant's level of metatarsal amputation does not do well unless there is significant retained plantar skin and suggested three ways to manage claimant's problem: orthotic support, limited ambulation, or a higher level of amputation All of these methods were described as fraught with complications: claimant had tried orthotic supports in the past with resultant wound breakdown; limited ambulation limits employment opportunities; a new level of amputation usually destroys the arch of the foot and may produce tendon imbalance. Dr. Sprague wrote Dr. Jochims on January 23, 1984 to note that claimant returned to the office stating that he had suffered a breakdown two weeks before in Oregon. Claimant had a superficial split which did not seem to be healing well. Dr. Sprague reported on February 3, 1984 that claimant's chronic breakdown did not appear much different. Dr. Sprague wrote again on July 16, 1984 that claimant continued to return concerning his recurrent skin breakdown. While the breakdown was superficial, the base had a very edematous "sick" appearance. Dr. Sprague felt that the breakdown might be due to chronic infection. He thought it would be appropriate to consider removing more bone from the third metatarsal. Andre P. Edmonds, M.D., reported on July 23, 1985 that claimant's wound had last broken open in the previous MORTIMER v. FRUEHAUF CORPORATION Page 11 October,.at which time Dr. Kruse provided medical services. He stated that the wound had finally healed, but that claimant had recently hit his foot on a table causing a reopening. Dr. Edmonds' diagnosis was of adhesion of the skin to the bones which did not permit motion of the fat pad of the skin, thereby causing a fair amount of tension on the area leading to breakdowns. He recommended treatment by loosing the adhesions, which could be done surgically by shortening the rays and closing the wound loosely. He noted that surgery carried the risk of wound healing problems as claimant had demonstrated in the past. Carl R. Kruse, M.D., wrote defense counsel on October 15, 1985. He noted that claimant had first been seen November 13, 1984 on an emergency basis because of bleeding in the left foot, but that claimant also complained of depression. Dr. Kruse did counseling, treating claimant with medication and also restricted claimant against any weight bearing until the area healed. Claimant was seen again in November and December, 1984, but healing had not occurred. As of December 10, claimant had additional bleeding and reported bearing some weight on the foot "probably resulting in this extension of the laceration." Claimant complained of further depression and his antidepressant medications were increased. Claimant was seen again on December 17 and December 27, 1984 and January 10, 1985. At that time his foot was beginning to heal and claimant was not having as much pain "except when he tends to bear weight on it." The wound was still not healed on January 24 and claimant continued to complain of depression. Dr. Kruse saw claimant again on February 11. The foot was healed, except for a one centimeter long area and claimant still had tenderness between the distal ends of the second and third metatarsals. Claimant was still complaining of psychological problems. On February 28 the foot had healed on the top, but an area on the plantar side was not yet healed. The dosage of claimant's antidepressant medication was again increased. Dr. Kruse reported that claimant's foot lesion was about the same on March 14, 1985. On March 28 the lesion was "almost" healed and claimant still complained of depression. On April 18 claimant still had redness and erythema around the lesion and it was still tender. Claimant was still depressed. Claimant was next seen on June 14, 1985. The foot was "fairly well healed with no open area and no drainage." On July 12 the lesion was still healed, but Dr. Kruse noted that it tended to crack open on the plantar surface from MORTIMER v. FRUEHAUF CORPORATION Page 12 time to time. He was referred at that time to Dr. Edmonds. Claimant's nerves were described as about the same. Claimant was last seen by Dr. Kruse on July 26. He was more depressed at that time and his foot was doing about the same. Claimant failed to appear for his last scheduled appointment on August 16, 1985. Dr. Edmonds reported on December 18, 1985 that claimant had been seen again and his wounds had healed very nicely. He again recommended shortening of the bones of the foot to cut down on the stress of the skin edges. Although claimant might benefit from using a small metatarsal neck support to cut down on the pulling sensation, there was nothing else he could offer. He felt that if surgery was done, it should be done by a plastic surgeon. Claimant was described as well motivated and quite anxious to return to work. Richard L. Newman, M.D., is a Diplomate of the American Board of Psychiatry and Neurology. He wrote claimant's counsel on February 17, 1986 to report the results of a psychiatric examination performed on claimant on January 10 of that year. Dr. Newman's examination revealed claimant to be alert, oriented, cooperative and able to accurately perceive his environment with no true hallucinations, delusions or misinterpretations. Anxiety was mildly increased and affect moderately depressed. Thought processes were within normal limits. There were no signs of gross organic defects or of overt thought disorder. Dr. Newman wrote that claimant's prognosis at that time would seem "quite dependent" upon the status of his foot and the level of activity to which he might be able to return. He believed that claimant's eventual return to the workforce should enhance his self-esteem, but claimant again needed psychiatric support. Dr. Sprague reported on March 14, 1986 that claimant returned to the office again complaining of recurrent breakdowns of the amputation stump over the second metatarsal head. Claimant was described as finally getting the last breakdown healed up a couple of months before and had no further evidence of breakdown. On examination, plantar skin over the metatarsal was more supple and mobile than previously. There were no areas of irritation or breakdown, but obviously scarring and fixation of the skin to a certain extent. Dr. Sprague felt that claimant was probably having most of his problems from poor blood supply to the plantar skin as well as scar fixation and scarring of the underlying tissue. Dr. Sprague advised claimant that he MORTIMER v. FRUEHAUF CORPORATION Page 13 could have a dorsal and plantar flap raised with resection of the second metatarsal head in order to try to provide more mobility, but there was certainly no guarantee that this would occur and claimant would be taking a significant risk because he could end up with an area that would not heal with chronic breakdown and he could suffer a secondary infection. Dr. Sprague filled out a "physical capacities form" provided by International Rehabilitation Associates, Inc., in April, 1986 (the specific date is difficult to read on the copy provided). Dr. Sprague opined that claimant could stand/walk 0-2 hours at one time, 4-6 hours in every 24. He could also sit 6-8 hours in each 8-hour work day and day, although this was apparently a restriction, since Dr. Sprague did not check the "no restrictions" box for that category. However, there were no restrictions as to how long claimant could drive a car or truck. Claimant had no lifting restrictions or hand use restrictions and could use his feet for repetitive movement as in operating foot controls. However, he was restricted from any squatting or climbing and to only occasional kneeling. Claimant was also restricted against remaining in damp environments. Dr. Sprague did not directly answer a question as to when claimant would be released to return to work by noting only that he had no job to return to. Claimant would not be required to use assistive devices or braces. Barry W. Frieder, M.D., reported the results of a psychiatric evaluation on February 18, 1987. He wrote: . . . Life is a constant daily struggle for him. He showed me (upon my request) the foot which has caused him so much pain. The skin is indeed reddened and split at this time. We discussed the history of hospitalizations, surgeries, etc. associated with this injury. It is obvious this has been the center of his life for many years now. He seems frustrated and self-hating in his attitudes associated.with this injury. . . . He faces life with grim determination and obviously not much joy. . . . . . . He is on his feet much of the time which he endures with pain and determination Somehow he gets through it, but apparently he is somewhat irritating to the people around him who, from time to time at least, make remarks about him needing to be more pleasant toward others. He seems to have the mental set of a martyr. . . . MORTIMER v. FRUEHAUF CORPORATION Page 14 I am using Imipramine which he will take in doses beginning at 50 mgs. a day and gradually increasing by 50 mgs. every couple of days until he reaches a total therapeutic dose of 150 mgs. a day. At that time, he will continue that dose if there is a positive effect. He has a history of positive response to antidepressant medication and therefore this has a good chance of being helpful. He clearly describes the course of earlier periods of depression and how they have responded to antidepressant medication. He denies any history of depression preceeding [sic] his injury. I suspect that his depression has been well masked and contained through the years by his characterological defenses. This is a man who appears to me to have longstanding difficulties in interpersonal relationships which precede his injury but which he dealt with in a very well compensated way until the injury caused decompensation and the emergence of psychiatric symptomatology periodically thereafter. * * * Mr. Mortimer sees a pattern to his depression. He says that it gets worse or better according to how much his foot hurts. If his depression is not treated, he says, it begins with withdrawing from other people and not getting along with others, then it proceeds to complete withdrawal to his room with constant feelings of "being down". Eventually, he develops spontaneous crying spells and vegetative signs. . . . The diagnosis here appears to be two-fold: 1. This man has the signs and symptoms of going into an acute episode of Major Depressive Disorder. 2. He appears to have a Character Disorder which I can only describe at this time as Atypical for lack of clearer information. One might also think of this man as having a prolonged Adjustment Disorder whose duration will last indefinitely but this of course does not correspond to the DSMIII nomenclature. The point is that his injury has dis-equilibriated his life and he has never been able to recapture a sense of normalcy since then. This includes not being able to develop a sense of adequacy and the ability to be in charge of his own life. MORTIMER v. FRUEHAUF CORPORATION Page 15 Dr. Frieder wrote rehabilitation specialist Bachman-Lebsack on February 23, 1987 to state that claimant was in need of depression at that time, but that hospital treatment would not be necessary. Dr. Frieder's notes of March 9, 1987 reflect that claimant was in better control of his irritability at work, but having serious problems at home, including threatening to move out of the family dwelling. Dr. Frieder further noted that claimant admitted that he has totally refused to use the telephone anymore and never makes phone calls no matter what. Claimant was quite angry at his wife for not phoning in advance to cancel his last appointment, but was unwilling to make the call himself. Dr. Frieder reported on April 15, 1987 that claimant was deriving some benefit from his anti-depressant medication and it still appeared that his case could be managed outside of hospitalization. Claimant had had a couple of breakdowns of the skin of his foot in that month and had had to stop work as a result. Dr. Frieder was of the view that claimant did not present an imminent suicide risk, but would not be surprised if over the long haul there was danger of suicide. Dr. Van Ryn wrote claimant's attorney on October 9, 1987 following examination on that date. He wrote: ASSESSMENT: Status-post transmetatarsal level amputation of toes one through four. This is a [sic] difficult for amputations to do well with unless there is significant retained plantar skin, that is, good, thick tough skin from the sole of the foot. Apparently he did not have that type of skin retained. He has had a flap from elsewhere placed over the foot. However, the skin he currently has over the inside of the foot along where the great toe was and the second toe is not tough enough skin to withstand the affects [sic] of putting his full weight on that foot without recurrent breakdown. Therefore, I feel there are three ways to manage this foot. The first method would be to try orthotic support. He indicates he has tried orthotic supports in the past with wound breakdown. The second method would be to decrease his ambulation to about two hours per day which his foot would tolerate without further skin breakdown, but he has never been employed in that type of situation. The third would be to give him MORTIMER v. FRUEHAUF CORPORATION Page 16 a new level of amputation by cutting back further on the bone so that there could be good skin from the sole of the foot to cover. In this area this is frought [sic] with extreme difficulty because it essentially destroys the arch of the foot and often results in further chronic deformity of the foot because of tendon imbalance. If this patient is to continue doing weight bearing activities, this may be the only solution for him. However, he would probably need what we call a "Chopart's" amputation which has to have tendon balancing done with it and does require orthotic support or a false foot to be used in the shoe. This can give good relief, however, of his weight bearing problems as long as he does not get long-term secondary changes because of tendon imbalance. Dale F. Burton, M.D., wrote claimant's counsel on February 9, 1988 to report that he first saw claimant in the emergency room at a local hospital on February 7, 1987. At that time there was a large crack on the plantar surface of the forefoot between the second and third metatarsal heads. It appeared that the skin covering the end of his forefoot was somewhat tight and that upon weight bearing his foot had a tendency to spread out and split this skin. The area was superficially inflamed. There was no evidence of deep infection however it was too painful to allow ambulation. Dr. Burton reported that claimant was seen again on October 19, 1987, at which time the split had reoccurred. Dr. Burton further wrote: . . . I believe the patient does have disability based upon his previous injury and that he will continue to have problems with splitting of the skin until an adequate revision of the skin flap on the foot has been performed. As long as this condition persists he will be unable to be employed at any job which requires long periods of being on his feet. Obviously at periods of time when the foot is healed and he has not discomfort with it he is able to ambulate but certainly the disability precludes a number of job descriptions and most of the job descriptions of employment that the patient historically has had according to his conversation to me. When the split is present he is totally disabled and I would anticipate several MORTIMER v. FRUEHAUF CORPORATION Page 17 weeks to several months time requirement for healing in each of those instances. James A. Gibson, M.D., is apparently associated with Dr. Newman. He advised that he had first seen claimant in January, 1988 and on five subsequent occasions. He wrote: Mr. Mortimer initially requested help with his depression. He had in the past been on medication for depression, had stopped it. He agreed with placing him back on a combination of Ludiomil (an antidepressant), Thorazine (a major tranquilizer) and Xanax, (an anti-anxiety medication). He said this was the combination with which he had responded best to in the past. He reported that medication never had completely brought him out of depression. He has continued on these medications to the present. * * * Mr. Mortimer's depression is under fair control and, from his descriptions of his functioning, this is about as well as he ever responded to medication. Using the AMA GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT scheme for evaluation of psychiatric impairment, the following is provided. Intelligence 1 Unimpaired Thinking 2 Some suspiciousness Perception 2 Slight impairment from emotional turmoil Judgement 4 Moderately severe impairment from suspiciousness Affect 4 Moderate depression Behavior 3 Angry outbursts, throwing and breaking things Ability 2 Needs some help Potential 4 Condition probably will not improve appreciably Collective impairment -- probably 50%. My estimate of the percentage of this attributable to psychiatric impairment would be 25%.. In my opinion, the depression was not caused by the injury and its aftermath, but symptoms have been severely exacerbated by these factors. I know of no way of quantifying the contribution of the injury and aftermath to the severity of the depression. MORTIMER V. FRUEHAUF CORPORATION Page 18 APPLICABLE LAW AND ANALYSIS Pursuant to Iowa Code section 86.14(2), in a proceeding to reopen an award for payments, inquiry is to be made into whether or not the condition of the employee warrants an end to, diminishment of, or increase of compensation so awarded. A change in condition must be shown to justify changing the original award. Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959). It is not proper to merely redetermine the condition of the employee as adjudicated by the former award. Stice v. Consol. Ind. Coal Co., 228 Iowa 1031, 291 N.W.2d 452 (1940). A mere difference of opinion of experts or competent observers as to the degree of disability arising from the original injury is insufficient to justify a different determination on a petition for review-reopening; there must be substantial evidence of a worsening of the condition not contemplated at the time of the first award, Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957), or a change in condition may be found where claimant has failed to improve to the extent initially anticipated, Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978). Additionally, in cases not involving scheduled members, a change in earning capacity subsequent to the original award which is proximately caused by the original injury may constitute a change in condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). Thus, as a starting point, it is mandatory to review claimant's condition as disclosed by the earlier award as a starting point in determining whether claimant has established the requisite change in condition. The review-reopening decision filed January 13, 1983 held that claimant had sustained a 27 percent loss to the left leg by reason of his work injury and that the injury aggravated a preexisting depressive condition, directly causing subsequent psychological problems. The deputy found that the depression had been shown at that time merely to be a temporary aggravation and that the "jury is still out" with regard to permanency of that psychological condition. The jury is no longer out on that issue. Dr. Gibson evaluated claimant in 1988, finding that claimant's psychological condition "probably will not improve appreciably." The concept of "permanency" for purposes of determining entitlement to disability benefits, does not mean forever or embrace the idea of absolute perpetuity; it means for an indefinite or indeterminate period. Wallace v. Brotherhood of Locomotive Fireman & Engineermen, 230 Iowa MORTIMER v. FRUEHAUF CORPORATION Page 19 1127, 300 N.W. 322 (1941). Dr. Gibson is the only physician in this record to have rendered an opinion as to the permanency of claimant's psychological condition. Not only is his opinion on that issue unrefuted, it is amply supported by the record of claimant's ongoing intermittent psychological problems since his injury. As has been seen, it has already been determined by this agency that claimant's injury exacerbated his preexisting psychological condition and directly caused subsequent psychological problems. All of the psychiatrists claimant has seen have reached the same conclusion. It is therefore held that claimant has established permanent psychological impairment directly caused by the work injury. since the "jury was out" on that issue at the time of the previous decision, this constitutes a substantial change in claimant's condition. However, that finding alone does not necessarily translate into increased entitlement to benefits. Claimant's condition as of the review-reopening decision filed January 13, 1983 has been adjudicated to be a 27 percent loss to the left leg. As has been seen, different physicians had different opinions as to claimant's impairment, but this is now established. The only physician to have expressed a view as to claimant's current impairment by reason of his foot injury is Dr. Van Ryn. On March 30, 1988, that physician found that claimant had sustained a 35 percent permanent partial impairment of the foot and ankle, which translates to a 28 percent permanent partial impairment of the left lower extremity. This is only a one percentage point difference from the conclusion reached by Deputy Bauer. Although claimant has obviously had substantial periods of temporary disability since the earlier hearing, that does not necessarily indicate increased permanent disability. Dr. Van Ryn's opinion is well within the range of medical opinion at the time of the earlier hearing. It is held that claimant has failed to establish a change in condition relating to his foot. It is obvious to the undersigned that claimant has very substantial industrial disability. However, an injury to a scheduled member must be compensated only as per the schedule without regard to industrial disability. Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983). Therefore, claimant can be compensated on an industrial basis only if his psychological impairment caused by the scheduled member injury operates to "convert" the scheduled member injury into a body as a whole injury. MORTIMER v. FRUEHAUF CORPORATION Page 20 Work-related psychological impairments are compensable. Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969). However, the industrial commissioner has held that psychological impairments caused by a scheduled injury are contemplated in the schedule itself and do not constitute an extension of the injury to the body as a whole. Cannon v. Keokuk Steel Casting, file number 795331 (App. Decn. January 27, 1988). Since claimant's psychological problems are clearly aggravated by a scheduled member injury, they cannot be independently compensated under current agency precedent and do not extend claimant's injury to the body as a whole. Therefore, even though claimant has established a change in his condition since the earlier review-reopening decision in that his psychological condition has now been established as permanent, he is not entitled to have his injury compensated industrially because the psychological impairment was caused by a scheduled member injury. Periods of temporary recurrence of symptoms in a review-reopening proceeding following the end of healing period are compensable as temporary total disability under Iowa Code section 85.33. Boatman v. Griffin Wheel Co., file number 772267 (App. Decn. November 9, 1988). Claimant testified that he was disabled from work by reason of his foot injury from December 27, 1983 through August, 1984. However, this assertion is not supported by medical evidence. Particularly where such an extensive period of temporary total disability is claimed, it must be held that claimant has not established his burden of proof in the absence of supporting medical opinion. It is obvious that self-imposed restrictions and limitations are less reliable than medically imposed limitations. In 1984, Dr. Sprague advised claimant to be off work on January 23, noting that claimant's symptoms had recurred two weeks before. However, the record does not disclose when or if Dr. Sprague felt claimant had recovered. Therefore, benefits cannot be awarded for this period because they would be completely speculative as to duration. Dr. Kruse found claimant unfit to work as of November 13, 1984 and found claimant to be in essentially the same condition when last seen on July 26, 1985. Dr. Edmonds took over claimant's care as of July 23, 1985 and found claimant recovered on December 18, 1985. Therefore, claimant has established entitlement to temporary total disability from November 13, 1984 through December 18, 1985 (57 weeks, 2 days). MORTIMER v. FRUEHAUF CORPORATION Page 21 Dr. Burton found claimant unfit to work on February 7, 1987, but the record does not disclose how long the doctor found claimant to be disabled. Again, an award of temporary total disability would be speculative. Claimant testified that he missed five days in April and three days in August, 1988 because of his foot. He testified that Dr. Burton advised him that this lost time was causally related to the work injury. However, there is a failure of medical evidence on this point. Claimant has not established his entitlement to benefits for these periods. The earlier review-reopening decision awarded 105 5/7 weeks of healing period compensation and 59 4/7 weeks of permanent partial disability compensation at the stipulated rate, totalling 165.286 weeks. The parties stipulated that defendants paid claimant 195 weeks of compensation on a voluntary basis prior to hearing. This is 29.714 weeks in excess of the compensation previously ordered. Defendants shall have credit for payment of these voluntary benefits. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. Since the review-reopening decision filed January 13, 1983, claimant has undergone a change in condition in that his psychological problems causally related to the work injury have become permanent. However, claimant's condition as to his injured foot has not been shown to have changed. 2. Claimant's work injury caused him to be disabled from work from November 13, 1984 through December 18, 1985 (57 weeks, 2 days). CONCLUSIONS OF LAW WHEREFORE, based on the principles of law previously cited, the following conclusions of law are made: 1. Because claimant's psychological condition was exacerbated by a scheduled member injury, that exacerbation is contemplated by the schedule and not compensable industrially. Because claimant has not established a change in condition with respect to his scheduled member injury, he is not entitled to additional permanent partial disability benefits. MORTIMER v. FRUEHAUF CORPORATION Page 22 2. Claimant is entitled to temporary total disability benefits from November 13, 1984 through December 18, 1985. ORDER THEREFORE, IT IS ORDERED: Defendants shall pay to claimant fifty-seven point two eight six (57.286) weeks of temporary total disability benefits at the stipulated rate of one hundred thirty-nine and 20/100 dollars ($139.20) totalling seven thousand nine hundred seventy-four and 21/100 ($7,974.21) commencing November 13, 1984. Defendants shall be entitled to credit of twenty-nine point seven one four (29.714) weeks of permanent partial disability benefits paid voluntarily prior to hearing. This credit totals four thousand one hundred thirty-six and 19/100 dollars ($4,136.19). As all benefits awarded herein have accrued, they shall be paid in a lump sum together with statutory interest. Costs of this action shall be assessed to defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 22nd day of February, 1990. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Paul J. McAndrew Jr. Attorney at Law 122 South Linn Street Iowa City, Iowa 52240 Mr. Elliott R. McDonald, Jr. Attorney at Law P.O. Box 2746 Davenport, Iowa 52809 1803.1, 2204, 2906 Filed February 22, 1990 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES D. MORTIMER, Claimant, File No. 506116 VS. R E V I E W - FRUEHAUF CORPORATION, R E 0 P E N I N G Employer, D E C I S I 0 N and CNA INSURANCE COMPANIES, Insurance Carrier, Defendants. 2906 Service of exhibits held not to comply with pre-hearing order that required service of a list of exhibits, since service of exhibits during litigation does not put parties on notice as to which potential exhibits will be relied upon at hearing. Service of exhibit list by any party may be relied, upon by all parties as to the listed exhibits; any party may offer those exhibits, even if the serving party elects not to. 1803.1, 2204 Claimant established change in condition in review-reopening in that psychological damage earlier held causally related to scheduled member injury had become permanent. However, under Cannon v. Keokuk Steel Casting, psychological impairments caused by a scheduled member injury are contemplated in the statute and not compensable industrially. Therefore, since claimant's foot injury had not changed in condition, no additional permanency was awarded.