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.