BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ELLA SHARP,
 
         
 
               Claimant,
 
          
 
          VS.
 
          
 
          BANCO MORTGAGE COMPANY,        :            File  No.  513309
 
         
 
                                                      R E V I E W
 
         
 
                                                      R E O P E N I N G:
 
                Employer,
 
                                         :            D E C I S I O N
 
          and
 
         
 
          NORTHWESTERN NATIONAL INSURANCE
 
          GROUP,
 
          
 
                Insurance Carrier,
 
                Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening from a memorandum 
 
         of agreement and partial commutation which has been brought by 
 
         Ella Sharp against Banco Mortgage Company, her former employer, 
 
         and Northwestern National Insurance Group, the employer's 
 
         insurance carrier.  The case was heard and fully submitted at 
 
         Waterloo, Iowa on July 18, 1988.  The record in this proceeding 
 
         consists of testimony from Ella Sharp, Kevin Sharp, Rodney Sharp 
 
         and Delores Sisk. The record also contains claimant's exhibits 1 
 
         through 22 and defendants' exhibits 1 through 5.
 
         
 
                                      ISSUES
 
         
 
              The claimant seeks additional compensation for healing 
 
         period, permanent partial disability or permanent total 
 
         disability.  The issues to be determined are whether there has 
 
         been a change of condition as would permit review-reopening and 
 
         reconsideration of the award since the partial commutation was 
 
         approved in December, 1980; whether claimant's physical 
 
         disability was proximately caused by the injury she sustained on 
 
         October 2, 1978 at her place of employment; and, determination of 
 
         her entitlement to additional weekly compensation.  Claimant's 
 
         claim to recover section 85.27 benefits is not considered because 
 
         the claim was not identified as an issue on the hearing 
 
         assignment order.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed.
 
         
 
         
 
         SHARP V. BANCO MORTGAGE COMPANY 
 
         Page 2
 
         
 
         
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Ella Sharp is a 50-year-old lady whose formal education 
 
         consists of a GED and one year of business college.  Claimant has 
 
         been a homemaker.  She has also worked as a hospital maid and a 
 
         dishwasher.
 
         
 
              In approximately 1970, claimant was attending Gates Business 
 
         College in Waterloo.  She dropped out of the bookkeeping, 
 
         accounting and secretarial program in order to accept employment 
 
         with Banco Mortgage Company.  Claimant testified that she handled 
 
         escrow payments for insurance and taxes.  She issued checks, 
 
         analyzed accounts for sufficiency and adjusted the accounts.  At 
 
         the time claimant was injured in 1978, she had three or four 
 
         people working under her and was the senior escrow clerk.
 
         
 
              On October 2, 1978, claimant was walking to leave the 
 
         building when she tripped over carpeting and fell, landing on her 
 
         abdomen and hands.  Claimant stated that, initially, she did not 
 
         seem to be injured, but that her back and shoulders began 
 
         bothering and that, by the following day, her pain was so severe 
 
         that she sought medical treatment.  Claimant was seen by D. A. 
 
         Kerfoot, M.D., and was hospitalized at Schoitz Hospital where she 
 
         was treated (claimant's exhibits 13 and 19; defendants' exhibit 
 
         4).  Claimant made some improvement and was released from the 
 
         hospital, but her symptoms worsened and she was rehospitalized 
 
         for approximately three weeks.  Claimant testified that, after 
 
         being released from the hospital, she remained at home, had 
 
         therapy and took medication.  Claimant stated that she was 
 
         disabled and unable to do anything around her home.
 
         
 
              In April, 1980, claimant returned to work, but worked only 
 
         approximately three weeks.  She stated that she went to therapy 
 
         every day, but had problems with her back and leg.  She underwent 
 
         a myelogram at Schoitz Hospital and then underwent surgery which 
 
         was performed by John R. Walker, M.D., on July 10, 1980.  
 
         Claimant stated that the surgery relieved some of the pain-in her 
 
         low back, but that she still had other pains.
 
         
 
              On November 13, 1980, claimant signed settlement documents 
 
         for a partial commutation, which was approved in December, 1980. 
 
         on the face of the original notice and petition for partial 
 
         commutation, the following statement appears:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant has just been informed by Banco Mortgage Company 
 
              that it has no employment for her at this time and she needs 
 
              funds to support her family and herself.
 
         
 
              Claimant's handwritten statement which appears in the agency 
 
         file seems to indicate that the key words in the statement
 
         
 
         
 
         SHARP V. BANCO MORTGAGE COMPANY 
 
         Page 3
 
         
 
         
 
         are "at this time" since it states, in part:
 
         
 
              I am requesting a lump sum of the permanent partial 
 
              disability due me.  I wish to draw all of the balance except 
 
              20 weeks ... I wish to draw the 20 weeks as I return back to 
 
              work weekly.
 
         
 
         Claimant did return to work in December, 1980 in accordance with 
 
         a release from Dr. Walker.  She worked in the "235" loan 
 
         department where she received loan payments.  Claimant continued 
 
         to work until October, 1981.  Claimant stated that it was 
 
         difficult for her to work and that she would come home and go to 
 
         bed.  She stated that she was unable to take care of her home and 
 
         had therapy.  Claimant has not worked anywhere since October, 
 
         1981.  Claimant stated that, in November, 1981, she was 
 
         rehospitalized for three weeks and underwent traction.  She 
 
         stated that she was again hospitalized in May, 1982.  Claimant 
 
         stated that, when she returned to work in December, 1980, it was 
 
         like a test.  She stated that she wanted to work and had tried to 
 
         work.  Claimant stated that her condition-now is about the same 
 
         as it was since she was originally injured, but that after she 
 
         returned to work, the pain intensified.
 
         
 
              Claimant testified that she has pain running from her neck 
 
         and shoulders down to her tailbone and that she has pain down the 
 
         back of her leg to the knee and down to her last three toes.  She 
 
         stated that most of her pain is on the left, but that she also 
 
         has some on the right side.  Claimant stated that she is unable 
 
         to perform housework.  She stated that sometimes she can fix her 
 
         own meals, but that on other days she has pain and leg spasms 
 
         which prevent her from doing anything.  Claimant wore a 
 
         cervical.collar at hearing and stated that Dr. Walker had 
 
         recommended use of a back brace and neck brace.  She receives 
 
         therapy at the Burlington Hospital.  Claimant stated that her 
 
         left leg has some kind of mechanical malfunction and that if she 
 
         stands for more than ten minutes, it becomes numb.  Claimant 
 
         stated that she can walk a maximum of two blocks and that she can 
 
         sit for up to an hour on a good day.  Claimant stated that she 
 
         would be unable to go back to Banco and has not looked for any 
 
         work because there is none she can do.  She stated that she is 
 
         unable to even do work at home or to be up all day.  Claimant 
 
         moved from Waterloo to Burlington in July, 1985.  Claimant stated 
 
         that she lives with her daughter and that her daughter takes care 
 
         of her.  Claimant's son and grandchildren also live in the same 
 
         house.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that all the doctors she has seen have 
 
         advised her to lose weight and that she has lost weight, but has 
 
         not noticed any difference in her pain level.  Claimant stated 
 
         that she has no social life, but sometimes goes to church or 
 
         talks on the telephone.  She stated that she listens to tapes 
 
         from her pastor to help her spirits.
 
         
 
         
 
         SHARP V. BANCO MORTGAGE COMPANY
 
         Page 4
 
         
 
         
 
              Claimant uses a cane in her right hand which she stated that 
 
         Koert Smith, M.D., gave to her in 1986.
 
         
 
              At the present time, claimant subsists on $253.90 per month 
 
         from her employer's long-term disability plan and $348.00 per 
 
         month from Social Security disability.  She has been covered by 
 
         Medicaid since July, 1986.
 
         
 
              Kevin Sharp, claimant's son, lives in Waterloo, Iowa.  Kevin 
 
         testified that he was 14 years of age when claimant was injured 
 
         and that he then took over responsibilities in the home including 
 
         getting groceries, paying bills and running errands.  Kevin 
 
         stated that he was age 21 when claimant moved to Burlington and 
 
         that he remained in Waterloo.
 
         
 
              Kevin testified that his mother is no longer able to be 
 
         active in church.  He stated that she was in the hospital when he 
 
         graduated from high school and never saw him play football.  
 
         Kevin stated that he phones her and goes to visit her in 
 
         Burlington.  He testified that he has seen her cry a lot and that 
 
         she seems depressed.
 
         
 
              Rodney Sharp is also claimant's son.  He lived with claimant 
 
         until she moved to Burlington and then, in December, 1987, he 
 
         also moved to Burlington in order to help take care of her.  
 
         Rodney stated that he washes clothes and helps take care of the 
 
         house.  In order to move to Burlington, he had to quit a job in 
 
         Waterloo which he had held for five years.
 
         
 
              Rodney stated that claimant spends a lot of time in bed and 
 
         that she is helpless and cannot get around.  He stated that she 
 
         is hurting all the time.  Rodney testified that, prior to the 
 
         accident now under consideration, claimant was in good health and 
 
         had nothing wrong with her.
 
         
 
              Delores Sisk, who lives at Cedar Falls, Iowa and goes with 
 
         Rodney Sharp, testified that she first met claimant in 1981 when 
 
         they both rode the same bus, a time prior to when she started 
 
         going with Rodney.  Delores stated that, when riding the same 
 
         bus,she could see that claimant was in pain.
 
         
 
              Delores testified that she has helped take care of claimant 
 
         and has performed housework in claimant's home up to the time 
 
         that claimant moved to Burlington.  She stated that claimant 
 
         ,spends a lot of time in bed, even on holidays.  Delores felt 
 
         that claimant's condition is about the same now as it was when 
 
         she first met claimant in 1981.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant stated that, in 1973, she was involved in an 
 
         automobile accident which injured her back, but that she 
 
         recovered from it and had no residual problems.  Claimant denied 
 
         sustaining any injuries since October 2, 1978.
 
         
 
         
 
         SHARP V. BANCO MORTGAGE COMPANY
 
         Page 5
 
         
 
         
 
              Since 1978, claimant has been seen by a number of 
 
         physicians.  D. A. Kerfoot, M.D., who had treated her in 1973 
 
         following the automobile accident, indicated in the clinical 
 
         history from her initial treatment following the fall that she 
 
         had acute traumatic myositis.  He found her to have extreme 
 
         muscle spasms in her back.  He stated that, prior to the fall at 
 
         work, she had no pains whatsoever.  Dr. Kerfoot remarked that 
 
         claimant had made a remarkable recovery from her automobile 
 
         accident, that she does not complain, and that her symptoms are 
 
         very genuine.  He also indicated that she was very intelligent 
 
         and grossly overweight, her weight being 263 pounds (defendants' 
 
         exhibit 4).
 
         
 
              Koert Smith, M.D., treated claimant in Burlington, Iowa for 
 
         complaints regarding her hands and arms.  He performed bilateral 
 
         carpal tunnel release surgery during which it was found that her 
 
         median nerve was markedly restricted (defendants' exhibit 2).  In 
 
         a report dated June 3, 1988, Dr. Smith declined to express an 
 
         opinion concerning the cause of claimant's physical problems and 
 
         complaints (claimant's.exhibit 1).
 
         
 
              John R. Walker, M.D., an orthopaedic surgeon, treated 
 
         claimant commencing shortly after the fall.  In a report dated 
 
         June 26, 1987, Dr. Walker provided a reasonably accurate summary 
 
         of his treatment of claimant, including the extensive lumbar 
 
         spine surgery which he performed.  In that 1987 report, Dr. 
 
         Walker stated:
 
         
 
              OPINION:  The patient has the following problems:
 
         
 
              1.) She has a chronic sprain of the cervical spine 
 
         with-x-ray changes at           the C-3 disc in the form of 
 
         spondylosis.
 
         
 
              2.) She appears to have chronic sprains in the general 
 
         region and                      decompensation of the dorsal 
 
         spine of her scoliotic curve.
 
         
 
              3.) She has the residuals of spinal surgery and injury to 
 
         the low back                    with sciatica, particularly on 
 
         the left side.
 
         
 
              4.) She has a chronic sprain of the left sacroiliac joint.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              5.) She has a contracted left shoulder.  I would suspect 
 
         that she has a                  torn rotator cuff but I cannot 
 
         be sure.
 
         
 
              6.) She is markedly overweight yet although she has 
 
         apparently had some             success with her so called 
 
         band-aid surgery.
 
         
 
         
 
         SHARP V. BANCO MORTGAGE COMPANY 
 
         Page 6
 
         
 
         
 
              At the present time this patient is totally disabled and 
 
              though she may need some surgery, I think to start out on a 
 
              program for her would be a mistake in-as-much as she will 
 
              never get well and I don't think she was going to get enough 
 
              relief out of any surgical procedures indicated.
 
              
 
              The patient should continue with weight loss but as far as 
 
              future work is concerned or training or rehabilitation I see 
 
              no chance for this patient.  She is 100% disabled.
 
         
 
              In a subsequent report dated June 1, 1988, Dr. Walker 
 
         further addressed claimant's condition:
 
         
 
              Opinion: This patient is obviously 100 % disabled and there 
 
              is no question in my mind that, taking in regard her 
 
              history, the tripping and failing over the roll of carpet is 
 
              the proximate cause of her 100% disability.  She is still 
 
              overweight but seems to be trying, at least she has lost 
 
              some 33 pounds and this is a step in the right direction.  
 
              She does need some surgery, but there are so many areas of 
 
              pain and discomfort that I think one operations [sic] is not 
 
              going to be the answer and she is going to have to be 
 
              sedentary the rest of her life.
 
              
 
              It is my opinion that her healing-period has certainly been 
 
              established at this time and her condition is, in the sense 
 
              of the word, "become stabilized."
 
              
 
              I do not believe that she is retrainable and I believe that 
 
              Vocational Rehabilitation would be a waste of time.  A Pain 
 
              Clinic might help her as far as her pain and discomfort is 
 
              concerned and I would certainly suggest this be carried out 
 
              somewhere, perhaps, in Minneapolis or even the Des Moines 
 
              area can be done very nicely.  Locally I think the pain 
 
              clinics have something to be desired and if the money is to 
 
              be expended, perhaps one of the large centers should be 
 
              contacted.  As far as employability is concerned - she must 
 
              lead a sedentary life and this patient is absolutely 
 
              unemployable in any job that I can even imagine.
 
         
 
              I am sorry to give you this very gloomy report, but Miss 
 
              Sharp has been a faithful and cooperative patient, but I 
 
              told her she is going to have to live with this, in my 
 
              opinion.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              In summary, Dr. Walker felt that claimant was totally 
 
         disabled and that the fail she sustained in 1978 was the cause of 
 
         that disability.
 
         
 
         
 
         SHARP V. BANCO MORTGAGE COMPANY 
 
         Page 7
 
         
 
         
 
              Claimant was also evaluated at Health and Fitness 
 
         Consultants.
 
         The conclusion reached by Forrest Dolgener,  Ph.D., was:
 
         
 
              INTERPRETATION AND CONCLUSION:
 
         
 
              Ella Sharp is severely limited in her ability to perform 
 
              normal routine daily tasks   The diffuse involvement of the 
 
              spine and the left shoulder and arm makes it impossible for 
 
              her to perform tasks that require any physical exertion.  
 
              She is limited in the performance of non-physical tasks by 
 
              her inability to sit for longer than an hour at a time.  Her 
 
              low energy level appears to be due to her extreme sedentary 
 
              lifestyle and her inability to get restful and prolonged 
 
              sleep at night.  Her back problems directly cause these 
 
              manifestations.
 
         
 
              Claimant was also evaluated and seen on a number of 
 
         occasions by Winthrop S. Risk, M.D., a neurologist.  After Dr. 
 
         Risk first examined claimant, he issued a report dated November 
 
         18, 1982 in which he stated:
 
         
 
              There is no question that she has pain.  The real issue, 
 
              however, is whether or not her pain can be satisfactorily 
 
              controlled, her depression treated and her tolerance of her 
 
              symptoms sufficiently increased to allow a return to work.
 
         
 
              Under Dr. Risk's direction, claimant was hospitalized on 
 
         June 26, 1983.  His findings following the testing that was 
 
         conducted are as follows:
 
         
 
              The diffuse nature of her pain suggests more that [sic] the 
 
              arachnoiditis is the underlying cause.  Surgical treatment 
 
              of that condition is frequently unsatisfactory.  The spinal 
 
              stenosis, however, appears to be severe enough that it 
 
              should be eliminated surgically in order to exclude it as 
 
              possibly contributing factor to the patient's symptoms in 
 
              the low back and left leg.
 
              
 
              The etiology of her symptoms in the left shoulder may be 
 
              related to the degenerative changes identified on her 
 
              radiologic studies in the cervical spine.  In view of her 
 
              obesity, a thoracic outlet syndrome is another possibility.
 
              
 
              Finally, the question remains to what extent any of her 
 
              present problems are directly related to her fall on the job 
 
              in October of 1978.  Since the spinal stenosis and the 
 
              arachnoiditis were not present at that time, it would appear 
 
              that these problems are not directly related to the fall at 
 
              work, but are
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              
 
         SHARP V. BANCO MORTGAGE COMPANY 
 
         Page 8
 
         
 
         
 
              at least in part a consequence of the progressive 
 
              deterioration of the patient's spine associated with her 
 
              massive obesity, which she has been unsuccessful in 
 
              controlling.  Whether or not the arachnoiditis is a 
 
              complication from her Pantopaque myelogram cannot be stated 
 
              with certainty.
 
         
 
              In a subsequent report dated February 22, 1988, Dr. Risk 
 
         stated:
 
         
 
              In the absence of other identifiable pathology, and in the 
 
              absence of any evidence the patient suffered from these 
 
              problems immediately preceeding [sic] her fall over the 
 
              carpet, there is at present no objective evidence to 
 
              contradict the patient's claim that her present pain 
 
              disorder is a direct consequence of her injury on the job.
 
              
 
              Thank you for requesting my assistance.
 
              
 
              In summary, Dr. Risk felt that claimant was totally 
 
         disabled.  He was unable to determine how much of her disability 
 
         was caused by the 1978 injury and how much that injury 
 
         accelerated the ongoing, progressive degenerative condition with 
 
         which claimant is afflicted (defendants' exhibit 1, pages 19-22).
 
         
 
              Dr. Risk felt that claimant's symptoms were embellished 
 
         (defendants' exhibit 1, pages 6-19).  Dr. Risk also stated that 
 
         claimant has other unrelated conditions including diabetes, high 
 
         blood pressure and carpal tunnel syndrome that also contributed 
 
         to her disability (defendants' exhibit 1, page 22).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              In a review-reopening proceeding, the claimant has the 
 
         burden of establishing that she suffered an impairment or 
 
         lessening of her earning capacity as a proximate result of the 
 
         original injury, subsequent to the date of the award or agreement 
 
         for compensation, which entitles her to additional compensation. 
 
         Deaver v. Armstrong Rubber Co., 170 N.W.2d 455, 457 (Iowa 1969).  
 
         The change of condition can be a failure to improve to the extent 
 
         anticipated at the time the settlement was entered into. Meyers 
 
         v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 
 
         1978); Bird v. T H I Command Hydraulics, file number 692197, 
 
         (App.  Decn., March 31, 1989).  The change of condition can be a 
 
         change of earning capacity which occurs without any concurrent 
 
         change in physical condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348 (Iowa 1980); McSpadden v. Big Ben Coal Co., .288 
 
         N.W.2d 181, 192 (Iowa 1980).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The record in this case, particularly when considered in 
 
         light of claimant's embellishment of her symptoms, fails to 
 
         demonstrate any major, clear-cut, discernable change in her 
 
         physical condition that has occurred since the time the
 
         
 
         
 
         SHARP V. BANCO MORTGAGE COMPANY 
 
         Page 9
 
         
 
         
 
         commutation was entered in December, 1980.  It is noted that 
 
         claimant entered into the commutation in November and that the 
 
         statements in support of the commutation were based upon 
 
         conditions as they existed in November, prior to the time that 
 
         claimant returned to employment.  At the time of the commutation, 
 
         claimant clearly intended to return to work and she did in fact 
 
         return to work.  The fact that the attempt to return to work was 
 
         unable to be sustained on a continuing basis and was ultimately 
 
         unsuccessful constitutes a change of economic condition which was 
 
         not anticipated at the time the commutation settlement was 
 
         entered into.  It is apparent that, at the time of the 
 
         commutation settlement, it was expected and anticipated by all 
 
         parties that claimant would be able to resume gainful employment.  
 
         The fact that the attempt to resume gainful employment was not 
 
         successful constitutes ample grounds to reconsider the amount 
 
         that was awarded.
 
         
 
              As previously stated, there has been no demonstration that 
 
         claimant's condition has changed appreciably.  Both Dr. Walker 
 
         and Dr. Risk feel that claimant is .totally disabled.  While 
 
         claimant's complaints and symptoms are embellished and 
 
         exaggerated as indicated by Dr. Risk, she also does have 
 
         objective physical abnormalities which corroborate her 
 
         complaints.  It is only the degree of the complaints that is 
 
         found to be embellished.  Claimant's appearance and demeanor was 
 
         observed and considered when she testified as was the appearance 
 
         and demeanor of the three witnesses she called.  The testimony 
 
         given by the three witnesses is accepted as being correct and 
 
         claimant's own testimony is accepted as being correct, subject to 
 
         exaggeration of her symptoms.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962).
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:    "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              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
 
         
 
         
 
         SHARP V. BANCO MORTGAGE COMPANY
 
         Page 10
 
         
 
         
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted. Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              It is clear to the undersigned, having observed her 
 
         appearance and demeanor and having considered the evidence in the 
 
         record, that Ella Sharp is permanently and totally disabled.  
 
         Even Dr. Risk, who found her symptoms and complaints to be 
 
         embellished, agreed that she was totally impaired.  When all the 
 
         relevant factors of industrial disability such as claimant's age, 
 
         experience, education, general qualifications and work experience 
 
         are considered, there is no gainful employment in the competitive 
 
         labor market of which the undersigned is aware that claimant 
 
         could perform.  The test of permanent total disability is whether 
 
         the worker is capable of obtaining regular employment in which 
 
         the worker can be self-supporting.  McSpadden v. Big Ben Coal 
 
         Co., 282 N.W.2s 181, 192 (Iowa 1980); Diederich v. Tri-City 
 
         Railway, 219 Iowa 587, 594, 258 N.W. 899, 902 (1935).  It is 
 
         clear that Ella Sharp is totally disabled, even when the 
 
         embellishment of her symptoms is considered.  In this case, it is 
 
         not necessary to rely upon the odd-lot doctrine to reach this 
 
         conclusion.
 
         
 
              Clearly, a portion of  claimant's  overall  disability is a 
 
         result of her obesity.  She is afflicted with a degenerative 
 
         condition which certainly did not have its origin with the 1978 
 
         fall.  The standard of proof, however, is proof by a 
 
         preponderance of the evidence.  The element to be proved is 
 
         proximate cause.  A cause is proximate if it is a substantial 
 
         factor in bringing about the result.  'It need not be the only 
 
         cause.  Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 
 
         (Iowa 1980).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Risk was unable to apportion claimant's current status 
 
         of total disability among that which resulted from the 1978 fall 
 
         rather than from other sources.  Claimant testified that she was 
 
         symptom-free prior to the time that she fell in 1978 and that, 
 
         since then, she has been quite symptomatic.  Defendants did not 
 
         introduce any evidence from coworkers or any other
 
         
 
         
 
         SHARP V. BANCO MORTGAGE COMPANY
 
         Page 11
 
         
 
         
 
         source to contradict this testimony.  Claimant's testimony in 
 
         that regard is accepted as being correct.  An injured party is 
 
         not charged with the burden of proving the actual apportionment 
 
         of damages in a case that deals with-aggravation of a preexisting 
 
         condition.  Any burden of that nature must be assumed by the 
 
         defendant, since the defendant is the party standing to gain by 
 
         litigating the apportionment issue.  If the evidence is not 
 
         sufficient to apportion the disability, then the defendant is 
 
         responsible for all the disability that exists.  Varied 
 
         Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984); Becker 
 
         v. D & E Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); 2 
 
         Damages in Tort Actions, section 15.34(l)(a); 22 Am.Jur.2d, 
 
         section 122.  Claimant likely did have a preexisting condition 
 
         affecting her spine and giving her a high propensity for 
 
         developing degenerative problems regarding her spine.  
 
         Nevertheless, when the normal rules of aggravation of a 
 
         preexisting condition and apportionment of damages are applied 
 
         together with the normal rules of proximate cause, it is 
 
         determined that the injury of October 2, 1978 is a proximate 
 
         cause of the disability which currently afflicts claimant 
 
         regarding her spine.  It is further determined that the injury 
 
         aggravated a preexisting condition.  The evidence fails to 
 
         provide any basis for apportionment of disability since claimant 
 
         was asymptomatic prior to the time she fell.  Further, when an 
 
         injury produces permanent total disability, there is no practical 
 
         way in which to apportion out preexisting disability since to do 
 
         so would require an interruption of benefits at a time when the 
 
         claimant is totally disabled and unable to be self-supporting.  
 
         To provide for an interruption or reduction of benefits at the 
 
         time when they are most needed would be wholly inconsistent with 
 
         the beneficient purpose of the workers' compensation statutes.  
 
         Brown v. Nissen Corporation, file number 837608, (Arb. Decn., 
 
         June 29, 1988); Loftus v. Waterloo Community School District, 
 
         file number 777678 and file number 748818, (Arb.  Decn., March 
 
         30, 1989).
 
         
 
              It is therefore determined that defendants are responsible 
 
         for payment of permanent total disability compensation to Ella 
 
         Sharp commencing on the date of this decision.  This 
 
         review-reopening is based upon a change of condition.  Where it 
 
         is necessary to show a change of condition in order to avoid the 
 
         normal preclusive effect of the prior settlement, any additional 
 
         compensation which is awarded runs from the date of the decision 
 
         which awards it.  Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 
 
         N.W.2d 109 (1957).  It should be noted that the substantial 
 
         amount of time running from the time claimant left work in 
 
         October, 1981 until the date of this decision would more than 
 
         adequately offset any preexisting permanent partial disability 
 
         which could have arguably affected claimant.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
         1.    Ella Sharp is not physically capable of engaging in 
 
         substantial gainful employment which would enable her to be 
 
         self-supporting.
 
         
 
         
 
         SHARP V. BANCO MORTGAGE COMPANY
 
         Page 12
 
         
 
         
 
         2.    The fall that Ella Sharp sustained on October 2, 1978 is a 
 
         substantial factor in producing that disability.
 
         
 
         3.    The fall of 1978 was likely an aggravation of a 
 
         preexisting, but previously asymptomatic, condition affecting 
 
         claimant's spine.
 
         
 
         4.   It is not possible to apportion claimant's current state of 
 
         total disability between the portion thereof that was caused by 
 
         the fall that occurred on October 2, 1978 and the portion that is 
 
         attributable to other preexisting factors.
 
         
 
         5.    In view of claimant's obesity, degenerative condition, 
 
         diabetes, high blood pressure and other ailments, she likely 
 
         would have eventually become totally disabled, even if she had 
 
         not fallen on October 2, 1978.  The fall, however, accelerated 
 
         that process by an amount which cannot be determined.
 
         
 
         6.   The testimony given by the three-witnesses called by 
 
         claimant is accepted as being correct.  Claimant's own testimony 
 
         is accepted as being substantially correct except that her 
 
         description of her complaints is exaggerated.
 
         
 
         7.   At the time the commutation settlement was entered into in 
 
         November, 1980, it was expected that claimant would be able to 
 
         resume gainful employment at Banco Mortgage Company.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
         1.   This agency has jurisdiction of the subject matter
 
         of this proceeding and its parties.
 
         
 
         2.   Ella Sharp is permanently, totally disabled within
 
         the provisions of Code section 85.34(3).
 
         
 
         3.    Claimant's inability to maintain regular, gainful 
 
         employment following her return to work in December, 1980 
 
         constitutes a substantial change in condition which was not 
 
         anticipated at the time the partial commutation settlement was 
 
         entered into in November, 1980 and permits reconsideration of 
 
         claimant's case under the provisions of Iowa Code section 
 
         86.14(2).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         4.    Claimant established, by a preponderance of the evidence, 
 
         that the fall she sustained on October 2, 1978 was a proximate 
 
         cause of the total disability which currently afflicts her.
 
         
 
         5.    Defendants failed to prove, by a preponderance of the 
 
         evidence, any evidentiary basis for apportioning claimant's total 
 
         disability to any cause or causes other than the fall.
 
         
 
         
 
         SHARP V. BANCO MORTGAGE COMPANY
 
         Page 13
 
         
 
         
 
         6.    Claimant's entitlement to compensation for permanent total 
 
         disability is payable commencing on the date of this decision.
 
         
 
         7.   Where permanent total disability results from an injury, no 
 
         reduction or waiting period is applied to the weekly 
 
         compensation.benefits based upon any preexisting disability.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant weekly 
 
         compensation for permanent total disability at the stipulated 
 
         rate of one hundred three and 34/100 dollars ($103.34) per week 
 
         payable commencing on the date of this decision and continuing 
 
         hereafter for so long as claimant remains totally disabled.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
              Signed and filed this 20th day of April,1989.
 
         
 
         
 
                                                                               MICHAEL G. TRIER
 
                                         DEPUTY INDUSTIRAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John E. Behnke
 
         Attorney at Law
 
         Box F
 
         Parkersburg, Iowa  50665
 
         
 
         Mr. Jay P. Roberts
 
         Attorney at Law
 
         300 WSB Building
 
         P.O. Box 1200
 
         Waterloo, Iowa 50704
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                      1302.1, 1403.30, 1804
 
                                                      1806, 2206,. 2905, 3800
 
                                                      Filed April 20, 1989
 
                                                      MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ELLA SHARP,
 
         
 
               Claimant,
 
          
 
          VS.                            :      File No. 513309
 
         
 
         BANCO MORTGAGE COMPANY,                 R E V I E W -
 
         
 
              Employer,                          R E 0 P E N I N G
 
         
 
         and                                     D E C I S I 0 N
 
         
 
         
 
          NORTHWESTERN NATIONAL INSURANCE
 
          GROUP,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         1302.1, 2905
 
         
 
              Claimant, an obese lady, fell at work and injured her back.  
 
         After an extended period of recuperation, she entered into a 
 
         partial commutation settlement at which time it was expected that 
 
         she would return to work.  She did return to work, but the return 
 
         could not be sustained due to her symptoms and disabilities.  
 
         Such was held to be a sufficient change of condition to warrant 
 
         reconsideration of the award made at the time of the commutation.
 
         
 
         1403.30, 1804, 1806, 2206
 
         
 
              Both  of the primary physicians in the case were of the 
 
         opinion..on that claimant was totally impaired or totally 
 
         disabled, despite the fact that one physician felt that her 
 
         symptoms were exaggerated or embellished.  Both physicians agreed 
 
         that the fall was a cause of the claimant's readily apparent 
 
         total disability.  The employer's physician stated that there 
 
         were also contributing factors, but he was unable to make any 
 
         apportionment or division of those other factors.  The employer's 
 
         doctor felt that claimant had a progressive condition which would 
 
         have eventually disabled her.  He felt that the fall had 
 
         aggravated and accelerated that process, but could express no 
 
         opinion as to how much it had aggravated or accelerated the 
 
         process.  Claimant's testimony that she had been asymptomatic 
 
         prior to the time of the fall was not directly refuted by any 
 
         evidence
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SHARP V. BANCO MORTGAGE COMPANY
 
         Page 2
 
         
 
         
 
         in the record.  Claimant awarded permanent total disability.  No 
 
         waiting period or other reduction is applied, based upon 
 
         preexisting disability, when permanent total disability results.
 
         
 
         2905, 3800
 
         
 
              The permanent total disability award was held payable on the 
 
         date of the decision which awarded it since this is a 
 
         review-reopening case in which it was necessary to show a change 
 
         of condition.  No interest awarded.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        GEORGE ARMSTRONG,
 
        
 
            Claimant,
 
        
 
        vs.                                     File No. 515778
 
        
 
        DEPARTMENT OF BUILDINGS                   A P P E A L
 
        & GROUNDS,
 
                                                D E C I S I O N
 
            Employer,
 
        
 
        and            
 
        
 
        STATE OF IOWA,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from a review-reopening decision awarding 
 
        benefits for temporary total disability but denying further 
 
        benefits for permanent partial disability.
 
        
 
        The record on appeal consists of the transcript of the 
 
        review-reopening hearing; claimant's exhibits 1 through 4; and 
 
        defendants' exhibits 1 through 8. Both parties filed briefs on 
 
        appeal.
 
        
 
                                      ISSUES
 
        
 
        Claimant states the following issues on appeal: "The issues in 
 
        this case are whether Mr. Armstrong is entitled to additional 
 
        industrial disability benefits and whether he is an 'odd lot' 
 
        employee."
 
        
 
                                 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
 
        
 
        The citations of law contained in the review-reopening decision 
 
        are appropriate to the issues and evidence.
 
        
 
        ARMSTRONG V. DEPARTMENT OF BUILDINGS & GROUNDS
 
        Page 2
 
        
 
                                      ANALYSIS
 
        
 
        The deputy's analysis of the evidence in conjunction with
 
        the law is adopted.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant sustained an injury July 26, 1978 which arose out of 
 
        and in the course of his employment and for which claimant 
 
        underwent hernia repair surgery.
 

 
        
 
 
 
 
 
        
 
        2. In the appeal decision filed July 15, 1981 claimant was found 
 
        to have a low level anxiety for which he was awarded 10 percent 
 
        permanent partial disability.
 
        
 
        3. Claimant underwent recurrent hernia repair surgery on or about 
 
        March 28, 1986 which surgery related to his original 1978 injury.
 
        
 
        4. Dr. From assigned claimant a permanent partial impairment to 
 
        the body as a whole following such surgery and imposed a 25 pound 
 
        lifting restriction on claimant.
 
        
 
        5. Claimant's recovery period following the repair surgery lasted 
 
        fourteen weeks.
 
        
 
        6. Claimant's actual activity restrictions have remained 
 
        substantial]y similar since his July 1978 injury.
 
        
 
        7. Claimant suffers from numerous medical conditions other than 
 
        his work-related recurrent hernia including past bladder tumors, 
 
        leg circulation surgery, prostrate surgery, and bypass surgery.
 
        
 
        8. Claimant had a severe heart attack in 1982. As a result, he 
 
        must be much more careful and cannot get excited as he suffers if 
 
        he makes a strenuous effort.
 
        
 
        9. Claimant was 70 years old at the time of the hearing.
 
        
 
        10. Any change in claimant's permanent earning capacity since the 
 
        initial hearing in this matter is not proximately caused by his 
 
        1978 injury.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has established a temporary change in his condition 
 
        since the initial hearing in this matter which is related to the 
 
        July 26, 1973 work injury.
 
        
 
        Claimant is entitled to 14 weeks of temporary total disability
 
        benefits commencing on March 28, 1986.
 
        
 
        
 
        ARMSTRONG V. DEPARTMENT OF BUILDINGS & GROUNDS
 
        Page 3
 
        
 
        Claimant has not established a permanent change in his condition 
 
        which is causally related to the July 26, 1978 work injury.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants pay claimant fourteen (14) weeks of temporary 
 
        total disability at the rate of ninety-nine and 04/100 dollars 
 
        ($99 .4) commencing on March 28, 1986.
 
        
 
        That defendants pay accrued amounts in a lump sum.
 
        
 
        That defendants pay interest pursuant to section 85.30.
 
        
 
        That defendants pay costs of the hearing proceeding and claimant 
 
        pay the costs of the appeal including the cost of the 
 
        transcription of the hearing proceeding.
 
        
 

 
        
 
 
 
 
 
        That defendants are to file an activity report upon payment of 
 
        this award as requested by this agency pursuant to Division of 
 
        Industrial Services Rule 343-3.1.
 
        
 
        
 
        Signed and filed this 23rd day of August, 1988.
 
        
 
                                         DAVID LINQUIST
 
                                     INDUSTRIAL COMMISSIONER
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GEORGE ARMSTRONG,
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 515778
 
         
 
         DEPARTMENT OF BUILDINGS                      A P P E A L
 
         & GROUNDS,
 
                                                    D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening decision awarding 
 
         benefits for temporary total disability but denying further 
 
         benefits for permanent partial disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing; claimant's exhibits 1 through 4; and 
 
         defendants' exhibits 1 through 8.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issues on appeal:  "The issues 
 
         in this case are whether Mr. Armstrong is entitled to additional 
 
         industrial disability benefits and whether he is an 'odd lot' 
 
         employee."
 
         
 
                              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
 
         
 
              The citations of law contained in the review-reopening 
 
         decision are appropriate to the issues and evidence.
 
                                     ANALYSIS
 
         
 
              The deputy's analysis of the evidence in conjunction with 
 
         the law is adopted.
 
         
 
                                 FINDINGS OF FACT
 

 
         
 
         
 
         
 
         ARMSTRONG V. DEPARTMENT OF BUILDINGS & GROUNDS
 
         PAGE   2
 
         
 
         
 
         
 
              1.  Claimant sustained an injury July 26, 1978 which arose 
 
         out of and in the course of his employment and for which claimant 
 
         underwent hernia repair surgery.
 
         
 
              2.  In the appeal decision filed July 15, 1981 claimant was 
 
         found to have a low level anxiety for which he was awarded 10 
 
         percent permanent partial disability.
 
         
 
              3.  Claimant underwent recurrent hernia repair surgery on or 
 
         about March 28, 1986 which surgery related to his original 1978 
 
         injury.
 
         
 
              4.  Dr. From assigned claimant a permanent partial 
 
         impairment to the body as a whole following such surgery and 
 
         imposed a 25 pound lifting restriction on claimant.
 
         
 
              5.  Claimant's recovery period following the repair surgery 
 
         lasted fourteen weeks.
 
         
 
              6.  Claimant's actual activity restrictions have remained 
 
         substantially similar since his July 1978 injury.
 
         
 
              7.  Claimant suffers from numerous medical conditions other 
 
         than his work-related recurrent hernia including past bladder 
 
         tumors, leg circulation surgery, prostrate surgery, and bypass 
 
         surgery.
 
         
 
              8.  Claimant had a severe heart attack in 1982.  As a 
 
         result, he must be much more careful and cannot get excited as he 
 
         suffers if he makes a strenuous effort.
 
         
 
              9.  Claimant was 70 years old at the time of the hearing.
 
         
 
              10. Any change in claimant's permanent earning capacity 
 
         since the initial hearing in this matter is not proximately 
 
         caused by his 1978 injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established a temporary change in his condition 
 
         since the initial hearing in this matter which is related to the 
 
         July 26, 1978 work injury.
 
         
 
              Claimant is entitled to 14 weeks of temporary total 
 
         disability benefits commencing on March 28, 1986.
 
         
 
              Claimant has not established a permanent change in his 
 
         condition which is causally related to the July 26, 1978 work 
 
         injury.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant fourteen (14) weeks of 
 
         temporary total disability at the rate of ninety-nine and 04/100 
 

 
         
 
         
 
         
 
         ARMSTRONG V. DEPARTMENT OF BUILDINGS & GROUNDS
 
         PAGE   3
 
         
 
         
 
         dollars ($99.04) commencing on March 28, 1986.
 
         
 
              That defendants pay accrued amounts in a lump sum.
 
         
 
              That defendants pay interest pursuant to section 85.30.
 
         
 
              That defendants pay costs of the hearing proceeding and 
 
         claimant pay the costs of the appeal including the cost of the 
 
         transcription of the hearing proceeding.
 
         
 
              That defendants are to file an activity report upon payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 23rd day of August, 1988.
 
         
 
         
 
         
 
         
 
                                                      DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa 50312
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40; 1803
 
                                                 Filed August 23, 1988
 
                                                 David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GEORGE ARMSTRONG,
 
         
 
              Claimant,
 
                                                    File No. 515778
 
         vs.
 
                                                      A P P E A L
 
         DEPARTMENT OF BUILDINGS
 
         & GROUNDS,                                 D E C I S I 0 N
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40; 1803
 
         
 
              Claimant failed to establish a permanent change in his 
 
         condition which would entitle him to further benefits for 
 
         industrial disability.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GEORGE ARMSTRONG,
 
         
 
              Claimant,
 
                                                      File No. 515778
 
         VS.
 
         
 
         DEPARTMENT OF BUILDINGS &                     R E V I E W -
 
         GROUNDS,
 
                                                     R E 0 P E N I N G
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
              STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening brought by the 
 
         claimant, George Armstrong, against his employer, Department of 
 
         Buildings and Grounds, and its insurance carrier, State of Iowa, 
 
         to recover benefits under the Iowa Workers' Compensation Act as a 
 
         result of an injury sustained July 26, 1978.  This matter came on 
 
         for hearing before the undersigned deputy industrial commissioner 
 
         in Des Moines, Iowa, on March 6, 1987.  The record was considered 
 
         fully submitted at close of hearing but for briefs filed by both 
 
         parties.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant and of Roger F. Marquardt, as well as claimant's 
 
         exhibits 1 through 4 and defendants' exhibits 1 through 8.  
 
         Claimant's exhibit 1 is mileage expenses itemization; claimant's 
 
         exhibit 2 is a December 11, 1986 report of Dr. From; claimant's 
 
         exhibit 3 is a March 28, 1986 Veterans Administration operative 
 
         report; and claimant's exhibit 4 is a curriculum vitae of Roger 
 
         Marquardt.  Defendants' exhibit 1 is a progress note of Doctors 
 
         Hamra and Cadoret of May 1, 1980; defendants' exhibits 2, 3, 4, 
 
         and 5 are reports and progress notes of Doctors Brooks and 
 
         Cadoret from January 13, 1982 through February 16, 1982; 
 
         defendants' exhibits 6 and 7 are progress notes of Doctors 
 
         DeHamer, Hamra and and Cadoret of March 29, 1982 and May 11, 
 
         1982; defendants' exhibit 8 is a May 11, 1982 report of Dr. 
 
         From.
 
         
 
                                     ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1)  Whether a causal relationship exists between claimantOs 
 

 
         
 
         
 
         
 
         ARMSTRONG V. DEPARTMENT OF BUILDINGS & GROUNDS
 
         Page   2
 
         
 
         
 
         injury and his claimed disability;
 
         
 
              2)  Whether claimant has sustained a change of condition 
 
         since the last hearing in this matter;
 
         
 
              3)  Whether claimant is entitled to benefits and the nature 
 
         and extent of any such benefit entitlement, including the related 
 
         question of whether claimant is an odd-lot employee; and
 
         
 
              4)  Whether claimant is entitled to reimbursement of mileage 
 
         expenses under section 85.27.
 
         
 
              Claimant's rate of compensation is $99.04.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he was born July 8, 1917 and has 
 
         completed the eleventh grade.  He gave a work history primarily 
 
         involving physical labor including local route truck driving, 
 
         painting, roofing, plastering, and custodial work.  Claimant 
 
         testified that all jobs held required lifting of greater than 
 
         twenty-five pounds.  Claimant's last job was as a custodian in 
 
         the Iowa House of Representatives.  He reported that he injured 
 
         himself on July 28, 1978 while attempting to squeeze a mop 
 
         bucket.  Claimant subsequently had double hernia repair surgery.  
 
         Claimant had additional hernia surgery on March 16, 1986.
 
         
 
              Claimant testified that he has had physical problems since 
 
         the last hearing and that activities worsen the pain he feels 
 
         with his hernia.  He reported that bending over binds the hernia 
 
         as does getting out of bed a certain way.  Claimant reported that 
 
         at times his symptoms worsen  and that his March 1983 surgery 
 
         helped a little but that he probably still has problems with his 
 
         hernia.
 
         
 
              Claimant subsequently agreed that he had testified in the 
 
         September 1980 hearing that he felt he could not lift and that he 
 
         could not carry a light sack of groceries.  He agreed he 
 
         testified that he could not paint and that driving his pickup 
 
         truck was painful as well as vacuuming, walking, bowling, and 
 
         playing football and softball.  Claimant agreed he had testified 
 
         that he then had weakness in his legs, and trouble getting 
 
         dressed as well as back pain.  He agreed he had testified that he 
 
         had cut back on social gatherings after the injury and lost 
 
         approximately 90 percent of his enjoyment of sexual activity on 
 
         account of the injury.  He agreed he had then told Dr. Hines that 
 
         he had sleeping problems and was unable to work as a result of 
 
         those problems.  Claimant agreed that he had had stress and pain 
 
         since his hernia surgery and that he hadn't felt good since 1978.  
 
         Claimant has had prostrate surgery as well as the hernia surgery. 
 
          He has also had bladder tumors, leg circulation surgery, and 
 
         bypass surgery.  Claimant had a severe heart attack in 1982.  As 
 
         a result, he has had to be much more careful and cannot get 
 
         excited as he suffers if he makes a strenuous effort.
 
         
 
              Roger Franklin Marquardt testified that he is a vocational 
 
         rehabilitation specialist who examined claimant for one hour on 
 
         February 17, 1987 and then took a vocational and educational 
 
         history.  Mr. Marquardt has testified before this agency on 
 

 
         
 
         
 
         
 
         ARMSTRONG V. DEPARTMENT OF BUILDINGS & GROUNDS
 
         Page   3
 
         
 
         
 
         numerous occasions.  His qualifications are well known to the 
 
         undersigned as well as set forth in exhibit 4.  They will not be 
 
         delineated herein.  Mr. Marquardt testified that claimant's 
 
         relevant employment history involved semi-skilled to unskilled 
 
         heavy to light/medium work.  He testified that he had based his 
 
         physical restrictions for claimant on Dr. From's December 11, 
 
         1986 report in which the doctor stated that claimant should not 
 
         be lifting in excess of twenty-five pounds.  Marquardt, 
 
         therefore, had looked for light work for claimant.  Marquardt 
 
         opined that claimant had no transferable skills and that no 
 
         full-time competitive employment was available to claimant when 
 
         claimant's education, age, past skills, motivation, and 
 
         functional capacity were considered.  He reported that under the 
 
         Iowa Job Service wage survey for Polk County, the median wage for 
 
         janitorial work was now $5.20 per hour; that for general 
 
         construction, which claimant- has also performed, $9.50 per hour, 
 
         and that for light trucking driving $7.32 per hour.  Marquardt 
 
         stated that all required repetitive or occasional lifting of 
 
         twenty-five pounds or more.  Marquardt indicated that claimant 
 
         had had a stable work history when younger and that part-time 
 
         employment might be available for him, however.  He reported that 
 
         claimant could work as a hotel desk clerk or could work on 
 
         occasion delivering cars or picking up cars.  Such positions 
 
         would pay no more than minimum wage.  Marquardt stated claimant 
 
         had been willing to work at such positions provided his social 
 
         security income was not jeopardized.  He characterized claimant 
 
         as fairly active and reported that claimant now does some 
 
         chauffering for friends from which he derives a feeling of 
 
         self-worth.
 
         
 
              Marquardt stated that he was aware of claimantOs history of 
 
         alcohol abuse, but reported that the alcoholism was not noted to 
 
         be a problem for claimant as far as his ability to find 
 
         employment.  He agreed he was unaware that claimant had served a 
 
         fifty day jail term for alcohol-related reasons.  Marquardt 
 
         further agreed that he was not aware that claimant had not been 
 
         able to lift more than twenty-five to thirty pounds in 1978 even 
 
         though he was aware of claimant's back problems, his leg 
 
         weakness, and his circulatory problems.  He reported that he was 
 
         aware that claimant had heart problems, but was unaware of his 
 
         severe 1982 heart attack and subsequent bypass surgery.  He 
 
         reported that the heart condition and surgery would affect 
 
         claimant's employability.  Marquardt stated it would be 
 
         exceptional for an employer to take a chance on a 70 year old 
 
         worker.  He further stated that claimant was disabled from 
 
         full-time competitive employment on account of his various health 
 
         problems.
 
         
 
              Claimant traveled to the University of Iowa Hospitals and 
 
         Clinics for examination on February 15, 1982, March 29, 1982, and 
 
         May 11, 1982.  He reported total mileage of 672 miles.  Medical 
 
         records from the University of Iowa Hospitals and Clinics in 
 
         evidence indicate that claimant has diagnoses of alcohol abuse by 
 
         history, as well as mixed personality disorder with antisocial 
 
         traits as well as some histrionic and passive aggressive traits.
 
         
 
              A May 11, 1982 report of Paul From, M.D., states that he saw 
 
         claimant in his office on May 5, 1982.  Claimant was then 
 
         complaining of a pressure sensation in the lower abdomen, 
 

 
         
 
         
 
         
 
         ARMSTRONG V. DEPARTMENT OF BUILDINGS & GROUNDS
 
         Page   4
 
         
 
         
 
         occasional dysuria, inability to eructate or flatulate at night, 
 
         legs giving away easily, early morning awakening, and the 
 
         sensation that he was becoming older and feebler.  He noted that 
 
         on bending claimant's equilibrium was disturbed.  On walking, 
 
         claimant's legs were giving way and there was some parasthesia 
 
         with questionable cramping.  Claimant stated he was generally 
 
         slowing down and was quite depressed and experiencing family 
 
         tragedies, loss of his fiance, death of a brother, and other 
 
         problems.  Dr. From opined that claimant then was still basically 
 
         suffering from a psychological problem and that his numerous 
 
         complaints had no medical basis.  He reported that claimant 
 
         remained disabled with the disability basically that from a 
 
         psychological standpoint, but remaining extremely real to 
 
         claimant.
 
         
 
              An operative report of Barry Miller, M.D., of March 28, 
 
         1986, states that claimant has a recurrent right, direct inguinal 
 
         hernia and that Bassini repair of the right inguinal hernia was 
 
         undertaken.  Dr. Miller reported that the recurrent hernia was 
 
         obvious with a ballooning effect of the fascia of the floor of 
 
         the canal with very tough fibrous and scarred tissue.
 
         
 
              On December 11, 1986, Dr. From opined that claimant's 
 
         recurrent hernia was related to claimant's original hernia in 
 
         July 1978.  He reported that ignoring claimant's other problems 
 
         and concentrating only upon the hernia, he would anticipate a six 
 
         to eight week total disability from the hernia repair with four 
 
         to six weeks of partial disability or approximately ten to 
 
         fourteen weeks or three months for healing.  Dr. From indicated 
 
         that he would restrict claimant to not lifting more than 
 
         twenty-five pounds several times per day on account of his injury 
 
         only and not on account of his other problems.  He opined that 
 
         claimant's weak tissues indicated by the ballooning effect of 
 
         claimant's scarred and fibrous tissue and claimant's need for a 
 
         second inguinal hernia repair, would make recurrence of the 
 
         hernia more likely.  He reported that because of the 
 
         restrictions, the poor tissues, and the possibility of a 
 
         recurrence of the hernia, claimant had sustained a five percent 
 
         impairment of the whole man [sic].
 
         
 
              The balance of the evidence was reviewed in the disposition 
 
         of this matter.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              In the prior decision in this matter on appeal to the 
 
         supreme court claimant was awarded 10 percent permanent partial 
 
         disability resulting from his injury for psychological 
 
         disability.  We must examine claimant's condition at the time of 
 
         hearing resulting in that award and his condition at present to 
 
         determine whether reopening of claimant's claim is justified 
 
         under section 86.14(2).
 
         
 
              In a review-reopening proceeding in which the claimant is 
 
         seeking additional compensation after a previous award of 
 
         disability, he mut show a change of condition since the previous 
 
         award which would entitle him to an additional award.  Stice v. 
 
         Consolidated Ind. Coal Co., 228 Iowa 1031, 291 N.W. 452 (1940).  
 
         Claimant has the burden of showing by a preponderance of the 
 

 
         
 
         
 
         
 
         ARMSTRONG V. DEPARTMENT OF BUILDINGS & GROUNDS
 
         Page   5
 
         
 
         
 
         evidence that increased incapacity which entitles him to 
 
         additional compensation is a proximate result of the original 
 
         injury.  Deaver v. Armstrong Rubber Co., 170 N.W.2d 455, 457 
 
         (Iowa 1969).  Unless there is more than a mere scintilla of 
 
         evidence of increased incapacity of the employee, a mere 
 
         difference.of opinion of experts as to the percentage of 
 
         disability arising from the original injury would not justify a 
 
         finding of change of condition.  Bousfield v. Sisters of Mercy, 
 
         249 Iowa 64, 86 N.W.2d 109 (1957).  Controlling authorities as to 
 
         factors bearing on whether a change of condition has occurred are 
 
         well summarized in Sanford v. Allied Maintenance Corp., IV Iowa 
 
         Industrial CommOr Report 297, 198 (1984).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 26, 1978 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. 0. Boggs, 236  Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, 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 asserts a change of condition on account of his 
 
         1986 recurrent right, direct inguinal hernia and repair of March 
 
         28, 1986.  Dr. Miller, Claimant's treating physician, originally 
 
         characterized the hernia as recurrent.  Dr. From opined the 
 
         recurrent hernia related to claimant's original July 1978 hernia.  
 
         The evidence substantiates that claimant's recurrent hernia was a 
 
         proximate result of his original injury.  Claimant, therefore, 
 
         suffered at least a temporary change of condition and is, at 
 
         minimum, entitled to weekly compensation during his recovery from 
 
         his recurrent hernia repair under either section 85.33(l) or 
 
         section 85.34(l).
 
         
 
              The only evidence as to the period of temporary total or 
 
         healing period entitlement is Dr. From's opinion that he would 
 
         anticipate a six to eight week total disability from the hernia 
 
         repair with four to six weeks of partial disability or 
 
         approximately ten to fourteen weeks for healing.  While we find 
 
         this opinion confusing at best, defendants have offered no 
 
         contrary evidence as to reasonable length of recovery.  In the 
 
         absence of such, we will not speculate as to the appropriateness 
 
         of the recovery time Dr. From suggests.  We find claimant 
 
         entitled to fourteen weeks of healing period or temporary total 
 

 
         
 
         
 
         
 
         ARMSTRONG V. DEPARTMENT OF BUILDINGS & GROUNDS
 
         Page   6
 
         
 
         
 
         disability benefits on account of his recurrent hernia repair.
 
         
 
              We reach the question of whether claimant has sustained a 
 
         permanent change of condition entitling him to permanent partial 
 
         disability benefits, including the question of whether claimant 
 
         has shown he is now an odd-lot worker.  Functional disability 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, experience 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 later 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 
 
         disability include the employee's medical condition prior to the 
 

 
         
 
         
 
         
 
         ARMSTRONG V. DEPARTMENT OF BUILDINGS & GROUNDS
 
         Page   7
 
         
 
         
 
         injury, immediately after the injury, and presently; the 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 disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              In the initial decision, claimant was found to have a low 
 
         level anxiety which in relation to his age, education and 
 
         experience, did not produce permanent partial disability beyond 
 
         10 percent.  In 1982, Dr. From still opined claimant basically 
 
         suffered from a psychological problem and that his numerous 
 
         complaints had no medical basis.  In December 1986, following 
 
         claimant's 1986 surgery, Dr. From opined claimant had a five 
 
         percent permanent partial impairment to the body as a whole.  He 
 
         restricted claimant to 25 pound lifting and stated recurrences of 
 
         claimant's hernia were likely.  At hearing, however, claimant 
 
         agreed that his actual activity restrictions have remained 
 
         substantially similar since his original hernia injury in July 
 
         1978.  Hence, the functional impairment appears no more 
 
         restricting to claimant than was his earlier described 
 
         psychological impairment.  Mr. Marquardt opined that under Dr. 
 
         From's December 1986 restrictions, claimant had no transferable 
 
         skills and no full-time competitive employment was available to 
 
         claimant when claimant's education, age, past skills, motivation, 
 
         and functional capacity were considered, Marquardt was apparently 
 
         testifying as to claimant's employability only as it relates to 
 
         hernia and subsequent surgeries.  Marquardt later agreed claimant 
 
         was disabled from full-time competitive employment on account of 
 
         his various health problems, however.  Those problems include 
 
         past bladder tumors, prostrate surgery, leg circulation surgery, 
 
         and bypass surgery.  Claimant testified that he had a severe 
 
         heart attack in 1982 and as a result must be much more careful 
 
         and cannot get excited as he suffers if he makes a strenuous 
 
         effort.  Claimant's own testimony suggests that even if an actual 
 
         medical basis for claimant's complaints has now been discovered 
 

 
         
 
         
 
         
 
         ARMSTRONG V. DEPARTMENT OF BUILDINGS & GROUNDS
 
         Page   8
 
         
 
         
 
         and even if a permanent partial impairment rating can now be 
 
         assigned for those complaints, claimant's overall earnings 
 
         situation has changed little as it relates to his 1978 injury.  
 
         Further, claimant's numerous other problems could well be 
 
         producing any change in claimant's earning capacity actually 
 
         present.  A proximate cause need only be a substantial factor and 
 
         not the only cause of a result.  Blacksmith v. All American, 
 
         Inc., 290 N.W.2d 348, 354 (Iowa 1980).  Nevertheless, claimant 
 
         has not established that his 1986 recurrent hernia repair was a 
 
         proximate cause of any permanent change in his earning capacity 
 
         following the initial hearing and subsequent decision in this 
 
         matter.  Claimant is not entitled to further permanent partial 
 
         disability benefits on account of his July 1978 injury.
 
         
 
              As claimant has not shown a permanent change in his 
 
         condition, we need not reach the question of whether claimant is 
 
         an odd-lot worker.  For reasons discussed above, claimant has not 
 
         made a prima facie showing his inability to find employment 
 
         results from his injury and subsequent injury-related change of 
 
         condition and not from extemporaneous factors.  See Beemblossom 
 
         v. Tindal Farm Supply Co. and Allied Insurance, a/k/a Aid 
 
         Insurance, file No. 727594, Arb. dec., filed January 29, 1987.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant sustained an injury July 26, 1978 which arose out 
 
         of and in the course of his employment and for which claimant 
 
         underwent hernia repair surgery.
 
         
 
              In the decision following the initial hearing in this 
 
         matter, claimant was found to have a low level anxiety for which 
 
         he was awarded 10 percent permanent partial disability.
 
         
 
              Claimant underwent recurrent hernia repair surgery on or 
 
         about March 28, 1986 which surgery related to his original 1978 
 
         injury.
 
         
 
         
 
              Dr. From assigned claimant a permanent partial impairment to 
 
         the body as a whole following such surgery and imposed a 25 pound 
 
         lifting restriction on claimant.
 
         
 
              Claimant's recovery period following the repair surgery 
 
         lasted fourteen weeks.
 
         
 
              Claimant's actual activity restrictions have remained 
 
         substantially similar since his July 1978 injury.
 
         
 
              Claimant suffers from numerous medical conditions other than 
 
         his work-related recurrent hernia including past bladder tumors, 
 
         leg circulation surgery, prostrate surgery, and bypass surgery.
 
         
 
              Claimant had a severe heart-attack in 1982.  As a result, he 
 
         must be much more careful and cannot get excited as he suffers if 
 
         he makes a strenuous effort.
 
         
 
              Claimant is seventy (70) years old.
 

 
         
 
         
 
         
 
         ARMSTRONG V. DEPARTMENT OF BUILDINGS & GROUNDS
 
         Page   9
 
         
 
         
 
         
 
              Any change in claimant's permanent earning capacity since 
 
         the initial hearing in this matter is not proximately caused by 
 
         his 1978 injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established a temporary change in his condition 
 
         since the initial hearing in this matter which change is a 
 
         proximate result of the original injury.
 
         
 
              Claimant is entitled to fourteen (14) weeks of temporary 
 
         total disability benefits with those benefits to commence on 
 
         March 28, 1986.
 
         
 
              Claimant has not established a permanent change in his 
 
         condition since the original hearing in this matter which change 
 
         is a proximate result of the original injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant fourteen (14) weeks of temporary 
 
         total disability at the rate of ninety-nine and 04/100 dollars 
 
         ($99.04) with those benefits to commence March 28, 1986.
 
         
 
         
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to section 85.30.
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Defendants file claim activity reports as required by the 
 
         agency.
 
         
 
         
 
              Signed and filed this 26th day of May, 1987
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         HELEN JEAN WALLESER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Dennis Hanssen
 
         Attorney at Law
 
         Terrace Center, Suite 111
 

 
         
 
         
 
         
 
         ARMSTRONG V. DEPARTMENT OF BUILDINGS & GROUNDS
 
         Page  10
 
         
 
         
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         Ms. Joanne MacKusick
 
         Assistant Attorney General
 
         Hoover Building
 
         LOCAL
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    2905; 1801; 1803
 
                                                    Filed 5-26-87
 
                                                    Helen Jean Walleser
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         GEORGE ARMSTRONG,
 
         
 
              Claimant,
 
                                                  File No. 515778
 
         VS.
 
         
 
         DEPARTMENT OF BUILDINGS &                  R E V I E W -
 
         GROUNDS,
 
                                                 R E 0 P E N I N G
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
              STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2905; 1801; 1803
 
         
 
              Claimant's need for additional surgery found to show a 
 
         temporary change in condition sufficient to justify 
 
         review-reopening and temporary total disability benefits award 
 
         during period of surgical recuperation.  Claimant not found to 
 
         have shown a work-related change in actual earning capacity 
 
         sufficient to justify award of further permanent partial 
 
         disability benefits.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         WILLIE W. SCHROEDER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 519296
 
         EBASCO SERVICE, INC.,
 
                                                     A P P E A L
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         U. S. F. & G.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening decision denying 
 
         additional benefits based on an increase in disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing; claimant's exhibits 1 through 43; and 
 
         defendants' exhibit A.  Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the issues on appeal are whether the deputy 
 
         erroneously relitigated issues and facts made res judicata by 
 
         prior decisions which were not appealed and whether the deputy 
 
         erroneously found there was no causal connection between 
 
         claimant's injury of August 11, 1978 and claimant's current 
 
         disability which claimant asserts is 100 percent industrial 
 
         disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be totally 
 
         reiterated herein.
 
         
 
              On August 11, 1978 claimant sustained an injury to his right 
 
         arm and shoulder while employed by defendant employer.  He was 
 
         released to return to work on October 23, 1978 but there was no 
 
         work available with defendant employer.  He then obtained work 
 
         with a second employer and developed cervical problems and left 
 
         that job.  In an arbitration and review-reopening decision dated
 
         January 30, 1981, a deputy found a causal relationship between 
 
         his August 11, 1978 injury and his disability.  The deputy 
 
         further concluded that claimant had sustained a 20 percent 
 
         industrial disability and that the claim against the second 
 
         employer should be dismissed because of claimant's failure to 
 
         give the employer timely notice of the injury.
 
         
 

 
         
 
         
 
         
 
         SCHROEDER V. EBASCO SERVICE, INC.
 
         Page   2
 
         
 
              Claimant underwent cervical fusion surgery at the C5 
 
         through C7 levels on March 10, 1981.  He also had more 
 
         complaints regarding his lumbar spine.  A second 
 
         review-reopening case was heard on July 14, 1982 and the 
 
         decision was filed on December 15, 1982 in which claimant was 
 
         awarded 40 percent industrial disability.  In making the award 
 
         the deputy relied upon a letter from Maurice P. Margules, M.D., 
 
         dated April 26, 1982 which states in part "[a]s far as the low 
 
         back problem, this would constitute an aggravation of a 
 
         pre-existing condition and, for this, the patient would be 
 
         rated at a partial permanent physical disability of 5% of the 
 
         body as a whole."  A letter from Horst G. Blume, M.D., dated 
 
         March 23, 1982 indicated his opinion that claimant's low back 
 
         pain was not related to the accident of August 11, 1978.  
 
         Neither the first nor the second review-reopening decision was 
 
         appealed.
 
         
 
              On May 24, 1983 "the patient underwent a 
 
         semihemilaminectomy L3/4, L4/5, L5/Sl with decompression of the 
 
         nerve roots L4, L5, and Sl, unroofing of the nerve root canals, 
 
         removing of the facets, removing the ruptured discs L3/4, L4/5 
 
         and L5/Sl, followed by a posterior lateral fusion.O (Claimant's 
 
         Exhibit 33)  In a letter dated October 24, 1983 Dr. Blume 
 
         stated that "the patient has been totally disabled for any 
 
         gainful employment since his cervical disc and fusion surgery 
 
         in March of 1981."  In a letter dated November 1, 1985, Dr. 
 
         Blume stated:
 
         
 
                 The patient has a permanent partial disability to 
 
              the body as a whole with 15% on the neck and shoulder 
 
              for a total of 30% to the body as a whole of functional 
 
              disability.  I do think that the patient is unable to 
 
              go back to any gainful employment.  We are just happy 
 
              that the patient can exist with the least amount of 
 
              pain by not doing any particular activity except the 
 
              usual amounts of walking, standing and sitting.
 
         
 
                 His problems since December 1982 continue to relate 
 
     
 
         
 
         
 
         
 
         
 
         SCHROEDER V. EBASCO SERVICE, INC.
 
         Page   3
 
         
 
              to his original on the job injury with Ebasco.
 
         
 
         (Cl. Ex. 42)
 
         
 
              In a letter dated February 26, 1986 Dr. Margules stated:
 
         
 
                 After reviewing the patient's entire past history 
 
              and present complaint, it is our opinion that the 
 
              patient sustained two separate injuries.  On August 11, 
 
              1978 the patient sustained an injury as described in my 
 
              previous letter of April 26, 1982, and as the result of 
 
              this the patient sustained a sprain of the cervical 
 
              spine and a contusion of the Right [sic] elbow.
 
         
 
                 The patient then made a satisfactory recovery and 
 
              returned to work as an Insulator for the Klinger-Holtz 
 
              Company following which he complained of severe pain at 
 
              the level of the cervical spine and was treated by Dr. 
 
              Horst Blume and underwent fusion at the level of the 
 
              C4-C5 and C5-C6 interspace by the anterior approach.
 
         
 
                 It is our opinion that the disc herniations at those 
 
              two levels as treated by Dr. Blume were the result of 
 
              the injury sustained while the patient was at work for 
 
              the Klinger-Holtz Company working as an Insulator.
 
         
 
         (Defendants' Ex. A)
 
         
 
              Claimant testified that the last time he worked for the 
 
         union or had done any construction of any sort was March of 
 
         1981.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The claimant argues that the deputy erroneously relitigated 
 
         issues and facts made res judicata by the prior review-reopening 
 
         decision.  The petition that initiated the prior decision sought 
 
         an increase from an award of 20 percent industrial disability.  
 
         The prior decision resulted in an award of 40 percent industrial 
 
         disability.  Claimant now seeks an award of 100 percent 
 
         industrial disability.  In the instant proceeding the deputy 
 
         considered whether the claimant was entitled to an increase in 
 
         disability greater than the prior decision.  The prior award 
 
         which appeared to be based in part on the shoulder condition and 
 
         in part on the low back was left undisturbed.  Claimant's 
 
         argument seems to be somewhat inconsistent. on the one hand it is 
 
         argued that the rating of disability should be increased but on 
 
         the other hand it is argued that the prior decision should be res 
 
         judicata.  The deputy did not err in determining whether there 
 
         was a causal connection between the work injury and the claimed 
 
         disability in this proceeding.
 
         
 
              The deputy found that there was no causal connection between 
 
         the claimed disability and the original injury.  The prior 
 
         decision is only res judicata regarding the prior aggravation of 
 

 
         
 
         
 
         
 
         SCHROEDER V. EBASCO SERVICE, INC.
 
         Page   4
 
         
 
         the preexisting condition of claimant's lower back.  Claimant 
 
         must still prove a causal connection between the original injury 
 
         and the current claimed disability.  Claimant has not proved that 
 
         his current condition relates to the prior aggravation instead of 
 
         his preexisting condition.  A finding of a causal connection 
 
         between an aggravation of a preexisting condition and a work 
 
         injury does not mean that all future changes of impairment of the 
 
         preexisting condition are the result of the work injury.
 
         
 
              The second issue to be considered is whether the deputy 
 
         erroneously found there was no causal connection between 
 
         claimant's injury of August 11, 1978 and claimant's current 
 
         disability which claimant asserts is 100 percent.  Most of the 
 
         medical evidence predates this proceeding and would have been 
 
         used as a basis for the prior review-reopening decision which 
 
         claimant did not appeal.  The medical evidence that is more 
 
         current than the prior decision is in conflict.  Dr. Margules' 
 
         most recent report (February 26, 1986) does not address the 
 
         issues of the cause of claimant's low back injury and the alleged 
 
         increase in disability.  That report indicates that he was of the 
 
         opinion that there were two separate injuries and one of those 
 
         was while claimant was employed by another employer.  Dr. Blume's 
 
         most recent report dated November 1, 1985 states his opinion that 
 
         claimant's problems since 1982 relate to his original injury 
 
         while employed for defendant employer.  This appears to be a 
 
         direct conflict with his opinion in a report dated March 23, 
 
         1982.  There is no explanation of this apparent change of 
 
         opinion.  Also, in the report dated October 24, 1983 Dr. Blume 
 
         expressed the opinion that claimant has been totally disabled 
 
         since March of 1981.  Even though Dr. Blume gave a rating of 
 
         disability in his letter dated November 1, 1985 there is no 
 
         rating of disability to compare it to determine whether Dr. Blume 
 
         is of the opinion that the disability increased between the more 
 
         recent review-reopening decision and the instant proceeding.  It 
 
         should also be noted that Dr. Blume is qualified to rate 
 
         impairment but not qualified to rate disability which takes into 
 
         account an employee's age, education, qualifications, experience 
 
         and inability, because of the injury, to engage in employment for 
 
         which he is fitted.  Claimant has not provided evidence that 
 
         there has been an increase in disability since the last 
 
         review-reopening decision.  The deputy was correct in concluding 
 
         that claimant had failed to prove a causal connection between his 
 
         injury of August 11, 1978 and the increase in disability he now 
 
         claims.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  There has been a change in the condition of claimant's 
 
         lumbar spine since the prior review-reopening decision in this 
 
         case.
 
         
 
              2.  The injury of August 11, 1978 has not been shown to be 
 
         the cause of the change of condition of claimant's lumbar spine.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to prove by the greater weight of 
 
         evidence that there is a causal relationship between the injury 
 
         of August 11, 1978 and an increase in disability since the more 
 
         recent review-reopening decision.
 

 
         
 
         
 
         
 
         SCHROEDER V. EBASCO SERVICE, INC.
 
         Page   5
 
         
 
         
 
              Defendants are not responsible for payment of any additional 
 
         compensation for the condition of claimant's low back and are not 
 
         responsible for payment of any additional expenses incurred in 
 
         the treatment of claimant's low back.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That claimant pay the costs of this appeal proceeding 
 
         including the costs of transcription of the review-reopening 
 
         hearing.
 
         
 
              That defendants file claim activity reports pursuant to 
 
         Division of Industrial Services Rule 343-3.1(2).
 
         
 
         
 
              Signed and filed this 25th day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                              DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Bldg.
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. P. D. Furlong
 
         Attorney at Law
 
         401 Commerce Bldg.
 
         P.O. Box 3005
 
         Sioux City, Iowa 51102-3005
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                                  1402.40-2601.10-2905
 
                                                  Filed April 25, 1988
 
                                                  DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         WILLIE W. SCHROEDER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File NO. 519296
 
         EBASCO SERVICE, INC.,
 
                                                      A P P E A L
 
              Employer,
 
         
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         U. S. F. & G. ,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         1402.40 - 2601.10
 
         
 
              In 1978 claimant suffered an injury which was originally 
 
         thought to be limited to his shoulder.  He developed cervical 
 
         complaints.  An arbitration and review-reopening decision in 
 
         January 1981 found those cervical complaints to be related to the 
 
         original injury.  Claimant also developed low back complaints and 
 
         a review-reopening decision in December 1982 found that the 
 
         original injury had aggravated a preexisting low back condition. 
 
          Subsequently, claimant underwent lumbar surgery.  Most of the 
 
         medical evidence predated the instant proceeding and would have 
 
         been used as a basis for the prior review-reopening decision 
 
         which claimant did not appeal.  The medical evidence that was 
 
         more current than the prior decision was in conflict.  Claimant 
 
         had not provided evidence that there had been an increase in 
 
         disability since the last review-reopening decision.  The 
 
         claimant had failed to prove a causal connection between his 
 
         injury and an increase in disability he claimed.
 
         
 
         2905
 
         
 
              The prior review-reopening decision is only res judicata 
 
         regarding the prior aggravation of the preexisting condition of 
 
         claimant's lower back.  Claimant must still prove a causal 
 
         connection between the original injury and the current claimed 
 
         disability.  Claimant had not proved that his current condition 
 
         relates to the prior aggravation instead of his preexisting 
 
         condition.
 
         
 
 
 
                                                
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         WILMA VAN GUNDY,
 
         
 
              Claimant,
 
                                         File No.521774
 
         VS.
 
         
 
                                         R E V I E W
 
         MEREDITH CORPORATION,
 
                                         R E 0 P E N I N G
 
              Employer,
 
                                         D E C I S I 0 N
 
         and
 
         
 
         INSURANCE COMPANY OF NORTH AMERICA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in review-reopening from an arbitration 
 
         and review-reopening decision filed March 3, 1986.  In that prior 
 
         decision, claimant was awarded 35 percent permanent partial 
 
         disability based upon an injury to claimant's back which she 
 
         sustained on October 13, 1978.
 
         
 
              The hearing for this review-reopening proceeding was 
 
         conducted at Des Moines,.Iowa on December 8, 1988 and the case 
 
         was fully submitted at the conclusion of the hearing.  The record 
 
         in this proceeding consists of claimant's exhibits 1 and 2, and 
 
         defendants' exhibits 1 through 23. official notice was taken of 
 
         the pleadings and decision in the agency file and also of the 
 
         exhibits which were received into evidence at the previous 
 
         hearing which was conducted December 16, 1982 and resulted in the 
 
         March 3, 1983 decision.  The record also contains testimony from 
 
         Wilma Van Gundy, Clark Borland and Kent Jayne.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties for determination are 
 
         whether there has been a change of condition which would permit 
 
         review-reopening and, if so, the nature and extent of claimant's 
 
         permanent disability which was proximately caused by the October 
 
         13, 1978 injury.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         VAN GUNDY V. MEREDITH CORPORATION
 
         Page 2
 
         
 
         
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              As a result of the hearing conducted December 16, 1982, 
 
         former Deputy Commissioner Bauer concluded:
 
         
 
              Considering claimant's age (42), her 10th grade education 
 
              and experience (mainly laboring, with minimal clerical 
 
              experience), and the physical impairment caused by the 
 
              injury, it is apparent that claimant's industrial disability 
 
              is severe.  She should be awarded 35 percent of the body as 
 
              a whole for industrial purposes.  Although claimant is not 
 
              employed by defendants, she is capable of some activity.  
 
              Her earning capacity, however, has been reduced.  She will, 
 
              in all likelihood, require future surgery.
 
         
 
              His decision was based upon claimant's complaints as they 
 
         were related at hearing, evidence from John T. Bakody, M.D., 
 
         which was to the effect that claimant was totally disabled and 
 
         incapable of engaging in gainful employment, and evidence from 
 
         Thomas Carlstrom, M.D., who expressed the opinion that claimant 
 
         was capable of performing light work.
 
         
 
              From the evidence introduced at the time of the December 8, 
 
         1988 hearing, Dr. Bakody still felt that claimant was totally 
 
         disabled and Dr. Carlstrom still felt that claimant was capable 
 
         of engaging in gainful employment. (Claimant's exhibit 1, pages 
 
         23, 24, 31, 32 and 33).
 
         
 
              At the December, 1988 hearing, Clark Borland, a qualified 
 
         vocational consultant, testified that claimant is employable only 
 
         in a restricted sense under conditions of a limited work day with 
 
         an understanding employer who would permit her to be absent from 
 
         work whenever she felt the need.  Borland's assessment was based 
 
         upon the medical information which came from claimant's 
 
         complaints and Dr. Bakody.
 
         
 
              Kent Jayne, a qualified vocational consultant, expressed the 
 
         opinion that jobs are currently available in the competitive 
 
         labor market in the Des Moines, Iowa area which claimant is 
 
         capable of performing according to the medical information from 
 
         Dr. Carlstrom.
 
         
 
              Since the December 16, 1982 hearing and its resulting 
 
         decision, claimant has not returned to work and has not attempted 
 
         to return to work.  She has not undergone further surgery.  
 
         Claimant testified that her pain has changed and increased.  
 
         Claimant has been awarded Social Security disability benefits 
 
         since the first hearing in this case.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              When claimant originally applied for work at Meredith, she 
 
         misrepresented her educational status.
 
         
 
         
 
         
 
         VAN GUNDY V. MEREDITH CORPORATION
 
         Page 3
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The normal rules of res judicata and preclusion apply to 
 
         administrative proceedings.  Board of Supervisors, Carroll County 
 
         v. Chicago & Northwestern Transp. Co., 260 N.W.2d 813 (Iowa 
 
         1977).  The review-reopening procedure provided by Code section 
 
         86.14(2) provides a statutory exception to the normal rules, but 
 
         the exception can be used only when the requisite change of 
 
         condition or change of circumstances is established.
 
         
 
              A party seeking review-reopening of an award or agreement 
 
         for settlement must demonstrate by a preponderance of the 
 
         evidence, a change of condition subsequent to the initial award 
 
         or agreement.  Stice v. Consolidated Ind. Coal Co., 228 Iowa 
 
         1031, 1035, 291 N.W. 452 (1940).  In Stice, the Iowa Supreme 
 
         Court stated that the Act's review-reopening provisions provide 
 
         no basis for concluding that "the commissioner is to re-determine 
 
         the condition of the employee which was adjudicated by the former 
 
         award."  Id. at 1038.
 
         
 
              In Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 
 
         (1957), the Iowa Supreme Court stated that "a mere difference of 
 
         opinion of experts or competent observers as to the percentage of 
 
         disability arising from the original injury would not be 
 
         sufficient to justify a different determination by another 
 
         commissioner on a petition for review-reopening."  Id. at 69.  
 
         However, the court recognized that a worsening of a claimant's 
 
         condition, not contemplated at the time of an initial award, will 
 
         justify a subsequent review-reopening award.
 
         
 
              In Gosek v. Garmer and Stiles Co., 158 N.W.2d  731, 735 
 
         (Iowa 1968), the Iowa Supreme Court held that "cause for 
 
         allowance of additional compensation exists on proper showing 
 
         that facts relative to an employment connected injury existed but 
 
         were unknown and could not have been discovered by the exercise 
 
         of reasonable diligence, sometimes referred to as a substantive 
 
         omission due to mistake, at time of any prior settlement or 
 
         award."
 
         
 
              In a somewhat analogous vein, the Iowa Court of Appeals held 
 
         in Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24, 25 
 
         (Iowa Ct.  App. 1978), that a review-reopening petition may allow 
 
         a change in compensation when a claimant has failed to improve to 
 
         the extent initially anticipated.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The change of condition can be economic.  There need not be 
 
         a change of the claimant's physical condition.  Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 348 (Iowa 1980).  The change must, 
 
         however, be based upon discovery of facts which were unknown and 
 
         could not have been discovered through the exercise of reasonable 
 
         diligence at the time the case was initially heard.  The change 
 
         must be something which was not within the contemplation of the 
 
         hearing deputy or the parties at the time
 
         
 
         
 
         
 
         VAN GUNDY V. MEREDITH CORPORATION 
 
         Page 4
 
         
 
         
 
         when the disability was originally established.  Gosek v. Garmer 
 
         and Stiles Co., 158 N.W.2d 731 (Iowa 1968).
 
         
 
              The evidence in this case shows that neither physician has 
 
         identified any particular anatomical or physiological change that 
 
         has occurred since the 1982 hearing.  While the two physicians 
 
         are greatly divergent in their respective assessments of the 
 
         case, those assessments have not changed appreciably.
 
         
 
              Claimant was not employed at the time of the original 
 
         hearing and she remains unemployed.  The only material economic 
 
         change is that she now receives Social Security disability 
 
         compensation.  It can be argued that at the time of the original 
 
         hearing, the deputy who decided the case felt that claimant was 
 
         capable of being employed and would return to gainful employment 
 
         by virtue of the fact that he awarded only partial disability 
 
         rather than total.  The evidence upon which that determination 
 
         was made, however, is essentially the same as the evidence which 
 
         now exists.  The fact that claimant has not resumed employment is 
 
         as attributable to her lack of any effort to resume employment as 
 
         it is to any perceived inability to be employed.
 
         
 
              Little weight is given to claimant's description of the 
 
         changes in her symptoms.  It is common for people to perceive 
 
         that pain presently being experienced is more severe than pain 
 
         that was experienced at some point in the past.  Further, 
 
         claimant has previously demonstrated that she might use 
 
         misrepresentation to obtain a desired result.  A purported change 
 
         in subjective symptoms which is not corroborated by an 
 
         objectively determined physiological change does not mandate a 
 
         finding that there has been a change of condition.
 
         
 
              It is therefore determined that claimant has failed to 
 
         prove, by a preponderance of the evidence, that there has been 
 
         any change in her physical or economic condition which occurred 
 
         subsequent to the December 16, 1982 hearing which was not with 
 
         the contemplation of the deputy industrial commissioner who heard 
 
         the case at that time.  The amount of permanent partial 
 
         disability which was awarded will therefore not be reevaluated or 
 
         reconsidered.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. The evidence introduced has failed to show, by a 
 
         preponderance of the evidence, any substantial change in 
 
         claimant's physical condition that has occurred since the first 
 
         hearing in this case was conducted on December 16, 1982.
 
         
 
              2. The evidence introduced fails to demonstrate, by a 
 
         preponderance of the evidence, that there has been any change in 
 
         claimant's economic condition that has occurred since December 
 
         16, 1982.
 
         
 
         
 
         
 
         VAN GUNDY V. MEREDITH CORPORATION
 
         Page 5
 
         
 
         
 
              3. Claimant's lack of employment is as likely a result of 
 
         her failure to seek employment as it is of her disability.
 
         
 
              4. The fact that claimant has aged since 1982 is a matter 
 
         which would have been anticipated by the deputy who originally 
 
         decided this case based upon the December 16, 1982 hearing.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1. This agency has jurisdiction of the subject matter of 
 
         this Proceeding and its parties.
 
         
 
              2. Wilma Van Gundy has failed to introduce evidence 
 
         establishing, by a preponderance of the evidence, that she has 
 
         experienced a change of condition which would permit 
 
         reconsideration of the extent of permanent partial disability 
 
         which was awarded in 1983.
 
         
 
              3. Claimant has failed to prove, by a preponderance of the 
 
         evidence, that there has been any substantial change in 
 
         circumstances affecting the extent of her disability which has 
 
         occurred since this case was originally heard on December 16, 
 
         1982 and which was not within the contemplation of the deputy who 
 
         heard the case at that time.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 3rd day of August, 1989.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, IA 50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         52905
 
                                         Filed August 3, 1989
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILMA VAN GUNDY,
 
         
 
              Claimant,
 
                                         File  No.  521774
 
         vs.
 
                                            R E V I E W
 
         MEREDITH  CORPORATION,
 
                                         R E 0 P E N I N G
 
              Employer,
 
                                            D E C I S I 0 N
 
         and
 
         
 
         INSURANCE COMPANY OF NORTH AMERICA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         52905
 
         
 
              Claimant failed to show a change of physical or economic 
 
         condition which would warrant review-reopening.  The same doctors 
 
         expressed the same opinions as they had expressed at the time of 
 
         the original hearing and decision.  Claimant was not employed at 
 
         the time of the original hearing and has not subsequently resumed 
 
         employment or attempted to resume employment.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            TERRY M DENTLINGER,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 524179
 
            KEISTER LUMBER CO,            :
 
                                            R E V I E W - R E O P E N I N G
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA INSURANCE GUARANTY       :
 
            ASSOCIATION, On Behalf of     :
 
            Insolvent American Mutual     :
 
            Liability Insurance Co.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in review-reopening brought by 
 
            Terry Dentlinger.  He seeks compensation for permanent total 
 
            disability or increased permanent partial disability.  He 
 
            seeks payment of medical expenses which total $1,120.10.  
 
            The case was heard at Fort Dodge, Iowa, on October 5, 1993.  
 
            The record consists of testimony from Terry Dentlinger, 
 
            Shelly Dentlinger and Jack Reynolds.  The record also 
 
            contains jointly offered exhibits 1 through 12.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 On October 16, 1985, a review-reopening decision was 
 
            entered in which it was determined that the claimant had a 
 
            75 percent permanent partial disability and that his rate of 
 
            compensation was $122.05 per week.  That rate was 
 
            established by stipulation of the parties.  Defendants were 
 
            given credit for the weekly compensation benefits which had 
 
            been previously paid.  The decision recited work activity 
 
            restrictions.  Defendants appealed from the decision but did 
 
            not contest the determination of the rate of compensation.  
 
            The review-reopening decision was affirmed in an appeal 
 
            decision which was entered December 5, 1986.
 
            
 
                 Upon reviewing the evidence in this case, in particular 
 
            that from James L. Blessman, M.D., Shelly Dentlinger and the 
 
            records and reports from Steven J. Kraus, D.C., together 
 
            with the findings of fact and evidence contained in the 
 
            review-reopening decisions of November 23, 1982 and October 
 
            16, 1985, it is found that there has not been any 
 
            substantial change in the claimant's physical or economic 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            circumstances which has occurred since the date of the 
 
            hearing which resulted in the review-reopening decision of 
 
            October 16, 1985.  Claimant was unemployed at the time of 
 
            that hearing and he remains unemployed.  At the time of that 
 
            hearing he had not made bona fide efforts to become 
 
            gainfully employed and he has not done so subsequently.  The 
 
            statement made by Dr. Blessman in his report of September 
 
            27, 1993, is adopted as being correct when Dr. Blessman 
 
            states as follows, "He basically appears essentially the 
 
            same as he was when he left the pain center."  The fact that 
 
            Dr. Kraus has made an assessment of the case which differs 
 
            from that of Dr. Blessman is of little consequence in 
 
            determining whether there has been any change since nothing 
 
            in the record shows how Dr. Kraus would have assessed the 
 
            case if he had done so prior to the previous hearing in this 
 
            case.  To the contrary, it appears as though information 
 
            from Raymond Meylor, D.C., which is found in the 1982 
 
            review-reopening decision is quite consistent with the more 
 
            recent information from Dr. Kraus.  
 
            
 
                 Claimant had entered into a course of treatment with 
 
            Dr. Kraus.  The statements made in Dr. Blessman's report of 
 
            September 27, 1993 regarding the chiropractic care are found 
 
            to be correct.  Namely that it is not approving his overall 
 
            condition and that it is simply "feel good" type of therapy.  
 
            The care is probably not necessary to enable claimant to 
 
            maintain his current medical condition.  (joint exhibit 6)  
 
            The information from Dr. Kraus as found in exhibit 4 has 
 
            been considered.  It is found that the chiropractic 
 
            treatment which claimant received from Dr. Kraus was 
 
            reasonable.  It is further found that the treatment was 
 
            rendered for the principle purpose of the original injuries 
 
            which are the subject of this case.  While the record shows 
 
            some incidental treatment there is no showing that the 
 
            expense incurred was effected by those other incidental 
 
            treatments.  There is no basis whatsoever in the record for 
 
            defendants to have paid half, yet refused to pay the 
 
            remaining half of the amounts charged by Dr. Kraus.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Upon review-reopening, claimant has the burden to show 
 
            a change in condition related to the original injury since 
 
            the original award or settlement was made.  The change may 
 
            be either economic or physical.  Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250 
 
            Iowa 787, 96 N.W.2d 321 (1959).  A mere difference of 
 
            opinion of experts as to the percentage of disability 
 
            arising from an original injury is not sufficient to justify 
 
            a different determination on a petition for 
 
            review-reopening.  Rather, claimant's condition must have 
 
            worsened or deteriorated in a manner not contemplated at the 
 
            time of the initial award or settlement before an award on 
 
            review-reopening is appropriate.  Bousfield v. Sisters of 
 
            Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  A failure of a 
 
            condition to improve to the extent anticipated originally 
 
            may also constitute a change of condition.  Meyers v. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa Ct. 
 
            App. 1978).
 
            
 
                 The record of this case fails to show the requisite 
 
            change of condition which would permit a reassessment of the 
 
            case.  Accordingly, the previous award of 75 percent 
 
            permanent partial disability stands.  The claimant's 
 
            argument that he expected to obtain employment could 
 
            possibly be viable except for the fact that the record fails 
 
            to show any reasonable bona fide efforts to obtain 
 
            employment.  The claimant's condition is essentially 
 
            identical to that which existed at the time of the prior 
 
            hearing.
 
            
 
                 A dispute in this case exists with regard to whether 
 
            the 1985 decision awarded 375 additional weeks of 
 
            compensation over and above what was awarded in the 1992 
 
            decision.  It is clear that the award was for a total of 375 
 
            weeks, including the 100 weeks awarded in 1982.  The 1985 
 
            award was for an additional 275 weeks.
 
            
 
                 With regard to the rate of compensation it was 
 
            stipulated to be $122.05 per week.  The appeal decision 
 
            affirmed that stipulated rate of compensation.  It thus 
 
            became the law of the case.  Even though it might be 
 
            incorrect under the actual facts and law, the lack of an 
 
            appeal from the appeal decision entered in 1986 makes that 
 
            rate final.  A proceding in reveiw-reopening permits 
 
            relitigation of the extent of disability.  A 
 
            review-reopening case does permit relitigation of other 
 
            issues which have become final such as the issues of injury 
 
            arising out of and in the course of employment or rate of 
 
            compensation.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 Either the treatment from Dr. Kraus was reasonable and 
 
            the responsibility of the defendants or it was not.  
 
            Claimant saw Dr. Kraus with the knowledge and consent of 
 
            defendants.  The fact that they paid part of the charges is 
 
            evidence of the reasonableness of the care.  The record in 
 
            this case simply does not contain any basis for having 
 
            defendants pay only half of the charges incurred by each of 
 
            claimant's visits to Dr. Kraus.  They are therefore 
 
            responsible for full payment of all expenses incurred with 
 
            Dr. Kraus with their consent.  The total thereof is 
 
            $1,120.10, the remaining unpaid balance.  (ex. 5)  
 
            
 
                 With regard to the future it is found that Dr. Blessman 
 
            is essentially correct in his assessment of the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            effectiveness of chiropractic care for this claimant.  It is 
 
            also recognized that pain relief is a legitimate object of 
 
            care and treatment, even though it does not improve the 
 
            individual's actual physical capabilities.  It is therefore 
 
            determined that the claimant should be authorized one 
 
            routine office visit per month with Dr. Kraus indefinitely 
 
            into the future and that the same will be the responsibility 
 
            of the defendants, just as defendants are responsible for 
 
            over-the-counter pain relief medications such as aspirin, 
 
            Tylenol and so forth.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that claimant receive no 
 
            additional weekly compensation beyond the three hundred 
 
            seventy-five (375) weeks which have been previously been 
 
            awarded.
 
            
 
                 It is further ordered that defendants pay the 
 
            claimant's charges with Dr. Kraus in the remaining balance 
 
            of one thousand one hundred twenty and 10/100 dollars 
 
            ($1,120.10).
 
            
 
                 It is further ordered that defendants continue to 
 
            provide claimant with regular treatment from Dr. Kraus at a 
 
            frequency of one office visit per month for purposes of pain 
 
            relief.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency.
 
            
 
                 Signed and filed this ____ day of December, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            
 
            Mr. David E. Green
 
            Attorney at Law
 
            801 N Adams St
 
            PO Box 765
 
            Carroll, Iowa  51401
 
            
 
            Mr. Cecil Goettsch
 
            Attorney at Law
 
            801 Grand Ave STE 3700
 
            Des Moines, Iowa  50309-2727
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                          2905 3003 2501
 
                                          Filed December 17, 1993
 
                                          Michael G. Trier
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            TERRY M DENTLINGER, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 524179
 
            KEISTER LUMBER CO,  
 
                                     R E V I E W - R E O P E N I N G
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            IOWA INSURANCE GUARANTY  
 
            ASSOCIATION, On Behalf of     
 
            Insolvent American Mutual     
 
            Liability Insurance Co., 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            2905
 
            Claimant failed to prove a substantial change of 
 
            circumstances in order to warrant reopening his disability 
 
            award.  
 
            
 
            3003
 
            The rate of compensation had been established by stipulation 
 
            in a prior agency decision which had become a final agency 
 
            decision without appeal.  Defendants were not entitled to 
 
            relitigate the correctness of that rate.  It had become the 
 
            law of the case.
 
            
 
            2501
 
            Claimant was allowed to recover the expenses he had incurred 
 
            with his chiropractor with the knowledge and consent of the 
 
            defendants.  Defendants' attempt to pay only half the bill 
 
            was held improper.  They were liable for either all or none.  
 
            Since they had authorized and consented to the care they 
 
            were held responsible for paying all of the care.  
 
            Defendants were also held to be required to provide claimant 
 
            with one chiropractic visit per month indefinitely into the 
 
            future for purposes of pain relief.