BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONNA M. PETERS,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         ELKS LODGE #84,                          File No. 526221
 
         
 
              Employer,                             A P P E A L
 
         
 
         and                                      D E C I S I 0 N
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from a review-reopening decision awarding 
 
         claimant 50 percent permanent partial disability benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening proceeding; claimant's exhibits 1, 2, 4, 5, 6 
 
         and 7; and defendants' exhibits A through K.  Both parties filed 
 
         briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              I.  Whether claimant was required to show a change of 
 
         condition to receive further benefits.
 
         
 
             II.  Whether the award of 50 percent permanent partial 
 
         disability was supported by the evidence.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be totally 
 
         reiterated herein.
 
         
 
              Briefly stated claimant was 55 years old at the time of the 
 
         hearing.  She worked for Elks Lodge #84 at Burlington, Iowa, as a 
 
         waitress.  Her education is limited to the eighth grade and
 
         she, has worked as a cook, a waitress, and has done factory 
 
         sorting work all her adult life.
 
         
 

 
         
 
         
 
         
 
         PETERS V. ELKS LODGE   284
 
         Page òòò
 
         
 
         
 
              On December 5, 1978, while moving a table, claimant 
 
         suffered a back injury arising out of and in the course of her 
 
         employment.  She experienced pain and sought medical attention.  
 
         She attempted to return to work but found she could no longer 
 
         do so because of difficulty in bending, standing, sitting and 
 
         lifting.  She had no such difficulty prior to December 5, 1978.  
 
         A memorandum of agreement was filed February 8, 1979.  In 1980 
 
         she received 50 weeks of permanent partial disability 
 
         benefits.
 
         
 
              Claimant stated she had no groin pain in 1980, but now has 
 
         such pain.  Her pain now radiates into her side and legs.  She 
 
         testified her back pain is worse now than before.  She 
 
         disclosed that in 1983 she was bedridden at least one time per 
 
         month because of back pain.  In 1984 she began wearing a back 
 
         brace.  She states she cannot lift more than five pounds and 
 
         cannot sit or stand more that one-half hour at a time.  She 
 
         states she is not physically able to look for a job and has 
 
         pain daily.
 
         
 
              Frank I. Russo, M.D., examined claimant and in his report 
 
         of June 13, 1979 stated:
 
         
 
              Straight leg raising elicits complaints of hamstring 
 
              pain at about 750 bilaterally.  Range of motion of the 
 
              back is limited to about 75% of normal in all planes of 
 
              discomfort at these extremes of motion but no gross 
 
              spasm or splinting.  This woman is able to walk on her 
 
              heels and toes without significant difficulty ....
 
         
 
              IMPRESSION:    1)  Chronic low back pain, probably 
 
              secondary to musculoligamentous strain with subsequent 
 
              deconditioning of the low back muscular and possible 
 
              mild underlying degenerative disc disease but no 
 
              evidence of acute lumbar radiculopathy.
 
         
 
              In August of 1979 Dr. Russo added:
 
         
 
              She shows some very minimal limitation in motion, but 
 
              complains of pain at the extreme of straight leg 
 
              raising which elicits complaints of back pain at about 
 
              850 bilaterally .... At the present time I am uncertain 
 
              how legitimate all this woman's complaints are.  I 
 
     
 
         
 
         
 
         
 
         
 
         PETERS V. ELKS LODGE   384
 
         Page òòò
 
         
 
         
 
              quite honestly don't see any hard abnormal physical 
 
              findings.  The limitations and complaints are purely 
 
              subjective .... Quite frankly I think I am giving this 
 
              woman the benefit of the doubt at this point .... 
 
              [Q]uite personally, at this point, I am tending to feel 
 
              further and further that her symptoms or symptom 
 
              complex may be psychologically fueled at any rate, if 
 
              not entirely caused by psychological causes.
 
         
 
              Burton Stone, M.D., examined claimant and reported on 
 
         February 29, 1980 that:
 
         
 
              [X]-rays did not show any evidence of any degenerative 
 
              disc disease ....
 
         
 
                 ....
 
         
 
              ... She was able to flex 400 and complained of a great 
 
              deal of pain as she flexed ....
 
         
 
                 ....
 
         
 
              ...I am really at a loss to explain her pain and 
 
              certainly she does not have any objective findings to 
 
              support this.
 
         
 
              Dr. Stone also suggested to claimant that her work as a 
 
         waitress would aggravate her condition and she should seek other 
 
         work.
 
         
 
              J. Nicholas Fax, Jr., M.D., orthopedic surgeon, stated in a 
 
         report of January 14, 1981, that:
 
         
 
              She can bend over and get down to the lower third of 
 
              her tibias and come back up quickly and easily without 
 
              hesitation.  She leans back and to the right and the 
 
              left through a full range of motion which she also does 
 
              without hesitation.  She curiously seems to have 
 
              tenderness to palpation everywhere in her whole lumbar 
 
              spine and lower thoracic spine area beginning at the 
 
              buttock area and going clear up to the lower third of 
 
              her ribs.  It even hurts when I press on rolls of fat.  
 
              She walks on her heels and toes without difficulty and 
 
              with good balance.  Ankle jerks and knee jerks are 
 
              equal and brisk bilaterally.  There is no toe or ankle 
 
              extensor weakness.  She has normal dorsal pedal pulses 
 
              bilaterally ....
 
         
 
              Knee-chest position is possible through a full ROM with 
 
              mild discomfort in the back.  SLR is possible to almost 
 
              901 bilaterally while supine with the only complaint 
 
              being some hamstring tightness.  Cross-leg test causes 
 
              some pulling in the groin muscles but no complaints of 
 
              back pain.  Hip rotation is negative bilaterally.
 
         
 
                 ....
 
         
 
              IMPRESSION: 1.  Chronic lumbosacral strain with 
 
              possible chronic disc degeneration but no evidence of 
 

 
         
 
         
 
         
 
         PETERS V. ELKS LODGE   484
 
         Page òòò
 
         
 
         
 
              significant neurological abnormality.
 
         
 
         He concluded, "I feel this patient's problem is going to be a 
 
         permanent one."
 
         
 
              G. K. Reschly, M.D., opined on March 30, 1983 that:
 
         
 
              This patient has had persistent continual low back pain 
 
              .... Her activities have been limited to very light 
 
              housework and no heavy lifting.  The patient having had 
 
              pain for four or more years, has had the usual types of 
 
              depression that associated with chronic pain syndrome 
 
              .... I feel that this patient is probably going to have 
 
              continual chronic pain and unfortunately there is no 
 
              great deal to totally alleviate this pain ....
 
         
 
              On June 29, 1984 Dr. Reschly disclosed that:
 
         
 
              I feel that this is going to be a chronic problem and a 
 
              problem that is not going to be curable.  As time goes 
 
              by I feel this lady is going to have increased problems 
 
              with her back and pain due to inflammatory degenerative 
 
              changes that usually occur with years.
 
         
 
              Michael Murphy, M.D., reported on July 2, 1984 on his 
 
         examination of claimant:
 
         
 
              Lumbar range of motion is as follows:
 
         
 
              Forward flexion: 80 degrees extension, 15 degrees.  
 
              Lateral bending to the right: 15 degrees.  Lateral 
 
              bending to the left: 20 degrees.  Rotation to the 
 
              right: 25 degrees.  Rotation to the left: 25 degrees.
 
         
 
              Hip range of motion:
 
         
 
              Flexion:  120 bilateral, full extension.  There is no 
 
              limitation of rotation.
 
         
 
              Passive ranges of motion:
 
         
 
              Straight-leg raising:  Negative bilateral.
 
         
 
              Crossed-leg testing: Positive on the left, negative on 
 
              the right.
 
         
 
                 ....
 
         
 
              X-rays: X-rays of the lumbar spine are obtained.  These 
 
              show vertebral bodies of normal height.  There is some 
 
              mild L5-Sl disk space narrowing.  There is no evidence 
 
              of spondylolysis or spondylolisthesis on these films.  
 
              This individual has a scoliosis which is about 8-10 
 
              degrees mildly convex to the right, with the apex 
 
              appearing to be at about the T-11 level.  This may well 
 
              be positional.  There is no rotatory component to this 
 
              scoliosis.  Her pedicles are well-visualized.
 
         
 
              IMPRESSION:
 

 
         
 
         
 
         
 
         PETERS V. ELKS LODGE   584
 
         Page òòò
 
         
 
         
 
         
 
              1.  Chronic lumbosacral spine strain.
 
         
 
                 ....
 
         
 
              COMMENT:
 
         
 
              This individual's examination is characterized by 
 
              complaints of stiffness of the joints of the lower 
 
              lumbar region, hips, and feet.  Objectively, she does 
 
              have some mild limitation of motion of the lumbar 
 
              spine, as noted in the physical examination.  Any work 
 
              which this individual would do would have to allow for 
 
              the ability to change positions frequently and not stay 
 
              in either a seated/standing position for greater than a 
 
              half-hour at a given time.
 
         
 
              Norman Logan, M.D., Winfred H. Clarke, M.D., and Faulkner A. 
 
         Short, M.D., orthopaedic surgeons, found in September of 1984 
 
         that:
 
         
 
                 She walks without difficulty, equally weight 
 
              bearing.  There is no limp or list, and she can readily 
 
              walk on her toes and heels without difficulty.  She 
 
              does 75% of a squat and rise, but can get to the floor 
 
              on her knees and raise herself.  There is no evidence 
 
              of scoliosis.  A normal dorsal kyphotic curve is 
 
              present, and the lumbar lordotic curve is felt to be 
 
              increased.  Her spinal posture is fair only.
 
         
 
                 She can bend forward approximately 60 to 70 degrees 
 
              with her fingertips 14 inches from the floor.  Her 
 
              lumbar curve flattens, and in fact straightens but does 
 
              not reverse.  There is no catch upon straightening.  
 
              She can bend backwards 20 degrees.  She can bend to the 
 
              right 30 and to the left the same, and rotate to the 
 
              left and right 30 degrees.
 
         
 
                 Muscle strength in the lower extremities is 
 
              considered normal without isolated evidence of 
 
              weakness, but there is giveway on testing in the right 
 
              lower extremity, and has a cogwheel effect which is 
 
              voluntary.  She has strong gluteals and the abdominal 
 
              muscles are fair only.
 
         
 
                 Passive hip rotation is full.  Bent leg testing is 
 
              to 120 degrees bilaterally, straight leg raising is 80 
 
              degrees bilaterally, and she has negative dorsiflexion, 
 
              plantar flexion ....
 
         
 
                 ....
 
         
 
                 She can fully extend both knees, while sitting, to 
 
              180 degrees, and bring her fingertips within 10 inches 
 
              of the toes.
 
         
 
                 In our opinion there is a functional disturbance 
 
              present manifested by mild interference and 
 
              inconsistencies on range of motion.  Also it is felt 
 

 
         
 
         
 
         
 
         PETERS V. ELKS LODGE   684
 
         Page òòò
 
         
 
         
 
              there is a functional problem present.
 
         
 
              Drs. Logan, Clarke and Faulkner concluded that "the 
 
         patient's symptoms are out of proportion with the physical 
 
         findings," and that "if she does have impairment, it is on a 
 
         subjective basis only."
 
         
 
              Claimant underwent a psychological evaluation in 1979.  
 
         George S. Laird, Jr., Ph.D., concluded that claimant "has a 
 
         strong sense of right and wrong, and lives by some pretty hard 
 
         and fast rules.  She is conscientious and concerned .... and it 
 
         is felt that [claimant] is well motivated for return to her 
 
         previous employment."
 
         
 
              None of the medical evidence contained a rating of 
 
         impairment.  The parties stipulated that claimant's weekly rate 
 
         of compensation is $52.28.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Under Caterpillar Tractor Company v. Mejorado, 410 N.W.2d 
 
         675 (Iowa 1987), a claimant is not required to prove a change in 
 
         condition upon review-reopening based upon a memorandum of 
 
         agreement.  Claimant's proper burden is to prove that increased 
 
         disability for which no compensation has been paid was caused by 
 
         the injury.  Also see Chamberlin v. Ralston Purina, Appeal 
 
         Decision filed October 29, 1987, File No. 661698; Shoemaker v. 
 
         Adams Door Company, Appeal Decision filed August 30, 1985, File 
 
         No.653861.
 
         
 
              A memorandum of agreement settles two issues:  That an 
 
         employer-employee relationship existed; and that the injury arose 
 
         out of and in the course of employment.  Freeman v. Luppes 
 
         Transport Company, Inc., 227 N.W.2d 143, 149, 150 (Iowa 1975).
 
         
 
              Iowa Code 86.13 (1977) states:
 
         
 
                 If the employer and the employee reach an agreement 
 
              in regard to the compensation, a memorandum thereof 
 
              shall be filed with the industrial commissioner by the 
 
              employer or the insurance carrier, and unless the 
 
              commissioner shall, within twenty days, notify the 
 
              employer or the insurance carrier and employee of his 
 
              disapproval of the agreement by certified mail sent to 
 
              their addresses as given on the memorandum filed, the 
 
              agreement shall stand approved and be enforceable for 
 
              all purposes except as otherwise provided in this and 
 
              chapters 85 and 87.
 
         
 
                 Such agreement shall be approved by said 
 
              commissioner only when the terms conform to the 
 
              provisions of this and chapter 85.
 
         
 
                 Any failure on the part of the employer or insurance 
 
              carrier to file such memorandum of agreement with the 
 
              industrial commissioner within thirty days after the 
 
              payment of weekly compensation is begun shall stop the 
 
              running of section 85.26 as of the date of the first 
 
              such payment.
 

 
         
 
         
 
         
 
         PETERS V. ELKS LODGE   784
 
         Page òòò
 
         
 
         
 
         
 
              If 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 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 
 

 
         
 
         
 
         
 
         PETERS V. ELKS LODGE   884
 
         Page òòò
 
         
 
         
 
         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 
 
         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).
 
         
 
                                     ANALYSIS
 
         
 
              This case is a review-reopening proceeding with a prior 
 
         memorandum of agreement filed with the industrial commissioner.  
 
         A memorandum of agreement merely establishes an employer-employee 
 
         relationship between claimant and defendant, and establishes that 
 
         her injury arose out of and in the course of her employment.  It 
 
         did not establish the extent of her disability.  Thus, claimant 
 
         was not required to show a change of condition in order to 
 
         receive further benefits.
 
         
 
              Doctors Logan, Clarke and Short concluded that claimant's 
 
         symptoms were "out of proportion" to their physical findings.  
 
         Dr. Stone and Dr. Russo also could offer no physical reason for 
 
         her continued pain.  However, the testimony of Dr. Laird showed 
 
         that claimant's psychological test revealed her to be 
 
         "conscientious" and "well motivated for return to her previous 
 
         employment."  Her testimony throughout the record is consistent 
 
         as to the frequency and extent of her pain.  The evidence is 
 
         uncontroverted that her back injury is permanent.
 
         
 
              The extent of that disability is determined by several 
 
         factors.  Claimant is 55 years old and has an eighth grade 
 
         education.  Both claimant's age and education limit her ability 
 

 
         
 
         
 
         
 
         PETERS V. ELKS LODGE   984
 
         Page òòò
 
         
 
         
 
         for retraining.  Her impairment restricts her from working at a 
 
         job that would require her to remain in either a standing or 
 
         seated position for longer than one-half hour at a given time.  
 
         She cannot bend, stoop or lift.  She has received medical advice 
 
         that her work as a waitress would aggravate her condition.  Her 
 
         work experience is limited to jobs that involve standing or 
 
         sitting for long periods of time, as well as bending, lifting, or 
 
         stooping.  Her psychological test shows her motivation to be 
 
         good.  She attempted to return to her job but found she could not 
 
         perform the duties she did previously.  She is periodically 
 
         bedridden.  Defendants, in their appeal brief, acknowledge that 
 
         claimant suffers from "a pronounced disability," and has an 
 
         Oextremely negative employability profile."
 
         
 
              Based on all factors, claimant is found to have an 
 
         industrial disability of 50 percent.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was 55 years old at the time of the hearing.
 
         
 
              2.  Claimant has only an eighth grade education and has been 
 
         employed solely at manual labor jobs.
 
         
 
              3.  Claimant started working as a waitress for Elks Lodge 
 
         #84 in Burlington in August 1976.
 
         
 
              4.  On December 5, 1978 claimant was working as a waitress 
 
         for Elks Lodge #84 and sustained an injury arising out of and in 
 
         the course of her employment.
 
         
 
              5. Claimant sustained permanent partial impairment to her 
 
         body as a whole as a result of her back injury on December 5, 
 
         1978.
 
         
 
              6. In 1980 defendants paid claimant 50 weeks of permanent 
 
         partial disability benefits.
 
         
 
              7.  Since 1980 claimant's back condition has significantly 
 
         deteriorated.
 
         
 
              8.  Since 1980 claimant's back condition has not improved to 
 
         the extent anticipated.
 
         
 
              9.  Claimant currently has a low back problem with a lifting 
 
         restriction, and has difficulty bending, standing, sitting, and 
 
         walking.
 
         
 
             10.  Claimant wears a back brace and is often bedridden.
 
         
 
             11.  Claimant is not able to sit or stand in one position 
 
         longer than one-half hour.
 
         
 
             12.  Claimant cannot now perform the duties of her job.
 
         
 
             13.  Claimant is not a malingerer.
 
         
 
              14.  Claimant's stipulated weekly rate of compensation is 
 
         $52.28.
 

 
         
 
         
 
         
 
         PETERS V. ELKS LODGE  1084
 
         Page òòò
 
         
 
         
 
         
 
              15.  Dr. Reschly was and is a physician authorized by Aetna 
 
         to treat claimant for her injury of December 5, 1978.
 
         
 
              16.  The contested medical bills in this case are causally 
 
         connected with claimant's injury of December 5, 1978.
 
         
 
              17.  Claimant's industrial disability is 50 percent as it 
 
         relates to the body as a whole.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant was not required to show a change of condition on 
 
         review-reopening based on a memorandum of agreement.
 
         
 
              Claimant's injury arose out of and in the course of her 
 
         employment.
 
         
 
              As a result of her injury of December 5, 1978 claimant has a 
 
         permanent partial disability of 50 percent.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants are to pay unto claimant two hundred fifty 
 
         (250) weeks of permanent partial disability benefits at a rate of 
 
         fifty-two and 28/100 dollars ($52.28) per week from January 26, 
 
         1980.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              That defendants shall reimburse claimant in the amount of 
 
         one hundred eighty-five and 42/100 dollars ($185.42) for medical 
 
         bills.
 
         
 
              That defendants shall pay interest on weekly benefits 
 
         awarded herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants are to be given credit for benefits 
 
         previously paid.
 
         
 
              That defendants are to pay the costs of this action.
 
         
 
              That defendants shall file claim activity reports pursuant 
 
         to Division of Industrial Services Rule 343-3.1(2).
 
         
 
         
 
              Signed and filed this 27th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 

 
         
 
         
 
         
 
         PETERS V. ELKS LODGE  1184
 
         Page òòò
 
         
 
         
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William Bauer
 
         Attorney at Law
 
         Sixth Floor, Burlington Bldg.
 
         Burlington, Iowa 52601
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         111 East Third Street
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa 52801-1550
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    2902; 2905; 1803
 
                                                    Filed 1-27-88
 
                                                    David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DONNA M. PETERS,
 
         
 
               Claimant,
 
         
 
         VS.
 
         
 
         ELKS LODGE #84,                           File No. 526221
 
         
 
              Employer,                              A P P E A L
 
         
 
         and                                       D E C I S I 0 N
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
         2902; 2905
 
         
 
              It was held that claimant was not required to show a change 
 
         of condition in a review-reopening proceeding based on a 
 
         memorandum of agreement, citing Caterpillar Tractor Company v. 
 
         Mejorado, 410 N.W.2d 675 (Iowa 1987).
 
         
 
         1803
 
         
 
              Claimant was a 55 year old waitress with an eighth grade 
 
         education.  No rating of impairment was given, but claimant 
 
         testified she could not bend or lift.  Claimant was awarded 50% 
 
         permanent partial disability.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BARBARA A. HOOVER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 529205
 
            IOWA DEPARTMENT OF            :
 
            AGRICULTURE,                  :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendants appeal from a review-reopening decision 
 
            awarding permanent total disability benefits as the result 
 
            of an alleged injury on August 2, 1978.  The record on 
 
            appeal consists of the transcript of the review-reopening 
 
            proceeding; claimant's exhibits 1-41 and defendants' 
 
            exhibits A, B, C, E and F.  Both parties filed briefs on 
 
            appeal.
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the following issues on appeal:
 
            
 
                    1.  Did the Deputy abuse his discretion in 
 
                 refusing to admit Exhibit G (Claimant's 
 
                 deposition) on the ground that Defendants did not 
 
                 reasonably supplement their answers to 
 
                 interrogatories pertaining to surveillance 
 
                 activities of the Defendant?
 
            
 
                    2.  Did the deputy err in finding Claimant had 
 
                 suffered increased disability which was 
 
                 proximately caused by Claimant's work-related 
 
                 injury?
 
            
 
                    3.  Did the Deputy err in finding that 
 
                 claimant's problems with degenerative joint 
 
                 disease, which the Deputy found as the cause of 
 
                 Claimant's increased disability, was not 
 
                 contemplated by the parties at the time of the 
 
                 prior hearing?
 
            
 
                    4.  Did the Deputy err in finding that Claimant 
 
                 was a credible witness?
 
            
 
                    5.  Did the Deputy abuse his discretion in 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 failing to recuse himself from this case?
 
            
 
                                  APPLICABLE LAW
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and the evidence.
 
            
 
                                     ANALYSIS
 
            
 
                 Claimant was employed by the Iowa Department of 
 
            Agriculture as an animal inspector.  Claimant was injured 
 
            when she fell on August 2, 1978.  Claimant was diagnosed as 
 
            suffering from degenerative disc disease in her lower back 
 
            and degenerative joint disease in her left knee.  After a 
 
            hearing in 1985, claimant received an award of 55 percent 
 
            industrial disability.  Claimant now seeks further 
 
            review-reopening based upon an alleged worsening of her back 
 
            and knee conditions.  
 
            
 
                 The initial issue on appeal is the deputy's exclusion 
 
            of claimant's deposition from the evidence admitted into the 
 
            record.  Although this issue and another appeal issue were 
 
            phrased by defendants in terms of whether the deputy abused 
 
            his discretion, the abuse of discretion is a standard of 
 
            review utilized in judicial review of appeals of final 
 
            agency action under Iowa Code chapter 17A.  An appeal of a 
 
            deputy's proposed decision to the industrial commissioner is 
 
            de novo.
 
            
 
                 Defendants utilized surveillance evidence in this case 
 
            consisting of personal observations, videotape, and still 
 
            photographs.  An interrogatory served upon defendants by 
 
            claimant inquired whether any surveillance activity had 
 
            occurred, and on April 22, 1987, defendants responded that 
 
            no such activity had occurred as of that date.  Surveillance 
 
            was commenced on May 11, 1987.  Defendants conducted a 
 
            deposition of claimant on May 27, 1987.  At said deposition, 
 
            claimant allegedly made statements that were contradicted by 
 
            the surveillance videotapes.  After claimant's deposition, 
 
            defendants supplemented their earlier interrogatory answer 
 
            to indicate that surveillance had occurred and claimant's 
 
            attorney was given an opportunity to depose those witnesses 
 
            involved in the surveillance and to examine the surveillance 
 
            evidence.  At hearing over a year later, objection was made 
 
            to the deposition of claimant based upon the failure to 
 
            timely supplement the interrogatory and the deputy excluded 
 
            the deposition.  The surveillance evidence itself was 
 
            admitted into the record and is not challenged in this 
 
            appeal.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Rule 343 IAC 4.35 states: 
 
            
 
                    The rules of civil procedure shall govern the 
 
                 contested case proceedings before the industrial 
 
                 commissioner unless the provisions are in conflict 
 
                 with these rules and Iowa Code chapters 85, 85A, 
 
                 85B, 86, 87 and 17A, or obviously inapplicable to 
 
                 the industrial commissioner.  In those 
 
                 circumstances, these rules or the appropriate Iowa 
 
                 Code section shall govern.  Where appropriate, 
 
                 reference to the word "court" shall be deemed 
 
                 reference to the "industrial commissioner." 
 
            
 
                 Iowa Rule of Civil Procedure 122"d"(2)(B) states:
 
            
 
                    A party is under a duty seasonably to amend a 
 
                 prior response if the party obtains information 
 
                 upon the basis of which:
 
            
 
                    (B) The party knows that the response though 
 
                    correct when made is no longer true and the 
 
                    circumstances are such that a failure to 
 
                    amend the response is in substance a knowing 
 
                    concealment;
 
            
 
                 Defendants urge that "seasonably" in this context means 
 
            that the interrogatory must be supplemented in sufficient 
 
            time before the hearing to avoid prejudice to claimant.  
 
            Defendants cite several analogous federal cases for this 
 
            proposition.  Defendants also cite federal rule decisions 
 
            that create an exception to the requirement to supplement 
 
            answers to interrogatories when the purpose of the 
 
            interrogatory is to thwart cross-examination.  In the 
 
            surveillance context, these federal cases approve delaying 
 
            supplementation of interrogatory responses until after the 
 
            opposing party has committed to a position that the 
 
            surveillance was designed to controvert.  Defendants point 
 
            out that revealing the existence of surveillance evidence 
 
            would allow claimant to tailor her deposition answers to 
 
            conform with the surveillance evidence.  
 
            
 
                 In Daniels v. National Railroad Passenger Corp., 110 
 
            F.R.D. 160, at 161 (USDC, New York, 1986), it is stated:
 
            
 
                    The federal discovery rules were designed to 
 
                 encourage liberal pre-trial disclosure in order to 
 
                 make trial "less a game of blindman's bluff and 
 
                 more a fair contest with the basic issues and 
 
                 facts disclosed to the fullest practicable 
 
                 extent." (Citations omitted).  However, in order 
 
                 to protect the value of surveillance films to be 
 
                 used for impeachment of the plaintiff if he 
 
                 exaggerates his disabilities, while still serving 
 
                 the policy of broad discovery, it may be 
 
                 appropriate to require disclosure of such 
 
                 impeachment materials only after the depositions 
 
                 of the plaintiff or other witnesses to be 
 
                 impeached, so that their testimony may be frozen.
 
            
 
                    ...Before the disclosure, however, defendant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 must be afforded the opportunity to take the 
 
                 depositions of the plaintiff and any other 
 
                 affected persons, so that the prior recording of 
 
                 their sworn testimony will avoid any temptation to 
 
                 alter that testimony in light of what the films or 
 
                 tapes show. 
 
            Hikel v. Abousy, 41 F.R.D. 152, at 155 (USDC, Maryland, 
 
            1966) noted: "...[Surveillance films] would represent 
 
            material prepared for cross-examination or impeachment, and 
 
            this Court has held in analogous situations that 
 
            interrogatories need not be answered when the only purpose 
 
            of the interrogatory is to prevent effective 
 
            cross-examination. (Citations omitted)"
 
            In Martin v. Long Island Rail Road Company, 63 F.R.D. 53, at 
 
            55 (USDC, E.D. New York, 1974), although disclosure was 
 
            ordered, defendants were not required to disclose the 
 
            surveillance films until after the plaintiff's deposition 
 
            was taken:  "The plaintiff has already been committed to his 
 
            position by deposition and interrogatory, blunting the 
 
            argument that surprise may discourage successful perjury.  
 
            Were this not the case, the court would condition its order 
 
            granting an inspection on the plaintiff's first giving his 
 
            deposition and answering interrogatories."
 
            
 
                 Finally, in Blyther v. Northern Lines, Inc., 61 F.R.D. 
 
            610, at 611-612 (USDC, E.D. Penn., 1973), it is stated:
 
            
 
                 The underlying philosophy of predisclosure 
 
                 deposition is not that the "plaintiff" be deposed 
 
                 but that the deposition is to be taken of any 
 
                 person who will, when their testimony is reduced 
 
                 to written form under oath, furnish the reasonable 
 
                 degree of protection to the certainty of the 
 
                 matters that the film depicts so that there will 
 
                 be no temptation, intentionally, or otherwise, to 
 
                 alter testimony following the viewing of the film 
 
                 in order to meet evidentiary disadvantages that 
 
                 may be suggested by what the film shows.
 
            
 
                 The record clearly shows that defendants failed to 
 
            supplement their interrogatory answer as soon as it was 
 
            possible to do so, but rather intentionally withheld 
 
            supplementing the response until after claimant's deposition 
 
            as a tactical maneuver designed to bring to light any 
 
            possible inconsistent statement by claimant.  The record 
 
            also shows that claimant was not prejudiced by the delay in 
 
            supplementing the response in terms of lack of time to 
 
            prepare or foreclosure from cross-examining the participants 
 
            in the surveillance, as more than sufficient time elapsed 
 
            between the interrogatory supplementation and the hearing 
 
            for claimant to depose the participants and examine the 
 
            evidence, which claimant did do.  Rather, any possible 
 
            prejudice would lie in an alleged right to have the 
 
            interrogatory supplemented prior to claimant's deposition.
 
            
 
                 Iowa R.Civ.P. 122"d"(2)(B) does not set forth a time 
 
            frame for such a supplementation.  Rather, it speaks in 
 
            terms of "seasonably" supplementing the response.  There is 
 
            no Iowa authority for the meaning of "seasonably" in this 
 
            context.  However, other jurisdictions have addressed the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            issue.  Supplemental answers to interrogatories were held 
 
            not to be seasonable when the answers were made so close to 
 
            the time of the trial that the party seeking discovery was 
 
            prevented from preparing adequately for trial, even with the 
 
            exercise of due diligence.  Willoughby v. Kenneth W. 
 
            Wilkins, M.D., P.A., 65 N.C. App. 626, 310 S.E.2d 90, 100.  
 
            It has also been held that a party who supplements an 
 
            interrogatory within a reasonable time does so seasonably.  
 
            State ex rel. Missouri Highway and Transp. Com'n v. Pully, 
 
            737 S.W.2d 241, 244 (Mo. App.).  "Seasonably" under Iowa 
 
            R.Civ.P. 122"d"(2)(B) would therefore appear to mean that an 
 
            interrogatory supplement must be made in sufficient time to 
 
            prevent prejudice to the opposing party at the time of 
 
            trial.  The purpose of discovery is timely exchange of 
 
            information in preparation for trial.  As noted above, the 
 
            supplemental response in this case was made well in advance 
 
            of the hearing on claimant's petition.
 
            
 
                 Rule 122 prohibits a knowing concealment of information 
 
            that should be provided to the opposing party.  Here, it 
 
            seems clear that there was no intention to ultimately 
 
            conceal the existence of surveillance evidence from 
 
            claimant, but rather the intention was to delay the 
 
            revelation of that evidence's existence until after 
 
            claimant's deposition so that the evidence might have its 
 
            maximum effect for purposes of impeachment.  
 
            
 
                 Iowa precedent on this question is lacking.  However, 
 
            the federal cases cited by defendants, interpreting the 
 
            federal rules of civil procedure relating to surveillance 
 
            and interrogatories, do provide valid guidelines for 
 
            interpreting defendants' obligation to supplement their 
 
            interrogatory response under Iowa R.Civ.P. 122"d"(2)(B).  
 
            
 
                 In that the supplementation of the interrogatory 
 
            response was not withheld from claimant, but rather 
 
            postponed until after claimant's deposition, and since the 
 
            surveillance evidence was garnered for impeachment purposes, 
 
            defendants did not improperly fail to supplement their 
 
            interrogatory response.  Postponing the supplementation to 
 
            protect the impeachment value of the evidence until after 
 
            claimant's deposition, where sufficient time remained before 
 
            hearing for claimant to avoid prejudice by examining the 
 
            evidence and cross-examining the surveillance witnesses, was 
 
            not improper discovery.  To hold otherwise would be to hold 
 
            that claimant is entitled to protection from evidence that 
 
            might tend to impeach her credibility.  Impeachment evidence 
 
            is a valid and recognized tool of advocacy, and claimant is 
 
            not entitled to any such protection.  Claimant's deposition 
 
            should have been admitted into the record.
 
            
 
                 Although a remand to a deputy industrial commissioner 
 
            to consider the deposition would be appropriate, the nature 
 
            of the excluded evidence is such that it can be considered 
 
            on de novo review.  In light of the age of this case, the 
 
            delay that would be caused by a remand is not in the 
 
            interests of administrative economy.  Claimant's deposition 
 
            will be considered part of the record on appeal.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Defendants' second issue on appeal concerns whether 
 
            claimant has carried her burden on review-reopening to 
 
            establish a change of condition.  Claimant's degenerative 
 
            disc disease and her degenerative joint disease were present 
 
            and clearly contemplated at the time of the original award.  
 
            Upon review-reopening, claimant has the burden to show that 
 
            she has suffered a change in her condition since the 
 
            original award was made.  Henderson v. Iles, 250 Iowa 787, 
 
            96 N.W.2d 321 (1959).  A failure of a condition to improve 
 
            to the extent originally anticipated may also constitute a 
 
            change of condition.  Meyers v. Holiday Inn of Cedar Falls, 
 
            Iowa, 179 N.W.2d 24 (Iowa App. 1978).  Claimant, on 
 
            review-reopening, must show more than a change of 
 
            circumstances.  Claimant must show that the change of 
 
            circumstances was not contemplated by the original award.  
 
            Huffman v. Keokuk General Hospital, Appeal Decision, Aug. 
 
            25, 1988.
 
            
 
                 The testimony of Albert R. Coates, M.D., revealed that 
 
            claimant's degenerative joint disease in her knee was 
 
            contemplated at the time of her initial award, and that it 
 
            was contemplated at that time that because the disease is 
 
            degenerative, it would continue to deteriorate.  Thus, even 
 
            if claimant has experienced a deterioration of her knee 
 
            condition, that fact alone would not necessarily compel a 
 
            finding of a change of condition.  Where further worsening 
 
            of a condition is expected at the time of the award, later 
 
            deterioration of the condition does not constitute an 
 
            uncontemplated change of condition unless the worsening 
 
            occurs at a faster rate than originally anticipated, or to a 
 
            greater degree than contemplated at the time of the prior 
 
            award.
 
            
 
                 However, Dr. Coates also testified that claimant's 
 
            increased obesity, and resulting immobility, since the prior 
 
            award contributes to her present impairment.  There is 
 
            medical evidence in the record that obesity also tends to 
 
            put more pressure on the joints, thus aggravating the 
 
            degenerative joint disease. Therefore, claimant's knee 
 
            impairment contributes to her obesity, which in turn 
 
            contributes to her knee impairment.  Claimant was described 
 
            as having experienced a "marked" increase in obesity since 
 
            the prior medical examinations.  Claimant's obesity, which 
 
            contributes to her degenerative joint disease beyond the 
 
            normally expected rate of degeneration, may be a change of 
 
            condition not contemplated by the original award if it has 
 
            resulted in additional physical impairment.  
 
            
 
                 Although both Dr. Coates and Dr. Boulden remark on 
 
            claimant's obesity, there is no medical evidence to indicate 
 
            that claimant's obesity has resulted in increased 
 
            disability.  Claimant's obesity was noted at the time of the 
 
            1985 award of benefits, and her failure to lose weight after 
 
            being advised to do so appears in the findings of fact for 
 
            that decision.  Although Dr. Coates states that claimant has 
 
            gained weight since his last examination, and that 
 
            claimant's immobility contributes to her weight gain, there 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            is no showing that claimant's weight gain has resulted in 
 
            increased disability.
 
            
 
                 Dr. Coates said at the time of the original award that 
 
            claimant's condition would not get better and predicted that 
 
            claimant would have difficulty kneeling, bending, stooping, 
 
            or lifting.  In the present action, Dr. Coates stated that 
 
            claimant had not experienced any worsening of her 
 
            degenerative disk disease or degenerative joint disease in 
 
            her knee or back, even though claimant now had subjective 
 
            complaints of pain in her legs.  A CT scan showed no spinal 
 
            stenosis.  Although Dr. Coates noted that claimant suffered 
 
            from Briquet's syndrome, a psycholgical condition that 
 
            prompts a person to seek medical treatment, testing by two 
 
            psychologists and a psychiatrist did not reveal any 
 
            psychiatric disability.
 
            
 
                 Dr. Coates, at the time of the prior hearing, gave 
 
            claimant the following prognosis:
 
            
 
                 Q.  Now, what is her prognosis, if any, as it 
 
                 relates to the back?
 
            
 
                 ....
 
            
 
                 A.  That's difficult to assess.  She has enough 
 
                 degenerative disease that she isn't going to get 
 
                 better or at least significantly better, but 
 
                 frankly, may not get significantly worse as far as 
 
                 the back is concerned, because as you lose motion 
 
                 and she's already lost some motion, then it tends 
 
                 to stabilize, doesn't get worse, doesn't get 
 
                 better, just is there which is the history of 
 
                 degenerative joint disease of the back.
 
            
 
                 Q.  Are there any types of activities that you 
 
                 would feel that she is not able to perform at this 
 
                 time based upon your knowledge of her history and 
 
                 her medical condition?
 
            
 
                 A.  Yes.  I think any type of stooping or 
 
                 squatting, stair climbing, walking hills would be 
 
                 contraindicated because of the severity of her 
 
                 symptoms.  The stooping primarily in regards to 
 
                 the back, but kneeling or squatting in regards to 
 
                 the knee or climbing ladders or hills.  The knee 
 
                 simply isn't stable enough to withstand that type 
 
                 of stress.
 
            
 
            (Dr. Coates Deposition, pages 21-22)
 
            
 
                 On September 15, 1986, Dr. Coates stated that 
 
            claimant's knee was unchanged, and that although there was 
 
            some bulging of disc material from L-3 through S-1, there 
 
            was no significant herniation and no evidence of significant 
 
            spinal stenosis.  Dr. Coates also described the CT scan as 
 
            "quite accurate" for diagnosing spinal stenosis.  Dr. Coates 
 
            predicted that claimant's obesity would compound her 
 
            symptoms.  Dr. Coates also adopted a statement summarizing a 
 
            phone conversation with claimant's attorney in which Dr. 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Coates states that claimant's objective findings in relation 
 
            to the stability of her knee and her back had not improved 
 
            since his last examination of claimant in February of 1984; 
 
            claimant's subjective symptoms of pain had worsened; and 
 
            claimant's degenerative joint disease in her left knee and 
 
            back has continued to worsen as a result of her original 
 
            injury, resulting in a worsening of symptoms.
 
            
 
                 William Bolden, M.D., orthopedic surgeon, noted further 
 
            degenerative change at all five levels of claimant's lower 
 
            spine since 1985.  Dr. Boulden opined that claimant might 
 
            have spinal stenosis, although he did not conduct a CT scan 
 
            to verify this.
 
            
 
                 Dr. Boulden opined:
 
            
 
                 Q.  All right.  Was there a baseline that you were 
 
                 using to compare with any x-rays that you had in 
 
                 your possession prior to the examination of April 
 
                 26th, 1988?
 
            
 
                 A.  Yes.  We compared those with the 1984 films, 
 
                 when I first saw her.
 
            
 
                 Q.  And the difference was that there were several 
 
                 levels of the lumbar spine involved that were not 
 
                 involved previously?
 
            
 
                 A.  That's correct, with increasing disk space 
 
                 narrowing; in other words, the space between the 
 
                 vertebrae had narrowed, and also an increased 
 
                 amount of bony spurs.  So there were basically 
 
                 three things that were new compared to her 1984 
 
                 films:  More disks were involved, what disks were 
 
                 involved in 1984 were even narrower now, as well 
 
                 as increased bony spur reaction.
 
            
 
            (Dr. Boulden Depo., p. 8)
 
            
 
                 Thus, the evidence indicating a change of condition, 
 
            other than claimant's own subjective testimony, consists of 
 
            Dr. Boulden's notation of additional disc degeneration and 
 
            possible spinal stenosis.  However, claimant's CT scan shows 
 
            she does not suffer from spinal stenosis, and Dr. Coates, 
 
            who examined claimant later in time than Dr. Boulden, opined 
 
            that claimant did not suffer from spinal stenosis, based on 
 
            the CT scan.  Dr. Coate's testimony shows no objective 
 
            evidence to indicate a physical change of condition, but 
 
            only claimant's subjective complaints of increased pain.
 
            
 
                 Dr. Coates does not find any physical change of 
 
            condition other than claimant's subjective complaints of 
 
            increased pain.  Dr. Boulden noted degenerative changes, but 
 
            did not state whether those changes were greater than would 
 
            have been expected in a degenerative condition.  In 
 
            addition, Dr. Boulden's diagnosis of possible spinal 
 
            stenosis has been refuted by the CT scan and findings of Dr. 
 
            Coates. 
 
            
 
                 At the time of the 1985 award of benefits, claimant's 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            condition consisted of a degenerative back condition and a 
 
            degenerative knee condition.  The nature of a degenerative 
 
            condition is such that further deterioration is expected, 
 
            and thus contemplated by the award of benefits.  The medical 
 
            reports of Dr. Coates and Dr. Boulden note further 
 
            degeneration of the knee and back conditions, but fail to 
 
            state that the degeneration observed is greater than that 
 
            which was contemplated at the time of the earlier hearing.  
 
            Dr. Coates, in his September 15, 1986 letter, refers to the 
 
            fact that progressive degenerative joint disease was 
 
            "considered initially and will continue to be the case."
 
            
 
                 At the time of the 1985 award of benefits, claimant's 
 
            condition consisted of a degenerative back condition and a 
 
            degenerative knee condition.  The nature of a degenerative 
 
            condition is such that further deterioration is expected, 
 
            and thus contemplated by the award of benefits.  The medical 
 
            reports of Dr. Coates and Dr. Boulden note further 
 
            degeneration of the knee and back conditions, but fail to 
 
            state that the degeneration observed is greater than that 
 
            which was contemplated at the time of the earlier hearing.  
 
            Dr. Coates, in his September 15, 1986 letter, refers to the 
 
            fact that progressive degenerative joint disease was 
 
            "considered initially and will continue to be the case."
 
            
 
                 Claimant's description of her symptoms as worse now 
 
            than before the 1985 award were ambiguous.  Claimant relies 
 
            on these allegedly more severe symptoms to establish that a 
 
            change of condition has occurred, yet claimant is less than 
 
            certain as to their frequency or severity:
 
            
 
                 Q.  Okay.  This daily occurrence of the sharp pain 
 
                 and this stiffness and soreness that you get in 
 
                 your knee and the slippage did not occur on a 
 
                 daily basis back in October of 1985 when you were 
 
                 awarded benefits?
 
            
 
                 A.  It occurs more often now.
 
            
 
                 Q.  And as I understand your testimony, it occurs 
 
                 on a daily basis?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  And it did not occur on a daily basis back 
 
                 then, in October of 1985?
 
            
 
                 A.  To the best of my knowledge, it never occurred 
 
                 every day.
 
            
 
                 Q.  How often would it occur, let's say, back in 
 
                 October of 1985, before?
 
            
 
                 A.  To the best of my knowledge, a couple of times 
 
                 a week.  I can't remember for sure.
 
            
 
                 Q.  Is there anything else about your knee that 
 
                 you think has physically changed or deteriorated 
 
                 since you received your award in October of 1985?  
 
                 We talked about the slippage, the sharp pain, and 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 the stiffness and soreness which occurs on a daily 
 
                 basis.  Is there anything else?
 
            
 
                 A.  Not that I can recall at this time.
 
            
 
                 Q.  Fine.
 
            
 
                     How about your back?  Tell me how your back 
 
                 has deteriorated since October of 1985.
 
            
 
                 A.  Okay.  It, too, becomes stiff and sore; and I 
 
                 have pain, more pain than I did before.
 
            
 
                 Q.  Okay.  So that I understand you, I assume that 
 
                 prior to your award in October of 1985 you had 
 
                 some stiffness and soreness and pain in your back, 
 
                 but the stiffness and soreness and pain is more 
 
                 frequent and worse now than it was in back in 
 
                 October of 1985?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  How often is your back sore and how often is 
 
                 it stiff?
 
            
 
                 A.  Every day.
 
            
 
                 Q.  Are you telling me then that prior to October 
 
                 of 1985 when you received your benefits your back 
 
                 was not stiff and sore every day?
 
            
 
                 A.  The best that I could recall, it was not stiff 
 
                 and sore every day.
 
            
 
                 ....
 
            
 
                 Q.  Can you tell me what you can't do or what you 
 
                 can't do as well now that you could before your 
 
                 award in 1985, in October of 1985?
 
            
 
                 A.  Whatever I do at this time, I cannot do it as 
 
                 long; and in doing it I have more pain and 
 
                 stiffness and soreness.
 
            
 
                 Q.  All right.  Let me characterize some physical 
 
                 maneuvers, and you characterize it for me as the 
 
                 contrast between now and back in October of 1985.
 
            
 
                     Let's say walk; how far could you walk back 
 
                 then in October of 1985 and how far can you walk 
 
                 now?
 
            
 
                 A.  I do not recall how far I could walk back 
 
                 then.
 
            
 
            (Barbara Hoover Depo., pp. 11-13, 31)
 
            
 
                 Claimant bears the burden of proof in review-reopening 
 
            to show that a change of condition not contemplated by the 
 
            earlier award has occurred.  Claimant has failed to carry 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            that burden.  
 
            
 
                 Even if a change of condition has been shown, claimant 
 
            must also show that the change of condition has resulted in 
 
            further disability in order to be awarded further benefits.  
 
            A change of physical condition without a change of 
 
            industrial disability is not sufficient to justify an 
 
            increase in benefits.  Doyle v. Land O' Lakes, Inc. (Appeal 
 
            Decision, November 30, 1987).
 
            
 
                 At the time of the prior award, claimant had a lifting 
 
            restriction of 15-20 pounds, a rating of 50 percent 
 
            permanent partial impairment of her left leg, and an 
 
            industrial disability of 55 percent.  Claimant was also 
 
            restricted from stooping, running, squatting, and climbing.
 
            
 
                 Claimant now states that both her back and knee have 
 
            worsened, and that now she can only sit for one hour at a 
 
            time, can stand for only ten minutes at a time, and that she 
 
            must rest after one to two hours exertion.  She states she 
 
            can only lift items weighing no more than ten pounds, cannot 
 
            bend over without experiencing pain, and that she must 
 
            frequently use a cane.  Claimant states that her pain has 
 
            radiated.
 
            
 
                 Thelma Allan testified that claimant uses a cane for 
 
            walking up steps and inclines, and has to be helped up after 
 
            kneeling. 
 
            
 
                 Claimant testified as follows at the hearing in this 
 
            case:
 
            
 
                 Q.  Now, as far as standing is concerned, do you 
 
                 have any estimate as to how long you can stand 
 
                 and/or walk comfortably?
 
            
 
                 MR. LAVORATO:  Can we break that down to standing 
 
                 and walking?
 
            
 
                 MR. JAYNE:  Sure.
 
            
 
                    How long can you stand comfortably, if you can 
 
                 estimate the time?
 
            
 
                 A.  Well, as of recently to stand comfortably 
 
                 until I like to change position is probably 10 
 
                 minutes at the most.
 
            
 
                 Q.  As far as walking is concerned, how long, in 
 
                 your estimate, can you walk comfortably, that is, 
 
                 as far as time is concerned?
 
            
 
                 A.  Well, if it is on level ground, I might be 
 
                 able to walk -- you mean time like minutes?
 
            
 
                 Q.  Yes, or distance, whichever is easiest for 
 
                 you.
 
            
 
                 A.  It would be real uncomfortable in walking on 
 
                 smooth ground, or a smooth walk or something, it 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 might be maybe 10 to 15 minutes.  But on rougher 
 
                 ground, it could be less than that depending on 
 
                 the pressure.
 
            
 
                 Q.  After you walked this 10 minutes, 15 minutes, 
 
                 do you need to do anything?
 
            
 
                 A.  I need to change my position, that is, by 
 
                 either sitting down or sometimes rest against 
 
                 something or getting pressure off of one -- off 
 
                 the knee or something to this effect, changing to 
 
                 help alleviate some of the pain.
 
            
 
                 Q.  How does your tolerance for being able to 
 
                 stand and walk now compare with three years ago, 
 
                 you know, at or about the time of the hearing?
 
            
 
                 A.  Well, at this time it has gotten worse.  The 
 
                 last time -- it is less time that I have that I 
 
                 would consider comfortable.
 
            
 
                 ....
 
            
 
                 Q.  During the normal course of a day, can you 
 
                 estimate how frequently you think you would lift, 
 
                 from any position, more than 10 pounds?
 
            
 
                 A.  Boy, I don't know.  Not very often.  You know, 
 
                 10 pounds is not too much.  I don't think -- I 
 
                 can't think of lifting that too often at all.  I 
 
                 mean I would have to go someplace or something.
 
            
 
                 Q.  If you were standing up and like had to pick a 
 
                 paper clip off the floor, are you able to do that?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  How would you do it?
 
            
 
                 A.  Well, I grab ahold of something.  If I don't 
 
     
 
            
 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 have to get down -- if I am not around people, I 
 
                 can swing my leg out and bend over, hanging onto 
 
                 something picking it up.  Or sometimes I may have 
 
                 to get clear down, but I need help to get down or 
 
                 up.
 
            
 
                 .... 
 
            
 
                 Q.  When you get to the dump, what do you do as 
 
                 far as unloading, if anything, is concerned?
 
            
 
                 A.  I really don't do anything hardly.  I just 
 
                 stand there and get out of the road or move the 
 
                 truck once in a while when they unload and it gets 
 
                 too filled up.  I move the truck up, so --
 
            
 
                 .... 
 
            
 
                 BY MR. LAVORAT0:
 
            
 
                 Q.  Mrs. Hoover, as I understand it, you don't 
 
                 think you can lift more than 10 pounds 
 
                 comfortably, is that correct?
 
            
 
                 A.  I don't believe I can lift 10 pounds 
 
                 comfortable over a period of time without hurting 
 
                 me.
 
            
 
                 Q.  How much do you think you can lift at any one 
 
                 time?
 
            
 
                 A.  Well, that would depend on the circumstances, 
 
                 sir.  If it was an emergency, I might be able to 
 
                 lift more than that, but I would pay for it.
 
            
 
                    But normally I would not lift, say, more than 
 
                 10.  I would say the normal 10 to 12 pounds.  If I 
 
                 am going to lift something more than that, I would 
 
                 pay for it.
 
            
 
                 .... 
 
            
 
                 Q.  Thank you.  With regards to lifting, let me 
 
                 ask you this.  Do you recall May of 1987 your 
 
                 lifting a tire and its rim with one arm out of the 
 
                 trunk of a car?
 
            
 
                 A.  With one arm?
 
            
 
                 Q.  Yes.
 
            
 
                 A.  No, sir, I don't.
 
            
 
                 Q.  Could that have happened?
 
            
 
                 MR. JAYNE:  It is the same objection, by the way.  
 
                 I believe this may be information from the 
 
                 surreptitious --
 
            
 
                 DEPUTY COMMISSIONER WALSHIRE:  Same ruling.
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
                 A.  It could have happened when I was younger.  I 
 
                 would lift 50 pounds when I was able.
 
            
 
                 Q.  I want to hand you the same exhibit.  I want 
 
                 to direct you to photographs 21 and 23.  Do those 
 
                 photographs depict somebody lifting a tire and rim 
 
                 out of the back of the car?  I'm looking at 21 and 
 
                 23.
 
            
 
                 A.  Is that the only photographs you have, sir?
 
            
 
                 Q.  Answer the question.  Do the photographs 
 
                 depict somebody picking a tire and a rim out of 
 
                 the back of a car trunk?
 
            
 
                 A.  It does depict someone.
 
            
 
                 Q.  Is that someone you?
 
            
 
                 A.  I can't tell, sir.
 
            
 
                 Q.  Is that person picking that tire up with one 
 
                 hand?
 
            
 
                 A.  It looks like it, sir.
 
            
 
            (Transcript, pp. 64-66, 88-89, 93, 99-100, 105-106)
 
            
 
                 Claimant testified as follows in her deposition:
 
            
 
                 Q.  Now, you say you can walk maybe ten minutes or 
 
                 less?
 
            
 
                 A.  Depending on how long it takes me to get -- I 
 
                 can walk approximately a block and I'm feeling 
 
                 stiffness and soreness more.  If I have my cane, I 
 
                 may be able to walk a little longer.
 
            
 
                 Q.  What happens after a block?
 
            
 
                 A.  Well, if I can, I sit down or I rest or I 
 
                 stop.
 
            
 
                 Q.  You say you can walk maybe a block, maybe 
 
                 longer if you have your cane, but then, as I 
 
                 understand it, you may have to sit down or stop; 
 
                 is that correct?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  All right.  In relation to walking, how long 
 
                 can you keep on your feet?  You said ten minutes, 
 
                 you gave a figure of ten minutes; is that about 
 
                 the extent of how long you can keep on your feet?
 
            
 
                 A.  You mean stand?
 
            
 
                 Q.  Yes.
 
            
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
                 A.  Within ten minutes I'm feeling the pain or 
 
                 stiffness and soreness that I wish to change my 
 
                 position by sitting down, lying down or ---
 
            
 
                 Q.  Okay.  Can you kneel?
 
            
 
                 A.  I need a lot of help to kneel.
 
            
 
                 Q.  What do you mean?
 
            
 
                 A.  I have to hang on to an object or some one to 
 
                 kneel, and it takes me a while to get down.
 
            
 
                 Q.  Does somebody have to aid you or assist you in 
 
                 getting down?
 
            
 
                 A.  Some object or some one.
 
            
 
                 Q.  Is that true always?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  If you're down there, how long do you think 
 
                 you can stay there on your knees?
 
            
 
                 A.  I don't stay on my knees that long.  I sit 
 
                 down if I have to go down.
 
            
 
                 Q.  So you don't actually put any weight on your 
 
                 knees?
 
            
 
                 A.  I go down, then I sit completely down if I 
 
                 have to do something.  I sit down on the ground or 
 
                 on the floor.
 
            
 
                 Q.  Okay.  So if I understand it then, if you've 
 
                 got something you have to do closer to the ground, 
 
                 somebody has to assist you to the ground and you 
 
                 sit down instead of kneel down?
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
                 A.  Some object or some one to assist me down and 
 
                 then I sit down.
 
            
 
                 Q.  You don't actually put any weight on your 
 
                 knees?
 
            
 
                 A.  My good knee to get down to the sitting 
 
                 position.
 
            
 
                 Q.  But once you're down there, you don't put any 
 
                 weight on your knees?
 
            
 
                 A.  No.
 
            
 
                 Q.  Is that because they hurt too much or --
 
            
 
                 A.  Yes.
 
            
 
                 Q.  So I can characterize it by saying you don't 
 
                 do any kneeling?
 
            
 
                 A.  In that respect, no.
 
            
 
                 Q.  How about lifting?
 
            
 
                 A.  Very little.
 
            
 
                 Q.  Can you clarify that for me?  What do you mean 
 
                 by "very little"?
 
            
 
                 A.  A little handbag or I'd say less than ten 
 
                 pounds.
 
            
 
                 Q.  In other words, you can't lift more than ten 
 
                 pounds comfortably?
 
            
 
                 A.  Correct.
 
            
 
                 Q.  And can you at least squat down and pick 
 
                 something up less than ten pounds or is that just 
 
                 from the waist, bent?  I'm talking about bending.
 
            
 
                 A.  If I have to pick something off the floor, 
 
                 again, I have an object to assist me; and that way 
 
                 I have something to hang on to, and lean over and 
 
                 pick it up.  And if it's -- It would have to be 
 
                 less than ten pounds or it will stay there as far 
 
                 as I'm concerned.
 
            
 
                 Q.  So as I understand it, if you're going to pick 
 
                 something up from the ground, you assist yourself 
 
                 by bending, by leaning against something, and then 
 
                 leaning against it you pick the object up; if you 
 
                 can't lean against something or assist yourself in 
 
                 bending over you don't pick it up, is that right?
 
            
 
                 A.  That's right.
 
            
 
                 ....
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            
 
                 Q.  I note in looking at the prior records with 
 
                 regard to your job description as an inspector, 
 
                 you as part of your job had to climb hills and 
 
                 things of that nature; is that correct?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  Or inclines, whatever you want to call them.  
 
                 Can you climb hills or inclines now without 
 
                 assistance?
 
            
 
                 A.  An incline with much difficulty.
 
            
 
                 Q.  What do you mean, "with much difficulty"?
 
            
 
                 A.  Well, I'd have to use my good leg and any 
 
                 assistance that I could to climb up an incline.
 
            
 
                 Q.  How about a hill?
 
            
 
                 A.  Depending on the hill.
 
            
 
                 Q.  So as I understand it, if you had to go up an 
 
                 incline you would need assistance?
 
            
 
                 A.  Yes.
 
            
 
                 ....
 
            
 
                 Q.  Okay.  How long do you think you could stand 
 
                 or walk in combination for any given period of 
 
                 time?
 
            
 
                 A.  Ten minutes.  Approximately ten minutes.
 
            
 
                 Q.  And what would happen after ten minutes?
 
            
 
                 A.  I'd have to sit down or lie down or something 
 
                 to that effect.
 
            
 
                 ....
 
            
 
                 A.  I planted tomato plants.  I sit on the ground.  
 
                 I had assistance, and I scooted my hiney across 
 
                 the ground.
 
            
 
                 Q.  To plant those?
 
            
 
                 A.  Yes.  And I dug the hole and put the plant in 
 
                 and watered them and so forth and then I had 
 
                 assistance to get up.
 
            
 
                 Q.  Is that because you couldn't bend or squat?
 
            
 
                 A.  Yes.
 
            
 
                 ....
 
            
 
                 Q.  All right.  Let me ask you this:  Are you 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
                 saying that you have this discomfort and pain on 
 
                 such a continuous basis that no matter what you 
 
                 did you just couldn't fulfill any type of light 
 
                 duty?
 
            
 
                 A.  Anything that I would have to be required to 
 
                 do over a long period of time, whether it was 
 
                 sitting, standing, walking, over a long period of 
 
                 time I would get a lot of discomfort and pain.
 
            
 
                 Q.  What's a long period of time to you?
 
            
 
                 A.  After ten minutes of walking or standing or 
 
                 the combination I get discomfort and pain.  
 
                 Sitting, I get discomfort and pain.  So these jobs 
 
                 -- I've done this before and I know it requires a 
 
                 lot of walking and stairs, climbing stairs, up and 
 
                 down stairs, and so forth, and standing.  
 
                 Standing.
 
            
 
                 Q.  I guess what I'm saying is:  If you had an 
 
                 opportunity to change position any time you wanted 
 
                 to from standing to sitting and walking, you 
 
                 couldn't do that?  That would not help you?
 
            
 
                 A.  Over a long period of time.
 
            
 
                 Q.  And that's ten minutes to you?
 
            
 
                 A.  Well, on the average of ten minutes, yes.
 
            
 
                 ....
 
            
 
                 Q.  How do you get rid of your garbage?
 
            
 
                 ....
 
            
 
                 A.  Well, it's loaded into a pickup that Thelma 
 
                 has, and they take it the dump.
 
            
 
                 ....
 
            
 
                 Q.  Do you ever help load it?
 
            
 
                 A.  I might throw a small garage [sic] bag on, but 
 
     
 
            
 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
                 it's usually loaded by the time they're -- I don't 
 
                 have much to do with it.
 
            
 
                 Q.  Do they then go to the dump?
 
            
 
                 A.  They have to go to the dump to get rid of it.
 
            
 
                 Q.  Do you ever go with them?
 
            
 
                 A.  Once in a while I might ride along.
 
            
 
                 Q.  Do you ever do any unloading?
 
            
 
                 A. No.
 
            
 
            (Cl. Depo., pp. 32-35, 36, 38, 50, 59-60, 72-73)
 
            
 
                 Surveillance videotapes offered by defendants, showed 
 
            claimant engaged in outdoor activities at her residence over 
 
            a period of several days.  Claimant did not use a cane.  
 
            Claimant was observed to lift light objects, walk up small 
 
            inclines without assistance or apparent difficulty, kneel 
 
            down on her knees and arise without assistance, bend over to 
 
            work inside her car, etc.  Claimant appeared to avoid 
 
            lifting, but was not observed to require resting or sitting 
 
            down.  However, claimant was out of sight during those 
 
            periods of time she was indoors.  Claimant was seen lifting 
 
            a car tire with rim out of a car trunk and placing it on the 
 
            ground; bending over until her back was parallel to the 
 
            ground; using a stick as a lever to hold a doghouse off the 
 
            ground in order to flush a rat out from under the doghouse; 
 
            unloading boards and other items from a pickup bed into a 
 
            dumping area; and bending over repeatedly to remove items 
 
            from a car interior for loading onto a small wagon.
 
            
 
                 The tapes of claimant's activities controvert her 
 
            assertions that she must use a cane, and that she has 
 
            difficulty walking up inclines and kneeling.  The tapes also 
 
            contradict claimant's assertion that she cannot walk more 
 
            than 150 feet at a time, that she cannot lift more than 10 
 
            pounds, and that she cannot bend over.  The opinion of 
 
            vocational rehabilitation worker Carma Mitchell that 
 
            claimant was unemployable was based in part on these 
 
            assertions by claimant.
 
            
 
                 The surveillance tapes were not viewed by the 
 
            physicians offering opinions in this case, and thus it is 
 
            unknown if any of these medical opinions would be altered 
 
            after viewing the tapes.  The surveillance evidence was 
 
            given little weight by the deputy because of this.  However, 
 
            the surveillance tapes still have probative value in that 
 
            claimant's actions can be observed and compared to 
 
            claimant's statements of what she can and cannot physically 
 
            do, and are also relevant to claimant's credibility.
 
            
 
                 Licensed physical therapist, Thomas Bower, performed a 
 
            functional capabilities evaluation of claimant in 1987.  
 
            Those tests showed that claimant was capable of lifting 25 
 
            pounds from knee to chest; lifting 37 pounds over her head; 
 
            and maximum carrying of 22 pounds, maximum pushing of 48 
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            pounds, and maximum pulling of 44 pounds.  These findings 
 
            contradict claimant's assertion that she cannot lift more 
 
            than 10 pounds.
 
            
 
                 It is concluded that claimant has not carried her 
 
            burden to show that she has suffered a change of condition 
 
            not contemplated in the prior proceeding.  Even if 
 
            claimant's deposition is not brought into the record, 
 
            claimant has merely shown that she has subjective symptoms 
 
            of increased pain.  The opinion of Carma Mitchell was based 
 
            on claimant's description of her physical inabilities.  As 
 
            discussed above, claimant's statements to Ms. Mitchell have 
 
            been refuted by the surveillance tapes and photos.  Ms. 
 
            Mitchell acknowledged that if claimant could perform some of 
 
            the tasks claimant is plainly observed performing in the 
 
            tapes, that her opinion on claimant's unemployability would 
 
            be altered.  The medical evidence does not establish any new 
 
            restrictions on claimant's activities.  The tests of the 
 
            licensed physical therapist indicate physical impairment 
 
            roughly in keeping with claimant's prior award.  Even 
 
            without the benefit of claimant's deposition testimony, 
 
            claimant has failed to show further disability not 
 
            contemplated by the original award.  Claimant's deposition 
 
            is, however, a proper part of the record.
 
            
 
                 Thus, claimant's subjective complaints of increased 
 
            pain are unsubstantiated by objective medical evidence.  
 
            Claimant's restrictions and ratings of impairment are 
 
            unchanged.  Although degenerative changes have occurred, 
 
            these changes were clearly contemplated at the time of the 
 
            original award.  Claimant has failed to show a change of 
 
            condition.
 
            
 
                 Defendants also asserted a motion for recusal to the 
 
            deputy at the time of the hearing, based on the hearing 
 
            deputy's position as a president of the union local 
 
            representing state employees in grievance matters and 
 
            contract negotiations adverse to the state of Iowa as 
 
            employer.  The state of Iowa is the employer/defendant in 
 
            this case.  In essence, the motion was a motion for 
 
            disqualification pursuant to Iowa Code section 17A.17(4).  
 
            That section states:
 
            
 
                    A party to a contested case proceeding may file 
 
                 a timely and sufficient affidavit asserting 
 
                 disqualification according to the provisions of 
 
                 subsection 3, or asserting personal bias of an 
 
                 individual participating in the making of any 
 
                 proposed or final decision in that case.  The 
 
                 agency shall determine the matter as part of the 
 
                 record in the case.  When an agency in these 
 
                 circumstances makes such a determination with 
 
                 respect to an agency member, that determination 
 
                 shall be subject to de novo judicial review in any 
 
                 subsequent review proceeding of the case.
 
            
 
                 Iowa Code 17A.17(4) refers to a timely affidavit 
 
            alleging grounds for disqualification.  No such affidavit 
 
            was filed by the state in this case.  In addition, a motion 
 
            for recusal filed on the day of the scheduled hearing cannot 
 

 
            
 
            Page  21
 
            
 
            
 
            
 
            
 
            be viewed as timely, especially in light of the requirement 
 
            of 17A.17(4) that the agency, presumably someone other than 
 
            the deputy who is alleged to be biased, determine the 
 
            matter.  Deputy Walshire's union position and activities 
 
            were known to the defendants well in advance of the date of 
 
            the hearing.  In that the motion for recusal was not 
 
            properly raised in this instance, it will not be addressed 
 
            on appeal.  See Miller v. Woodward State Hospital School, 
 
            Appeal Decision, May 31, 1990.
 
            
 
                                 findings of fact
 
            
 
                 Claimant's permanent physical impairment of her left 
 
            leg and back has not increased beyond the extent 
 
            contemplated at the time of the prior award of benefits.
 
            
 
                 Claimant's credibility was successfully impeached by 
 
            the surveillance evidence.
 
            
 
                 Claimant's degenerative back condition and degenerative 
 
            left knee condition have not degenerated since the prior 
 
            award of benefits to a greater degree or at a faster rate 
 
            than contemplated at the time of the original award of 
 
            benefits.
 
            
 
                 Claimant has not received increased or further medical 
 
            restrictions since the prior award of benefits.
 
            
 
                 Claimant has not suffered a change of condition since 
 
            the prior award of benefits.
 
            
 
                                conclusions of law
 
            
 
                 Claimant's deposition is admissible.
 
            
 
                 Claimant has failed to carry her burden of proof to 
 
            show that she has suffered a change of condition since the 
 
            prior award of benefits.
 
            
 
                 Claimant's degenerative joint disease was contemplated 
 
            by the original award of benefits.
 
            
 
                 Claimant is not a credible witness.
 
            
 
                 Claimant's industrial disability has not increased 
 
            since the prior award of benefits.
 
            
 
                 Recusal of the hearing deputy was not required.
 
            
 
                 WHEREFORE, the decision of the deputy is reversed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Claimant shall take nothing from these proceedings. 
 
            
 
     
 
            
 
            
 
            Page  22
 
            
 
            
 
            
 
            
 
            Defendants are to pay the costs of this action, including 
 
            the costs of transcribing the hearing. 
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Avenue
 
            Suite 201
 
            Des Moines Iowa, 50312
 
            
 
            Mr. Charles S. Lavorato
 
            Assistant Attorney General 
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa 50319
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            3701; 2906; 2905; 2906
 
            LPW
 
            Filed April 30, 1991
 
            Clair R. Cramer
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BARBARA A. HOOVER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 529205
 
            IOWA DEPARTMENT OF            :
 
            AGRICULTURE,                  :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            3701, 2906
 
            Held on appeal that claimant's deposition should not have 
 
            been excluded.  Claimant served interrogatories on 
 
            defendants, and asked if any surveillance had been 
 
            conducted.  Defendants correctly answered in the negative.  
 
            A short time later, surveillance was conducted.  Defendants 
 
            then took claimant's deposition, at which time claimant made 
 
            statements as to her abilities.  The surveillance tapes 
 
            contradicted many aspects of claimant's statements.  
 
            Defendants then supplemented their interrogatory answer 
 
            immediately after claimant's deposition.  Claimant then had 
 
            the opportunity to view the tapes, and depose the personnel 
 
            who conducted the surveillance.  The hearing was not held 
 
            until approximately one year later.  
 
            It was held that the rule of civil procedure only requires a 
 
            party to "seasonably" supplement their answers.  Although no 
 
            direct Iowa authority was found, Federal cases on discovery 
 
            hold that it is proper discovery practice to withhold the 
 
            supplementation of an interrogatory answer to conceal 
 
            surveillance evidence until the opposing party commits to a 
 
            position the surveillance is designed to impeach, as long as 
 
            the disclosure is made in sufficient time for the party to 
 
            meet the evidence at trial.  Here, there was no prejudice to 
 
            claimant, who had more than adequate time to prepare her 
 
            case in light of the surveillance evidence.  The 
 
            supplementation of the interrogatory answer, made almost a 
 
            year before the hearing, was "seasonable."  Claimant has no 
 
            right not to be impeached.  
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
            2905
 
            Claimant, on review-reopening, was found to have failed to 
 
            carry her burden to show a change of condition.  Claimant 
 
            was previously awarded 55 percent industrial disability for 
 
            a degenerative knee condition and degenerative back 
 
            condition.  Claimant now states her pain has increased and 
 
            spread.  Two doctors, both of whom examined claimant prior 
 
            to the earlier award as well, re-examined claimant and did 
 
            not change her restrictions.  Although her condition had 
 
            worsened somewhat, this was contemplated in the original 
 
            award, in that both the knee and back conditions were 
 
            degenerative and expected to worsen.  The record was devoid 
 
            of any medical statement that it had worsened more or faster 
 
            than contemplated by the original award.  
 
            In addition, even if a change of condition not contemplated 
 
            by the original award has occurred, claimant did not show 
 
            that any additional disability resulted.  In fact, the 
 
            surveillance tapes show that claimant has exaggerated many 
 
            of her symptoms.  
 
            Claimant's obesity was noted by her physicians to have 
 
            increased.  However, her obesity was a finding of fact in 
 
            the prior award, and, again, there was no evidence that her 
 
            increased obesity, even if caused by her immobility from her 
 
            knee injury, had resulted in further disability.
 
            
 
            2906
 
            Defendants' motion to recuse deputy for bias was untimely 
 
            filed and properly denied. 
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BARBARA A. HOOVER,
 
         
 
              Claimant,
 
                                                 File No. 529205
 
         vs.
 
                                                  R E V I E W -
 
         IOWA DEPARTMENT OF AGRICULTURE,
 
                                                 R E 0 P E N I N G
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
                                                     F I L E D
 
         STATE  OF  IOWA,
 
                                                    APR 14 1989
 
              Insurance Carrier,
 
              Defendant.                   IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by Barbara 
 
         A. Hoover, claimant, against the Iowa Department of Agriculture, 
 
         an agency of the State of Iowa, which is self-insured for the 
 
         purposes of the workers' compensation claims, for the recovery of 
 
         further workers' compensation benefits as a result of an injury 
 
         on August 2, 1978.  A prior final review-reopening decision for 
 
         this injury was issued on October 8, 1985, awarding weekly 
 
         benefits for a 55 percent industrial disability.  On July 8, 
 
         1988, a hearing was held on claimant's petition in this 
 
         proceeding which was initiated by a petition on January 7, 1,987 
 
         and the matter was considered fully submitted at the close of 
 
         this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record in this case at the time of hearing.  Testimony was 
 
         received during the hearing from claimant and the following 
 
         witnesses:  Carma Mitchell, Lynn Roberts and Richy Cairns.  The 
 
         exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report, except that all of the deposition of Carma 
 
         Mitchell rather than portions is admitted.  The undersigned had 
 
         requested defendant to limit the deposition exhibit to avoid 
 
         duplication but after further thought, if portions are to be 
 
         given meaning, all of the questions and answers should be placed 
 
         in a complete context.
 
         
 
              Taken under advisement at hearing were objections to defense 
 
         exhibits B, E, F and G.  Exhibit B is a deposition of a private 
 
         investigator.  Exhibits E and F are photographs and video tapes 
 
         respectively of claimant's activity in April and May 1987 
 
         observed by private investigators retained by defendant.  Exhibit 
 
         G is the deposition of claimant taken in May 1987 subsequent to 
 
         the surveillance activity.  Claimant's objections to these 
 
         exhibits is based upon a failure to supplement responses to 
 
         interrogatories prior to the time of taking claimant's deposition 
 
         in May 1987. After a review of the evidence and being fully 
 
         advised in the premise, it is found as follows:  On April 23, 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         1987, defense counsel served answers to interrogatories upon 
 
         claimant indicating that it had taken no photos or tapes of 
 
         claimant's activities. After this response was made, defendant 
 
         retained private investigators and obtained exhibits E and F.  
 
         Then on May 27, 1987, defendant deposed claimant without 
 
         supplementing the response which previously denied that photos 
 
         and tapes existed. On June 2, 1987, after the deposition, the 
 
         response was supplemented and since July 17, 1987, claimant has 
 
         been afforded the opportunity to view the tapes and photos.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Given the opportunity of claimant to view the photos and 
 
         tapes and to take the deposition of the investigators prior to 
 
         hearing, claimant's objections to the exhibits B, E and F are 
 
         overruled.  However, the objection to exhibit G, claimant's 
 
         deposition, must be sustained and the evidence excluded from 
 
         consideration in this case.  Defendant argues that they are under 
 
         no obligation to provide materials obtained in anticipation of 
 
         litigation such as photos and tapes prior to taking of a 
 
         deposition of the claimant and cite as authority a decision by a 
 
         federal district court judge in Daniels v. National Railroad 
 
         Passenger Corp., C. 110 F.R.D. 160 (S.D.N.Y. 1986).  The theory 
 
         of that ruling is that if defendants were required to provide 
 
         such evidence prior to deposition, they would be denied the 
 
         opportunity to confront the witness with adverse evidence and 
 
         denied the opportunity to elicit the witness' response from such 
 
         evidence when credibility is at issue.  Although the undersigned 
 
         has serious reservations as to the probative value of so-called 
 
         "surprise confrontation," defendant has missed the issue.  The 
 
         issue is not whether they are under an obligation to provide the 
 
         information prior to deposition.  The issue is whether there is 
 
         an obligation to supplement a response previously made.  Pursuant 
 
         to Division of Industrial Services Rule 343-4.34, the Iowa Rules 
 
         of Civil Procedure are applicable to these proceedings.  Iowa 
 
         Rule of Civil Procedure 122(d)(2)(B) states as follows:
 
         
 
              A party is under a duty seasonably to amend a prior response 
 
              if the party obtains information upon the basis of 
 
              which:...The party knows that the response though correct 
 
              when made is no longer true and the circumstances are such 
 
              that a failure to amend the response is in substance a 
 
              knowing concealment; ...
 
         
 
              In the case at bar, defendant may not have been under an 
 
         obligation to respond to the discovery request when it was. 
 
         initially made but when it chose to do so, the defense incurred a 
 
         duty to supplement that response.  The language of Rule 122 is 
 
         clear.  The taking of any deposition of claimant's witnesses 
 
         while concealing the incorrect prior response is not permitted.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  If permanent disability benefits are awarded, they shall 
 
         begin as of November 16, 1986.
 
         
 
              2.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $137.25 
 
         per week.
 
         
 
              3.  The medical bills submitted by claimant at hearing were 
 
         fair and reasonable and causally connected to the medical 
 
         condition upon which the claim is based but that the issue of 
 
         their causal connection to the work injury remained at issue.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
                I.  Whether there is a causal relationship between the 
 
         1978 work injury and the claimed change of condition since the 
 
         last proceeding;
 
         
 
               II.  The extent of claimant's entitlement to weekly 
 
         benefits for disability in the event a change of condition is 
 
         established;
 
         
 
              III.  The extent of claimant's entitlement to medical 
 
         benefits; and,
 
         
 
               IV.  The extent of defendant's entitlement to take a credit 
 
         under Iowa Code section 85.38(2).
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a brief summary of the more pertinent 
 
         evidence.  Whether or not specifically referred to in this 
 
         summary, all of the evidence received at the hearing was reviewed 
 
         and considered in arriving at this decision.  Any conclusionary 
 
         statements in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              The following findings of fact were made in the 1985 
 
         review-reopening decision:
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              That claimant is forty-nine years of age.
 
         
 
              That claimant is a high school graduate.
 
         
 
              The claimant worked for defendant employer as a livestock 
 
              inspector.
 
         
 
              That claimant has wide ranging work experience.
 
         
 
              That claimant has had a pilot license and a permit to carry 
 
              a weapon.
 
         
 
              That claimant has a private detective's license and a 
 
              chauffeur's license.
 
         
 
              That on August 2, 1978 claimant stepped in a hole and 
 
              twisted her right ankle.
 
         
 
              That a memorandum of agreement has been filed in this 
 
              matter.
 
         
 
              That claimant was permitted to return to work on even ground 
 
              on August 14, 1978.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              That on November 15, 1978 claimant's left knee gave way and 
 
              she fell.
 
         
 
              That claimant had a partial hemilaminectomy of L4 and L5 on 
 
              the left on July 31, 1959 and thereafter had periodic 
 
              complaints of lumbosacral pain.
 
         
 
              That claimant has been advised to lose weight from the time 
 
              of her back surgery.
 
         
 
              That claimant has taken many pain medications over the past 
 
              twenty years.
 
         
 
              That claimant's emotional problems began in the early 60's.
 
         
 
              That claimant dislocated her left knee in a tree felling 
 
              incident in 1963.
 
         
 
              That claimant was thought to have a drug dependency as early 
 
              as 1977.
 
         
 
              That claimant had an exploration of the lateral aspect of 
 
              the left knee and reconstruction of the lateral collateral 
 
              ligament.
 
         
 
              That after surgery claimant continued to have instability of 
 
              the knee.
 
         
 
              That Claimant has degenerative disc disease in her back.
 
         
 
              That claimant used crutches following the incident of August 
 
              2, 1978.
 
         
 
              That impairment to claimant's [sic] left knee is directly 
 
              traceable to claimant's injury of August 2, 1978.
 
         
 
              That impairment of claimant's knee has aggravated her 
 
              preexisting back condition.
 
         
 
              That claimant became addicted to Darvocet N-100 -- a drug 
 
              needed to treat her compensable injury.
 
         
 
              That claimant has motivation but she will need realistic 
 
              direction.
 
         
 
              That claimant has potential for rehabilitation.
 
         
 
              That taking on an entry level position will result in a 
 
              reduction in claimant's actual earnings.
 
         
 
              That claimant has failed to lose weight which would benefit 
 
              both her back and knee conditions.
 
         
 
              That claimant has permanent functional impairment of her leg 
 
              of fifty percent and additional permanent functional 
 
              impairment to her back.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant is restricted from stooping, running, 
 
              squatting, and climbing.
 
         
 
              That claimant is limited to weight lifting of fifteen to 
 
              twenty pounds.
 
         
 
              That defendant employer has not used its resources to return 
 
              claimant to work.
 
         
 
              That claimant has permanent partial industrial disability of 
 
              fifty-five percent.
 
         
 
              That claimant's orthopedic problem reached maximum medical 
 
              improvement as of July 2, 1980.
 
         
 
              That claimant was unable to work because of drug addiction 
 
              from April 28, 1983 through October 27, 1984.
 
         
 
              In this proceeding claimant testified that her knee and back 
 
         conditions have worsened.  She stated at hearing that she can sit 
 
         comfortably only for one hour.  She can stand only ten minutes 
 
         comfortably and then,must change positions.  She said that she 
 
         can walk only on level ground for 10 to 15 minutes but this would 
 
         depend upon how she felt on a particular day.  She stated that 
 
         her ability to stand and walk or sit has become worse since the 
 
         hearing.  Claimant said that she must rest after one to two hours 
 
         of activity.  Claimant said that she can only lift up to ten 
 
         pounds without difficulty.  She testified that she could lift 
 
         more but would be under considerable pain after doing so.  
 
         Claimant said that she cannot walk on uneven ground or on steps 
 
         comfortably and must use assistance or support to do so.
 
         
 
              Subsequent to the last proceeding in 1985, claimant stated 
 
         to Carma Mitchell, vocational rehabilitation consultant who 
 
         testified at the previous hearing, that she has much of the same 
 
         self described limitations except that her sitting is limited to 
 
         15 to 30 minutes.
 
         
 
              Claimant has also indicated to Mitchell that she uses her 
 
         cane now more than before and walking for any length of time 
 
         requires use of a cane or support by grabbing surrounding 
 
         structures while walking.  Claimant stated to Mitchell that she 
 
         cannot bend without pain and that her neck, shoulder and arms now 
 
         are giving her more pain which limits her ability to reach and 
 
         work in a sitting position.
 
         
 
              Claimant's knee and back disabilities have been evaluated by 
 
         two board certified orthopedic surgeons since the last hearing in 
 
         1985.  Both of these physicians evaluated claimant prior to the 
 
         1985 hearing.  Albert Coates, M.D., testified in a deposition in 
 
         November 1985 before the last hearing that claimant's condition 
 
         would probably not get better or worse.  After his examination of 
 
         claimant in August 1986, he first noted that claimant had become 
 
         increasingly obese and that this contributes to her problems. 
 
         However, he admitted in correspondence with claimant's attorney 
 
         that her immobility from the knee and back problems caused by her 
 
         work injury significantly contributes to this obesity.  Dr. 
 
         Coates could not find any objective evidence of a worsening of 
 
         claimant's degenerative disc disease or degenerative joint 
 
         disease in the knee or back from his examination and testing of 
 
         claimant.  He was initially concerned about the development of 
 
         spinal stenosis but this was ruled out after a CT scan test.  Dr. 
 
         Coates stated that claimant's subjective pain has indeed worsened 
 
         and, unlike before, the pain now extends into the legs.  Dr. 
 
         Coates indicated in his deposition that if these complaints are 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         valid, this would evidence a worsening of the degenerative disc 
 
         disease and degenerative joint disease.  Dr. Coates, as before, 
 
         continued to opine that the original work injury in 1978 was a 
 
         significant contributing factor to these conditions.  Dr. Coates 
 
         also testified that the University of Iowa has diagnosed claimant 
 
         as having Briquet's syndrome which among other things causes a 
 
         psychological need to seek medical treatment with a variety of 
 
         physical complaints.  An actual medical report from the 
 
         University of Iowa for this diagnoses was not offered into the 
 
         evidence.  Claimant has been evaluated by psychologists since 
 
         that time and no mention is made of this diagnosis in the 
 
         reports.  Dr. Coates did not state in his last deposition what 
 
         impact a diagnosis of this syndrome had upon his opinions, if 
 
         any.  Dr. Coates' assessment of claimant's current physical 
 
         capabilities was rather vague except that he stated that claimant 
 
         would have good and bad days.  Before the last hearing, Dr. 
 
         Coates indicated to Carma Mitchell that claimant was not 
 
         restricted in standing or sitting but would have difficulty with 
 
         prolonged walking, kneeling, bending, stooping and lifting.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              William Boulden, M.D., evaluated claimant in April 1988 and 
 
         noted objectively from X-rays that there has been a further 
 
         degenerative change at all five levels of claimant's lower spine 
 
         since 1985.  He, like Dr. Coates, noted a new complaint into the 
 
         legs upon standing and sitting.  Dr. Boulden felt that claimant 
 
         was suffering from spinal stenosis.  Although he felt that a CT 
 
         scan would confirm this diagnosis, he never ordered such a test 
 
         as he felt it was unnecessary if he were not going to treat it.  
 
         Dr. Boulden made no mention in his testimony of the fact that Dr. 
 
         Coates had actually performed a CT scan to rule out stenosis.
 
         
 
              In April 1987, Thomas Bower, L.P.T., performed a functional 
 
         capabilities evaluation of claimant.  According to his testing of 
 
         claimant, claimant was able to lift 25 pounds from knee to chest, 
 
         over head lift of 37 pounds, maximum carrying of 22 pounds, 
 
         maximum pushing of 48 pounds and maximum pulling of 44 pounds.  
 
         He would not recommend any lifting on a frequent basis.  Maximum 
 
         sitting is 60 minutes and standing 30 minutes.  Bower stated that 
 
         there was a "fairly good correlation between the pain rating and 
 
         observed behavior" and that overall the entire test appeared 
 
         valid.  He gave,no specific recommendations except that any 
 
         effort to place claimant in employment would have to involve a 
 
         work hardening program as claimant was deconditioned.
 
         
 
              Psychological testing in February of 1988 by Kenneth 
 
         Hutchinson, Ph.D., a clinical psychologist, and James McDanial, 
 
         M.D., a psychiatrist, failed to show any psychiatric disability 
 
         from any personality disorder.  Testing by Janet McDonough, 
 
         Ph.D., another clinical psychologist, likewise failed to show any 
 
         functional limitations due to psychological problems.
 
         
 
              The video tape and photographic evidence, along with the 
 
         testimony of the private detectives retained by defendant, 
 
         indicate that claimant was under surveillance in the spring of 
 
         1987.  According to these detectives, claimant was observed 
 
         performing outside activities at her place of resident from two 
 
         and a half to four and a half hours each day over a period of 
 
         several days.  This activity generally involved walking and 
 
         general chores around her acreage where she and another woman, 
 
         Thelma Allen, cared for a number of dogs.  Whether this dog care 
 
         is a hobby or some sort of business is not clear from the 
 
         evidence.
 
         
 
              The video tapes viewed by the undersigned revealed that 
 
         claimant walked with a limp and at no time did she use a cane. 
 
         Claimant only occasionally required support to walk even up the 
 
         small inclines around her house.  Claimant was observed lifting 
 
         light objects on occasion.  Once she dragged a tire out of the 
 
         truck of her car but this could not be characterized as a 
 
         complete lifting of the tire.  On another occasion claimant held 
 
         up one end of a doghouse for a brief period of time.  The other 
 
         end of the doghouse was resting on the ground.  However, someone 
 
         else had earlier picked up the end of the doghouse and claimant 
 
         merely balanced it while her dog chased a rat under the house.  
 
         Claimant was never observed performing any heavy lifting, 
 
         repetitive lifting, prolonged standing in one place or strenuous 
 
         work of any kind.  On several occasions she appeared to avoid 
 
         lifting and allowed others to do the work.  She did on one 
 
         occasion kneel down on her knees for a few minutes and got up 
 
         without assistance. However, most of the time she walked very 
 
         slowly and less than 150 feet at one time.  Claimant was observed 
 
         on two occasions assisting another individual in emptying garbage 
 
         from a pickup at a county landfill but claimant appeared only to 
 
         do very light pulling and tugging in this activity from the back 
 
         of this pickup. Almost all of the heavy work in unloading this 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         garbage was performed by Thelma Allen.  At no time was claimant 
 
         observed laying down or sitting for long periods of time.  
 
         However, what may or may not have occurred within the dwellings 
 
         located on claimant's premises was not revealed in the video 
 
         tapes.  The one thing that impressed the undersigned was a 
 
         certain amount of fluid motion claimant had in using her back.  
 
         On several occasions she bent over to work inside her car and to 
 
         perform various other tasks without apparent difficulty.  On one 
 
         occasion she bent over completely with her back parallel to the 
 
         ground while using her hands to poke under a doghouse with a long 
 
         stick or rod to chase a rat.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Carma Mitchell testified by deposition and at hearing.  
 
         Prior to the last hearing in 1985, Carma Mitchell thought it was 
 
         possible for claimant to perform several light duty jobs.  She 
 
         now, however, believes that claimant is unemployable.  This 
 
         change in her opinion was motivated by claimant's self described 
 
         complaints and the medical reports of Dr. Coates, Dr. Boulden and 
 
         Thomas Bower, L.P.T., of a worsened condition and a limited 
 
         ability to sit, stand, walk and a generalized need to lay down 
 
         and rest after approximately two hours of activity.  On 
 
         cross-examination, defense pointed out that Mitchell had not 
 
         viewed the video tapes which indicated six to eight hours of 
 
         daily activity. Defense also indicated that many of claimant's 
 
         complaints dealing with her neck, shoulder and arm conditions 
 
         effect her employability but are unrelated to the 1978 work 
 
         injury.  Defense also pointed out in cross-examination that 
 
         Mitchell did not take into account past psychological problems in 
 
         her employability analysis.  Mitchell who had not viewed the 
 
         tapes or photographs responded that if the tapes indicated a six 
 
         to eight hour length of activity, her opinion may not be valid.  
 
         She also stared that, although claimant had arm and shoulder 
 
         pain, her major complaints upon which the employability 
 
         evaluation was based involved sitting, standing, walking and the 
 
         need to rest after activity. Finally she said on re-direct 
 
         examination that if claimant does have serious psychological 
 
         problems this would only increase her disability and not lower 
 
         it.  She did not change her opinion that claimant was 
 
         unemployable.   Claimant stated to Mitchell that most of her 
 
         employment seeking activities ended at the time Mitchell talked 
 
         with claimant in February 1988.  Claimant had applied once for a 
 
         security job at John Deere but felt this job would not be 
 
         physically suitable for her.  Claimant's extensive efforts to 
 
         seek employment with job service to various government programs 
 
         was unsuccessful prior to the last hearing in 1985.  Mitchell 
 
         stated that she did not pursue job placement activity at that 
 
         time or at the current time because other state agencies were 
 
         involved and that her services were too expensive for claimant.
 
         
 
              Thelma Mitchell testified that claimant had no good days.  
 
         She stated that claimant must sit for 15 to 20 minutes after only 
 
         walking 150 feet and uses a cane for walking up inclines and 
 
         steps. She stated that claimant does not walk up inclines but 
 
         must use ramps and steps at her place of residence.  She stated 
 
         that she must help claimant up after she kneels and that claimant 
 
         cannot bend over or walk more than a half an hour.
 
         
 
              Claimant's appearance and demeanor at hearing indicated that 
 
         she was truthful in her testimony.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
                I.  In a review-reopening proceeding from a prior award, 
 
         claimant has the burden of establishing by a preponderance of the 
 
         evidence that she suffered a change of condition or a failure to 
 
         improve as medically anticipated as a proximate result of the 
 
         original work injury, subsequent to the date of the award or 
 
         agreement for compensation under review which entitles her to 
 
         additional compensation.  Deaver v. Armstrong Rubber Co., 170 
 
         N.W.2d 455 (Iowa 1969); Meyers v. Holiday Inn of Cedar Falls, 
 
         Iowa, 272 N.W.2d 24 (Iowa Court of Appeals 1978).  Such a change 
 
         of condition is not limited to a physical change.  A change in 
 
         earning capacity subsequent to the original award which is 
 
         approximately caused by the original injury also constitutes a 
 
         change of condition under Iowa Code section 85.26(2) and 
 
         86.14(2). See McSpadden v. Big Ben Oil Co., 288 N.W.2d 181 (Iowa 
 
         1980); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         1980).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The question of causal connection is essentially  within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  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 v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant contends that she has 
 
         suffered additional disability as a result of the work injury due 
 
         to additional restrictions from her worsened physical condition. 
 
         Given the views of the medical experts and those of the 
 
         vocational rehabilitation specialists, the issue is largely a 
 
         matter of claimant's credibility.  Although Dr. Boulden found 
 
         objective x-ray evidence of a worsened spine condition, this was 
 
         disputed by Dr. Coates, a physician with equal qualifications.  
 
         Dr. Boulden opined that claimant had spinal stenosis.  This again 
 
         was disputed by Dr. Coates who actually performed a CT scan.
 
         
 
              If, however, claimant were found credible, Dr. Coates would 
 
         agree that there is a worsening of claimant's condition.  Absent 
 
         video tapes and photographs, there appears to be a solid case for 
 
         a change of physical condition.  Claimant and her witnesses 
 
         appeared credible at hearing and the functional assessment by 
 
         Thomas Bower appealed to be a valid measure of a reduced 
 
         functional capability.  The complaints of neck, arm and hand 
 
         difficulties, although significant, were not as important to 
 
         Mitchell in her employability analysis as the back and leg 
 
         problems.
 
         
 
              The video tapes do not controvert Carma Mitchell's 
 
         testimony. According to Mitchell, claimant admitted to her that 
 
         she was active for a couple of hours each day depending upon the 
 
         weather. Tapes indicating activity of two to four hours a day on 
 
         a warm, early spring day are not significantly different from 
 
         claimant's oral comments to Mitchell.  Also, she may have 
 
         additional functional limitations due to psychological problems, 
 
         however, as Mitchell stated this would tend to increase rather 
 
         than decrease in disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The tapes do tend to controvert the testimony of Allen with 
 
         reference to walking, using a cane, walking up inclines and 
 
         getting up from kneeling.  The tapes also show various activities 
 
         inconsistent with some of claimant's testimony with reference to 
 
         bending, twisting and walking on inclines.  However, none of 
 
         these tapes depict repetitive lifting, prolonged sitting, or 
 
         standing. They do not depict an ability to walk more than 150 
 
         feet at one time.  They also do not controvert claimant's need to 
 
         lay down or rest after a "couple of hours of activity of walking 
 
         and feeding and watering of dogs."  This is the activity upon 
 
         which the doctors and Carma Mitchell base their opinions.  
 
         Furthermore, with reference to the use of surveillance tapes, 
 
         generally, in workers' compensation proceedings, unless the 
 
         observed behavior is obviously a contradiction, the undersigned, 
 
         who is not trained medically, is of the opinion that any personal 
 
         assessment of such activity by himself after observing only 
 
         several hours of isolated activity, would be nothing but pure 
 
         speculation.  If surveillance tapes are generated by defense to 
 
         controvert medical opinions, they should be shown by the defense 
 
         to the medical experts and to the vocational experts they seek to 
 
         challenge.  This was not done in this case despite ample 
 
         opportunity to do so.  Therefore, the video tapes in this case 
 
         have rather limited value.
 
         
 
              Admittedly, a lot of the evidence is conflicting in this 
 
         case.  However, when you consider all the evidence and all of the 
 
         medical opinions; the credible assessment of reduced functional 
 
         capabilities by Thomas Bower; claimant's credible appearance and 
 
         demeanor at hearing; and, the problems with the interpretation of 
 
         video tapes without the benefit of expert advise, the greater 
 
         weight of evidence demonstrates that claimant does indeed have a 
 
         changed and worsened condition with reduced functional 
 
         capabilities.  Although claimant's obesity and deconditioning may 
 
         play a role in this worsened condition, Dr. Coates has clearly 
 
         opined that limitations on her activity from the 1978 injury are 
 
         a significant factor in this increased obesity.  Therefore, it 
 
         will be found that it is more likely than not that claimant has 
 
         suffered a change in her physical condition and a significant 
 
         worsening of her functional capabilities as a result of the work 
 
         injury in 1978 with reference to sitting, standing, walking and 
 
         her need to rest.  Therefore, claimant is entitled to a 
 
         reassessment of her industrial disability.
 
         
 
              Claimant must establish by a preponderance of the evidence 
 
         the extent of weekly benefits for permanent disability to which 
 
         claimant is entitled.  As the claimant has shown that the work 
 
         injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587,. 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors include the employee's medical condition 
 
         prior to the 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.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant asserts an application of the odd-lot doctrine.  
 
         This doctrine allows the claimant to establish a prima facie case 
 
         for unemployability and permanent total disability benefits from 
 
         a factual showing of a reasonable but unsuccessful effort to find 
 
         suitable work.  If defendant fails to go forward with the 
 
         evidence on the issue of availability of suitable work to 
 
         claimant after such a showing of a prima facie case, claimant is 
 
         entitled to an award of permanent total disability.  See Guyton 
 
         v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985).  However, 
 
         the industrial commissioner has directed that this doctrine 
 
         cannot be applied by a deputy without a showing of a reasonable 
 
         effort to secure suitable employment.  Collins v. Friendship 
 
         Village, Inc., Case No. 679258 (Appeal Decision filed October 31, 
 
         1988); Pyle v. Carstensen Freight Lines, Inc., Case No. 753661 
 
         (Appeal Decision filed July 27, 1987).  Claimant admitted for the 
 
         most part to ending her job search when she talked with Carma 
 
         Mitchell in February of 1988. Since 1985, claimant has looked for 
 
         work only as a security guard and as a voluntary worker in a pet 
 
         shop.  These two attempts over four years is too limited to 
 
         invoke the automatic burden shifting features of the odd-lot 
 
         doctrine.
 
         
 
              However, claimant has shown permanent total disability 
 
         without resort to the odd-lot doctrine.  She simply is no longer 
 
         physically capable of gainful employment according to the 
 
         uncontroverted views of the experts in vocational rehabilitation. 
 
         The jobs listed at the last hearing upon which claimant received 
 
         an award of 55 percent industrial disability are no longer 
 
         possible for her due to increased functional impairment.
 
         
 
              Claimant now is in her early fifties and should be in the 
 
         most productive years of her life.  Her loss of future earnings 
 
         from employment due to her disability is more severe than would 
 
         be the case for a younger or an older individual.  Most of the 
 
         physicians and rehabilitation consultants in this case indicate 
 
         that claimant is motivated but cannot function in gainful 
 
         employment.  Although claimant has a high school education and 
 
         exhibited average intelligence at the hearing, she has no 
 
         potential for vocational rehabilitation even with aggressive 
 
         placement efforts according to Carma Mitchell.
 
         
 
              Despite a recognition in the last review-reopening decision 
 
         that claimant is motivated but needs direction to find 
 
         employment, defendant in this case has continued to not provide 
 
         that direction. As noted by Mitchell, vocational rehabilitation 
 
         is expensive and claimant was not able to pursue this on her own.  
 
         The window of opportunity to return claimant to the work force 
 
         recognized at the last hearing is now closed.
 
         
 
              Finally, her disability must indeed be severe as the State 
 
         of Iowa has not attempted to return claimant to work in any 
 
         capacity despite the very broad range of state employment 
 
         opportunities.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 100 percent loss in 
 
         her earning capacity from her work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to permanent 
 
         total disability benefits.
 
         
 
              III.  Pursuant to Iowa Code section 85.27 claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  Claimant seeks reimbursement for 
 
         expenses evidenced in exhibits 10, 11 and 12 which total $439.00. 
 
         All of these bills are for the examination by Dr. Coates. 
 
         Defendant argues that these expenses were for evaluation rather 
 
         than for treatment and they are not responsible for them.  
 
         However, claimant is entitled to the costs of obtaining two 
 
         medical evaluation reports.  Division of Industrial Services 
 
         343-4.33.  It is only reasonable to include in that cost 
 
         necessary testing by a physician to prepare that report. 
 
         Therefore, defendant is liable for these expenses under the cost 
 
         provisions of that administrative rule.
 
         
 
               IV.  Defendant seeks credit against this award for longterm 
 
         disability benefits.  In light of the provisions of Iowa Code 
 
         section 79.20 which prohibits long-term disability benefits in 
 
         workers' compensation cases, the state clearly has the right to 
 
         claim a credit for long-term disability payments made to claimant 
 
         under Iowa Code section 85.38(2).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  The factual findings in the 1986 review-reopening 
 
         decision are incorporated by reference herein.
 
         
 
              3.  Since the evidentiary hearing on March 28, 1985 and the 
 
         review-reopening decision filed October 8, 1985, claimant's low 
 
         back and left knee condition has worsened by virtue of a further 
 
         deterioration of degenerative joint disease and degenerative disc 
 
         disease in the low back and left knee.  This degeneration was not 
 
         anticipated by claimant's physicians in 1985.  The work injury of 
 
         1978 was a significant causative factor in the development of 
 
         degenerative disc disease and degenerative joint disease in 
 
         claimant's low back and knee.
 
         
 
              4.  The work injury of 1978 and the degenerative disc 
 
         disease and degenerative joint disease was a cause of additional 
 
         permanent partial impairment to claimant's body as a whole and of 
 
         further limitations on claimant's functional capabilities to 
 
         walk, stand, sit and the need to lie down and rest after only a 
 
         couple of hours of activity.  Although claimant can for brief 
 
         periods of time lift over 10 pounds, she cannot do so without 
 
         pain.  She cannot frequently lift any amount of weight without 
 
         pain.  She can only sit comfortably for about an hour and can 
 
         only walk approximately ten minutes at one time.  Claimant had no 
 
         sitting or standing limitations at the time of the last hearing 
 
         or decision in 1985. Claimant, however, is able to be active for 
 
         approximately two hours a day at her residence in the caring for 
 
         her dogs and other routine chores and activities, however, none 
 
         of these activities constitute heavy strenuous work and she is 
 
         required to rest for several hours after performing such 
 
         activities.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              5.  The,work injury of 1978 and the resulting permanent 
 
         partial impairment and reduced functional capabilities is a cause 
 
         of a 100 percent loss of earning capacity.  Claimant is 53 years 
 
         of age and has a high school education.  Claimant unsuccessfully 
 
         looked for work prior to the last hearing in 1985 but only has 
 
         done so on a couple of occasions since that time.  Claimant, 
 
         however, can no longer perform gainful employment due to an 
 
         inability to sit for prolonged periods of time and the need to 
 
         rest on a periodic bases throughout the day after only two hours 
 
         of activity.  Claimant can no longer perform the various light 
 
         duty jobs identified at the last hearing in 1985.  Claimant may 
 
         have other physical problems with her upper body and other 
 
         medical problems which are not work related but these problems 
 
         would only increase not decrease her functional capabilities.  
 
         Apart from these non-work related problems, claimant is 
 
         unemployable by virtue of the work related difficulties in 
 
         sitting, standing, walking and the need for regular rest 
 
         throughout the day after a few hours of activity.  The defendant 
 
         has not provided vocational rehabilitation assistance to 
 
         claimant.  Despite a broad range of available state employment 
 
         opportunities, the defendant has not offered claimant any job to 
 
         return her to work.
 
         
 
              6.  The expenses in exhibits 10, 11 and 12, totally $439.00, 
 
         are fair and reasonable and were incurred by claimant to obtain a 
 
         medical evaluation report from Dr. Coates in 1986.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to disability 
 
         and medical benefits awarded below:
 
         
 
                                      ORDER
 
         
 
              1.  Defendant shall pay to claimant permanent total 
 
         disability benefits at the rate of one hundred thirty-seven and 
 
         25/100 dollars ($137.25) per week during the period of her 
 
         disability beginning on November 16, 1986.
 
         
 
              2.  Defendant shall pay accrued weekly benefits in a lump 
 
         sum.
 
              
 
              3.  Defendant shall receive credit against this award for 
 
         previous payments of benefits under the state's long-term 
 
         disability benefit plan pursuant to Iowa Code section 85.38(2).
 
         
 
              4.  Defendant shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.,30.
 
         
 
              5.  Defendant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33 including the four 
 
         hundred thirty-nine and no/100 dollars ($439.00) cost of 
 
         obtaining a medical report from Dr. Coates in 1986.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              6.  Defendant shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 14th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       LARRY P.WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Steven C. Jayne
 
         Attorney at Law
 
         5835 Grand Ave.
 
         Suite 201
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Charles S. Lavorato
 
         Assistant Attorney General
 
         Hoover Bldg.
 
         Des Moines, Iowa  50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                1804
 
                                                 Filed April 14, 1989
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BARBARA A. HOOVER,
 
         
 
              Claimant,
 
         
 
         vs.                                      File No. 529205
 
                                                      
 
         IOWA DEPARTMENT OF AGRICULTURE,           R E V I E W -
 
         
 
              Employer,                          R E O P E N I N G 
 
                                                 
 
         and                                      D E C I S I O N
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1804
 
         
 
              Claimant won a credibility contest and a change of condition 
 
         was found.  Permanent total disability benefits were awarded.  
 
         The odd-lot doctrine was not applied because claimant only looked 
 
         for employment on a couple occasions since the last hearing.  
 
         However, claimant was found to no longer be physically capable of 
 
         gainful employment.