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.