BEFORE THE IOWA INDUSTRIAL COMMISSIONER DARLENE JUNGE, Claimant, VS. CENTURY ENGINEERING, File Nos. 618141/662314 Employer, A P P E A L and D E C I S I 0 N FIREMAN'S FUND INSURANCE COMPANY, and EMPLOYERS INSURANCE OF WAUSAU, Insurance Carriers, Defendants. STATEMENT OF THE CASE Defendants Century Engineering/Wausau appeals and claimant cross-appeals from a proposed consolidated, review-reopening and arbitration decision awarding certain medical expenses, costs, mileage, 31 3/7 weeks of healing period benefits, and 18 weeks of permanent partial disability under Iowa Code section 85.34(2). Claimant also appeals from a ruling in this matter filed February 11, 1986. As the ruling of February 11, 1986 is an integral part of this proceeding, its resolution on appeal can best be expedited by consideration at the same time as the main appeal. The record on appeal consists of the transcript of the consolidated proceeding; claimant's exhibits 1 through 5 and 7 through 9; defendants' exhibits A through J; and the transcript and exhibits of the prior proceeding in file 618141 which are contained in the Industrial Commissioner's file. All parties filed briefs on appeal and cross-appeal. ISSUES Defendants Century Engineering/Wausau contend that claimant must prove by a preponderance of the evidence a change of condition since September 2, 1980 and that this change of condition is proximately caused by the industrial injury and not to other conditions found not to be related. Defendants Century Engineering/Wausau further contend that claimant is not entitled to healing period benefits. JUNGE V. CENTURY ENGINEERING Page 2 Defendants Century Engineering/Wausau further contend that claimant has failed to establish that certain costs and expenses incurred by the claimant were the result of an employment-related injury. Defendant Wausau contends that the costs of this consolidated proceeding should be apportioned between the two cases. Claimant states the issues on cross-appeal as: 1. The deputy erred in his rulings of February 25, 1985 and March 13, 1985 which denied claimant the opportunity to depose John Bickel and obtain documents 2. The deputy erred in his ruling of July 17, 1985, excluding the medical report of Dr. David E. Naden 3. The deputy erred in his ruling of July 17, 1985, July 18, 1985 and August 8, 1985, denying a motion for continuance sought by claimant and Century/Fireman's Fund 4. The deputy erred in his ruling of September 13, 1985, in failing to find claimant sustained an injury to her her [sic] body as a whole 5. The deputy applied incorrect weekly rates in awarding benefits to claimant 6. The deputy erred in his September 13, 1985 ruling in the expenses awarded for the section 85.39 examination 7. The deputy erred in admitting exhibit K (Dr. Coates' Deposition of June 11, 1984) 8. The deputy erred in his ruling by failing to award medical expenses in accordance with section 85.27 9. The deputy erred in failing to award claimant the full cost of the deposition of Dr. Albert Coates on July 23, 1984 10. The deputy erred in failing to admit claimant's exhibit 6 (Dr. Naden's Report) 11. It was prejudicial error to receive into evidence respondent's exhibit B ("Medical Report" prepared by Attorney John Bickel) 12. It was prejudicial error to receive into evidence exhibit A (Dr. Pilcher's letter of July 12, 1983) JUNGE V. CENTURY ENGINEERING Page 3 13. Errors preserved 14. The Deputy Erred In His Ruling of February 11, 1986 Denying Claimant Expenses Following Respondent Cancellation of Dr. Albert Coates Deposition on March 16, 1983. REVIEW OF THE EVIDENCE The consolidated review-reopening and arbitration decision adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. Briefly stated, claimant sustained a work-related aggravation of a preexisting congenital foot problem for which she was awarded temporary total disability benefits but was not found to have sustained any permanent disability in an appeal decision filed August 18, 1981. With regard to her congenital problems the following findings of fact were made: 7. Claimant is predisposed to form callus. (Coates, page 8-9) 8. Claimant has a cavus foot, an unusually high arch, which is a congenital condition. (Coates, page 9-10) 9. By March 1977, claimant had virtually no pain in her left heel. (Coates, page 29) 10. The tendency to form callus and the cavus foot are the geneses of the claimant's problems. (Coates, page 10) 11. The full weight-bearing upon the left foot was a probable irritation to her foot problem. (Coates, page 11) 12. Dr. Coates saw claimant December 6, 1978 for pain between the third and fourth toes caused by a neuroma and for a painful bunion. (Coates, page 15-16) 13. The neuroma and bunion were not caused by her employment. (Coates, page 16-17) 14. The neuroma was aggravated by the work. (claimant's exhibit 8, Coates report 1-2-79) 15. Claimant had a bunionectomy, a realignment of the great toe and excision of the neuroma. (Coates, 16-17) 16. Claimant was treated by Dr. Coates on September 5, 1979 for a continuation of her left foot problems and also treated in December 1979. (Coates, page 19) 17. Claimant was hospitalized in January 1980 to correct a JUNGE V. CENTURY ENGINEERING Page 4 hammertoe condition on the second, third and fourth toes and to do an osteotomy of the second metatarsal. (Coates, page 20) 18. The callus under the metatarsal head was aggravated by chronic weight-bearing. (Coates, page 20) 19. The hammertoes were caused by the cavus foot. (Coates, page 20 ) 20. The major reason for the January 1980 hospitalization was to correct the hammertoe conditions. (Coates, page 23) 21. The treatment of the plantar callus during the January 1980 hospitalization was coincidental to the treatment of the hammertoes conditions. (Coates, page 23,26) 22. The recuperation period after treatment by metatarsal osteotomy is two months. (Coates, page 23) 23. Claimant has not returned to work since the January 1980 hospitalization. (Coates, page 23) 24. On May 27, 1980, claimant had an oblique osteotomy of the third metatarsal and a tendolysis to the left foot. (Coates, page 24) 25. The necessity for the surgery on May 27, 1980 arose subsequent to the January 1980 surgery. (Coates, page 25) 26. The surgery of May 1980 was not caused or aggravated by the employment but was to correct congenital anomalies. (Coates, page 25,26) In this proceeding-claimant presents evidence concerning a subsequent surgery and further time off work. The surgery which was performed on January 19, 1981 by Albert R. Coates, M.D., was a p.i.p. fusion of the left great toe. Prior to this surgery claimant had a temporary flare-up of her foot problems on October 28, 1980. Dr. Coates subsequently released claimant to return to lighter work on October 31, 1981. He opines that this flare-up resulted in no permanent disability or change in her preexisting condition. He also states that the surgery of January 17, 1981 is not specifically related to her flare-up on October 28, 1980. Claimant has also experienced some back problems; however, the record does not reflect that these back problems are related to claimant's work. David W. Johnson, D.C., who has examined claimant, opines in a medical report dated July 20, 1982 that claimant's back problems at that time were the result of physical instability from her foot/work-related injury. However, it should be noted that claimant's disability prior to September 2, 1980 is res judicata as a result of the appeal decision filed August 18, 1981. JUNGE V. CENTURY ENGINEERING Page 5 Finally, claimant states in exhibit 3 that she has been off work for a total of 31 weeks and 3 days in 1980, 1981, 1983, and 1984. APPLICABLE LAW AND ANALYSIS The deputy in the proposed decision stated that claimant need not establish a change of condition to recover additional disability benefits as the appeal decision filed in this case on August 18, 1981 left open the question of whether the claimant sustained any permanent impairment or disability. However, the following portions of that decision and the subsequent appeal ruling September 28, 1982 clearly indicate that the issue of permanent disability was considered in the August 1981 appeal decision and it was determined that claimant had not made a showing of permanent partial disability related to the work injury. Thus, there was an injury which is compensable under the Iowa Workers' Compensation Law. The extent of the disability caused by the injury, however, is temporary only because there is no showing that claimant's work injury prevented her from returning to work after March 1980. The evidence showed two surgeries in 1980, one in January and one in May, and most conclusively showed that the May 1980 surgery was not work-connected and was not the cause of claimant's extended disability. Finally, there was no showing of any permanent partial disability which was caused by the work injury. (Appeal Decision, August 18, 1981, page 2) The decision of August 18, 1981 conclusively established that the claimant's injury, as of September 2, 1980, the date of hearing, produced only a disability that was temporary. If the claimant now experiences permanent disability or even additional temporary disability as the result of industrial injuries previously found, she is able to reopen the previous award under Iowa Code section 85.26(2). It is noted that the extent of claimant's disability before September 2, 1980 is res judicata by virtue of the August 18, 1981 decision. It is therefore claimant's burden to prove that her condition has changed since September 2, 1980 and that this change in condition is proximately caused by the industrial injury and not to other conditions found not to be related. Insofar as the claimant has not had an opportunity to present any evidence as to this contention, a genuine issue of fact remains and dismissal is not proper. (Ruling on Appeal, September 28, 1982, pp. 2-3) JUNGE V. CENTURY ENGINEERING Page 6 Therefore, for claimant to. reopen this matter for award of additional disability she must first establish a change of condition causally related to her industrial injury. The record in this case does not show that claimant has sustained a change of condition proximately caused by the prior industrial injury. The record shows that although claimant has had continuing foot problems, those problems are related solely to claimant's congenital foot defects and not her prior work aggravation of those congenital defects. With regard to the alleged injury of October 28, 1980, Dr. Coates, claimant's treating physician, states the following: 30 Oct 80: Recheck. DarleneOs foot has flared up again. She was having to do some carrying and lifting at work. This is simply over-use on an otherwise abnormal. There's no other treatment other than to get her switched back into lighter work and I've given her a work release to that effect. (Claimant's Exhibit 5, 7-18-85) Dr. Coates further states in a letter dated May 5, 1982 the following: A specific question was asked as to the aggravation of any permanency secondary to aggravation of her foot condition on October 28, 1980. I saw this patient on October 30, 1980 with aggravation of her foot condition which I felt was an overuse syndrome from carrying and lifting objects at work. I did not find any specific increase in her deformity nor problems at that time and had given her a work release as of October 31, 1980 for lighter work. I had placed that work restriction on her on a permanent basis because I felt that she did have a chronic problem. She subsequently went on to a p.i.p. fusion of the left greater toe which was because of aggravation of her pre-existing condition and not specifically related to any flareup which she had sustained on the 28th of October, 1980. I don't feel that there is any change in her permanency nor specific change in her pre-existing condition because of her insult on October 28, 1980. (Cl. Ex. 5, 7-18-85 ) The preceding statement when considered with the record as a whole indicates that if any injury at all occurred on October 28, 1980 that injury resulted in temporary disability of a two day duration and therefore, it is not compensable. As claimant has shown no new injury or change in condition proximately related to her prior work aggravation injury she is not entitled to any temporary total disability benefits nor is she entitled to any medical expenses. Claimant has raised a number of issues on cross-appeal which JUNGE V. CENTURY ENGINEERING Page 7 will be considered here. The first concerns a ruling of February 27, 1985 denying claimant the opportunity to depose defendant Century Engineering/Wausau attorney, John Bickel and obtain documents. That ruling correctly found that the information sought by claimant was privileged by the work product rule set out in Hickman v. Taylor, 329 U.S. 495 (1947). Claimant argues that defendants' exhibit 3 was prepared by John Bickel; however, claimant does not deny that exhibit was signed by Dr. Coates. Therefore, defendants' exhibit B is the statement of Dr. Coates and not Mr. Bickel. The ruling of February 25, 1985 is affirmed. Claimant also argues that a ruling of July 17, 1985 excluding the medical report of David E. Naden, M.D., is in error and that the hearing deputy in the July 18, 1985 proceeding also erred in failing to admit that report (Cl. Ex. 6) The ruling of July 17, 1985 also denied a motion for continuance sought by claimant and Century Engineering/Fireman's Fund which claimant also contests on cross-appeal. With regard to the exclusion the medical report of Dr. Naden it is noted that this report was not served prior to the prehearing conference as required by Division of Industrial Service Rule 343-4.17, formerly Industrial Commissioner Rule 500-4.17: Service of doctors' and practitioners' reports. Each party to a contested case shall serve all reports of a doctor or practitioner relevant to the contested case proceeding in the possession of the party upon each opposing JUNGE V. CENTURY ENGINEERING Page 8 party. The service shall be received prior to the time for the prehearing' conference. Notwithstanding 4.14(86), the reports need not be filed with the industrial commissioner; however, each party shall file a notice that such service has been made in the industrial commissioner's office, identifying the reports sent by the name of the doctor or practitioner and date of report. Any party failing to comply with this provision shall be subject to 4.36(86). This rule is intended to implement sections 86.8 and 86.18, The Code. There was no demonstration of emergency to justify a continuance in this case. Therefore, the ruling of July 17, 1985 is affirmed. Claimant cross-appeals arguments concerning impairment to the body as a whole, proper weekly rate, and medical expenses under section 85.27 need no further consideration as claimant has not shown a change of condition to reopen the award in file 618141 or a compensable injury for file No. 662314. Claimant contests the deputy's award of $216.00 for her examination by Dr. Naden pursuant to section 85.39. Claimant argues that she is entitled to an additional $400 for Dr. Naden's "legal evaluation" as stated in claimant's exhibit 4. The record shows that this charge is for a four-page medical report by Dr. Naden which is excluded from the evidence in this case. Claimant is not entitled to recover costs of medical reports not admitted into evidence. Claimant further contests the admission of deposition of Dr. Coates taken July 11, 1984. (Defendants' Ex. J) Claimant argues that this exhibit should not be admitted because the defendants did not give her notice that any witnesses would be called. However, this deposition was taken at claimant's request and claimant was present and participated in the examination of Dr. Coates on July 11, 1984. Claimant can hardly claim surprise in the admission of deposition in which she had an opportunity to participate. Moreover, the following stipulation appears on page 2 of Dr. Coates deposition taken July 11, 1984. S T I P U L A T I 0 N MR. RUSH: Gentlemen, may we agree the deposition of Dr. Coates is being taken at this time and place by agreement of counsel, it may be used as provided for in the Rules of Civil Procedure and in conformance with the Industrial CommissionerOs Rules. MR. BICKEL: That's agreeable. MR. UDELHOFEN: So agreed. (Dr. Coates Deposition, July 11, 1984) It is apparent from this stipulation that claimant has waived any right to object to the use of this deposition at the hearing held on July 18, 1985. Claimant's objection is overruled. JUNGE V. CENTURY ENGINEERING Page 9 Claimant further contests the award of $150.00 for the cost of taking Dr. Coates deposition on July 11, 1984. Claimant argues she should be allowed the full $375.00 which she was charged as stated in claimant's exhibit 4. Expert witness fees are covered by Iowa Code section 622.72, (1985) which states: Witnesses called to testify only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations and state the result thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of the time employed and the degree of learning or skill required; but such additional compensation shall not exceed one hundred fifty dollars per day while so employed. Therefore, the deputy was correct in allowing claimant $150.00 for the taking of Dr. Coates deposition. Claimant further contests the admission into evidence of defendants' exhibits A and B. Claimant's objections to these exhibits go to the weight they should be given and not their admissibility as evidence. There is no indication that these exhibits were given improper weight in the consolidated review-reopening decision of September 13, 1985 nor are those exhibits given substantial weight in reaching this decision. Claimant's' objections are overruled. Finally claimant argues that the ruling of February 11, 1986 denying claimant expenses following defendants' cancellation of the Dr. Coates deposition on March 16, 1983. That ruling found that the problems which led to cancellation were a result of claimant's actions in not allowing a free flow of medical information and that claimant's actions were in violation of section 85.27. Review of the record and the appeal decision filed March 13, 1984 supports the deputy's analysis in the ruling of February 11, 1986. FINDINGS OF FACT 1. Claimant is predisposed to form callus. 2. Claimant has a cavus foot, an unusually high arch, which is a congenital condition. 3. Claimant's present foot and back problems are not related to any prior work aggravation she may have sustained. 4. Claimant sustained a temporary flare-up of her foot problem on October 28, 1980 which resulted in only a temporary disability of a two day duration. 5. Claimant's surgery on January 19, 1981 was the result of claimant's congenital problems and not her temporary flare-up of October 28, 1980. 6. Claimant's back problems are not related to her work. 7. The time claimant was off work from September 15, 1980 JUNGE V. CENTURY ENGINEERING Page 10 to June 19, 1984 was related to her congenital problems. 8. The medical expenses and transportation expenses set out in claimant's exhibits 1 and 2 are the result of claimant's congenital problems. 9. Defendants' exhibit B is signed by Dr. Coates and is his medical statement concerning the claimant's condition. 10. The medical report of Dr. Naden was not served prior to the prehearing conference. 11. The problems which led to the cancellation of Dr. Coates' deposition on March 16, 1985 were the result of actions in not allowing a free flow of information. CONCLUSIONS OF LAW Claimant has not established by a preponderance of the evidence her condition has changed since September 2, 1980 and that this change of condition is proximately caused by her industrial injury. Therefore, claimant is not entitled to an award of further benefits for file no. 618141. Claimant has not established that the medical expenses in exhibit 1 or the transportation expenses listed in exhibit 2 are causally related to any work injury. WHEREFORE, the decision of the deputy as to file no. 618141 is reversed. Claimant has not established a compensable work injury of October 28, 1980. The information sought by claimant's attempt to depose defendants Century Engineering/Wausau's attorney, John Bickel is privileged by the work product rule set out in Hickman, 329 U.S. 495. WHEREFORE, the ruling of February 25, 1985 is affirmed. The medical report of Dr. Naden was not served prior to the prehearing conference as required by Division of Industrial Services Rule 343-4.17, formerly Industrial Commissioner Rule 500-4.17. No demonstration of emergency justifying a continuance was made. WHEREFORE, the ruling of July 17, 1985 is affirmed. The problems which led to the cancellation were a result of claimant's actions in not allowing a free flow of medical information as required by section 85.27, The Code. WHEREFORE, the ruling of February 11, 1986 is affirmed. ORDER THEREFORE, it is ordered: JUNGE V. CENTURY ENGINEERING Page 11 That defendants Century Engineering/Wausau pay unto claimant two hundred sixteen dollars ($216.00) for mileage incurred in the 85.39 examination (exhibit 2) (141 miles at $.24/mile) That defendants Century Engineering/Wausau pay unto claimant two hundred forty-three dollars ($243.00) for costs in file numbers 618141 and 662314 as set out in exhibit 4; item 4 is reduced to one hundred fifty (150) in accordance with Iowa Code section 622.72. Signed and filed this 4th day of February, 1987. ROBERT C. LANDESS INDUSTRIAL COMMISSIONER Copies To: Mr. Robert R. Rush Attorney at Law 526 Second Avenue, S.E. P.O. Box 2457 Cedar Rapids, Iowa 52406 Mr. John M. Bickel Attorney at Law 500 MNB Bldg. P.O. Box 2107 Cedar Rapids, Iowa 52406 Mr. Steven Udelhofen Attorney at Law 1000 Des Moines Bldg. Des Moines, Iowa 50309 1402.20-1402.40-2206-3700 Filed February 4, 1987 ROBERT C. LANDESS BEFORE THE IOWA INDUSTRIAL COMMISSIONER DARLENE JUNGE, Claimant, VS. CENTURY ENGINEERING, File Nos. 618141/662314 Employer, A P P E A L and D E C I S I 0 N FIREMAN'S FUND INSURANCE COMPANY, and EMPLOYERS INSURANCE OF WAUSAU, Insurance Carriers, Defendants. 1402.20 - 1402.40 - 2206-3700 Defendant appeals and claimant cross-appeals from a consolidated review-reopening and arbitration decision awarding certain medical expenses, costs, mileage, 31 3/7 weeks of healing period benefits, and 18 weeks of permanent partial disability under Iowa Code section 85.34(2). Reversed. Claimant must prove by a preponderance of the evidence a change of condition causally related to her prior industrial injury. Claimant's current problems were found to be related to her congenital defects. Claimant is not entitled to recover the cost of medical reports not admitted into evidence. Iowa Code section 622.72 allows a maximum of $150 per day for expert witness testimony. Thus claimant was not allowed to recover $375 for the one hour deposition of her doctor. Claimant's motion to depose defendant-Century Engineering/WausauOs attorney John Bickel denied as the information sought is privileged by the work product rule. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DARLENE JUNGE, Claimant, VS. File Nos. 618141/662314 CENTURY ENGINEERING, 0 R D E R Employer, N U N C and P R 0 FIREMAN'S FUND INSURANCE T U N C COMPANY, and EMPLOYERS INSURANCE OF WAUSAU, Insurance Carriers, Defendants. Review of the appeal decision filed February 4, 1987 reveals the following errors which need correction: On page 5, in the second paragraph, the second sentence should read: David W. Johnson, D.C., who has examined claimant, opines in a medical report dated July 20, 1982 that claimant's back problems in May 1979 were the result of physical instability from her foot/work-related injury. On page 9, the first sentence in the last paragraph should read: Finally claimant argues that the ruling of February 11, 1986 denying claimant expenses following defendants' cancellation of Dr. Coates' deposition on March 16, 1983 is in error. On page 11, following the second paragraph, this sentence should appear: WHEREFORE, the decision of the deputy as to file no. 662314 is affirmed. On page 11, the first paragraph of the order should read: That defendants Century Engineering/Wausau pay unto claimant two hundred sixteen dollars ($216.00) for a section 85.39 examination (exhibit 4, item 5) and thirty-three and 84/100 dollars ($33.84) for mileage incurred in the section 85.39 examination (141 miles at $.24/mile) (exhibit 2). On page 11, an additional paragraph of the order should read: That each party shall bear the costs of producing their own evidence and the cost of the attendance of the shorthand reporter and the transcript shall be shared equally. JUNGE V. CENTURY ENGINEERING Page 2 Signed and filed this 10th day of February, 1987. ROBERT C. LANDESS INDUSTRIAL COMMISSIONER Copies To: Mr. Robert R. Rush Attorney at Law 526 Second Avenue, S.E. P.O. Box 2457 Cedar Rapids, Iowa 52406 Mr. John M. Bickel Attorney at Law 500 MNB Bldg. P.O. Box 2107 Cedar Rapids, Iowa 52406 Mr. Steven Udelhofen Attorney at Law 1000 Des Moines Bldg. Des Moines, Iowa 50309 BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOSEPH V. DOYLE, Claimant, VS. File No. 618155 LAND 0' LAKES, INC., A P P E A L Employer, D E C I S I O N and TRAVELERS INSURANCE COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE Defendants appeal from a review-reopening decision awarding claimant further permanent partial disability benefits based on 35 percent industrial disability and further healing period benefits. The record on appeal consists of the transcript of the review-reopening hearing; claimant's exhibits 1 through 7; and defendants' exhibits A through Q. Both parties filed briefs on appeal. ISSUES Defendants state the following issues on appeal: 1. Claimant failed to show a material or substantial change in condition to support an increased award of disability in the Review-Reopening. 2. The Deputy incorrectly concluded that Claimant did not suffer a separate fall or injury on September 10, 1982. REVIEW OF THE EVIDENCE The review-reopening decision adequately and accurately reflects the pertinent evidence and it will not be totally reiterated herein. In an arbitration decision filed December 16, 1980 it was found that on January 12, 1978 claimant sustained a work injury DOYLE V. LAND OOLAKES, INC. Page 2 resulting in a subdural hematoma. In that decision the deputy stated: After the operation and while in the hospital, claimant had what he described as a seizure. Claimant indicated he continues to have these seizures 2 or 3 times a week and sometimes every day. Claimant described a seizure as follows: Q. And how do these seizures happen to you? How do they appear to you? How do you feel when it happens? A. Well, when I have it, I become weak and I -- it's almost like the person that's talking, I can just about say what he's going to say before he says it. It's like I have lived it before in my life. After it's over, I can't remember anything about it. I can remember it, but I can't remember what was said or -- Q. Do you feel that you are totally in control of yourself when you are having these seizures? A. Well, I don't know whether it's from -what do you call it, practice, or what, but I can continue to do what I am doing or -- but I don't know as I am fully in control of myself. Q. Can you think clearly? A. No. Claimant revealed that his seizures sometimes only last a matter of seconds. Claimant takes Dilantin and Phenobarbital to prevent his seizures. Claimant also complains of a numbness in his left hand and foot since the injury. (Arbitration Decision, page 2) The medical reports and testimony of Samuel P. Durr, M.D.; H. W. Miller, M.D.; and John C. VanGilder, M.D., were received as evidence at the arbitration hearing. In the analysis section of the arbitration decision the deputy stated: Based on the evidence presented and the principles of law previously stated, claimant has met his burden in proving a causal connection between his injury and his craniotomy and seizures. Although Dr. Durr testified that as a result of his examination of claimant he did not think a subdural hematoma resulted from claimant's injury, Dr. Durr disclosed DOYLE V. LAND OOLAKES, INC. Page 3 that something could have shown up later. The greater weight of medical evidence causally , connects claimant's injury with his problems. Dr. VanGilder clearly states a causal connection in his report of March 20, 1980. Although the record does not disclose if all the doctors were questioned regarding permanent disability, Dr. VanGilder using the AMA Guide indicated a permanent disability of O5% to 15% impairment of the whole man." As disclosed by the principles of law previously stated, functional disability is only one of the factors in determining industrial disability. Claimant is 51 years old and a high school graduate. The evidence reveals that claimant has been employed as a route man driving a truck most of his life. The evidence also disclosed that claimant went right back into the same job as before his injury and has been able to continue working the same job without restriction. Although claimant states he is tired all the time, has an insecure feeling, and doesn't know how long he will be able to continue in his employment, he reveals that his performance at work has not changed. It is found that as the result of his injury, claimant has an industrial disability of 15 percent of the body as a whole. (Arb. Dec., P. 7) No appeal was taken from the arbitration decision filed December 16, 1980. At the review-reopening hearing on January 7, 1986 claimant indicated that the nature of his seizures has not changed significantly; however, he testified that the frequency of the seizures has changed: Q. Okay. You stated the frequency has changed. Has it changed recently? A. I think maybe in the last, maybe, year they're more frequent. Q. Okay. How many did you have say a year and a half, two years ago? How many were you having, say, in a weeks time or month's time? A. That's hard to say. I would say maybe I might go a week and didn't have any, and then when I started having them I'd have them frequently; two or three or more a day. Q. So you'd go for a week, two weeks? A. Could be, yeah. Q. And in the last year how often have you been having them? DOYLE V. LAND OOLAKES, INC. Page 4 A. There isn't very many days that go by that I don't have them anymore. Q. Is it the same phenomenon that you have the one after another or soon following another once they start during a day? A. Well, it's -- they're usually not very close together. I mean, like maybe, you know, it's sometimes like -- maybe it's something that's happening or something that -- where I -- you know, then I don't know whether it makes me nervous or what but I feel it coming. Q. But you'll have more than one during a day? A. If I start having them, yeah. (Review-reopening Transcript, pp. 9-10) Claimant opines that his disposition has changed; that he is more irritable; that he has more problems maintaining his balance; and that he must urinate more frequently. Claimant states that he usually has to get up once or twice during the night to urinate and that he has never had to do this before. Claimant also states that he now has memory problems which affect his work and his ability to speak with others. Margaret Doyle, claimant's wife, testified that claimant's memory is getting worse; that he is more irritable; that he urinates more often; and that he socializes less. On cross-examination Mrs. Doyle admits that she has actually seen very few of claimant's spells or seizures and that claimant's motivation to do work around the house and desire to socialize had diminished considerably at the time of the arbitration hearing. On September 10, 1982 claimant fell backwards in a Milk cooler landing on his buttocks and hitting his head. Two days before this fall claimant's medication had been changed by Byron Rovine, M.D. Dr. Rovine's notes reflect this change in medication: 9-8-82 Still having 3-4 minor or z psychomotor sequences /week. No majors. Will continue Dilantin & substitute Tegretol for Depakena. Schedule given him for medication AM PM changeover to (Dilantin 200 - 300 CBL4 SMA in 2 wks (Tegretol 400 - 400 & return (Claimant's Exhibit 3, p. 5) Claimant testified that the change in medication made him unsteady and that after his fall in 1982 he experienced double vision. Claimant states that Dr. Rovine cut his medication back. DOYLE V. LAND OOLAKES, INC. Page 5 Claimant testified that he missed 13 days as a result of the fall. Dr. Rovine's notes, for the period immediately after the 1982 fall, indicate the following: 9-13-82 Diplopia & unsteady since change in Rx Fell - but z no head injury Now no longer double but blurred. Exam ok. No work this week. Ret for recheck on Fri 9/17. /s/_________________________ 9-17-82 Symptoms have subsided. Back to work 9/20 Continue Dilantin 500/day 400/day CBC & Ret 3mo /s/__________________________ (Cl. Ex. 3, p. 6) Claimant was examined by Daniel B. Johnson, M.D., on February 1, 1984. Dr. Johnson states his impression: "My impression at this time is that Mr. Doyle suffers from partial complex seizures secondary to head trauma and subdural hematoma. It is also clear that he has experienced considerable emotional and cognitive changes secondary to the brain injury.O (Cl. Ex. 5) Frank S. Gersh, Ph.D., clinical psychologist, has examined claimant and in his deposition he opines that claimant suffers from organic brain syndrome. Dr. Gersh testified concerning the status of claimant's organic brain syndrome: Q. Can you tell me whether you feel that Joe's organic brain syndrome is a changing condition or a condition that's static and nonchanging? A. Well, there's a number of things that make me think that it could be getting worse. One is that just before I saw him he went to an easier job at work. He had been having trouble with the job that he had before that and he went to an easier job. Secondly, he reported to Dr. Varner -- this was last month -- that he's been having trouble keeping his balance and walking, which he didn't report to me before. And he's also having trouble -- more trouble with his memory and concentration apparently than what he had when I saw him, which was back in April of 1985. (Gersh Deposition, pp. 8-9) On cross-examination Dr. Gersh admits that he has not had the opportunity to do serial testing which would give him objective information about whether claimant's condition is changing. DOYLE V. LAND OOLAKES, INC. Page 6 Claimant has been treated by H. W. Miller, M.D. In an October 24, 1984 letter, Dr. Miller observes that changing claimant's intake of sugar resulted in an improvement of claimant's seizures: On 1-26-84 the patient was referred to Dr. Daniel Johnson for further evaluation and evaluation as appropriate. On 9-20-84 the patient was seen status post evaluation with hypoglycemic episodes regarding Dr. Rovine. With change of intake of his sugar he had shown much improvement in recurrent complex seizures and it was our goal at that time to avoid further medication change in an attempt to obtain as much control as possible with dietary manipulation alone. (Cl. Ex. 2) On cross-examination Dr. Gersh was questioned about Dr. Miller's observations: Q. Down in the second paragraph of his letter Dr. Miller reports on what I take it is an observation, namely that with change of intake of Mr. Doyle's sugar he has shown much improvement in recurrent complex seizures. Let's assume for the moment that the doctor saw that type of before-and-after change. Does that suggest to you at all that Mr. Doyle's blood sugar and how it relates to his bodily functions may be playing a role in the frequency or occurrence of his DOYLE V. LAND OOLAKES, INC. Page 7 seizures? A. That's what the letter suggests. .... Q. All right. Is there at last a distinct possibility, if we accept Dr. Miller's observations as accurate, that Mr. Doyle might not only be suffering from the various syndromes and disorders that you have described, but he may also be suffering from some imbalance in his body's ability to process sugar which could be playing some role in triggering these complex seizures that he's had? A. Well, it's possible. It's also possible that because of the brain damage his brain is simply more sensitive to normal changes in sugar that we all have due to the fact that we eat episodically and the sugar gets processed out of our bodies and we eat different amounts of sugar at different times and so forth. So the brain just could be more sensitive. It is not necessarily an imbalance in the body's processing of sugar. (Gersh Dep., pp. 32-34) Claimant has also been examined by Vernon P. Varner, M.D. At his deposition Dr. Varner opined that his deposition was premature because he had not completed his neurological assessment of claimant's consideration. Dr. Varner does opine that claimant's condition has worsened since 1980. Claimant testifies that he has worked for Land 0O Lakes for the last 11 years. Claimant reveals on cross-examination that he bid into his current position which pays an additional two hundred dollars per month over the job he was doing at the time of his injury. Claimant opines that although his current job requires him to work more hours it is lighter work. Claimant discloses that he is 56 years of age. APPLICABLE LAW In a review-reopening proceeding in which the claimant is seeking additional compensation after a previous award of disability, he must show a change of condition since the previous award which would entitle him to an additional award. Stice v. Consolidated Coal Co., 228 Iowa 1031, 291 N.W. 452 (1940). Claimant has the burden of showing by a preponderance of the evidence his right to compensation in addition to that awarded by a prior adjudication. Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969). Unless there is more than a mere scintilla of evidence of increased incapacity of the employee, a mere difference of opinion of experts as to the percentage of disability arising from the original injury would not justify a finding of change of condition. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). ANALYSIS Defendants initially argue that claimant has not shown a DOYLE V. LAND OOLAKES, INC. Page 8 change of condition which supports an award of additional benefits. Claimant testifies the frequency of his spells has increased. Claimant feels that there are not many days that he does not have seizures now. Comparing this to the deputy's statement in the arbitration decision that claimant experiences seizures two to three times a week and sometimes every day reveals that some change in frequency may have occurred. Claimant also opines that he has memory problems, that he urinates more frequently, and that he is more irritable. Mrs. Doyle confirms these complaints. Neither Dr. Gersh nor Dr. Varner examined or treated before the 1980 arbitration hearing as such they have no basis on which to offer an opinion as to whether claimant's condition has changed. Moreover, Drs. Gersh and Varner admit that the only basis which they have for opining that claimant's condition has worsened is from the statements that claimant and Mrs. Doyle have made to them. The greater weight of evidence would indicate that claimant has had a slight change in his physical condition. Claimant has failed, however, to show a change in his industrial disability. The slight change in claimant's physical condition does not appear to have placed any new restrictions on claimant's employment. In fact it appears that claimant has now successfully bid into a better paying position. Taking all the factors of industrial disability into consideration, it is determined that claimant presently has an industrial disability of 15 percent. Defendants also argue that claimant's fall on September 10, 1982 was not related to the January 12, 1978 work injury. Claimant's testimony, together with Dr. Rovine's notes, establish that claimant's fall on September 10, 1982 resulted from the unsteadiness claimant was experiencing due to the change in medication for his seizures. Claimant testified that he missed 13 days of work as a result of this injury. He is entitled to an additional 13 days of healing period benefits. FINDINGS OF FACT 1. Claimant sustained a work injury resulting in a subdural hematoma on January 12, 1978. 2. Claimant sustained an injury on September 12, 1982 when he slipped and fell backwards in a milk cooler. 3. The injury on September 12, 1982 resulted from the unsteadiness claimant was experiencing due to the change in his seizure medication. 4. Claimant missed 13 days of work as a result of the September 12, 1982 injury. 5. The September 12, 1982 injury resulted in no additional permanent disability. 6. Claimant continues to be employed by defendant-Land 0O DOYLE V. LAND OOLAKES, INC. Page 9 Lakes. 7. Claimant's present job for Land 0O Lakes is lighter work than the job he was doing in 1980; this job does allow claimant to work more hours and earn more money. 8. Claimant's weekly rate of compensation is stipulated to be $196.12. CONCLUSIONS OF LAW Claimant has not established a change of condition affecting his earning capacity. Claimant is entitled to an additional 13 days of healing period benefits commencing September 11, 1982 and ending on September 24, 1982 at the weekly rate of $196.12. WHEREFORE, the decision of the deputy is affirmed in part and reversed in part. ORDER THEREFORE, it is ordered: That defendants pay claimant thirteen (13) days of healing period benefits commencing September 11, 1982 and ending September 24, 1982 at the weekly rate of one hundred ninety-six and 12/100 dollars ($196.12). That defendants pay accrued benefits in a lump sum, and pay interest pursuant to section 85.30, The Code. That defendants pay the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file claim activity reports pursuant to Division of Industrial Services Rule 343-3.1(2), as requested by the agency. Signed and filed this 30th day of November, 1987. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hayes Mr. Paul J. McAndrew, Jr. Attorneys at Law 122 South Linn Street Iowa City, Iowa 52240 DOYLE V. LAND OOLAKES, INC. Page 10 Mr. Larry L. Shepler Attorney at Law 111 East Third Street 600 Union Arcade Building Davenport, Iowa 52801-1550 1402.40 - 1802 Filed November 30, 1987 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOSEPH V. DOYLE, Claimant, VS. File No. 618155 LAND 0' LAKES, INC., A P P E A L Employer, and D E C I S I 0 N TRAVELERS INSURANCE COMPANY, Insurance Carrier, Defendants. 1402.40 - 1802 Claimant failed to show a change in condition which support an award of additional industrial disability. Claimant did show a slight change in his physical condition but this slight change did not result in any new restrictions on claimant's employment. In fact claimant had successfully bid into a better paying position. Reversed. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ IVAN E. PILCHER, Claimant, VS. File No. 618597 PENICK & FORD, A P P E A L Employer, D E C I S I 0 N and FIREMAN'S FUND INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ STATEMENT OF THE CASE Claimant appeals from a review-reopening decision awarding further healing period benefits, but denying further permanent partial disability benefits. Defendants cross-appeal. The record on appeal consists of the transcript of the review-reopening hearing and joint exhibits 1 through 22. Briefs have been filed by all parties on appeal. ISSUES Claimant states the following issues on appeal: 1. The Claimant is entitled to an additional 110 weeks of permanent partial disability benefits pursuant to Section 85.34(2)(u) because of a psychological condition stemming from his injury on November 25, 1979. 2. The Claimant should not have been taxed with the costs of this action. Defendants state the following issue on cross-appeal: "Claimant should be barred from any recovery for the reason that healing period terminated on April 29, 1980." REVIEW OF THE EVIDENCE The review-reopening decision adequately and accurately reflects the pertinent evidence and it will not be totally reiterated herein. Claimant sustained a work-related injury to his right eye on November 25, 1979 when a floor drain exploded spraying lime into his eyes. Claimant's left eye recovered completely, however he was left with only shadow vision in his right eye. Subsequently, claimant entered into a settlement agreement pursuant to section 86.13, Iowa Code. This agreement was approved through operation of law since notification of disapproval by this agency was not given within 20 days. See 86.13. Pursuant to the settlement agreement, claimant was paid 140 weeks of permanent partial disability benefits for 100 percent loss of the right eye. The issue of when claimant's healing period ended was specifically left open. Claimant returned to work following his injury on September 1, 1980. At that time claimant was performing the job he was doing at the time of the injury. Claimant states he later bid into a different job because he didn't want to work with chemicals any longer. Claimant states that he fears losing his left eye; that he does not like to go out to eat or socialize because people stare at his right eye; and that he no longer actively participates in sports. Claimant believes that it is more difficult to read meters at work since the injury. Claimant was examined by Thomas Sannito, Ph.D., a clinical psychologist on February 17, 1982. Dr. Sannito states in a letter to claimant's attorney: I have reviewed the Ivan Pilcher file and it is my opinion that he is disabled 50%. Losing the visual acuity of his right eye and the disfigurement have affected him psychologically in all phases of his life. He no longer participates in life the way he did before this loss. Whatever work he can do is limited, because the loss of this important sensory organ has severely disrupted his life. He is mentally, emotionally, and psychologically distressed over this result. Please keep in mind that when a person's mind or mental state is altered, it affects his whole body and day to day functioning. (Joint Exhibit 3) Claimant was examined by Vernon P. Varner, II.D., J.D., on March 5, 1985. In his report, Dr. Varner states his impression: "Chronic major depressive disorder with obsessive features with marked increase in low self-esteem, marked social withdrawal, near frank paranoia, although there is no delusional component to it, concerning what everyone is thinking about his eye as he I walks by." (Joint Ex. 7) Claimant was also examined by R. Paul Penningroth, 14.D., on November 4, 1985. Dr. Penningroth diagnosed claimant's problems as a "possible adjustment disorder." See Joint Ex. 5. APPLICABLE LAW The citations of law in the review-reopening decision are appropriate to the issues and evidence and will only be briefly expanded upon here. In a review-reopening proceeding in which the claimant is seeking additional compensation after a previous award of PILCHER V. PENICK & FORD Page 3 disability, he must show a change of condition since the previous award which would entitle him to an additional award. Stice v. Consolidated Coal Co., 228 Iowa 1031, 291 N.W. 452 (1940). Claimant has the burden of showing by a preponderance of the evidence his right to compensation in addition to that awarded by a prior adjudication. Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969). Unless there is more than a mere scintilla of evidence of increased incapacity of the employee, a mere difference of opinion of experts as to the percentage of disability arising from the original injury would not justify a finding of change of condition. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). In Gosek v. Garmer and Stiles Co., 158 N.W.2d 731, 735 (Iowa 1968), the court held that "...cause for allowance of additional compensation exists on proper showing that facts relative to an employment connected injury existed but were unknown and could not have been discovered by the exercise of reasonable diligence, sometimes referred to as substantive omission due to mistake, at time of any prior settlement or award." ANALYSIS Claimant seeks additional permanent partial disability benefits in this proceeding following his settlement. This agency has consistently held that a settlement approved pursuant to section 86.13 has the same effect as an award of benefits. Claimant must, therefore, establish by a preponderance of the evidence that his condition has changed since the settlement. The evidence presented establishes that claimant's psychological condition has deteriorated since the time of his eye injury but does not disclose whether his condition has changed since the time of the settlement. This does not satisfy claimant's burden. Furthermore, claimant has presented no evidence or argument that cause for allowance of additional compensation exists on the basis of substantive omission due to mistake. Claimant has made no showing that his psychological condition was unknown to him at the time that he entered into the settlement agreement. Nor has claimant shown that he could not have discovered through exercise of reasonable diligence that he suffered from traumatic neurosis resulting from his eye injury. Claimant's testimony at the hearing reveals that his fear of losing his good eye and his disinterest in socializing or participation in sports activity began shortly after he returned to work in September 1980 (transcript, pages 23, 35, 44). Claimant's wife testified that she noticed a change in claimant's attitude immediately after the injury. Claimant states that his attorney referred him to Dr. Sannito for examination. Dr. Sannito examined claimant on February 17, 1982--less than four months after claimant's settlement agreement with defendants was approved. Claimant has not seriously pursued treatment of his psychological problems. Some medication was prescribed by Dr. Varner, however, claimant never returned for follow-up evaluation. It is interesting that claimant did not seek psychological evaluation for problems which apparently had existed for at least two years, until four months after settlement with his employer. PILCHER V. PENICK & FORD Page 4 To show a change in condition one must show what that condition was at the time of the previous hearing or settlement. The fact that one goes out and obtains evidence that wasn't presented at a prior time does not establish a change of condition. To come up with new evidence may only show a different opinion or shed light on something that should have been presented earlier. Even if claimant had shown a change of condition, he could not recover benefits for industrial disability since his injury was to a scheduled member and not the the body as a whole. Claimant's psychological problems affect his earning capacity to some extent. However, he has already been compensated for any reduction in his earning capacity through the schedule. The scheduled loss system created by the legislature is presumed to include compensation for reduced capacity to labor and to earn. Schell v. Central Engineering Co., 232 Iowa 421, 4 N.W.2d 399 (1942). Defendants argue that claimant's healing period ended on April 29, 1980. Defendants rest their argument on a report of Jay H. Krachmer, M.D., who examined claimant on April 29, 1980: Mr. Pilcher was last seen in the Cornea clinic on April 29, 1980 at which time his visual acuity in the right eye was not improved and in the left eye his visual acuity remains 20/20. The cornea on the right is completely opacified and vascularized and shows evidence of early lipid degeneration. The visual prognosis of Mr. Pilcher's right eye is extremely poor and it is not likely he will regain useful vision from his right eye. on the other hand we are not at the present time contemplating removing this eye. We are unable to predict whether this will be necessary in the future. It is reasonable at this point for Mr. Pilcher to return to an active life. It will, however, be necessary for him to wear protective lenses in the interest of his remaining good eye and his working ability will be limited to those tasks which can be performed adequately by a one eyed individual. (Joint Ex. 13) The deputy awarded healing period benefits up to September 1, 1980 when claimant returned to work. Section 85.34 (1979) provides: 1. Healing period. If an employee has suffered a personal injury causing permanent partial disability for which compensation is payable as provided in subsection 2 of this section, the employer shall pay to the employee compensation for a healing period, as provided in section 85-37, beginning on the date of the injury, and until he has returned to work or competent medical evidence indicates that recuperation from said injury has been accomplished, whichever comes first. Claimant's healing period ended on April 29, 1980. Dr. Krachmer's examination on that date revealed that claimant had PILCHER V. PENICK & FORD Page 5 substantially recovered and significant further improvement from his injury was not anticipated. The events since April 29, 1980 also show that claimant ceased improvement as indicated by Dr. Krachmer. Claimant argues that he should not have been taxed with costs of this action. Costs are taxed at the discretion of the deputy. (Division of Industrial Services Rule 343-4.33) Many things may be considered by the deputy. Claimant has not shown an abuse of that discretion. FINDINGS OF FACT 1. Claimant started work for Penick & Ford on June 21, 1954 and still works for this employer. 2. On November 25, 1979, while working at Penick & Ford, claimant injured both his eyes. 3. Claimant's left eye sustained no permanent partial impairment as a result of the accident of November 25, 1979. 4. Claimant's right eye is 95 percent impaired as a result of the accident on November 25, 1979. 5. On October 29, 1981, the parties filed an "agreement for settlement" which was approved by this agency by operation of law. 6. Claimant did not sustain any permanent disfigurement to his head or face as a result of the accident of November 25, 1979 separate from the appearance of the right eye itself and the area immediately surrounding the right eye. 7. Claimant had a minor surgical procedure performed near his right eye on January 24, 1980. 8. Claimant reached maximum medical recuperation on April 9, 1980. CONCLUSIONS OF LAW Claimant's healing period ended on April 29, 1980. Claimant has not established by a preponderance of the evidence that his condition has changed since the time his settlement, pursuant to section 86-13. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That claimant take nothing from this proceeding. That all costs are taxed to the claimant. PILCHER V. PENICK & FORD Page 6 Signed and filed this 21st day of October, 1987. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. J. Richard Johnson Attorney at Law P.O. Box 607 Cedar Rapids, Iowa 52406 Mr. Steven L. Udelhofen Attorney at Law 1000 Des Moines Bldg. Des Moines, Iowa 50309 1302-1302.1-1802-2907-1803.1, Filed October 21, 1987 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ IVAN E. PILCHER, Claimant, VS. File No. 618597 PENICK & FORD, A P P E A L Employer, D E C I S I 0 N and FIREMAN'S FUND INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ 1302 - 1302.1 - 1802- 1803.1- 2907 Claimant denied further benefits for permanent partial disability following his 86.13 settlement because he failed to establish a change of condition. Claimant's healing period found to have ended when his treating physician revealed that claimant had substantially recovered and significant further improvement was not anticipated. Claimant did not show an abuse of discretion in the deputy's taxation of costs. It was noted that even had claimant shown a change of condition, he could not recover benefits from industrial disability since his injury was to a scheduled member and not to the body as a whole. BEFORE THE IOWA INDUSTRIAL COMMISSIONER PAUL PRUITT, File No. 619638 705526 Claimant, R E V I E W - vs. R E O P E N I N G IOWA POWER AND LIGHT COMPANY, D E C I S I O N Employer, Self-Insured, F I L E D and APR 17 1989 SECOND INJURY FUND OF IOWA, INDUSTRIAL SERVICES Defendants. INTRODUCTION This is a proceeding in review-reopening from two memorandums of agreement filed by Paul Pruitt, claimant, against Iowa Power and Light Company, employer, and Second Injury Fund of Iowa, defendants, for benefits as a result of an injury to the right knee and leg that occurred on November 30, 1979 (file no. 619638) and an injury to the left knee and leg that occurred on May 24, 1982 (file no. 705526). Defendant, employer, Iowa Power and Light Company, entered into agreements for settlement on each of these injuries and the two agreements for settlement were approved by the industrial commissioner on December 30, 1987. The only remaining defendant in this case, at this time, is the Second Injury Fund of Iowa. A hearing was held in Des Moines, Iowa, on January 20, 1988, and the case was fully submitted at the close of the hearing. The record consists of the testimony of Paul Pruitt, claimant, and claimant's exhibit 1, which contains 22 pages, and defendant's exhibits A through C. Both parties elected to order a transcript and to divide the cost. A copy of the transcript was supplied for the industrial commissioner's file. Both attorneys filed excellent briefs. STIPULATIONS The parties stipulated to the following matters at the time of the hearing. That an employer-employee relationship existed between employer and claimant at the time of both injuries. That claimant sustained an injury on November 30, 1979, and another injury on May 24, 1982, both of which arose out of and in the course of employment with employer. That temporary disability benefits are not an issue in this case at this time. That both injuries were the cause of permanent disability. That claimant sustained a 15 percent permanent partial impairment of his right leg and was paid 33 weeks of scheduled member permanent partial disability benefits for this injury. That claimant sustained a 15 percent permanent partial impairment of the left leg and was paid 33 weeks of scheduled member permanent partial disability benefits for this injury. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. That the rate of compensation, in the event of an award of weekly benefits, is $286.76 per week. That no affirmative defenses are asserted. That medical benefits are not in dispute. That defendant, Second Injury Fund of Iowa, makes no claim for credit for any benefits paid prior to hearing. That there are no bifurcated claims. ISSUE The parties submitted the following issue for determination. Whether claimant is entitled to any benefits from the Second Injury Fund of Iowa, and if so, the nature and extent of benefits. SUMMARY OF THE EVIDENCE Of all of the evidence that was introduced, the following is a summary of the evidence most pertinent to this decisions Claimant is age 37, married and has three children. He is a high school graduate with one semester of junior college and nine months of training as a medical corpsman in the Navy. Past employments include bartender and ward care for disabled persons. Claimant started to work for employer in April of 1971, working on overhead lines, underground lines, installing residential electrical service, setting poles and basic utility work (transcript pages 11-16). On November 30, 1979, claimant injured his right knee. While climbing off of a digger, his right foot got caught and he fell over and twisted his right knee as he fell off of the digger. Claimant was sent to Robert Bannister, M.D., who referred claimant to John Kelley, M.D., an orthopedic surgeon. Dr. Kelley performed surgery on claimant's right knee in December of 1979. Claimant said that he missed seven weeks of work and then returned to his former job of cable splicer of high voltage electrical cable which is approximately five inches in diameter and is covered with lead. Claimant testified that his work requires working with and handling 100 to 200 foot lengths of this five inch lead covered cable for as long as 20 to 24 hours, sometimes underground, running it from one manhole to the next in very close quarters. He said that this required pushing and pulling with his arms, legs and back. The job also requires removing manhole covers by squatting and bending, climbing in and out of manholes on ladders, and removing sand and goo from the manhole. Claimant testified that he also replaces light poles and burned out street lights. Claimant testified that it seemed like he is doing something physical all day long such as climbing stairs, bending, stooping, squatting and kneeling (tr. pp. 16-25). Claimant testified that after the injury of November 30, 1979, he favored his injured right knee, but nevertheless, certain work caused him pain and swelling in it, especially squatting and kneeling jobs, which are frequent in the manholes and climbing in and out of the manholes on steps or ladders. Claimant said that it was necessary to return to see Dr. Bannister for these continuing problems and that Dr. Bannister always referred him to Dr. Kelley (tr. pp. 25 & 26). Claimant related that on May 24, 1982, he injured his left knee while lifting a 165 to 185 pound manhole cover off of the ground. He suddenly felt a real sharp pop in his left knee. He saw Dr. Kelley again for this injury and was off work for ten weeks. Again he returned to work as a cable splicer (tr. pp. 26-28). Claimant testified that he has been able to perform his job as cable splicer for five and one-half years after these injuries, but that he has difficulties performing the job almost everyday climbing up and down stairs, lifting weights and climbing ladders. Claimant complained of pain, grinding, pulling and swelling in both of his knees, especially on days when he has been more physically active or when he happens to step wrong. Claimant said that he has to compensate with arm strength in several ways and that he also has to wear kneepads and knee wraps (tr. pp. 28-30). Furthermore, he added that he required additional surgery on his right knee in March of 1983 to realign the kneecap (tr. pp. 30 & 31). Claimant asserted that his condition is getting worse. There is constant swelling, grittiness, and grinding on the bottom of each kneecap (tr. pp. 31 & 32). He said that he was earning $15.30 per hour with employer and he likes his job. The Second Injury Fund of Iowa sent claimant to Mercy Occupational Evaluation Center (MOEC). Claimant was told that his physical condition would become more symptomatic in the future (defendants' exhibit A). Claimant said that in that event he did not know what he would do if he were not able to perform his current job. His only past employment was tending bar (tr. pp. 31-36). In response to questions from defendant's counsel, claimant granted that he had not looked for any other work after the first injury and that he had not bid on any other job with employer. Claimant conceded that he had received all of his pay increases to which he was entitled since the occurrence of both injuries (tr. pp. 36-41). A summary of the medical evidence follows. Claimant was hospitalized from December 17, 1979, to December 19, 1979, for a torn medial meniscus of the right knee from a hyperextension injury (exhibit 1, pages 1 & 3). Surgery was performed on December 18, 1979 (ex. 1, p. 2). The surgery was a patella shaving with trimming of a small transverse tear of the posterior medial meniscus (ex. 1, p. 8). Claimant was returned to work on July 21, 1980 (ex. 1, p. 8). Claimant had a flare-up of this injury in March of 1981, when he felt something catch or pop while squatting (ex. 1, p. 9). Claimant continued to have swelling and pain in December of 1981, which Dr. Kelley said was from roughness of the under surface of his right patella aggravated by or related to his work (ex. 1, p. 17). The second injury was diagnosed as chondromalacia with lateral subluxation of the patella (ex. 1, p. 11). The surgery on the left knee was performed on June 16, 1982 (ex. 1, pp. 3 & 12). Claimant had trouble with his knee after the surgery. Dr. Kelley said on September 16, 1982, he may have trouble with his knee in the future when he does heavy work which involves squatting or climbing. Dr. Kelley said that he will not have a normal patello-femoral joint (ex. 1, p. 18). On March 7, 1983, claimant was diagnosed with synovitis of the right knee, probably secondary to aggravated chondromalacia (ex. 1, p. 12). His right knee patella was subluxed rather markedly laterally (ex. 1, p. 13). The third knee surgery, which was the second surgery to the right knee, was carried out on March 25, 1983 (ex. 1, pp. 6 & 13). After the.surgery claimant continued to have complaints of pain which are recorded in Dr. Kelley's office notes on March 21, 1983, June 20, 1983, September 22, 1983, October 4, 1983, October 17, 1983, December 1, 1983 and April 23, 1984 (ex. 1, pp. 13-15). Dr. Kelley summarized claimant's condition on January 17, 1986, as follows: Paul Pruitt has chondromalacia of the patella involving both the right and left knee. This causes swelling and pain in the anterior joint. He has a permanent impairment in both knees as a result of this condition, and we have advised him that he should not do anything that involves repeated squatting, climbing, going up and down stairs, jumping and/or kneeling. He can walk on uneven ground and flat surfaces without limitation. (ex. 1, p. 20) Dr. Kelley added these comments on causal connection on August 1, 1986: "The incident of November 30, 1979 was the aggravating factor in necessitating surgery in 1979 and 1983 on his right knee. The incident of May 16, 1982 [sic] was the aggravating factor which necessitated surgery on the left knee in June of that year." (ex. 1, p. 21). On November 19, 1987, Dr. Kelley said that claimant still complained of pain beneath the patella and swelling in both knees. His discomfort is increased with activity. He has crepitation beneath the patella bilaterally. He has effusion in both knees. His patellae are tender when palpitated and he has a positive apprehension test bilaterally. Dr. Kelley concluded this final report as follows: "This patient has chondromalacia of the patella which can be expected to progress through the years. I would agree that he has a 15% impairment of the right and left lower extremity, secondary to the patello-femoral arthritis." (ex. 1, p. 22). On January 21, 1987, claimant was evaluated by Joshua Kimelman, D.O., at Mercy Occupational Evaluation Center (MOEC). Dr. Kimelman said that claimant did have evidence of lateral releases with palpable defect in the lateral retinaculum bilaterally. He does has marked crepitation to palpitation with compression at the patellar-femoral compartment and there is palpable crepitation in the under surface of the patella with tenderness, inferior, medially and laterally (ex. A, pp. 1-4). Dr. Kimelman concluded: I believe we must conclude that the patient has reached a maximum state of recuperation regarding his knees and because of the early degenerative changes present on previous X-rays and the anticipation of further degenerative changes I would guess that the patient's knees would, if anything, become more symptomatic in the future. Based on the AMA Guidelines, the patient does not have any functional impairment relating to his right foot, left shoulder, or his back. As regards his right and left knees, I would say, that at this time, he is approximately fifteen percent impaired regarding the right and left lower extremity secondary to the chondromalacia and degenerative changes involving his patella femoral [sic] compartments. I do not have any specific recommendations for physical limitations although certainly avoidance of climbing and squatting would be of benefit to him. The patient should continue with quadraceps [sic] exercise program to maintain and strengthen his quadraceps [sic]. Perhaps non-steroidal [sic] anti-inflammatory medication would be of some benefit to him. Additionally, a patella stabilizing-type orthosis, slipon [sic] elastic pad with a lateral patellar pad to maintain the kneecap in a more aligned position, may be of some benefit to him for his use from time to time. (ex. A, p. 3) Claimant was also seen by Robert W. Jones, B.S. and G. Patrick Weigel, M.A., occupational therapists at the MOEC on January 22, 1987. Claimant did well on the general aptitude battery (GATB) and the Career Assessment Inventory (CAI). However, he preferred "blue collar" occupations. They felt that he could continue in his present line of work as a cable splicer (ex. A, pp. 4-8). APPLICABLE LAW AND ANALYSIS The Second Injury Fund of Iowa contends that they have no liability in this case because the second injury fund legislation never intended that claimants with only a 15 percent impairment of the leg were to be eligible for second injury fund benefits. Irish v. McCreary Saw Mill, 175 N.W.2d 364, 369 (Iowa 1970) decided that the term "loss of use," in the statute was not intended to imply a total loss of use of a member of the body as a prerequisite to eligibility for compensation. This decision will not overrule the Irish case as proposed by defendants in their posthearing brief (def. brief, p. 1). The second injury fund states that second injury fund legislation was intended to encourage the hiring of the handicapped. The fund further asserts that Fulton v. Jimmy Dean Meat Co., file no. 755039 (appeal decision July 23, 1986) defined a handicap as a permanent injury that tends to act as a hindrance to an individual's ability to obtain or retain effective employment. The fund reasons that since claimant returned to work at his former job of cable splicer, with the same employer, that he cannot show that he is handicapped because he cannot show he has been unable to obtain or retain effective employment. Even though the legislature considered the hiring of the handicapped as a consideration in passing Iowa Code sections 85.63 through 85.69, they, nevertheless, did not use the term "handicapped" in the legislation which became law. There is no statutory requirement for an injured worker to be "handicapped", as such, in order to be eligible for second injury fund benefits. Furthermore, this interpretation of the Fulton case by the second injury fund is too narrow. Neither the statute, case law, nor administrative decisions have required the employee to totally separate from his employer at the time of the injury in order to be eligible for second injury fund benefits. Irish, 175 N.W.2nd 364 (1970); Anderson v. Second Injury Fund, 262 N.W.2d 789 (1978); Second Injury Fund v. Mich Coal Co., 274 N.W.2d 300 (1979); McKee v. Second Injury Fund, 378 N.W.2d 920 (1985); Second Injury Fund v. Neelans, No. 88-399, (Iowa filed February 22, 1989); Second Injury Fund v. Fulton, No. 87-1567, (Iowa filed February 22, 1989); and Second Injury Fund v. Albright, No. 87-1518, (Iowa filed February 22, 1989). The proposition of the second injury fund, that the determination as to the apportionment of liability between the fund and the employer as determined by the industrial commissioner in the Neelans and Fulton cases is contrary to the plain meaning of the language of the statue, was just recently rejected by the supreme court in the Neelans, Fulton and Albright cases cited immediately above. Defendant, Fund, emphasizes that claimant has never suffered an actual loss of earnings, but on the contrary, has always received compensation increases over the years after both of these injuries. By a comparison, claimant has offered these opposing views in his brief. Impairment of earning capacity is to be measured by the value of the loss or impairment of general earning capacity, rather than the loss of wages or earnings in a specific occupation. Schnebly v. Baker, 217 N.W.2d 708, 726 (Iowa 1974). The argument that the claimant is making more money than he was at the time of his injury shows a shortsighted view of the industrial disability concept. See, Iowa Workers' Compensation Law and Practice, Lawyer and Higgs, Section 13-5, p. 116, and citations therein. The real question is future earning capacity. The Supreme Court has held that impairment of physical capacity in itself may be presumed to impair the general earning capacity of the person injured. Shover v. Iowa Lutheran Hospital, 107 N.W.2d 85, 94 (Iowa 1961). Impairment of physical capacity creates an inference of lessened earning capacity in the future. Anthes v. Anthes, 139 N.W.2d 201, 208 (Iowa 1965). The basic element to be determined is the reduction in the value of the power to earn. Id. Earnings before and after injury are simply elements of proof. Id. The loss of earning capacity or power generally, rather than in a particular avocation, is that for which compensation is awarded. Jurgens v. Davenport, Rock Island and N.W. Ry. Co., 88 N.W.2d 7971 802 (Iowa 1958). As was stated in Jurgens, supra, "Even if she was not at the time of her injury engaged in that work, her ability to do it was a resource of value and if that ability was impaired or destroyed it was a proper fact for consideration by the jury." (cl. brief, pp. 3 & 4) It is the determination in this case that postinjury earnings create an inference of earning capacity, but the inference is rebuttable by evidence showing them to be an unreliable basis for estimating earning capacity [2 Larson, Worker's Compensation Law, section 57.21(c)(d)]. Postinjury earnings are not synonymous with earning capacity (2 Larson, sections 57.21 and 57.31). It must be taken into consideration that claimant likes his job, wants to keep it and has made an extraordinary effort to maintain his employment in spite of pain, swelling, grittiness and grating in his knees. 2 Larson, section 57.31 at page 10-163. Industrial disability, or loss of earning capacity, in a workers' compensation case is quite similar to impairment of earning capacity, an element of damages, in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is reduction in the value of the general earning capacity of the person rather than the loss of wages or earnings in a specific occupation. Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa app. 1977); 100 A.L.R. third 143; 2 Larson, section 57.21, 57.31; Michael v. Harrison Co., Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979). Defendants contend that there is no evidence that claimant's knees have or will cause a loss of earning capacity. As claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). The operative phrase in industrial disability is loss of earning capacity. Ver Steegh v. Rolscreen, IV Iowa Industrial Commissioner Report 377 (1984). Claimant has introduced an impairment rating of 15 percent for each knee. Claimant testified that he has trouble squatting and kneeling. It is particularly difficult to stand after squatting. Claimant testified that he has trouble climbing in and out of manholes and in and out of the service truck. Claimant related that he has trouble going up and down stairs, lifting weights and climbing ladders. Yet, these are the very duties that claimant must perform everyday of his working life. Claimant described that he has chronic trauma, persistent pain, swelling, grittiness and grinding in both knees. Claimant testified that his knees are getting worse rather than better. All of these testimonial contentions of claimant are supported and verified by the medical evidence. Dr. Kelley reported on January 17, 1986, that claimant should not do anything that involves repeated squatting, climbing, going up and down stairs, jumping and/or kneeling (ex. 1, p. 20). Dr. Kelley verified the complaints of pain, as well as actual effusion and crepitation (ex. 1, p. 22). Dr. Kimelman verified palpable defects, marked crepitation and tenderness bilaterally. He indicated that patient's knees would, if anything, become more symptomatic in the future, rather than less symptomatic in the future. Although Dr. Kimelman did not assign formal sounding restrictions as such, he nevertheless recommended against climbing and squatting. He recommended that claimant perform quadriceps exercises to maintain his quadricep strength indefinitely into the future. He recommended that claimant wear a patellar pad to maintain his kneecap alignment. A person who: (1) has to constantly avoid certain activities that are required by his job everyday, (2) has to perform daily exercises just to maintain normal strength in his quadriceps, and (3) and who should wear a patellar pad in order to keep his kneecap aligned, has presented evidence of considerable disability. The treating physician, Dr. Kelley, in his final comments stated that claimant has chondromalacia of the patella which can be expected to progress through the years (ex. 1, P. 22). Claimant is 37 years of age and has no special education other than high school. His loss of future earnings from employment due to his disability is more serious than would be the case for a younger or older individual, or a person who is better educated or has a wider spectrum of employment history. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (1979); Walton v. B & H Tank Corp. 2.II Iowa Industrial Commissioner Reports 426 (1981). When the Neelans case came before Iowa Industrial Commissioner David E. Linquist, he found that claimant had sustained a 10 percent permanent impairment of the hand and a 20 percent permanent impairment of the leg and awarded claimant an industrial disability of 65 percent of the body as a whole. Neelans, file no. 756250 (app. dec. June 30, 1987). When the Albright case came before Industrial Commissioner Robert C. Landess, he found that claimant had sustained a 10 percent permanent impairment of each knee and awarded claimant an industrial disability from the combined effects of both injuries of 30 percent of the body as a whole. Albright, file nos. 696983/682771 (appeal decision April 27, 1987). When the Fulton case was decided by Industrial Robert C. Landess, he found that claimant had a 7 percent permanent impairment of the left leg and an 8 percent permanent impairment of the right leg and that the combined effects of both injuries resulted in an industrial disability of 25 percent of the body as a whole. Fulton, file no 755039 (appeal decision July 28, 1986). In this case, claimant has a 15 percent permanent impairment to each knee and has requested an award of 25 percent industrial disability from the combined effects of both injuries. Claimant's request, based on the evidence in this case, when compared with the awards in Neelans, Albright and Fulton, is quite reasonable, if not modest. Therefore, based upon all of the foregoing considerations and all of the factors considered in making a determination of industrial disability it is determined that claimant is entitled to a 25 percent industrial disability from the combined effects of both first and the second injury. The formula to determine the liability of the second injury fund is as follows: (1) determine the amount of industrial disability resulting from the combined effects of both the first and second scheduled member injuries, (2) subtract the impairment value of the first injury, (3) subtract the impairment value of the second injury, (4) the resulting figure is the liability of the Second Injury Fund of Iowa (Neelans, Fulton and Albright as decided by the supreme court on February 22, 1989). Applying that formula to this case: (1) the industrial disability from the combined effect of both the first and second injury injury is 125 weeks (500 x .25), (2) minus the impairment value of the first injury to the right knee, which is 33 weeks (220 x .15), (3) minus the impairment value of the second injury to the left knee, which is 33 weeks (220 x .15), (4) which leaves 59 weeks as the liability of the Second Injury Fund of Iowa. Iowa Code section 85.64 provides that second injury fund benefits are to be paid after the expiration of the full period provided by law for the payments by the employer. In this case official notice is taken of the form 2a, claim activity report as of January 7, 1988, in the industrial commissioner's file [Iowa Administrative Procedure Act 17A.14(4)]. Claimant received healing period benefits of 10 weeks and 5 days from June 16, 1982 until August 29, 1982. Permanent partial disability shall begin at the termination of healing period (Iowa Code section 85.34(2)]. Teel v. McCord, 394 N.W.2d 364 (Iowa 1988). Thirty-three weeks of permanent partial disability benefits for the second injury began on August 29, 1982, and therefore, should have ended on April 17, 1983. Therefore, second injury fund benefits are to commence on April 18, 1983. In a recent decision, Industrial Commissioner David E. Linquist held that the second injury fund can be ordered to pay benefits in a lump sum, but that the fund is never liable to pay interest on unpaid compensation. Braden v. Big "W" Welding Service, file no. 785744 (app. dec. October 28, 1988). FINDINGS OF FACT Wherefore, based upon the foregoing evidence the following findings of fact are made. That claimant sustained a permanent impairment of 15 percent to his right knee and a permanent impairment of 15 percent to this left knee. That after the injuries up until the date of the hearing, claimant has experienced chronic pain, swelling, grittiness, grinding and grating in both of his knees. That claimant's subjective symptoms are corroborated and verified by the medical evidence presented by Dr. Kelley the treating physician and Dr. Kimelman the evaluating physician. That claimant is to avoid climbing and squatting, but at the same time his job requires him to squat in order to splice cable and to climb ladders in order to get in and out of manholes. That both Dr. Kelley and Dr. Kimelman expected claimant's condition to become worse in the future. That claimant has sustained a 25 percent permanent impairment to the body as a whole as a result of the combined effects of both injuries. CONCLUSION OF LAW WHEREFORE, based upon the evidence presented and the foregoing principles of law the following conclusion of law is made. That the liability of the Second Injury Fund of Iowa to claimant and claimant's entitlement to benefits from the Second Injury Fund of Iowa is 59 weeks of permanent partial disability benefits calculated as demonstrated in the analysis commencing on April 18, 1983. ORDER THEREFORE, IT IS ORDERED: That the Second Injury Fund of.Iowa pay to claimant fifty-nine (59) weeks of permanent partial disability benefits at the rate of two hundred eighty-six and 76/100 dollars ($286.76) per week in the total amount of sixteen thousand nine hundred eighteen and 24/100 dollars ($16,918.24) commencing on April 18, 1983. That this amount is to be paid in a lump sum. That interest will not accrue pursuant to Iowa Code section 85.30. That the costs of this action are charged to the Second Injury Fund of Iowa pursuant to Division of Industrial Services rule 343-4.33. That the Second Injury Fund of Iowa file claim activity reports as requested by this agency pursuant to Division of Industrial Services rule 343-3.1. Signed and filed this 17th day of April, 1989. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Phil Vonderhaar Attorney at Law 840 Fifth Ave Des Moines, Iowa 50309 Mr. Robert Wilson Assistant Attorney General Hoover State Office Bldg Des Moines, Iowa 50319 1402.40; 1203; 3201; 3202; 3203 Filed April 17, 1989 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER PAUL PRUITT, Claimant, File Nos. 619638 705526 vs. R E V I E W - IOWA POWER AND LIGHT COMPANY, R E 0 P E N I N G Employer, Self-Insured, D E C I S I 0 N and SECOND INJURY FUND OF IOWA, Defendants. 1402.40; 1203; 3201; 3202; 3203 Claimant requested and was awarded 25 percent industrial disability based on a 15 percent impairment to each knee from first and second injury. An analysis of the awards in Neelans, Albright, and Fulton and the evidence in this case showed that claimant's request for 25 percent industrial disability was quite reasonable if not modest. Decision declined to overrule Irish as proposed by the second injury fund. Decision held that the word "handicapped" as defined in Fulton does not appear in Iowa Code section 85.63 through 85.69. The formula used to determine second injury fund liability was the one used by Industrial Commissioner Landess in Fulton v. Jimmy Dean Meat Co., adopted by the supreme court in Neelans, Albright and Fulton, filed February 22, 1989. Decision followed Industrial Commissioner Linquist holding in Braden v. Big "W" Welding that a lump sum can be awarded against the Second Injury Fund of Iowa, but that the Fund is never liable for interest. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _______________________________________________________________ MARY MEHUS, Claimant, File No. 619929 VS. A P P E A L OSCAR MAYER & COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. _______________________________________________________________ STATEMENT OF THE CASE Claimant appeals from a proposed review-reopening decision denying her further compensation because she did not establish a change of condition since the time of her settlement which was approved by this agency on March 15, 1982. The record on appeal consists of the transcript of the review-reopening hearing and joint exhibits A through Q. Both parties filed briefs on appeal. ISSUES Claimant states the issues on appeal as: I. Did the deputy industrial commissioner determine Mary Mehus' claim for further benefits upon a basis of functional disability as opposed to industrial disability, disregarding evidence of increased pain as it affected job performance capability? II. Did the deputy industrial commissioner in essence ignore credible, uncontroverted testimony in reaching his conclusion that claimant had not shown by a preponderance of the evidence that her disability had increased and was proximately caused by her original injury? REVIEW OF THE EVIDENCE The review-reopening decision adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. Briefly stated, on November 26, 1979 claimant suffered an aggravation of her preexisting back condition. Claimant subsequently entered into a settlement agreement with defendant for the disability which resulted from the November 1979 injury. Pursuant to the settlement agreement defendant paid to claimant benefits based on a 12.5 percent permanent partial disability of MEHUS V. OSCAR MAYER & COMPANY Page 2 the body as a whole. Claimant continued to work for defendant following the settlement though she was experiencing pain and difficulty. Eventually, however, claimant's back pain became so severe that on May 11, 1984 when she experienced difficulty getting out of bed she left her employment with defendant. Claimant has not returned to work since that time. Medical evidence indicates that claimant's functional impairment ratings and work restrictions are not significantly different than those at the time of the settlement agreement. The medical evidence also indicates that claimant continues to suffer from the same degenerative disk disease she had prior to her injury. APPLICABLE LAW AND ANALYSIS The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury .... The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. . . . A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The preceding citation lends credibility to the finding that claimant's back pain is not a change of condition proximately caused by claimant's work injury of November 26, 1979. Claimant's current back pain is related to the natural progression of her preexisting degenerative disk disease. MEHUS V. OSCAR MAYER & COMPANY Page 3 In all other respects the analysis and rationale of the proposed review-reopening decision is adopted. The findings of fact, conclusions of law, and order are also adopted. FINDINGS OF FACT 1. At all times material herein, claimant was in the employ of Oscar Mayer. 2. Claimant's job at Oscar Mayer has consisted of general labor work as a meat packer. 3. As a result of the work injury of 1979, claimant lost work for a considerable length of time and suffered a significant permanent impairment of her lower back. 4. In March 1982, a settlement of claimant's workers' compensation claims for healing period and permanent partial disability benefits as a result of the 1979 work injury was approved by this agency. 5. Between February 1982 and May 1984, claimant performed the job of "inspecting glue bases" which required the monitoring and servicing of a glue machine operation. 6. At the time of the settlement in March 1982, claimant was experiencing considerable difficulty in performing her job inspecting glue bases. 7. The work restrictions imposed upon claimant in February 1982 are not significantly different than her restrictions at the present time. 8. In May 1984, claimant voluntarily left her employment with Oscar Mayer claiming that her condition deteriorated to such a point that she could no longer work in any capacity at Oscar Mayer. 9. Claimant has not sought alternative employment at Oscar Mayer or anywhere else since May 1984, nor has Oscar Mayer offered any alternative employment to claimant. CONCLUSIONS OF LAW Claimant has not established by a preponderance of the evidence that her condition has changed since February or March 1982, the time of a settlement of her workers' compensation claims under Iowa Code section 86.13 arising from the November 26, 1979 work injury or that a causal relationship exists between the alleged change of condition and the same work injury. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That claimant shall take nothing from these proceedings. MEHUS V. OSCAR MAYER & COMPANY Page 4 That claimant shall pay the costs of this action including the transcription of the hearing proceeding. Signed and filed this 20th day of February, 1987. ROBERT C. LANDESS INDUSTRIAL COMMISSIONER Copies To: Mr. J. E. Tobey III Attorney at Law 306 Northwest Bank Bldg. Davenport, Iowa 52806 Mr. John J. Carlin Attorney at Law 1002 Kahl Building Davenport, Iowa 52801 Mr. Roger A. Lathrop Ms. Vicki L. Seeck Attorneys at Law 600 Union Arcade Bldg. 111 East Third Street Davenport, Iowa 52801 1302.10 Filed February 20, 1987 ROBERT C. LANDESS BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ MARY MEHUS, Claimant, File No. 619929 VS. A P P E A L OSCAR MAYER & COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. ________________________________________________________________ 1302.10 Claimant denied further compensation because she did not establish a change of condition since the time of her settlement. Claimant's current condition is related to the natural progression of her preexisting degenerative disk disease. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DALE H. SEIEROE, Claimant, File No. 626224 vs. E. E. WRIGHT, A R B I T R A T I O N Employer, D E C I S I O N and TRI-STATE INSURANCE COMPANY OF MINNESOTA Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Dale Seieroe, claimant, against E.E. Wright, employer, and Tri-State Insurance Company of Minnesota, insurance carrier, to recover benefits as a result of personal injuries sustained February 7, 1980. This matter came on for hearing before the undersigned deputy industrial commissioner September 1, 1988. The record was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant, Anita Howell, Larry Foster, M.D., and Gene Wright; joint exhibits 1 through 11, inclusive; claimant's exhibits 12 through 14, inclusive; and defendants' exhibit A. ISSUES Pursuant to the prehearing report and order submitted and approved September 1, 1988, the following issues are presented for resolution: 1. The extent of claimant's entitlement to permanent disability benefits; 2. Claimant's entitlement to certain medical benefits provided under Iowa Code section 85.27; 3. The appropriate rate of compensation; and, 4. The applicability of the odd-lot doctrine. FACTS PRESENTED Claimant sustained an injury which arose out of and in the course of his employment on February 7, 1980 when a fire erupted in the shop he was cleaning causing third degree burns over 70 percent of his body. Claimant was hospitalized for 80 days during which time he underwent seven surgical procedures and, SEIEROE V. E. E. WRIGHT PAGE 2 since his release, claimant estimated he has undergone 13 to 18 more procedures for "plastic surgery." Claimant maintained that at the time he was discharged from his hospitalization and for over two years thereafter he wore an elastic suit and mask 24 hours a day which was designed to keep his scars from raising. Claimant testified that he essentially has not worked since the day of his injury explaining that although he has attempted to return to farming on three different occasions, attempted to drive a truck, and attempted to assist in farm chores, he does not have the stamina necessary to sustain any extended periods of work. Claimant maintained that he can work for 15 to 25 minutes, maximum,and then feels quite fatigued and sweats profusely and thus he must lie down and relax for 15 to 90 minutes. Claimant testified that he currently operates a gunsmith shop out of his house which allows him to work in a climate controlled environment and also allows him to work and rest as the need arises. Claimant testified that he started working on guns just after he got out of the hospital, that he has an inventory of 20 or 25 guns, that he goes to four or five gun shows per year along with a friend, and that although business has improved somewhat the gunsmithing operation in his home has yet to make any type of profit. Claimant described his gunsmithing operation as "more like a hobby" since it provides him with something to occupy his day and is not a profitable venture. Claimant explained that he unlocks the front door to the gunsmith shop at approximately 8:45 or 9:00 a.m. and closes the shop at approximately 8:00 p.m. and that during the course of these hours he receives assistance from his daughter and that he sleeps approximately three and one-half or four hours during this period of time. Claimant testified that he also operates a small movie rental operation out of his home and gun shop although the movies are owned by another company and the small commission claimant receives for renting the movies approximately pays his electric bill. Claimant testified that because of his injury he now has a fear of strangers and finds it hard to deal with strangers. Claimant explained that although he is comfortable with those individuals that he has known for years he has had a great deal of difficulty in situations which require contact with the general public. Claimant testified that he currently has problems with his eyes and his hearing as a result of the injury, that he developed high blood pressure approximately two years ago, that he fatigues easily, and that he does not believe he can sustain any prolonged periods of work without the necessity of resting frequently. Claimant denied any respiratory problems prior to his injury and maintained that he would secure employment if he felt that he could. Claimant testified that he was paid by defendant employer $1000 per month and received all the meat he needed which he valued at approximately $25 per week. Claimant could not specifically identify the value of the meat that he received from the employer but indicated that during the course of his employment with E.E. Wright he never purchased any meat for himself or his family. Larry Foster, M.D., general surgeon, testified he became claimant's treating physician on the date of claimant's admission to the burn unit at St. Luke's Medical Center on February 7, 1980 and found claimant to have burns covering 70 percent of his body and an inhalation injury. Dr. Foster described that when claimant was admitted to the hospital claimant was in a life SEIEROE V. E. E. WRIGHT PAGE 3 threatening situation because of the extent of his burns and because of the inhalation injury. Dr. Foster explained that because claimant also had third degree burns to his upper and lower eyelids, it was necessary to surgically close claimant's eyes and that during the course of claimant's hospital stay he underwent seven different surgical procedures with approximately 14 hours of anesthesia and approximately 50 total units of blood. Dr. Foster explained that because claimant had lost over 50 percent of his body skin, which is the major thermal regulator of the body and maintains the body temperature, claimant has a great lack of heat and cold tolerance and is therefore subject to easily becoming hyperthermic. Dr. Foster stated that since grafted skin cannot function as undamaged skin claimant has no thermal regulator and any increase in body temperature such as that produced with muscle activities, stress or even doing nothing will severely affect claimant and require rest since claimant has a marked reduced capacity to sweat. In addition, Dr. Foster testified that claimant has a decreased capacity of his lungs due to his inhalation injury received on February 7, 1980 which is not possible to overcome and, in fact, which may become worse. Dr. Foster opined that claimant does not have the ability to work an eight or ten hour day because of the extent of his injuries and the decreased capacity of his lungs. Dr. Foster felt that claimants operating his own business would be an ideal situation since it allows claimant to work in a climate or environmentally controlled atmosphere, to work at his own rate, and it is a situation which allows him to stop and rest as frequently as necessary. Dr. Foster did not believe that claimant had the capacity to work in any type of structured work environment. Although Dr. Foster has not been treating claimant for hypertension, Dr. Foster opined that while the hypertension would not be a direct result of claimant's burn injuries, it could be a secondary problem. Dr. Foster stated that claimant is an individual who must be sedate, because of the extent of his injuries, which is not good for the cardiovascular system. The first sign of heart disease, the result of bad cardiovascular health, is high blood pressure. Dr. Foster concluded by stating that claimant needs to watch his hypertension, needs to be encouraged to lose weight, needs to watch his environmental controls including heat and cold, needs to avoid stress, heat, cold, exertion, others with upper bronchial infections since claimant, as a result of the pulmonary injury he received, is likely in the early stages of emphysema and must be careful with exposure to sun and other elements since grafted skin has an increased incidence of skin cancer. Dr. Foster testified, when reviewing the pictures found in claimant's exhibit 12, that claimant's condition will not improve and that although there might be some additional procedures available in the future with regard to the condition of his mouth and eyelids, what is currently available is very minimal and will provide him very little, if any, improvement in his cosmetic condition. Anita Howell, who identified herself as the manager of Crawford Health and Rehabilitation Services in Omaha, Nebraska, which is a direct private rehabilitation office providing medical management, rehabilitation assessment, and guidance in job placement services to disabled individuals, testified she was asked by claimant's counsel to meet with claimant to evaluate claimant's status with regard to his employability. Ms. Howell SEIEROE V. E. E. WRIGHT PAGE 4 explained she reviewed the medical records, the records from Karen Stricklett, a vocational rehabilitation counselor who had been employed by defendants to work on the case, and personally interviewed claimant to come to the conclusion that although claimant has transferable skills from his previous employment he is "unable to be employed as a result of his injury since he "does not have the physical capabilities necessary to utilize these skills." Ms. Howell stated that claimant could not be productive over an eight hour period of time and that the necessity of taking breaks after only approximately fifteen minutes work eliminates even sedentary work as an alternative to claimant. Ms. Howell opined that because of claimant's capabilities or lack thereof neither relocation nor work hardening would enhance claimant's employability and that even though claimant has the mental capacity to further his education it would take him so long to complete the education that it still would not improve his opportunities. Ms. Howell testified that claimants activities in gunsmithing are most appropriate since that is something he enjoys, that allows him to be self-employed, that allows him to work at his own pace, and on his own schedule. Ms. Howell concluded that there is no employment in "this" area that claimant could attain and maintain. Gene Wright, who identified himself as the defendant employer in this matter, testified that claimant was paid on the basis of $1000 per month and that although there was not a policy of giving meat to employees, employees were entitled to take all the meat they needed. Mr. Wright explained that there was no record kept of how much meat claimant might have taken but estimated that over a year's period of time it might have been one-half to three-quarters of a beef worth $300 to $400. Steven V. Fisher, M.D., staff physician of the Ramsey Clinic, Department of Physical Medicine and Rehabilitation, saw claimant on July 9, 1987 for an independent medical examination and, in conjunction with Lynn Solem, M.D., director of Ramsey Clinic burn center, opined: With his cosmetic appearance and his difficulty in meeting the public, it would seem that the only type of employment for this man would be a very sedentary desk type job with few public contacts. Any type of even light work causes this man to "overheat" and he is not able to perform his duties. A specific percent of impairment rating, based on the Skin Chapter of the Guides to the Evaluation of Permanent Impairment of the American Medical Association, was calculated. His impairment is based on his sensitivity to heat, cold and sunlight, his decreased durability of the skin, his need for moisturization of the skin and his decreased sensation over all grafted and scarred areas. Disfigurement as such is not rated. It is my opinion that he has a 50% whole man impairment, secondary to his termal burn. For the reasons mentioned above, however, without significant ,vocational intervention and possible vocational retraining, it is my opinion that this man is "totally" disabled. However, this man appears very pleasant, motivated, articulate, with good judgement and therefore would seem to have transferable skills and could be potentially vocationally rehabilitated SEIEROE V. E. E. WRIGHT PAGE 5 given the restrictions mentioned above. (Joint Exhibit 10, pages 4-5) Stanley A. Bloustine, M.D., examined claimant on or about May 12, 1986 and stated: I think it is highly unlikely that Mr. Seieroe will ever get significantly better in terms of sun and heat sensitivity. Therefore, I do not think he will ever be able to do heavy manual labor or be out in the sun for any length of time at all. Also the extent of his burn scars are certainly consistent with his symptoms of heat intolerance and inability to sweat much. AGain [sic] it is highly unlikely that it will ever improve. Therefore, any heavy manual labor with a lot of sweating is probably not possible for him. He could have scar revisions of the left side of his mouth to try to improve that, but this is certainly a minor part of his problems. Therefore, I do believe Mr. Seiere either has to be considered disabled or will need to be retrained for light indoor work where he can remain in a cool, air conditioned environment without a lot of sun exposure. (Jt. Ex. 9) On February 22, 1988, Harold L. Ganzhorn, M.D., of Maple Valley Medical Clinic, stated: Mr. Dale Seieroe has trouble with hypertension and needs to take medicine for the same. I think one of the main causes of his hypertension is the amount of scar tissue he has over his body which interferes with his evaporation. Also the shock he went through following this accident I think is also contributory. (Jt. Ex. 11, p. 2) APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). As a 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." Iowa Code section 85.36 provides, in part: The basis of compensation shall be the weekly earnings of the injured employee at the time of the SEIEROE V. E. E. WRIGHT PAGE 6 injury. Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed, computed or determined as follows and then rounded to the nearest dollar: .... 4. In the case of an employee who is paid on a monthly pay basis, the monthly gross earnings multiplied by twelve and subsequently divided by fifty-two. ANALYSIS As the parties do not dispute claimant sustained an injury which arose out of and in the course of his employment or that the injury is the cause of both temporary and permanent disability, it is necessary to consider only the issue of the extent of disability which includes the related issue of whether or not claimant is an odd-lot employee as contemplated by Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). 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 SEIEROE V. E. E. WRIGHT PAGE 7 injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the later to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the 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 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). Under the odd-lot doctrine, which was formally adopted by the Iowa Supreme Court in Guyton, supra, a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Id., citing Lee v. Minneapolis Street Railway Company, 230 Minn.315, 320, 41 N.W.2d 433, 436 (1950). The rule of odd-lot allocates the burden of production of evidence. If the evidence of degree of obvious physical impairment, coupled with other facts such as claimant's mental capacity, education, training or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to SEIEROE V. E. E. WRIGHT PAGE 8 show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such a case it should not be enough to show that claimant is physically capable of performing light work and then round out the case for non-compensable by adding a presumption that light work is available. Guyton, 373 N.W.2d at 105. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of fact finds the worker falls in the odd-lot category, the worker is entitled to a finding of total disability. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of the evidence in determining whether the worker's burden of persuasion has been carried. only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law. Guyton 373 N.W.2d at 106. The court went on to state: The commissioner did not in his analysis address any of the other factors to be considered in determining industrial disability. Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in a gauging industrial disability. Other factors include the worker's age, intelligence, education, qualifications, experience, and the effect of the injury on the worker's ability to obtain suitable work. See Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984). When the combination of factors precludes the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total disability. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). In Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 (1935) the court, addressing the issue of the meaning of disability stated: What is "permanent total disability"? Does this clause refer to "functional disability" or to "industrial disability"? For clearness we shall use the term "industrial disability" as referring to disability from carrying on a gainful occupation--inability to earn wages. By "functional disability" we shall refer to the disability to perform one or more of the physical movements which a normal human being can perform. .... It is obvious that "disability" here used cannot refer to mere "functional disability....... It is ... 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 terms of percentages of the total physical and mental ability of a normal man. .... SEIEROE V. E. E. WRIGHT PAGE 9 ... [T]he Compensation Law was passed for the purpose of compensating the working man when injured. The loss which this claimant suffered due to the injury which he received while in the employ of the company is the inability to carry on the work he was doing prior to the time of the injury, or any work which he could perform. This man at fifty-nine years of age, after thirty years as a street car motorman, with little education, cannot find or hold a position that would not require some manual labor, and, of course, due to the condition of his back, he cannot perform such work. To say that he might become a stenographer or a lawyer or a clerk or a bookkeeper is to suppose the impossible, for a fifty-nine-year old man, with no education, is not capable of securing or filling any such position. His disability may be only a twenty-five or thirty per cent disability compared with the one hundred per cent perfect man, but, from the standpoint of his ability to go back to work to earn a living for himself and his family, his disability is a total disability, for he is not able to again operate the street car and perform the work which the company demanded of him prior to the time of the accident. While claimant asserts the applicability of the odd-lot doctrine, it is concluded that whether or not claimant is an odd-lot employee under Guyton is irrelevant to this case as the evidence presented establishes claimant is permanently and totally disabled under the principles recited in Diederich. Dr. Foster has reported that because of the extensive burns and inhalation injury claimant sustained on February 7, 1980, claimant's pulmonary status, i.e., decrease the capacity of his lungs, and his markedly reduced capacity to regulate his body temperature will not change. Claimant needs a climate/ environmentally controlled work atmosphere and work which will allow him to rest frequently throughout the day. Dr. Foster was emphatic that as a result of claimant's injuries claimant does not have the physical capabilities necessary to sustain normal work activities and that claimant is permanently and totally disabled from gainful employment. The undersigned does not find any bona fide dispute [with Dr. Foster's conclusion] in any of the other medical records . Claimant is currently 42 years old and was 33 at the time of his injury. Claimant's work history is primarily that of a laborer which required a sustained physical effort on his part. Clearly, as a result of his injuries, claimant has been precluded from this type of employment. Claimant has a farm management degree and, as Anita Howell correctly pointed out, while claimant does have some transferable skills, claimant does not have the physical capabilities necessary to utilize these transferable skills particularly because of his inability to work over any sustained period of time. Claimants limitations are clearly as a result of his injuries. Relocation will not enhance claimant's employability as his employability is not directly related to the area in which he lives. In approximately 1982, claimant opened a gun shop in his home and advertised his services as a gunsmith. In addition to the work he does in his home, claimant travels to some gun shows throughout the area. Defendants argue that because of this, claimant is employable. However, the record is undisputed that SEIEROE V. E. E. WRIGHT PAGE 10 claimant has not earned any profit or any regular wages from this endeavor. After reviewing the evidence, the undersigned agrees with claimant's assessment that this activity is more in the nature of a hobby rather than a true vocation or job. A finding that there is some work that claimant could do with the physical and educational limitations he has does not foreclose a finding of permanent total disability. Eastman v. Westway Trading Corporation, II Iowa Industrial Commissioner Reports 134 (Appeal Decision 1982). See also Chamberlin v. Ralston Purina, Appeal Decision filed October 29, 1987. Claimant established to the satisfaction of the undersigned that he is capable of working for only 15 to 30 minutes before requiring rest and that he rests for approximately four hours throughout what might be considered a normal workday. Because of the massive loss of skin, claimant does not have a thermal regulator and is consequently required to carefully maintain his living/working environment. Claimant must be sensitive to all of life's stressors particularly because of his injuries. While claimant clearly has the mental ability to complete retraining and/or further his education, such would take very long to complete because of the fatigue factor and still may not improve his employment opportunities. Given the above, claimant has established that he is permanently and totally disabled from employment during the period of his disability. See Iowa Code section 85.34(3). It is not necessary to further evaluate claimant's status or disability under the Guyton factors. However, even if the principles of Guyton were applicable, claimant would be a worker incapable of obtaining employment in any well-known branch of the labor market. Claimant is totally disabled under Guyton in that the only services claimant can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Also disputed is claimant's entitlement to certain medical benefits under Iowa Code section 85.27, particularly with regard to treatment for his high blood pressure. This issue, however, was not listed as an issue on the hearing assignment order and, accordingly, the undersigned is without jurisdiction to consider it. See Joseph Presswood v. Iowa Beef Processors, (Appeal Decision filed November 14, 1986) holding an issue not noted on the hearing assignment order is an issue that is waived. The final issue for resolution is the appropriate rate of compensation. The parties agree that claimant was paid on the basis of $1000 per month. Therefore, according to Iowa Code subsection 85.36(4), claimant's earnings would be multiplied by 12 and divided by 52 leaving a gross weekly wage of $230.77. However, although the parties cannot agree on any value, they do agree that claimant was also entitled to all of the meat he wanted. Under Hoth v.Irvin Eilors, I Iowa Industrial Commissioner Report 156 (Appeal Decision 1980) claimant is entitled to have the value of this considered in arriving at his weekly rate of compensation. Claimant estimated the value of the meat to be $25 per week while defendants estimated the value at $300 or $400 over the course of the year. Since defendant employer candidly acknowledged no record was kept of how much meat claimant was given and that he had "no idea" how much it was, the value placed on the meat by claimant will be accepted. In light of defendants' lack of records and knowledge, claimant is considered to have been in a better position to know the value of this job benefit. Claimant was single at the time of his injury and had two dependents as defined by Iowa Code ,section SEIEROE V. E. E. WRIGHT PAGE 11 85.42. Therefore, claimant with a gross weekly wage of $255.77 ($230.77 plus $25) and three exemptions is entitled to a rate of compensation of $156.03 per week. FINDINGS OF FACT Wherefore, based on all the evidence presented, the following findings of fact are made: 1. Claimant sustained personal injuries which arose out of and in the course of his employment on February 7, 1980 when a fire erupted in the shop he was cleaning. 2. Claimant sustained third degree burns over 70 percent of his body and an inhalation injury resulting in damage to his pulmonary system. 3. Claimant was hospitalized for 80 days during which he underwent seven surgical procedures and, since his hospitalization, has undergone another 13 to 18 procedures. 4. Claimant has sustained a loss of over 50 percent of his body skin and, since the skin is the major thermal regulator, claimant has an intolerance to heat and cold and must be climate/environment conscious at all times. 5. The damage claimant has sustained to his body is not possible to overcome and may get worse. SEIEROE V. E. E. WRIGHT PAGE 12 6. Claimant does not have the physical capability necessary to sustain any extended work effort. 7. Claimant is able to work approximately 15 to 30 minutes before requiring rest and rests approximately four hours throughout what might be considered a normal work day. 8. Claimant, age 42, with a high school education and a degree in farm management, has earned his living primarily as a laborer and is precluded from doing such work as a result of his injuries. 9. Claimant has transferable skills but does not have the physical capabilities necessary to utilize such skills. 10. Claimant currently owns and operates a gunsmith business which is more in the nature of a hobby but which allows him to remain in a climate controlled environment and also allows him to rest as frequently as necessary 11. Claimant is permanently and totally disabled. 12. Claimant earned $1000 per month at the time of his injury and was entitled to all the meat he wanted which is valued at $25 per week. 13. Claimant has a gross weekly wage of $255.77 [($1000 times 12) divided by 52 plus $25], was single at the time of his injury and has two dependents. CONCLUSIONS OF LAW Wherefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant is permanently and totally disabled as a result of the injury sustained February 7, 1980. 2. Claimant has established the appropriate rate of compensation is $156.03.per week. ORDER THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant permanent total disability benefits during the period of his disability at the applicable rate of one hundred fifty-six and 03/100 dollars ($156.03) per week commencing January 23, 1984. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file claim activity reports as required by the division pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 26th day of September, 1988. SEIEROE V. E. E. WRIGHT PAGE 13 DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Michael P. Jacobs Attorney at Law 300 Toy National Bank Bldg Sioux City, IA 51101 Mr. David E. Vohs Attorney at Law 340 Insurance Ctr, Ste 340 507 7th St Sioux City, IA 51101 1804; 4100 Filed September 26, 1988 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER DALE H. SEIEROE, Claimant, File No. 626224 vs. E. E. WRIGHT, A R B I T R A T I O N Employer, D E C I S I O N and TRI-STATE INSURANCE COMPANY OF MINNESOTA Insurance Carrier, Defendants. 1804; 4100 Claimant sustained third degree burns over 70% of his body and an inhalation injury when a fire erupted in the shop he was cleaning. Claimant established his entitlement to permanent total disability benefits without the necessity of resorting to the applicability of Guyton.