BEFORE THE IOWA INDUSTRIAL COMMISSIONER WILLIAM PICKRELL, File No. 626523 Claimant, R E V I E W VS. R E 0 P E N I N G JOHN DEERE OTTUMWA WORKS, D E C I S I 0 N Employer, Self-Insured, Defendant. STATEMENT OF THE CASE This is a proceeding in review-reopening brought by claimant William Pickrell against defendant self-insured employer John Deere Ottumwa Works as the result of injuries sustained on June 25 or July 3, 1979. The matter came on for hearing before the undersigned deputy industrial commissioner in Ottumwa, Iowa, on February 28, 1989 and was considered fully submitted at the close of hearing. Both parties subsequently filed briefs. Claimant originally filed a petition in arbitration on February 14, 1980. Claimant voluntarily dismissed that petition without prejudice on September 9, 1980. Claimant subsequently filed a petition in review-reopening on July 5, 1983. An application for approval of agreement for settlement (executed on March 18, 1985 by claimant, his present counsel and defendant's present counsel) was filed on March 27, 1985. An order approving the agreement for settlement was filed by Deputy Industrial Commissioner Steven E. Ort on the same day. Although the copy of that order contained in the industrial commissioner's file bears only the signature stamp of Deputy Ort, it is clear that the parties have in all respects treated the agreement for settlement as approved and binding. The present petition in review-reopening was subsequently filed on June 26, 1986. The record in this proceeding consists of joint exhibits 1 through 11 and the testimony of the following witnesses: claimant, Bob McCall, Marilyn Pickrell and Craig Dalbey. PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 2 ISSUES Pursuant to the prehearing report submitted by the parties and approved by the deputy at hearing, the following matters have been stipulated: that an employment relationship existed between claimant and employer at the time of injury; that claimant sustained an injury on June 25 and/or July 3, 1979 arising out of and in the course of that employment (only one injury is at issue, and the slight discrepancy as to the correct injury date is of no real significance); that the injury caused both temporary and permanent disability; that claimant sustained permanent disability to the body as a whole; that the appropriate rate of compensation is $264.39; that affirmative defenses are waived; that claimant's entitlement to medical benefits is no longer in dispute; that defendant is entitled to credit under Iowa Code section 85.38(2); that defendant paid claimant 138 weeks, 1 day of compensation at the stipulated rate prior to hearing. Issues presented for determination include: the extent of claimant's entitlement to compensation for temporary total disability/healing period and permanent disability, along with the commencement date thereof; whether claimant's condition has changed since the agreement for settlement; taxation of costs. Prior to the agreement for settlement, this matter was scheduled for hearing on December 4, 1984. The parties reached agreement as to settlement on or shortly before that date. However, as has been seen, settlement documents were not submitted to this agency until March 27, 1985, approximately three and one-half months later. Claimant's counsel argued that claimant sustained an exacerbation of his back problems in February, 1985 and is of the view that any alleged change in claimant's condition should be measured as of his condition on December 4, 1984 rather than the date settlement documents were filed and approved. Defendant is of the view that any change in claimant's condition should be measured as of the date the agreement for settlement was filed and approved. REVIEW OF THE EVIDENCE The application for approval of agreement for settlement pursuant to Iowa Code section 86.13 stipulated that claimant sustained an injury arising out of and in the course of his employment on June 25 and/or July 3, 1979. Further, that claimant's injuries resulted in functional impairment to his lower back, left hip and left leg. Claimant underwent a laminectomy and removal of a herniated PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 3 disc at L2-L3 on August 10, 1979. Thereafter, claimant continued to have complaints and sought further treatment from various physicians. Physicians at the Mayo Clinic in Rochester, Minnesota, rated claimant as having sustained a 15 percent permanent partial functional impairment to the body as a whole in March, 1982. Neurosurgeon Thomas A. Carlstrom, M.D., evaluated claimant on November 8, 1983 and subsequently opined that claimant had sustained a functional impairment to the body as a whole of 7-8 percent. Claimant was evaluated by neurologist Thomas B. Summers, M.D., on September 25, 1984. Dr. Summers subsequently opined that claimant had sustained a functional impairment of 15-20 percent to the body as a whole. The parties further stipulated that claimant had been employed with defendant since July, 1973 as an arc welder and was paid on a piecework basis. Following his injury claimant returned to work in January, 1980 and was able to perform his regular job, except that he took intermittent time off for further treatment. In February, 1982 claimant was assigned physical restrictions that caused him to be transferred to a job as a salvage welder at an hourly rate of pay; claimant was physically able to perform that job, but was laid off for economic reasons in September, 1984 and had not been recalled to work as of the time the application was executed. Based on the foregoing, the parties agreed that claimant had been paid all healing period benefits due him and had sustained a permanent partial disability of 22 1/2 percent of the body as a whole or 112 1/2 weeks which defendant "is paying" without interest. The order approving the agreement for settlement, itself approved as to form by claimant's attorney, found claimant entitled to no healing period benefits, but 112 1/2 weeks of permanent partial disability at the rate herein stipulated by reason of a 22 1/2 percent permanent partial disability to the body as a whole. The agreement was subject to a review-reopening proceeding under Iowa Code section 85.26. No interest was assessed and defendant was fully discharged from all liability with respect to claimant's present condition. Claimant testified that he was 52 years of age at the time of hearing, having been born on November 15, 1936. Claimant began work for defendant as an arc welder, having previous experience as a welder. This position included responsibility for reading blueprints, measuring tolerances and "setting up" incentive jobs. This was a PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 4 piecework.position and claimant was in the top 25-50 percent of similarly situated workers, averaging approximately $15.00 per hour. Claimant described his injury as occurring when he picked up pipes weighing approximately 20 pounds from a skid and felt a "pop" in the back. He initially saw the company physician, Walter Herrick, M.D., but his care was soon transferred to Donald D. Berg, M.D. Claimant underwent surgery to his lumbar spine on August 10, 1979. The surgery helped some, but claimant still had continuing problems. Nonetheless, he did return to work with some pain in January, 1980. Claimant returned to his regular job and continued earning about the same as before his injury. However, he found himself easily tired so he returned to Dr. Berg. Dr. Berg subsequently referred claimant to the Mayo Clinic in Rochester, Minnesota in approximately December, 1981 and March, 1982. Claimant testified that due to restrictions imposed (he was unclear as to whether by Dr. Berg or physicians at Mayo) he was transferred to a position as material handler and salvage welder, not a piece rate job. Claimant continued in this employment with some intermittent layoffs until September, 1984. At that time, he was laid off due to lack of seniority. Claimant does not allege that this layoff was a subterfuge or caused in any respect other than by general economic considerations. claimant expected to be recalled from this layoff, but had not been as of the date of hearing. Claimant testified that he settled his earlier proceeding on December 4, 1984 in the Ottumwa courthouse, although the settlement was not finalized until the next year. He understood that checks had been issued in December, 1984, but paperwork was somehow misplaced and the checks needed to be reissued. Claimant testified that in February, 1985, his back condition became much worse and he again saw Dr. Berg on February 25, 1985. This visit was because of his lower back complaints and not due to any cervical spine problems. Claimant indicated that Dr. Berg referred him to Marc Hines, M.D., as of March 12, 1985, and that Dr. Hines has treated him since that date. Claimant testified further that he first developed problems in the cervical spine during approximately March or April, 1985. Claimant eventually underwent an anterior PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 5 fusion to the cervical spine in January, 1986. That surgery helped claimant with his symptoms of blurred vision, "snapping" of the neck, weakness and pain in his elbows, and although he had some headaches, he suffered no further neck pain for one year after his fusion. Claimant eventually decided in mid-1987 that he would be forever unable to return to his employment with Deere. He stated that the problems leading him to that conclusion included an inability to remain in one position, inability or difficulty in rising from bed, an inability to bend (this being much different than December, 1984, when he could bend and could get up from a squat without using his arms exclusively) and an inability to walk any distance or with speed. Claimant developed a foot drop problem in summer, 1987 and now needs a cane and brace and is unable to put weight on his left leg. Claimant reported that his salvage welding job required light lifting, bending and twisting which is beyond his current ability. That job also involved working in the tool crib and doing roving inventory counts. In fact, claimant insisted that there exists no job he knows of at Deere that he is able to perform (although defendant has not offered to rehire him in any event) because of his inability to cope with pain. Claimant stated that he could work only if he were allowed to sit or lie down as needed to cope with his pain. Although claimant failed to finish eighth grade, he obtained a GED in approximately 1975. He has also had on-the-job training in diesel and auto mechanics. However, claimant indicated that he has poor clerical skills and does not read or spell well. Claimant's work history includes farm work, restaurant dish washing, a garbage route and odd jobs while in high school, and, beginning in approximately 1960, five years as a mechanic for Eagle Foods. Claimant left that work as shop supervisor and diesel mechanic. Claimant next worked as a diesel mechanic in Texas for approximately six months, then as a mechanic for a business known as Union Carbide. Thereafter, claimant operated a self-service truck stop for a few months, worked as a welder for approximately five months with Barker Poultry, and worked an assembly job for approximately six months with Iowa Army Ammunition Depot. Next, claimant was employed as an auto mechanic for P & W Automotive and took a position with John Deere as an arc welder. Subsequently, claimant worked for a short time as a welder with a business known as L-John. Claimant's most remunerative position by history has been with defendant. PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 6 Claimant has sought vocational rehabilitation from the state of Iowa, but apparently has not undergone a rehabilitation program. Bob McCall testified that he is an electrician employed by John Deere and that as union president since 1979, he has responsibility for handling benefits problems. He testified that the hourly value of benefits paid in addition to wages is between $11.00 and $13.00 per hour. Benefits include vacation, personal days, 11 or 12 holidays, medical insurance, grievance rights, a pension based on years of service and a seniority system. Mr. McCall was of the belief that claimant would now be working if he was physically able to be an arc welder, that he would now be close to recall as a salvage welder based on his current restrictions and that he would already have been recalled based on McCall's understanding of claimant's 1984 physical restrictions. He stated that everyone laid off in September, 1984, except for individuals with medical problems, has now been recalled. McCall indicated that salvage welders are now making approximately $13.75 to $14.00 per hour. Marilyn Pickrell testified to being claimant's wife for 32 years prior to hearing. She testified that prior to his injury claimant was quite active in farming (both crops and livestock), outdoor activities such as fishing and camping, bowling and family life. After the 1979 work injury claimant was unable to bowl (inability to bend) or participate in outdoor activities. Ms. Pickrell indicated that since December, 1984, claimant's ability to walk has greatly deteriorated. While he did walk with a limp before that time, he now walks with a cane and leg brace (since 1988) and is unable to walk far. He walks with a slow, "sideways" gait. When sleeping, claimant tosses and turns more and sleeps less, if at all. Claimant has both good and bad days now, which was also true in 1984. However, in 1984, claimant did not take pain medications. Bad days are more frequent now, especially in cold weather. Claimant is much less able to perform chores around the home, although he tries. Craig Dalbey testified to being a salary administrator for defendant. He indicated that claimant would not have been rehired based on his seniority after the September, 1984 layoff. PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 7 Thomas Summers, M.D., testified by deposition on November 20, 1984. Dr. Summers is a board-certified neurologist. Dr. Summers indicated that he first saw claimant on September 25, 1984 for evaluation. His examination found that claimant's problem basically was of pain and discomfort in the back and the left lower extremity. Claimant showed evidence of a radicular syndrome. Claimant was restricted in the movements of the lower back, able to move forward through an angle of 30 degrees, but unable to bend backwards. Claimant tended to limp on the left side. Vibratory sense was impaired on the left foot and pain sensation was impaired on the inside of the left leg and the inside of the left foot. Dr. Summers' clinical impression was of failed lumbar laminectomy syndrome, that is, that claimant had undergone surgical treatment for a ruptured disc without success. It was his view that claimant had a functional impairment of approximately 15-20 percent of the body as a whole. With respect to physical limitations, Dr. Summers felt that claimant should avoid stooping over and bending down and if necessary, to first squat rather than bend. He advised that claimant not lift over 25 pounds, since items weighing more than that cannot be lifted with just the arm and hands and require strain to the lower back. Likewise, claimant might find it necessary to avoid standing or sitting for any length of time and similarly situated people are much more comfortable if permitted to change positions frequently. Prolonged walking would be contraindicated. Dr. Summers did not feel that claimant was a candidate for further surgical treatment. Dr. Summers was of the view that claimant's maximum recuperation had probably been achieved around 18 months following his lumbar surgery. Dr. Summers' report of September 25, 1984 reflected that claimant started having pain again in the lower back and down the left lower limb approximately one month after his lumbar surgery. Claimant complained of constant pain in the lower back. The pain extended into the left hip and buttock and down the left leg into the foot. The left knee hurt badly and claimant experienced sharp jabbing pain at times. The left foot was described as stinging. Thomas Carlstrom, M.D., testified by deposition on November 20, 1984. Dr. Carlstrom is a board-certified neurosurgeon. He examined claimant on November 8, 1983 and PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 8 performed.a general physical examination. He found at that time that claimant was able to forward bend 80 degrees, had a negative straight leg raising exam while sitting and his neurological examination was objectively normal. However, there were some subjective sensory findings in the left lower extremity. Dr. Carlstrom was of the view that claimant was continuing to have symptoms of back and leg discomfort best described as a failed back syndrome. He felt that claimant had reached maximum benefits of healing and had suffered a permanent partial disability of about 7-8 percent of the body as a whole. To a reasonable medical certainty, Dr. Carlstrom believed that claimant had reached maximum benefits of healing about six months to a year postoperative, sometime in the middle part of 1980. But, claimant's return to work on January 3, 1980 was probable a more accurate date in determining maximum benefits of healing. Dr. Carlstrom felt that the preponderance of claimant's symptoms were probably secondary to arachnoiditis. David W. Beck, M.D., an assistant professor of neurosurgery at the University of Iowa Hospitals and Clinics, wrote to Dr. Hines on April 30, 1985. Dr. Beck related that he had seen claimant on the day before for evaluation. Claimant specifically complained of pain in the low back, left hip, left leg, left knee and left foot with numbness and weakness throughout the leg. Claimant indicated that these problems had been rather static in the last four years. Claimant also complained of other symptoms, including increased weakness in the upper extremities. Dr. Beck found that claimant had some mild stenosis in the lower spine as seen on CT and myelogram. The balance of Dr. Beck's letter dealt primarily with claimant's cervical problems. Dr. Beck wrote again on July 16, 1985 that claimant had been seen on the previous day for follow-up of low back pain and weakness in the legs. Claimant believed his legs were gradually getting weaker. For the first time, a left foot drop was observed. Dr. Beck agreed that.claimant's symptoms seemed to be progressing. Claimant's cervical problems had improved at this point and Dr. Beck intended to focus again on the lumbar spine. Associate Professor of Neurosurgery Patrick W. Hitchon, M.D., also of the University of Iowa Hospitals and Clinics, wrote Dr. Beck on August 5, 1985 to recommend continued PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 9 conservative treatment in the management of claimant's low back pain. Dr. Hitchon found no atrophy of the lower extremities, but upon motor examination claimant displayed hesitation and break-away weakness. Straight leg raising was roughly 85 degrees bilaterally, but was productive of low back pain on the left. Claimant displayed diminished sensory perception in all distributions on the left side compared to the right. Dr. Hitchon wrote Dr. Beck again on August 15, 1985 after reviewing radiological studies. He found the lumbar spine myelogram to show evidence of a bulging disc at L4-5, but not of a magnitude to warrant surgical intervention. Dr. Beck eventually performed a C5-6 anterior cervical fusion on January 8, 1986. Six weeks post-op Dr. Beck reported on February 20, 1986 that claimant was doing much better with respect to his upper extremity complaints. However, he was at that time "really complaining" about his low back pain radiating to the left leg. Dr. Beck suggested yet another (fifth) myelogram. Dr. Beck reported to Dr. Hines on April 21, 1986 that claimant underwent a lumbar myelogram on April 17. Claimant reported pain in the left lower extremity as the same as when he ruptured a disc in 1979. The pain was described as a chronic ache which occasionally shoots down the left lower extremity; claimant's foot feels "on fire." Dr. Beck reported that claimant could not lift the left lower extremity off the bed and that there was 3/5 motor strength in all muscle groups in the left lower extremity with fasciculation in the left inner thigh musculature and left hip pain with a 45 degree right lower and 20 degree left lower extremity straight leg raising. Dr. Beck reported normal sensation to pinprick, light touch, vibration and position sense throughout. Donald D. Berg, M.D., saw claimant from 1979 to 1985. Dr. Berg performed claimant's laminectomy in August, 1979. Dr. Berg reported in his chart notes that claimant visited him on February 25, 1985 complaining of lower back pain and leg discomfort and "now" is having problems with some numbness in the left leg and sciatic pain along with problems with urination and an inability to maintain an erection. Physical examination revealed diminished knee jerks and diminished ankle jerks; toe extensors on the left were slightly weak compared to the right. He found positive straight leg raising on the left. PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 10 E. W. McCarl, M.D., performed a CT scan at the request of Dr. Berg on February 27, 1985. There appeared to be some moderate narrowing of the L2-L3 spaces, but this was only a scout film and Dr. McCarl felt the patient should be rescanned at that level if symptoms were localized there. There was no evidence of any herniated disc at L3 through Sl, but some asymmetry of the posterior arches at L5-Sl, which had caused some sclerosis and narrowing between the articular facets at L5 to Sl bilaterally, indicating stress at that level. Repeat scans on February 28, 1985 showed moderate disc space narrowing at L2-L3 with some degenerative change of the anterior vertebral bodies along the disc margin at that level. There was some mild asymmetry or narrowing of the inferior articular facet of L2 on the left, but Dr. McCarl suspected it was congenital. Dr. Berg's chart notes of March 25, 1985 reflect that claimant continued to complain of back and neck pain. Dr. Berg felt that claimant had degenerative disc disease and arthritis with spurs in the neck. A myelogram of claimant's back did not show a great deal of significance. Dr. Berg recommended no further treatment for the back other than anti-inflammatory medication and limitation of lifting. Dr. Berg reported further on June 17, 1985 that claimant was essentially unchanged. Claimant stated that his leg "gives out occasionally" when walking, but did not feel this was work related and was associated with degenerative disc disease and degenerative osteoarthritis. At that time Dr. Berg did not feel claimant was able to work because of inflammation in the soft tissues. Dr. Berg had imposed limitations prior to the agreement, for settlement. On February 18, 1983, Dr. Berg wrote Dr. Herrick to note that claimant's work restrictions included no heavy lifting, no bending or twisting of the back. He specified that these restrictions should be permanent. Dr. Berg added an addendum on March 4, 1983 to specify that claimant's weight restriction would be 20 pounds and bending and twisting of 45 degrees should be limited to no more than three times per hour. Dr. Carlstrom also testified by a deposition taken February 13, 1989. In this deposition, Dr. Carlstrom noted that he had seen claimant on November 8, 1983, April 2 and 23, 1987, and January 1, 1989. Dr. Carlstrom discussed claimant's neck and lower back problems. He specified that claimant's cervical problems were not causally related to the work injury under review. PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 11 With respect to the April, 1987 examinations, Dr. Carlstrom noted that claimant had a diminished range of motion of the back, not severe, and a normal neurologic examination. While noting that claimant's range of motion diminution suggested some objective evidence for pain in the lower back, the normal neurologic exam indicated that the pain was not causing any significant impingement upon any neurological structures such as nerve roots or the spinal cord. The 1987 x-rays did show the degenerative disease of osteoarthritis in the lower spine, but Dr. Carlstrom did not find anything indicating that this osteoarthritis was caused by the work injury. He was of the view that claimant's 1987 symptoms may have been due in part to diminished activity following the cervical fusion. Dr. Carlstrom testified: Q. You go on to say, "Although he does seem to be a little worse at the present, I do not think that this should be considered related to his work activities, unless the neck problem is likewise related." What do you mean by that statement? A. Well, I think that he is-- He definitely got worse between 1983 when I saw him first and 1989 when I saw him last, especially in terms of findings related to his low back. In my opinion, part of that worsening relates to the neck problem, to the neck surgery. If the neck surgery is a direct result of an injury--and I'm not aware of any injury that could have caused that, so at least from my point of view, I don't think it's related, but if it is, then I think the worsening should be ascribed to the work injury--to a work injury. Q. But if there is no causal connection between the back--the neck condition and work, what, then, would you indicate? A. Well, then I would think that the worsening probably has no relationship to his work activity. Q. So that we fully understand each other, between your examination of 19--November of 1983 and your examinations of April 2 and April 23 of 1987, if the neck condition was not causally related to the 1979 incident, would there have been any worsening in the condition of this PICKRELL V. JOHN DEERE OTTUMWA WORKS Page 12 claimant from anything that occurred on June 25 of 1979? A. I'm not sure I understand the question. I might rephrase it a little bit and say that if he had not had the neck problem and/or the neck surgery, and had continued to be as active as he had been throughout 1985 and 186, then I don't think that he would be worse today. Q. And would that be true as you saw him on January 31, 1989? A. Yes. (Dr. Carlstrom deposition, page 14, line 20 through page 16, line 6) Dr. Carlstrom did, however, find objective changes between April, 1987 and January, 1989 in that claimant had diminished range of motion in the back. He believed a "major portion" of the worsening was related to claimant's cervical fusion. Neurologic examination on January 31, 1989 also indicated normal neurologic status with normal strength, sensation and coordination of the legs. However, when asked specifically if he could tell on January 31, 1989 what portion of claimant's back symptoms were caused by the cervical fusion, Dr. Carlstrom replied in the negative. Dr. Carlstom's report of February 1, 1989 indicated an impairment rating of 12-13 percent of the body as a whole, but approximately half of that rating was related to the cervical fusion. The doctor specified that perhaps 6 or 6 1/2 percent of the body as a whole was impaired by reason of the lumbar area. With respect to claimant's physical restrictions, Dr. Carlstrom testified: Q. Discounting the neck condition, Doctor, of the cervical fusion, talking only the lumbar area, what, if any, restrictions would you place upon claimant? A. Well, I think he would probable need to avoid heavy lifting. He would need to avoid prolonged sitting or standing and cramped postures, such as forward bending or stooping. Q. Would he have had that condition from-- those restrictions from the osteoarthritic condition? PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 13 A. Well, of course, that's possible, yes. Q. Is he able to be employed today, in your opinion? A. Yes. Q. In what type of function? A. Well, some type of function that lies within the parameters I set forth earlier, something that is light duty and allows him to be--to change positions, walk, sit, stand, and so forth. Q. Could he do light maintenance? A. I think so. Q. Clerical? A. Probably. Q. Guard duty? A. Probably. Q. What other type of activities? A. Well, he could sell, he could be a salesman. I would imagine that he could do light maintenance repair work, like for electronic things, and so forth. (Dr. Carlstrom deposition, page 24, line 25 through page 26, line 5) On cross-examination, Dr. Carlstrom admitted that traumatic injuries can exacerbate or hasten the development of arthritic or degenerative problems and that the work injury under review was at least a substantial contributing and aggravating factor in the overall disability to claimant's lower back. Marc E. Hines, M.D., wrote claimant's counsel on September 11, 1987. He stated that claimant's MRI scan of March 11, 1987 revealed multiple levels of spondylosis in the cervical spine. He noted that claimant had been followed since March, 1985 and that he had been consulting with Dr. David Beck. He stated that claimant had reached his maximum degree of healing at the time of his visits with Dr. Beck and himself in March and April, 1987, and that no PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 14 further substantial improvement would ensue. He initially indicated that claimant's cervical problems were related to his lower back condition, specifically the inactivity caused by his lower back complaints, but expressed a different view in his deposition of September 14, 1988. In that deposition, Dr. Hines indicated that he had continued to see claimant up through and including July 7, 1988, and had plans to see him again in October. Dr. Hines distinguished between claimant's cervical and lumbar problems. He noted that claimant suffered arachnoiditis in the lower back, which presumptively would be caused by claimant's previous surgery. In claimant's neck he showed a spur formation, which is an osteoarthritic condition in which extra bone is formed as a consequence of arthritis. He testified: Q. Doctor, what is your diagnosis -- What is your present diagnosis of his condition? A. I believe that Mr. Pickrell has lumbosacral osteoarthritis with spinal arachnoiditis. I believe as a consequence of those two factors, he has lumbar radiculopathy which means that the nerve roots are impinged on and impaired in their function, and he has low back pain as a consequence. I believe he also has cervical osteoarthritis and some neck pain because of that, and from time to time has some mild cervical radiculopathy, as well. I do not believe that the latter condition is as serious a problem to him now as it was formerly. (Dr. Hines deposition, page 31, line 20 through page 32, line 8) As to causation of claimant's present condition, he testified: A. The problems in Mr. Pickrell's low back are secondary to a combination of osteoarthritis, which is an arthritic degenerative disease, and arachnoiditis, which is a scar formation, which I believe is within a reasonable degree of medical certainty presumptively due to his previous surgery. Q. Do you have an opinion, assuming the facts in Exhibit 6 to be true as to it, why was the need or PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 15 what was the cause of the first surgery in the low back? A. As far as I can understand, not only from this record but from Dr. Berg's records which I have, that Mr. Pickrell bent over and felt a pop in his back while he was working at John Deere, and probably it was at that time that he herniated a disk in his low back and subsequently required surgery for that because he did not respond to medical management provided by Dr. Herrick and Dr. Berg. (Dr. Hines deposition, page 36, line 16 through page 37, line 9) As to causation relative the cervical spine, Dr. Hines testified: Q. Doctor, what, if any, causal relationship is there between the problems he was having in the low back for which you found and for which you've testified about, and those problems that you found in his neck which you've testified about? A. Well, he has osteoarthritis in both places. And certainly having osteoarthritis in one place, it's not surprising to find it in another. I cannot relate the injury to the problems in his neck in any direct manner whatsoever. The injury, as far as I know, caused him a herniated disk in the low back. It is somewhat difficult to say as to whether or not there is any further relationship. The presence of the problems in his neck perhaps could be exacerbated by some forms of activity, but I don't know of any clear-cut relationship in terms of another injury, for instance, that he had, and the major difficulties that he has that I can -- that I can demonstrate on myelogram, x-ray, in any other further examination seem to be primarily related to osteoarthritis. Q. So that condition, you say perhaps, but you can't say for sure -- you can't further say had anything to do with the low back problems he was having? PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 16 A. I think it's more speculative than -- than anything else, and there isn't a substantiating history in terms of injury or other relationship to this previous injury or even to the previous surgery that makes it clear. Certainly the two are connected by way of osteoarthritis, but this is a naturally occurring degenerative disease. (Dr. Hines deposition, page 37, line 23 through page 39, line 5) With respect to claimant's lumbar spondylosis, Dr. Hines testified: Q. The lumbar spondylosis? A. Okay. I think it would be reasonable to assume that any lumbar spondylosis at L2-3 could be causally related to a disk herniation and disc removal at L2-3. I think to assume that all of the remaining lumbar spondylosis which is presently up and down the spine is related to that one disc herniation would be unreasonable; and that, in fact, in the presence of all of the cervical disease which is present, without a prior injury as far as we know to that area, that it is more reasonable to assume that the lumbar spondylosis for the most part is due to the natural progression of an osteoarthritic disease. Q. And that's a condition which would have existed without a June 25, 1979, injury? A. Yes. To some extent, it would have. (Dr. Hines deposition, page 62, line 10 through page 63, line 1) However, with respect to arachnoiditis of the lumbar spine, he testified: Q. All right. Now, what about the situation where he speaks of adhesive arachnoiditis in the lumbar spine? Is that a condition which could have developed without the injury.and without the surgery? A Probably not. Q. What is that, Doctor? PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 17 A. That would be very rare to develop by itself. Q. What is that? A. That is a condition that usually comes on as a result of some kind of manipulation inside the spinal canal. Either a myelogram, where we go in and stir things up, and particularly if we get blood in the myelogram and then go ahead and inject the dye, which everybody is careful not to do because of that circumstance, or spinal surgery or surgery of the lumbosacral area which can cause scar and arachnoiditis. But that condition is almost always due to some type of traumatic event involving the area. (Dr. Hines deposition, page 63, line 2 through line 22) And further: A. Okay. The spinal arachnoiditis causes a narrowing of the canal and is contributed to also be the spondylosis. They both contribute. You see, the spondylosis is in front of the canal, pushing back in. The arachnoiditis is around the canal, causing a scar that constricts it and tightens it. Just like a scar on your body might cause a tight area of skin, it can do the same thing in the covering of the spinal cord, and in this case spinal nerve roots in the lumbar area. And if it does so, then on the,myelogram, when we put the dye inside, it will show up as an area where there is a constricted or narrowed area, with the measurements usually being less than 14 millimeters, oftentimes down to as low as 10 millimeters. and when they get that low in terms of their width, they become significant in terms of there's not enough room for the nerve roots, they become constricted, don't get enough blood supply and develop pain and soon. Q. Is that a condition which in this Claimant could have developed outside of any injury? A. I would say that the spinal -- What we're really talking about is called spinal stenosis, by the way. PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 18 Q. Yes. A. Spinal stenosis and narrowing of the spinal canal would be unlikely to occur at his age without the element of surgery and arachnoiditis. The spinal stenosis would be not at all uncommon above the age of sixty in a gentleman like Mr. Pickrell, with as much osteoarthritis as he has, but at his age it would be a distinctly unusual thing. (Dr. Hines deposition, page 64, line 4 through page 65, line 12) As to whether there had been any change in claimant's condition, Dr. Hines testified: Q. Now, I think we got to talking about a change of condition. I think you first saw him in March of 1985? A. That's correct. Q. And then has his -- Did his condition to the low back worsen from that point to the time you last saw him in July of 1988? A. Yes, over that whole period of time, I would say that's correct. (Dr. Hines deposition, page 75, line 2 through line 10) As to claimant's current limitations, Dr. Hines testified: Q. With the disability he now has, what work limitations would you -- Let me ask you this. Could he return to the type of work he was doing before? A. Well, as far as I can understand it, what he was having to do before, which would involve some -- some at least limited even lifting and bending, stooping and so on, standing for prolonged periods, I do not feel that he would be able to return to that type of work. (Dr. Hines deposition, page 40, line 1 through line 10) PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 19 And: Q. What kinds of jobs, if any, did you think he could perform now, regardless of taking into consideration both disabilities? A. Frankly, I don't think that he's going to be able to do much of anything. In terms of really productive employment, you know, one could perhaps creatively envision some type of part-time work, but it would be something where he would just be able to almost determine his own hours depending on how he felt, and I don't know of any employers who really are going to be able to allow that. Q. How much of that do you attribute to the low back problem, that opinion? A. Well, right now, I think the majority of -Well, that may be overstating it. I think that a majority of that problem is due to the low back, but I also think a significant minority -- I would not want to discount the neck and arm symptoms because if it weren't for that, he might be able to do some type of sit-down work with rest, but the problem is now he also has trouble with the flex posture of his neck. He can't sit over a computer screen, papers, et cetera, and so I think it's probably a significant contributor in terms of the total disabling nature of the situation. Q. If he were to find some employment and the employer were to seek some consultation from you respecting the limitations he might have to that portion of his injury to do with the low back, what would your opinion be as to what limitations held have for the low back portion of his injury? A. I think that he would -- I think that he would be limited from continuous standing. I think that he could sit for one to two hours at a time. He would need some rest breaks in order to get up and move because of his back. I think that he would be unable to stoop, bend, lift, crawl, that kind of operation. I don't think it would be reasonable to expect him to operate foot controls repetitively or infrequently foot controls that were heavy and hard to work like heavy machinery. I don't think he would be able to be involved in an occupation PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 20 that required repetitive jarring of the back, even if it was mild. So I think we're really talking more about a sedentary type of occupation, if we were even able to do that, if we were able to create something very creative. Q. Then you say that he also has a significant injury to the upper portion which adds to the total problem? A. Yeah. (Dr. Hines deposition, page 41, line 3 through page 43, line 5) With respect to periods of temporary total disability related to the lumbar problems, Dr. Hines testified that claimant was "clearly in active treatment" (defined at page 48 of the deposition as "actually engaged in treatment as opposed to just maintenance type of treatment") during 1985 and through January, 1986 when claimant underwent surgical treatment at the hands of Dr. Berg. Dr. Hines went on to state that "as we enter '87" they were getting much more into a maintenance period and no question that maintenance care was provided as 1988 was entered. Dr. Hines stated that "midway through" 1987 we were really in a maintenance period and.not a lot of active treatment going on; asked if that meant the physicians were doing things not necessarily anticipating improvement, Dr. Hines answered "Exactly." As of the neighborhood of December, 1987, Dr. Hines had basically been treating claimant for the low back. Dr. Hines testified further that claimant's back problem has worsened over time, but has generally not been marked with sudden worsening or increased difficulties other than claimant had had increased problems with his left leg since approximately December, 1987 and thereafter. By "stabilization" he indicated that his testimony dealt primarily with claimant's neck condition. In Dr. Hines' letter of May 17, 1985, he specified that claimant had been disabled since when he had first been seen through that date. A review of that letter indicates that his findings in that respect were based on both cervical and lumbosacral radiculopathy and other problems. Dr. Hines saw claimant again on October 11, 1988, following his deposition. He noted that claimant had continued and increasing difficulties with his low back, despite improvement in the neck. Claimant was currently PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 21 having difficulties with urination, constipation and defecation. His back pain was severe enough that he sits in a slightly turned posture with decreased weight on the left hip and leg. Dr. Hines wrote: All normal living postures are effected (sic]. He has difficulty with sleeping for more than a few hours at a time, because of increased back pain, has more restless nights than usual, and has to toss and turn, and often get up and change positions. Sitting for prolonged periods is impossible without standing at intervals and walking about. Standing for prolonged periods is difficult. He is unable to take long trips in the car without frequent breaks. He has significant difficulties with travel in this regard, in any mode that requires prolonged sitting. He has difficulties with lifting and his non-specialized hand activities, as previously stated. He does have some difficulties with his arms and hands as yet with regard to fine coordination, but is able to perform grasping and tactile discrimination tasks. He has marked limitations in lifting that were prescribed for him both by Dr. Beck and myself. The patient is unable to get an erection at this time, which we feel is due to the lumbar spinal stenosis and lumbar and sacral nerve root involvement. The patient, even if he were able to get an erection, would have significant difficulties with sexual function, due to his low back pain. The patient's sleep, as previously stated, is significantly effected, [sic] and he does not obtain a restful nights sleep because of the back pain. His social and recreational activities, naturally, have been markedly restricted due to his low back paint including the ability to perform any type of physical recreation. He is now able to play cards on occasion, but this is about the only recreational activity that continues, other than occasional visits with family members. On Neurological Examination, the patient had absent patellar and achilles reflexes bilaterally, hyperasthesia in almost the entire left lower extremity, with some hyperasthesia, particularly in the L-5-S-1 dermatome in the left lower extremity to pinprick, with additional hyperpathia to touch on the bottom of the left foot and, also, PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 22 hyperasthesia to touch as well in the entire left leg. The patient has straight leg raising at approximately 80 degrees on the left. No crossed straight leg raising is present up to 90 degrees. The patient has diffuse weakness in the left lower extremity of 3/5 degree in the iliopsoas, quads, hamstrings, plantar flexors of the foot, dorsal flexors are 4/5, evertor of the foot is 3/5, and invertor of the foot is 3/5. In the right lower extremity there is some weakness, however, in that the patient was able to be overcome with regards to quadriceps in particular, and there was 4/5 weakness here and in the iliopsoas. The remainder of the musculature in the right lower extremity seemed to be relatively spared. Flexion of the back at the hips was approximately 30 degrees. Thoracolumbar lateral flexion was approximately 10 degrees to the left and 20 degrees to the right, and thoracolumbar rotation was approximately 10 degrees to either side. Using the guides to the Evaluation of Permanent Medical Impairment, Second Edition, by the AMA, the patient's thoracolumbar rotation gives a 4% impairment to the whole person to each side using table 52 on page 57. Using table 51, page 54-lateral flexion gives a 4% impairment to the left and a 25 impairment to the right. Again, using the AMA Guides, table 50, page 52-abnormal flexion/extension-gives a 6% impairment to the whole person. This gives an overall 20% impairment to the whole person for the limited motion of the back. Using the AMA Guides nervous system section, the patient was found, during examination, to have both sensory and motor lumbar radiculopathy. Using table 6, page 75-unilateral spinal nerve root impairment-the patient has impairments in all listed spinal nerve roots L-3 through S-1 on the left, with limited impairment at L-3-4 on the right, of motor type only. Using table 5, page 74-grading scheme and procedure for determining impairment of effected body part due to loss of strength-the right lower extremity L-3-4 nerve root impairment falls into category 2-complete range of motion against gravity and some resistance, (sic] or reduced fine movements and motor control-giving a grading of 20% for each nerve root, giving a 4% and 6.8 impairment for L-3 and L-4 respectively, using the maximum percent PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 23 loss of function due to loss of strength x the percentage grade determined in table 5. Using the same table 6, on page 75, using table 5, page 74, for the left lower extremities loss of strength, the patient falls under category 3-complete range of motion against gravity, and only without resistance [sic] -giving a 50% grading scheme. This gives, for the respective nerves L-3 through S-1, 10%, 14%, 16.5% and 10% respectively for these nerve roots, with regard to maximum percent loss of function due to sensory deficit, pain, or discomfort, this is also derived from table 6. Using table 4, page 73, the grading scheme and procedure for determining impairment of effected [sic] body part due to pain, discomfort, or loss of sensation, the patient falls under grading scheme #3-decreases sensation with or without pain, which interferes [sic] with activity-giving a 60% grade for the 5% impairments respectively, from L-3 through S-1. This gives a 3% respective impairment for these nerve roots. This gives a motor impairment of 10.8% for the right lower extremity, 2.5% for the left lower extremity, and a functional loss due to sensory deficit, pain, or discomfort, of 12% for the left lower extremity. Using combined values tables, pages 240-241 in the AMA Guides, the 12% and 50.5% impairment gives a 54% impairment to the left lower extremity. Using table 15, page 82, the patient 54% impairment to the left lower extremity gives a 22% impairment to the whole person. The patient's 10.8% impairment to the lower extremity on the right gives a 4% impairment to the whole person. Using the combined values tables again, the 20% impairment from reduced motion, when combined with the 4% impairment for right lower extremity motor loss, gives a 22% impairment to the whole person. The 22% impairment to the whole person for left lower extremity dysfunction combined with the 22% impairment to the whole person previously calculated, gives a 32% impairment to the whole person. APPLICABLE LAW AND ANALYSIS Pursuant to Iowa Code section 86.14(2), in a proceeding to reopen an award for benefits, inquiry is to be made into whether or not the condition of the employee warrants an end PICKRELL V. JOHN DEERE OTTUMWA WORKS Page 24 to, diminishment of, or increase of compensation so awarded. A change in condition must be shown to justify changing the original award. Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959). It is not proper to merely redetermine the condition of the employee as adjudicated by the former award. Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 291 N.W. 452 (1940). A mere difference of opinion of experts or competent observers as to the degree of disability arising from the original injury is insufficient to justify a different determination on a petition for review-reopening; there must be substantial evidence of a worsening of the condition not contemplated at the time of the first award, Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957), or a change in condition may be found where claimant has failed to improve to the extent initially anticipated, Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978). Additionally, in cases not involving scheduled members, a change in earning capacity subsequent to the original award which is proximately caused by the original injury may constitute a change in condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). Thus, as a starting point, it is mandatory to review claimant's condition as disclosed by the agreement for settlement in determining whether claimant has established the requisite change in condition. Physicians at the Mayo Clinic in Rochester, Minnesota rated claimant as having sustained a 15 percent permanent partial functional impairment to the body as a whole in March, 1982. Thomas A. Carlstrom, M.D., found that claimant had sustained a 7-8 percent functional impairment to the body as a whole following a November 8, 1983 evaluation. Thomas B. Summers, M.D., opined that claimant had sustained a functional impairment of 15-20 percent of the body as a whole following an evaluation of September 25, 1984. Based on those evaluations, claimant's medical history of laminectomy and excision of a disc at L2-L3 and employment history, the parties stipulated that claimant had been paid all healing period benefits due him and had 'sustained a permanent partial disability of 22 1/2 percent of the body as a whole. However, the parties present an important issue as to whether change should be measured from the date on which the parties originally had a meeting of the minds or the date the application for agreement for settlement was filed and approved. A third possible date is the date upon which the parties executed the agreement for settlement, March 18, PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 25 1985. The question is of importance in this case because claimant's condition substantially changed between the date when the parties reached a meeting of the minds as to settlement and the date settlement papers were finally filed and approved, some 16 weeks later. Claimant developed additional symptomatology (numbness of the leg) in his relapse of February, 1985. Claimant's testimony that he "settled" the earlier proceeding in the Ottumwa courthouse on December 4, 1984 is unrefuted. The case was scheduled to be heard on that date. Had claimant developed second thoughts and decided not to execute formal settlement documents thereafter, defendants would have been entitled to the equitable relief of specific performance from the judicial system. Dilton v. City of Davenport, 366 N.W.2d 918 (Iowa 1985) held that an oral settlement agreement not yet approved by the agency is binding on the parties. A recent review-reopening decision issued by a deputy industrial commissioner dealt with this identical question. That decision noted Dilton and pointed out that pegging claimant's condition as disclosed in the agreement for settlement to the date of oral settlement where there has been an intervening change in condition promotes efficient administration of contested cases by the agency. The decision pointed out that were the rule to be otherwise, claimants will regularly seek to back out of settlements when there is an intervening change in condition before settlement papers are actually approved by the agency. Grelk v. Dale Jones d/b/a Western Bar, file number 788371 (Review-reopening Decn. October 30, 1989). The case recognized that medical conditions are not static, but are dynamic in nature and subject to dramatic change without notice. It was further recognized that as a practical matter, it is not uncommon for there to be a time gap for preparation of settlement documents and final approval by the agency. On the other hand, the agreement for settlement approved in March, 1985 was approved as to form by claimant's counsel and related to claimant's "present" condition. These documents were executed by claimant and his attorney after he had visited Dr. Berg on February 25, 1985 with serious additional symptomatology. Executing without reservation settlement documents that do not accurately depict claimant's condition on the date of execution is a practice fraught with peril and not to be approved. Particularly is this so when the proposed order approved as to form makes note of claimant's "present PICKRELL V. JOHN DEERE OTTUMWA WORKS PAGE 26 condition," without in any way pegging that condition to the date of verbal agreement. The question is close. However, on balance, the undersigned concludes that the appropriate date for measuring any change in condition in this case is December 4, 1984. This conclusion is reached primarily because the deal struck by the parties on that date is enforceable in equity and to a lesser degree for reasons of administrative efficiency as set forth in the Grelk decision. The examination closest in time to December 4, 1984 was performed by Dr. Summers on September 25 of that year. Dr. Summers' assessment of a 15-20 percent functional impairment was the highest of the several medical opinions on that issue. Dr. Summers found that claimant had pain and discomfort in the back and left lower extremity with evidence of a radicular syndrome. Movements of the lower back were restricted, claimant able to move forward 30 degrees, but unable to move backward. Claimant tended to limp on the left side. Vibratory sense was impaired and pain sensation was impaired. Claimant felt that his condition had become exacerbated when he saw Dr. Berg on February 25, 1985. while continuing to have lower back and sciatic pain, claimant had developed additional symptomatology: numbness in the left leg, problems with urination and initiation of urination, and inability to get an erection. Clinically, his examination revealed diminished knee jerks and ankle jerks. A CT scan performed by Dr. McCarl at about that time showed no herniated disc, but moderate disc space narrowing at L2-L3 with some sclerosis, narrowing between articular facets and degenerative change in the lumbar spine generally. Dr. Carlstrom noted osteoarthritic changes in the 1987 x-rays, but was of the view that these symptoms were not caused by the work injury and may have been due to diminished activity following claimant's cervical fusion. His testimony was to the effect that had claimant not had the neck problem and surgery and had continued to be active, "then I don't think that he would be worse today." Dr. Carlstrom did find objective changes between April, 1987 and January, 1989 in that claimant had diminished range of motion in the back. Thus, Dr. Carlstrom's testimony appears to be internally inconsistent in that he believes that claimant's lower back condition has changed for the worse (although not finding a causal relationship to the work injury), but of essentially the same or even less impairment rating (6 or 6 1/2 percent as of January 31, 1989 as opposed to 7-8 percent on November 20, 1984). Dr. Carlstrom PICKRELL V. JOHN DEERE OTTUMWA WORKS PAGE 27 believed that claimant would need to avoid heavy lifting, prolonged sitting, standing and cramped postures such as forward bending or stooping. He believed that claimant was currently employable, given his functions and restrictions, able to do a job that was light-duty and allowed him to change positions, walk, sit, stand and so forth. He thought claimant could do light maintenance, probably do guard duty or clerical work, and could be a salesman or do light maintenance repair work such as electronic devices. Dr. Carlstrom did admit on cross-examination that traumatic injuries can hasten the development of arthritic or degenerative problems and that the work injury was at least a substantial contributing and aggravating factor in the overall disability to claimant's lower back. Dr. Beck saw claimant last on March 11, 1987. He noted that claimant had cervical and lumbar spondylosis as well as probable adhesive arachnoiditis in his lumbar spine. The diagnosis of arachnoiditis is significant by reason of its confirmation of Dr. Hines' views set forth below. He noted that claimant would continue to have neck and back problems if he engaged in activity that "causes any flexion or extension or lateral bending of these elements." He found those problems could very well have been exacerbated by previous work experience and environment. Dr. Hines followed claimant from March, 1985 through October 11, 1988. He also did not conclude that claimant's cervical problems were causally related to the work injury. However, he thought that claimant's lumbar spine problems were secondary to a combination of osteoarthritis and arachnoiditis. He agreed that osteoarthritis is a naturally occurring degenerative disease which for the most part was responsible for claimant's lumbar spondylosis. However, he had a different view as to the role of arachnoiditis. This is a condition that probably would not have developed without the injury and subsequent surgery. It is a condition that he believed usually comes on as a result of some kind of manipulation inside the spinal canal. Dr. Hines described claimant's spondylosis as in front of the spinal canal, pushing back in, while the arachnoiditis was around the canal, causing a scar that constricts it and tightens it. Dr. Hines believed that this spinal stenosis or narrowing of the spinal canal would be unlikely to occur at claimant's age without the element of surgery and arachnoiditis. As has been seen, Dr. Hines testified to a progressive worsening of claimant's back condition between March, 1985 and July, 1988 (as of his deposition). On October 11, 1988, Dr. Hines found further increasing difficulties in the lower PICKRELL V. JOHN DEERE OTTUMWA WORKS Page 28 back. Claimant at that time was having difficulties with urination, constipation and defecation. Claimant sat in a slightly turned posture with decreased weight on the left hip and leg. Sitting for prolonged periods was impossible without standing and walking about at intervals. Standing for long periods was difficult. Claimant was unable to take long trips in the car without frequent breaks. Claimant had marked limitations in lifting prescribed by both Dr. Hines and Dr. Beck. Claimant's social and recreational activities had been markedly restricted due to lumbar pain, including the ability to perform "any type of physical recreation." Other than occasional visits with family members, claimant was able only to play cards for recreation. Asked what sort of work claimant might be able to perform as of his deposition, Dr. Hines indicated that a majority of the problems were due to the lower back and would keep claimant from being able to do much of anything in terms of really productive employment. one might creatively envision some type of part-time work, but it would be something where claimant would be able to almost determine his own hours. Claimant would be limited from continuous standing, could sit perhaps one to two hours at a time, would be unable to stoop, bend, lift, or crawl, operate foot controls repetitively or heavy foot controls infrequently, or be involved in an occupation that required repetitive jarring of the back. In addition, claimant had significant cervical problems. After the October 11, 1988 visit, Dr. Hines prepared a detailed analysis of claimant's functional deficit. Summarized, he found a 20 percent impairment to the whole person based on limited motion of the lumbar spine, a 22 percent impairment to the whole person by reason of left lower extremity, and a 4 percent impairment to the whole person by reason of impairment to the right lower extremity. He found that claimant had sustained a total 32 percent impairment of the whole person. Dr. Hines cited the AMA Guides to the Evaluation of Permanent Impairment (2nd Ed.) in reaching this conclusion. However, a review of the combined values chart contained therein shows that body as a whole impairments of 20 percent, 4 percent and 22 percent combine to a 40 percent,impairment, not a 32 percent impairment. Dr. Carlstrom and Dr. Hines are in disagreement. Dr. Carlstrom finds that claimant has sustained a deterioration to his lumbar spine, but attributes it to lack of activity forced by the cervical condition which no physician causally connects to the work injury. However, he also agreed that traumatic injury can hasten and exacerbate osteoarthritis. PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 29 On the other hand, Dr. Hines finds that claimant's lumbar condition is related both to osteoarthritis and to arachnoiditis. While the osteoarthritis may be a naturally occurring condition, he attributed the arachnoiditis to the work injury and subsequent surgery. On balance, this writer finds Dr. Hines' views to be the more persuasive. He has seen and treated claimant on numerous occasions and followed him from March, 1985 through April, 1988. Dr. McCarl's CT scan in 1985 found sclerosis and narrowing at L5-Sl bilaterally and at L2 and L2-L3. Claimant has developed additional symptomatology, including numbness to the left leg, problems with urination and defecation and obtaining erections, and reduced range of motion. Claimant has developed foot drop. His ability to walk has deteriorated. It is held that claimant has sustained his burden of proof in establishing a change in condition since December 4, 1984. Claimant has also suffered further change of condition since March 27, 1985 (developed foot drop and reduced range of motion). 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, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial 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 PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 30 result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen Inc., (Appeal Decision, March 26, 1985). Claimant's brief appropriately cites Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 (1935). That claimant had been a streetcar motorman for 30 years, was 59 years of age and had suffered a compression fracture with fusion of several vertebrae. He had little education and was unable to find or hold a position that would not require some manual labor. From the standpoint of his ability to go back to work to earn a living for himself and his family, Diederich's disability was a total disability, even though that disability was less than a 100 percent disability compared with a perfect man. Mr. Pickrell is 52 years of age and, although he has obtained a GED, left school in the eighth grade and has poor clerical skills and does not read or spell well. His work history includes farm work, dish washing, a garbage route, work as a mechanic and work as a welder. Given claimant's current functional deficit and symptoms, it is hard to see how he could realistically obtain work in any of those fields. It is perhaps even harder to see how he might obtain work in a clerical field given his inability to sit for more than one or two hours and his poor clerical skills. The same problem militates against successful retraining. Based on a review of all the evidence, it is held that claimant has become permanently and totally disabled by reason of the work injury of June 25 or July 3, 1979. This conclusion does not take claimant's independent cervical PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 31 spine impairment into account because it has not been shown to be causally related to the work injury. Because claimant is found to be permanently and totally disabled, there is no healing period to determine. Commencement of permanent disability benefits is difficult because of the current posture of this cause. The agreement for settlement approved March 27, 1985 did not deal with the extent of claimant's healing period, as it was merely found that this was not an issue at that time. Nor did it determine the commencement date of permanent partial disability, as it had apparently all accrued. It was merely awarded without interest and without any specific date. Claimant's condition has deteriorated in stages since December, 1984. The first exacerbation was in February, 1985, but he has clearly traveled a downhill path since then. Claimant had certainly developed at least some additional partial disability, and perhaps total disability, as of March 27, 1985. It would be entirely arbitrary to find several stages of increasing permanent disability and then some one date constituting the deterioration to permanent total disability. It is held that the commencement date for permanent total disability is March 28, 1985. As stipulated, defendant has continued to pay claimant benefits in accordance with the collective bargaining agreement and benefit agreement. Defendant is entitled to credit for those benefits under Iowa Code section 85.38(2). It has been held that an employer may unilaterally establish the amount of the credit due under Iowa Code section 85.38(2). Bakalar v. Woodward State Hospital School, file number 756871 (App. Decn. June 16, 1989). If claimant disputes the accuracy of the amount of the credit taken, his proper remedy is to file a new petition for a determination by the commissioner of the reasonableness of the credit. This agency retains jurisdiction at all stages to determine a proper credit under Iowa Code section 85.38(2). FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. As stipulated, claimant sustained an injury arising out of and in the course of his employment with defendant on June 25 or July 3, 1979. PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 32 2. As stipulated, the appropriate rate of weekly compensation is $264.39. 3. As stipulated, defendant is entitled to credit under Iowa Code section 85.38(2) for sick pay/disability income of $12,418.00 at the time of hearing and increasing thereafter. 4. The parties herein entered into an agreement for settlement which was verbally agreed to on December 4, 1984, executed on March 18, 1985 and submitted and approved on March 27, 1985. 5. The agreement for settlement was based on impairment ratings by Mayo Clinic physicians of 15 percent of the body as a whole, Dr. Summers' rating of 15-20 percent of the body as a whole, Dr. Carlstrom's rating of 7-8 percent of the body as a whole, a medical history of an excised disc and found that claimant had sustained an industrial disability based on his "current condition" of 22 1/2 percent of the body as a whole. 6. The medical examination closest in time to December 4, 1984 was performed by Dr. Summers on September 25, 1984. Claimant's symptomatology at that time included pain and discomfort in the back and left lower extremity with evidence of a radicular syndrome, movements of the lower back were restricted, claimant tended to limp on the left side, and vibratory sense and pain sensation were impaired. 7. Claimant's condition became exacerbated and he saw Dr. Berg on February 25, 1985. Continuing to have lower back and sciatic pain, claimant had developed additional symptomatology: numbness in the left leg, problems with urination and initiation of urination, and inability to obtain an erection. Claimant's examination revealed diminished knee jerks and ankle jerks. 8. Although Dr. Carlstrom did not believe that claimant's admittedly exacerbated back condition was causally related to the work injury as opposed to a separate cervical condition, he believed that claimant would need to avoid heavy lifting, prolonged sitting, standing and cramped postures such as forward bending or stooping, but believed that claimant was employable. 9. Dr. Hines found that claimant suffered a progressive worsening of his back condition between March, 1985 and July, 1988, and again on October 11, 1988. He felt that sitting for prolonged periods was impossible without standing and walking about at intervals as was standing for PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 33 long periods. Claimant had marked limitations in lifting and was essentially unable in his view to do much of anything in terms of productive employment. Specifically, claimant was limited from continuous standing, could sit perhaps one to two hours at a time, would be unable to stoop, bend, lift or crawl, operate foot controls repetitively or heavy foot controls infrequently, or be involved in an occupation requiring repetitive jarring of the back. 10. Dr. Hines found that claimant's impairment rating under American Medical Association Guides to the Evaluation of Permanent Impairment was to the extent of 32 percent of the body as a whole. However, his evaluation appears to have inaccurately made use of the combined values chart of the AMA guides, which indicate a 40 percent body as a whole impairment based upon separate evaluations of the back and lower extremities. 11. Claimant has established a change in condition to his lower back causally related to his work injury since December 4, 1984. 12. Claimant is currently and for the foreseeable future disabled from any meaningful employment in any recognized and regular field of endeavor. CONCLUSIONS OF LAW WHEREFORE, based on the principles of law previously cited, the following conclusions of law are made: 1. Claimant has met his burden of proof in establishing a change in condition to his lumbar spine since December 4, 1984, the date upon which the parties reached an enforceable settlement later approved by this office on March 27, 1985. 2. Claimant is permanently and totally disabled by reason of his work injury and without regard to independent cervical spine problems. ORDER THEREFORE, IT IS ORDERED: Defendant is to pay unto claimant two hundred sixty-four and 39/100 dollars ($264.39) per week as permanent total disability compensation during such time as claimant remains totally disabled. PICKRELL v. JOHN DEERE OTTUMWA WORKS Page 34 Defendant shall be entitled to credit at its discretion under Iowa Code section 85.38(2) for disability/sick pay benefits paid pursuant to the collective bargaining agreement and benefit agreement. This agency retains jurisdiction to review the amount of that credit. All benefits which have accrued as of the date of this decision shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. The costs of this action shall be assessed to defendant pursuant to Division of Industrial Services Rule 343-4.33. Defendant shall file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 27th day of February, 1990. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Arthur C. Hedberg, Jr. Attorney at Law 840 Fifth Avenue Des Moines, Iowa 50309 Mr. Walter F. Johnson Attorney at Law 111 West Second Street P.O. Box 716 Ottumwa, Iowa 52501 1804, 2904, 3301 Filed February 27, 1990 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER WILLIAM PICKRELL, File No. 626523 Claimant, R E V I E W VS. R E 0 P E N I N G JOHN DEERE OTTUMWA WORKS, D E C I S I 0 N Employer, Self-Insured, Defendant. 3301, 2904 Although agreement for settlement was approved only by deputy's stamped name, it was held valid. Where parties verbally agreed to settlement on scheduled date of hearing in December, but did not execute and file settlement documents until following March, the December date was used to measure change of condition in subsequent review-reopening. Claimant had suffered an exacerbation of symptoms during the interim. 1804 Fifty-two-year-old claimant with eighth grade education and poor clerical and reading skills (but with GED), work history of manual labor and welding, restrictions against continuous standing or sitting and stooping, lifting, bending, crawling, operating foot controls or being subject to repetitive jarring and 40 percent impairment rating was found permanently and totally disabled. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LOUELLA BROWN, Claimant, File Nos. 627617/498456 VS. A P P E A L JOHN DEERE WATERLOO TRACTOR WORKS, D E C I S I 0 N Employer, Self-Insured, Defendant STATEMENT OF THE CASE Claimant appeals from a consolidated review-reopening decision denying all compensation because claimant had not established a change of condition. The record on appeal consists of the transcript of the review-reopening proceeding; joint exhibits A through J; and the transcript and exhibits of the prior review-reopening proceeding on June 15, 1983. Both parties filed briefs on appeal. ISSUES Claimant states the issues on appeal as: (1) Are the claimant's present physical problems causally [sic] related to the worker's [sic] compensation injuries she received at the John Deere Waterloo Tractor Works on January 11, 1978 and February 6, 1980? (2) Is Deputy Commissioner Helmut Mueller's Decision of January 26, 1984 that claimant had undergone a change of condition subsequent to the settlement of October 14, 1980 res judicata on that issue in the present hearing? (3) Is the claimant entitled to medical benefits, healing period benefits and permanent total disability benefits, or in the alternative, additional permanent partial disability benefits? REVIEW OF THE EVIDENCE The review-reopening decision adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. Briefly stated, claimant sustained an injury to her low back BROWN V. JOHN DEERE WATERLOO TRACTOR WORKS Page 2 while moving a ladder at work on January 11, 1978. On February 6, 1980 claimant sustained an injury to her head and neck when she was struck by parts which fell when a truck or parts carrier passed by her work station. Claimant entered into a settlement agreement with John Deere Waterloo Tractor Works (hereinafter John Deere) based on her condition as of October 14, 1980. Paragraph 7 of the settlement agreement states the following concerning claimant's work restrictions: 7. That the Claimant presently has the following work restrictions at her employment with Employer: (1) 20 pound weight lifting restriction; (2) no continuous or repetitive bending or twisting; (3) no prolonged standing. By this, the parties mean that Claimant should be able to sit 50% of the working time; (4) a maximum of a forty hour work week. (Commissioner's Exhibit 8; review-reopening 6-15-83) Paragraph 8 of the settlement agreement states the following concerning claimant's permanent disability: 8. That based upon all of the foregoing, Claimant has suffered and is entitled to compensation for a 15% permanent industrial disability to her body as a whole from her January 11, 1978 injury and a 5% permanent industrial disability to her body as a whole for the February 6, 1980 injury. That based thereon, Employer shall pay Claimant weekly benefits as follows: 15% x 500 weeks = 75 weeks @ $203.21 per week = $15,240.75 5% x 500 weeks = 25 weeks @ $198.69 per week = $ 4,967.25 TOTAL: $20,208.00 (Commissioner's Exhibit 8; review-reopening 6-15-83) Claimant underwent a cervical fusion at the C5 and C6 level on April 17, 1983. This procedure was performed by John R. Walker, M.D. Following this surgery on June 15, 1983 a review-reopening hearing was held and in the review-reopening decision filed thereafter the following findings of fact and order were made: 1. That this agency has jurisdiction of the persons and the subject matter. 2. That on January 8, 1981 the parties entered into an agreement for settlement concerning claimant's two admitted industrial injuries. 3. That on December 7, 1981, claimant produced medical evidence that she was unable to perform acts of gainful employment due to neck pain. 4. That on April 18, 1983 medical evidence was produced, following cervical surgery, that claimant had indeed undergone a change of condition. 5. That claimant has been unable to work from December 7, 1981 to June 15, 1983. BROWN V. JOHN DEERE WATERLOO TRACTOR WORKS Page 3 6. That the rate of weekly entitlement is $198.69. 7. That claimant's hospital and doctor bills incurred as a result of the recent surgery are payable by the defendant. THEREFORE, IT IS ORDERED that defendant pay the claimant a seventy-nine (79) week period of temporary total disability at one hundred ninety-eight and 69/100 dollars ($198.69) per week together with interest from the date due. (Review-reopening decision filed 1-26-84) No appeal was taken from this decision. On September 8, 1983 claimant underwent chymopapain injections at L4 and L5. These injections were performed by Dr. Walker. Claimant apparently got some temporary relief from these injections; however, she started having muscle spasms in her back and had to be hospitalized on October 25, 1983 as a result of complications of the chymopapain injections. She was discharged on November 10, 1983. Dr. Walker states the following in a letter dated October 12, 1984 concerning claimant's current permanent disability: At the present time, as far as her cervical spine injury is concerned, I feel that she has a 10% permanent, partial impairment of the body as a whole. As far as the low back is concerned, I would add another 12% permanent, partial impairment of the body as a whole. This would bring it to a 22% permanent, partial impairment of the body as a whole. (Joint Ex.C; review-reopening 8-29-85) Finally Dr. Walker opines that if claimant would undergo further surgery on her back her permanent disability would be 30 percent. However, he stated he is "somewhat loathe" to do any further surgery on claimant as she has not gotten the anticipated results from her previous surgery. Charles R. Buck, M.D., examined claimant on March 12, 1985 and states the following: On examining her today, she demonstrates exaggerated tenderness in the S/I joint and lateral hip area. She has markedly limited range of motion to a few degrees in all planes, complaining of pain. No spasm was noted. SLR on the left was negative. SLR on the right was positive was positive [sic] for back and right leg pain at 20 degrees; however there was tensing of her hip flexors throughout the exam which I believe exaggerated her pain. We also observed sitting SLR on the right was negative for nerve root irritation. .... BROWN V. JOHN DEERE WATERLOO TRACTOR WORKS Page 4 From the record, and with her history today, Louella's overall condition is the same as it has been for several years, except for the three or four months following chymopapain when she experienced the local spasms. Since that point, she has been back to her baseline symptomatology and thus achieved no benefit from the chymopapain treatment. (Jt Ex. F; review-reopening 8-29-85) Richard N. Stauffer, M.D., examined claimant on November 21, 1984. He opines that there is no good evidence of radiculopathy and that he does not think a laminectomy would be a good idea. Claimant was laid off from John Deere in December 1981. Richard Mayer, supervisor of wage and employment benefits at John Deere, stated at the June 15, 1983 review-reopening hearing that claimant was laid off because she was a junior employee. APPLICABLE LAW The citations of law in the review-reopening decision are appropriate to the issues and the evidence presented. ANALYSIS The first issue claimant raises concerns the causal connection between claimant's current disability and her work injuries of January 11, 1978 and February 6, 1980. Defendant makes the following reply in its appeal brief to claimant's argument concerning this issue: "Employer does not believe that the above issue is really involved in this case. The Employer long ago conceded that Claimant had industrial injuries on January 11, 1978, and February 6, 1980. For many years, the only battle has been over the extent of her entitlement to benefits.O The prehearing order filed January 11, 1985 does not indicate causal connection as an issue in this case. The record as a whole indicates that defendant has not contested the causal connection between claimant's injuries and her disability. In any event, the record amply supports a finding of causal connection. Thus, the major dispute in this case concerns the nature and extent of claimant's current disability as a result of the injuries. Before claimant can be entitled to additional benefits for permanent disability in these review-reopening proceedings she must establish by a preponderance of the evidence a change of condition since her previous award. However, claimant argues here that the review-reopening decision filed on January 26, 1984 is res judicata on the issue of change of condition. Since that decision was never appealed, it became the final agency decision and is necessarily res judicata on the issues it adjudicated. However, the issue that the January 26, 1984 review-reopening decision considered was further temporary total disability as a result of the February 6, 1980 injury. The January 1984 decision is not res judicata as to further permanent disability. Therefore, claimant must show a permanent change of BROWN V. JOHN DEERE WATERLOO TRACTOR WORKS Page 5 condition since October 14, 1980 to recover additional benefits for permanent disability. On this issue claimant does not preponderate. The record shows that claimant's problems have essentially remained the same or have gotten better. Although Dr. Walker indicates that claimant's current disability rating is 22 percent, his opinion is not supported by the other examining physicians. The analysis of this issue contained in review-reopening decision is adequate and accurate and is adopted herein. Claimant argues that she is entitled to temporary total disability or healing period benefits from June 15, 1983 to October 14, 1984 when Dr. Walker opines that claimant has reached maximum medical improvement unless she has further back surgery. Claimant is only entitled to a further award of temporary total disability for those surgeries which resulted in a temporary worsening of claimant's condition beyond that anticipated in her earlier award of permanent disability. The record here indicates that claimant underwent chemo- nucleolysis for her low back problems on September 8, 1983. The subsequent discharge summary on September 10, 1983 indicates that the procedure was very successful. However, on October 25, 1983 claimant had to be readmitted to the hospital for muscle spasms secondary to the chemonucleolysis. Dr. Walker, who performed the chemonucleolysis and treated claimant's subsequent complications, outlines the following history in his hospital report: HISTORY: This patient had a Chymopapain injection September 8th. was doing fine. Had no problems with the legs or back and did just beautifully but, at any rate, last Thursday which was about five days ago she began to get severe back spasms and pain and this bothered her walking. She fell a couple of times because of the severe pain in her back. She does not have weak legs but what happens is that when she moves her legs or raises them she has extreme pain in the back and, therefore, cannot walk or get around well. She called Friday and we gave her analgesic drugs and told her to lay on the heating pad at home but she is much worse and is unable to hardly get around now at all. She has extreme muscle spasm. This is a complication that I have noticed on one particular patient before with a Chymopapain and one other that wasn't as bad but this is one of the more severe ones. This will take approximately three weeks for this patient to get over this. This is what happened at least on the last patient that I had. This is one of the complications of Chymodactin [sic] injections and probably she will do well in the end. (Jt. Ex B) Claimant was discharged on November 10, 1983. She testified on direct examination at the August 29, 1985 hearing that chemonucleolysis improved her back condition for about a month but then she developed muscle spasms and had to be readmitted to the hospital. She also testified on direct examination that the BROWN V. JOHN DEERE WATERLOO TRACTOR WORKS Page 6 muscle spasms went away gradually, but her pain remained. On cross-examination she testified that her back condition returned to the same condition that she suffered before the chemonucleolysis. It appears from the preceding evidence that claimant experienced temporary relief from her back condition for about one month and then experienced a subsequent worsening of her back condition for three weeks due to muscle spasms secondary to her chemonucleolysis. After that three week period her back condition returned to normal or to a condition similar to that before the chemonucleolysis. It is for the three week period that claimant's back condition worsened that she is entitled to temporary total disability benefits. As that temporary disability was related to the back injury claimant suffered January 11, 1978, the appropriate rate for the three weeks of temporary disability is $203.21. This is the rate that the parties have stipulated is correct for any award of disability as a result of the January 11, 1978 injury. As the deputy correctly indicated in the review-reopening decision filed November 20, 1985 claimant is entitled to medical expenses for continuing medical care if related to her compensable injury. No evidence expressly relating to that issue was presented; however, the parties are encouraged to work amicably and equitably toward that result. FINDINGS OF FACT BROWN V. JOHN DEERE WATERLOO TRACTOR WORKS Page 7 1. Claimant received an injury to her low back on January 11, 1978 while lifting a ladder in the course of her employment for John Deere. 2. Claimant received an injury to her cervical area on February 6, 1980 when she was hit by falling parts while in the course of her employment for John Deere. 3. Claimant and her employer entered into a settlement agreement on January 8, 1981 based on claimant's condition as of October 14, 1980. 4. Under the terms of the settlement agreement, claimant received benefits reflecting an industrial disability of 20 percent of the body as a whole. 5. Claimant reported experiencing sensation of a rock in the lower part of her back on July 14, 1978. 6. Dr. Walker performed a cervical fusion for claimant on April 17, 1983. Claimant indicated that her cervical condition was improved following that surgery. 7. Dr. Walker performed chemonucleolysis at both the L4 and L5 interspaces on September 9, 1983. 8. Claimant reported that that procedure only temporarily improved her low back condition. 9. Claimant suffered a temporary worsening of her back condition for three weeks due to muscle spasms secondary to the chemonucleolysis. 10. Claimant's back condition returned to normal or to a condition similar to that before the chemonucleolysis. 11. The temporary worsening of claimant's back condition is causally related to her injury of January 11, 1978. 12. Claimant is entitled to temporary total disability benefits for a three week period from October 25, 1983 through November 14, 1983 at the rate of $203.21 per week. 13. On objective examination, claimant's physical condition is substantially that of October 14, 1980. 14. Claimant's physical restrictions are substantially those of October 14, 1980. 15. Claimant was laid off at John Deere in December 1981 on account of a lack of seniority in her work classification and not on account of either work injury. 16. Claimant has not sought other employment and has not shown that her failure to seek or receive other employment is due to her work injuries. 17. The objective physical findings and the restrictions BROWN V. JOHN DEERE WATERLOO TRACTOR WORKS Page 8 imposed on claimant do not support either Dr. Walker's 22 percent permanent partial impairment for the body as a whole increased rating or his 30 percent permanent partial impairment to the body as a whole increased ratings of claimant's physical impairment. 18. Claimant's condition has not worsened and remains substantially that of October 14, 1980. CONCLUSIONS OF LAW Claimant has not established by a preponderance of the evidence a right to permanent partial disability benefits in addition to those awarded in the prior settlement of January 8, 1981. Claimant has established a temporary worsening of her back condition from October 25, 1983 through November 14, 1983 which is causally related to her compensable work injury of January 11, 1978. WHEREFORE, the review-reopening decision of the deputy is affirmed as to file no. 627617 and affirmed and modified as to file no. 498456. ORDER THEREFORE, it is ordered: That defendants pay to claimant three (3) weeks of temporary total disability at the rate of two hundred three and 21/100 dollars ($203.21) per week. That defendants pay any medical expenses for continuing medical care related to her compensable injuries. That defendants pay the costs of the review-reopening proceeding and claimant is to pay the costs of the appeal including the transcription of the hearing proceedings. Signed and filed this 16th day of February, 1987. ROBERT C. LANDESS INDUSTRIAL COMMISSIONER Copies To: Mr. Gary Papenheim Attorney at Law 234 Third Street Parkersburg, Iowa 50665 BROWN V. JOHN DEERE WATERLOO TRACTOR WORKS Page 9 Mr. John W. Rathert Attorney at Law 620 Lafayette Street P.O. Box 178 Waterloo, Iowa 50704 1302.10-1801-1803 Filed February 16, 1987 ROBERT C. LANDESS BEFORE THE IOWA INDUSTRIAL COMMISSIONER LOUELLA BROWN, Claimant, File Nos. 627617/498456 VS. A P P E A L JOHN DEERE WATERLOO TRACTOR WORKS, D E C I S I 0 N Employer, Self-Insured, Defendant. 1302.10 - 1801 - 1803 Claimant sought permanent partial disability benefits in addition to that which she received in an earlier settlement agreement. Further benefits, permanent partial disability, denied as she had not established a change of condition since the settlement agreement proximately related to his work injuries. Claimant awarded further benefits for temporary total disability for that period in which her condition temporarily worsened beyond that anticipated in her earlier award of permanent disability. Affirmed as to file No. 627617 and modified as to file No. 498456. Page 1 before the iowa industrial commissioner ____________________________________________________________ : GARY SIMMONS, : : Claimant, : : vs. : : CLOW CORPORATION, : : File No. 628314 Employer, : : A P P E A L and : : D E C I S I O N ROYAL INSURANCE, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy is affirmed and is adopted as the final agency action in this case. Signed and filed this ____ day of April, 1990. ________________________________ DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Page 2 Copies To: Mr. Fredd J. Haas Attorney at Law 5001 SW 9th St Des Moines, Iowa 50315 Mr. Charles S. Lavorato Assistant Attorney General Tort Claims Hoover Building Des Moines, Iowa 50319 5-9998 Filed April 16, 1990 DAVID E. LINQUIST before the iowa industrial commissioner ____________________________________________________________ : GARY SIMMONS, : : Claimant, : : vs. : : File No. 628314 CLOW CORPORATION, : : A P P E A L Employer, : : D E C I S I O N and : : ROYAL INSURANCE, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ 5-9998 Deputy's decision summarily affirmed on appeal. BEFORE THE IOWA INDUSTRIAL COMMISSIONER GARY SIMMONS, Claimant, File No. 628314 VS. A R B I T R A T I 0 N CLOW CORPORATION, D E C I S I 0 N Employer, and F I L E D ROYAL INSURANCE, AUG 23 1989 Insurance Carrier, IOWA INDUSTRIAL COMMISSIONER and SECOND INJURY FUND OF IOWA, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Gary Simmons, against Clow Corporation, employer, and Royal Insurance, insurance carrier, and Second Injury Fund of Iowa, defendants, to recover benefits as a result of an alleged injury sustained on February 22, 1979. This matter came on for hearing before the deputy industrial commissioner on May 19, 1989, in Ottumwa, Iowa. The record consists of the testimony of claimant and joint exhibits 1 through 9. In taking official notice of the agency's records, the undersigned determined that there is a possibility that both parties were proceeding under a misunderstanding and a mutual mistake of fact. It is believed that the parties thought there was a memorandum of agreement on file with this agency, since this was a pre-July 1982 injury. The agency records show there was never a memorandum of agreement on file in this case. The undersigned set up a conference call with the attorneys for the parties involved.in the hearing; namely, Fredd Haas on behalf of claimant and Charles Lavorato on behalf of the Second Injury Fund of Iowa. The other defendants, the employer and insurance carrier, had settled with claimant prior to the hearing. The undersigned gave claimant and Second Injury Fund an opportunity to present more evidence and witnesses, or further stipulate if the present status of the prehearing record was different than what they had understood. The attorneys for the parties indicated that they desired to proceed based on the record, the evidence and stipulations presented to the undersigned on May 19, 1989, and waived presenting any further evidence, witnesses or stipulations. ISSUES The issue for resolution is the nature and extent of the Second Injury Fund's liability to claimant for permanent disability benefits, if any. REVIEW OF THE EVIDENCE This 40-year-old claimant testified that he has worked at manual labor jobs since he finished the eleventh grade at age 17 up to his employment with defendant employer on December 5, 1972. Claimant described the various manufacturing jobs he held with defendant employer. The employer made fire hydrants and valves. Claimant stated he injured his right index finger at work in 1972 resulting in the amputation of his right index finger and joint above it. Claimant was off work approximately one year. Claimant indicated he eventually returned to work after his first injury and operated defendant employer's fork lift for six months. Claimant stated that after this period, he got back his former Pangborn job he had at the time of his first injury. A Pangborn machine cleans the metal castings with small shot pellets. Claimant stated that his job was to place the castings into the Pangborn machine and blast the castings. Claimant testified he received his second injury on February 22, 1979, when he attempted to step on the Pangborn machine platform, which was not secured to the machine. Claimant indicated the platform moved and he began to fall. Claimant said that he grabbed a mesh while falling and caught and snapped back his left thumb in the mesh. Claimant testified he felt he had fully recovered from his right hand injury and was not restricted in his Pangborn job up to the time of his second injury. Claimant testified that due to his first injury to his right hand, he is unable to firmly grasp anything hard, unable to pick up certain weights, and unable to use a hammer. Claimant also indicated it is hard for him to drive and his right hand goes numb and stiff. Claimant stated because of his left hand second injury, he is unable to grasp and pick up objects with his left hand without discomfort. Claimant indicated he has pain in his left wrist, the upper part of his left hand, and his remaining left thumb. Claimant said that although he drove to the hearing, if a trip is over one hour, both hands go numb. Claimant indicated he can't put his left hand on the steering wheel because of the vibration and pain. Claimant testified that his left thumb continually aches and gives him a burning sensation. Claimant stated his left thumb is like a boil; you can't touch anything with it. Claimant stated that the cold weather affects his left hand causing him to wear snowmobile gloves. Claimant emphasized that due to poor circulation, his left hand could freeze without realizing it. Claimant said he can't be outside in the cold, otherwise, his hand turns blue, burns and stings. Claimant indicated he was off work after his February 22, 1979 second injury until 1985. Claimant testified that he then went back to defendant employer as a fork lift operator, but was unable to do this job. Claimant indicated that this position was arranged for him through his union's vocational rehabilitation personnel. Claimant said defendant employer then moved him into a position known as a B and P operator (mold maker). Claimant said he worked ten hours a day at this job and "it was killing him to do it." Claimant stated this B and P machine kicks out two molds every minute and an operator needs two good hands. Claimant indicated he was getting close to getting fired or removed from this job. Claimant testified he held this job until his last day of employment with defendant employer in May 1986. Claimant indicated he had surgery in May 1986 and has not worked since. Claimant acknowledged that there was a strike at defendant employer which lasted approximately one year in 1986 to 1987. Claimant stated the last surgery on his left hand was in August 1987. Claimant said that Ronald S. Bergman, M.D., released him to go back to work on November 19, 1987. Claimant emphasized that at the time of his release, there was no way in which he could do the required work at defendant employer. Claimant indicated that he never attempted to go back to work for defendant employer as they hired all new people and busted the union. Claimant said he was a union member and would not cross the picket line. Claimant said he applied for two jobs, one at Pepsi and one at an egg.producer. Claimant indicated that both jobs required a lot of lifting and that he could not do them even if he had been hired. Claimant indicated that jobs are hard to find. The medical evidence indicates that claimant's right index finger was amputated on April 14, 1977 as a result of a work-related injury on March 11, 1976. J. W. Brindley, M.D., described this surgery in his April 14, 1977 operative report as follows: The right hand was prepped to the elbow. The skin incision was made using flaps, and going from the second web space dorsally, over the base of the second metacarpal, and then up distally over the volar side of the finger and back down the radius side of the finger, joining the other dorsal incision. this carried down the dorsal vein, then cut clamped and coagulated. The radial dorsal nerve to the index finger was cut. The one to the long finger was preserved. The extensor tendons were then cut, and the proximal portions were let retract. The dorsal interosseous and volar interosseous were then dissected away from the bone. The transverse metacarpal ligament was cut. (Joint Exhibit 1) Bruce L. Sprague, M.D., in his report of November 11, 1982, indicated that claimant "eventually ended with a Ray amputation from this injury." Dr. Sprague was referring to claimant's right hand index finger when he made this notation. The International Dictionary of Medical Biology described a Ray amputation as: An amputation of a single digital bony unit including its metacarpal, if in the hand, or its metatarsal if in the foot." Claimant incurred his first operation to his left thumb on December 11, 1979, which involved a fusion at the MP joint. A cartilage was removed and a V-shaped depression was made in the distal end of the metacarpal and an arrow-shaped portion was made in the distal end of the phalanx to fit this V-shaped depression. This operation was the result of his injury at work on February 22, 1979. The medical records reflect, in part, the following surgical procedures that involve claimant's left thumb: In July 16, 1980 letter from Jack W. Brindley, M.D., to Royal Globe Insurance Company, the doctor wrote: The patient.was taken to surgery again on June, 24, 1980 and had a bone graft from his left iliac crest to the left thumb. This patient now is again in a thumb spica cast. In a December 23, 1980 letter to Royal Globe, Dr. Brindley wrote: We took him to surgery on 12-16-80 and we did an onlay bone graft from his left iliac crest to his left thumb and also used three-holed plate across the MP joint of the thumb. The patient was placed in a plaster cast after his surgery. Hopefully his thumb will go ahead and fuse this time." In a November 1, 1982 letter to Royal Globe, Dr. Brindley wrote: The patient was taken to surgery on 10-28-82 and the plate and three screws were removed. The patient was found to have a pseudoarthrosis and two cross K-wires were put across the fusion site and these were cut off at the bone. The patient was placed in a thumb spica cast following surgery. (Jt. Ex. 6) On November 1, 1982, Dr. Brindley's notes at St. Joseph Hospital indicated: The patient has undergone several fusion attempts of the MP joint. He initially had a fusion on 12-12-79 and this was done with K-wires and this failed and on 12-16-80 he underwent an onlay bone grafting from the iliac crest and had a 3 hold plate across the pseudoarthrosis. This seemed to go ahead and fuse and the patient was taken out of the cast, but shortly after he was taken out of the cast the patient's house caught on fire and in trying to break out of the burning house the patient injured his thumb and there was some displacement at the fusion site. He was again casted and did not seem to be fusing well, so external electrical stimulator was used from the EBI System and the thumb went ahead and seemed to fuse. It appeared to be fused on x-ray. Cast was removed and the patient was started on physical therapy. Further x-rays after this, however, showed that the patient probably had a pseudoarthrosis. The patient was sent to a hand surgeon in Iowa City, Dr. Bruce Sprague, who agreed that there was probably a pseudoarthrosis, although he thought that it did appear at one time to be fused. Dr. Sprague advised taking out the plate, putting in two K-wires and pinning them off the bone and leaving them and then probably starting to use the external stimulator again hoping that this would use [sic]. The patient had his surgery performed by taking out the plate and putting in the K-wires on 10-28-82. (Jt. Ex. 1) On May 23, 1983, claimant's Northwest Community Hospital records indicate: "He has been treated by numerous orthopedic surgeons with numerous reconstructive procedures, none of which have helped thus far." (Jt. Ex. 2) Basically, claimant had another reconstruction of his left thumb. On September 13, 1983, claimant had another surgery performed, namely: At this time decompression and neurolysis of the digital nerve on the radial aspect of the left thumb under 3.5 power magnification was performed as well as preservation of the digital artery and vein on the radial aspect of the left thumb under 3.5 power magnification. Decompression and neurolysis of the digital nerve on the ulnar aspect of the left thumb under 3.5 power magnification was also performed. Preservation of the digital artery and vein on the ulnar aspect of the left thumb under 3.5 power magnification was also accomplished. At this time, harvesting of the iliac bone graft of the right iliac crest was performed with the use of osteotomes. (Jt. Ex. 2) The October 31, 1983 pre-operative diagnosis notes of Northwest Community Hospital reflect: "Status/Post extensive reconstruction of the left thumb, infected left thumb, status/post meticulous debridment [sic], exploration and packing of the left thumb." On August 10, 1984, claimant again had a reconstruction of the thumb. On November 19, 1984, claimant's left thumb was operated again. The operation involved: Exploration of interphalangeal joint of left thumb under 3.5 power magnification; Removal of prior pin through interphalangeal joint; Contouring of the proximal segment of the distal phalanx of the left thumb; Contouring of the distal segment of the proximal phalanx of left thumb; Harvesting of a bone graft from right iliac crest: Insertion of bone graft to the interphalangeal joint of the left thumb. (Jt. Ex. 6) Although there is no operative report, R. S. Bergman, M.D., wrote on May 15, 1986: "In order to expedite his healing process and get.him back to work as soon as possible, I did agree to do an amputation of the thumb at the interphalangeal joint level." (Jt. Ex. 6) On July 11, 1986, claimant had an operation: "Removal of Swanson prosthesis at the MP joint, left thumb; harvesting of an iliac bone graft from the right iliac crest. Reconstruction of the left thumb with iliac bone graft." (Jt. Ex. 6) On September 22, 1986, claimant had surgery to remove the pin in his left thumb. On August 17, 1987, Dr. Bergman's notes reflect that claimant again had surgery involving reconstruction of the left thumb via iliac bone graft. On March 3, 1989, claimant had an orthopedic evaluation, an occupational therapy evaluation and a vocational evaluation. Sinesio Misol, M.D., who performed an orthopedic evaluation March 8, 1989, wrote: IMPRESSION. In summary, I believe this patient has reached a state of maximum recuperation and I do not believe there is need for any further surgery unless the dorsal plate begins to protrude more through the skin; in which case it could be removed, together with the screws. I think this man has a permanent partial functional impairment that amounts essentially to an amputation of the left thumb; that is, he has lost 40% of the use of his left hand. I further think if this man is going to be retrained, it would have to be pretty much for a job that he can do right handed as his left hand is mostly going to be used in assisting the right. I do not believe he should be employed in any job where dexterity is required. (Jt. Ex. 7) Janet S. Darling, OTR/L, who performed claimant's occupational therapy evaluation on March 8, 1989, wrote: Gary's hand function bilaterally has been altered due to his injuries, which have resulted in amputations and decreased sensation. His dysfunction due to amputation is obvious, bu [sic] the sensation changes are probably a culmination of the injury and numerous surgeries and are never the less important to consider. In the 9-Hole Peg Test, the right hand was able to compensate for the loss of the index finger, although speed was reduced, dropping one peg. Gary was able to complete the 9-Hold Test using the index and long fingers on the left hand, but again speed was decreased and he dropped the pegs on several occasions. Cylindrical grasping on the left was unsafe. Gary reports that his hands react to the cold weather quickly, left greater than right, and this would be important to consider in job placement. (Jt. Ex. 7) Claimant's vocational evaluation involved completing: General Aptitude Test Battery (GATB) vocational aptitude testing, the Career Assessment Inventory (CAI) vocational interest assessment, VALPAR Component Work Samples #11, Eye-Hand-Foot Coordination, and portions of Work Samples #1 and 4, Small Tools Usage and Upper Extremity Range of Motion respectively, the Wide Range Achievement Test (WRAT) Level 1 Word Pronunciation sheet, the Tests of Adult Basic Education (TABE) Level M (medium) Reading Test, and the Bennett Mechanical Comprehension Test, as well as an intensive in-depth interview. (Jt. Ex. 7) Robert W. Jones, B.S., who performed claimant's vocational evaluation on March 8, 1989, indicated that the claimant had taken the above tests during his vocational evaluation. In his summary, Jones wrote: SUMMARY AND CONCLUSIONS: On the basis of the current vocational and medical evaluations, it would appear it is going to be quite difficult and challenging to find alternative employment for the patient. He is not a high school graduate, demonstrates generally weak academic abilities and vocational aptitudes, has a work history of unskilled employment, and is now basically a one-handed worker who does not demonstrate very good manual dexterities or finger manipulation skills in this right, dominant, hand. If he could upgrade his current academic abilities and obtain his GED certificate this would be expected to improve his ultimate vocational potential, but it is not clear he has the ability to upgrade these skills, especially if he was indeed in special education in school. While one would think there is surely some kind of job which this gentleman could perform such as pizza deliverer, telephone sales and canvassing, etc., the Department of Labor's Dictionary of Occupational Titles, which is the best reference guide available to rehabilitation professionals, does not readily identify any such alternative vocational possibilities for the patient. As a result, it would be this evaluator's recommendation that the patient's ability to upgrade his math and reading skills first be determined and that he then be provided with the assistance of a professional job placement specialist with the additional expectation that he may also require the assistance of an ergonomist/adaptive equipment specialist in order to be able to return to work. (Jt. Ex. 7) LAW AND ANALYSIS Iowa Code section 85.64 provides: If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently disabled by a compensable injury which has resulted in the loss of or loss of use of another such member or organ, the employer shall be liable only for the degree of disability which would have resulted from the latter injury if there had been no preexisting disability. In addition to such compensation, and after the expiration of the full period provided by law for the payments thereof by the employer, the employee shall be paid out of the "Second Injury Fund" created by this division the remainder of such compensation as would be payable for the degree of permanent disability involved after first deducting from such remainder the compensable value of the previously lost member or organ. Any benefits received by any such employee, or to which he may be entitled, by reason of such increased disability from any state or federal fund or agency, to which said employee has not directly contributed, shall be regarded as a credit to any award made against said second injury fund as aforesaid. 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." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered . . . In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. Before the second injury fund is triggered three requirements must be met. First, the employee must have lost or lost the use of a hand, foot, leg or eye. Second, the employee must sustain another loss or loss of use of another member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and second injury. See Allen v. The Second Injury Fund, State of Iowa, Thirty-fourth Biennial Report, Iowa Industrial Commissioner 15 (1980); Ross v. Service Master-Story Co., Inc., Thirty-fourth Biennial Rep., Iowa Indus. Comm'r 273 (1979). The fund is responsible for the difference between total disability and disability for which the employer at the time of the second injury is responsible. Section 85.64. Second Injury Fund v. Mich. Coal Company, 274 N.W.2d 300 (Iowa 1970), Second Injury Fund v.;John Deere Component Works, Iowa Supreme Court Case No. 88-399,filed February 22, 1989. This 40-year-old claimant has a very limited education. Claimant was an orphan for many years and at age 12 was taken in by foster parents. Claimant was in special education classes for a period of time up to his completing the eleventh grade, at which time he got married. Claimant indicated he received low D's. Over the years, claimant has had basically manual labor-type jobs. He has no special skills transferable to other types of work other than working with his hands and operating machines, if physically able to do this type of work. Robert Jones, who performed the vocational evaluation, indicated that it would be quite difficult and challenging to find alternative employment for this claimant. He indicated claimant exhibits weak academic abilities and vocational aptitudes and has a work history of unskilled labor. Jones indicated claimant is basically a one-handed worker who does not demonstrate very good manual dexterity or finger manipulation skills in his right dominant hand. Jones questioned claimant's ability to upgrade his skills by obtaining a GED. Claimant's educational orientation score was a very low 4 with a score of 30 and below, indicating a dislike for or indifference toward school course work and academic-related activities. Claimant scored low in the basic interest scales. In work samples, it was obvious to the tester that claimant was very slow in performing any type of job using his hands. Not only was his dexterity bad, particularly his left hand, but claimant was not able to use the pressure and force that would be required in the work place. If by chance claimant bumped his left,hand thumb stump, he would exhibit extreme pain. On the WRAT, Level 1 Pronunciation Sheet, claimant performed at the fourth grade level. On the TABE reading test, claimant was at a 67 reading vocabulary and a 63 on reading comprehension. On the Bennett Mechanical Comprehension Test, claimant scored at the 10th percentile for skilled trade job applicants and demonstrated poor mechanical comprehensive skills. There were other tests that claimant performed and it is obvious claimant is very limited in his educational skills and his ability to perform manual labor jobs where use of his hands is a requirement. Janet Darling, an occupational therapist, performed an occupational therapy test and indicated that claimant's function bilaterally has been altered due to his injuries. Claimant injured his right hand in 1976 which resulted in the amputation of his right index finger. The doctor referred to a Ray amputation. A Ray amputation extends beyond the finger and into the hand. This was obvious to the deputy on personal observation at the hearing. Claimant was apparently paid, as indicated by him and the Second Injury Fund's stipulation, on the basis of a 20 percent impairment of the right upper extremity (30 weeks of permanent partial disability). The right hand is not considered the right upper extremity. The manner in which permanent partial disability was figured is erroneous as the parties used the conversion charts. For a 20 percent upper extremity impairment in the manner in which the parties stipulated would indicate that claimant had a 22 percent impairment to his hand as a result of his first injury. Since a hand is worth 190 weeks, claimant would have been entitled to 41.8 weeks of permanent partial disability benefits. The greater weight of medical evidence indicates that claimant's second injury of February 22, 1979, which has been alluded to as a left thumb injury, in fact, extends into the left hand. Claimant has had numerous surgeries on his left thumb and some of the surgeries involve the metacarpal bone. The undersigned deputy find that the second injury is an injury to claimant's left hand. The parties stipulated that there is a 36 percent impairment of the left upper extremity resulting from the second injury on February 22, 1979, and that claimant received 60 weeks of permanent partial disability for this injury. It appears the parties used the same or similar procedure as it did in computing the first injury. Sixty weeks of permanent partial disability is equivalent to a 100 percent loss of the thumb. Neither the thumb nor the hand is an upper extremity for purposes of the law. The parties are in error in the manner in which they figured permanent injury to claimant's left hand as a result of his second injury on February 22, 1979. The evidence indicates that claimant has little dexterity in his left hand. Claimant cannot handle items using his small thumb stub as it is very tender and is like touching a boil. Claimant has had numerous surgeries to the thumb and several reconstructions. Nothing seems to have satisfactorily solved the problem. Claimant testified that he has had approximately 27 surgeries on his thumb or hand. There is a statement by Dr. Brindley on November 1, 1982, in which he indicated: The patient has undergone several fusion attempts of the MP joint. He initially had a fusion on 12-12-79 and this was done with K-wires and this failed and on 12-16-80 he underwent an onlay bone grafting from the iliac crest and had a 3 hold plate across the pseudoarthrosis. This seemed to go ahead and fuse and the patient was taken out of the cast, but shortly after he was taken out of the cast the patient's house caught on fire and in trying to break out of the burning house the patient injured his thumb and there was some displacement at the fusion site. He was again casted and did not seem to be fusing well, so external electrical stimulator was used from the EBI System and the thumb went ahead and seemed to fuse. (Jt. Ex. 1) All the above would indicate that claimant incurred another injury that may be the cause of claimant's subsequent problems and surgeries. The undersigned finds that the injury of February 22, 1979 is the the cause of claimant's present disability and was the cause of claimant's permanent impairment to his left hand. The claimant's medical history since his February 22, 1979 injury has many notations where the doctors thought there was fusion and, in fact, there was pseudoarthrosis, a false joint arising at the site of an ununited fracture. The undersigned finds that the house fire instance in 1981 is not a contributing factor to any of claimant's impairments to his left hand or any disability. Claimant was satisfactorily performing his job with defendant employer prior to the time of his second injury on February 22, 1979. There is no evidence in the record which indicates claimant would now be able to perform the types of manual labor he was performing prior to his second injury. Claimant's work record indicates that any job claimant has had, he has had to have the use of two hands. If claimant were to find work he could perform based on his present skills most would require some use of his hands. Claimant is very deficient in mental skills and abilities. Dr. Misol opined: I think this man has a permanent partial functional impairment that amounts essentially to an amputation of the left thumb; that is, he has lost 40 percent of the use of his left hand. I further think if this man is going to be retrained, it would have to be pretty much for a job that he can do right handed as his left hand is mostly going to be used in assisting the right. I do not believe he should be employed in any job where dexterity is required. (Jt. Ex. 7) The undersigned finds that claimant has a 40 percent permanent functional impairment of the use of his left hand. Under Iowa Code section 85.34(2)(1), this would amount to 76 weeks (190 x 40% = 76). Claimant indicated he has applied for only two jobs and was not hired. He also indicated that if he had been hired, he would not have been able to do the work. Claimant did not produce evidence of any extensive search for a job. This does not surprise the undersigned. Claimant testified he has had approximately 27 operations. A Dr. Boulden indicated that claimant's history reflected 32 surgeries. From the evidence presented, claimant has had numerous surgeries involving his left thumb/hand, beginning with his injury of February 22, 1979 up to August 1987. It would have been futile for claimant to seek a job when he had no hope of obtaining work commensurate with claimant's skills and education, if claimant were honest with employer as to his medical condition. Claimant's healing period involved several years. Taking into consideration claimant's medical condition prior to the injury and after the injury, present medical condition, location of the injury in reference to his body, the severity of the injury, the length of healing, the work experience prior to the injury, the work experience after the injury, his potential for rehabilitation, his qualifications intellectually and emotionally, his qualifications physically, his earnings prior to and after the injury, age, education, motivation, functional impairment is a result of the injury, and functional impairment and inability because of the injury to engage in employment for which he is fitted, the undersigned finds claimant permanently, totally disabled. The three requirements before the Second Injury Fund is triggered have been met as applied to this case under consideration, namely: (1) claimant has lost the use of a hand in the first injury, (2) claimant has sustained another loss of the use of a hand through a compensable injury, and (3) permanent disability as found to exist both as to the initial injury and the second injury. The Fund therefore is responsible for the difference between the total disability and the disability for which the employer at the time of the second injury is responsible. Because permanent total disability benefits are payable for life, there is no way to give credit for the compensable value of the previously lost member without deducting its compensable value on the beginning period in which the Second Injury Fund payments are to be made. The undersigned finds that the compensable value of the first injury in 1976 was 41.8 weeks. The compensable value of the second injury of February 22, 1979 is 76 weeks. This totals 117.8 weeks. It is this 117.8 weeks that is used as a credit to the Second Injury Fund and not the 30 weeks plus 60 weeks equals 90 weeks to which the parties had erroneously stipulated based on the misapplication of the statute and law. Defendant insurance carrier and employer were not involved in this hearing as they settled prior to hearing. It is not what the employer or insurance carrier paid but what claimant was entitled to. In this particular case, under these particular circumstances, it is immaterial that claimant has not received an additional approximately 27.8 weeks of compensation to which he was entitled from the employer. The parties stipulated to a January 17, 1988 commencement date for permanent partial disability benefits in the event such benefits are awarded. The stipulation is obviously contrary to law and will not be adopted by the undersigned. Healing period benefits were paid up to and including January 16, 1988, as claimant had reached maximum healing on that date. Since the undersigned has found permanent total disability, the Second Injury Fund is entitled to credit for the 117.8 weeks, commencing January 17, 1988. The Second Injury Fund will commence paying their payments of $219.10 per week on April 23, 1990. FINDINGS OF FACT 1. Claimant received a work-related injury to his right hand on November 24, 1976, resulting in a 22 percent permanent partial disability. 2. Claimant was paid 30 weeks of permanent partial disability benefits for his November 24, 1976 injury, but the compensable value is in fact 41.8 weeks (190 x 22% = 41.8). 3. Claimant received a work-related injury to his left hand on February 22, 1979, which resulted in a 40 percent permanent partial disability. 4. Claimant was paid 60 weeks permanent partial disability benefits for his February 22, 1979 injury, but the compensable value is in fact 76 weeks (190 x 40% = 76). 5. The present condition of claimant as a result of the combined permanent partial disabilities to the right and left hands resulted in a permanent total disability of the body as a whole. 6. Claimant stipulated the healing period ended January 16, 1988. CONCLUSIONS OF LAW The compensable value of the permanent partial injury to claimant's right hand is 41.8 weeks. The compensable value of the permanent injury to claimant's left hand is 76 weeks. The overall industrial disability as a result of the combined effects of both permanent injuries is total permanent disability. The obligation of the Second Injury Fund is for the period of claimant's disability commencing April 23, 1990, at the weekly rate of $219.10. ORDER THEREFORE, it is ordered: That the Second Injury Fund of Iowa pay compensation for permanent total disability benefits commencing April 23, 1990 for the period of claimant's disability, at the weekly rate of two hundred nineteen and 10/100 dollars ($219.10). That credit be given for any benefits previously paid by the Fund. That the Second Injury Fund pay the costs of this action. That the Second Injury Fund file a claim activity report as requested by Division of Industrial Commissioner Rule 343-3.1(2). Signed and filed this 23rd day of August, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Fredd J. Haas Attorney at Law 5001 SW 9th St Des Moines, IA 50315 Mr. Charles S. Lavorato Assistant Attorney General Tort Claims Hoover Building Des Moines, IA 50319 3200; 1804 Filed August 23, 1989 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER GARY SIMMONS, Claimant, File No. 628314 vs. A R B I T R A T I 0 N CLOW CORPORATION, D E C I S I 0 N Employer, and ROYAL INSURANCE, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. 3200 Claimant's first injury resulted in a 22 percent permanent partial disability to claimant's right hand. 3200 Claimant's second injury resulted in a 40 percent permanent partial disability to claimant's left hand. 1804 Defendant employer and defendant insurance carrier settled prior to hearing. Although claimant and Second Injury Fund stipulated to 20 percent permanent partial disability benefits to the right upper extremity and 30 weeks of permanent partial disability benefits paid and 36 percent permanent partial disability benefits to the left upper extremity and 60 weeks of permanent partial disability benefits paid (based on 100 percent loss of left thumb), deputy disregarded stipulation as it was based on erroneous application of law and use of combined impairment charts. Deputy found 22 percent permanent partial disability to right hand and 40 percent permanent partial disability to left hand which resulted in a combined permanent total disability. 3200 Second Injury Fund given 41.8 weeks credit instead of the stipulated 30 weeks credits for the compensable value of the first injury (right hand) and 76 weeks credit for the compensable value of the second injury (left hand) instead of 60 weeks. The 117.8 weeks of credit begins after the end of the healing period. The parties stipulated that any permanent partial disability benefits would begin January 17, 1988. Second Injury Fund found liable for weekly benefits for the period of claimant's disability beginning April 23, 1990. Note of interest: Parties took left thumb and right index finger/hand and referred to them as left and right upper extremities, respectively, and used combined impairment charts to reach impairment to body as a whole. Employer paid 100 percent loss of thumb. If, in fact, the left thumb was only member involved in second injury, we would not have a Second Injury Fund case as a thumb is not a scheduled member under 85.64. Deputy found injury involved metacarpal bone, which is into the hand. Claimant lost 27.8 weeks of weekly benefits for which he will not get paid due to the settling parties' actions, but these 27.8 weeks are still credited to the Second Injury Fund to determine its liability. 2904 Filed April 11, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : VINCENT M. KOBLISKA, : : Claimant, : : vs. : : File Nos. 629402 SHEPHERD COMPONENTS, INC., : 491816 : Employer, : R E V I E W - : and : R E O P E N I N G : IOWA INSURANCE GUARANTY : D E C I S I O N ASSOCIATION on behalf of : IOWA NATIONAL MUTUAL : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2904 Review-reopening proceeding, where evidence showed claimant's surgery was causally related to a work-related injury; claimant awarded medical benefits and temporary total disability. No showing of increased industrial disability.