BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ELLEN S. KRIEGER,
 
         
 
              Claimant,
 
                                                     FILE NO. 635312
 
         
 
         VS.
 
                                                      R E V I E W -
 
         MENTAL HEALTH INSTITUTE,
 
                                                    R E 0 P E N I N G
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
             Insurance Carrier,
 
             Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by Ellen S. 
 
         Krieger, claimant, against the Iowa Mental Health Institute, an 
 
         agency of the State of Iowa, employer, for the recovery of 
 
         additional workers' compensation benefits as a result of an 
 
         injury on June 6, 1979.  A prior review-reopening decision for 
 
         this injury was filed on July 15, 1983.  On March 4, 1988, a 
 
         hearing was held on claimant's petition filed herein and the 
 
         matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and her 
 
         husband, Jerry.  The exhibits received into the evidence at the 
 
         hearing are listed in the prehearing report.
 
         
 
              In the last review-reopening proceeding for weekly permanent 
 
         disability benefits, a deputy industrial commissioner found 
 
         claimant to have suffered a 25 percent industrial disability as a 
 
         result of the work injury and weekly benefits were awarded 
 
         accordingly.  This decision was not appealed and became the final 
 
         agency decision.
 
         
 
                                    ISSUE
 
         
 
              The only issue submitted by the parties is the extent of 
 
         claimant's entitlement to additional weekly compensation benefits 
 
         for an alleged change of condition.
 
                             
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of the evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 

 
         
 
         
 
         
 
         KRIEGER V. MENTAL HEALTH INSTITUTE
 
         Page   2
 
         
 
         
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that at the time of the last hearing on 
 
         June 23, 1983, her back had improved and remained constant in 
 
         this improved state until May or June of 1984.  At that time she 
 
         claims in this proceeding that her back worsened without any 
 
         precipitating injury.  When this back condition worsened she 
 
         returned to Alfred Savage, D.O., the original treating orthopedic 
 
         surgeon.  According to claimant, Dr. Savage injected her with 
 
         cortizone on three occasions and eventually referred her to 
 
         another orthopedic surgeon, Koert Smith, M.D.  Dr. Smith 
 
         hospitalized claimant for approximately a week.  According to Dr. 
 
         Smith, the hospitalization was for the purpose of helping 
 
         claimant cope with her pain and for bed rest and further tests.  
 
         Dr. Smith also injected claimant with steroid injections during 
 
         this hospitalization which improved claimant's condition 
 
         according to his office notes.  Claimant testified that she did 
 
         get some relief from Dr. Smith's treatment in the hospital but 
 
         that she had lost the feeling in her right foot for almost a year 
 
         after this episode.  She states that the feeling has now 
 
         returned.
 
         
 
              Claimant testified that she must limit the amount of 
 
         household work she can perform and that her husband vacuums the 
 
         house for her.  She states that she cannot perform gardening or 
 
         canning activities as she once did.  She states that she is 
 
         "somewhat worse" than she was at the time of the last hearing in 
 
         June of 1983.  For example she stated that on the Sunday before 
 
         the hearing in this case she could not place a 16 pound ham into 
 
         her oven.  She said that she could have done this in June of 
 
         1983.  She said that she spends 10 days every month in her bed 
 
         due to back and leg pain.  She explained that she has not 
 
         returned to Dr. Smith recently because all of the doctors in this 
 
         case continually prescribe the same treatment; bed rest and use 
 
         of Tylenol.  She feels that she simply continues to do this each 
 
         time she has episodes of pain.  Finally, claimant complained that 
 
         she was unable to live the lifestyle that she once had due to her 
 
         low back pain.
 
         
 
              Claimant's husband testified that he thought she was doing 
 
         better but that after the last hearing she had a set back and
 
         
 
         then she has not recovered from the set back.  He said that there 
 
         were many things she could no longer do such as riding in a boat 
 
         and tieing shoes for their boys.  He said that she is down more 
 
         days in a month than she was in 1983 and that he does not know 
 
         how she could hold a job.
 
         
 
              With reference to claimant's employment status since the 
 
         last hearing, claimant remains unemployed.  Claimant said that 
 
         she has applied for jobs but has not been hired except for a job 
 
         in 1986.  This job consisted of affixing labels on items at home.  
 
         Claimant was paid a piece work rate for this work.  She said that 
 
         she could not perform this job because she could not lift the 
 

 
         
 
         
 
         
 
         KRIEGER V. MENTAL HEALTH INSTITUTE
 
         Page   3
 
         
 
         
 
         boxes although she could perform the labeling work.  She 
 
         currently is doing volunteer work at a local school as a 
 
         teacher's aid.  She spends one and a half to two and a half hours 
 
         per day over three days a week.  She stated that she hopes that 
 
         this activity will eventually lead to employment at the school.
 
         
 
              In cross-examination, claimant admitted that she was unable 
 
         to find work at the time of the last hearing.  She also admitted 
 
         to difficulties in every day activity such as riding in a boat 
 
         and performing housework  at the last hearing.  She admitted that 
 
         she was advised by Dr. Savage before the last hearing not to work 
 
         outside the home and that she felt in 1983 that she could not 
 
         work five days a week.
 
         
 
              In August, 1985, Dr. Smith rated claimant's current 
 
         permanent partial impairment as constituting a 20 percent 
 
         permanent partial impairment to the body as a whole under the 
 
         guidelines contained in the manual for orthopedic surgeons 
 
         published by the American Association of Orthopedic Surgeons.  
 
         Dr. Smith states as follows in his January, 1985 report:
 
         
 
              It is my opinion that Ellen Krieger's present symptoms are 
 
              related to her previous work injury.  The reason that people 
 
              have laminectomies and persistent radicular symptoms are 
 
              given a 25% impairment is because intermittently they will 
 
              have acute episodes such as Mrs. Krieger just experienced.  
 
              She has had no new injury and her present symptoms are very 
 
              typical of post laminectomy recurrent sciatica.  It is my 
 
              opinion that she has not increased her permanent impairment 
 
              rating, I would think a 25% permanent impairment rating 
 
              would be appropriate and consistent with her present and 
 
              past history and symptoms.  She was last seen on 12-7-84 and 
 
              at that time was up nearly all day; although she would 
 
              usually rest a couple hours in the afternoon.  She is able 
 
              to do light housework except any vacuuming and other heavy 
 
              activity.  She is still wearing her corset full time but 
 
              basically was improving.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              In a review-reopening proceeding, claimant has the burden of 
 
         establishing by a preponderance of the evidence that she suffered 
 
         a change of condition or a failure to improve as medically 
 
         anticipated as a proximate result of the original injury 
 
         subsequent to the date of award or agreement for compensation 
 
         under review, which entitles him to additional compensation.  
 
         Deaver v.Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969); 
 
         Meyers v. Holiday Inn of Cedar Falls, Iowa, Iowa App., 272 
 
         N.W.2d 24 (1978).  Such a change of condition is not limited to a 
 
         physical change of condition.  A change in earning capacity 
 
         subsequent to the original award which is approximately caused by 
 
         the original injury also constitutes a change of condition under 
 
         Iowa Code section 85.26(2) and 86.14(2).  See McSpadden v. Big 
 
         Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
         
 
              In the case sub judice, claimant has not shown a change of 
 
         condition either physical or non-physical.  Her testimony and 
 

 
         
 
         
 
         
 
         KRIEGER V. MENTAL HEALTH INSTITUTE
 
         Page   4
 
         
 
         
 
         that of her husband that she is worse is simply not substantiated 
 
         by the medical evidence and such a question is largely a matter 
 
         of medical opinion.  Neither claimant nor her husband are medical 
 
         experts.  The difference between the rating of permanent partial 
 
         impairment in the last review-reopening proceeding and Dr. 
 
         SmithOs rating in this case appears to be simply a difference of 
 
         opinion as to the rating of claimant's condition which has not 
 
         changed since 1983.  Smith agreed that her condition has not 
 
         changed in his January, 1985, letter report.  The fact that she 
 
         has experienced an episode of significant back pain in 1985 is 
 
         simply consistent with the views of Dr. Savage at the last 
 
         hearing in 1983 that claimant will continue to experience 
 
         episodes of back difficulty for the rest of her life.  Also, her 
 
         work restrictions are unchanged.  She still should avoid heavy 
 
         lifting and repetitive bending.
 
         
 
              Claimant's employment situation also has not changed.  She 
 
         remains unemployed.  Although deputy commissioners can differ as 
 
         to the extent of claimant's industrial disability in 1983, she 
 
         was not able to return to work in 1983 and this remains true 
 
         today.  This judge cannot simply overturn a prior final agency 
 
         decision without a showing of a significant change in condition.
 
         
 
              Although claimant did not prevail in this proceeding her 
 
         claim was arguable and her testimony and that of her husband 
 
         appeared to be sincere.  Therefore, she will be awarded the costs 
 
         of this action.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
              2.  In the spring and summer of 1985, claimant experienced a 
 
         significant recurrence of low back pain and leg pain requiring 
 
         hospitalization and medical treatment consisting of bed rest and 
 
         other pain relief modalities.  The recurrence of pain was caused 
 
         by the original work injury of June 6, 1979.
 
         
 
              Claimant has not established by the evidence that her 
 
         current condition has changed since the last hearing of June, 
 
         1983.  She continues to experience recurrent episodes of low back 
 
         pain requiring bed rest and medication.  Claimant continues to 
 
         experience difficulties with housework and with everyday life 
 
         activities.  She continues to have difficulty with heavy lifting, 
 
         repetitive lifting and prolonged walking.  She continues to be 
 
         unemployed since the last hearing.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has not established by a preponderance of the 
 
         evidence entitlement to additional permanent partial disability 
 
         benefits.
 
         
 
                                      ORDER
 
         
 
              1.  Claimant shall take nothing from these proceedings.
 
         
 
              2.  Defendants shall pay the costs of this action pursuant 
 
         to Division of industrial Services Rule 343-4.33.
 

 
         
 
         
 
         
 
         KRIEGER V. MENTAL HEALTH INSTITUTE
 
         Page   5
 
         
 
         
 
         
 
         
 
              Signed and filed this 18th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William Bauer
 
         Attorney at Law
 
         Sixth Floor Burlington Bldg.
 
         P. 0. Box 517
 
         Burlington, iowa 52601
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1800
 
                                                     Filed May 18, 1988
 
                                                     LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ELLEN S. KRIEGER,
 
         
 
              Claimant
 
                                                   FILE NO. 635312
 
         VS.
 
                                                     R E V I E W -
 
         MENTAL HEALTH INSTITUTE,
 
                                                  R E 0 P E N I N G
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1800 - Change of Condition
 
         
 
              Claimant in a review-reopening proceeding from a prior award 
 
         failed to demonstrate a change of physical or non-physical change 
 
         of condition and additional disability benefits were denied.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VELMA JONES,               :
 
                                    :
 
                Claimant,           :
 
                                    :
 
          VS.                       :                 File No. 635827
 
                                    :
 
          ROSS DANIELS, INC.,       :
 
                                    :
 
                Employer,           :            A R B I T R A T I O N
 
                                    :
 
          and                       :            D E C I S I O N
 
                                    :
 
          EMPLOYERS MUTUAL CASUALTY, :
 
          
 
          COMPANY,                  :
 
                                    :
 
                Insurance Carrier,  :
 
                Defendants.         :
 
         
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Velma Jones, 
 
         claimant, against Ross Daniels, Inc., employer, and Employers 
 
         Mutual Casualty Company, insurance carrier, to recover benefits 
 
         for an alleged injury occurring on may 6, 1980.  This matter came 
 
         on for hearing on May 23, 1989, at Des Moines, Iowa, at 8:30 a.m. 
 
         The record consists of the testimony of claimant and joint 
 
         exhibits 1 through 10.
 
         
 
                                      ISSUES
 
         
 
              The issues the parties set out in the prehearing report for 
 
         resolution are:
 
         
 
              1. Whether claimant's permanent disability is causally 
 
         connected to her injury on May 6, 1980;
 
         
 
              2. The nature and extent of claimant's disability; and
 
         
 
              3. Whether claimant is entitled under 85.27 for certain
 
         medical benefits.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that she began working for defendant 
 
         employer in November of 1974.  Claimant said she was injured on 
 
         May 6, 1980 while stepping on a pallet and lifting a box to take 
 
         off the pallet.  Claimant stated that when she stepped off the 
 
         pallet carrying the box, there was a piece of tape stuck to her 
 
         shoe causing her to fall.  Claimant indicated
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         JONES V. ROSS DANIELS, INC.
 
         Page 2
 
         
 
         
 
         she fell on the box she was carrying, then on her two knees onto 
 
         the cement floor.  Claimant stated she went to the hospital the 
 
         same day.  Claimant testified that she never had any trouble with 
 
         her knees prior to her injury on May 6, 1980.  Claimant indicated 
 
         that there was no history of knee problems in her family.  
 
         Claimant also stated that her brothers and sisters were on the 
 
         heavy side as to their weight.  Claimant said she had worked ten 
 
         years for Look Magazine and ten years at Griffith Photo before 
 
         working for defendant employer without any indication of knee 
 
         problems.
 
         
 
              Claimant testified that Thomas R. Griffith, D.O., her family 
 
         doctor, recommended that she see Dr. Robinow because of the 
 
         trouble she was having with her knees since her May 1980 injury.  
 
         Claimant said she saw Dr. Robinow one time and then went to 
 
         Ronald K. Bunten, M.D., in October 1980 after Dr. Robinow had a 
 
         heart attack.  Claimant said she was not satisfied with Dr. 
 
         Bunten as he did not seem to do anything about her pain.  
 
         Claimant then went to G. Charles Roland, M.D. Claimant testified 
 
         that she treated with this doctor for approximately one and 
 
         one-half years until he moved out of the state.  Claimant stated 
 
         that the back of her knees were catching and locking and giving 
 
         way.  Claimant indicated that during this time of treatment her 
 
         problems were mostly with her right knee.  In 1982, claimant went 
 
         to Jerome G. Bashara, M.D., who performed an arthrogram on her 
 
         right knee and suggested surgery.  Claimant indicated the 
 
         insurance company denied surgery and sent claimant to Marvin H. 
 
         Dubanksy, M.D., who performed surgery on her right knee in 
 
         December 1982.
 
         
 
              Claimant testified that during the time since her May 6, 
 
         1980 injury,.she had worked off and on with defendant employer 
 
         until she finally quit in 1983 due to her knee condition.  
 
         Claimant described her job with defendant employer as standing 
 
         all the time assembling root feeders.  Claimant acknowledged that 
 
         she was told by the insurance company to see Peter D. Wirtz, 
 
         M.D., and that she was only to go to him for further treatment.
 
         
 
              Claimant testified as to her further medical contacts and 
 
              treatment.  Rather than set out her understanding of these 
 
              visits, they will be discussed where applicable later on in 
 
              reviewing the medical evidence.  Claimant contends that her 
 
              medical complaints are: pain along the inside knee cap, both 
 
              knees, but worse on the left; very limited walking ability 
 
              especially on rough or rocky ground; occasional catching in 
 
              her left knee; hard to vacuum at times; and can't clean 
 
              lower shelves.    Claimant acknowledged that she applied for 
 
              social security in 1986 and received her first payment in 
 
              June 1987.  Claimant stated that losing weight was 
 
              recommended.  Claimant contends she cannot do the 
 
              recommended exercises due to her knee problem.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         JONES V. ROSS DANIELS, INC.
 
         Page 3
 
         
 
         
 
              Ronald K. Bunten, M.D., wrote on October  10,  1980:  "I 
 
              think her symptoms are most likely due to symptomatic 
 
              chondromalacia which may have been aggrevated [sic) by a 
 
              fall as she describes." (Jt.  Ex. 1, p. 36)
 
         
 
              G. Charles Roland, M.D., wrote on June 21, 1982:
 
         
 
                   In terms of my diagnosis of the right knee of internal 
 
                   derangement and questionable medial meniscus tear, 
 
                   these symptoms indeed can be mimicked by chondromalacia 
 
                   patella which is after reviewing the record, Dr. 
 
                   Bunten's opinion regarding her symptoms.  However, with 
 
                   catching, locking giving away, which she states has 
 
                   been more of a gradual problem and exacerbated more 
 
                   severely as of late, this leads me more to think of a 
 
                   cartilage or meniscus problem.
 
         
 
                   I am uncertain as to whether her present symptoms are 
 
                   caused by her accident of October 10, 1980 or not.  I 
 
                   do not feel, however, that her symptoms are presently 
 
                   caused by obesity.
 
         
 
         (Joint Exhibit 1, page 33)
 
         
 
              The undersigned believes that the doctor in fact meant the 
 
         date to be May 6, 1980.
 
         
 
              The Mercy Hospital records on December 12, 1982, reflect the 
 
         following: "Operation: Arthroscopy.  Removal of cartilage, 
 
         removal of nubbin from partially torn anterior cruciate ligament.  
 
         Shaving of joint." (Jt.  Ex. 1, p. 40) The attending physician 
 
         was Dr. Dubansky.
 
         
 
              On October 27, 1983, David B. McClain, D.O., opined that the 
 
         claimant "has sustained a permanent partial impairment to the 
 
         body as a whole in the amount of twelve percent as a result of 
 
         the trauma sustained May 6, 1980.  Impression: Post-traumatic 
 
         chondromalacia of the patella bilaterally being greater on the 
 
         right." (Jt.  Ex. 1, p. 26) On November 1, 1983, Dr. McClain 
 
         wrote: "I am sorry for the misunderstanding on the permanent 
 
         partial rating of Mrs. Jones.  I rated her as a twelve (12) 
 
         percent to the body as a whole which would break down to eighteen 
 
         (18) percent to the lower right extremity and eleven (11) to the 
 
         lower left extremity." (Jt.  Ex. 1, p. 25)
 
         
 
              In a letter dated October 25, 1983, Dr. Dubansky wrote: "I 
 
         reviewed Mrs. Jones' chart and find that at the time of the 
 
         arthroscopy she had a partial tear of the cruciate ligament.  
 
         This coupled with the chondromalacia I believe would give her 
 
         about 10% physical impairment of the right lower extremity
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         JONES V. ROSS DANIELS, INC.
 
         Page 4
 
         
 
         
 
         as stated in my note of 3/21/83.1' (Jt.  Ex. 1, p. 21A) In a 
 
         letter dated November 28, 1983, Dr. Dubansky wrote:
 
         
 
              I stated in my note of 10/25/83 that Ms. Jones (sic) 
 
              impairment was due to the partial tear of the cruciate 
 
              ligament coupled with the chondromalacia.
 
         
 
              How much of this is aggravation I do not know, but I feel 
 
              that it is a combination and that is her present impairment, 
 
              and that's all I can say.
 
         
 
         (Jt. Ex. 1, p. 21B)'
 
         
 
              In a letter dated December 22, 1983, Dr. Dubansky wrote: 
 
         "Mrs. Jones complains some periodically of her left knee, but did 
 
         not seem to give her a lot of trouble and I feel that probably 
 
         her physical impairment in the left knee is less than 5%. It is 
 
         somewhere in the nature of 2 to 3% of the leg." (Jt.  Ex. 1, p. 
 
         21C)
 
         
 
              Dr. Dubansky's office notes reflect the following on 
 
         December 14, 1982, regarding the operative report at Mercy 
 
         Hospital.:
 
         
 
         
 
         
 
         
 
         DIAGNOSIS:
 
         
 
         Piece of cartilage lying in medial side of intercondylar notch, 
 
         and partial tear of cruciate ligament with a bulbous end on the 
 
         tibial portion.  Both of these could have contributed to the 
 
         tenderness she had in the arterior medial joint line.  The 
 
         menisci themselves were intact.  The articular cartilage in 
 
         general had some chondromalacia and degenerative changes.  The 
 
         patella rode quite smoothly in the groove.
 
         
 
         
 
         SURGERY:
 
         
 
         Arthroscopy   Removal of  bulbous  end of cruciate ligament which 
 
         was otherwise intact.  Portion of cartilage from the medial 
 
         femoral condyle which could be articular cartilage as it did not 
 
         seem to rise from the meniscus.
 
         
 
         (Jt.  Ex. 1, p. 14)
 
         
 
              On October 1, 1986, Peter D. Wirtz,  M.D.,  wrote:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              All these  investigations  revealed  degeneration to both 
 
              knees compatible with her physiological condition for her 
 
              age.  The 5-6-80 fall caused a contusion to the knee area 
 
              that was symptomatic on a short term basis.  The 5-6-80 fall 
 
              did not cause the knee
 
         
 
         
 
         JONES V. ROSS DANIELS, INC.
 
         Page 5
 
         
 
         
 
              joint degeneration that is present today.  Her knee joint 
 
              symptoms today are a result of the degeneration.
 
         
 
         (Jt. Ex. 1, p. 24)
 
         
 
              Jerome G. Bashara, M.D., wrote the following in his medical 
 
         notes on August 12, 1987:
 
         
 
              SURGERY NOTE:  Mercy Hospital Medical Center A diagnostic 
 
              and operative arthroscopy of the left knee was carried out 
 
              with a surgical arthroscopy, subtotal medial meniscectomy 
 
              for a tear of the medial meniscus and a debridement and 
 
              shaving of the articular cartilage, chondroplasty of the 
 
              medial femoral condyle; and a debridement and shaving of the 
 
              articular cartilage of the patella and the lateral femoral 
 
              condyle.  A Jones dressing was applied.  She tolerated the 
 
              procedures well.
 
         
 
         (Jt. Ex. 1, p. 6)
 
         
 
              Dr. Bashara wrote on June 28, 1988:
 
         
 
              As you will recall, Mrs. Jones has injured both of her knees 
 
              in an accident working for Ross Daniels Inc. on 5-6-80.  Her 
 
              present diagnosis is bilateral posttraumatic degenerative 
 
              changes of the patellofemoral joints and some early 
 
              degenerative changes, posttraumatic, medical compartment of 
 
              both of her knees.
 
              
 
              It is my opinion that her present condition is directly 
 
              related to the accident at Ross Daniels in 1980.
 
              
 
              As of her last visit to my office on May 31, 1988, I would 
 
              give this patient a 20% permanent partial physical 
 
              impairment of her right lower extremity related to her knee 
 
              condition and a 20% permanent partial physical impairment of 
 
              her left lower extremity related to her left knee condition.  
 
              This rating was based on my clinical experience and the AMA 
 
              Guide for Rating Permanent Impairment.
 
              
 
              The surgical procedure, August 1 2, 1987,  which I performed 
 
              was also a direct result of the accident of, May, 1980.  The 
 
              healing period for that surgical procedure was three months.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              It is my opinion that the condition of her knees is a 
 
              progressive [sic] problem, and that she will require 
 
              anti-inflammatory medication, physical therapy, and some 
 
              orthotic devices such as a cane in the future.  She also 
 
              well may be a candidate in the future for
 
              
 
              
 
         JONES V. ROSS DANIELS, INC.
 
         Page 6
 
         
 
         
 
              a surgical procedure on both knees to replace the 
 
              degenerated cartilage.
 
         
 
                   It is my opinion that her present condition is related 
 
              to the accident on 1980 in that prior to that incident, my 
 
              records reveal and the records of the other physicians that 
 
              I have reviewed, that she had no prior difficulties with 
 
              either.of her knees.
 
         
 
                   It is my experience and I am sure that of any other 
 
              orthopaedic surgeon that a traumatic episode such as the 
 
              patient had, can frequently lead to a degenerative process 
 
              as the patient demonstrates.
 
         
 
         (Jt. Ex. 1, pp. 1-2)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on May 6, 1980 which arose 
 
         out of and in the course of her employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 6, 1980 is causally related 
 
         to the disability on which she now bases her claim. Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary. Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See 'also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd
 
         
 
         
 
         JONES V. ROSS DANIELS, INC.
 
         Page  7
 
         
 
         
 
         756, (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
         812, (1962).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler 
 
         v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, and 
 
         cases cited.
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by.the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v.DeLong's Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1993).
 
         
 
              Iowa Code section 85.34(l) provides that  if  an  employee 
 
         has suffered a personal injury causing permanent partial 
 
         disability, the employer shall pay compensation for a healing 
 
         period from the day of the injury until (1) the employee returns 
 
         to work; or (2) it is medically indicated that significant 
 
         improvement from the injury is not anticipated; or (3) until the 
 
         employee is medically capable of returning to substantially 
 
         similar employment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by the 
 
         industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation,
 
         
 
         
 
         JONES V. ROSS DANIELS, INC.
 
         Page 8
 
         
 
         
 
         if so, the physician's examination at a later date and not when 
 
         the injuries were fresh; the arrangements as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony may be considered.  Both parties may bring all this 
 
         information to the attention of the fact-finder as either 
 
         supporting or weakening the physician's testimony and opinion.  
 
         All factors go to the value of the physician's testimony as a 
 
         matter of fact not as a matter of law.  Rockwell Graphic Systems, 
 
         Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
              This 60-year-old claimant fell May 6, 1980 on her two knees 
 
         at work while lifting a box off a pallet.  A piece of tape stuck 
 
         on claimant's shoe causing claimant's actual fall.  There is no 
 
         medical evidence that claimant was having any trouble with her 
 
         knees prior to her May 6, 1980 injury.  The medical evidence is 
 
         conflicting.  Dr. Dubansky is not certain as to the causal 
 
         connection of claimant's knee operations and her May 6, 1980 
 
         accident.  He indicates it is impossible to tell how much of her 
 
         knee troubles are due to her accident.  Dr. Dubansky indicates it 
 
         would be conjectural to relate her present complaint to her 
 
         injury in 1980.  Notwithstanding Dr. Dubansky's analysis, nowhere 
 
         in the medical history of this claimant is there any prior 
 
         evidence of knee problems.  There is constant reference to 
 
         claimant's weight and that she is obese and should lose weight.  
 
         The evidence indicates claimant has always been heavy.  Now that 
 
         the claimant has been injured, he advises her to lose weight.  
 
         Although this is always a good suggestion for overweight people 
 
         whether they are injured or not, it is not easy to lose weight.  
 
         The defendants take the claimant -as she is.  It is a well-known 
 
         fact that many times when a person is injured they cannot 
 
         exercise and be as active as they were before an injury and this 
 
         can contribute to a person's inability to lose weight or in fact 
 
         can result in an increase of weight.  On December 14, 1982, Dr. 
 
         Dubansky wrote in his notes concerning the operative report at 
 
         Mercy Hospital, in his diagnosis:
 
         
 
         DIAGNOSIS:
 
         
 
         Piece of cartilage lying in medial side of intercondylar notch, 
 
         and partial tear of cruciate ligament with a bulbous end on the 
 
         tibial portion.  Both of these could have contributed to the 
 
         tenderness she had in the arterior medial joint line.  The 
 
         menisci themselves were intact.  The articular cartilage in 
 
         general had some chondromalacia and degenerative changes.  The 
 
         patella rode quite smoothly in the groove.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         JONES V. ROSS DANIELS, INC.
 
         Page 9
 
         
 
         
 
         He then wrote concerning the surgery:
 
         
 
         
 
         SURGERY:
 
         
 
         Arthroscopy - Removal of bulbous end of cruciate ligament which 
 
         was otherwise intact.  Portion of cartilage from the medial 
 
         femoral condyle which could be articular cartilage as it did not 
 
         seem to rise from the meniscus.
 
         
 
              Dr. Dubansky later wrote the employer in February 1983 to 
 
         see if there would be any other type of job claimant could do 
 
         that would be partly fitting and not requiring claimant to be on 
 
         her feet.  He indicated if that type of job could be found 
 
         claimant could go back to that type of work.  Dr. Dubansky opined 
 
         a 10 percent physical impairment to the right lower extremity in 
 
         October 1983, and in December 1983 opined a physical impairment 
 
         to claimant's left knee of less than 5 percent and of her left 
 
         leg 2 to 3 percent.  Although the x-rays taken close to the time 
 
         of claimant's injury on May 6, 1980 do not indicate fractures or 
 
         tears in the knee, it is obvious in reading the medical reports 
 
         from various doctors that claimant's initial condition could have 
 
         been misdiagnosed, particularly in a person of claimant's weight.  
 
         There is no other explanation of the etiology of claimant's knee 
 
         problems except the injury of May 6, 1980.  It was suggested by 
 
         some doctors that claimant has chondromalacia.  Assuming this 
 
         condition existed in claimant, claimant's injury of May 6, 1980 
 
         materially aggravated any preexisting knee condition resulting in 
 
         claimant's present impairment.  The defendants take the claimant 
 
         as she was on may 6, 1980.  The greater weight of medical 
 
         evidence, taking into consideration claimant's condition before 
 
         her injury and after her injury, the nature of the fall, and 
 
         claimant's complaints leads the undersigned to believe that Dr. 
 
         Bashara is more accurate in his medical opinion.  Dr. Bashara 
 
         opines that claimant's present condition is directly related to 
 
         the accident at defendant employer in 1980.  Dr. Bashara 
 
         diagnosed claimant's condition as bilateral posttraumatic 
 
         degenerative changes of the patellofemoral joints and some early 
 
         degenerative changes, posttraumatic, medial compartment of both 
 
         of her knees.  On August 12, 1987, Dr. Bashara performed surgery 
 
         on claimant's left knee which he described as:
 
         
 
         
 
         SURGERY NOTE:  Mercy Hospital Medical Center A diagnostic and 
 
         operative arthroscopy of the left knee was carried out with a 
 
         surgical arthroscopy, subtotal medial meniscectomy for a tear of 
 
         the medial meniscus and a debridement and shaving of the 
 
         articular. cartilage, chondroplasty of the medial femoral 
 
         condyle; and a debridement and shaving of the articular cartilage 
 
         of the patella and the lateral femoral condyle.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         JONES V. ROSS DANIELS, INC.
 
         Page 10
 
         
 
         
 
              A Jones dressing was applied.  She tolerated the procedures 
 
              well.
 
         
 
              Dr. Bashara opined that the surgical procedure of August 12, 
 
         1987 was a direct result of the accident of May 1980 and that the 
 
         healing period for that surgical procedure was three months.  Dr. 
 
         Bashara further opined that claimant had a 20 percent permanent 
 
         partial impairment of the right lower extremity related to her 
 
         knee condition and a 20 percent permanent partial physical 
 
         impairment of her left lower extremity related to her left knee 
 
         condition.  This rating was based on his clinical experience and 
 
         the AMA Guide For Rating Permanent Impairment.  Dr. Bashara 
 
         further opined that the condition of her knees is a progressive 
 
         problem and that the she will require anti-inflammatory 
 
         medication, physical therapy and some orthotic devices such as a 
 
         cane in the future.  Also, she may well be a candidate in the 
 
         future for a surgical procedure on both knees to replace a 
 
         degenerative cartilage.
 
         
 
              The undersigned finds that claimant's disability in both her 
 
         knees is causally connected to her injury of May 6, 1980.  It is 
 
         further found that claimant has a 20 percent permanent partial 
 
         physical impairment of her left lower extremity and a 20 percent 
 
         permanent partial physical impairment of her right lower 
 
         extremity as a result of her injury of May 6, 1980.  Claimant has 
 
         been paid all healing period benefits to which she is entitled 
 
         and to which the parties stipulated for the period prior to her 
 
         April 12, 1987 surgery.  Claimant is entitled to healing period 
 
         benefits beginning August 12, 1987, up to but not including 
 
         November 4, 1987, which is the healing period established by Dr. 
 
         Bashara resulting from surgery to claimant's left knee.
 
         
 
              This case is governed by Iowa Code section 85.34(2)(s) 
 
         (1980) as it involves the loss of a percentage of both legs in a 
 
         single accident.  According to the third edition of the AMA 
 
         Guides, Table 42, a 20 percent rating to the lower extremity has 
 
         a whole body equivalent of 8 percent,.and as provided by the 
 
         combined values chart in the same edition of the AMA Guides, an 8 
 
         percent rating to each lower extremity combines for a whole body 
 
         equivalent rating of 15 percent.  Claimant has a 15 percent 
 
         permanent partial impairment of the whole body, and is entitled 
 
         to 75 weeks of permanent partial disability benefits.
 
         
 
              Exhibit 2 sets out the medical expense summary in which 
 
         there is an issue under Iowa Code section 85.27. Claimant aid not 
 
         have authorization to go to Dr. Bashara, but if i-E weren't for 
 
         the fact that claimant had gone to Dr. Bashara, it would appear 
 
         from the record that claimant would have been denied her needed 
 
         surgery of August 12, 1987.  Dr. Bashara performed valuable 
 
         treatment and relief to claimant.  It has been concluded that 
 
         this surgery was causally connected to claimant's injury of May 
 
         6, 1980.  All those medical expenses
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         JONES V. ROSS DANIELS, INC.
 
         Page 11
 
         
 
         
 
         set out in exhibit 2, totaling $5,464.41, are directly related to 
 
         claimant's surgery of August 12, 1987.  Defendants are 
 
         responsible for the payment of all those bills set out therein.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant injured her left and right knees at work on May 
 
         6, 1980, when she fell onto a concrete floor off a pallet while 
 
         lifting and carrying a box.
 
         
 
              2. Claimant received an impairment to her left and right of 
 
         her injury on May 6, 1980.
 
         
 
              3. Claimant received a 20 percent permanent partial 
 
         impairment extremity and a 20 percent permanent partial lower 
 
         right extremity as a result of her injury on May 6, 1980.
 
         
 
              4. Claimant received a 15 percent permanent partial 
 
         impairment to her body as a whole as a result of her May 6, 1980 
 
         injury.
 
         
 
              5. Claimant's knee surgeries on December 14, 1982 and August 
 
         12, 1987 are the result of claimant's injury on May 6, 1980.
 
         
 
              6. Claimant has received all her healing period benefits to 
 
         which she is entitled for the period prior to August 12, 1987.
 
         
 
              7. Claimant reached maximum recovery from her August 12, 
 
         1987 surgery to her left knee on November 3, 1987.
 
         
 
              8. Claimant's injury of May 6, 1980 is controlled by Iowa 
 
         Code section 85.34(2)(s) involving injuries to two legs in a 
 
         single accident.
 
         
 
              9. Defendants are responsible for payment of the medical 
 
         expenses set out in exhibit 2 in the total amount of $5,464.41.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's impairment to her left and right lower 
 
         extremities is causally connected to her injury on May 6, 1980.
 
         
 
              Claimant has a 15 percent permanent partial impairment to 
 
         her body as a whole.
 
         
 
                                      ORDER
 
         
 
              .THEREFORE, it is ordered:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant is entitled to seventy-five (75) weeks of permanent 
 
         partial disability benefits at the weekly rate of one hundred
 
         
 
         
 
         JONES V. ROSS DANIELS, INC.
 
         Page 12
 
         
 
         
 
         fifty and 80/100 dollars ($150.80) commencing November 4, 1987.
 
         
 
              Claimant is entitled to twelve (12) additional weeks of 
 
         healing period benefits for the period beginning August 12, 1987 
 
         to and including November 3, 1987.
 
         
 
              Defendants shall pay accrued weekly benefits in a lump sum 
 
         and shall receive credit against the award for weekly benefits 
 
         previously paid.  Defendants paid healing period benefits due and 
 
         owing for the period prior to August 12, 1987, and forty-five 
 
         (45) weeks of permanent partial disability benefits based on nine 
 
         percent (9%) permanent partial disability of the body as a whole.
 
         
 
              Defendants shall pay directly to providers the following 
 
         medical expenses: .
 
         
 
              Jerome G. Bashara, M.D.                $2,651.50
 
               Medical Center Anesthesiologists, P.C.    403.00
 
               J. Song Pathologists, P.D.                 80.00
 
               Radiology, P.C.                          125.00
 
               Mercy Hospital Medical Center           2,117.39
 
               Prescription charges                      87.52
 
               
 
                                              Total  $5,464.41
 
         
 
         
 
              Defendants shall pay interest on benefits awarded herein as 
 
         set forth in Iowa Code section 85.30.
 
         
 
              Defendants shall file an activity report upon payment of 
 
              this award as requested by this agency pursuant to Division 
 
              of Industrial Services Rule 343-3.1.
 
         
 
              Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 29th day of June, 1989.
 
         
 
         
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         Copies to:
 
         
 
         Mr. Sidney C. Levine
 
         Attorney at Law
 
         4313 Fleur Drive
 
         Des Moines, IA 50321
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         JONES V. ROSS DANIELS, INC.
 
         Page 13
 
         
 
         
 
         Mr. Brian L. Campbell
 
         Attorney at Law
 
         1100 Des Moines Blvd.
 
         Des Moines, IA 50309
 
         
 
         Mr. Channing L. Dutton
 
         Attorney at Law
 
         West Towers office
 
         1200 35th St Ste 500
 
         West Des Moines, IA 50265
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        LEONARD PEARSON,
 
        
 
            Claimant,
 
        
 
        vs.                               File No. 636855
 
        
 
        IOWA CONCRETE PRODUCTS INC.,        A P P E A L
 
        
 
            Employer,                     D E C I S I O N
 
        
 
        and
 
        
 
        WAUSAU INSURANCE COMPANIES,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision awarding permanent 
 
        partial disability benefits as the result of an injury sustained 
 
        May 6, 1980.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration proceeding and joint exhibits 1 through 20 inclusive.
 
        
 
                                      ISSUES
 
        
 
        1. Whether or not claimant could be awarded a healing period for 
 
        his time off in 1985 and 1986.
 
        
 
        2. Whether or not claimant's disability to his right shoulder 
 
        should be compensated as industrial disability.
 
        
 
        3. Whether claimant has serious industrial disability as a result 
 
        of the 1980 injury.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law contained in the arbitration decision are 
 
        appropriate to the issues and evidence.
 
        
 
        PEARSON v. IOWA CONCRETE PRODUCTS INC.
 
        Page 2
 
        
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the evidence in conjunction with the law is 
 
        adopted.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant sustained an injury which arose out of and in the 
 

 
        
 
 
 
 
 
        course of his employment May 6, 1980, when he fell off a ladder 
 
        onto a concrete floor landing on his left arm and shoulder.
 
        
 
        2. As a result of the work injury, claimant has had multiple 
 
        operations on the upper left extremity.
 
        
 
        3. Claimant continues to perceive pain, a loss of grip and 
 
        numbness in his wrist and hand and his left shoulder.
 
        
 
        4. Claimant has a permanent partial impairment as a result of the 
 
        work injury.
 
        
 
        5. The residuals of claimant's impairment are centered on the 
 
        upper left extremity and do not extend to the body as a whole.
 
        
 
        6. Claimant has a permanent partial disability of 10 percent of 
 
        the left arm.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
        Claimant has established his work injury is the cause of 
 
        permanent partial impairment of 10 percent of the left arm 
 
        entitling him to 25 weeks of permanent partial disability 
 
        benefits.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants are to pay unto claimant twenty-five (25) weeks 
 
        of permanent partial disability benefits at the stipulated rate 
 
        of one hundred fifty-seven and 66/100 dollars ($157.66) per week 
 
        commencing September 21, 1981.
 
        
 
        That defendants shall receive full credit for all permanent 
 
        partial disability benefits previously paid.
 
        
 
        That accrued payments shall be paid in a lump sum together with 
 
        statutory interest thereon pursuant to Iowa Code section 85.30.
 
        
 
        PEARSON v. IOWA CONCRETE PRODUCTS INC.
 
        Page 3
 
        
 
        
 
        That a claim activity report shall be filed upon payment of this 
 
        award.
 
        
 
        That the costs of this action are assessed against the defendants 
 
        pursuant to Division of Industrial Services Rule 343-4.33.
 
        
 
        
 
        Signed and filed this 13th day of December, 1988.
 
        
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEONARD PEARSON,
 
         
 
              Claimant,
 
         
 
         VS.                                        File No. 636855
 
         
 
         IOWA CONCRETE PRODUCTS INC.,                 R E V I E W -
 
         
 
              Employer,                            R E 0 P E N I N G
 
         
 
         and                                        D E C I S I 0 N
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by Leonard 
 
         Pearson, claimant, against Iowa Concrete Products, Inc., 
 
         employer, and Wausau Insurance Companies, insurance carrier, to 
 
         recover additional benefits under the Iowa Workers' Compensation 
 
         Act as a result of an alleged injury sustained May 6, 1980.  The 
 
         matters addressed in file numbers 738738, 783442, 636855 and 
 
         814511 came on for hearing before the undersigned deputy 
 
         industrial commissioner January 27, 1988.  The record was 
 
         considered fully submitted at the close of the hearing.  The 
 
         record in this case consists of the testimony of claimant and 
 
         Debra Pearson, his wife; and joint exhibits 1 through 20, 
 
         inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order approved January 
 
         27, 1988, the issues presented for determination are:
 
         
 
              1.  Whether the claimant's work injury is the cause of the 
 
         disability on which he now bases his claim; and
 
         
 
              2.  The nature and extent of permanent partial disability, 
 
         if any.
 
         
 
                                 FACTS PRESENTED
 
         
 
              On May 6, 1980, claimant fell off a ladder onto a solid 
 
         cement floor landing on his left arm and shoulder.  Claimant 
 
         testified he was off work for an extensive period of time,
 
         underwent at least three different surgical procedures on his 
 
         left elbow and hand and returned to work in approximately August 
 
         1981 after receiving a settlement on permanent partial disability 
 
         benefits.  On July 18, 1983, while putting a fork on a forklift, 
 
         claimant's left foot was injured when a fork fell across it.  
 
         Claimant explained he had two surgical procedures done on his 
 
         foot during which "hardware" was put in.  On December 13, 1984, 
 

 
         bilateral carpal tunnel surgery was performed.  Defendants agree 
 
         all three of these injuries arose out of and in the course of 
 
         claimant's employment.
 
         
 
              Claimant testified December 5 was the last day he worked 
 
         in 1985 and that he had been having trouble with his shoulder 
 
         throughout the months of November and December 1985.  He 
 
         explained he had been rolling and patching pipe and running a 
 
         material truck using a pick and shovel.  Claimant stated he saw 
 
         Robb Fulton, M.D., who prescribed pain medication and physical 
 
         therapy and that he was released to return to work January 31, 
 
         1986.
 
         
 
              Claimant testified he continues to experience pain in his 
 
         shoulder, that he has a loss of grip in both hands, and that he 
 
         is able to reach above his head but not without pain.  He 
 
         acknowledged he is able to perform all of the responsibilities 
 
         of his job, that he is under no restrictions, and that he fully 
 
         intends to continue in his employment with Iowa Concrete 
 
         Products.  Claimant relates his pain to the accident of 1980 
 
         and admitted he is not now under any current medical treatment 
 
         for any of these injuries.
 
         
 
              Debra Pearson testified she was aware of no problems 
 
         claimant had with his hands, wrists, shoulder, or left foot 
 
         prior to his work injuries.  She opined claimant tends to 
 
         "baby" himself and put restrictions on himself as a result of 
 
         perceived pain.  She did not describe these symptoms of pain as 
 
         constant or continual but rather testified that claimant "feels 
 
         pretty good most generally.O
 
         
 
              X-rays taken following claimant's July 18, 1983 foot 
 
         injury did not reveal evidence of fracture but showed diastasis 
 
         of the 4th and 5th metatarsals.  William Boulden, M.D., 
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC.
 
         Page   3
 
         
 
         
 
         operated on claimant November 9, 1983 for repair of this 
 
         condition and, when claimant did not recover as expected, 
 
         performed an open reduction and internal fixation of metatarsal 
 
         diastasis and fusion using 3 AO screws to solidify the 
 
         fixation.  Claimant was given a 10 percent permanent partial 
 
         impairment rating of the left foot from Dr. Boulden on June 6, 
 
         1984.  Claimant was also given a 45 percent permanent partial 
 
         disability rating due to the injury from Dr. Charles Parker, 
 
         Podiatrist, on November 1, 1984.
 
         
 
              Claimant has had multiple operations on his left upper 
 
         extremity since his fall from the ladder in May 1980, including 
 
         two left carpal tunnel releases, two cubital tunnel 
 
         compressions and a left lateral epicondylitis release.  On July 
 
         17, 1981, claimant underwent surgery by J.D. Bell, D.O., for a 
 
         nerve entrapment syndrome on the left.  Further surgery was 
 
         done October 19, 1982 by Peter D. Wirtz, M.D., for tendon 
 
         removal at the left elbow.  Arnis Grundberg, M.D., performed an 
 
         ulnar nerve exploration and transfer at the elbow and in the 
 
         wrist area.  Dr. Wirtz released claimant to return to work 
 
         opining claimant had no permanent partial impairment.  Dr. 
 
         Grundberg gave claimant a five percent permanent partial 
 
         impairment rating of the upper left extremity.
 
         
 
              Claimant was evaluated February 10, 1987 by Robert 
 
         Breedlove, M.D., who concluded:
 
         
 
                 I feel that the 10% permanent partial impairment of 
 
              the left foot is appropriate at this point considering 
 
              the patient's inability to walk long distances and the 
 
              difficulty he has with kneeling and bending forward 
 
              which is required in part of his job.  I would rate 
 
              tile permanent partial impairment of his left shoulder 
 
              at 7% of the left upper extremity.  I base this on the 
 
              fact that he has 120 degrees of abduction for a 3% 
 
              permanent partial impairment.  He has 150 degrees of 
 
              forward flexion but he also has moderate pain for the 
 
              last 60 degrees and would rate that at 2% permanent 
 
              partial impairment.  Internal rotation 1% and extension 
 
     
 
         
 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC.
 
         Page   4
 
         
 
         
 
              1%.
 
         
 
         (Joint Exhibit 8, page 5)
 
         
 
              Dr. Breedlove recommended:
 
         
 
                 Treatment.for the patient's left foot pain would 
 
              include obtaining Rockport shoes in order to better 
 
              cushion his feet when he is walking.  They do not make 
 
              steel toed Rockport shoes, so I feel Sorbothane full 
 
              sole inserts would be applicable for his work boots.
 
         
 
         (Jt. Ex. 8, p. 5)
 
         
 
              With regard to claimant's alleged December 1985 injury, Dr. 
 
         Breedlove writes:
 
         
 
                 Mr. Pearson states that either in November or 
 
              December 1985 he was unloading frozen sand off of a 
 
              truck using a pick and shovel and then began 
 
              experiencing left shoulder pain.  On further 
 
              questioning, the patient denies having had left 
 
              shoulder pain previous to this accident.  He did 
 
              mention the multiple carpal tunnel releases and ulnar 
 
              nerve releases.  In reviewing the records that I have 
 
              available from December 13, 1985, by Dr. Fulton, he 
 
              states that Mr. Pearson had pain in the left shoulder 
 
              in the fall of 1984.  He also states that in 1983 
 
              following an accident at work in which he fell off of a 
 
              ladder onto the concrete floor landing on his left 
 
              shoulder he did experience some difficulty with pain.
 
         
 
         (Jt. Ex. 8, p. 3)
 
         
 
              Claimant was seen for evaluation February 6, 1987, by Jerome 
 
         G. Bashara, M.D., who concluded:
 
         
 
                 In reviewing the history and all of the records on 
 
              this patient, it is my opinion that the patient has a 
 
              15% permanent partial physical impairment of his left 
 
              upper extremity.  I believe that 10% of this impairment 
 
              rating is related to an injury which he sustained at 
 
              work on May 10, 1980 to his shoulder and elbow.
 
         
 
                 I believe that 5% of the above 15% rating is related 
 
              to repetitive trauma to his wrist which he sustained at 
 
              work over the next several year period resulting in the 
 
              development of a carpal tunnel syndrome with subsequent 
 
              surgery.
 
         
 
         (Jt. Ex. 6, p. 1)
 
         
 
              Dr. Bashara makes no note of any alleged December 1985 
 
         injury.
 
         
 
              Claimant saw Robb Fulton, D.O., November 27, 1985 for pain 
 
         in the left shoulder radiating to the left elbow.  Dr. Fulton 
 
         notes the onset of pain was in 1983 "following an accident at 
 
         work in which he fell off a ladder onto concrete floor on his 
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC.
 
         Page   5
 
         
 
         
 
         left shoulder."  Dr. Fulton found "tenderness to palpitation of 
 
         left shoulder muscles in general and on the tendon of the long 
 
         head of left biceps in particular.  There is significant weakness 
 
         of left grip, forearm, triceps and biceps; however, range of 
 
         motion is essentially normal." (Jt. Ex. 8, p. 2)
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 6, 1980 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. 
 
         L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  The 
 
         expert opinion may be accepted or rejected, in whole or in part, 
 
         by the trier of fact.  Id. at 907.  Further, the weight to be 
 
         given to such an opinion is for the finder of fact, and that may 
 
         be affected by the completeness of the premise given the expert 
 
         and other s surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle 
 
         Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLongOs 
 
         Sportswear, 332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co.,
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              Iowa Code section 85.34(2)(m) provides:
 
         
 
                 The loss of two-thirds of that part of an arm 
 
              between the shoulder joint and the elbow joint shall 
 
              equal the loss of an arm and the compensation therefor 
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC.
 
         Page   6
 
         
 
         
 
              shall be weekly compensation during two hundred fifty 
 
              weeks.
 
         
 
         
 
                                   ANALYSIS
 
         
 
              A person who has sustained a permanent impairment, by the 
 
         very meaning of the phrase, can never return to the same physical 
 
         condition he or she had prior to the injury.  Armstrong Tire & 
 
         Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 1981). Based upon the 
 
         medical evidence presented in conjunction with claimant's own 
 
         subjective symptoms and complaints, it is accepted claimant, as a 
 
         result of the work injury on May 6, 1980, can never return to the 
 
         same physical condition he was in prior to this injury and that 
 
         it is, therefore, the cause of a permanent impairment and is the 
 
         cause of the disability on which claimant now bases his claim.
 
         
 
              What is at issue, then, is the nature and extent of 
 
         claimant's permanent partial disability.  Claimant asserts his 
 
         disability is centered around problems with his shoulder and 
 
         argues an industrial disability is appropriate.  However, it is 
 
         found claimant has failed to establish the disability extends 
 
         beyond the upper extremity, a scheduled injury under Iowa Code 
 
         section 85.34(2)(m), which is evaluated by the functional 
 
         method.
 
         
 
              All of the medical professionals who either evaluated or 
 
         treated claimant's injury rate claimant as having a permanent 
 
         partial impairment of the upper extremity.  While it is 
 
         acknowledged claimant fell on his shoulder, the residual 
 
         impairment, the loss of grip, pain in the biceps, triceps and 
 
         forearm, and numbness in the hand, is centered in the upper 
 
         extremity and does not extend to the body as a whole.  It is not 
 
         in doubt claimant suffers shoulder pain, but the evidence 
 
         establishes he has essentially full range of motion and the pain 
 
         has not kept him from performing any part of his regular job.
 
         
 
              Dr. Bashara rates claimant as having a 10 percent impairment 
 
         to the upper left extremity; Dr. Breedlove rates the permanent 
 
         partial upper left extremity impairment as seven percent.  Dr. 
 
         Grundberg rates claimant as having a permanent partial impairment 
 
         of five percent of the upper left extremity referable to 
 
         residuals of the left cubital tunnel syndrome and lateral 
 
         epicondylitis of the left elbow.
 
         
 
              As noted by Dr. Breedlove, claimant has had multiple 
 
         surgical procedures on the left extremity.  For this reason, the 
 
         opinion of Dr. Bashara is accepted.  Claimant has a permanent 
 
         partial disability of 10 percent of the upper left extremity as a 
 
         result of the work injury and is entitled to 25 weeks of 
 
         compensation pursuant to Iowa Code section 85.34(2)(m).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following facts are found:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment May 6, 1980, when he fell off a 
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC.
 
         Page   7
 
         
 
         
 
         ladder onto a concrete floor landing on his left arm and 
 
         shoulder.
 
         
 
              2.  As a result of the work injury, claimant has had 
 
         multiple operations on the upper left extremity.
 
         
 
              3.  Claimant continues to perceive pain, a loss of grip and 
 
         numbness in his wrist and hand and his left shoulder.
 
         
 
              4.  Claimant has a permanent partial impairment as a result 
 
         of the work injury.
 
         
 
              5.  The residuals of claimant's impairment are centered on 
 
         the upper left extremity and do not extend to the body as a 
 
         whole.
 
         
 
              6.  Claimant has a permanent partial disability of 10 
 
         percent of upper left extremity.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              Claimant has established his work injury is the cause of 
 
         permanent partial impairment of 10 percent of the upper left 
 
         extremity entitling him to 25 weeks of permanent partial 
 
         disability benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay until claimant twenty-five (25) weeks 
 
         of permanent partial disability benefits at the stipulated rate 
 
         of one hundred fifty-seven and 66/100 dollars ($157.66) per week 
 
         commencing September 21, 1981.
 
         
 
              Defendants shall receive full credit for all permanent 
 
         partial disability benefits previously paid.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              A claim activity report shall be filed upon payment of this 
 
         award.
 
         
 
              Costs of this action are assessed against the defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 26th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC.
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
                                          DEBORAH A. DUBIK
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Marvin Duckworth
 
         Attorney at Law Terrace Center,
 
         Suite 111 2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                        1803.1
 
                                                        Filed 2-26-88
 
                                                        Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LEONARD PEARSON,
 
         
 
              Claimant,
 
                                                      File No. 636855
 
         VS.
 
         
 
         IOWA CONCRETE PRODUCTS INC.,                   R E V I E W -
 
         
 
              Employer,                              R E 0 P E N I N G
 
         
 
         and                                          D E C I S I 0 N
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803.1
 
         
 
              Claimant fell from a ladder onto cement floor landing on his 
 
         left arm and shoulder.  Claimant had multiple operations on his 
 
         left upper extremity as a result of the fall.  The residuals of 
 
         claimant's impairment found to be centered on the upper extremity 
 
         and not extending into the body as a whole.  Claimant awarded 10 
 
         percent of the upper left extremity.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DALE BARKER,
 
         
 
              Claimant,
 
                                                     FILE NO. 637946
 
         VS.
 
                                                      R E V I E W -
 
         IOWA STATE PENITENTIARY,
 
                                                    R E 0 P E N I N G
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening brought by Dale 
 
         Barker against Iowa State Penitentiary and the State of Iowa as 
 
         employer and insurance carrier.  Claimant seeks further benefits 
 
         for permanent disability as a result of the injury which occurred 
 
         on June 4, 1980.  The case was heard at Burlington, Iowa on 
 
         November 5, 1986 and was fully submitted upon conclusion of the 
 
         hearing.  The record in this proceeding consists of testimony 
 
         from Dale Barker, Wayne Gerdes and Patricia Marshall.  The record 
 
         also contains claimant's exhibits 1 through 17 and defendants' 
 
         exhibits A through I.  Official notice was taken of the agency 
 
         file including in particular the review-reopening decision filed 
 
         January 16, 1984 following a hearing which was conducted on April 
 
         22, 1983.  Also considered were the transcript and exhibits which 
 
         were part of the record made at that hearing.
 
         
 
              The issues presented by the parties for determination are 
 
         whether or not there has been a change in claimant's earning 
 
         capacity or physical condition subsequent to the previous hearing 
 
         which was proximately caused by the injury of June 4, 1980 and 
 
         which would warrant a review of claimant's entitlement to 
 
         compensation for permanent disability benefits.
 
         
 
              The prior decision established the compensability of 
 
         claimant's injury and an entitlement to 45 percent permanent 
 
         partial disability of the body as a whole when evaluated 
 
         industrially.  It further fixed the rate of compensation at 
 
         $141.10 per week.  At the time of the prior decision claimant was 
 
         employed as a correctional officer at the Iowa State Penitentiary 
 
         
 
         
 
         but appeared to have a relatively high rate of absenteeism due to 
 
         sick leave or the effects of the June 4, 1980 injury.  It was 
 
         noted in the prior decision that if claimant's rate of 
 
         absenteeism continued the employer would consider him to be 
 
         "economically unemployable."
 
         
 
         SUMMARY OF EVIDENCE
 
         
 

 
         
 
         
 
         
 
         BARKER V. IOWA STATE PENITENTIARY
 
         Page   2
 
         
 
         
 
              Dale Barker testified that following the injury of June 4, 
 
         1980, he missed a large amount of time from work due to headaches 
 
         and other problems that arose from the June 4, 1980, injury.  He 
 
         also had a service connected disability in his knee and a bout 
 
         with the flu which had caused absences.  The injury occurred when 
 
         claimant was beat by a number of inmates with clubs resulting in 
 
         severe injuries to his head, neck and back.  On or about November 
 
         21, 1983, claimant resigned from his employment at the Iowa State 
 
         Penitentiary pursuant to a settlement agreement which provided 
 
         that he would be able to recover unemployment benefits 
 
         (Defendants' Exhibits F & G).  The settlement agreement further 
 
         provided that "..Dale Barker's employment record will be changed 
 
         to a resignation and will be purged of all documents relating to 
 
         the discharge and resulting grievance..."  The record does not 
 
         contain any written evidence of the incident or events which 
 
         prompted the action to terminate claimant's employment.
 
         
 
              Claimant's testimony was that the termination referred to 
 
         conduct unbecoming an officer and excessive use of sick leave.  
 
         He stated that those two grounds were provided to the United 
 
         States Post Office when he attempted to obtain employment there. 
 
          Claimant felt that the information given to the Post office by 
 
         the Penitentiary prevented him from being hired.  Defendants' 
 
         exhibit I is the response to the Post Office that was made by 
 
         Patricia Marshall on behalf of the Penitentiary.  It indicates 
 
         that claimant was terminated for failure to follow institutional 
 
         rules and conduct unbecoming a state employee but was later 
 
         allowed to resign following a grievance.  The report contains an 
 
         additional statement that claimant had a lot of problems with 
 
         absenteeism but had been injured on the job.
 
         
 
              Since resigning from the Penitentiary claimant has had 
 
         little success in obtaining comparable employment.  He worked for 
 
         several months as a maintenance person at a McDonald's Restaurant 
 
         operated by Wayne Gerdes.  While there he developed problems with 
 
         his knee.  Gerdes testified that claimant did not miss more than 
 
         one or two days of work due to sickness except for the extended 
 
         absence that arose with the knee problem.  He stated that 
 
         claimant did not make complaint of headaches while employed.  
 
         Claimant had testified that he did experience headaches while 
 
         employed by Gerdes.
 
         
 
              Claimant testified that he has applied for several other 
 
         positions, including a number with the State of Illinois, but
 
         has been unable to become employed.  He attributes this to 
 
         physical disabilities resulting from the June 4, 1980 injury.  He 
 
         particularly complains of a lack of physical agility that renders 
 
         him unable to pass physical fitness tests.  Claimant also 
 
         contends that the Penitentiary has released unfavorable 
 
         employment information to prospective employers in violation of 
 
         the agreement made in settling the grievance regarding the 
 
         termination of his employment.
 
         
 
              Patricia Marshall testified that she has responded fully to 
 
         congressional inquiries regarding claimant's employment history 
 
         as shown in exhibits 5 and 8.  Marshall denied conveying 
 
         derogatory information to any prospective employers who had made 
 
         inquiries.  Marshall felt that records of the employer dealing 
 
         with sick leave were not related to the termination and were 
 

 
         
 
         
 
         
 
         BARKER V. IOWA STATE PENITENTIARY
 
         Page   3
 
         
 
         
 
         therefore not to be purged under the settlement agreement.
 
         
 
              At hearing claimant testified that his medical condition was 
 
         unchanged from the time of the hearing conducted in 1983.  He 
 
         indicated that improper disclosure of information by the 
 
         Penitentiary was the basis for this review-reopening proceeding.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Since this is a proceeding in review-reopening from a prior 
 
         award the compensability of the injury, the rate of compensation 
 
         and the nature and extent of the injury have previously been 
 
         determined.  The doctrine of res judicata applies to 
 
         administrative proceedings and issues once litigated may not be 
 
         relitigated upon the mere request of a party.  The administrative 
 
         system does provide, however, for reopening where circumstances 
 
         have changed to the extent that the original award is no longer 
 
         appropriate.  In a review-reopening proceeding the claimant has 
 
         the burden of establishing that he suffered an impairment or 
 
         lessening of his earning capacity as a proximate result of his 
 
         original injury, subsequent to the date of the prior award, which 
 
         therefore entitles him to additional compensation.  An increase 
 
         in disability may occur without a change in physical condition.  
 
         A change in economic conditions may be sufficient.  Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 348, 350 (Iowa 1980).  Deaver v. 
 
         Armstrong Rubber Co., 170 N.W.2d 455, 457 (Iowa 1969).  Stice v. 
 
         Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452 
 
         (1940).  The change of condition necessary to warrant 
 
         review-reopening must be something which was not anticipated to 
 
         occur at the time of the prior proceeding.  Meyers v. Holiday Inn 
 
         of Cedar Falls, Iowa, Iowa App. 272 N.W.2d 24, 25 (1978).  The 
 
         ground may be a circumstance that existed but was unknown and 
 
         could not have been discovered through the exercise of reasonable 
 
         diligence.  Gosek v. Garmer and Stiles Co., 158 N.W.2d 731, 735 
 
         (Iowa 1968).  It must be more than a difference of opinion of 
 
         experts.  Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 
 
         109 (1957).
 
              
 
              Claimant has testified that there has been no change in his 
 
         physical condition since the prior hearing and there is no 
 
         evidence in the record to indicate that there has been any 
 
         change, causally related to the injury, that has occurred since 
 
         the prior hearing.  The thing that has changed is that claimant 
 
         is no longer employed at the Penitentiary.  Claimant urges that 
 
         his absences from work due to headaches was one of the factors 
 
         which led to his resignation in lieu of termination.  Marshall 
 
         does not feel that the resignation in lieu of termination was 
 
         related to use of sick leave or absences resulting from the 1980 
 
         injury.  The record does not contain any of the notices, 
 
         decisions or other documents which show the basis for the action 
 
         to terminate claimant's employment.  It therefore cannot be found 
 
         that the injury of June 4, 1980, or anything connected with it, 
 
         played any part in bringing about the termination of claimant's 
 
         employment.  As previously stated, for a change to be a basis for 
 
         a review-reopening there must be a causal connection between the 
 
         change and the injury.  The injury must, in fact, be a proximate 
 
         cause of the change.  The common rule of proximate cause applies, 
 
         namely, a cause is proximate if it is a substantial factor in 
 
         bringing about the result; it need not be the only cause.  
 
         Blacksmith, 290 N.W.2d 348, 354 (Iowa 1980).   Claimant has 
 

 
         
 
         
 
         
 
         BARKER V. IOWA STATE PENITENTIARY
 
         Page   4
 
         
 
         
 
         failed to prove by a preponderance of the evidence that the 
 
         resignation from employment in lieu of termination was caused by 
 
         the injury of June 4, 1980.
 
         
 
              Claimant seeks relief on the basis that he has been unable 
 
         to obtain other employment.  He testified concerning an inability 
 
         to pass fitness tests but the evidence fails to show that such is 
 
         something that could not have been discovered through the 
 
         exercise of reasonable diligence at the time of the prior 
 
         hearing.  Claimant urges that he reapplied for the same job that 
 
         he held at the Penitentiary in March or April of 1984 and was 
 
         interviewed but was not hired.  He stated that he was told e was 
 
         not qualified for the position.
 
         
 
              Claimant urges that the release of information that is 
 
         unfavorable to him has prevented him from obtaining employment.  
 
         The settlement of the grievance as shown in exhibit F does not 
 
         specify what, if any, of claimant's sick leave history was to be 
 
         purged.  Since it cannot be determined whether or not use of sick 
 
         leave was one of the grounds for the action to terminate 
 
         claimant, it cannot be determined whether or not the sick leave 
 
         records were intended by the parties to be part of what it was to 
 
         be purged.  If a violation of that agreement did, in fact, occur 
 
         a remedy for that breach does not exist within the workers' 
 
         compensation statutes.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant has failed to demonstrate a change in his 
 
         physical condition that has occurred subsequent to the prior
 
         hearing held in this case on April 22, 1983.
 
         
 
              2.  Claimant has failed to establish that injury of June 4, 
 
         1980 was a substantial factor in bringing about any of the 
 
         changes in his economic circumstances that have occurred 
 
         subsequent to April 22, 1983.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  Claimant has failed to show a substantial change of 
 
         condition or a substantial change in circumstances that was not 
 
         within the anticipation or contemplation of the deputy 
 
         commissioner at the time of the hearing on April 22, 1983 for 
 
         which the injury of June 4, 1980 was a proximate cause.
 
         
 
              2.  Claimant has failed to make the requisite showing in 
 
         order to reopen this case under the provisions of section 
 
         86.14(2).
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding and that the claim for review-reopening of the prior 
 
         award be and is hereby dismissed on the merits with prejudice.
 
         
 
              Costs of this proceeding are assessed against defendants 
 
         pursuant to Rule 343-4.33.
 
         
 

 
         
 
         
 
         
 
         BARKER V. IOWA STATE PENITENTIARY
 
         Page   5
 
         
 
         
 
              Signed and filed this 27th day of February, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                             MICHAEL G. TRIER
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         Keokuk, Iowa 52632-1066
 
         
 
         Ms. Shirley A. Steffe
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1402.10; 1302.1
 
                                                Filed February 27, 1987
 
                                                MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DALE BARKER,
 
         
 
              Claimant,
 
                                                    FILE NO. 637946
 
         VS.
 
                                                      R E V I E W -
 
         IOWA STATE PENITENTIARY,
 
                                                   R E 0 P E N I N G
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.10; 1302.1
 
         
 
              Claimant failed to prove that he had any change of physical 
 
         or economic circumstances which warranted review of a prior award 
 
         made by the agency.  Claimant's petition for review-reopening was 
 
         denied.