BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS WUEBKER,
 
                                                  File  Nos. 758401
 
              Claimant,                                      639440
 
                                                             770365
 
         vs.
 
                                                      A P P E A L
 
         OSCAR MAYER & CO., INC.,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from decisions in arbitration and 
 
         review-reopening regarding medical benefits, temporary total 
 
         disability benefits, and permanent partial disability benefits.  
 
         Defendant cross-appealed.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding; joint exhibits 1 through 5; and 
 
         defendantOs (exhibits A through E.  Both parties filed briefs on 
 
         appeal, and claimant filed a reply brief.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              1.  The functional impairment of the left leg from the 
 
         January 4, 1983 work injury.
 
         
 
              2.  The degree of permanent partial disability as a result 
 
         of the May 1984 work injury and resulting surgery to claimant's 
 
         neck.
 
         
 
              3.  Whether claimant is entitled to section 85.27 benefits 
 
         for home care service which were required for a period of six 
 
         weeks due to his January 4, 1983 knee injury.
 
         
 
              Defendant states the following issues on cross-appeal:
 
         
 
              I.  The claimant did not sustain a compensable knee injury 
 
         on January 4, 1983.
 
         
 
             II. If it is found that the claimant did sustain a 
 

 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page   2
 
         
 
         
 
         compensable knee injury on January 4, 1983, the claimant is 
 
         entitled to the difference between the 10% permanent impairment 
 
         rating resulting from his 1979 left leg injury and the 23% 
 
         permanent impairment rating given by Dr. Wirtz following the 
 
         claimant's most recent surgery.
 
         
 
              III.  The claimant did not sustain a compensable neck 
 
         injury on May of 1984.
 
         
 
             IV.  If it is found that the claimant sustained a 
 
         compensable neck injury on May of 1984, the claimant is not 
 
         entitled to any industrial disability.
 
         
 
              V.  If it is found that [sic] the claimant sustained a 
 
         compensable injury to his left leg and neck, the employer is 
 
         entitled to a set-off for all payments made by the employer 
 
         through its nonoccupational plan or by agreement pursuant to 
 
         section 85.38 of the Iowa Code.
 
         
 
              VI. The claimant's mother-in-law is not entitled to 
 
         compensation for providing meals and administering to the needs 
 
         of the claimant and his children following his knee surgery.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The arbitration and review-reopening decisions adequately 
 
         and accurately reflect the pertinent evidence and will not be 
 
         totally reiterated herein.
 
         
 
              Briefly stated, claimant was 33 years old at the time of the 
 
         hearing, and had a high school education.  Claimant was employed 
 
         by defendant Oscar Mayer & Co., Inc.  Prior to November 21, 1979, 
 
         claimant did not have any physical problems with his left knee.
 
         
 
              On November 21, 1979, claimant slipped and twisted his knee 
 
         while at work.  Claimant sought medical attention from Peter D. 
 
         Wirtz, M.D., an orthopedic surgeon.  After an arthroscopy in 
 
         April 1980, Dr. Wirtz diagnosed an interior cruciate ligament 
 
         rupture of the left knee.  Claimant continued to experience 
 
         swelling in the left knee, and Dr. Wirtz noted instability of the 
 
         left knee, in June of 1980.  Claimant then underwent another 
 
         arthroscopy on June 17, 1980 and missed three to six weeks of 
 
         work.
 

 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page   3
 
         
 
         
 
         
 
              Dr. Wirtz advised claimant in February 1982 that 
 
         reconstructive surgery of the knee would be needed at some future 
 
         time, and opined that the surgery would eliminate instability and 
 
         increase the function of the knee.  Claimant declined surgery 
 
         because the results could not be guaranteed.  Dr. WirtzOs office 
 
         notes also show that claimant complained of knee instability 
 
         after playing basketball and softball.
 
         
 
              On May 13, 1982, Dr. Wirtz found claimant to have a loss of 
 
         strength and mobility in the knee but no loss of range of motion.  
 
         Dr. Wirtz assigned claimant a permanent partial impairment rating 
 
         of 10 percent of the left lower extremity.
 
         
 
              Martin S. Rosenfeld, M.D., an orthopedic surgeon, examined 
 
         claimant and noted that he had locking of the left knee and was 
 
         unable to play sports.  Defendant paid to claimant permanent 
 
         partial disability benefits equal to 7.5 percent of the left 
 
         lower extremity pursuant to an agreement for settlement approved 
 
         in July 1982.
 
         
 
              On January 4, 1983, claimant again injured his left knee 
 
         slipping on some ice at work while carrying a 60 pound weight.  
 
         Claimant described the pain and swelling from this injury as more 
 
         severe than the 1979 injury, involving a twisting injury as 
 
         opposed to a slip, and resulting in 90 cc of blood being removed 
 
         from the knee.
 
         
 
              Dr. Wirtz found claimant to have aggravated his earlier knee 
 
         condition.  Dr. Wirtz performed a surgical procedure for a left 
 
         knee anterior cruciate reconstruction and left knee biceps muscle 
 
         transfer on January 18, 1983.
 
         
 
              Claimant was off work from January 5, 1983 until June 13, 
 
         1983.  Claimant underwent strengthening activities with a 
 
         therapist following the surgery.  While off work, claimant's 
 
         mother-in-law, who has training as a nurse's aide, provided meals 
 
         and cared for claimant and his children for four to six weeks 
 
         without pay.
 
         
 
              Claimant testified that when he returned to work, he 
 
         experienced a weakness in his leg not present before, as well as 
 
         pain and numbness in the knee.  On June 29, 1983, claimant was 
 
         assigned a rating by Dr. Wirtz of 18 percent impairment of the 
 
         left lower extremity.  On June 20, 1984, Dr. Wirtz opined that:
 
         
 
                 In review of the AMA Guidelines for impairment, it 
 
              is noted that loss of extension in this area would be a 
 
              5% impairment in addition to the active range of motion 
 
              which would be a total of 23% impairment of the lower 
 
              extremity as related to this knee procedure.
 
         
 
         (Joint Exhibit 1, page 21)
 
         
 
              On September 12, 1984, Dr. Wirtz stated:
 
         
 
                 The patient's impairment is a 23% impairment of the 
 
              lower extremity.  My initial impairment outline on June 
 
              29 of 18% was corrected by the June 20, 1984 letter of 
 

 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page   4
 
         
 
         
 
              adding 5% more.  This oversite [sic] was due to the 
 
              fact of loss of extension.  This impairment is related 
 
              directly to the November 79 work injury.  The January 
 
              of 83 injury did not cause the increase in impairment.
 
         
 
         (Jt. Ex. 1, p. 22)
 
         
 
              However, on November 19, 1984, Dr. Wirtz  stated:
 
         
 
                 In review of this patient's case, it is noted that 
 
              his original injury occurred in November of 1979.  This 
 
              patient was treated conservatively until early 1983.  
 
              In 1983 this patient suffered an injury to the knee 
 
              that aggravated the ligaments to the point of requiring 
 
              a surgical reconstruction.
 
         
 
                 It is noted that the impairment is presently 23% of 
 
              the lower extremity.  The January, 83, injury that 
 
              required the surgery caused increase in this impairment 
 
              from the previous 10% impairment of the lower 
 
              extremity.
 
         
 
         (Jt. Ex. 1, p. 23)
 
         
 
              In his deposition of February 21, 1985, Dr. Wirtz stated:
 
         
 
              Q.  Would you agree, Doctor, that the January, 1983 
 
              injury was a cause of the need for surgery?
 
         
 
              A.  Yes.
 
         
 
              Q.  Would you agree that the surgery was a cause of the 
 
              loss of motion in that joint?
 
         
 
              A.  Yes.
 
         
 
              Q.  Would you agree that the, January, 1983 injury was 
 
              a cause of the loss of motion in that knee joint?
 
         
 
                  MR. DAHL:  Again, I'm going to object.  It assumes 
 
              that there was an injury.
 
         
 
              A.  No.
 
         
 
              Q.  Well, Doctor, if the surgery is causally related to 
 
              the January, 1983 injury and the surgery resulted in 
 
              loss of motion, why wouldnOt there be a causal 
 
              relationship between the January, 1983 injury and the 
 
              loss of motion?
 
         
 
                  MR. DAHL:  Same objection; leading.
 
         
 
              A.  The injury itself didn't cause the loss of motion 
 
              that's permanent.
 
         
 
              Q.  It was the surgery that did?
 
         
 
              A.  The surgery caused the loss of motion.
 
         
 

 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page   5
 
         
 
         
 
              Q.  Doctor, would you agree that under the AMA guides, 
 
              there are factors other than loss of motion which 
 
              account for an impairment rating to a leg as a result 
 
              of a knee injury?
 
         
 
              A.  Yes.
 
         
 
              Q.  And would one of those factors be loss of strength 
 
              and instability?
 
         
 
              A.  Loss of strength is a factor in impairment.  
 
              Instability is not an objective situation that can be 
 
              evaluated for impairment.
 
         
 
                 ....
 
         
 
              Q.  In other words, a stretched or loose or not tight 
 
              ligament?
 
         
 
              A.  Correct.
 
         
 
              Q.  Mr. Wuebker continued with the loss of strength and 
 
              instability following this surgery, did he not?
 
         
 
              A.  Yes.
 
         
 
              Q.  Doctor, would it be fair to say then that the 
 
              twenty-three percent impairment due to loss of motion 
 
              should be in addition to the ten percent impairment 
 
              that was due to loss of strength?
 
         
 
              (The reporter read back the last question.)
 
         
 
              A.  Repeat that again.
 
         
 
              (The reporter again read back the last question.)
 
         
 
              A.  The loss of fifty degrees of flexion is an eighteen 
 
              percent impairment of the lower extremity, and the loss 
 
              of twelve to fifteen degrees of extension is a further 
 
              five percent impairment of the lower extremity.  This 
 
              is based on loss of motion only.
 
         
 
              Q.  Okay.  So that the twenty-three percent would be in 
 
              addition to the ten percent that was based on loss of 
 
              strength and instability in that he had a full range of 
 
              motion following the injury of November, 1979 and prior 
 
              to the January, 1983 aggravation; would you agree with 
 
              that?
 
         
 
              A.  Based on those facts, that's true.
 
         
 
                  MR. LAWYER: I have no further questions.  Thank you 
 
              very much.
 
         
 
                             CROSS EXAMINATION
 
         
 
                 BY MR. DAHL:
 
         
 

 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page   6
 
         
 
         
 
              Q.  Doctor, your rating following the first procedures 
 
              that you performed on this patient back in 1982 was ten 
 
              percent of the left lower extremity as related to loss 
 
              of strength and episodes of instability; would that be 
 
              correct?
 
         
 
              A.  Yes.
 
         
 
              Q.  And more recently you've evaluated his impairment 
 
              at twenty-three percent of the left lower extremity 
 
              based upon the residuals of the procedures that were 
 
              performed back in 1982 as well as 1984?
 
         
 
              A.  Yes.
 
         
 
              Q.  I suppose what we're getting at is that in your 
 
              opinion is the twenty-three percent impairment of the 
 
              left lower extremity that you rated at this time a 
 
              merger and a complete rating of all of the impairment 
 
              that you feel that he has from whatever causes?
 
         
 
              A.  That was my original contention in 1984 when he was 
 
              rated.
 
         
 
              Q.  So he has twenty-three percent impairment of the 
 
              left lower extremity, which includes all of the 
 
              problems that he has, which would be instability or 
 
              loss of strength or atrophy or whatever signs or 
 
              symptoms he may have?
 
         
 
                   MR. LAWYER:  I'd object to that as a misstatement 
 
              of the record.  I think the record is clear that the 
 
              doctor now believes that the twenty-three percent due 
 
              to loss at motion is in addition to the ten percent 
 
              impairment rating that was made based on loss of 
 
              strength.
 
         
 
              Q.  You can go ahead and answer my question if you can, 
 
              Doctor.
 
              A.  In rating him on June 29, 1983 at eighteen percent 
 
              because of loss of flexion of fifty percent and in 
 
              reviewing of the AMA guidelines on 6-20-84 showing that 
 
              loss of extension is a further five percent impairment 
 
              of the lower extremity, these. two ratings then 
 
              combined to twenty-three percent were based on his 
 
              evaluation on that date; and using loss of motion 
 
              culminated in this twenty-three percent.
 
         
 
              Q.  Okay.
 
         
 
              A.  The factor of instability and muscle loss as is 
 
              previously stated in the ten percent at a prior 
 
              evaluation was assumed in June 29 of 1983 and June 20 
 
              of 1984 to be in the twenty-three percent.
 
         
 
              Q.  I suppose that's what I'm getting at, that whatever 
 
              his problems were when you made an evaluation of 
 
              impairment in 1982, that was ten percent, and after 
 
              examining and treating you arrives at all overall 
 

 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page   7
 
         
 
         
 
              impairment rating of twenty-three percent of the left 
 
              lower extremity in 1984; would that be correct?
 
         
 
              A.  Yes.
 
         
 
         (Wirtz Dep., Jt. Ex. 4, pp. 8-12
 
         
 
              In his deposition of November 21, 1985, Dr. Wirtz stated:
 
         
 
              Q.  Doctor, it's my understanding from your earlier 
 
              deposition in regard to the knee operation that the 
 
              overall permanent partial impairment of that lower 
 
              extremity was 23 percent.  Would that continue to be 
 
              your evaluation based upon your experience and training 
 
              as well as in the guides?
 
         
 
                  MR.  LAWYER:  I would object to that as a 
 
              misstatement of the record.  In the prior deposition he 
 
              said that 23 percent was based likely on loss of motion 
 
              alone. fie further testified there was 10 percent 
 
              impairment due to instability and weakness.  He further 
 
              testified that the 23 percent additional impairment was 
 
              due to loss of motion from the cruciate ligament repair 
 
              but that that did not decrease the instability.
 
         
 
              Q.  Here you go, Doctor (indicating).
 
         
 
                  MR.  LAWYER:  Take your time to read whatever 
 
     
 
         
 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page   8
 
         
 
         
 
              relevant parts that you want, but I would direct your 
 
              attention to page 9 and 10 of that deposition.
 
         
 
              A.  It states on page 10 of the deposition that the 23 
 
              percent would be in addition to a 10 percent based on 
 
              loss of strength and instability based on the facts so 
 
              stated, whereas on page 18 of the same deposition we 
 
              have a comment where the overall physical impairment of 
 
              the extremity was 23 percent.  Now, if you want me to 
 
              go some more questions, why ---
 
         
 
         
 
                  MR. LAWYER:  It's his turn.
 
         
 
         (Wirtz Dep., Jt. Ex. 5, pp. 23-24)
 
         
 
              Upon his return to work, claimant was assigned two 
 
         alternating jobs:  (1) removal of eyelids and eardrums with an 
 
         electric knife, and (2) removing nose rings and ear tags, as well 
 
         as railing, or diverting hog carcasses on the ring with excessive 
 
         hair back to the hair removal area.  Claimant stated that 
 
         operating the electric knife required work at eye level and 
 
         involved the shoulder and arm muscles, and removing ear tags and 
 
         nose rings required using his arms at chest level.  Claimant 
 
         testified the carcasses moved along the line every four or five 
 
         seconds, and the hogs would weigh 250 to 500 pounds each.  
 
         Claimant testified that approximately 15 percent of the hogs had 
 
         nose rings or ear tags that needed to be removed, and that he was 
 
         required to rail between 300 to 700 hogs per day.  Claimant 
 
         indicated that railing required him to physically push the hogs 
 
         onto another rail.
 
         
 
              Approximately one year after his return to work in May 1984, 
 
         claimant began to experience pain in his neck and right arm which 
 
         worsened over the next several weeks.  Claimant sought treatment 
 
         from Dr. Donovan, a chiropractor, and was referred to Thomas A. 
 
         Carlstrom, M.D., a neurosurgeon.  A myelogram showed a herniated 
 
         disc at the C6-7 interspace.  Dr. Carlstrom removed the disc and 
 
         then fused the C6-7 vertebra on August 17, 1984.  Following this 
 
         surgery, claimant returned to light duty on June 3, 1984 and to 
 
         full duty on November 1, 1984.  Claimant received sick pay while 
 
         off work.
 
         
 
              On December 18, 1984, Dr. Carlstrom opined that claimant had 
 
         reached maximum benefits of healing, and that he had suffered a 
 
         five percent permanent impairment of the body as a whole 
 
         following the surgery.  He also opined that claimant's condition 
 
         was entirely the result of a work injury.
 
         
 
              A videotape of the electric knife job prepared for an open 
 
         house was presented by Phil Schumacher, personnel manager for 
 
         defendant and viewed by Dr. Wirtz and Dr. Carlstrom.  Mr. 
 
         Schumacher acknowledged that the tape differed from claimant's 
 
         actual work conditions in that there was no re-rail operation 
 
         shown on the tape.  Mr. Schumacher acknowledged that the size of 
 
         the hogs vary and therefore the height at which claimant worked 
 
         would also vary, claimant performed the tasks shown on the tape 
 
         in one or two motions rather than the folic motions shown on the 
 
         tape, and that claimant's method involved cutting across a bone 
 

 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page   9
 
         
 
         
 
         whereas the person in the tape did not cut across a bone.  
 
         Claimant disputed some portions of the videotape, stating he was 
 
         not provided with an adjustable footstool for the electric knife 
 
         work, which would have changed the height at which he had to 
 
         work; the tape showed the use of a rail that kept the hogs from 
 
         turning, whereas claimant often had to turn the hogs to the 
 
         correct position before cutting; and the tape did not show hogs 
 
         with sunken eyes, which made removing eyelids more difficult.
 
         
 
              Dr. Wirtz examined claimantOs neck in September 1985.  Dr. 
 
         Wirtz opined that claimant had a degenerative disc condition that 
 
         was not caused by his work.  He stated that sleep posture could 
 
         have caused the herniated disc, or claimantOs hunting or softball 
 
         activities could have caused the condition.  Dr. Wirtz 
 
         acknowledged that Dr. Carlstrom, as a neurosurgeon, treated more 
 
         cervical disc cases than he.
 
         
 
              After viewing the videotape, Dr. Carlstrom revised his 
 
         earlier opinion that claimant's neck injury was work related to 
 
         say that claimant's work was a possible cause of his condition.  
 
         However, Dr. Carlstrom was not told of the difference between 
 
         claimant's description of his work and the work shown on the 
 
         tape.  In response to a hypothetical question, that assumed 
 
         claimant had no strenuous activities such as playing softball or 
 
         hunting during the time of the onset of pain, and that the pain 
 
         grew worse at work with loss of arm strength, and that claimant 
 
         had a history of shoulder and neck pain upon arising in the 
 
         morning since 1980, Dr. Carlstrom stated that he felt that 
 
         claimant's electric knife work was probably the cause of the 
 
         herniated disc but the exact cause could not be stated with 
 
         certainty.  He also opined that the herniated disc did not appear 
 
         to have been present for a long period of time, but probably had 
 
         developed shortly after the onset of symptoms.
 
         
 
              Claimant indicated he was not hunting or playing softball in 
 
         1984 because of his knee injury.  Claimant returned to work 
 
         following his 1984 surgery, but was then reassigned to another 
 
         work activity which involved a heavier electric knife.  Claimant 
 
         remains employed with defendant and indicated that he still 
 
         experiences pain in his right arm, cannot straighten or bend his 
 
         left knee and experiences pain in his left knee.  Claimant has 
 
         not suffered a loss of earnings.
 
         
 
              The parties stipulated to the following matters:
 
         
 
              1.  On November 21, 1979 claimant received an injury which 
 
         arose out of and in the course of his employment with Oscar 
 
         Mayer.
 
         
 
              2.  With reference to the alleged knee injuries in this 
 
         proceeding, if Oscar Mayer is held liable for such injuries, 
 
         claimant is entitled to temporary total disability or healing 
 
         period benefits from June 17, 1980 through July 13, 1980 
 
         following the November 21, 1979 work injury and from January 5, 
 
         1983 through June 12, 1983 for the alleged injury on January 4, 
 
         1983.
 
         
 
              3.  Claimant was off work from June 29, 1984 through October 
 
         31 1984. (Claimant is seeking temporary total disability or 
 

 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page  10
 
         
 
         
 
         healing period benefits for this period of time as the result of 
 
         the alleged neck injury in may 1984.)
 
         
 
              4.  The commencement date for permanent disability in the 
 
         event such benefits are awarded in this proceeding shall be 
 
         October 4, 1984 for the alleged May 1984 neck injury; July 14, 
 
         1980 for the November 21, 1979 knee injury; and June 13, 1983 for 
 
         the alleged January 4, 1983 knee injury.
 
         
 
              5.  The only claim for medical benefits in this proceeding 
 
         consists of a bill from Stephen Donovan, D.C., in the amount of 
 
         $39.65 for chiropractic care as a result of the alleged May 1984 
 
         injury; nursing care provided to claimant by his mother-in-law 
 
         following the January 1983 knee injury; and medical mileage 
 
         expenses in the amount of $237.12 for all of the alleged work 
 
         injuries.
 
         
 
              6.  With reference to the claim for expenses incurred for 
 
         medical services, the provider of the services would testify that 
 
         the fees charged for the services are fair and reasonable and 
 
         that the services constituted fair and reasonable treatment of 
 
         the injuries and defendant is not offering evidence.
 
         
 
              7.  In the event that it is finally determined that claimant 
 
         suffered a compensable work-related injury to his neck in May 
 
         1984, the defendant will indemnify claimant for any amounts he is 
 
         required to pay the health insurance carrier who paid the bills 
 
         related to the neck condition.
 
         
 
              8.  Except for the nursing services of claimant's 
 
         mother-in-law, the medical expenses for which claimant is seeking 
 
         reimbursement in this proceeding is causally connected to the 
 
         knee and neck injuries for which he is basing his claim for 
 
         compensation in this proceeding.
 
         
 
              9.  ClaimantOs rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $218.39 
 
         per week for the November 21, 1979 injury; $293.70 per week for 
 
         the January 4, 1983 alleged injury; and $224.53 for the alleged 
 
         May 1984 injury.
 
         
 
              10.  Claimant has been paid 77.171 weeks of compensation at 
 
         the rate of $218.39 per week prior to the hearing.
 
         
 
         
 
                                  APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on January 4, 1983 and June 
 
         29, 1984 which arose out of and in the course of his 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 injuries are causally related to the 
 
         disability on which he now bases his clam.  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 
 

 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page  11
 
         
 
         
 
         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 entitles 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, 2247 Iowa 900, 908, 76 N.W4.20 756, 760-761 
 
         (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, 815 
 
         (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employerOs work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 
 
         (1960).
 
         
 
              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 v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 
 
         N.W.2d 591.
 
         
 
              When a worker sustains an injury, later sustains another 
 
         injury, and subsequently seeks to reopen an award predicated on 
 
         the first injury, he or she must prove one of two things: (a) 
 
         that the disability for which he or she seeks additional 
 
         compensation was proximately caused by the first injury, or (b) 
 
         that the second injury (and ensuing disability) was proximately 
 
         caused by the first injury.  DeShaw v. Energy Manufacturing 
 
         Company, 192 N.W.2d 777, 780 (Iowa 1971).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 

 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page  12
 
         
 
         
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              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 1983).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
                The opinion of the supreme court in Olson, 255 Iowa 1112, 
 
         1121, 125 N.W.2d 251, 257 cited with approval a decision of the 
 
         industrial commissioner for the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act 
 
              means industrial disability, although functional 
 
     
 
         
 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page  13
 
         
 
         
 
              disability is an element to be considered . . . In 
 
              determining industrial disability, consideration may 
 
              be, given to the injured employee's age, education, 
 
              qualifications, experience and his inability, because 
 
              of the injury, to engage in employment for which he is 
 
              fitted. * * * *
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251.  Barton v. Nevada Poultry, 253 
 
         Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 

 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page  14
 
         
 
         
 
              Expert testimony that a condition could be caused by given 
 
         injury coupled with additional nonexpert testimony that claimant 
 
         was not afflicted with the same condition prior to the accident 
 
         or injury is sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).
 
         
 
              Iowa Code section 85.38(2) states:
 
         
 
                 In the event the disabled employee shall receive any 
 
              benefits, including medical, surgical or hospital 
 
              benefits, under any group plan covering nonoccupational 
 
              disabilities contributed to wholly or partially by the 
 
              employer, which benefits should not have been paid or 
 
              payable if any rights of recovery existed under this 
 
              chapter, charter 85A or chapter 85B, then such amounts 
 
              so paid to said employee from, any such group plan 
 
              shall be credited to or against any compensation 
 
              payments, including medical, surgical or hospital, made 
 
              or to be made under this chapter, chapter 85A or 
 
              chapter 85B.  Such amounts so credited shall be 
 
              deducted from the payments made under these chapters.  
 
              Any nonoccupational plan shall be reimbursed in the 
 
              amount so deducted.  This section shall not apply to 
 
              payments made under any group plan which would have 
 
              been payable even though there was an injury under this 
 
              chapter or any occupational disease under chapter 85A 
 
              or an occupational hearing loss under chapter 85B.  Any 
 
              employer receiving such credit shall keep such employee 
 
              safe and harmless from any and all claims or 
 
              liabilities that may be made against them by reason of 
 
              having received such payments only to the extent of 
 
              such credit.
 
         
 
              Iowa Code section 85.27 states, in part:
 
         
 
                 The employer, for all injuries compensable under 
 
              this chapter or chapter 85A, shall furnish reasonable 
 
              surgical, medical, dental, osteopathic, chiropractic, 
 
              podiatric, physical rehabilitation, nursing, ambulance 
 
              and hospital services and supplies therefor and shall 
 
              allow reasonably necessary transportation expenses 
 
              incurred for such services.  The employer shall also 
 
              furnish reasonable and necessary crutches, artificial 
 
              members and appliances but shall not be required to 
 
              furnish more than one set of permanent prosthetic 
 
              devices.
 
         
 
         
 
                                ANALYSIS
 
         
 
              Claimant alleges that he sustained a work-related injury on 
 
         January 4, 1983, when he slipped carrying some by-products.  The 
 
         testimony of Dr. Wirtz that this incident aggravated claimant's 
 
         preexisting left knee injury is uncontroverted in the record.  
 
         Claimant testified that the January 4, 1983 incident was more 
 
         painful than the November 21, 1979 injury to the left knee, and 
 
         that the January 4, 1983 incident involved more of a twisting 
 
         motion, as well as involving the claimant carrying a 60 pound 
 
         weight.  The January 4, 1983 injury required the removal of blood 
 

 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page  15
 
         
 
         
 
         from claimant's knee.  Thus, the incident of January 4, 1983 
 
         constituted a separate injury and pain was not merely an episode 
 
         of pain.
 
         
 
              The injury to claimant's left knee on January 4, 1983 
 
         resulted in surgery.  Although there is evidence in the record 
 
         that this surgery may have been inevitable, it is also clear that 
 
         the surgery was performed as a direct consequence of the January 
 
         4, 1983 injury.  The work injury of January 4, 1983 hastened the 
 
         need for the surgery and thus accelerated a preexisting condition 
 
         which claimant was able to tolerate prior to January 4, 1983.  
 
         Claimant's injury to his left knee on January 4, 1983 was an 
 
         aggravation of his preexisting left knee injury incurred on 
 
         November 21, 1979.
 
         
 
              It next must be determined to what extent claimantOs left 
 
         knee has been impaired as a result of the January 4, 1983 injury. 
 
          Claimant's left knee injury is to be evaluated under the 
 
         functional method.  The parties dispute the manner in which Dr. 
 
         Wirtz's rating of impairment is to be interpreted.  Claimant 
 
         argues that since the 23 percent rating was based on loss of 
 
         motion, and claimant had no loss of motion of the left knee prior 
 
         to January 4, 1983, that the entire 23 percent rating stems from 
 
         the January 4, 1983 injury.  Dr. Wirtz was asked for a rating of 
 
         the total impairment of the left knee and his answer was 23 
 
         percent, which he indicated includes the earlier 10 percent 
 
         rating.  Although one of Dr. Wirtz's answers may be read to imply 
 
         that the rating of 23 percent resulted solely from the January 4, 
 
         1983 incident, his testimony taken as a whole shows that he has 
 
         rated claimant's total impairment of the left knee after the 
 
         surgery at 23 percent.
 
         
 
              The extent to which claimantOs left knee condition 
 
         subsequent to January 4, 1983 was caused by a preexisting 
 
         condition must be apportioned.  Although a rating of impairment 
 
         of 10 percent of the left lower extremity was given for the 
 
         November 21, 1979 injury, the 7.5 percent contained in the 
 
         agreement of settlement between these parties and approved by 
 
         this agency is the extent of impairment caused by the November 
 
         21, 1979 injury.  Claimant's injury of January 4, 1983 is 
 
         therefore determined to have resulted in an additional 15.5 
 
         percent impairment of claimantOs left knee.
 
         
 
              Claimant has also sought additional benefits upon 
 
         review-reopening based on the November 21, 1979 injury.  However, 
 
         the record shows that the injury of January 4, 1983 was an 
 
         aggravation of the November 21, 1979 injury, as determined above.  
 
         There is no showing of a change in condition of claimantOs left 
 
         knee other than the injury of January 4, 1983.  The surgery that 
 
         resulted from the January 4, 1983 injury is attributable to the 
 
         January 4, 1983 injury and, in addition, appears to have been the 
 
         identical surgery contemplated when the agreement of settlement 
 
         on the November 21, 1979 injury was reached.  Thus, there is no 
 
         showing of a change of condition related to the original injury 
 
         since the agreement for settlement was entered and approved.  
 
         Claimant is not entitles to further benefits under 
 
         review-reopening for the November 21, 1979 injury.
 
         
 
              It next must be determined if claimant's alleged injury to 
 

 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page  16
 
         
 
         
 
         his neck in May 1984 is compensable.  Claimant's lack of prior 
 
         neck pain, his work duties involving operating an electric tool 
 
         at eye level, and pushing heavy hogs establish that claimant's 
 
         work involved extensive physical exertion of the neck and 
 
         shoulder muscles.
 
         
 
              Dr. Wirtz opined that claimant's work did not cause the 
 
         herniated disc.in his neck, but that this condition could just as 
 
         easily have been caused by claimantOs sport or hunting 
 
         activities, sleep posture or stretching.
 
         
 
              Claimant denied participating in any sports activities 
 
         during 1984.  Dr. Carlstrom's testimony indicated that claimant's 
 
         herniates disc and symptoms would develop very soon after the 
 
         onset of symptoms.  Thus, it is unlikely that claimant's 
 
         herniated disc was caused by sports activities prior to the year 
 
         claimant experienced neck pain and the herniated disc was 
 
         diagnosed.
 
         
 
              Dr. Carlstrom originally opined that claimant's neck 
 
         condition was caused by his work.  He revised that opinion after 
 
         viewing the videotape.  However, claimant established that the 
 
         videotape was not an accurate portrayal of his work duties, most 
 
         notably omitting the heavy physical movement required to rail 
 
         hogs.  In addition, claimant testified that the tape did not show 
 
         the electric knife being operated at the level he was required to 
 
         use it.  The height at which claimant had to operate the knife 
 
         and the physical movements involved in the railing portion of 
 
         claimant's work would appear to bear directly on whether those 
 
         operations would affect claimant's neck.  Finally, Dr. Carlstrom 
 
         opined pursuant to the hypothetical question that claimant's work 
 
         probably did cause his neck condition.  This opinion is couples 
 
         with claimantOs statement that he did not have neck pain prior to 
 
         May 1984.
 
         
 
              Dr. Wirtz acknowledged that Dr. Carlstrom had more 
 
         experience in neck injuries such as claimant's.  Also, Dr. 
 
         Carlstrom is more familiar with claimant's particular neck injury 
 
         in that Dr. Carlstrom operated on claimant's neck, removed a 
 
         herniated disc, and had the benefit of internal examination.  
 
         Finally, Dr. Carlstrom is a neurosurgeon.  For these reasons, the 
 
         testimony of Dr. Carlstrom will be given the greater weight.  It 
 
         is concluded that claimant did suffer a work injury to his neck 
 
         in May of 1984.
 
         
 
              Having determined that claimant suffered a work injury to 
 
         his neck in May 1984, the extent of the disability caused by that 
 
         injury must be determined.  Claimant's injury resulted in surgery 
 
         for removal of a herniated disc and fusion of two vertebrae.  He 
 
         has been given a medical impairment rating of five percent of the 
 
         whole body as a result of this surgery.  Although he has suffered 
 
         no loss of earnings, his ability to obtain employment and earn a 
 
         wage is affected by his neck condition.  He will be limited in 
 
         applying for any job that requires him to work at a level 
 
         requiring the use of his neck muscles.
 
         
 
              Claimant has a high school education, and was 33 at the time 
 
         of the hearing.  Claimant's prior work history consisted of work 
 
         requiring the ability to perform physical labor, including work 
 

 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page  17
 
         
 
         
 
         involving the neck muscles.  Based on these and all other 
 
         appropriate factors for determining industrial disability, 
 
         claimant is determined to have suffered an industrial disability 
 
         of 10 percent of the body as a whole as a result of the work 
 
         injury to his neck in May 1984.
 
         
 
              Defendant is entitled to a setoff for workers' compensation 
 
         benefits previously paid to claimant.  In addition, defendant is 
 
         entities to credit for any other payments to claimant to the 
 
         extent said payments qualify under section 85.38, The Code.  The 
 
         record describes these as Odosability benefits for 
 
         nonoccupational claims."  Defendant shall receive credit for all 
 
         payments that meet the criteria of section 85.38(2).
 
         
 
              Under section 85.27, claimant is entitled to payment for any 
 
         reasonable nursing services required by claimant.  ClaimantOs 
 
         mother-in-law was not a registered nurse or licensed practical 
 
         nurse, but did have training as a nurse's aide.  However, the 
 
         services she provided were in the nature of cooking, child care 
 
         and housekeeping rather than nursing care for claimant.  Her 
 
         services were provided gratuitously pursuant to the family 
 
         relationship.  Claimant is not entitled to payment for his 
 
         mother-in-law's services.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was in the employ of defendant at all times 
 
         material herein as a packing house laborer.
 

 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page  18
 
         
 
         
 
         
 
              2.  As a result of a work injury arising out of and in the 
 
         course of claimant's employment on November 21, 1979, claimant 
 
         ruptured the ligaments in his left knee which resulted in a 7.5 
 
         percent permanent partial impairment to the left lower 
 
         extremity.
 
         
 
              3.  On January 4, 1983 while working for defendant, claimant 
 
         suffered an injury to ms left knee by aggravating a prior 
 
         existing ruptured ligament condition.
 
         
 
              4.  As a result of his injury of January 1983, claimant 
 
         underwent surgical reconstruction of the ligaments in his left 
 
         knee to correct instability and loss of strength in the knee.
 
         
 
              5.  Prior to the January 4, 1983 injury, claimant was able 
 
         to function in his work without reconstruction surgery.
 
         
 
              6.  As a result of the reconstruction surgery in 1983 on his 
 
         left knee, the instability and loss of strength in the left knee 
 
         was corrected but claimant suffered a loss of range of motion in 
 
         the operation of his leg resulting in a total of 23 percent 
 
         permanent partial impairment to the left lower extremity.
 
         
 
              7.  In May 1984 claimant was performing strenuous work with 
 
         his arms and hands at eye level at Oscar Mayer and strenuous work 
 
         involving.the pushing of hog carcasses on a repetitive basis.
 
         
 
              8.  Claimant did not engage in hunting and softball 
 
         activities during the year 1984.
 
         
 
              9.  Sometime in May 1984 claimant awoke in the morning with 
 
         a pain in his neck and during the next several weeks the neck, 
 
         arm and shoulder pain grew markedly worse requiring medical 
 
         treatment and absence from work.
 
         
 
             10.  As a result of his work activity in May 1984, claimant 
 
         herniated the disc between the C6 and 7 level of his cervical 
 
         spine which resulted in an absence from work and fusion surgery 
 
         to repair the herniated disc.
 
         
 
             11.  As a result of the fusion surgery in 1984, claimant has 
 
         suffered a five percent impairment to his body as a whole.
 
         
 
              12.  Prior to the may 1984 work injury, claimant had no 
 
         physical impairments or ascertainable disabilities involving his 
 
         neck.
 
         
 
              13.  Prior to the work injury of May 1984, claimant was able 
 
         to perform strenuous work and lifting.
 
         
 
              14.  After his neck surgery, claimant was able to return to 
 
         work.
 
         
 
              15.  Claimant has not suffered a loss of earnings.
 
         
 
              16.  As a result of the work injury of May 1984, claimant 
 
         was absent from work for treatment of his cervical spine 
 
         condition from June 29, 1984 through October 3, 1984.
 

 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page  19
 
         
 
         
 
         
 
              17.  Pursuant to the parties' stipulation, claimant's rate 
 
         of compensation is $293.70 per week for the work injury of 
 
         January 4, 1983 And $224.53 per week for the work injury of May 
 
         1984.
 
         
 
              18.  Claimant has incurred medical mileage expenses for the 
 
         treatment of his work injuries herein in the amount of $237.12.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that on January 4, 1983 he suffered an injury arising out of and 
 
         in the course of his employment at Oscar Mayer to his left lower 
 
         extremity.
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that in May 1984 he suffered an injury to his neck arising out of 
 
         and in the course of his employment at Oscar Mayer.
 
         
 
              As a result of the injury of January 4, 1983, claimant has a 
 
         15.5 percent impairment of the left lower extremity.
 
         
 
              As a result of claimant's injury in May 1984, claimant has a 
 
         10 percent permanent partial disability to the body as a whole.
 
         
 
              Defendant is entitled to credit for workers' compensation 
 
         payments previously paid, and for nonoccupational benefits 
 
         previously paid that comply with section 85.38 of the Code.
 
         
 
              Claimant is not entitled to compensation for the services of 
 
         his mother-in-law.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed in part 
 
         and reversed in part.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant shall pay healing period benefits from June 
 
         17, 1980 through July 13, 1980 and permanent partial disability 
 
         benefits in the amount of sixteen point five (16.5) weeks from 
 
         July 14, 1980 at the rate of two hundred eighteen and 39/100 
 
         dollars ($218.39) per week.
 
         
 
              That defendant shall pay healing period benefits from 
 
         January 5, 1983 through June 12, 1983 and permanent partial 
 
         disability benefits in the amount of thirty-four point one (34.1) 
 
         weeks from June 13, 1983 at the rate of two hundred ninety-three 
 
         and 70/100 dollars ($293.70) per week as a result of claimant's 
 
         January 4, 1983 injury.
 
         
 
              That defendant pay temporary total disability benefits from. 
 
          June 29, 1984 through October 3, 1984 at the rate of two hundred 
 
         twenty-four and 53/100 dollars ($224.53) per week.
 
         
 
              That defendant pay permanent partial disability benefits in 
 

 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page  20
 
         
 
         
 
         the amount of fifty (50) weeks from October 4, 1984 at the rate 
 
         of two hundred twenty-four and 53/100 dollars ($224.53) per week 
 
         as a result of claimant's May 1984 injury.
 
         
 
              That defendant shall receive a credit against this award of 
 
         weekly benefits for previous payments of weekly compensation over 
 
         seventy-seven point one seven one (77.171) weeks at the rate of 
 
         two hundred eighteen and 39/100 dollars ($218.39).
 
         
 
              That defendant shall pay to claimant the sum of two hundred 
 
         thirty-seven and 12/100 dollars ($237.12) for medical mileage 
 
         expenses and shall perform as stipulated with reference to the 
 
         expenses for the May 1984 injury.
 
         
 
              That defendant shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30 utilizing the stipulated 
 
         commencement dates for permanent partial disability.
 
         
 
              That defendant shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 20th day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                  DAVID E. LINQUIST
 
                                                  INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Jim Lawyer
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th St., Suite 500
 
         West Des Moines, Iowa 50302
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa 50312
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                      1806; 3301; 2905
 
                                                      1803; 1701; 2505
 
                                                      Filed 6-22-88
 
                                                      David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS WUEBKER,
 
         
 
                                                  File  Nos.  758401
 
              Claimant,                                       639440
 
                                                              770365
 
         vs.
 
                                                     A P P E A L
 
         OSCAR MAYER & CO., INC.,
 
                                                   D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1806; 3301
 
         
 
              Claimant had a prior knee injury that resulted in a 
 
         settlement approved by the agency awarding 7.5% of the left lower 
 
         extremity, even though the medical evidence indicated the 
 
         impairment was 10% of the left lower extremity.  At this hearing, 
 
         dealing with a new injury to the same knee, it was held that 
 
         apportionment was limited to the prior approved 7.5.
 
         
 
         2905
 
         
 
              Claimant's new injury to his left knee was held to be an 
 
         aggravation of a preexisting condition and benefits were awarded. 
 
          The new injury was not a change of condition under 
 
         review-reopening.
 
         
 
         1803
 
         
 
              Claimant continued to work at the same job and at the same 
 
         wages subsequent to his injury.  Although he had suffered no loss 
 
         of earnings, he had suffered a loss of earning capacity as 
 
         evidenced by a surgery, a rating of impairment of 5%, and 
 
         restrictions of work postures.  Claimant awarded 10% industrial 
 
         disability.
 
         
 
         1701
 
         
 
              Defendants given credit for payments labeled "disability
 
         benefits for nonoccupational claims" to the extent they comply 
 
         with the criteria of section 85.38(2).
 

 
         
 
         
 
         
 
         WUEBKER V. OSCAR MAYER & CO., INC.
 
         Page   2
 
         
 
         
 
         
 
         2505
 
         
 
              Claimant sought payment under section 85.27 for nursing 
 
         services provided by his mother-in-law during his 
 
         convalescence.  However, payment denied because mother-in-law, 
 
         a nurse's aide rather than a nurse, provided only cooking, 
 
         child care and housekeeping services on a gratuitous basis.
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         BRET WALTERS,
 
              Claimant,
 
         
 
         VS.
 
         
 
         SHERWIN-WILLIAMS CO.,
 
                                             File No. 642727
 
             Employer,
 
                                               R U L I N G
 
         and
 
         
 
         INA,
 
         
 
             Insurance Carrier,
 
             Defendants.
 
         ___________________________________________________________________
 
         
 
         
 
              On December 15, 1987 claimant filed a motion to extend 
 
         deadlines.  The defendants having filed a resistance the same 
 
         comes on for determination.
 
         
 
              This action was originally filed by claimant on July 13, 
 
         1984.  On December 1, 1986 this agency was informed that claimant 
 
         had a new attorney.  On September 14, 1987 the undersigned filed 
 
         a notice of automatic dismissal for lack of prosecution. on 
 
         October 6, 1987 the undersigned filed an order giving claimant 60 
 
         days to obtain and serve any reports on defendants and take any 
 
         further depositions.  Now, 71 days after that order claimant asks 
 
         for an extension of deadlines.  Claimant has not followed the 
 
         order of the undersigned.  Good cause has not been shown for 
 
         failure to follow the order,
 
         
 
              WHEREFORE, claimant's motion is denied.  Claimant will not 
 
         be allowed to present into evidence any medical reports obtained 
 
         or served after December 4, 1987.  Claimant will not be allowed 
 
         to present into evidence any deposition taken after December 4, 
 
         1987.
 
         
 
         
 
              Signed and filed this 17th day of December, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                DAVID E. LINQUIST
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                                 
 
                                                          
 
         WALTERS V. SHERWIN-WILLIAMS CO.
 
         Page 2
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Tom Riley
 
         Mr. Thomas J. Currie Attorneys at Law
 
         3401 Williams Avenue NE
 
         P.O. Box 998
 
         Cedar Rapids, Iowa 52406
 
         
 
         Mr. Raymond R. Stefani
 
         Mr. Raymond R. Stefani II
 
         Attorneys at Law
 
         200 American Bldg.
 
         101 Second Street SE
 
         Cedar Rapids, Iowa 52401
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JOHN A. GALLARDO,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                          File No. 643357
 
         
 
         THE FIRESTONE TIRE & RUBBER
 
         
 
         COMPANY,                                           A P P E A L
 
         
 
              Employer,                                   D E C I S I 0 N
 
         
 
         and
 
         
 
         CIGNA INA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from a review-reopening decision awarding 
 
         permanent partial disability benefits based on 50 percent 
 
         industrial disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing and joint exhibits 1 through 51.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue for determination on appeal is the extent of 
 
         claimant's industrial disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              On July 30, 1980 claimant sustained an injury to his low 
 
         back while he was pulling and twisting to unstick an inner liner 
 
         used in tire building.
 
         
 
              Claimant states that he was placed on light duty by John E. 
 
         Gustafson, M.D., the company doctor, for about two weeks and then 
 
         was allowed to return to limited tire building.  Dr. Gustafson 
 
         referred claimant to John T. Bakody, M.D.
 
         
 
              Dr. Bakody placed claimant in the hospital for traction 
 
         therapy on August 31, 1980.  Claimant was discharged on 
 
         September 6, 1980.  Dr. Bakody rehospitalized claimant for a 
 
         myelogram on November 30, 1980.  The myelogram revealed 
 
         asymmetries in nerve 
 

 
         
 
         
 
         
 
         GALLARDO V. THE FIRESTONE TIRE & RUBBER COMPANY
 
         Page   2
 
         
 
         
 
         root filling at the L4-5 level.  Dr. Bakody performed a lumbar 
 
         laminectomy at L4-5 level on December 4, 1980.  Joint exhibit 
 
         18 is a letter to Dr. Bakody from Sandra Baker, claims 
 
         representative for defendant, CIGNA, requesting that Dr. Bakody 
 
         advise defendant of claimant's permanent impairment rating.  
 
         Dr. Bakody wrote his reply on the bottom of this letter:
 
         
 
              8-21-81.
 
         
 
                   1   Many physicians use figure of 15-20% to describe 
 
              perm. phys. impairment in such cases.
 
                                          -
 
                   2   I have no argument c these figures.
 
         
 
                   3   This then needs to be related to his industrial 
 
              capacity--ability to work or incapacity.
 
         
 
                                                 /s/ J. T. Bakody, M.D.
 
         (Joint Exhibit 18)
 
         
 
              Claimant recalls that he returned to work following the 1980 
 
         laminectomy some time in July 1981.  Claimant testified that 
 
         defendants put him to work as a janitor doing what Dr. Bakody had 
 
         told him not to do--repetitive bending and lifting.  Claimant 
 
         states that he was sent outside the plant to pick up papers and 
 
         pull weeds and that when he complained about that job he was sent 
 
         inside to scrape pieces of rubber off the floors.  Claimant 
 
         indicated that he was taken off work by Dr. Bakody and placed in 
 
         a physical therapy program involving swimming and exercise until 
 
         January 1982.  Claimant returned to work in a light duty job 
 
         rerolling liners for two to three months.  Claimant testified 
 
         that he then returned to building tires--the same thing he was 
 
         doing in July 1980.  He states that he remained in the tire 
 
         building job until February 1983.
 
         
 
              Dr. Bakody performed a second lumbar laminectomy at the L4-5 
 
         level February 10, 1983.  Dr. Bakody's postoperative diagnosis 
 
         was "lumbar disc syndrome with spinal stenosis."  See Joint 
 
         exhibit 25, page 11.
 
         
 
              Claimant relates that following the 1983 laminectomy he 
 
         returned to work in August 1983.  Claimant indicated that 
 
         initially his job was washing water fountains; then handing out 
 
         tickets for tire fabric and stock; next watching the incinerator 
 
         operator to make sure he did not get hurt; he was assigned to 
 
         tire repair; operating a forklift; and finally operating an 
 
         excrutor machine.  Claimant testified that while he was 
 
         performing the excrutor job he became progressively worse and 
 
         left that job in October 1985.  Claimant stated that after he 
 
         left the excrutor job, he was told that there was no work within 
 
         his restrictions. and that he should just sit down and stay in 
 
         the general area.  Claimant testified that he now is on 
 
         vacation.
 
         
 
              Joint exhibit 40 contains numerous copies of employment 
 
         examination notices which reflect various work restrictions 
 
         placed on claimant by Dr. Gustafson.  Page 62 of exhibit 40 
 
         contains the work limitations placed on claimant on October 3, 
 
         1985.  Those restrictions were a 15 pound weight limit and no 
 

 
         
 
         
 
         
 
         GALLARDO V. THE FIRESTONE TIRE & RUBBER COMPANY
 
         Page   3
 
         
 
         
 
         repetitive bending or twisting.
 
         
 
              Dr. Bakody opines in a letter to Dr. Gustafson dated 
 
         February 28, 1984 that he does not want claimant to build tires 
 
         for about a year.  See Joint exhibit 5.  In a letter to defense 
 
         counsel dated June 21, 1985 Dr. Bakody states the following 
 
         concerning claimant's current permanent impairment:
 
         
 
              Mr. Gallardo has a permanent physical impairment of the low 
 
              back as related to the body as a whole and has had two 
 
              operations on the low back subsequent to his 1980 injury.  
 
              Many physicians use the figure of around 20-22 percent to 
 
              represent such a physical impairment which then must be 
 
              related to his industrial capacity or lack thereof.  He 
 
              continues to be under my care, continues to have discomfort 
 
              and I cannot be more definite than this at this time.
 
         
 
         (Joint Ex. 2)
 
         
 
              Claimant testified that he is 51 years old and did not 
 
         graduate from high school.  He also states that he served in the 
 
         marines; that he completed an aviation machinist course; and that 
 
         he has taken accounting courses at AIB.  Other than his 
 
         employment with defendant-Firestone claimant discloses that he 
 
         has had several part-time jobs including working for Sears, 
 
         owning and operating a bar, working for Dr. Overton as a 
 
         handyman, selling chain link fences, installing sidewalks and 
 
         driveways, and driving a school bus.  Claimant reveals that he 
 
         owns several investment properties but is getting rid of them 
 
         because he is unable to maintain them.  Claimant also is 
 
         financially assisting his wife in the operation of a restaurant.
 
         
 
              James A. Allpress, defendants' workers' compensation 
 
         coordinator, testified that work is available with claimant's 
 
         restrictions but that he cannot say exactly what that work could 
 
         be.
 
         
 
              A. C. Wheeler, supervisor of the excrutor area, testified 
 
         that he supervised claimant when he was on the excrutor job.  
 
         Wheeler does not recall what claimant's restrictions were but 
 
         indicated that he usually found something for claimant to do.  He 
 
         stated claimant's performance was generally satisfactory except 
 
         when claimant was working as an excrutor operator.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 

 
         
 
         
 
         
 
         GALLARDO V. THE FIRESTONE TIRE & RUBBER COMPANY
 
         Page   4
 
         
 
         
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
                                        
 
                                     ANALYSIS
 
         
 
              As indicated earlier the issue presented by the parties is 
 
         the extent of claimant's industrial disability.  The deputy made 
 
         a finding that claimant was 50 percent industrially disabled.  
 
         The majority of evidence would support such a rating.  However, 
 
         defendants' efforts to keep claimant employed lessens claimant's 
 
         loss of earning capacity.  Although the deputy may have 
 
         considered defendants' efforts, it does not appear that he 
 
         considered it when making the actual determination as to extent 
 
         of disability.  It is determined claimant has an industrial 
 
         disability of 40 percent.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant is 51 years old.
 
         
 
              2.  Claimant completed the tenth grade in about 1951 and has 
 
         not earned a high school diploma or GED.
 
         
 

 
         
 
         
 
         
 
         GALLARDO V. THE FIRESTONE TIRE & RUBBER COMPANY
 
         Page   5
 
         
 
         
 
              3.  Claimant started working for Firestone in May 1952 and 
 
         then joined the marines; he was discharged from the marines in 
 
         August 1955.
 
         
 
              4.  Claimant returned to Firestone after discharge from the 
 
         marines; at Firestone he performed and still performs a number of 
 
         manual labor jobs.
 
         
 
              5.  Claimant injured his back at Firestone on July 30, 1980. 
 
         had back surgery on December 4, 1980.
 
         
 
              6.  Claimant had back surgery on December 4, 1980.
 
         
 
              7.  Claimant had back surgery February 10, 1983.
 
         
 
              8.  Claimant currently has low back pain and, therefore, has 
 
         heavy manual labor tasks such as tire building.
 
         
 
              9.  Claimant has sustained some permanent partial impairment 
 
         whole as a result of his work-related injury on Firestone.
 
         
 
             10.  Claimant is a poor candidate for additional formal 
 
         education or retraining.
 
         
 
             11.  Claimant is well-motivated to improve his physical 
 
         condition and is well-motivated to remain employed at Firestone.
 
         
 
             12.  Defendants have made efforts to keep claimant gainfully 
 
         employed.
 
         
 
             13.  Claimant's industrial disability is 40 percent.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's injury of July 30, 1980 is causally related to 
 
         his claimed disability.
 
         
 
              Claimant is entitled to a total of 200 weeks of permanent 
 
         partial disability benefits at a weekly rate of $309.67 with 
 
         defendants being given credit for the 139 weeks of such benefits 
 
         that have already been paid.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay two hundred (200) weeks of permanent 
 
         partial disability benefits at a rate of three hundred nine and 
 
         67/100 dollars ($309.67).
 
         
 
              That defendants pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendants be given credit for benefits already paid to 
 
         claimant.
 

 
         
 
         
 
         
 
         GALLARDO V. THE FIRESTONE TIRE & RUBBER COMPANY
 
         Page   6
 
         
 
         
 
         
 
              That defendants pay the costs of this proceeding including 
 
         the cost of the transcription of the hearing proceeding.
 
         
 
              That defendants shall file claim activity reports, pursuant 
 
         to Division of Industrial Services Rule 343-3.1(2), as requested
 
         by the agency.
 
         
 
         
 
              Signed and filed this 21st day of October, 1987.
 
         
 
         
 
         
 
                                                  DAVID E. LINQUIST
 
                                                  INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         P.O. Box 65355
 
         West Des Moines, Iowa 50265
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa 50312
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40 - 1803
 
                                                 Filed October 21, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JOHN A. GALLARDO,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                       File No. 643357
 
         THE FIRESTONE TIRE & RUBBER
 
         COMPANY,                                        A P P E A L
 
         
 
              Employer,                                D E C I S I 0 N
 
         
 
         and
 
         
 
         CIGNA INA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40 - 1803
 
         
 
              Deputy's determination of 50 percent industrial disability 
 
         reduced to 40 percent.  Defendants' efforts to keep claimant 
 
         employed lessens claimantOs loss of earning capacity.
 
 
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN A. GALLARDO,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 643357
 
         THE FIRESTONE TIRE & RUBBER
 
         COMPANY,
 
                                                   A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
                                                     F I L E D
 
         CIGNA INSURANCE COMPANY,
 
                                                   DEC 29 1989
 
              Insurance Carrier,
 
              Defendants.                 IOWA INDUSTRIAL COMMISSIONER
 
              
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening decision denying 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on July 30, 1980.  The record on appeal consists of the 
 
         transcript of the review-reopening proceeding and joint exhibits 
 
         1 through 55.  Both parties filed briefs on appeal.  Claimant 
 
         filed a reply brief.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              I.  A change of condition occurred between the hearing on 
 
              November 8, 1985, and the date of the hearing on April 4, 
 
              1988, in the claimant's industrial disability which would 
 
              allow additional benefits to be awarded to the claimant 
 
              based upon how the injury has affected his ability to earn.a 
 
              living.
 
         
 
              II.  The extent of industrial disability to this claimant 
 
              due to his worker's [sic] compensation injury of July 30, 
 
              1980, is permanent total disability which should be 
 
              recognized and awarded to the claimant herein.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be set forth 
 
         herein.
 
         
 
                                  APPLICABLE LAW
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The threshold question to be addressed is whether claimant 
 
         has shown a change of condition since the prior award of 
 
         benefits. A review of the record shows that claimant's physical 
 
         condition is essentially the same as it was at the time of the 
 
         prior hearing. However, a change of condition can occur without a 
 
         change in physical condition.  Claimant asserts that he has 
 
         suffered an economic change of condition in that he is no longer 
 
         employed by Firestone.
 
         
 
              At the time of his injury, claimant was a tire builder. 
 
         After his injury, claimant attempted to return to tire building 
 
         but found he was unable to perform those duties.  Claimant then 
 
         underwent surgery, and was off work for six months.  When he 
 
         returned to work in July 1981, claimant was assigned to various 
 
         jobs, including pulling weeds, working as a janitor, and 
 
         eventually returning to tire building.  Claimant's back 
 
         condition worsened, and a second surgery was performed in 
 
         February 1983.
 
         
 
              Claimant returned to work again, and was then assigned to 
 
         clean water fountains and other janitor work.  Following this, 
 
         claimant was assigned to look for defects in tires, which did 
 
         require lifting tires; operating a forklift; and operating a 
 
         machine which weighed tires.  In October 1985, he was assigned to 
 
         a job which claimant himself described as "doing nothing." 
 
         Claimant then went on vacation just prior to the first 
 
         review-reopening hearing.  At the time of the original 
 
         review-reopening hearing in October 1985, claimant asserted he 
 
         was not able to perform any jobs at Firestone.
 
         
 
              The deputy's original review-reopening decision, which 
 
         established claimant's industrial disability at 50 percent, 
 
         noted:
 
         
 
              Claimant's current employment with Firestone is a 
 
              consideration in assessing his industrial disability; his 
 
              current employment lessens his industrial disability and 
 
              defendants, resulting liability.
 
         
 
              Shortly after the original review-reopening hearing, 
 
         claimant attempted to return to work in November of 1985.  
 
         Claimant worked for two and one-half weeks, then concluded he 
 
         would retire. Claimant later sought and received a disability 
 
         retirement pension.  Claimant also filed a second 
 
         review-reopening seven days after filing an appeal of the 
 
         deputy's original review-reopening decision.  The appeal decision 
 
         reduced claimant's award to 40 percent industrial disability.  
 
         The appeal decision concluded that although the defendants, 
 
         efforts to keep claimant employed were noted by the deputy, they 
 
         were not taken into consideration in determining industrial 
 
         disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant correctly points out that a physical change of 
 
         condition is not necessary to justify a further award on 
 
         review-reopening, and that a loss of earnings caused by the work 
 
         injury and not contemplated by the original award may justify a 
 
         further award of benefits.  However, in this case claimant, at 
 
         the time of the first review-reopening hearing, was asserting 
 
         that he was not employable at Firestone.  Defendant employer was 
 
         clearly having difficulty placing claimant in a position 
 
         consistent with his physical restrictions, finally resulting, at 
 
         the time of hearing, in claimant being paid to do nothing at all.
 
         
 
              The original review-reopening decision and the later appeal 
 
         decision clearly utilized defendants' efforts to keep claimant 
 
         employed as a factor.  There is no showing that those efforts on 
 
         the part of defendant changed or altered after the decision was 
 
         rendered.  Rather, claimant unilaterally concluded that his 
 
         physical impairment made it dangerous for him to work near 
 
         equipment after his leg "gave out" at work.
 
         
 
              Claimant testified that he retired following the incident 
 
         where his leg "gave out" because he felt that this made it 
 
         dangerous for himself and others to be around equipment.  
 
         Although claimant's stated reasons for retiring--avoiding further 
 
         injury to himself and others--is commendable, it does not justify 
 
         the remedy utilized by claimant, i.e. retiring from work.  There 
 
         is no indication that claimant requested his employer to find him 
 
         an alternative position that would not bring him into contact 
 
         with equipment.  Claimant concluded, on his own, that retirement 
 
         was necessary.  "Defendants are only responsible for the 
 
         reduction of claimant's earning capacity which was caused by his 
 
         injury, and are not responsible for the reduction of earnings 
 
         claimant will actually have because he voluntarily resists return 
 
         to the work force."  Williams v. Firestone Tire and Rubber Co., 
 
         III Iowa Industrial Commissioner Report 279 (Review-reopening 
 
         decision, September 28, 1982).
 
         
 
              The fact that claimant is no longer employed by Firestone is 
 
         a non-physical change of condition.  However, in order to justify 
 
         the award of further or lesser benefits, that change of 
 
         conditions must be shown to have been causally related to 
 
         claimant's work injury.  Claimant subjectively considers his 
 
         decision to retire to have been prompted by his injury, but there 
 
         is no objective showing to corroborate his decision.
 
         
 
              In addition, even if claimant's decision to retire was 
 
         caused by his work injury, it appears that those physical factors 
 
         existed at the time of the first,review-reopening hearing.  
 
         Indeed, in light of the fact that claimant's petition for a 
 
         second review-reopening was filed within a very short time after 
 
         the first review-reopening decision was issued, it is difficult 
 
         to conclude that the physical factors that claimant says prompted 
 
         his decision to retire did not exist at the time of the first 
 
         hearing.  This is not a case where, after an award of benefits, a 
 
         claimant experiences a non-physical change of condition, such as 
 
         a job loss, due to a result of the work injury that was not 
 
         foreseen at the time of the hearing.  Those circumstances might 
 
         very well justify a further award of benefits.  Rather, here 
 
         claimant's physical condition did not change in the short time 
 
         between the first hearing and the filing of the second petition.  
 
         All that changed was claimant's decision to retire, which was his 
 
         voluntary act and may or may not have been based on his injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              If anything, claimant's decision to retire without good 
 
         cause related to his injury casts doubt on his motivation. if it 
 
         had been known at the time of the first hearing that claimant 
 
         would be deciding to retire so soon, it is very possible the 
 
         award of industrial disability would have been less.  If such an 
 
         event were considered a change of condition, which it is not, 
 
         claimant's benefits might be reduced as opposed to increased.
 
         
 
              The original review-reopening decision and appeal decision 
 
         were based in part on the employer's efforts to provide 
 
         substitute employment to claimant.  That factor has not changed 
 
         since the original review-reopening decision.  All that has 
 
         changed is claimant's decision to retire.  Claimant has failed to 
 
         show a change of condition subsequent to the award caused by his 
 
         original injury.  The change of condition, if any, that has 
 
         occurred came about as a result of claimant's own decision to 
 
         retire.
 
         
 
              Because claimant has failed to establish a change of 
 
         condition since the original award of benefits, claimant's second 
 
         issue will not be addressed.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on July 30, 1980.
 
         
 
              2.  Claimant underwent back surgery on December 4, 1980 and 
 
         again on February 10, 1983 as a result of the work injury.
 
         
 
              3.  Claimant returned to work in August 1983 doing a variety 
 
         of light duty jobs and perceived that after this he had gotten 
 
         considerably worse.
 
         
 
              4.  Claimant went on vacation and advised his physician in 
 
         October 1985 that he was not employable with defendant employer.
 
         
 
              5.  Claimant returned to work for a short period of time in 
 
         November 1985 and never returned to the plant.
 
              
 
              6.  Claimant is currently receiving a monthly pension.
 
              
 
              7.  Claimant's primary physician found no objective change 
 
         in claimant's condition from 1985 to the present.
 
              
 
              8.  Claimant's physical condition has not changed.
 
              
 
              9.  Claimant currently has the same physical complaints he 
 
         had at the time of tho prior award.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has failed to sustain his burden of proof to show a 
 
         change in condition which would entitle him to any further 
 
         benefits under the Iowa Workers' Compensation,Act.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing further from these proceedings.
 
         
 
              That each party is assessed their own costs with defendants 
 
         assessed the costs of the attendance of the court reporter and 
 
         claimant assessed the cost of the transcription of the hearing 
 
         proceeding pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              Signed and filed this 29th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th St., Suite 500
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       2905
 
                                       Filed December 29, 1989
 
                                       David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN A. GALLARDO,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 643357
 
         THE FIRESTONE TIRE & RUBBER
 
         COMPANY,
 
                                                   A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         CIGNA INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2905
 
         
 
              Affirmed deputy's determination that claimant failed to show 
 
         a change of condition.  Claimant, at the time of his first 
 
         hearing, asserted to his doctor he could not perform any jobs for 
 
         his employer.  Employer had kept claimant working at various 
 
         light duty jobs, and at time of hearing claimant acknowledged he 
 
         was being paid to do "nothing."  After the award of benefits, 
 
         claimant worked for two more weeks, then unilaterally decided to 
 
         retire early, allegedly due to his own subjective view that it 
 
         was dangerous for him to work around equipment because of his 
 
         condition.  Claimant then immediately filed a second 
 
         review-reopening nearly simultaneous with filing an appeal of the 
 
         first award.  Held that claimant had failed to show a change of 
 
         condition.  The medical evidence clearly established no physical 
 
         change of condition from the time of the first hearing.  Claimant 
 
         relied on a non-physical change of condition based on the fact 
 
         that he was no longer working for his employer as he was at the 
 
         time of the first hearing.  It was noted that claimant, at the 
 
         time of the first hearing, was alleging he could not perform any 
 
         work for defendant employer; that claimant's retirement was his 
 
         own subjective decision and was not shown to have been 
 
         necessitated by his injury; and that defendants, willingness to 
 
         keep claimant employed had not changed.  Any non-physical change 
 
         of condition that has occurred since the first hearing was not 
 
         caused by claimant's injury but by claimant's own change of 
 
         plans.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN A. GALLARDO,
 
         
 
              Claimant,                         File No. 643357
 
         
 
         vs.                                     R E V I E W
 
         
 
         THE FIRESTONE TIRE & RUBBER          R E 0 P E N I N G
 
         COMPANY,
 
                                                D E C I S I 0 N
 
         vs.
 
         
 
         CIGNA INSURANCE COMPANY,
 
         
 
              Insurance Carrier
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by John 
 
         Gallardo, claimant, against Firestone Tire & Rubber Company, 
 
         employer, and Cigna Insurance Company, insurance carrier, to 
 
         recover additional benefits under the Iowa Workers' Compensation 
 
         Act as a result of an injury sustained on July 30, 1980.  This 
 
         matter came on for hearing before the undersigned deputy 
 
         industrial commissioner April 4, 1988.  The record was considered 
 
         fully submitted at the close of the hearing The record in this 
 
         case consists of the testimony of claimant, Leona Martin, Robert 
 
         Fuller, and Kathleen Schauwecker; joint exhibits 1 through 55; 
 
         and the exhibits and transcript from the proceedings held 
 
         November 8, 1985.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved April 4, 1988, the following issues are presented for 
 
         determination:
 
         
 
              1.  Whether there has been a change of claimant's condition 
 
         to warrant review-reopening and, if so, whether claimant's 
 
         industrial disability has changed;
 
         
 
              2.  Claimant's entitlement to additional temporary total 
 
         disability or healing period benefits;
 
         
 
              3.  The applicability of the odd-lot doctrine; and,,
 
         
 
              4.  DefendantsO entitlement to credit under Iowa Code 
 
         section 85.38 for previous payment of benefits under a 
 
         nonoccupational group plan.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant began employment with defendant employer in May 
 
         1952 where he performed services as a janitor, in the calendar 
 
         department and as a tire builder from 1969 until he sustained an 
 
         injury which arose out of and in the course of his employment on 
 
         July 30,1980 while trying to unstick an innerliner used in tire 
 
         building.  Claimant explained he felt immediate pain in his side 
 

 
         
 
         
 
         
 
         GALLARDO V. THE FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE   2
 
         
 
         and back, lost all feeling in his left leg and that he went to 
 
         see the plant nurse and then John E. Gustafson, M.D., the company 
 
         doctor, who sent him home for three days and returned him to 
 
         light duty work for approximately one month.  Claimant then saw 
 
         John T. Bakody, M.D., who recommended hospitalization for 
 
         traction therapy.  Claimant underwent a laminectomy at L4-5 on 
 
         December 4, 1980 and Dr. Bakody rated claimant as having a 15-20 
 
         percent permanent partial impairment.  Claimant returned to work 
 
         in approximately July 1981 as a janitor which he felt violated 
 
         Dr. Bakody's restrictions against repetitive bending and lifting.  
 
         Claimant recalled he told Dr. Gustafson he could not do this work 
 
         and that he was feeling progressively worse.  Dr. Bakody took 
 
         claimant off work and put him into a swim exercise program which 
 
         claimant felt helped his condition.  Claimant testified he 
 
         returned to work in approximately January 1982, first doing the 
 
         job of rerolling liners and then as a tire builder at a "limited 
 
         pace."  Claimant offered that Dr. Bakody operated on him again in 
 
         February 1983 and that after the second surgery, he felt "pretty 
 
         good" in that he no longer had leg pain and had minimal back 
 
         pain.  Claimant returned to work following this procedure in 
 
         August 1983 doing a variety of light duty jobs until the employer 
 
         ran out of work for him and he was doing "nothing" described as 
 
         sitting around drinking coffee and reading the paper for three or 
 
         four weeks until Dr. Bakody took him "out of the plant."  
 
         Claimant testified that during this period he "had gotten 
 
         considerably worse."
 
         
 
              Claimant testified that after the hearing of November 1985 
 
         he returned to the plant, cleaned two machines over the course of 
 
         two and a half to three weeks and "that was it" and he has not 
 
         been back in the plant since.  Claimant testified he is "worse," 
 
         has "limited mobility," that he has pain in both legs and his 
 
         back and that if he is on his feet any length of time he cannot 
 
         do anything.  Claimant estimated that he can stand one and a half 
 
         to two hours on a cement floor and three on a carpeted floor; 
 
         that he can sit for two or three hours but doing so results in a 
 
         OburnO in his back; that lifting anything more than 15-20 pounds 
 
         also causes a OburnO; and that he can bend onetime only.  
 
         Claimant explained that his stamina wears off during the course 
 
         of a day, that he cannot walk Overy farO (describing a mile as 
 
         Otoo muchO) and that he requires rest during the day although not 
 
         every day explaining he has OgoodO and ObadO days.  Claimant 
 
         offered that his wife owns a restaurant in West Des Moines and 
 
         acknowledged he goes down there and keeps himself busy by turning 
 
         on machinery and the thermostat each day before anybody else gets 
 
         there and getting the day's receipts to put in the notebook for 
 
         the bookkeeper, looking at expenditures, going through inventory, 
 
         ordering what is needed, sometimes filling orders, sometimes 
 
         cooking (although "not that much" even though he.described 
 
         himself as a "good cook") and running errands.  Claimant 
 
         testified that he receives no salary and that some days he works 
 
         five to six hours throughout the day and some days not at all if 
 
         he does not feel like doing anything or if he is at home or 
 
         visiting friends.  Claimant offered he is active at the Masonic 
 
         Lodge and Shrine and that while he had been a "workaholic" he 
 
         "can't hardly do anything" now.  Claimant testified he does not 
 
         sleep during the night estimating that four hours is a good night 
 
         although not always getting four hours straight.  Claimant 
 
         testified that he retired from defendant employer's employment in 
 
         January 1987 because he was medically unable to work anymore.
 

 
         
 
         
 
         
 
         GALLARDO V. THE FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE   3
 
         
 
         
 
              On cross-examination, claimant testified that job selection 
 
         with defendant employer is based on seniority and that when 
 
         claimant complained about any job he was doing defendant employer 
 
         found something else for him to do or told him to sit down and 
 
         have coffee.  Claimant complained that the "company was just 
 
         paying" him and that he was not doing any work.  Claimant 
 
         testified he saw Dr. Bakody three times in 1986, the last 
 
         occasion on July 9, 1986 and that he has gone to the nerve block 
 
         center which has helped his pain.  Claimant acknowledged that it 
 
         was possible he returned to work for only four days after the 
 
         last hearing, that he received approximately $210 per week in 
 
         accident and sickness benefits from November 30, 1985 through 
 
         November 29, 1986 and that the premium therefor came out of his 
 
         own wages.  Claimant maintained that he was told to apply for his 
 
         retirement benefits although he described this as a type of 
 
         mutual decision between himself and the employer.  Claimant 
 
         offered that at one time he was performing work at the IPI 
 
         station and described this as a "company" or "management" job, 
 
         that the job was eliminated and that he "cannot touch a 
 
         computer."  Claimant acknowledged that he currently has one 
 
         investment property remaining of the seven he had had at one 
 
         time.
 
         
 
              Leona Martin, who described herself as a rehabilitation 
 
         consultant, testified she met claimant on March 7, 1988 on the 
 
         request of claimant's counsel to assess claimant's skills and 
 
         abilities to determine his employability and that she had no 
 
         placement assignment.  Mrs. Martin explained she was furnished 
 
         claimant's medical records, Dr. Bakody's deposition, and the 
 
         transcript from the proceedings held on November 8, 1985.  Mrs. 
 
         Martin opined that claimant would not be able to do any of the 
 
         jobs he performed with defendant employer because of the 
 
         restrictions imposed on lifting, bending and twisting although 
 
         claimant might be able to handle the IPI job he described during 
 
         his testimony, but she acknowledged she was unaware of such a 
 
         position prior to that testimony.  Mrs. Martin stated there may 
 
         be some jobs claimant can do but not over an eight hour day or a 
 
         40 hour week and that claimant would have to have the ability to 
 
         move around which would mostly be a management type job.  Mrs. 
 
         Martin did not believe claimant's work at Firestone would 
 
         transfer to a sedentary job and that a sedentary job may not even 
 
         be appropriate for claimant since he cannot sit for six or eight 
 
         hours per day.  Mrs. Martin stated claimant might be able to be 
 
         an estimator but that such work may require him to walk over 
 
         heavy ground; that claimant could use his skills in property and 
 
         bar management as a bookkeeper on a part-time basis, but that 
 
         those skills could not easily be converted to full-time work 
 
         since she "did not see [claimant] as being able to tolerate an 
 
         eight hour a day 40 hour a week job."  Mrs. Martin also 
 
         eliminated the possibility of sales work for claimant due to the 
 
         standing requirements.
 
         
 
              Robert Fuller, who testified he is presently the 
 
         superintendent of factory personnel with defendant employer, 
 
         stated that employees do not contribute directly or through 
 
         payroll deduction to the accident and sick leave benefits which 
 
         claimant received from November 1985 to November 1986 although he 
 
         acknowledged that this was a job benefit.  Mr. Fuller testified 
 
         that due to wage concessions in 1985 and 1987, claimant would be 
 

 
         
 
         
 
         
 
         GALLARDO V. THE FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE   4
 
         
 
         making less money as a tire builder if he was currently so 
 
         employed than what he was earning at the time of his injury, 
 
         production being equal.  On cross-examination, Mr. Fuller 
 
         explained that in order to qualify for the medical retirement 
 
         program, an individual must,apply and then go before a board who 
 
         decides the employee's entitlement and that those who are 
 
         entitled are "probably those who cannot work in the plant."
 
         
 
              Kathleen Schauwecker, who described herself as a 
 
         rehabilitation consultant with Intracorp, testified that to 
 
         assess claimant's employability she reviewed Dr. Boarini's 
 
         report, Dr. Bakody's deposition, and the 1985 transcript, the 
 
         deputy's decision, and the decision on appeal, that she visited 
 
         the Firestone plant on March 18, 1988, and that she assumed Dr. 
 
         Bakody's restrictions to be in effect.  Ms. Schauwecker testified 
 
         claimant has such transferable skills as dexterity, organization, 
 
         decision making, coordination, persistence, size and form 
 
         discrimination skills, and,from property and bar management.  Ms. 
 
         Schauwecker found eight different jobs claimant could perform 
 
         with defendant employer and opined that defendant employer seemed 
 
         willing to work with claimant to modify jobs to get claimant back 
 
         to work.  Ms. Schauwecker also identified career alternatives for 
 
         claimant such as customer service, apartment manager, in 
 
         inventory, collection, sales, and managing a liquor establishment 
 
         which she felt were available on an ongoing basis within the 
 
         labor market and concluded it is probable that claimant is 
 
         employable.
 
         
 
              John  T. Bakody, M.D., neurosurgeon, testified that he began 
 
         treating claimant in August 1980 and treated him regularly until 
 
         he was last seen on July 9, 1986. (Note: Dr. Bakody's deposition 
 
         was taken August 18, 1986.) Dr. Bakody testified that when 
 
         claimant was seen on October 25, 1985:
 
         
 
              He told me that he was working but not performing any 
 
              duties, that he had tried--that he had found he was not 
 
              able to do the jobs he had tried, and that he was 
 
              informed--at least this is what he is telling me 
 
              now--that he was not employable at Firestone.
 
         
 
         (Bakody Deposition, Joint Exhibit 55, page 9)
 
         
 
              In a letter to Dr. Gustafson dated October 30, 1985, Dr. 
 
         Bakody reported he suggested to claimant to try vocational 
 
         rehabilitation and explained this stating:
 
         
 
              Q.  In your note and in the letter you refer to the 
 
              possibility of trying vocational rehabilitation.
 
         
 
              A.  Yes, sir.
 
         
 
              Q.  What did you mean by that?
 
         
 
              A.  The State of Iowa, as we all know, has a 
 
              rehabilitation division and the idea being that if an 
 
              individual cannot carry out work duties because of 
 
              disability, that that individual can be interviewed, 
 
              aptitude tests carried out, whatever is required in 
 
              order to see if this individual with his handicap is 
 
              able to be retrained or trained to do some other--some 
 

 
         
 
         
 
         
 
         GALLARDO V. THE FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE   5
 
         
 
              type of activity.
 
         
 
              Q.  All right.
 
         
 
              A.  Work activity.
 
         
 
              Q. And you were suggesting there that that might be 
 
              appropriate for him?
 
         
 
              A.  At least he should talk to them, yes, sir, because 
 
              it did appear at this time that he wasn't able to do 
 
              the jobs, that Firestone considered him unemployable.
 
         
 
         (Bakody Dep., Jt. Ex. 55, p. 11)
 
         
 
              Dr. Bakody testified:
 
         
 
              Q.  Was there anything medically in his examination on 
 
              either the 23rd of July or the 25th of October that 
 
              would cause you to.change the restrictions you had 
 
              placed on him earlier with regard to his work at 
 
              Firestone ?
 
         
 
              A.  No, sir.
 
         
 
              Q.  You have told us that he came back again and saw 
 
              you on January 28th of 1986?
 
         
 
                 ....
 
         
 
              Q.  Were the findings at the time of your examination 
 
              different than they had been?
 
         
 
              A.  No sir.
 
         
 
              Q.  Did you do a standard neurological workup on him 
 
              that day?
 
         
 
              A.  Yes, I would do that every time I saw him.
 
         
 
              Q.  Was there any indication of any deficits at that 
 
              time?
 
         
 
              A.  Nothing--the physical or neurological situation is 
 
              not changing during the time of these visits.
 
         
 
         (Bakody Dep., Jt. Ex. 55, pp. 12-13)
 
         
 
              Dr. Bakody filled out a form entitled Disability 
 
         Pension/Examining Physician Statement at some undetermined time 
 
         and stated therein that claimant was disabled from working since 
 
         November 23, 1985.  Asked to explain why that date was chosen, 
 
         Dr. Bakody stated:
 
         
 
              I think the fact that--he was working some of these 
 
              times, and then in July of 1981 there had been a work 
 
              return--he only lasted one week in tire building--and 
 
              in January of '82 there was a work return which is not 
 
              tire building, and then I guess he was a part-time tire 
 
              builder, then in January '83 he was off work, and after 
 

 
         
 
         
 
         
 
         GALLARDO V. THE FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE   6
 
         
 
              his second surgery in February of '83, he returned to 
 
              work in--I have here August of '83, and then in 
 
              November of '85 he was not working again, so probably 
 
              this date indicated that latter time, although there 
 
              was some work disability prior to that.
 
         
 
              Q.  All right.  Is it your opinion that he was unable 
 
              to work starting on November 23, 1985'?
 
         
 
              A.  Yes, and then I think that date or answer would 
 
              have to be amended to include the fact that there were 
 
              previous times when he was unable to work as well.
 
         
 
              Q.  Do you have any opinion as to how long Mr. Gallardo 
 
              was unable to work starting on November 23, 1985?
 
         
 
              A.  But. I think it is true that using that date, he 
 
              has not worked since then.
 
         
 
              Q.  That's true.
 
         
 
              A.  Perhaps that is why the use of that date.
 
         
 
                 ....
 
         
 
              Q.  ...Your opinion that starting on November 23, 1985, 
 
              that Mr. Gallardo was disabled from work, I take it 
 
              that that was a new finding as of that day?
 
         
 
              A. I don't know if it is a new finding. it just seems 
 
              that the situation had reached that point.
 
         
 
         (Bakody Dep., Jt. Ex. 55, pp. 18-20)
 
         
 
              As final clarification, Dr. Bakody was asked on further 
 
         redirect examination:
 
         
 
              Q.  His findings had not changed, however?
 
         
 
              A.  That is correct.
 
         
 
         (Bakody Dep., Jt. Ex. 55, pp. 21-22)
 
         
 
              The parties may rest assured that the undersigned has 
 
         reviewed all the medical exhibits submitted both in this 
 
         proceeding and the proceeding held on November 8, 1985.  Such 
 
         records have been accurately and adequately summarized in the 
 
         previous. decisions on claimant's application for benefits and no 
 
         reasonable reason exists to reiterate such in this decision.  
 
         There are, however, two pertinent additions to the exhibits: 
 
         First, the disability pension petition/examining physician 
 
         statement (Joint Exhibit 53) which was referred to in Dr. 
 
         Bakody's deposition and, second, is the report of David J. 
 
         Boarini, M.D., neurological surgeon, who examined claimant on 
 
         November 3, 1986 at the request of defendants.  Dr. Boarini 
 
         opined:
 
         
 
                 I think this patient has some chronic myofascial 
 
              back pain and is status post Lumbar laminectomy times 
 
              two.  I think at this point he has reached maximum 
 

 
         
 
         
 
         
 
         GALLARDO V. THE FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE   7
 
         
 
              medical benefit.  I did instruct him that I thought his 
 
              symptoms would be considerably improved if he engaged 
 
              in a weight loss and exercise program.  Based upon the 
 
              patient's history of a laminectomy, limited range of 
 
              motion of the back and continued mild hypesthesia, I 
 
              would rate his permanent impairment as 12-15% of total 
 
              body.  I would think he should have an absolute weight 
 
              lifting limit of 50 pounds and no repetitive lifting 
 
              over 25 pounds.  He can't do any work that involves 
 
              repetitive bending and should not be expected to sit or 
 
              stand for more than 2 hours without a break.  I 
 
              discussed this with the patient and these are 
 
              apparently rather similar to the restrictions Dr. 
 
              Bakody gave him, although the patient states he was 
 
              placed on a 15 pound weight limit.
 
         
 
         (Joint Exhibit 54)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Iowa Code section 86.14(2)provides
 
         
 
                 In a proceeding to reopen an award for payments or 
 
              agreement for settlement as provided by section 86.13, 
 
              inquiry shall be into whether or not the condition of 
 
              the employee warrants an end to, diminishment of, or 
 
              increase of compensation so awarded or agreed upon.
 
         
 
              The case law relating to review-reopening proceedings is 
 
         rather extensive.
 

 
         
 
         
 
         
 
         GALLARDO V. THE FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE   8
 
         
 
         
 
              The opinion of the Iowa Supreme Court in Stice v. 
 
         Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452 
 
         (1940) stated "that the modification of ... [an) award would 
 
         depend upon a change in the condition of the employee since the 
 
         award was made."  The court cited the law applicable at that time 
 
         which was "if on such review the commissioner finds the condition 
 
         of the employee warrants such action, he may end, diminish, or 
 
         increase the compensation so awarded" and stated at 1038:
 
         
 
              That the decision on review depends upon the condition 
 
              of the employee, which is found to exist subsequent to 
 
              the date of the award being reviewed.  We can find no 
 
              basis for interpreting this language as meaning that 
 
              the commissioner is to re-determine the condition of 
 
              the employee which was adjudicated by the former 
 
              award.
 
         
 
              The court in Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 
 
         N.W.2d 109 (1957) cited prior decisions and added a new facet to 
 
         the review-reopening law by stating at page 69:
 
         
 
         
 
              But it is also true that unless there is more than a 
 
              scintilla of evidence of the increase, a mere 
 
              difference of opinion of experts or competent observers 
 
              as to the percentage of disability arising from the 
 
              original injury would not be sufficient to justify a 
 
              different determination by another commissioner on a 
 
              petition for review-reopening.  Such is not the case 
 
              before us, for here there was substantial evidence of a 
 
              worsening of her condition not contemplated at the time 
 
              of the first award.
 
         
 
              In a somewhat analogous vein, the Iowa Court of Appeals held 
 
         in Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24, 25 
 
         (Iowa App. 1978) that a review-reopening petition may allow a 
 
         change in compensation when a claimant has failed to improve to 
 
         the extent initially anticipated.
 
         
 
              A major pronouncement came in the case of Gosek v. Garmer 
 
         and Stiles Co., 158 N.W.2d 731 (Iowa 1968).  The opinion there, 
 
         at 732, stated that "[o]n a review-reopening hearing claimant has 
 
         the burden of showing by a preponderance of the evidence his 
 
         right to compensation in addition to that accorded by a prior 
 
         agreement or adjudication."  The opinion went on to discuss the 
 
         common understanding that "if a claimant sustained compensable 
 
         injuries of which he was fully aware at time of prior settlement 
 
         or award, but for some unexplainable reason failed to assert it, 
 
         he cannot, for the first time on subsequent review proceedings, 
 
         claim additional benefits."  The opinion continued at 733 "[b]ut 
 
         according to the apparent majority view, if a claimant does not 
 
         know of other employment connected injuries or disability at time 
 
         of any prior agreement or adjudication, he is not ordinarily 
 
         barred from later asserting it as a basis for additional 
 
         benefits."  The court went on to hold at 735 that "cause for 
 
         allowance of additional compensation exists on proper showing 
 
         that facts relative to an employment connected injury existed but 
 
         were unknown and could not have been discovered by the exercise 
 
         of reasonable diligence, sometimes referred to as a substantive 
 

 
         
 
         
 
         
 
         GALLARDO V. THE FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE   9
 
         
 
         omission due to mistake, at time of any prior settlement or 
 
         award."
 
         
 
              Each of these cases rest upon some disparity between 
 
         claimant's actual or anticipated physical condition at the time 
 
         of the previous assessment and the physical condition which 
 
         exists at the time of the review-reopening proceeding.  Thus, the 
 
         question initially becomes has claimant established a change in 
 
         his physical condition since the time of the 1985 proceeding.
 
         
 
              There is a scarcity of medical evidence within this record 
 
         to show any such change in physical condition.  Dr. Bakody, who 
 
         has treated claimant since 1980, failed to identify any such 
 
         change which may not have been contemplated at the time of the 
 
         1985 proceedings.  Dr. Boarini essentially agrees with Dr. 
 
         Bakody's position.  Claimant's testimony is only that he is 
 
         "worse."  Pain that is not substantiated by clinical findings is 
 
         not a substitute for impairment.  Waller v. Chamberlain 
 
         Manufacturing, II Iowa Industrial Commissioner report 419, 425 
 
         (1981).  A careful comparison of claimant's testimony in this 
 
         proceeding with that testimony offered in 1985 reveals that the 
 
         testimony is not markedly different.  Claimant previously 
 
         testified he sleeps for two to four hours per night compared with 
 
         the four hours currently.  Claimant testified that he went to the 
 
         restaurant "for a little bit" back in 1985.  Comparing that to 
 
         his detailed description of what he does now, it would appear 
 
         claimant is capable of doing more.  Just as likely, however, is 
 
         the fact that claimant, since his retirement, now has more time 
 
         to spend at the restaurant.  However, it does not show that 
 
         claimant's physical condition has changed.  Claimant still has 
 
         trouble sitting much the same as he described in 1985 and 
 
         claimant was getting rid of his income property back in 1985 
 
         because he could not maintain it which was also true in 1988.  
 
         Claimant testified in 1985 that he was getting "worse" in 
 
         everything that he had been doing.  Nothing is offered currently 
 
         that was not contemplated at the time of the previous proceeding.  
 
         Claimant's physical condition is essentially the same.  Claimant 
 
         is working under the same restrictions and limitations as he had 
 
         been.  Dr. Bakody noted no further objective findings.  Finally, 
 
         claimant's complaints are essentially the same.
 
         
 
              The required change of condition to satisfy the requirements 
 
         of review-reopening need not rest solely upon a change of 
 
         physical condition if economic hardships causally related to a 
 
         compensable injury but not contemplated within the initial award 
 
         or agreement are demonstrated.  An increase in industrial 
 
         disability may occur without a change in physical condition.  A 
 
         change in earning capacity subsequent to the original award which 
 
         is approximately caused by the original injury also constitutes a 
 
         change in condition.  Blacksmith v. All-American, Inc., 290 
 
         N.W.2d 348 (1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
         (Iowa 1980).  The question thus becomes whether or not claimant's 
 
         industrial disability has changed.
 
         
 
              Claimant appears to rest on the fact that he is no longer 
 
         employed by defendant employer and that although he attempted to 
 
         return to work following the 1985 proceeding, he was unsuccessful 
 
         and therefore is not employable. however, review of the record 
 
         again shows that claimant was asserting in October 1985 that he 
 
         was not employable at Firestone and, therefore, knew that to be 
 

 
         
 
         
 
         
 
         GALLARDO V. THE FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE  10
 
         
 
         the case prior to the proceeding in November 1985.  Dr. Bakody 
 
         reported that at claimant's October 25, 1985 appointment claimant 
 
         was telling him he was not employable at Firestone.  On October 
 
         30, Dr. Bakody passed on those representations to Dr. Gustafson 
 
         and suggested vocational rehabilitation for claimant.  All of 
 
         this occurred prior to the time of the last award.  Claimant's 
 
         actions in working for only a short period after the time of the 
 
         prior award seems somewhat contrived and does not go without 
 
         note.
 
         
 
              There is no question that because claimant is now receiving 
 
         retirement benefits his earnings have changed.  Defendants 
 
         correctly argue that a change in earnings alone does not mandate 
 
         a determination of industrial disability.  Claimant was not 
 
         working at the time of the prior proceeding and did not state 
 
         that he had any intentions of ever returning to work.  The mere 
 
         fact that claimant accepted retirement benefits does not 
 
         necessitate a conclusion that his industrial disability has 
 
         changed.  Dr. Bakody's statement that claimant has been 
 
         unemployable since November 23, 1985 is not convincing here since 
 
         it appears this opinion is based solely on claimantOs 
 
         representations to him.  In addition, Dr. Bakody notes no 
 
         objective changes in claimant's condition as discussed above.  
 
         Dr. Bakody candidly admits that the conclusion claimant was 
 
         disabled from work starting on November 23, 1985 is not a "new 
 
         finding."  Since there were no changes in claimant's condition, 
 
         it appears to the undersigned that almost any day could have been 
 
         chosen over November 23, 1985.
 
         
 
              The testimony of the two vocational experts is not 
 
         particularly helpful in this matter as neither worked with 
 
         claimant prior to 1988 and, therefore, could not provide any 
 
         opinion on claimant's employability back in 1985.  Because 
 
         claimant's physical condition has not changed, it is entirely 
 
         possible that the opinions rendered in 1988 would have been the 
 
         same as those which might have beet rendered back in 1985.  
 
         Further, defendants have always appeared willing to work with 
 
         claimant within his restrictions and to keep claimant employed.  
 
         Indeed, the industrial commissioner in his decision filed October 
 
         21, 1987, specifically lowered claimant's industrial disability 
 
         because of this fact stating "defendants' efforts to keep 
 
         claimant employed lessens claimant's loss of earning capacity."  
 
         The only thing that has definitely changed which may affect 
 
         claimant's industrial disability is his age which cannot be cited 
 
         as not having been contemplated at the time of the prior 
 
         proceeding.  Therefore, the undersigned concludes that claimant 
 
         has failed to establish either a change in his physical condition 
 
         or his industrial disability to warrant an award of additional 
 
         benefits.  Accordingly, no other issue need be addressed.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on July 30, 1980.
 
         
 
              2.  Claimant underwent back surgery on December 4, 1980 and 
 
         again on February 10, 1983 as a result of the work injury.
 

 
         
 
         
 
         
 
         GALLARDO V. THE FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE  11
 
         
 
         
 
              3.  Claimant returned to work in August 1983 doing a variety 
 
         of light duty jobs and perceived that after this he had gotten 
 
         considerably worse.
 
         
 
              4.  Claimant went on vacation and advised his physician in 
 
         October 1985, that he was not employable with defendant 
 
         employer.
 
         
 
              5. Claimant returned to work for a short period of time in 
 
         November 1985 and never returned to the plant.
 
         
 
              6.  Claimant is currently receiving a monthly pension.
 
         
 
              7.  Claimant's primary physician found no objective change 
 
         in claimant's condition from 1985 to the present.
 
         
 
              8.  Claimant's physical condition has not changed.
 
         
 
              9.  Claimant currently has the same complaints he had at the 
 
         time of the prior award.
 
         
 
             10.  Claimant's industrial disability has not changed.
 
         
 
                                CONCLUSION OF LAW
 
         
 
               Wherefore, based on the principles of law previously 
 
         stated, the following conclusion of law is made:
 
         
 
              Claimant has failed to sustain his burden of proof to show a 
 
         change in condition which would entitle him to any further 
 
         benefits under the Iowa Workers' Compensation Act.
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing further from these proceedings.
 
         
 
              Each party is assessed their own costs with defendants 
 
         assessed the costs of the court reporter pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 24th day of October, 1988.
 
         
 
         
 
         
 
         
 
                                       DEBORAH A. DUBIK
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers office Complex
 
         1200 35th St., Ste 500
 
         West Des Moines, IA 50265
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 

 
         
 
         
 
         
 
         GALLARDO V. THE FIRESTONE TIRE & RUBBER COMPANY
 
         PAGE  12
 
         
 
         Terrace Center, Ste 111
 
         2700 Grand Ave
 
         Des Moines, IA 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402; 1403
 
                                               Filed October 24, 1988
 
                                               Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN A. GALLARDO,
 
         
 
              Claimant,                         File No. 643357
 
         
 
         vs.                                     R E V I E W
 
         
 
         THE FIRESTONE TIRE & RUBBER           R E 0 P E N I N G
 
         COMPANY,
 
                                                D E C I S I 0 N
 
         vs.
 
         
 
         CIGNA INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402; 1403
 
         
 
              Claimant denied additional benefits in review-reopening 
 
         proceeding as he failed to establish any change in either his 
 
         physical condition or industrial disability that was not 
 
         contemplated at the time of the prior award.