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.