BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ BETTY ESTES, Claimant, File No. 646803 vs. R E V I E W - K MART CORPORATION, R E O P E N I N G Employer, Self-Insured D E C I S I O N Defendant. ___________________________________________________________ INTRODUCTION This is a proceeding in review-reopening brought by Betty Estes, claimant, against K Mart Corporation, employer and self-insured defendant, for benefits as the result of an injury which occurred on August 31, 1980. There was an agreement for settlement pursuant to Iowa Code section 86.13, which was approved on March 10, 1987. This review-reopening hearing was held on May 4, 1994, at Des Moines, Iowa. Claimant was represented by David D. Drake. Defendant was represented by Joel T. S. Greer and Gregory Thompson. Sandra Schwedeke, personnel manager was also present in the courtroom at the time of the hearing. The record consists of the testimony of Betty Estes, claimant, claimant's exhibits 1 through 4 and defendant's exhibit A. The deputy ordered a transcript of the hearing. ISSUES The parties submitted the following issues for determination at the time of the hearing (Tran. pp. 5, 76, 82, & 85): Whether claimant has sustained a change of condition since the agreement for settlement. Whether claimant is entitled to additional permanent disability benefits to include whether claimant is permanently and totally disabled. Whether defendant is entitled to a credit for weekly benefits paid to claimant prior to hearing. FINDINGS OF FACT CHANGE OF CONDITION/ENTITLEMENT/CREDIT It is determined that claimant has sustained a change of condition since the settlement agreement. It is further determined that claimant has become permanently and totally disabled since the time of the settlement agreement. It is further determined that defendant is not entitled Page 2 to a credit for weekly benefits paid to claimant prior to hearing. In the summary of cases immediately following the word award is used because those cases reviewed a previous award of benefits. This case reviews an agreement for settlement. An agreement for settlement pursuant to Iowa Code section 86.13 has the same legal effect as an award with a respect to a review- reopening proceeding. Iowa Code section 86.14(2) begins with the following words, 2. 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. An award for payments where the amount has not been commuted may be reviewed upon commencement of reopening proceedings within three years from the date of the last payment of weekly benefits under the award. Iowa Code section 85.26(2). Rankin v. National Carbide Co., 254 Iowa 611, 118 N.W.2d 570 (1962) and Sanford v. Allied Maintenance Corp., IV Iowa Industrial Commissioner Reports 297 (1984). Claimant in this case was receiving weekly benefits at the time of this hearing. The earliest reported case to interpret and define "whether or not the condition of the employee warrants", after reviewing the law in the other states, held that a modification of the award would depend upon "a change in the condition" of the employee since the award was made. The decision on review depends on the condition of the employee found to exist subsequent to the award being reviewed. It is not to redetermine the condition of the employee which was adjudicated by the former award. Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 291 N.W. 452 (1940). Thereafter, the operative phrase in review-reopening became "change of condition". Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, (2d ed.) section 20-2 at page 188. The burden of proof by a preponderance of the evidence is upon the employee to show "additional consequences, facts and circumstances" proximately caused by the original injury that occurred subsequent to the award being reviewed. Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959); Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (1969). In 1980 the Supreme Court of Iowa found a change of condition occurred and permitted an additional award where there was a change in earning capacity without a change in physical condition subsequent to the original award. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). In this case claimant has sustained a change in both her medical/physical condition as well as her Page 3 nonphysical/economic condition. With respect to claimant's change in nonphysical/economic condition the following evidence was presented. Claimant's personal physician determined that she was totally disabled for any occupation. A vocational rehabilitation consultant determined that claimant is unemployable. The last operating orthopedic surgeon found that claimant's chances of finding employment were "slender." With respect to a change in claimant's medical/physical condition three supreme court cases give us some standards which can be applied. In Wagner v. Otis Radio & Electric Co., 254 Iowa 990, 119 N.W.2d 751 (1963) a showing of "increased incapacity" was required; while Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956) referred to "substantial proof of an aggravated condition"; and Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957) found "substantial evidence of a worsening of the claimant's condition not contemplated at the time of the first award". In this case, after the settlement agreement had been consummated, claimant received still a third lumbar laminectomy which the operating orthopedic surgeon said increased her previous permanent impairment rating by 2 percent. Claimant's personal physician stated that claimant was totally disabled following two previous failed surgeries. Claimant's testimony established numerous changes in both her physical and economic condition since the settlement agreement. Thus, claimant has demonstrated increased incapacity, an aggravated condition and substantial evidence of a severe worsening of her condition since the agreement for settlement. The Supreme Court of Iowa expanded the narrow holding of the Stice case in review-reopening proceedings by allowing additional compensation where facts relative to an employment connected injury existed but were unknown and could not have been discovered by the exercise of reasonable diligence at the time of the prior award or settlement. Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968). A further refinement of the interpretation of the statutory words "whether or not the condition of the employee warrants" and the Stice case standard of "change of condition" was added in 1978. The Iowa Court of Appeals allowed additional permanent partial disability where the passage of time and claimant's return to work revealed that the disability exceeded that determined in the original decision due to claimant's failure to improve to the extent anticipated by the original decision. Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App., 1978). It is determined that claimant in this case is also entitled to a determination of change of condition under both the holding in the Gosek case and also the Meyers case. Page 4 The treating orthopedic surgeon stated when he gave the final increased impairment rating that this third lumbar laminectomy and the increased impairment were not anticipated at the time of the settlement. Thus, with respect to the Gosek case it was unknown and not discoverable at the time of the settlement that claimant was developing scar tissue, productive bone change and additional disc protrusion from the first two laminectomys. With respect to the Myers case, Dr. McClain anticipated a return to work and claimant did return to work at Sears for 14 months but subsequent to that time claimant has been determined to be both unemployable and totally disabled. Therefore, it is determined that (1) claimant's testimony, (2) the orthopedic surgeon's determinations, (3) the family physician's determinations and (4) the determination of the rehabilitation consultant are not controverted, contradicted, rebutted or refuted by any other evidence, either testimonial evidence or exhibit evidence. Defendant called no witnesses. Defendant introduced only one exhibit, and that was the approval of the settlement agreement. Thus, the overwhelming weight of the evidence in the record establishes that claimant has sustained a physical and economic change of condition since the date of the settlement agreement and that she is permanently and totally disabled. The detailed facts of this case are as follows. Claimant, born January 7, 1939, was 41 years old at the time of the injury on August 31, 1980, and 55 years old at the time of the review-reopening proceeding (Transcript page 22). Claimant testified that her prior employments were department store clerk, waitress, baker, and in-home patient care (Tran. pp. 20 & 21). Claimant denied and there is no evidence that either the vehicle accident which occurred in 1976 or the vehicle accident which occurred in 1979 caused claimant any disability prior to this hearing (Tran. pp. 23-25). Claimant commenced working full-time for defendant on October 9, 1978 (Ex. 3, p. 29). Claimant was injured on August 31, 1980, when a child ran into her with a shopping cart and injured her low back (Tran. pp. 26 & 27). As a result of this injury claimant received a lumbar laminectomy in February of 1983 and later a spinal fusion in November of 1984 (Tran. pp. 27 & 28). In 1986, claimant learned that she had noncontagious hepatitis from a blood transfusion at the time of her second surgery (Tran. p. 30). Where an accident occurs to an employee in the usual course of her employment, the employer is liable for all consequences that naturally and proximately flow from the accident. Oldham v. Scofield and Welch, 222 Iowa 764, 767-68, 266 N.W. 480, 482 (Iowa 1936). Most of the sequela injuries stem from medical treatment to the primary injury. Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, (2d ed.) section 4-4 at pages 26-29. Page 5 Claimant and employer entered into an agreement for settlement and requested approval of it on February 17, 1987. The order approving the settlement was dated March 10, 1986 [sic]. The year 1986 is a typographical error and the settlement was actually approved on March 10, 1987 (Tran. pp. 53 & 54). Official notice is taken of the settlement papers in the industrial commissioner's file [Iowa Administrative Procedure Act 17A.14(4)]. Medical reports filed with these settlement papers show that claimant's permanent partial impairment rating at that time in 1987 was assessed at 25 percent by David B. McClain, D.O. As to restrictions, Dr. McClain stated that claimant should avoid repetitive motions, lifting, stooping, and bending as well as prolonged sitting and/or standing. Dr. McClain also recommended vocational rehabilitation, thus indicating that claimant was employable in his opinion with the assistance of vocational rehabilitation services. The order approving the agreement for settlement stated that claimant was entitled to healing period benefits from August 31, 1980, the date of the injury, until December 1, 1985, and that December 1, 1985 was the first day of permanent partial disability. The agreement specified that claimant was to receive 300 weeks of permanent partial disability benefits based upon an industrial disability of 60 percent. Claimant testified that she has been under a doctor's care ever since the settlement. Claimant also testified that in May of 1990 she found a job with Sears as a sales clerk in the men's wear department where she was allowed to work under handicapped conditions. Sears provided claimant with a chair and she could take breaks at her own discretion. Claimant worked at Sears for approximately 14 months from May of 1990 until June of 1991 (Tran. pp. 30 & 31). Claimant stated that she quit the job at Sears "Because of the pain, I got to the point where I could not stand that long. ... The longer I worked, the worse my symptoms got." (Tran. p. 32). Barbara Ohnemus, D.O., claimant's personal physician referred claimant to Robert A. Hayne, M.D., a neurosurgeon, and claimant saw him on March 30, 1992 (Tran. p. 34; Exhibit 1, p. 1). Claimant said that she understood Dr. Ohnemus thought that the fusion had failed as well as other complications (Tran. p. 35). Dr. Hayne said that a review of an MRI taken back in September of 1991 (shortly after claimant quit Sears due to pain) showed a severe herniated disc at the 5th lumbar space on the right side and a suggestion of another one at the 4th lumbar interspace also on the right side (Ex. 1, p. 1). Dr. Hayne's examination found scar tissue, productive bone change and mildly protruded disc material at the site of the former surgery (Ex. 1, p. 3; Tran. p. 34). On April 3, 1992, the doctor said that claimant would continue to have pain until she had surgery (Ex. 1, p. 2). Dr. Hayne Page 6 performed a lumbar laminectomy on June 18, 1982, based on a diagnosis of spinal stenosis at the fourth and fifth lumbar interspaces on the right (Ex. 1, p. 3). After the third surgery, on July 10, 1992, a physical therapist reported significant lower back pain and right lower extremity pain as well as significant loss of range of motion (Ex. 1, p. 5). On December 11, 1992, Dr. Hayne reported to employer that claimant's history had been one of continued problems with never a complete resolution of her symptoms (Ex. 1, p. 7). On March 22, 1994, Dr. Hayne wrote to claimant's attorney that he last saw claimant on November 23, 1992. He said that claimant was released from further care at the time he last saw her on November 23, 1992. Claimant testified that Dr. Hayne performed duties of a surgical specialist. He then turned her care over to Dr. Ohnemus, her personal physician. Claimant explained that a surgeon no longer sees you on a regular basis after he has performed the surgery and feels that his care is no longer needed (Tran. pp. 64 & 65). Dr. Hayne concluded in his letter of March 22, 1994 as follows. She had an additional disability following this third operative procedure of approximately 2%. This was not contemplated when the case was apparently settled in 1987. It would be advisable for her to restrict her activity so that she does not place undue strain on her back such as frequent climbing of stairs, repetitious bending forward and avoidance of lifting over 25 or 30 pounds. Long automobile drives would probably not be well tolerated. At the time of my last examination, the likelihood of her returning to gainful activity appeared slender (Ex. 1, p. 9). Thus, the restrictions imposed by Dr. McClain at the time of the settlement agreement in 1987 were increased by the restrictions of Dr. Hayne after the third surgery. Dr. Hayne imposed a weight lifting restriction of 25 to 30 pounds. Dr. McClain thought claimant could be returned to work with vocational rehabilitation. Dr. Hayne thought that "the likelihood of her returning to gainful employment appeared slender." (Ex. 1, p. 9). The opinion of experts need not be couched in definitive positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). After claimant was released by Dr. Hayne, Dr. Ohnemus has continued to provide medical care and has prescribed medications for claimant (Tran. p. 35). Dr. Ohnemus completed a functional capacity evaluation for the Metropolitan Life Insurance Company for an income disability policy that claimant purchased when she worked at Sears. Dr. Ohnemus examined claimant on April 19, 1993 and Page 7 completed her report on the same date. She stated that she saw claimant twice monthly and that claimant's past history was noncontributory. Dr. Ohnemus reported that claimant's subjective symptoms were low back pain syndrome and post lumbar laminectomy failure times two. The doctor's objective findings were (1) radiation into legs and hips, (2) MRI scan herniated disc, and (3) failed surgery pain syndrome. The primary diagnosis affecting claimant's work ability was low back syndrome following lumbar laminectomy times two. The secondary diagnosis affecting work ability was degenerative osteoarthritis of the hands. The present and future course of treatment was shown as (1) TENS unit, (2) physical therapy and OMT therapy (osteopathic manipulative therapy) and (3) anti-inflammatory analgesics (Ex. 4, p. 40). Dr. Ohnemus checked that claimant's limitations were as follows: (1) transportation, (2) standing, (3) sitting, (4) change of position (sitting/standing), (5) assuming cramped/ unusual positions, (6) reaching (forward/overhead), (7) pushing/pulling/twisting (arm/leg controls), (8) grasping/handling, (9) finger dexterity, (10) repetitive movement (hands/feet) and (11) concentrated visual attention. On this physical capacity examination for Metropolitan Life Insurance Company, Dr. Ohnemus listed several things that claimant should avoid completely. These items were (1) climbing (stairs/ladders/scaffols), (2) balancing (exposure to falling), (3) bending/stooping/squatting, (4) operating truck/dolly/small vehicle, (5) operating heavy equipment, and (6) operating electrical equipment. Dr. Ohnemus checked that claimant was not able to lift any weight at all of any poundage. She said that claimant did not suffer from a psychological condition. For a progress evaluation the doctor marked "unimproved." In answer to the question, "Is patient now totally disabled?" Dr. Ohnemus checked "Yes." (Ex. 4, pp. 40 & 41). Approximately one year later on March 31, 1994 and shortly prior to hearing, Dr. Ohnemus completed the same form again with the identical same answers. Again, in answer to the question, "Is patient now totally disabled?", Dr. Ohnemus again checked "Yes" (Ex. 4, pp. 42 & 43). Claimant was examined by Leona E. Martin, M.S., rehabilitation specialist, who reported on February 23, 1994. Ms. Martin reviewed the records of Dr. Hayne, Dr. Ohnemus and Mercy Hospital. She interviewed claimant for two hours at claimant's home on February 10, 1994. The Martin report is an excellent summary of the facts of this injury, the treatment history, the prior employment history and claimant's education history. Likewise, it gives the evaluator's opinion of what claimant can and cannot do. Ms. Martin concluded her report as follows: EARNINGS CAPACITY ASSESSMENT A worker's earning capacity is based on his/her abilities, knowledge, and skills to work and earn Page 8 money in competitive employment. While the claimant has the skills, knowledge and mental ability to perform her past work and other semi-skilled work in the national economy, her physical restrictions prevent her from succeeding in competitive employment. Betty's physical limitations do not allow her to stand, walk, and lift adequately to qualify for jobs in the "light" category. She is unable to sit for extended periods of time to qualify for any sedentary positions. Her need to frequently lie down to rest during the day cannot be accommodated by employers. Therefore, it is the opinion of this consultant that the claimant is precluded from all competitive employment. This is in agreement with the Social Security Administration who has declared her "disabled." (Ex. 2, p. 15). Claimant testified that she did not have enough quarters of employment to qualify for social security disability. However, she was eligible for SSI, but she was not currently receiving benefits because the income from workers' compensation and the income disability policy excluded her from currently receiving benefit payments (Tran. pp. 45, 46, 57, & 58). Claimant related that she also receives $50 a month from ADC because she had been the caretaker for her grandson, who is now 15 years of age, since he was a small child (Tran. pp. 59 & 60). The reports of the foregoing expert witnesses support, corroborate and verify claimant's testimony both concerning a change of condition, medical and nonphysical, as well as the fact that at the time of hearing that she is permanently and totally disabled. Claimant testified that she requires more medication than at the time of settlement. Dr. Ohnemus has prescribed a cane now. She was in a wheelchair immediately prior to the last surgery. A walker has also been discussed. Her apartment has been altered with railings and lower appliances for a handicapped person. Claimant testified that she requires help dressing and shopping. She said she goes to pool therapy three times a week at Mercy Hospital. Claimant stated that sitting, standing and walking are more limited now. She said she has more sleep disturbance. Claimant maintained that she is required to sit down or lay down more often in the course of a normal day. Claimant contended that the medication slows her movements and impairs her ability to concentrate (Tran. pp. 36-56). Based on the foregoing evidence it is determined that claimant is precluded from all of her prior employments of department store clerk, waitress, baker and in home patient care (Tran. pp. 20 & 21). It is further determined that claimant has sustained a change of both physical and nonphysical condition since the Page 9 time of the agreement for settlement in 1987. It is determined that facts were unknown and could not have been determined with reasonable diligence at the time of the original settlement in 1987 for the reason that claimant was developing scar tissue, bone reproduction and additional disc protrusion which required an additional third surgery. It is determined that claimant failed to improve as well as anticipated by Dr. McClain at the time of the original settlement in 1987, because since then claimant has become unemployable. It is further determined that claimant has sustained an increase in permanent disability and is now permanently and totally disabled. Permanent total disability benefits commence on the date of this decision. Smith v. Fleetguard, Inc., File Nos. 853642/773001, Appeal Decn. December 23, 1991. In this case, it is determined that defendant should not be liable for permanent total disability benefits before it has been judicially determined that claimant is permanently and totally disabled. Bousefield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). It is further determined that defendants are not entitled to a credit for the weekly benefits paid to claimant after the settlement agreement until the time of this hearing. Defendant is not entitled to a credit for the temporary disability benefits that they paid to claimant prior to hearing. Defendant has paid claimant weekly benefits since April 3, 1992, the date of the third surgery, until the time of hearing. Claimant maintained that she was unable to work during that period of time and her testimony is supported by Dr. Hayne, Dr. Ohnemus and vocational consultant Martin. Defendant characterized these benefits as temporary benefits in answer to interrogatories supplied to claimant on April 1, 1994, over the signature of defendant's attorney (Ex. 3, p. 34). Interrogatory No. 19 asked when employer believed claimant reached maximum medical improvement or return to work and the answer was "has not yet reached maximum improvement as of the date of this answer." (Ex. 3, p. 35). Claimant's attorney relied upon the representations made in the interrogatories. At the time that the hearing report was reviewed claimant's attorney was asked if there was any dispute about credits and he responded as follows, "... We simply put in the dates of prior payments of healing period. There is no dispute as to those dates, nor is there any dispute at this time regarding current payment." (Tran. p. 6). Claimant's reliance is further verified by the remarks Page 10 of claimant's attorney in his opening statement which are as follows, After getting Doctor Hayne's opinions and updated reports, K-Mart again has stepped forward and paid for the surgical bills related to June of 1992. They have again commenced payment to Betty since the date of the surgery. And they continue to pay Betty today because of her condition. Your Honor, our position today is that Betty is permanently and totally disabled from all employments. And we would like that issue decided so that Betty can continue to receive her workers' compensation payments without wondering if and when they're going to stop with the 30-day notice. (Tran. p. 9). The 30-day notice requirement is applicable only to the payment of temporary disability benefits. Iowa Code section 86.13 unnumbered paragraph 2. Auxier v. Woodward State Hospital School, 266 N.W.2d 139 (Iowa 1978). Thus, it can be seen that claimant's attorney relied on defendant's answer to interrogatories that the benefits paid prior to hearing were temporary disability benefits. Defendant is not now permitted to claim for the first time at the hearing in closing argument that their interrogatory answer was a mistake and that some of the benefits were permanent disability benefits. Claimant was entitled to rely on this interrogatory answer and was not obligated to dispute it or prove differently when it was raised for the first time in closing argument at the time of hearing (Tran. pp. 74-83). It should be noted that the date of the decision is only about three months different from March 22, 1994, the date of Dr. Hayne's report awarding an impairment rating, which defendant's counsel said would be an agreeable date to him for the commencement of permanent disability benefits (Tran. p. 75, 81, 82 & 83). Defendant's counsel said "I think it doesn't make much practical difference ... (Tran. p. 79). Furthermore, Iowa Code section 85.34(4), Credits for Excess Payments, indicates that temporary disability benefits are only credited against permanent partial disability benefits. There is no statutory provision for a credit for temporary disability benefits against permanent total benefits. conclusions of law Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That claimant sustained the burden of proof by a preponderance of the evidence that she has sustained a change of physical/medical condition and also a change of Page 11 nonphysical/economic condition since the agreement for settlement in 1987. Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 291 N.W. 452 (1940); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). That claimant has sustained the burden of proof by a preponderance of the evidence that she has sustained an increase in permanent disability and that at the time of the hearing she was permanently and totally disabled. Iowa Code section 86.14(2); Iowa Code section 85.34(3). That claimant has sustained the burden of proof by a preponderance of the evidence that defendant is not entitled to a credit for the temporary disability benefits paid to claimant prior to hearing. Iowa Code section 86.34(4). ORDER THEREFORE, IT IS ORDERED: That defendant pay to claimant workers' compensation permanent total disability benefits at the stipulated rate of one hundred eleven and 37/100 dollars ($111.37) per week during the period of claimant's permanent total disability commencing with the date of this review-reopening decision. That no lump sum payments for permanent total disability benefits accrued prior to this decision and no interest is due from defendant to claimant until the date of this decision for the reason that it was not determined that claimant was permanently and totally disabled until the date of this decision. That defendant is not entitled to a credit for the temporary disability benefits paid to claimant prior to hearing. Iowa Code section 85.34(4). That the costs of this action, including the cost of the attendance of the court reporter at hearing and the cost of the transcript of hearing, are charged to defendant pursuant to rule 343 IAC 4.33 and Iowa Code sections 85.19(1) and 86.40. That defendant file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of May, 1994. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. David D. Drake Attorney at Law Page 12 West Towers Office Complex 1200 35th Street, Ste 500 West Des Moines, IA 50266 Mr. Joel T. S. Greer Mr. Gregory Thompson Attorneys at Law 112 West Church Street Marshalltown, IA 50158 1700, 1702, 1703, 1804, 2905 2906, 3800 Filed May 24, 1994 Walter R. McManus BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ BETTY ESTES, Claimant, File No. 646803 vs. R E V I E W - K MART CORPORATION, R E O P E N I N G Employer, Self-Insured D E C I S I O N Defendant. ___________________________________________________________ 2905 It was determined that claimant sustained (1) a change of physical/medical condition (conventional cases cited Stice, Henderson, Deaver, Wagner, Rose, Bousefield) as well as (2) a change of nonphysical/economic condition (Blacksmith and McSpadden cited). In addition, there were factors unknown and not discoverable at the time of the agreement for settlement by the exercise of reasonable diligence. Gosek. Furthermore, it was determined that claimant failed to improve as expected at the time of settlement. Meyers. After the settlement claimant required still another (third) lumbar laminectomy which resulted in an increased impairment rating, increased restrictions and increased limitations on the employee's ability to work. The cause of the additional (third) surgery was scar tissue and bone production stemming from the first two surgeries and additional disc protrusion after the first two surgeries. Claimant also sustained noninfectious hepatitis due to transfusions at the time of the earlier surgeries as sequela. 1804 Claimant was determined to be permanently and totally disabled. Claimant introduced an increased impairment rating from the surgeon and his statement that her chances for employment were slender. Claimant introduced two functional capacity examinations from her personal physician one year apart and both stated that she was totally disabled. Claimant introduced a report form a vocational rehabilitation consultant that said she was unemployable. Claimant's evidence was not controverted, contradicted, Page 2 rebutted or refuted by defendant. 1700, 1702, 1703, 2906 After the third surgery defendant paid benefits to claimant and were paying benefits to claimant at the time of the hearing. In response to interrogatories defendant stated that (1) these were temporary disability benefits and (2) that claimant had not yet attained maximum medical improvement. There was a great deal of evidence that claimant relied on these representations and did not come to hearing prepared to prove differently. Therefore, defendant was not allowed to assert for the first time in closing argument that the interrogatories were a mistake and that defendant was entitled to credit for these benefit payments. Moreover, Iowa Code section 85.34(4) provides that excess temporary disability benefits paid prior to hearing are only an offset against permanent partial disability benefits. There is no statutory provision to credit excess temporary disability benefits against permanent total disability benefits. Iowa Code section 85.34(4). 1804, 2905, 3800 There is very little authority on when permanent total disability benefits are to commence that are awarded in a review-reopening decision. It was determined in this case that both (1) permanent total disability benefits and (2) interest were to commence with the date of the decision because prior to that time the issue of permanent total disability had not been determined. Defendant did not know he owed permanent total disability benefits and claimant did not know that she was entitled to permanent total disability benefits until that issue was decided in the review-reopening decision. Smith v. Fleetguard, Inc., File Nos. 853642/773001, Appeal Decn. December 23, 1991; Bousefield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). Page 1 before the iowa industrial commissioner ____________________________________________________________ : MARGARET J. REED, : : Claimant, : : vs. : : File No. 647621 GLENWOOD STATE HOSPITAL : SCHOOL, : A P P E A L : Employer, : D E C I S I O N : and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENt OF THE CASE Defendants appeal from a review-reopening decision awarding permanent total disability benefits as the result of an alleged injury on September 5, 1980. The record on appeal consists of the transcript of the review-reopening proceeding; claimant's exhibits 1-28, and defendants' exhibits A-D. Defendants filed a brief on appeal. ISSUE The issue on appeal is whether there was worsening of claimant's condition related to the original injury since the time of the first hearing. 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 Upon review-reopening, claimant has the burden to show that he has suffered a change in his condition since the original award was made. Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959). A mere difference of opinion of experts as to the percentage of disability arising from an original injury would not be sufficient to justify a different determination on a petition for review-reopening. Rather, such a finding must be based on a worsening or deterioration of the claimant's condition not contemplated at the time of the first award. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). A failure of a condition to improve to the extent originally anticipated Page 2 may also constitute a change of condition. Meyers v. Holiday Inn of Cedar Falls, Iowa, 179 N.W.2d 24 (Iowa App. 1978). A worker is totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity, that a reasonable, stable market for them does not exist. When a combination of industrial disability factors precludes a worker from obtaining regular employment to earn a living, a worker with only a partial functional disability has a total industrial disability. Guyton v. Irving Jensen Company, 373 N.W.2d 101 (Iowa 1985). A claimant must demonstrate a reasonable effort to secure employment in the area of his residence as part of a prima facie showing that he is an odd-lot employee. Emshoff v. Petroleum Transportation and Great West Casualty, appeal decision, March 31, 1987; Collins v. Friendship Village, Inc., appeal decision, October 31, 1988. ANALYSIS This is a case in review-reopening. Claimant therefore bears the burden of showing that a change of condition caused by the original injury has occurred since the prior award of benefits. The review-reopening decision that awarded claimant 70 percent industrial disability found that claimant had suffered a back injury; that claimant had pain similar to electric shocks in her back; that claimant tended to drag her right leg; claimant could not vacuum, bend or lift over 20 pounds; claimant had difficulty sitting; claimant could not drive a motor vehicle due to her medication; claimant's job had required lifting and claimant was no longer able to return to that job. It was also found that claimant had not made any attempt to find substitute employment after her injury. H. Randal Woodward, M.D., had given claimant a rating of permanent partial impairment of 30 percent of the body as a whole. Claimant also received a rating of 20 percent permanent partial impairment. At the hearing on this petition, claimant testified that she was now experiencing the same restrictions and the same symptoms as she had at the time of the first hearing, with the exception of a neck pain that was no longer present. (See Transcript, pages 29-32, 36). Dr. Woodward, who examined claimant prior to the first hearing and issued an impairment rating, again examined claimant in 1987 and concluded "it does not appear to me as if her condition has deteriorated any since I last saw her." (Exhibit 1). Dr. Woodward reiterated his previous 30 percent impairment rating. Claimant also testified that between August 8, 1983, the date of the first review-reopening decision, and January 24, 1989, the date of the hearing on the present petition, claimant still had not made any attempts to find employment other than to ask her family doctor, who was also a personal friend, for employment. Claimant indicated that she did not Page 3 seek work because her doctor had told her she could not work. Claimant testified she had not looked at any want ads or checked with Iowa Job Service in the nearly 8 and 1/2 years since the prior award. It is concluded that claimant has failed to carry her burden to show that she has suffered a physical change of condition caused by her original injury not contemplated by the original award of benefits. Claimant's condition has not changed. A change of condition need not be based on a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). However, the claimant has not shown a non-physical change of condition either. Claimant was not working at the time of the original award, and is still not working. Claimant has failed to show either a physical or non-physical change of condition. Even if claimant had carried her burden to show a change of condition, claimant is not permanently totally disabled under the odd-lot doctrine. Application of the odd-lot doctrine requires a claimant to demonstrate reasonable efforts to secure substitute employment. Claimant has not shown any reasonable effort to obtain substitute employment. Claimant is not an odd-lot employee. FINDINGS OF FACT 1. Claimant was awarded 70 percent industrial disability in 1983. 2. At the time of the award, claimant had ratings of physical impairment of 20 percent and 30 percent of the body as a whole. 3. At the time of the award, claimant had pain in her back and neck, radiating into her right leg. 4. At the time of the award, claimant had difficulty operating a motor vehicle. 5. At the time of the award, claimant had not sought alternative employment. 6. Since the award, claimant has been re-examined by Dr. Woodward and her condition was found not to have changed since 1983. Claimant's current rating of permanent physical impairment by Dr. Woodward remains 30 percent of the body as a whole. 7. Claimant currently has back and leg pain similar to that which existed at the time of the award, except that claimant no longer has neck pain. 8. Claimant currently has difficulty operating a motor vehicle. 9. Claimant still has not sought alternative employment other than inquiring of her personal physician Page 4 for work. 10. Claimant's physical condition is unchanged since the prior award. CONCLUSIONS OF LAW Claimant has failed to show that she has suffered a change of condition since the prior award. Claimant is not an odd-lot employee. WHEREFORE, the decision of the deputy is reversed. ORDER THEREFORE, it is ordered: That claimant shall take nothing from these proceedings. That defendants are to pay the costs of this action including the costs of transcribing the hearing. Signed and filed this ____ day of May, 1991. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Page 5 Copies To: Mr. Sheldon M. Gallner Attorney at Law 803 Third Avenue PO Box 1588 Council Bluffs, Iowa 51502 Mr. Greg Knoploh Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 2905 - 4100 Filed May 24, 1991 CLAIR R. CRAMER before the iowa industrial commissioner ____________________________________________________________ : MARGARET J. REED, : : Claimant, : : vs. : : File No. 647621 GLENWOOD STATE HOSPITAL : SCHOOL, : A P P E A L : Employer, : D E C I S I O N : and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2905 Claimant was previously awarded industrial disability of 70 percent, with a rating of impairment of 30 percent of the body as a whole. Claimant seeks review-reopening. Claimant testified that she now experiences the same restrictions and symptoms as before the prior award, with the exception of a neck pain that is no longer present. The same doctor who examined her before testified that her condition had not deteriorated, and reiterated the same rating of impairment. Claimant also failed to show a non-physical change of condition. Held on appeal that claimant had failed to carry her burden to show a change of condition not contemplated by the original award of benefits that would justify a change in the award. 4100 Claimant sought a finding of odd-lot, but claimant had not made any effort to find employment. Claimant found not to be an odd-lot employee. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICHARD WHITMORE, Claimant, File No. 648488 vs. R E V I E W - IOWA DEPARTMENT OF R E O P E N I N G TRANSPORTATION, D E C I S I O N Employer, and F I L E D STATE OF IOWA, JAN 18 1990 Insurance Carrier, INDUSTRIAL SERVICES Defendants. INTRODUCTION This is a proceeding in review-reopening from a memorandum of agreement filed September 30, 1980. The case was heard and fully submitted at Cedar Rapids, Iowa on December 20, 1989. The record in this proceeding consists of testimony from Richard K. Whitmore and jointly offered exhibits 1 through 22. Claimant was not allowed to introduce the medical bills which he seeks to recover in this proceeding because he could not demonstrate that he had complied with the service requirements of the hearing assignment order dealing with service of exhibits and exhibit lists. Claimant's supervisors were not allowed to testify because claimant had not served a witness list. ISSUES Claimant filed this proceeding in order to obtain workers' compensation benefits for the time that he was off work for surgery, payment of the medical expenses involved with the surgery and to require the employer to reimburse his sick leave account for the sick leave that was used and charged while he was off work for the surgery. The employer asserted that the claim was barred by the provisions of Iowa Code section 85.26. The employer had not raised section 85.26 as a defense in its answer, did not raise it at the time of the prehearing conference and the issue was not contained in the hearing assignment order which was issued on July 11, 1989. On November 29, 1989, the employer filed a Motion to Dismiss which was overruled on procedural grounds since it had already answered. The employer's subsequent motion to amend the hearing assignment order in order to permit the issue of the Code section 85.26 defense to be considered was filed December 11, 1989. On January 3, 1990, the deputy industrial commissioner who issued the hearing assignment order overruled the motion to amend the answer and hearing assignment order. The defense is therefore not available to the employer. One issue is therefore determination of claimant's entitlement to weekly compensation for temporary total disability or healing period. Claimant expressly denied any claim for permanent partial disability compensation. The remaining issue is determination of claimant's entitlement under Code section 85.27. It was stipulated by the parties that in the event of an award, the employer would be entitled to credit for sick pay in the amount of $3,243.60 and for medical expenses in the amount of $1,450.40 under the provisions of Iowa Code section 85.38(2) for nonoccupational group plan payments. In the description of disputes filed by the employer, particularly paragraph 11, the employer asserts that since claimant failed to amend his petition in order to claim temporary total disability, healing period or permanent partial disability, he should be prohibited from receiving the same. The hearing assignment order shows temporary total disability or healing period to be an issue to be determined at hearing, but also contains the statement "claimant will amend within 14 days." In paragraph 12, the employer asserts that they are not liable for payment of medical benefits because the same were paid by the employer's group health insurer. In paragraph 13, the employer asserts that there is no causal relationship between the 1980 injury and the 1988 toe problem which resulted in the surgery which is the subject of this proceeding. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. There is really little dispute about the material facts and events in this case. Richard K. Whitmore has been employed by the Iowa Department of Transportation as a Maintenance Man I since May, 1972. In 1980, he slipped while getting onto a backhoe and suffered a crush type injury just behind the toes of his left foot. Claimant related that the joints in his foot were smashed. Whitmore received medical treatment under the direction of E. A. Dykstra, M.D., an Iowa City orthopaedic surgeon. Dr. Dykstra's reports showed compound fractures beneath the fourth and fifth metatarsals (exhibits 1 and 14). On January 16, 1981, Dr. Dykstra indicated that there would be a small amount of permanent disability resulting from the injury (exhibit 6). On August 11, 1981, Dr. Dykstra noted that claimant had developed a hallux valgus deformity. In that note, Dr. Dykstra referred to previous hammertoe surgery on claimant's second toe. He also indicated that the crush injury had been markedly aggravated and that claimant may need a partial proximal phalanectomy of the second toe and Mitchell bunionectomy (exhibit 7). The Mitchell bunionectomy was performed on October 28, 1981 (exhibits 8 and 10). In early 1988, Whitmore returned to Dr. Dykstra with continued complaints regarding his left foot. In Dr. Dykstra's notes, he states: Richard has not been seen here for approximatly [sic].four years. He suffered a crush injury to his foot back in 1980. He subsequently went on and had a bunion surgery performed on the foot due to the gait patterns in 1981. Had done reasonably well until the past 1- 1 1/2 years. Now has increasing symptoms related to the 2nd metatarsal. Has a massive enlargement of the proximal phalanx of the 2nd toe with a painful callosity in the bottom aspect of the toe. Due to the deformity of the toe it is felt that this is related to the old crush injury and subsequent gait changes from the injury back in 1980. Dr. Dykstra went on to recommend that claimant undergo surgery on his foot. The surgery was performed on March 30, 1988. The operative report describes it as, "Removal of the proximal one-third of the proximal phalanx of the second toe, left foot." (Exhibit 16.) When testifying, claimant stated that he.had a hammertoe condition prior to the 1980 injury, but that it had not been a problem for him prior to the injury. He denied receiving any medical treatment for it prior to the injury. Claimant stated that when it healed after the injury, it healed "cockeyed." When Dr. Dykstra saw claimant on August 11, 1981, the notes of that office visit state, "He has had previous hammertoe surgery on that side and may be unable to bring it clear over." That note does not state whether the purported hammertoe surgery was prior or subsequent to the 1980 injury. It could be interpreted in either manner. When claimant was hospitalized on March 30, 1988 for the most recent surgery, the medical history includes the following statement: Underwent a previous hammertoe release of this toe, distal part of the foot several years ago in approximately 1980, and then, went on and suffered a severe crush injury to this foot with multiple metatarsal fractures in 1981. Subsequently went on to heal without difficulty from this except that he has had increasing enlargement of the proximal phalanx of his second toe. Whitmore testified that he was off work on account of the surgery from March 18 through May 26, 1988. Exhibit 21, a copy of the employer's time records, shows March 18, 1988 to have been claimant's last day.of work and that he returned to work on Monday, May 23, 1988. Dr. Dykstra's notes of February 9, 1988 indicate that claimant would be off work approximately 3-6 weeks as a result of the surgery. A subsequent note of May 12, 1988 releases claimant to return to light-duty work on May 18, 1988 (exhibit 17). The parties agreed that whenever claimant had been off work for the injury prior to 1988 he had been paid weekly compensation, the last of which was paid in January, 1982, and that prior to 1988 all of claimant's medical expenses relating to treatment of the foot injury had been paid by the employer. Claimant's petition was filed in this case on March 18, 1988. Exhibit 22 was identified by claimant as expenses incurred in obtaining treatment for his foot, the amounts paid by the employer's group insurance and the amounts which were not paid by insurance. In paragraph 8 of the prehearing report the parties had stipulated that the expenses were reasonable and necessary medical treatment for the condition upon which this claim is based and that the fees charged are fair and reasonable. Exhibit 22 shows total charges in the amount of $2,091.45 with the employer's group insurance of Blue Cross/Blue Shield having paid $1,450.40. The remaining unpaid balance would therefore compute to $641.05. Provider Charges BC/BS Balance Edward Dykstra, M.D. $ 776.00 $ 288.00 $ 488.00 Towncrest X-ray 38.50 34.65 3.85 Mercy Hospital 980.95 882.85 98.10 Peter Anderson, M.D. 270.00 234.90 35.10 Victor Edwards, M.D. 26.00 10.00 16.00 Total $2,091.45 $1,450.40 $ 641.05 APPLICABLE LAW AND ANALYSIS A memorandum of agreement conclusively establishes an employer-employee relationship and the occurrence of an injury arising out of and in the course of employment. Trenhaile v. Quaker Oats Co., 228 Iowa 711, 292 N.W. 799 (1940); Fickbohm v. Ryal Miller Chevrolet Co., 228 Iowa 919, 292 N.W. 801 (1940). It does not establish the nature or extent of disability. Freeman v. Luppes Transport Co., 227 N.W.2d 143 (Iowa 1975). It is not necessary to show a change of condition in order to review the payment which has been made under the unilateral filing of a memorandum of agreement. Caterpillar Tractor Co. v Mejorado, 410 N.W.2d 675 (Iowa 1987). The claimant has the burden of proving by a preponderance of the evidence that the injury of September 17, 1980 is the cause of the disability and medical expenses on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Aggravation of a preexisting condition is one form of compensable injury. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. 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 v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 5081, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). The primary issue in this case deals with causation. Dr. Dykstra is the only physician who has expressed an opinion upon the issue of causation. His February 9, 1988 report provides an opinion which causally relates the deformity of the toe for which the 1988 surgery was performed to the 1980 injury. There is no conflicting expert opinion evidence in the record of this case. There is admittedly some question or confusion regarding a preexisting hammertoe, whether there had been surgery on that same toe prior to the 1980 crush injury, and how that relates to the current situation. The record does not contain any evidence which clearly shows that there had been a surgery on the toe prior to 1980. The history contained in medical records is not always accurate. The 1988 history and physical is clearly incorrect since it places the crush injury as having occurred in 1981. The August 11, 1981 medical report does not indicate whether the alleged hammertoe surgery had been performed before or after the 1980 injury. Claimant denied any pre-1980 injury problems with the toe. In short, there is nothing in the record of this case which directly conflicts with Dr. Dykstra's opinion of causation. Expert medical opinions must be accepted unless the record provides some clear basis for rejection. Leffler v. Wilson & Co., 320 N.W.2d 634 (Iowa App. 1982). The only result which can be reached from the evidence that was presented is that the claimant's 1988 surgery was proximately caused by the 1980 crush injury to his foot. While there is a possibility that the 1980 injury may have been an aggravation of a preexisting hammertoe condition, that fact, even if it be true, does not relieve the employer of liability. The record of this case contains no evidence to support the employer's contention that the 1988 surgery was not necessitated by the 1980 crush injury. If this case had been properly adjusted by those responsible for adjusting workers' compensation claims, the claimant's medical expenses would have been paid in full under the provisions of Iowa Code section 85.27. It should be noted that there is no statute of limitations on medical expenses, only upon weekly benefits. The adjuster would then have explained Code section 85.26 to the claimant and perhaps the claimant would not have continued to pursue this action. It is noted that claimant's petition was filed prior to the date of the surgery. The employer clearly had adequate notice that claimant sought workers' compensation benefits for the surgery, but for some reason it declined to pay the medical expenses. If those medical expenses had been paid, the cost to the state would have been only $641.05 more than what has been paid through the Blue Cross/Blue Shield group insurance. The charges from Dr. Edwards were incurred in 1984 and do not appear related to the 1988 surgery. They are not shown to be related to the 1980 injury. If the medical expenses had been paid and the claimant had persisted in pursuing his claim before this agency, a motion for summary judgment would have easily resulted in a dismissal of the claim at an early stage in the proceedings. It is clear that more than three years had elapsed since weekly benefits were paid. If the case were to be decided on the merits, without procedural technicalities, the claimant would not be entitled to weekly compensation benefits for the time he was disabled on account of the 1988 surgery by virtue of Iowa Code section 85.26(2). Rather than pay the medical expenses for which the employer is clearly liable, this case proceeded through litigation. It consumed many hours of time for the assistant attorney general who defended the case and for the staff of the industrial commissioner's office in order to process the claim, conduct the prehearing conference, rule upon motions, travel to and preside at the hearing, and issue this decision. It would be the undersigned's estimate that the time of the industrial commissioner's staff and assistant attorney general which has been devoted to this case would be somewhere in the range of 12 hours. A reasonable, conservative estimate of the value of the services, and the resulting cost to the taxpayers, would be somewhere in the range of $900.00, an amount in excess of the unpaid medical expense. Claimant's claim is also for weekly benefits, however. The claimant did not amend his petition. There is also, however, no motion from the employer to have any particular sanction imposed for the failure to amend. Any such motion should have been directed to the deputy who conducted the prehearing conference, the same as the motion to amend the hearing assignment order and for leave to amend the answer. The Iowa Supreme Court long ago made the policy decision that an application for arbitration is not a formal pleading and is not to be judged by the technical rules of pleading. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 373, 112 N.W.2d 299 (1961). The issue of temporary total disability or healing period was clearly raised at the time of the prehearing conference and the hearing assignment order shows it as an issue to be decided. Accordingly, the employer's objection to allowing any recovery based upon the failure to amend the petition cannot be granted by the undersigned. There is no explanation in the record with regard to why claimant would have been off work prior to the date of surgery, March 30, 1988. Dr. Dykstra released him to return to work effective May 18, 1988. Claimant's entitlement to compensation for healing period disability is therefore determined to commence on March 30, 1988 and to end on May 17, 1988, the day prior to the date when he was released to return to work. This covers a span of seven weeks which is not irreconcilable with Dr. Dykstra's initial assessment that claimant would be off work for approximately 3-6 weeks. Additional healing period disability compensation cannot be awarded for the balance of the time when claimant was off work because there is no medical evidence in the record to establish that he was disabled during those times. The employer is therefore responsible for payment of seven weeks of compensation for temporary total disability at the stipulated rate of $158.99 per week payable commencing March 30, 1988. Since it was not necessary for claimant to show a change of condition in order to recover, his entitlement to interest runs from the date each payment came due. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). This totals an additional $1,112.93 plus interest of tax dollars which must be expended as a result of the claim handling practices which were used in this case. Perhaps the claim was denied because it was felt that the claimant would not be able to obtain the services of an attorney to represent him for such a small amount. Perhaps the claim was denied because those adjusting the claims felt that the claimant would become so mired and confused in the procedural technicalities of practice before the industrial commissioner that he would be unable to prevail, regardless of the validity of his claim. They were nearly right. If joint exhibit 22 had not been offered into evidence, claimant would not have been able to recover his medical expenses in view of his failure to comply with the procedural technicalities. Those same procedural technicalities have resulted in claimant recovering seven weeks of compensation benefits which he would not have been entitled to recover if the procedural technicalities did not exist. The deputy commissioner is strictly limited to deciding only those issues which are raised at the time of the prehearing conference. Since the limitations defense was not raised properly, it cannot be relied upon. Moudry v. Protivin Fire Dep't., file number 753632 (App. Decn. August 16, 1988). This case is one which should not have been forced into litigation by denial of the claimant's claim for medical expenses. Once placed into litigation, it developed into a "comedy of errors." Interestingly, however, the claimant has probably not experienced a substantial windfall. It is noted that Dr. Dykstra had indicated that there would be some permanency. Judging by the description of the injury and its seriousness which appears in the records, the undersigned would expect some permanency to have resulted. The seven weeks of compensation are approximately equal to what the claimant would have received for a five percent permanent partial disability of the foot, an amount which is within the range of what the undersigned would expect an orthopaedic surgeon to assign as a permanent impairment rating if such had been requested in this case. While the result in this case is not what would have occurred if the case had been decided strictly on the merits, neither is it a substantial miscarriage of justice or windfall when it is compared to what likely would have been paid if the employer had asked Dr. Dykstra for a permanent impairment rating in 1981 and paid in accordance with that rating. It was stipulated by the parties that claimant had been paid sick leave for the time he was off work and that defendants are entitled to credit for those payments. The amount of credit for such is authorized on a week-to-week basis, rather than dollar-for-dollar where the amount of the payment exceeds the weekly compensation rate. Division of Industrial Services Rule 343-8.4. Beeler v. Union Electric Co., III Iowa Industrial commissioner Report 22 (App. Decn. 1983). The seven weeks of liability has therefore been satisfied by sick leave payments. This agency does not, however, have subject matter jurisdiction to compel the employer to adjust its sick leave accounts, although adjustment would appear to be warranted under the provisions of Iowa Code section 85.38(3). This record contains no information upon which to compute an award under Iowa Rule of Civil Procedure 80(a). FINDINGS OF FACT 1. The injury which claimant sustained to his left foot on September 17, 1980 was a substantial factor in producing the need for the surgery which was performed on March 30, 1988 and of the expenses of medical treatment incurred in connection with that surgery. 2. As a result of the March 30, 1988 surgery, Richard K. Whitmore was medically incapable of performing work in employment which was substantially similar to that he performed at the time of injury in 1980 commencing March 30, 1988 and running until May 18, 1988 when claimant was released to return to work. 3. Dr. Dykstra's opinion which causally connects the 1988 surgery to the original 1980 injury is correct. 4. The medical expenses claimant incurred in obtaining treatment for claimant's foot and in connection with the 1988 surgery total $2,091.45 as shown in exhibit 22. After allowing credit for payments made by the group carrier, the amount of $641.05 remains unpaid. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The injury which claimant sustained on September 17, 1980 was a proximate cause of the surgery which was performed upon claimant's left foot on March 30, 1988 and also of the resulting expenses of medical treatment and for the seven weeks of recuperation following that surgery. 3. Claimant's failure to amend his petition, despite being ordered to do so, does not deny him an award of healing period or temporary total disability where it was identified as an issue on the hearing assignment order and no motion or request for sanctions had been properly made prior to the time of hearing. 4. Where the limitation provided by Iowa Code section 85.26(2) was not raised as an issue at the time of prehearing conference, that defense is unavailable unless the hearing assignment order has been amended accordingly by the deputy industrial commissioner who conducted the prehearing conference. 5. The employer is responsible for payment of the following medical expenses totalling $641.05 as follows: Provider Charges BC/BS Balance Edward Dykstra, M.D. $ 776.00 $ 288.00 $ 488.00 Towncrest X-ray 38.50 34.65 3.85 Mercy Hospital 980.95 882.85 98.10 Peter Anderson, M.D. 270.00 234.90 35.10 Victor Edwards, M.D. 26.00 10.00 16.00 Total $ 2,091.45 $1,450.40 $ 641.05 6. The employer is responsible for payment of seven weeks of compensation for temporary total disability commencing March 30, 1988. Claimant is entitled to receive seven weeks of temporary total disability compensation, all of which has been satisfied by the employer's sick leave payments. 7. This agency lacks jurisdiction to compel the employer to reinstate or reimburse claimant's sick leave account. ORDER IT IS THEREFORE ORDERED that claimant's entitlement to seven (7) weeks of temporary total disability compensation has been completely satisfied by the employer's sick leave plan. IT IS FURTHER ORDERED that defendants pay the following medical expenses which remain unpaid after payment of group insurance benefits: Provider Charges BC/BS Balance Edward Dykstra, M.D. $ 776.00 $ 288.00 $ 488.00 Towncrest X-ray 38.50 34.65 3.85 Mercy Hospital 980.95 882.85 98.10 Peter Anderson, M.D. 270.00 234.90 35.10 Victor Edwards, M.D. 26.00 10.00 16.00 Total $2,091.45 $1,450.40 $ 641.05 IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 18th day of January, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Richard K. Whitmore 702 Allamakee Street Waukon, Iowa 52172 CERTIFIED AND REGULAR MAIL Mr. Robert P. Ewald Assistant Attorney General Iowa Department of Transportation 800 Lincoln Way Ames, Iowa 50010 1402.30, 1403.30, 2301 2402, 2501, 2906, 3700 Filed January 18, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICHARD WHITMORE, Claimant, VS. File No. 648488 IOWA DEPARTMENT OF R E V I E W - TRANSPORTATION, R E 0 P E N I N G Employer, D E C I S I 0 N and STATE OF IOWA, Insurance Carrier, Defendants. 1402.30, 2501, 3700 Six years after the last payment of weekly compensation claimant required additional treatment. The only medical evidence in the record found that the treatment was causally connected to the original injury. It was held that expert medical opinions cannot be arbitrarily rejected. Claimant was allowed to recover medical expenses based upon a joint exhibit, even though his offer of the actual medical bills was overruled due to his failure to comply with the service and exhibit list requirements of the hearing assignment order. 1403.30, 2402, 2906 The employer's section 85.26 defense to the claim for additional weekly benefits was denied on the procedural grounds that the issue had not been raised at the time of the prehearing conference and was not shown on the hearing assignment order. 2906 Claimant was allowed to recover temporary total disability where the same was shown on the hearing assignment order, even though he did not amend his petition as had been apparently directed on the hearing assignment order. Defendants had made no motion for sanctions prior to the time of hearing based upon the failure to amend. The claimant was pro se. 2301 The agency was held to not have subject matter jurisdiction to require the employer to adjust claimant's sick leave account. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _______________________________________________________________ MARY MOCK, File No. 649902 Claimant, R E V I E W RALSTON PURINA COMPANY, R E 0 P E N I N G Employer, D E C I S I O N and AETNA LIFE & CASUALTY CO., Insurance Carrier, Defendants. ________________________________________________________________ INTRODUCTION This is a proceeding in review-reopening brought by Mary Mock, claimant, against Ralston Purina Company, employer, and Aetna Life and Casualty Company, insurance company, for the recovery of further benefits as the result of an injury of September 29, 1980. This matter was heard October 21, 1986 at the Bicentennial Building in Davenport, Scott County, Iowa. It was considered fully submitted at the conclusion of the hearing. The record in this proceeding consists of the testimony of claimant and claimant's exhibits 1 through 28. STIPULATIONS AND ISSUES Pursuant to the prehearing report and order approving the same, the parties stipulated as follows: 1. Claimant received an injury arising out of and in the course of her employment on September 29, 1980. 2. Claimant's injury caused temporary total and permanent disability. 3. Claimant's time off work for healing period benefits were for the following periods of time: September 29, 1980 through October 12, 1980 October 28, 1980 through November 2, 1980 March 2, 1981 through April 26, 1981 July 20, 1982 through August 22, 1982 4. The permanent disability suffered by the claimant was to the left leg; however, if it extends to her back, it is to the body as a whole. 5. The commencement date for payment of permanent MOCK V. RALSTON PURINA Page 2 disability is August 23, 1982. 6. Claimant's rate of compensation is $201.38. 7. All medical benefits requested by claimant have been or will be paid by defendants. 8. Claimant has been previously paid fifteen and five- sevenths weeks of temporary total disability benefits. The issues to be resolved in this proceeding are the nature and extent of disability suffered by claimant and whether such disability is causally related to the injury of September 29, 1980. EVIDENCE PRESENTED Claimant testified she is thirty-nine years old and resides in Leavenworth, Kansas. She is a high school graduate with no further training. Claimant advised that she was employed by defendant from September 1977 until January 1986 when she was laid off. The defendant is a manufacturer of dog and cat food products. She said her primary job with defendant was operating a bone marrow stuffing machine. She said this involved watching the machine to make sure there were no spills and keeping the hoppers filled. The job included lifting up to fifty or sixty pounds plus a lot of standing and climbing of steps and ladders. Claimant said she was injured on September 29, 1980 shortly after she started her 3:00 to 11:00 p.m. shift. She was moving buckets of material along a catwalk over her machine and fell through an open space in it. She said she fell about ten or twelve feet straight down landing on her feet and then falling to the floor. Claimant recalled that it felt as though her left leg from her waist down had gone to sleep and she was unable to get up. Claimant said she was taken to the hospital by ambulance and noted swelling in her left leg particularly around the knee. Most of her complaints at that time involved the knee, but claimant later began to experience back pain. She denied prior problems with either of those areas. Claimant returned to work about two weeks after her accident. She said her knee felt very unstable and she had a pain in her back like a toothache. She received physical therapy on the knee for sometime. Claimant said her leg was treated by a couple of different doctors and she was admitted to the hospital in March 1981. Claimant had an operation on her knee in July 1982. In June 1983 she attended a back program. She said she was last treated by a doctor in June 1984 when she was released to work with a forty to fifty pound lifting restriction. Claimant disclosed that in 1977 she received chiropractic treatment for right hip pain and upper back pain which resolved. She added, however, that she still experienced upper back pain with heavy lifting. She was last treated for the upper back problem the early part of 1980. Following her injury, except for periods of temporary MOCK V. RALSTON PURINA Page 3 disability, claimant was able to do her regular job. She continued in this position until her January 1986 layoff. Claimant said she continues to have persistent problems with her left leg. It appears to bend backwards after she stands on it for long periods of time. She now tries to avoid stairs. She said she also has back and hip discomfort which causes her to sit to the right. She treats this with an occasional aspirin and heat. She added that she learned back mechanics at the back school which seemed to help somewhat. Claimant has not received medical treatment for his condition for sometime. Claimant explained that she had prior work experience with the Hallmark Company where she worked as a quality control supervisor. She also ran a candle making machine for that company. Her only other employment was with the Quad Cities Die Casting Company where she ran a punch press. She acknowledged that her layoff was the result of a plant wide work force reduction. She is presently twentieth from the bottom of the plant seniority list. Claimant said she has learned to live with her condition though it flares-up on occasion for no apparent reason. The majority of the time she can work an average day without significant back pain. She said that for about three years following her injury she could not do all of the jobs at defendant but can do so now. On cross-examination claimant again reviewed her employment history. She denied having been told by doctors that one leg is shorter than the other which is the cause of her back and hip pain. She said she has for the most part been able to adjust her life style and activities to minimize her problems with the back and knee. Claimant's exhibit I is a copy of claimant's records from the Moline Chiropractic Center under the care of James R. Vana, D.C. These records show that claimant was first treated by Dr. Vana in early 1977 with a primary complaint of dorsal spine pain and a secondary complaint of right hip and foot pain. Claimant apparently received about twelve treatments for the problem through September 1977. She next saw claimant in February with complaints she related to her fall at work. Claimant stated her complaints to be low back pain, tilted pelvis, and sciatic nerve damage. Claimant's exhibit 2 is a copy of a health insurance claim form filed by claimant for her 1977 chiropractic treatment. Claimant's exhibit 3 is a copy of a September 29, 1980 x-ray report indicating there had been no fracture or dislocation of claimant's left knee. Exhibit 4 is a copy of clinical notes from The Davenport Clinic concerning claimant's treatment there from 1979 through the early part of 1983. Initial treatment at the clinic concerned a cut finger. Treatment for injuries sustained in claimant's fall at work commenced October 1, 1980. Initial notes indicate claimant injured her left leg and back in the fall and contusions in those areas were noted. It appears that claimant's back problems continued or recurred for sometime. It is noted that these clinical notes are exceedingly difficult to read. MOCK V. RALSTON PURINA Page 4 Claimant's exhibit 5 is a copy of x-ray reports dated October 1, 1980, October 28, 1980, and February 20, 1981. Impressions of the lumbar spine were spondylolysis of L5 on the left and transitional L5 with partial sacralization of the transverse processes. Exhibit 6 is a copy of a surgeon's report dated October 1, 1980 by P. 0. Atienza, M.D. This indicates injuries to claimant's left leg and back with no permanent defect anticipated. Claimant's exhibit 7 is a copy of the progress notes of Richard L. Kreiter, M.D., concerning claimant for the period from November 12, 1980 to March 30, 1984. Dr. Kreiter's initial diagnosis was resolving injury to left knee with possible anterior cruciate ligament injury and medial collateral strain and resolving low back strain. Claimant was followed intermittently thereafter with occasional flare-ups of both the back and knee problems. In October 1981 the doctor diagnosed a possible medial meniscus tear in the left knee. Her back pain continued intermittently aggravated by mechanical activity. In July 1982 claimant underwent an arthroscopic examination of her knee which included an interarticular shaving. Progress notes through March 1984 continue to show off and on problems with both the knee and the back. Claimant's exhibit 8 is a copy of the records from her March 1981 hospitalization. Claimant was diagnosed and treated for low back syndrome. Exhibit 9 is attending physician reports for a March 1981 hospitalization. These reports disclose that claimant's work injury was the cause of her low back syndrome. Exhibit 10 is a June 17, 1981 report from Dr. Kreiter to the safety manager at defendant. At that time the doctor did not except claimant's restrictions to be permanent. Exhibit 11 is a letter from J. H. Sunderbruch, M.D., dated June 29, 1981 concurring with Dr. Kreiter's June 17, 1981 assessment of claimant. Exhibit 12 is a letter dated February 24, 1982 from Dr. Kreiter to the insurance carrier outlining claimant's condition and treatment and suggesting the possibility of an arthroscopic examination. Exhibit 13 is a copy of claimant's hospital records concerning the arthroscopic surgery. The results of this surgery were discussed above. Exhibit 14 is a surgeon's report from Dr. Kreiter relating the need for the knee surgery to the work injury. Exhibit 15 is a report dated November 2, 1982 from Dr. Kreiter to the insurance carrier advising that the result of the arthroscopic examination disclosed an abnormal lateral meniscus. He states that the condition was probably congenital and not related to claimant's injury. He did not anticipate significant disability. Exhibit 16 is a letter dated February 7, 1983 to claimant's counsel requesting claimant schedule another appointment with him if she was having additional trouble with her knee. Exhibit 17 is a letter from the doctor to claimant's attorney advising that claimant's injury probably aggravated her preexisting congenital problem. He assigned a five percent impairment to the left lower MOCK V. RALSTON PURINA Page 5 extremity as a result of the injury. He also discusses her back condition, but no impairment rating is given. Exhibit 18 is additional office notes from Dr. Kreiter. Exhibit 19 is a surgeon's standard report from M. K. Skoglund, M.D., dated July 6, 1983 stating that claimant suffered from chronic lumbosacral strain syndrome. Claimant's exhibit 20 is a July 28, 1983 physical therapy report indicating claimant did not attend his last three physical therapy sessions. Exhibit 21 is copies of various release to work notes for claimant during her periods of temporary disability. Exhibit 22 is a copy of the insurance claim filed by Dr. Vana for his 1984 treatment of claimant. Exhibits 23 is a copy of a June 5, 1984 letter from Dr. Kreiter to defendants commenting upon claimant's limitations which he said would include limited forward flexion, squatting, and lifting more than fifty pounds repeatedly. Exhibit 24 is an October 14, 1985 medical report from Robert W. Milas, M.D., to the insurance carrier. According to this report, Dr. Milas examined claimant on October 11, 1985. The doctor recites a brief history of claimant's injury and treatment as we'll as the nature of his physical examination. Dr. Milas diagnosed spondylolysis involving L5 on the left. He believed that the source of claimant's spondylolysis may have been traumatic in origin, particularly in light of her history of no problems prior to the injury. EHe recommended no further treatment but did suggest that claimant find employment with limited physical demands. In a subsequent report dated December 10, 1985 (exhibit 25), Dr. Milas assigned a twenty percent permanent impairment rating to claimant's body as a whole. Exhibit 26 is a medical-occupational evaluation of claimant from Mercy Hospital in Des Moines, Iowa. According to this report, claimant has a five percent impairment to her lower left extremity. The report states that an assessment of the causitive relationship between claimant's spondylolysis and her injury. They stated, however, that if x-rays taken prior to the injury do 6 MOCK V. RALSTON PURINA not reveal a spondylolysis then she had in fact sustained an acute spondylolysis which would accordingly change her prognosis. Exhibit 27 is a September 26, 1986 report from Dr. Milas. In this report Dr. Milas states that he did review claimant's x-rays taken by Dr. Vana in 1977. Dr. Milas concluded that the 1977 x-rays were quite inadequate to document crispy bony detail. He also reviewed October 28, 1980 x-rays from Davenport Medical Center. He said he was unable to see the spondylolysis on the films, but opined that they may have been taken at a point to early following the injury to see the detail at the fracture site. He also said that the angle at which the x-rays were taken may have concealed the spondylolysis. Finally, claimant's exhibit 28 is a copy of the AMA Guides to the evaluation of permanent impairment. Those guides disclose that a grade I or II spondylolysis is rated as an impairment equal to twenty percent of the whole man. APPLICABLE LAW The claimant has the burden of proving by a preponderance of the evidence that the injury of September 29, 1980 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). 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 v. Central Telephone Co., 261 Iowa 352, 154 N.W.128 (1967). 7 MOCK V. RALSTON PURINA It would appear that claimant's left knee injury did cause permanent disability by aggravating a preexisting congenital defect. The doctor's opinion is, admittedly, somewhat equivocal but on the record as a whole, persuasive on this point. The more difficult question in this case is the back injury. Dr. Milas is of the opinion that claimant suffered L5 spondylolysis on the left. He opined that the source of claimant's condition was traumatic in origin. Dr. Milas' opinion is subject to question, however, since he concluded that the x-rays taken of claimant's back October 28, 1980 did not show the L5 spondylolysis while the reports issued at the time clearly make reference to this problem. See exhibit 5. The issue is not helped by the report of the doctor at the Mercy Hospital Medical Occupational Evaluation Center in Des Moines, Iowa. In essence, that report merely concludes that claimant's back condition may or may not have been caused by her injury. It is thus apparent that the answer to the question of causation between the injury and claimant's back condition cannot be resolved solely on the basis of the medical opinions. The controlling factor in this case is the credibility of the claimant. Certainly claimant experienced some right hip pain in early 1977 but she testified that this problem cleared up and she did not have further problems with her back until her injury at work. It does not appear that the problems she experienced in 1977 with her right hip are the same as she experienced after her injury. Even if it is assumed that claimant's 1977 problems were the result of the same back condition as she now has, it is clear that the impairment at that time was temporary in nature and that subsequent to her work injury, the impairment is both permanent and disabling. Thus, in either case, a material aggravation of the condition occurred. Nothing else in the record suggests any other cause other than the work injury which brought about her present condition. 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 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 8 MOCK V. RALSTON PURINA 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). Although the degree of functional impairment suffered by claimant pursuant to the AMA Guides is significant, it is obvious that claimant has been able to function quite well from an industrial disability perspective. She was returned to and in large part has been able to fulfill the duties of her job. She is presently on layoff status due to noninjury-related factors. In addition, claimant has demonstrated excellent motivation and has been successful in adapting her life to the limitations from which she suffers. On average, it appears claimant can perform work on a regular eight hour per day basis without significant back pain. She continues, however, to suffer occasional flare-ups of her condition. It would appear that the injury suffered by claimant does not preclude her from the types of employment she has been able to perform in the past. It does not appear that claimant suffers significant physical restrictions because of her injury. Her primary limitation involves the left knee which gives her difficulty on frequent occasions. While claimant did have a long period of recuperation, she has reached the point where she could do all of the jobs at defendants that she could have done prior to her injury. It is apparent that claimant suffered considerably in achieving this goal. Based upon all of the considerations of industrial disability, claimant has shown an industrial loss equal to 9 MOCK V. RALSTON PURINA fifteen percent of the body as a whole. FINDINGS OF FACT WHEREFORE, the following facts are found: 1. On September 29, 1980 claimant suffered an injury at work when she fell through a hole in a catwalk at work. 2. As a result of the fall, claimant materially aggravated a preexisting congenital defect in her left knee. 3. As a result of the fall, claimant suffered or materially aggravated a preexisting condition in her back in the form of a L5 spondylolysis on the left causing a twenty percent body as a whole impairment. 4. Claimant underwent a long period of recuperation and was temporarily totally disabled for intermittent periods of time. 5. Claimant has recovered without significant physical limitations although she does suffer significant impairment. 6. Claimant was able to return to work though she is presently on layoff due to economic reasons. 7. Claimant has demonstrated excellent motivation to return to the work force. IT IS THERFORE CONCLUDED: 8. Claimant is physically and mentally capable of engaging in the type of employment for which she is suited. 9. Claimant's rate of compensation is $201.38 10. The commencement date for payment of permanent partial disability is August 23, 1982. 11. Claimant has suffered a permanent disability for industrial purposes equal to fifteen percent of the body as a whole. CONCLUSIONS OF LAW Claimant has proven by a preponderance of the evidence that there is a causal relationship between her injury and the disability that arises from impairment to her knee and back. Claimant has proven by a preponderance of the evidence that she has suffered an industrial disability as a result of her injury equal to fifteen (15) percent of the body as a whole. ORDER IT IS THEREFORE ORDERED that defendants pay unto claimant seventy-five (75) weeks of compensation for permanent partial disability commencing August 23, 1982 at her rate of two hundred one and 38/100 dollars ($201.38). All accrued payments shall be 10 MOCK V. RALSTON PURINA made in a lump sum together with statutory interest thereon. Costs of this action are taxed to defendants. Defendants are to file a claim activity report upon completion of this award. Signed and filed this 27th day of February, 1987. STEVEN E. ORT DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. John H. Westensee Attorney at Law 1703 Second Avenue Rock Island, Il Mr. Larry L. Shepler Attorney at Law 600 Union Arcade Bldg. 111 E. Third Street Davenport, Iowa 52801 1108; 1402.30; 1402.40; 1803 Filed: February 27, 1987 STEVEN E. ORT BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ MARY MOCK, Claimant, RALSTON PURINA COMPANY, File No. 649902 Employer, R E V I E W and R E 0 P E N I N G AETNA LIFE & CASUALTY CO., D E C I S I 0 N Insurance Carrier, Defendants. _________________________________________________________________ 1108; 1402.30; 1402.40; 1803 Employer in this case admitted injury to knee but denied back injury. Issues were nature and extent of permanent partial disability, if any. Record sufficient to show aggravation of preexisting knee problem. Much more equivocal on back. Controlling factor was the was the credibility of the claimant which was enough for her to meet her burden. Fifteen percent permanent partial disability of the body as a whole disability awarded. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES WEHNER, File No. 649913 Claimant, R E V I E W VS. R E 0 P E N I N G K-MART CORPORATION, Employer, Self-Insured, Defendant. STATEMENT OF THE CASE This is a proceeding in review-reopening brought by James Wehner, claimant, against K-Mart Corporation, employer who is self-insured for the purposes of the workers' compensation act, for additional workers' compensation benefits as a result of an injury on June 26, 1980. A prior final arbitration decision for this injury was filed on April 30, 1984, in which claimant was awarded weekly compensation benefits for a 50 percent industrial disability. On October 4, 1988, a hearing was held on claimant's petition in this proceeding and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing from claimant and Rita McGrew. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. Claimant is seeking healing period benefits from March 1, 1986 through September 30, 1986. 2. There is no longer a dispute with reference to entitlement to medical benefits. ISSUES The parties submitted the following issues for determination in this proceeding: WEHNER V. K-MART CORPORATION Page 2 I. Whether claimant suffered a change in condition as a result of the work injury. II. The extent of claimant's entitlement to additional weekly benefits for disability. STATEMENT OF THE FACTS The following is a brief statement highlighting some of the more pertinent evidence presented. Whether or not specifically referred to in this statement, all of the evidence received at the hearing was independently reviewed 'and considered in arriving at this decision. Any conclusions about the evidence received contained in the following statement should be viewed as preliminary findings of fact. On June 26, 1980, claimant slipped and fell at work and injured his low back resulting in severe pain extending into his buttocks and legs. Claimant was surgically treated twice following this injury by Jerome Bashara, M.D., a board certified orthopedic surgeon. Despite these two surgeries, claimant's low back never fully recovered and it was found after the last hearing on February 7, 1984, that claimant had suffered a permanent partial impairment of 25 percent to the body as a whole. This finding was based upon the impairment rating by Dr. Bashara, claimant's treating physician. At that time, Dr. Bashara also opined that claimant was employable but only with restrictions on his lifting, bending, stooping and twisting. Prior to the 1984 hearing, another board certified orthopedic surgeon, Marshall Flapan, M.D., opined that claimant had suffered a 40 percent permanent partial impairment to the body as a whole from the 1980 injury. This doctor reported that claimant complained to him at the time of the examination in 1983 that any type of sitting, standing or prolonged activity caused a lot of pain which required him to lay down. He reported that claimant even had difficulty waiting in his outer waiting room prior to the examination. Dr. Flapan also stated that claimant would have to limit his bending, lifting, pushing and pulling of objects. Dr. Flapan stated at that time as well that claimant will have recurrent episodes of back difficulties in the future and further surgery may be necessary. It was found in the 1984 arbitration decision that claimant was working at the time of the hearing.as an apartment overseer with his wife. Claimant earned at that time $100 a month plus free rent. Claimant testified that this employment was located at the Royal Motel. Later that year claimant said that he moved to Jefferson, Iowa and managed with his wife an apartment house for $200 a month plus free rent. Claimant and his wife then separated for a few months during which time claimant stayed with his brother in the State of Illinois. Claimant WEHNER V. K-MART CORPORATION Page 3 and his wife reunited in 1985 and began managing an apartment complex called Village West for a nine or ten month period in 1987. Claimant also worked part-time for Midwest Janitorial Services. Claimant said that he quit this janitorial service job because of his back problems. In 1987, claimant then began managing another apartment complex called Plex 40. Claimant currently is employed in this capacity and receives a salary of $500 a month plus free rent. Claimant's stepdaughter testified in this proceeding that despite his varied employments since the last hearing, she and her husband perform for claimant the physical duties required of apartment managers such as painting and-maintenance work. Much of the bookwork is apparently performed by claimant's wife who is receiving social security benefits. However, the stepdaughter admitted that she and her then boyfriend performed physical work for claimant when they were all living together at the Royal Motel at the time of the last hearing. Claimant testified that his back condition worsened between March and September 1986, during which time he received medical treatment from Broadlawns Medical Center. This treatment was for acute back pain on three occasions during the period of time. Claimant stated at hearing that he remained as an apartment manager during this period and was paid his normal salary and fringe benefits. On January 27, 1983, claimant was evaluated by Dr. Flapan who reported that he had previously seen claimant in January and September of 1983 and in September of 1985. After review of recent x-rays, Dr. Flapan stated that there was little change in claimant's back condition from his evaluation in 1983 and that his original ratings of impairment remain unchanged. He did, however, find additional bilateral degenerative arthritis in claimant's hips but stated that this was unrelated to his lower back problems. Claimant admitted at hearing in this proceeding that Dr. Flapan told him in 1983 that he "probably would be getting worse instead of better." Claimant testified that he felt that his physical condition has worsened since the time of the last hearing. APPLICABLE LAW AND ANALYSIS In a review-reopening proceeding, claimant has the burden of establishing by a preponderance of the evidence that he suffered a change of condition or a failure to improve as medically anticipated as an approximate result of his original injury, subsequent to the date of the award or agreement for compensation under review which entitles him to additional compensation. Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969); Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa Ct. App. 1978). Such a change of condition WEHNER V. K-MART CORPORATION Page 4 is not limited to a physical change of condition. A change in earning capacity subsequent to the original award which is approximately caused by the original injury also constitutes a change in condition under Iowa Code section 85.26(2) and 86.14(2). See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). Claimant had received a partial commutation of all but one week of the last part of the remaining weekly benefit period under the arbitration award of 1984 and was paid this commutated amount on September 12, 1984. Defendants in this case urge that claimant is not entitled to a review-reopening proceeding because there has been commutation and cites its authority Iowa Code section 85.26(2). However, claimant's rights to a review-reopening are only extinguished upon a full commutation, not a partial commutation as in this case, see Iowa Code section 85.48. As the commutation was for the last part of the period, claimant is entitled to a review-reopening if such a proceeding is initiated within three years of the payment of the commuted amount. See Lawyer & Higgs, Iowa Workers' Compensation -- Law & Practice, section 27-2, page 224. As claimant's petition in this case was filed on June 30, 1986, less than two years following the payment of the partial commutation, claimant is entitled to a review-reopening proceeding. However, the greater weight of evidence presented in this case fails to show a change of condition caused by the work injury. This agency must rely upon medical experts in such decisions and no medical expert medical evidence was offered to support claimant's view that he has worsened. The only new finding by Dr. Flapan was a hip problem unrelated to the 1980 injury. The lay evidence is also not convincing. Although the undersigned believes that claimant cannot perform the physical duties of apartment management and must rely upon his wife and others to perform such work, this situation is no different than what existed at the time of the last hearing in 1984. Claimant has not shown evidence that he suffered a nonphysical change in earning capacity since 1984. In fact, claimant's earnings are more today than it was in 1984. Claimant's temporary episode of severe back pain in March 1986, was not unexpected. Recurrent episodes of back pain is consistent with the views of Dr. Flapan in 1983. Claimant is not entitled to healing period benefits for this period of time unless his back.condition was expected to improve with such treatment at Broadlawns. Iowa Code section 85.34(l). However, the treatment he actually received was only maintenance in nature and not designed to materially improve the overall back condition. WEHNER V. K-MART CORPORATION Page 5 Although claimant did not prevail in these proceedings due to a lack of evidence to support his personal opinion, the undersigned believes that he was sincere at least in his belief that he has worsened and neither he nor his stepdaughter were deliberately attempting to deceive this agency. Therefore, claimant will be awarded the costs of this action. FINDINGS OF FACT 1. Since the hearing of February 7, 1984, claimant has worked as an apartment manager at three separate locations and has received steadily increasing salary and fringe benefits from such activity. 2. Claimant is not able to fully perform bookkeeping work and the physical work of an apartment manager and must rely upon others to do such work. This disability, however, preexisted the last hearing of February 7, 1984. 3. Claimant continues to suffer from severe back problems and has recurrent episodes of pain requiring medical treatment. CONCLUSIONS OF LAW Claimant has failed to establish under law a change of industrial disability caused by the June 26, 1980 work injury and is not entitled to additional weekly benefits. However, claimant has incurred recurrent episodes of back pain related to such work injuries and is entitled to medical benefits for treatment of those.recurrent episodes of back pain. ORDER 1. Claimant's petition is dismissed and his claim is denied. 2. Defendant K-Mart Corporation shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 23rd day of May, 1989. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER WEHNER V. K-MART CORPORATION Page 6 Copies To: Mr. Max Burkey Attorney at Law 100 Court Ave., STE 121 Des Moines, Iowa 50309 Mr. Joel T. S. Greer Attorney at Law 112 W. Church St. Marshalltown, Iowa 50158 51404 Filed May 23, 1989 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES WEHNER, File No. 649913 Claimant, R E V I E W VS. R E 0 P E N I N G K-MART CORPORATION, D E C I S I 0 N Employer, Self-Insured, Defendant. 51404 - Nonprecedential Failure to carry the burden to show a change of condition casually connected by the original work injury, the claim for review-reopening was denied.