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 
 

 
            
 
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            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 
 

 
            
 
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            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.
 

 
            
 
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                 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 
 

 
            
 
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            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 
 

 
            
 
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            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 
 

 
            
 
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                 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 
 

 
            
 
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            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 
 

 
            
 
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            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.