BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEVIN SPENCE,
 
          
 
               Claimant,                           File  No.  667226
 
          
 
          VS.                                      A P P E A L
 
          
 
          GRIFFIN WHEEL COMPANY,                             D E C I S I O N
 
          
 
               Employer,
 
               Self-Insured,
 
               Defendant.       
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from a review-reopening decision awarding 
 
         further permanent partial disability benefits as the result of an 
 
         alleged injury on April 10, 1981.  The record on appeal consists 
 
         of the transcript of the review-reopening proceeding; and joint 
 
         exhibits 1 through 19, and 22 through 26.  Both parties filed 
 
         briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendant states the following issues on appeal:
 
         
 
              I.  Did the deputy commissioner err in finding that a change 
 
              in claimant's condition occurred subsequent to the first 
 
              settlement and award on April 13, 1984?
 
              
 
              II.   Did the deputy err in finding a significant existence 
 
              of a finding that claimant had a mental problem proximately 
 
              caused by the April 10, 1981 injury?
 
              
 
              III.  Did the deputy err in finding that claimant suffered a 
 
              back problem which was proximately caused by the April 10, 
 
              1981 injury to his foot?
 
              
 
              IV.  Did the deputy err by basing his decision upon ... 
 
              mistaken findings of fact and misapplications of law?
 
         
 
         
 
         
 
         SPENCE v. GRIFFIN WHEEL COMPANY
 
         Page 2
 
         
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be set forth 
 
         herein.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and the evidence.  In addition, the 
 
         following authority is applicable:
 
         
 
              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 
 
         may also constitute a change of condition.  Meyers v. Holiday Inn 
 
         of Cedar Falls, Iowa, 179 N.W.2d 24 (Iowa App. 1978).
 
         
 
              A settlement has the same effect as an award of benefits.  
 
         Upon review-reopening, claimant must show a change of condition 
 
         subsequent to the settlement.  To show a change of condition, 
 
         claimant must show what his prior condition was at the time of 
 
         the settlement.  Pilcher v. Penick & Ford, Appeal Decision, 
 
         October 21, 1987.
 
         
 
              Claimant has the burden on review-reopening to establish by 
 
         a preponderance of the evidence that he has suffered a change of 
 
         condition as a proximate result of the original injury subsequent 
 
         to the date of the agreement for compensation.  Deaver v. 
 
         Armstrong Rubber Co., 170 N.W.2d 455, 457 (Iowa 1969).
 
         
 
              As a general rule, a claimant may not introduce evidence of 
 
         injuries, existing at the time of a previous award, for the first 
 
         time on review to claim additional benefits. Gosek v. Garmer and 
 
         Stiles Co., 158 N.W.2d 731, 732 (Iowa 1968).
 
         
 
              Claimant on review-reopening must show more than a change of 
 
         circumstances has occurred.  Claimant must show that the change 
 
         of circumstances was not contemplated by the
 
         
 
         
 
         
 
         SPENCE v. GRIFFIN WHEEL COMPANY
 
         Page 3
 
         
 
         
 
         original award.  Huffman v. Keokuk General Hospital, Appeal 
 
         Decision, August 22, 1988.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant seeks a further award of benefits under 
 
         review-reopening.  Since claimant was previously given an award 
 
         of benefits in a settlement on April 13, 1984, claimant bears the 
 
         burden of showing that a change of condition has occurred since 
 
         April 13, 1984, justifying an award of further benefits.  An 
 
         aggravation of claimant's condition subsequent to the settlement 
 
         and not contemplated by the settlement would justify a further 
 
         award of benefits.  Similarly, a failure of claimant's condition 
 
         to improve as contemplated by the settlement may also justify an 
 
         award of further benefits.  Claimant must also show that the 
 
         condition he now seeks benefits for is causally connected to his 
 
         original injury of April 10, 1981.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant alleges his condition has worsened in two respects 
 
         since the settlement.  Claimant urges that his back is now 
 
         impaired as a result of a change in his gait, which was in turn 
 
         caused by the failure of blisters and lesions on his foot to 
 
         heal.  Secondly, claimant alleges he now surfers a mental 
 
         impairment due to a fear of returning to a factory environment, 
 
         and the Griffin Wheel environment in particular.
 
         
 
              Claimant's allegations in regard to his back will be 
 
         addressed first.  The testimony of Donald Mackenzie, M.D., 
 
         indicates claimant presently has a five percent impairment of the 
 
         body as a whole due to his back condition.  However, although Dr. 
 
         Mackenzie relates claimant's back condition to his gait and in 
 
         turn to his foot, Dr. Mackenzie does not opine as to whether or 
 
         not claimant's back problem developed before or after the 
 
         settlement.  Claimant admitted at the hearing that he had 
 
         problems with his gait already in 1981 and continuing through 
 
         1982 and 1983.
 
         
 
              Claimant also acknowledged he experienced back pain prior to 
 
         the settlement.  A medical report attached to the settlement 
 
         mentions claimant's back-problem.  Charles Eddingfield, M.D., 
 
         prior to the settlement, indicated that claimant would have a 
 
         limp as a result of his toe amputation, and that back problems 
 
         could result.  Just prior to the settlement, Bruce L. Sprague, 
 
         M.D., stated claimant was having back problems stemming from his 
 
         gait.  Thus, claimant's alleged back condition was contemplated 
 
         by the 1984 settlement.
 
         
 
         
 
         
 
         SPENCE v. GRIFFIN WHEEL COMPANY
 
         Page 4
 
         
 
         
 
              Claimant testified that although the gait and back pain 
 
         problems existed prior to the settlement, he felt they were worse 
 
         now.  Claimant argues that his back problems did not worsen prior 
 
         to the settlement because he spent much of the two and one-half 
 
         years between the injury and the settlement in hospitals and off 
 
         his feet, and that the back problems arose when he returned to 
 
         work and was on his feet more.  However, claimant returned to 
 
         work on September 25, 1983, more than seven months prior to the 
 
         settlement.  If the mere fact of being on his feet, as opposed to 
 
         being hospitalized, were responsible for an increase in back 
 
         pain, this would have manifested itself prior to the settlement.
 
         
 
              The only significant change in claimant's job duties 
 
         occurring after the settlement was the additional duty of 
 
         delivering mail two times daily.  There is no showing in the 
 
         record that this activity requires any particular physical stress 
 
         to claimant, such as extensive walking or lifting heavy mail 
 
         containers.  There is no medical evidence dealing with the 
 
         effects of this increased duty on claimant's back.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Although claimant described numerous changes in his daily 
 
         activities allegedly due to his increased back pain, claimant 
 
         only related these changes to occurring after his injury.  
 
         Claimant failed to establish that these changes occurred after 
 
         the 1984 settlement. (See Transcript, pages 53-60; 67-71.) 
 
         Claimant has failed to carry his burden to show a change of 
 
         condition with his back subsequent to the 1984 settlement.
 
         
 
              Claimant also alleges a change of condition in regard to his 
 
         mental condition.  Craig Blaine Rypma, M.D., testified that 
 
         claimant suffers from a permanent partial mental impairment, 
 
         based on claimant's anxiety when working around factory 
 
         equipment.  Defendant's psychologist offered a contrary opinion.  
 
         Dr. Rypma had considerably more contact with claimant, including 
 
         the conducting of tests.  However, even if Dr. Rypma's assertion 
 
         that claimant suffers a permanent mental impairment is accepted, 
 
         claimant has offered no medical evidence indicating that 
 
         impairment arose or worsened after the 1984 settlement.  Again, 
 
         claimant's testimony merely establishes that his mental condition 
 
         did not exist prior to the injury.  Claimant does not establish 
 
         that it did not exist prior to the settlement, or that it has 
 
         been aggravated since the settlement.  Claimant's testimony 
 
         reveals that he experienced nightmares about his injury and 
 
         working in the factory immediately after the injury and ever 
 
         since. (See Tr., pp.62, 83.) Dr. Rypma was unable to state when 
 
         claimant's mental condition arose, but was only able to state 
 
         that it was not a long term chronic condition.    Thus, claimant 
 
         has failed to establish
 
         
 
         
 
         
 
         SPENCE v. GRIFFIN WHEEL COMPANY
 
         Page 5
 
         
 
         
 
         that his present mental condition arose subsequent to the 
 
         settlement.
 
         
 
              Claimant alleges that being required to go into the factory 
 
         environment twice daily to deliver mail has aggravated his mental 
 
         impairment.  However, the testimony of Dr. Rypma does not 
 
         establish this.  Claimant may be exposed to the source of his 
 
         anxiety more often now than at the time of his settlement.  
 
         However, there is no medical testimony to show that exposure has 
 
         increased his mental impairment.  Dr. Rypma did not examine 
 
         claimant prior to the settlement and was unable to provide an 
 
         opinion on whether claimant's present mental condition is any 
 
         worse than it was prior to the settlement.  At most, Dr. Rypma 
 
         could only state that claimant's condition would prevent him from 
 
         working inside the factory.  Dr. Rypma also stated that claimant 
 
         was capable of doing his present job.  Claimant has failed to 
 
         show that his mental impairment has been aggravated by his change 
 
         in job duties requiring him to deliver mail into the factory two 
 
         times daily.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has failed to establish a change in his mental 
 
         condition not contemplated by the 1984 settlement.
 
         
 
              Claimant's back pain and anxiety toward his work environment 
 
         existed at the time of the 1984 settlement and did not arise 
 
         subsequent to the settlement.  Claimant has also failed to show 
 
         that his back condition and mental condition have deteriorated in 
 
         a manner not contemplated by the settlement.  Claimant has failed 
 
         to show a change of condition.
 
         
 
              Although the above determinations effectively resolve the 
 
         appeal, even if claimant had shown changes of condition relating 
 
         to either his back or his mental condition, claimant has failed 
 
         to establish that those present conditions are causally related 
 
         to his injury.
 
         
 
              Claimant experienced a severe car accident on January 11, 
 
         1985, subsequent to the settlement.  This accident resulted in 
 
         the demolition of claimant's vehicle.  Claimant was thrown into 
 
         the back seat.  Claimant suffered a back injury in this accident.  
 
         The medical records of the accident show claimant experienced an 
 
         injury to his neck and back.  Claimant argues that most of the 
 
         damage from this accident was to his neck, rather than his lower 
 
         back.  The record is unclear whether Dr. Mackenzie was informed 
 
         of this accident when he examined claimant.  Claimant at his 
 
         deposition stated that his back pain caused by his gait extended 
 
         all up and down his back.  At the hearing, claimant stated that 
 
         the upper back pain was from his car accident, and the lower back 
 
         pain from his gait.
 
         
 
         
 
         
 
         SPENCE v. GRIFFIN WHEEL COMPANY
 
         Page 6
 
         
 
         
 
              Claimant has also suffered other injuries, including a 
 
         motorcycle accident in which he had two broken legs and a broken 
 
         wrist.
 
         
 
              Claimant bears the burden of proof to show that his present 
 
         back condition is causally connected to his original injury.  It 
 
         is impossible from the record to determine what effect claimant's 
 
         1985 car accident has had on claimant's present back condition.  
 
         Claimant has failed to carry his burden.
 
         
 
              Claimant also has the burden to show that his present mental 
 
         condition is causally connected to his original injury.  As 
 
         previously stated, Dr. Rypma was unable to determine when 
 
         claimant's mental impairment arose.  Because of this, Dr. Rypma 
 
         cannot state that the present impairment is causally related to 
 
         the work injury.  In addition, claimant's other injuries from his 
 
         two accidents may be contributing causes of his present anxiety.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Furthermore, claimant's answers to Dr. Rypma's questionnaire 
 
         are relevant to an assessment of Dr. Rypma's conclusions as well 
 
         as assessing claimant's credibility. when asked what he thought 
 
         therapy with Dr. Rypma would do for him, claimant answered: "Get 
 
         me a quicker, more lucrative settlement."  When asked how long 
 
         the therapy should last, claimant answered: "As long as necessary 
 
         to establish a cause-treatment-cure impression for the courts." 
 
         When asked for any other information thought by claimant to be 
 
         relevant, claimant stated: "I want my large settlement in one 
 
         chunk and to be rid of Griffin Wheel forever (if possible)."
 
         
 
              Claimant has failed to carry his burden to establish that 
 
         his present mental condition is causally connected to his work 
 
         injury.
 
         
 
              Defendant's final issue on appeal concerns several findings 
 
         of fact allegedly not supported by the record.  The deputy found 
 
         that claimant is restricted to working in a clean enviornment.  
 
         There is no medical testimony establishing this restriction, 
 
         other than a general statement that claimant should not go back 
 
         to work at the foundry.  Claimant does suffer from unhealed 
 
         lesions on his feet.  However, the medical testimony shows that 
 
         during some medical examinations, claimant had lesions, and on 
 
         other occasions, his amputation was described as "well healed."  
 
         These examinations were conducted by various doctors at various 
 
         times.  It is concluded that claimant's foot lesions are not 
 
         permanent, but sporadic.  There was testimony indicating that the 
 
         lesions were caused by the type of shoe claimant wore.
 
         
 
         
 
         
 
         SPENCE v. GRIFFIN WHEEL COMPANY
 
         Page 7
 
         
 
         
 
              At any rate, apparently the deputy based his conclusion that 
 
         claimant had a restriction not to work in a dirty environment 
 
         upon his visual observation of these lesions at the hearing.  
 
         However, since presumably claimant's feet would be encased in 
 
         shoes at all times he worked, the cleanliness of the work 
 
         environment would appear to have no logical relationship to his 
 
         foot lesions.  There is no support in the record for concluding 
 
         that claimant is restricted to working in a clean environment.
 
         
 
              The deputy also concluded that claimant's foot sores caused 
 
         his gait problems, which in turn caused his back problems.  
 
         Although there is support in the record for this, it cannot be 
 
         determined from the record to what extent the presence of foot 
 
         sores was contemplated by the parties at the time of the 
 
         settlement.  At any rate, it was contemplated that, by virtue of 
 
         the loss of his toes, claimant would have a limp regardless of 
 
         whether foot sores developed.
 
         
 
              The deputy concluded that claimant's present job is 
 
         unsuitable for him.  However, the record shows claimant has 
 
         performed at such job for over five years.  Claimant stated he 
 
         does not dislike the job, and acknowledges he can perform it. The 
 
         job was custom made for claimant by his employer, with his 
 
         restrictions in mind.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The stability of claimant's job is not a proper 
 
         consideration.  Claimant's circumstances at the time of the 
 
         hearing are controlling.  Basing any further award upon the 
 
         possibility that claimant might lose his job in the future would 
 
         be speculation.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant suffered an injury to his foot on April 10, 
 
         1981, resulting in the amputation of his toes.
 
         
 
              2.  Claimant and defendant entered into an agreement for 
 
         settlement in 1984.
 
         
 
              3.  Claimant was injured in a car accident in 1985 that
 
         resulted in an injury to his back.
 
         
 
              4.  Claimant experienced problems with his gait and
 
         with his back prior to the 1984 settlement.
 
         
 
              5.  Claimant experienced anxiety about his work envi-
 
         ronment prior to the 1984 settlement.
 
         
 
         
 
         
 
         SPENCE v. GRIFFIN WHEEL COMPANY
 
         Page 8
 
         
 
         
 
              6.   Claimant had returned to work prior to the 1984 
 
         settlement.
 
         
 
              7.   Claimant is presently employed at the same job he
 
         held at the time of the 1984 settlement, with the additional
 
         duty of delivering mail inside the plant twice daily.
 
         
 
              8.  Claimant is able to perform the duties of his present
 
         job.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to carry his burden to establish a 
 
         change of his mental condition not contemplated by the 1984 
 
         settlement.
 
         
 
              Claimant has failed to carry his burden to establish a 
 
         change of his back condition not contemplated by the 1984 
 
         settlement.
 
         
 
              Claimant has failed to show that his present back condition 
 
         is causally connected to his work injury.
 
         
 
              Claimant has failed to show that his present mental 
 
         impairment is causally connected to his work injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant does not have a restriction requiring work in a 
 
         clean environment.
 
         
 
              WHEREFORE, the decision of the deputy is reversed.
 
         
 
                                      ORDER
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall take nothing from these proceed-
 
         ings.
 
         
 
              Defendant shall pay the costs of this action.
 
         
 
              Signed and filed this 18th day of October, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         SPENCE v. GRIFFIN WHEEL COMPANY
 
         Page 9
 
         
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, Iowa 52632
 
         
 
         Mr. John E. Kultala
 
         Attorney at Law
 
         511 Blondeau Street
 
         Keokuk, Iowa 52632
 
         
 
         Mr. J. Patrick Wheeler
 
         Attorney at Law
 
         314 North Eleventh St.
 
         P.O. Box 248
 
         Canton, Missouri 63435
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       2905, 5-1108
 
                                       Filed October 18,  1989
 
                                       DAVID E. LINQUIST
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEVIN SPENCE,
 
         
 
              Claimant,                                File No.  667226
 
         
 
         VS.                                     A P P E A L
 
          
 
          GRIFFIN WHEEL COMPANY,                                D E C I S I 0 N
 
          
 
               Employer,
 
               Self-Insured,
 
               Defendant.
 
         
 
         
 
         2905
 
         
 
              Claimant entered into a settlement based on the amputation 
 
         of his toes.  Claimant then filed in review-reopening, claiming 
 
         that the loss of his toes had affected his gait, which in turn 
 
         caused back problems.  Claimant also alleged that he now suffered 
 
         a mental condition (fear of working in a factory environment or 
 
         around heavy machinery) as a result of the earlier injury.  
 
         However, the settlement documents revealed that claimant's 
 
         physicians noted that his gait and back were already affected at 
 
         the time of the settlement.  Claimant failed to prove that these 
 
         conditions became worse after the settlement.  Claimant's 
 
         evidence merely compared his present condition to his condition 
 
         prior to the injury, as opposed to prior to the settlement.  
 
         Claimant also stated he had nightmares about the injury "ever 
 
         since the accident"  Again, claimant failed to establish that any 
 
         mental condition occurred subsequent to the settlement and was 
 
         not contemplated by the settlement.  Claimant failed to carry his 
 
         burden to show a change of condition.
 
         
 
         5-1108
 
         
 
              Claimant failed to show his back condition was causally 
 
         connected to hill injury where intervening automobile and 
 
         motorcycle injuries to the back occurred and claimant's 
 
         physicians failed to causally connect the condition to his work 
 
         injury.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEVIN SPENCE,                 :
 
                                          :
 
                 Claimant,                :      File No. 667226
 
                                          :
 
            vs.                           :        R U L I N G
 
                                          :
 
            GRIFFIN WHEEL COMPANY,        :            O N
 
                                          :
 
                 Employer,                :     R E H E A R I N G
 
                 Self-Insured,            :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            statement of the case
 
            Claimant has been granted a rehearing of the appeal decision 
 
            of October 18, 1989.
 
            issues
 
            Claimant states the following issues on appeal:
 
            
 
                 A.  Claimant did not establish that the change in 
 
                 mental condition was not contemplated by the 1984 
 
                 settlement and further, did not show that the 
 
                 mental condition was causily [sic] connected to 
 
                 the work injury.
 
            
 
                 B.  That claimant did not establish that the 
 
                 change of his back condition was not contemplated 
 
                 by the 1984 settlement nor that his back condition 
 
                 was causily [sic] connected to his work injury.
 
            
 
                 C.  That claimant does not have a restriction 
 
                 requiring work in a clean environment.
 
            applicable law
 
            The citations of law in the appeal decision are appropriate 
 
            to the issues and the evidence.
 
            analysis
 
            Claimant on rehearing argues the record shows he did 
 
            establish a change of condition subsequent to the settlement 
 
            in this case entitling him to a further award for back 
 
            problems and a psychological overlay allegedly stemming from 
 
            the work injury that resulted in the amputation of his toes.
 
            However, it is found claimant has failed to establish a 
 
            change of condition occurring subsequent to the settlement 
 
            and not contemplated at the time of the settlement.  The 
 
            analysis, findings of fact and conclusions of law in the 
 
            October 18, 1989 appeal decision were correct and are 
 
            restated at this time.
 
            In addition, the following analysis of claimant's rehearing 
 
            arguments is appropriate.  Claimant states in his rehearing 
 
            application and brief that the evidence should be "read in 
 
            the light most favorable to claimant."  This is an incorrect 
 
            statement of the law.  This is not a motion for summary 
 
            judgment.  Claimant bears the burden of proof.  Similarly, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            claimant states that once he submitted medical evidence 
 
            concerning his mental condition, "the burden shifted to 
 
            respondents" to rebut that evidence.  Again, claimant bears 
 
            the burden of proving his entitlement to further benefits.
 
            Claimant also misinterprets the word "contemplated."  
 
            Claimant's brief argues that since the alleged mental and 
 
            back conditions were not compensated by the settlement, they 
 
            were therefore not "contemplated."  It may very well be that 
 
            claimant subjectively did not regard the settlement as 
 
            addressing the back and mental complaints.  However, the 
 
            record clearly establishes that both conditions were in 
 
            existence at the time of the settlement.  The medical 
 
            reports attached to the settlement documentation 
 
            specifically mention claimant's back problems.  Claimant's 
 
            attorney, at the deposition of Mark Raymond Knabel, M.D., 
 
            prior to the settlement, made a statement that his client 
 
            was suffering from back problems.  The fact that the 
 
            settlement itself (as opposed to the supporting medical 
 
            records) addressed the foot problem only does not lead to 
 
            the conclusion that the back and mental problems were not 
 
            contemplated at the time of the settlement.  In this 
 
            context, "contemplated" means the conditions and their 
 
            possible compensable nature were known to the parties at the 
 
            time of the settlement.  If claimant chose not to seek 
 
            compensation for those conditions in the settlement, they 
 
            were nevertheless contemplated at the time of the 
 
            settlement.  Review-reopening is available to claimant for 
 
            any condition that arose after the settlement, or failed to 
 
            improve as anticipated, or worsened beyond the contemplation 
 
            of the parties at the time of the settlement.  But further 
 
            benefits under review-reopening are not available to 
 
            claimant where, as here, claimant neglected to seek 
 
            compensation for his back and mental conditions in the 1984 
 
            settlement when those conditions and their relationship to 
 
            his work injury were clearly known to him at the time of the 
 
            settlement.  "Contemplated" in this context is an objective, 
 
            not a subjective, term.
 
            Claimant also argues that his back and mental conditions 
 
            could not have been contemplated by his settlement, as the 
 
            settlement documents described claimant's condition as a 
 
            scheduled injury.  As to claimant's mental condition, the 
 
            case of Cannon v. Keokuk Steel Castings, (Appeal Decision, 
 
            January 27, 1988), establishes that the schedule includes 
 
            the psychological ramifications of a scheduled injury.  A 
 
            separate action for a psychological condition resulting from 
 
            claimant's toe amputation would only be available to 
 
            claimant if his injury otherwise extended to the body as a 
 
            whole.  Claimant chose to settle his case on the basis of a 
 
            scheduled injury, thus abandoning, whether intentionally or 
 
            not, any claim that the foot injury had resulted in a back 
 
            condition, extending his injury to the body as a whole.  Any 
 
            psychological effects of the toe amputation are included in 
 
            the scheduled injury settlement.
 
            Similarly, claimant's argument that respondents have the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            burden to state in the settlement documents that the back 
 
            and mental conditions were not contemplated is unpersuasive.  
 
            Again, claimant bears the burden of proof.  A settlement is 
 
            presumed to contemplate all conditions reasonably known to 
 
            the parties at the time the settlement is reached.
 
            Claimant offers a narrow interpretation of various passages 
 
            of medical testimony to establish that the mental and back 
 
            conditions arose after the settlement.  First, as noted 
 
            above, the presence of the back condition at the time of the 
 
            settlement is beyond dispute.  In regard to the mental 
 
            condition, the testimony of Craig Blaine Rypma, M.D., 
 
            similarly fails to establish when the condition arose, and 
 
            in fact claimant himself described mental problems related 
 
            to his work injury as beginning immediately after the 
 
            injury.  Claimant attempts to read into the single word 
 
            "now" in passages of medical testimony a statement 
 
            equivalent to "since the settlement."  This is not the case.  
 
            Read in context, these passages simply refer to claimant's 
 
            conditions at the time of the depositions, and do not 
 
            establish when those conditions arose.  Claimant has failed 
 
            to establish a change of condition.
 
            Iowa Code section 86.13 states that "[T]his section does not 
 
            prevent the parties from reaching an agreement for 
 
            settlement regarding compensation" (emphasis added).  
 
            Compensation refers to compensation for all known results of 
 
            a work injury.  It is not limited to a particular member 
 
            affected by the injury.  An 86.13 settlement contemplates a 
 
            total settlement of all known results of a work injury.  
 
            Workers' compensation law contemplates two kinds of actions 
 
            for benefits as the result of a work injury.  An arbitration 
 
            action is available to a claimant when no prior benefits 
 
            have been ordered.  A review-reopening action is available 
 
            to claimant when prior benefits have been ordered, but a 
 
            change of condition has occurred that calls for a change in 
 
            the amount of benefits claimant receives. 
 
            Claimant was previously awarded benefits in this case by 
 
            virtue of an agreement for settlement under section 86.13 
 
            that was approved by this agency.  Paragraph 3 of that 
 
            settlement agreement states:  "3.  On payment of the 
 
            benefits agreed on, the self-insured Employer is discharged 
 
            from any liability under the Iowa Workers' Compensation Law 
 
            on account of the Claimant's present condition."
 
            Claimant can only be awarded further benefits through 
 
            review-reopening.  Claimant must show a change of condition.  
 
            Claimant has difficulty showing a change of condition in his 
 
            back or his mental condition unless those items were 
 
            mentioned in his original settlement.  By bringing an action 
 
            in review-reopening, claimant is stating that a change of 
 
            conditions has occurred in regard to his back and his mental 
 
            condition, which indicates that claimant's back and mental 
 
            conditions were contemplated in the original settlement.  
 
            Nor is this a case where claimant's back and mental 
 
            conditions did not exist at the time of the original 
 
            settlement, but became symptomatic after the settlement.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Claimant's back condition and mental condition clearly 
 
            existed at the time of the settlement, although the extent 
 
            of these problems is not established by the settlement.  It 
 
            must be presumed that, since claimant was clearly aware of 
 
            these problems at the time of the settlement, the settlement 
 
            contemplated and compensated these problems.  
 
            Claimant is not arguing that his back condition and his 
 
            mental condition were contemplated in the original 
 
            settlement, and have now worsened.  Claimant denies that 
 
            these conditions were part of the settlement.  Claimant's 
 
            view of settlements under section 86.13 would lead to a 
 
            chaotic situation.  Claimant maintains that any body part 
 
            not specifically mentioned in the settlement documents can 
 
            be acted on later, even if it was known to be affected at 
 
            the time of the settlement.  This would result in an injured 
 
            worker whose injury immediately affects the arm, leg, back 
 
            and hearing, for example, being able to first bring an 
 
            action for the effects on the arm, then another action for 
 
            the leg, another for the back, and so on.  Such multiplicity 
 
            of suits would quickly bog down the workers' compensation 
 
            system.  
 
            Claimant makes an argument that the rationale of the appeal 
 
            decision would require all settlements to list every 
 
            anatomical part of the body not contemplated by the 
 
            settlement.  This argument is also without merit.  Claimant 
 
            is merely required at the time of settlement to address all 
 
            conditions or impairments known to him at that time.  
 
            Claimant would not be precluded from pursuing a claim for 
 
            further benefits if another body part or member is later 
 
            affected by the original work injury if that was not known 
 
            or foreseeable at the time of the settlement.  But claimant 
 
            is precluded from seeking review-reopening benefits for 
 
            conditions that were known to him at the time of the 
 
            settlement.
 
            It is presumed that a settlement entered into by the parties 
 
            settles the case.  A settlement that leaves results of 
 
            claimant's injury uncompensated, only to be pursued later, 
 
            is not a settlement at all.  The workers' compensation law 
 
            does not contemplate partial settlements.  Clearly, 
 
            claimant, in settling his case on the basis of the 
 
            impairment to his foot, when he knew at the time of the 
 
            settlement that he had back problems and mental problems 
 
            from his injury, made an implicit decision to forego 
 
            compensation of those results in favor of certain 
 
            compensation of his foot injury.
 
            Some confusion may stem from the misconception that a 
 
            "settlement" is a physical document.  A settlement under 
 
            section 86.13 contemplates all effects of the injury known 
 
            at the time of the settlement, regardless of whether those 
 
            effects are specifically enumerated in the settlement 
 
            document itself or not.  In this sense, the settlement is 
 
            something broader than a mere paper document labeled 
 
            "settlement."  Effects of the work injury known to claimant 
 
            at the time of the settlement are part of the settlement by 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            operation of law, even if the parties consciously choose to 
 
            omit their enumeration.  Many aspects of the settlement, 
 
            such as claimant's age, education, etc., in an industrial 
 
            disability case, are inherent in the settlement even though 
 
            they are not specifically set out.  All factors that are 
 
            known or should have been known at the time of the 
 
            settlement are within the contemplation of the settlement.
 
            Claimant's final issue on rehearing is whether claimant 
 
            established that he has a medical need to work in a clean 
 
            environment.  The record reveals only that claimant does 
 
            need to keep his foot clean, and that claimant has 
 
            experienced difficulty in finding work shoes for his injured 
 
            foot.  Claimant wears tennis shoes to work.  There is no 
 
            showing that claimant is unable to maintain a clean work 
 
            environment by this method.
 
            findings of fact
 
            1.  Claimant suffered an injury to his foot on April 10, 
 
            1981, resulting in the amputation of his toes.
 
            2.  Claimant and defendant entered into an agreement for 
 
            settlement in 1984.
 
            3.  Claimant was injured in a car accident in 1985 that 
 
            resulted in an injury to his back.
 
            4.  Claimant experienced problems with his gait and with his 
 
            back prior to the 1984 settlement.
 
            5.  Claimant experienced anxiety about his work environment 
 
            prior to the 1984 settlement.
 
            6.  Claimant had returned to work prior to the 1984 
 
            settlement.
 
            7.  Claimant is presently employed at the same job he held 
 
            at the time of the 1984 settlement, with the additional duty 
 
            of delivering mail inside the plant twice daily.
 
            8.  Claimant is able to perform the duties of his present 
 
            job.
 
            conclusions of law
 
            Claimant has failed to carry his burden to establish a 
 
            change of his mental condition not contemplated by the 1984 
 
            settlement.
 
            Claimant has failed to carry his burden to establish a 
 
            change of his back condition not contemplated by the 1984 
 
            settlement.
 
            Claimant has failed to show that his present back condition 
 
            is causally connected to his work injury.
 
            Claimant has failed to show that his present mental 
 
            impairment is causally connected to his work injury.
 
            Claimant has failed to establish that his injury requires 
 
            him to work in a clean environment.
 
            order
 
            THEREFORE, it is ordered:
 
            That claimant shall take nothing from these proceedings.
 
            That defendant shall pay the costs of this action.
 
            Signed and filed this ______ day of June, 1990.
 
            
 
            
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                      ________________________
 
                          DAVID E. LINQUIST
 
                       INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. BOX 1066
 
            Keokuk, Iowa 52632
 
            
 
            
 
            Mr. John E. Kultala
 
            Attorney at Law
 
            511 Blondeau Street
 
            Keokuk, Iowa 52632
 
            
 
            Mr. J. Patrick Wheeler
 
            Attorney at Law
 
            314 N. Eleventh St.
 
            P.O. BOX 248
 
            Canton, Missouri 63435
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          2905
 
                                          Filed June 19, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEVIN SPENCE,                 :
 
                                          :
 
                 Claimant,                :      File No. 667226
 
                                          :
 
            vs.                           :        R U L I N G
 
                                          :
 
            GRIFFIN WHEEL COMPANY,        :            O N
 
                                          :
 
                 Employer,                :     R E H E A R I N G
 
                 Insurance Carrier,       :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            2905
 
            On rehearing, it was again held that claimant had failed to 
 
            show a change of condition.  Also held that "contemplated" 
 
            in this context means that a settlement contemplates all 
 
            known conditions in existence at the time of the settlement, 
 
            whether they are enumerated in the settlement or not.  In 
 
            this case, claimant did not maintain that his back and 
 
            mental conditions arose after the settlement, or that they 
 
            worsened after the settlement.  Rather, claimant maintained 
 
            they were not contemplated by the settlement.  Contemplated 
 
            is an objective, not a subjective, term.  Thus, where 
 
            claimant knew of his back and mental problems at the time of 
 
            the settlement and knew they were related to his work injury 
 
            but nevertheless chose to settle the case on the basis of 
 
            his amputated toes alone, he in effect decided to forego 
 
            compensation for those conditions.  Our law does not 
 
            contemplate partial settlements.  A settlement is not a 
 
            physical document, but an agreed determination of all 
 
            manifested effects of a work injury at a given point in 
 
            time.  
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEVIN SPENCE,
 
                                                     FILE NO. 667226
 
              Claimant,
 
                                                       R E V I E W -
 
         vs.
 
                                                     R E O P E N I N G 
 
         GRIFFIN WHEEL COMPANY,
 
                                                      D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by Kevin 
 
         Spence, claimant, against Griffin Wheel Company, employer 
 
         (hereinafter referred to as Griffin), for workers' compensation 
 
         benefits as a result of an injury on April 10, 1981.  A prior 
 
         approved Iowa Code section 86.13 settlement for this injury was 
 
         executed by the parties on March 26, 1984.  On March 1, 1988, a 
 
         hearing was held on claimant's petition 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 the following 
 
         witnesses: Jerome Neyens, Allen C. Vikdal and Rose Harmon.  The 
 
         exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report.  Official notice was taken of the prior 
 
         settlement papers.  According to the settlement papers, claimant 
 
         was paid a total of 85 weeks for permanent partial disability to 
 
         the left foot which would be equivalent to a 57 percent loss of 
 
         use of that foot.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $198.53 per week.
 
         
 
              2.  Claimant had been paid 85 weeks of compensation at the 
 

 
         
 
         
 
         
 
         SPENCE V. GRIFFIN WHEEL COMPANY
 
         Page   2
 
         
 
         
 
         rate of $198.53 per week prior to the hearing pursuant to the 
 
         agreement of settlement.
 
         ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether claimant has experienced a change of condition 
 
         since the last agreement for settlement; and,
 
         
 
              II. The extent of claimant's entitlement to weekly benefits 
 
         for permanent disability.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that at the time of the work injury, he 
 
         was employed at Griffin as a utility man in the foundry 
 
         department in defendant's manufacturing plant in Keokuk, Iowa.  
 
         Griffin manufactures wheels for railroad cars.  On the date of 
 
         injury, claimant said that his foot became entangled in a 
 
         conveyor mechanism resulting in amputation of all of the toes of 
 
         his left foot.  Treatment consisted of several surgeries and skin 
 
         grafts.  To date, claimant has not returned to work inside the 
 
         Griffin plant.  Since September, 1983, claimant has returned to 
 
         work at Griffin as a security guard.  This job involves more than 
 
         just security work.  Claimant acts as a receptionist, answers 
 
         phone calls, delivers mail to offices both inside and outside of 
 
         the plant building and runs errands along with other various 
 
         clerical duties.  Claimant is currently being paid $10.11 per 
 
         hour for this work.  His hourly rate at the time of the work 
 
         injury was $8.45 per hour.  However, claimant testified that he 
 
         no longer is eligible for overtime work which he states amounted 
 
         to 16 hours per day as a utility man and also included weekend 
 
         work at double time rate.  Claimant said that he worked 50 to 60 
 
         hours per week before the work injury herein.
 
         
 
              Claimant testified that since the 1984 settlement, the skin 
 
         irritation problems he experienced on his skin grafts at the top 
 
         of his left foot are not improving despite several attempts to 
 
         find suitable shoes to prevent the problem.  He now can only wear 
 
         tennis shoes.  Lesions break out in the effected areas causing 
 
         soreness which in turn causes his gait to be worsened which has 
 
         already been modified because of the loss of his toes.  Claimant 
 
         testified that he has now developed back problems due to this 
 
         worsened gait.  Claimant admits to fatigue and tiredness at the 
 
         time of the last settlement in his back, but not to the type of 
 
         pain he has today.  Claimant described a chain of events starting 
 
         with skin problems leading to gait problems eventually leading to 
 
         back pain and disability.
 

 
         
 
         
 
         
 
         SPENCE V. GRIFFIN WHEEL COMPANY
 
         Page   3
 
         
 
         
 
         
 
              Claimant said that his back pain gets worse during the 
 
         latter part of his average work day.  Claimant further states as 
 
         a result of his back problems he cannot shovel snow, scoop 
 
         gravel, rake leaves or carry heavy objects such as small children 
 
         as he once did prior to the 1981 injury.  Claimant said that he 
 
         can no longer perform farm work or go hunting as before.  
 
         Claimant complains of pain upon repetitive bending and lifting.  
 
         In his job, claimant complains of back pain from prolonged 
 
         sitting and walking.  At the time of the March, 1984 settlement, 
 
         claimant's physicians had not opined that claimant had suffered 
 
         any permanent impairment from his back fatigue at that time.
 
         
 
              Claimant denies any prior back problems or injuries before 
 
         1981.  Claimant was involved in an auto accident in 1985 in which 
 
         his car was "rear ended" totally demolishing his car.  Claimant 
 
         was treated at a local hospital for severe neck and mid back 
 
         strain.  There were some complaints involving the low back as 
 
         well.  However, the majority of the complaints and the primary 
 
         diagnosis was neck strain or sprain.
 
         
 
              Claimant has been treated and evaluated by two physicians 
 
         for his back problems since March of 1984.  Claimant has reported 
 
         back complaints to Charles F. Eddingfield, M.D., a board 
 
         certified surgeon, who opines that claimant does have some degree 
 
         of permanent partial impairment due to his gait problem.  
 
         Claimant also has consulted Donald MacKenzie, M.D., an orthopedic 
 
         surgeon.  Dr. MacKenzie likewise believes that claimant's back 
 
         problems are caused by his gait which in turn was aggravated by 
 
         the skin problems in the grafted areas of his left foot.  Dr. 
 
         MacKenzie prescribed Williams exercises for claimant's back 
 
         problems and opines that the back problems can be kept at a 
 
         minimum if claimant performs these exercises.  However, Dr. 
 
         MacKenzie in his deposition testimony opined that claimant will 
 
         still have a five percent permanent partial impairment due to his 
 
         back problems caused by the original work injury of 1981.
 
         
 
              Claimant has also been seen since the settlement by John 
 
         Havey, M.D., another orthopedic surgeon.  Dr. Havey reports that 
 
         he has nothing in his notes of examination about claimant's back 
 
         problems.  Claimant has also been examined by a neurosurgeon, 0. 
 
         Gerald Orth, M.D.  Dr. Orth agrees with the treatment 
 
         recommendations of Dr. MacKenzie with reference to claimant's 
 
         back problems.
 
         
 
              Claimant also claims to have developed psychological 
 
         problems.  Claimant testified that he became extremely fearful of 
 
         further injury when he enters the plant for short periods of time 
 
         in his current job to run errands and deliver the mail.  Claimant 
 
         has been examined by two clinical psychologists Craig Rypma, 
 
         Ph.D., and Todd Heinz, Ph.D.  Dr. Rypma examined claimant on 
 
         several occasions for a period of several weeks.  He opines that 
 
         claimant has permanent mental injuries stemming from the injury. 
 
          The psychologist explains that claimant is not handling his 
 
         disability well and reacts adversely when he is forced to 
 
         confront his disability in daily life situations.  Also, he has 
 
         considerable anxiety and fear of reinjury which is experienced 
 
         while he is physically within a manufacturing plant resembling 
 
         the plant at Griffin.  Due to these two factors, Dr. Rypma states 
 

 
         
 
         
 
         
 
         SPENCE V. GRIFFIN WHEEL COMPANY
 
         Page   4
 
         
 
         
 
         that claimant should be treated to improve his life style but 
 
         that such treatment will not result in a return to a 
 
         manufacturing environment.  Dr. RypmaOs qualifications and 
 
         background are excellent and he was formerly a consultant to the 
 
         United States Senate Labor and Human Resources Committee.
 
         
 
              Dr. Heinz, whose background is unknown, reports from his 
 
         single examination that he did not find any permanent 
 
         psychological problems from his interview and testing of 
 
         claimant.  He indicated that claimant was happy in his present 
 
         job and states that claimant reports that he is not "consumed by 
 
         anxiety."
 
         
 
              Claimant testified that his past employments consist solely 
 
         of nine and a half years as a heavy manual laborer at Griffin 
 
         Foundry performing such duties as draw furnace operation, moving 
 
         molds, pouring moulton steel into molds, baking, spraying, split 
 
         and set gaskets over molds and cleaning of molds.
 
         
 
              All of claimant's treating physicians have restricted 
 
         claimant to working in a clean environment to avoid problems with 
 
         infections in his skin graft irritations.  They also recommend 
 
         that he not return to the foundry and seek an occupational change 
 
         to sedentary employment.  They also recommend that claimant avoid 
 
         temperature extremes.  Claimant states that due to his back 
 
         problems he cannot perform heavy lifting or repetitive lifting or 
 
         bending or stooping; or prolonged sitting or walking.
 
         
 
              Claimant stated at the hearing that he is 29 years of age, 
 
         married and has a high school education.  Claimant has not 
 
         attempted any further training beyond high school.  According to 
 
         Marian Jacobs, a vocational consultant, tests given by her 
 
         indicate that claimant has potential for formal education beyond 
 
         high school.  Jacobs states in her report that absent such 
 
         retraining, claimant's work options are limited to "controlled 
 
         work settings with controlled work duties."  This is due both to 
 
         claimant's physical and psychological factors.  Jacobs indicates 
 
         claimant's potential jobs outside of his current employment at 
 
         Griffin as night clerk, office clerk, receptionist and watchman 
 
         with pay ranging from $4.00 to $5.10 per hour.  Claimant is 
 
         currently making $9.91 per hour.  After retraining, Jacobs opines 
 
         that claimant can be expected to earn from $5.71 per hour to 
 
         $9.00 per hour.  She would also expect claimant to lose fringe 
 
         benefits and opportunities for advancement if he cannot secure 
 
         employment in a union or government work setting.
 
         
 
              A vocational assessment of claimant's situation has also 
 
         been made by Allen C. Vikdal.  Vikdal recommends suitable 
 
         alternative employment for claimant to accomplish this 
 
         retraining.  Vikdal reports that claimant did not mention to him 
 
         any psychological barriers to employment.
 
         
 
              Claimant testified that he enjoys his job at Griffin but 
 
         states that he has been told that it is only temporary.  Claimant 
 
         feels rather insecure in his present position and is unaware of 
 
         his status with reference to union protection.  According to the 
 
         personnel safety director, Rose Harmon, claimant's old job as a 
 
         utility man now pays $11.63 per hour.  She states that claimant 
 
         has been informed of several job openings in the plant such as 
 

 
         
 
         
 
         
 
         SPENCE V. GRIFFIN WHEEL COMPANY
 
         Page   5
 
         
 
         
 
         crane operator, forklift operator, material handler, gasket 
 
         setter, sand mixer and recorder.  Harmon admits that all but the 
 
         recorder job is physically located in the plant which is a dirty 
 
         environment.  She states that the recorder job requires little 
 
         physical effort and very little walking and is located in an 
 
         office separate from the plant.  She states that the office has a 
 
         controlled environment.  The recorder job pays $10.14 per hour.  
 
         She states that claimant has failed to apply for any of these 
 
         positions when he was notified of the openings and that they have 
 
         hired people from the outside to fill some of these openings.  In 
 
         cross-examination she admitted that claimant has not actually 
 
         been offered any of these jobs and would still have to compete 
 
         with others should he apply.  Harmon also testified that 
 
         claimant's current job is not under the union contract and that 
 
         she did not know if claimant could bump back into the plant 
 
         should his current job be abolished.  In rebuttal testimony 
 
         claimant said that he is not physically able to perform the plant 
 
         jobs described by Harmon and that the recorder job was in a dirty 
 
         location, not a union job and not located outside of the plant 
 
         environment.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that he was testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  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 a proximate result of the 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, Iowa 
 
         App. 272 N.W.2d 24 ( M 8).  Such change of condition is not 
 
         limited to a physical change of condition.  A change in earning 
 
         capacity subsequent to the original award which is approximately 
 
         caused by the original injury also constitutes a change of 
 
         condition under Iowa Code section 85.26(2) and 86.14(2). See 
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
         
 
              In the case sub judice, claimant has established a permanent 
 
         worsening of his condition and more importantly an extension of 
 
         the injury into the body as a whole.  The chronic skin graft 
 
         irritations have not improved which has worsened his gait since 
 
         the March, 1984 settlement which has now led to chronic back 
 
         problems and further impairments.  The views of Dr. MacKenzie and 
 
         Dr. Eddingfield which substantiate a permanent partial low back 
 
         impairment are uncontroverted.  Critical to claimant's case was 
 
         his credibility.  From his demeanor, claimant is found to be 
 
         credible.  Although claimant certainly had a serious auto 
 
         accident in 1985, his complaints in this proceeding are to the 
 
         lower back which do not appear to be a major component of the 
 
         1985 accident.
 
         
 
              Claimant has also demonstrated a permanent mental impairment 
 
         resulting from his inability to return to any manufacturing job 
 
         in a plant similar to the plant at Griffin.  The views of Dr. 
 

 
         
 
         
 
         
 
         SPENCE V. GRIFFIN WHEEL COMPANY
 
         Page   6
 
         
 
         
 
         Rypma are given more weight in this proceeding then those of Dr. 
 
         Heinz due to his excellent background and longer and more 
 
         extensive clinical contact with claimant.  Claimant's attorney is 
 
         correct when he argues in his brief that the recent agency case 
 
         of Pilcher v. Penick & Ford, Appeal Decision of the Industrial 
 
         Commissioner filed October 21, 1987, is not applicable.  That 
 
         case appeared to deny additional permanent partial disability 
 
         benefits for a psychological injury arising out of a scheduled 
 
         member case.  However, by virtue of claimant's back difficulties, 
 
         claimant has demonstrated a body as a whole impairment without 
 
         resort to any mental impairment claim.
 
         
 
              Therefore, claimant has shown that he has a five percent 
 
         permanent partial impairment to the body as a whole as a result 
 
         of the injury of April 10, 1981 caused by his chronic back 
 
         difficulties and additional permanent mental impairment which is 
 
         not treatable.  Neither of these impairments existed at the time 
 
         of the March, 1984 settlement.
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 

 
         
 
         
 
         
 
         SPENCE V. GRIFFIN WHEEL COMPANY
 
         Page   7
 
         
 
         
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 
 
         N.W.2d 251, 257 (1963).  See Peterson v. Truck Haven Cafe, Inc., 
 
         (Appeal Decision, February 28, 1985).
 
         
 
              As a result of his foot and back impairments, claimant is 
 
         not able to fully perform physical tasks involving heavy lifting; 
 
         repetitive lifting; bending; twisting and stooping; or prolonged 
 
         walking and sitting.  Claimant is not able to work in a dirty 
 
         environment which severely restricts the number of available 
 
         manufacturing jobs he can perform even in the light duty status.  
 
         Claimant emotionally is unable to return to work in a 
 
         manufacturing plant such as Griffin due to the problems described 
 
         by Dr. Rypma.  As a result, claimant is unable to perform the 
 
         work to which he is best suited and most experienced in, that is 
 
         heavy manual labor in a manufacturing environment.
 
         
 
              Claimant is currently working but his testimony that the 
 
         current work is temporary is uncontroverted.  Claimant is earning 
 
         a substantial hourly rate but this is still less than the rate 
 
         for the job he was performing at the time of the work injury.  
 
         Also, claimant is unable to work overtime as before which 
 
         substantially reduces his yearly income.  In any event, 
 
         regardless of his current earnings, the concept of industrial 
 
         disability involves a loss of earning capacity, not only a loss 
 
         of actual earnings.  See Michael v. Harrison County, 
 
         Thirty-Fourth Biennial Report of the Iowa Industrial Commissioner 
 
         218, 220 (1979).  Therefore, claimant's admirable efforts to 
 
         remain employed at Griffin despite continuing problems with his 
 
         foot and now his back should not be rewarded by failing to 
 
         adequately compensate him for his substantial disability.
 
         
 
              Defendant attempted to point to jobs which claimant could 
 
         have applied for which would stabilize his current position.  
 
         However, claimant credibly testified that he was not physically 
 
         able to perform many of these jobs.  Also, all of the jobs would 
 
         involve working in the foundry which is clearly not a clean 
 
         environment.  With reference to the recorder job, defendant has 
 
         not shown that any particular job was offered to him.  Also, the 
 

 
         
 
         
 
         
 
         SPENCE V. GRIFFIN WHEEL COMPANY
 
         Page   8
 
         
 
         
 
         recorder job, even if it were suitable to claimant physically, it 
 
         is still located within the plant and claimant would experience 
 
         the difficulties as described by Dr. Rypma.
 
         
 
              Claimant is relatively young, 29 years of age and at least 
 
         has a high school education.  All of the vocational 
 
         rehabilitation counselors agree that claimant is retrainable.  
 
         However, he has no history of educational pursuits beyond high 
 
         school.  The future success of any pursuit by claimant of higher 
 
         education and its impact on his earning capacity is much too 
 
         speculative at this time to effect the current determination of 
 
         his industrial disability.  See Stewart v. Crouse Cartage Co., 
 
         appeal decision filed February 20, 1987.
 
         
 
              Claimant's current employment is therefore not suitable 
 
         physically or emotionally.  Also, the stability of such 
 
         employment has not been established.  Claimant has been told that 
 
         this employment is temporary and there is apparently some 
 
         question in claimant's mind and in the mind of management that 
 
         the union will protect him in the event claimant loses his 
 
         current guard job.  Vocational consultants agree that claimant's 
 
         employment possibilities outside of Griffin absent retraining are 
 
         limited.  Jacobs opines that the potential earnings drop would be 
 
         from 49 to 60 percent if he were lucky enough to find suitable 
 
         employment.  Certainly it would be difficult for claimant to find 
 
         any suitable employment given the type of disability he must 
 
         bare.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 65 percent loss of 
 
         his earning capacity from his work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 325 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 65 percent of 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.  As claimant has already been paid 85 weeks 
 
         pursuant to the prior settlement agreement, claimant is entitled 
 
         to an order directing defendant to pay an additional 240 weeks 
 
         from the date of the last payment of permanent partial disability 
 
         benefits pursuant to the prior settlement.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
              
 
              2.  The work injury of April 10, 1981 is a cause of a five 
 
         percent permanent partial impairment to the body as a whole as a 
 
         result of chronic low back difficulties and of permanent 
 
         restrictions upon claimant's physical activity consisting of no 
 
         heavy lifting; no repetitive lifting; bending; twisting or 
 
         stooping; or, no prolonged sitting or standing.  The back 
 
         difficulties resulted from a worsened gait since March, 1984 
 
         caused by failure of claimant's skin graft irritations on the 
 
         left foot to improve.  The work injury of April 10, 1981, is also 
 
         a cause of a permanent mental impairment restricting claimant 
 
         from work activity in a manufacturing environment similar to the 
 
         environment at Griffin and to work which involves only minimum 
 
         contact with other workers and with superiors.  None of these 
 
         permanent impairments existed at the time of the compromise 
 
         settlement in March, 1984.  Prior to that time, claimant's 
 

 
         
 
         
 
         
 
         SPENCE V. GRIFFIN WHEEL COMPANY
 
         Page   9
 
         
 
         
 
         impairment as a result of the work injury was limited to a 
 
         percentage loss of use of the left foot due to a partial 
 
         amputation.
 
         
 
              3.  The work injury of April 10, 1981, and the resulting 
 
         permanent partial impairment and work restrictions is a cause of 
 
         a 65 percent loss of earning capacity.  Claimant is currently 
 
         working but such work is unsuitable and unstable.  Claimant will 
 
         suffer 49 to 60 percent loss in actual earnings outside of his 
 
         current employment.  Claimant is 29 years of age and has a high 
 
         school education.  Claimant's only work history has been in heavy 
 
         foundry work.  Claimant has not attempted formal education beyond 
 
         high school although educational testing reveals that he has an 
 
         aptitude for such schooling.  Absence retraining, claimant is 
 
         only able to secure employment in limited work settings involving 
 
         sedentary, clerical or similar work in a clean and temperature 
 
         controlled environment.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits as awarded 
 
         below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendant shall pay to claimant two hundred forty (240) 
 
         weeks of additional permanent partial disability benefits at the 
 
         rate of one hundred ninety-eight and 53/100 dollars ($198.53) per 
 
         week from the date of the last payment of permanent partial 
 
         disability benefits under the Iowa Code section 86.13 settlement 
 
         entered into by the parties on March 26, 1984.
 
         
 
              2.  Defendant shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              3. Defendant shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
             4. Defendant shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              5.  Defendant shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 10th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 

 
         
 
         
 
         
 
         SPENCE V. GRIFFIN WHEEL COMPANY
 
         Page  10
 
         
 
         
 
         
 
         Mr. James P. Hoffman
 
         Attorney at.Law
 
         Middle Road
 
         Keokuk, Iowa 52632-1066
 
         
 
         Mr. J. Patrick Wheeler
 
         Attorney at Law
 
         314 North Eleventh St.
 
         P. 0. Box 248
 
         Canton, Missouri 63435
 
         
 
         Mr. John E. Kultala
 
         Attorney at Law
 
         511 Blondeau Street
 
         Keokuk, Iowa 52632
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1803
 
                                                     Filed May 10, 1988
 
                                                     LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEVIN SPENCE,
 
                                                   FILE NO. 667226
 
              Claimant,
 
                                                     R E V I E W -
 
         vs.
 
                                                  R E 0 P E N I N G
 
         GRIFFIN WHEEL COMPANY,
 
                                                   D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant awarded an additional 240 weeks permanent partial 
 
         disability benefits upon a showing of a change of condition 
 
         stemming from a prior scheduled member injury.  The original 
 
         injury was a partial amputation of the foot with skin grafts.  
 
         The skin grafts led to worsening of claimant's gait which in turn 
 
         led to permanent impairment to his back.  Claimant is only 
 
         working currently in a temporary job.  His potential loss of 
 
         earnings are substantial and the potential for retraining via 
 
         education beyond high school is only speculative at the present 
 
         time.  Claimant awarded benefits equivalent to a 65 percent 
 
         industrial disability.
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ELDON BRITTAIN,
 
        
 
           Claimant,
 
        
 
        vs.                              File No. 669180
 
        
 
        FISHER CONTROLS,                 A P P E A L
 
        
 
           Employer,                  D E C I S I O N
 
        
 
        and
 
        
 
        INSURANCE COMPANY OF NORTH
 
        AMERICA,
 
        
 
           Insurance Carrier,
 
           Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from a review-reopening decision awarding 
 
        permanent partial disability benefits as the result of an alleged 
 
        injury on May 6, 1981.
 
        
 
        The record on appeal consists of the transcript of the 
 
        review-reopening proceeding; joint exhibit l; and defendants' 
 
        exhibit A. Both parties filed briefs on appeal.
 
        
 
                                      ISSUE
 
        
 
        Defendants state the following issue on appeal: "Whether or not 
 
        claimant is entitled to industrial disability greater than 5 
 
        percent as a result of the injury of May 6, 1981?"
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The review-reopening decision adequately and accurately reflects 
 
        the pertinent evidence and it will not be totally set forth 
 
        herein.
 
        
 
        Briefly stated, claimant worked for defendant Fisher Controls as 
 
        a welder, and later a plumber, since 1963. Claimant's previous 
 
        work experience was as a welder and aviation mechanic. Claimant's 
 
        duties as a plumber required him to lift weights of up to 60 
 
        pounds. Claimant's job description indicated claimant was 
 
        required to bend and stoop, and that mechanical assistance was 
 
        provided for weights over 75 pounds.
 
        
 
        BRITTAIN V. FISHER CONTROLS
 
        Page 2
 
        
 
        
 
        On May 6, 1981, claimant fell 12 feet from a ladder onto a 
 
        concrete floor, landing on his buttocks and injuring his neck and 
 
        low back. Claimant was hospitalized, and x-rays showed a 
 
        compression fracture at the L-1 level. Claimant remained 
 
        hospitalized until May 17, 1981.
 
        
 
        Claimant had previously undergone a cervical fusion of the L5-6 
 

 
        
 
 
 
 
 
        vertebra in March of 1977. Claimant testified that he returned to 
 
        work following the surgery and did not experience any difficulty 
 
        until his fall in May of 1981. After he fell, claimant 
 
        experienced pain in the neck and low back, and was treated by E. 
 
        L. Keyser, M.D. Claimant returned to his job in August of 1981, 
 
        but continued to experience pain in the same area of his low back 
 
        as his fractured vertebra. Claimant reported low back pain to the 
 
        company physician on January 5, 1982, and again on November 3, 
 
        1982.
 
        
 
        On October 5, 1981, Dr. Keyser rated claimant' s lumbar spine 
 
        injury as a five percent permanent impairment of the whole body, 
 
        but stated he was unable to rate claimant's "other complaints 
 
        referable to his neck due to an old injury possibly aggravated by 
 
        this."
 
        
 
        On October 30, 1984, claimant felt a snap in his back, and when 
 
        reporting this to the company medical department, claimant again 
 
        reported that his back had not "been right" since May of 1981. 
 
        Claimant also, at that time, expressed the view that although he 
 
        wished to retire at age 65, he feared that continuing to work 
 
        that long might cause further back problems.
 
        
 
        Claimant retired in February of 1985. Claimant testified that 
 
        this was two years earlier than he planed to retire, and that he 
 
        did so due to the pain in his low back and neck. Claimant also 
 
        testified that retiring early cost him a loss of wages over a two 
 
        year period as well as a $50 per month reduction in retirement 
 
        benefits.
 
        
 
        An x-ray report from B. F. Peters, radiologist, to Dr. Keyser 
 
        dated November 1, 1984, showed "[t]he degenerative change at the 
 
        T-12 L-l level has increased since a previous examination in our 
 
        office in June cf 1981." (Defendants' Exhibit A-5)
 
        
 
        On June 24, 1985, claimant was seen by Robert A. Hayne, M.D., a 
 
        neurosurgeon. Dr. Hayne, who had previously performed claimant's 
 
        fusion surgery in 1977, opined that claimant's neck pain was due 
 
        to degenerative changes in his cervical spine region which were 
 
        aggravated by the fall from the ladder sustained on May 6, 1981, 
 
        and that claimant's L-l fracture was also a result of that fall. 
 
        Dr. Hayne assigned claimant a permanent impairment rating of 
 
        13-14 percent of the body as a whole, with 4 percent as a result 
 
        of the May 6, 1981 fall, and 8-9 percent attributable to the 
 
        prior cervical fusion.
 
        
 
        BRITTAIN V. FISHER CONTROLS
 
        Page 3
 
        
 
        
 
        However, on March 19, 1986, Dr. Hayne assigned a six percent 
 
        impairment of the body as a whole to the May 6, 1981 fall, due to 
 
        irritation and aggravation of claimant's degenerative arthritis 
 
        condition by the May 6, 1981 fall and subsequent symptomatology. 
 
        Dr. Hayne also imposed a lifting restriction of "around forty to 
 
        fifty pounds." Dr. Hayne did not utilize a medical rating guide 
 
        in arriving at his conclusions. In his deposition, Dr. Hayne 
 
        also stated that claimant's fall of May 6, 1981, probably 
 
        accelerated claimant's degenerative arthritis on a temporary 
 
        basis.
 
        
 
        Claimant was also examined by Jerome G. Bashara, M.D., an 
 
        orthopedic surgeon, in October of 1986. Dr. Bashara opined that 
 
        claimant has a 25 percent permanent partial impairment to the 
 
        body as a whole as a result of his neck condition, with five 
 
        percent due to a preexisting condition of spondylosis, and ten 
 

 
        
 
 
 
 
 
        percent attributable to the herniated cervical disc repaired in 
 
        1977 by Dr. Hayne, and the remaining ten percent attributable to 
 
        claimant's May 6, 1981 fall.
 
        
 
        Dr. Bashara also opined that claimant sustained a 15 percent 
 
        permanent partial impairment of the body as a whole due to his 
 
        compression fracture in the lower back suffered in the May 6, 
 
        1981 fall. Dr. Bashara imposed restrictions on the tipping or 
 
        rotating of claimant's neck, and recommended that he not operate 
 
        a motor vehicle due to his restrictions on claimant's back. Dr. 
 
        Bashara assigned zero percent impairment to claimant's lumbar 
 
        strain occurring in 1984.
 
        
 
        Claimant continues to experience pain in the base of his head, 
 
        lower back, right side, hips, and in his right shoulder; 
 
        headaches; and numbness of the arm. Claimant has not sought other 
 
        employment, and acknowledges he is not totally disabled. Claimant 
 
        stated he is no longer able, due to his back pain, to work as a 
 
        mechanic on motorcycles as he once did, but claimant. does still 
 
        ride a three-wheeled motorcycle over long distances but needs to 
 
        stop and rest his back frequently.
 
        
 
        Claimant was 65 years old at the time of the hearing, and had an 
 
        eighth grade education. The parties stipulated that on May 6, 
 
        1981, claimant received an injury which arose out of and was in 
 
        the course of his employment with defendant Fisher Controls; 
 
        claimant's rate of weekly compensation in the event of an award 
 
        is $226.72; claimant was not seeking any healing period benefits; 
 
        and that defendants have paid all medical benefits due.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The claimant has the burden of proving by a preponderance of the 
 
        evidence that the injury of May 6, 1981 is causally
 
        
 
        BRITTAIN V. FISHER CONTROLS
 
        Page 4
 
        
 
        
 
         related to the disability on which he now bases his claim. 
 
        Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
        Lindahl v. L. 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).
 
        
 
        Functional impairment 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 latter to anatomical or 
 
        functional abnormality or loss. Although loss of function is to 
 
        be considered and disability can rarely be found without it, it 
 
        is not so that a degree of industrial disability is 
 
        proportionally related to a degree of impairment of bodily 
 

 
        
 
 
 
 
 
        function.
 
        
 
        Factors to be considered in determining industrial disability 
 
        include the employee's medical condition prior to the injury, 
 
        immediately after the injury, and presently; the situs of the 
 
        injury, its severity and the length of healing period; the work 
 
        experience of the employee prior to the injury, after the injury 
 
        and potential for rehabilitation; the employee's qualifications 
 
        intellectually, emotionally and physically; earnings prior and 
 
        subsequent to the injury; age; education; motivation; functional 
 
        impairment as a result of the injury; and inability because of 
 
        the injury to engage in employment for which the employee is 
 
        fitted. Loss of earnings caused by a job transfer for reasons 
 
        related to the injury is also relevant. These are matters which 
 
        the finder of fact considers collectively in arriving at the 
 
        determination of the degree of industrial disability.
 
        
 
        There are no weighting guidelines that indicate how each of the 
 
        factors are to be considered. There are no guidelines which give, 
 
        for example, age a weighted value of ten percent of the total 
 
        value, education a value of fifteen percent of total, motivation 
 
        five percent; work experience thirty percent, etc. Neither does a 
 
        rating of functional impairment directly correlate to a degree of 
 
        industrial disability to
 
        
 
        BRITTAIN V. FISHER CONTROLS
 
        Page 5
 
        
 
        
 
        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).
 
        
 
        In a review-reopening proceeding where it was apparent during the 
 
        course of the proceedings that claimant would have some degree of 
 
        permanent disability, defendants are liable for interest on 
 
        unpaid permanent disability compensation payments after the end 
 
        of the healing period as each payment became due. Teel v. McCord, 
 
        394 N.W.2d 405 (Iowa 1986).
 
        
 
                                      ANALYSIS
 
        
 
        Defendants have listed only one issue, the nature and extent of 
 
        claimant's disability, in their appeal brief. However, 
 
        defendants' appeal brief addresses two additional issues as well: 
 
        (l) whether claimant's present disability is causally connected 
 
        to his May 6, 1981 injury; and (2) if an award is made, when 
 
        interest on the unpaid portion of the award shall commence to 
 
        accrue.
 
        
 
        In regards to the causal connection issue, Dr. Hayne at one point 
 
        describes claimant's May 6, 1981 fall as only temporarily 
 
        aggravating claimant's degenerative arthritis. However, in 1985 
 
        Dr. Hayne attributes a significant portion of claimant's 
 
        impairment at that point in time to the effects of the May 6, 
 
        1981 fall. Dr. Bashara's testimony does clearly causally connect 
 
        claimant's present condition to his May 6, 1981 injury. Taken as 
 
        a whole, the medical testimony in the record establishes that at 
 
        least a portion of claimant's present condition is causally 
 
        connected to his May 6, 1981 injury.
 
        
 

 
        
 
 
 
 
 
        Defendants also allege on appeal that the review-reopening 
 
        decision improperly assesses the nature and extent of claimant's 
 
        disability. Since claimant's injury is an injury to the body as a 
 
        whole, claimant's disability is to be determined industrially.
 
        
 
        Claimant's physical impairment as a result of his fall on May 6, 
 
        1981 is one factor utilized in determining industrial disability. 
 
        Claimant has a lifting restriction of 40-50 pounds.
 
        Claimant has received ratings of impairment for his lumbar back, 
 
        as a result of the May 6, 1981 fall, of five percent and fifteen 
 
        percent of the body as a whole, and ten percent of the body as a 
 
        whole for his neck as a result of the May 6, 1981 fall. Claimant 
 
        also received a rating of six percent of the body as a whole for 
 
        the combined lumbar and neck injuries as a result of the May 6, 
 
        1981 fall. Claimant was also given ratings of impairment of 
 
        eight to nine percent and ten percent
 
        
 
        BRITTAIN V. FISHER CONTROLS
 
        Page 6
 
        
 
        
 
        of the body as a whole for his prior cervical fusion, and five 
 
        percent of the body as a whole for a prior spondylosis.
 
        
 
        Claimant's age was 65 at the time of the hearing. Claimant's 
 
        proximity to normal retirement age is a relevant consideration. 
 
        Although claimant has clearly lost earning capacity as a result 
 
        of his injury, his loss of earning capacity is not as great as 
 
        that of someone injured earlier in life. Claimant's education is 
 
        limited to the eighth grade. This, along with his age, makes 
 
        retraining or vocational rehabilitation impractical. His work 
 
        experience is limited to heavy labor, which he can no longer 
 
        perform as a result of his injury. Claimant cannot return to his 
 
        old job, and cannot work at any other physical labor jobs where 
 
        lifting is involved.
 
        
 
        Claimant has lost earnings as a result of his injury. He is no 
 
        longer employed. Defendants argue that claimant's retirement was 
 
        voluntary, and not a disability retirement. Claimant urges that 
 
        he has suffered economic loss because he planned to retire at age 
 
        65, two years later, and that he now receives less retirement 
 
        income than he would have if he had worked until age 65.
 
        
 
        Claimant's subjective plans on when he would retire carry little 
 
        weight. Although his testimony in this regard is lent some 
 
        credibility by the fact that he made statements about his plans 
 
        to third persons during his medical treatment, nevertheless his 
 
        statements are self-serving and unverifiable. However, claimant's 
 
        testimony that he quit work because of the pain he was 
 
        experiencing as a result of his injury is relevant, and it is 
 
        determined that claimant has lost earnings due to his injury.
 
        
 
        Claimant's motivation is also a proper factor. Claimant has made 
 
        no efforts to find alternative employment. Claimant admits he is 
 
        not totally disabled. It is also noted that the employer 
 
        apparently made no effort to find light duty work for claimant.
 
        
 
        Based on these and all other appropriate factors for determining 
 
        industrial disability, it is determined that claimant has an 
 
        industrial disability of 35 percent.
 
        
 
        Claimant did suffer a cervical fusion prior to his fall on May 6, 
 
        1981. Claimant also had a preexisting spondylosis. Dr. Bashara 
 
        attributed ten percent impairment of the body as a whole to 
 
        claimant's cervical fusion, and five percent impairment of the 
 
        body as a whole to claimant's spondylosis. Claimant is determined 
 

 
        
 
 
 
 
 
        to have had a prior industrial disability of ten percent of the 
 
        body as a whole.
 
        
 
        The final issue is when interest on unpaid portions of the award 
 
        should commence. Defendants have already paid claimant
 
        
 
        BRITTAIN V. FISHER CONTROLS
 
        Page 7
 
        
 
        
 
        the equivalent of a five percent industrial disability. It was 
 
        apparent that claimant would have some degree of permanent 
 
        disability. Interest on the remaining portion of the award will 
 
        accrue as each payment became due following the end of claimant's 
 
        healing period, which the parties stipulated was August 17, 1981. 
 
        Interest therefore accrues from the point at which the disability 
 
        payments would have become due.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant was employed by defendant employer as a plumber.
 
        
 
        2. Claimant's duties included heavy physical labor, including 
 
        lifting weights up to 60 pounds.
 
        
 
        3. On May 6, 1981, claimant received an injury which arose out of 
 
        and was in the course of his employment when he fell off a 12 
 
        foot ladder injuring his neck and lower back.
 
        
 
        4. Claimant began to experience pain in his back and neck when he 
 
        returned to work.
 
        
 
        5. Claimant received permanent partial impairment ratings of five 
 
        percent and fifteen percent of the body as a whole for his back 
 
        condition, ten percent of the body as a whole for his neck 
 
        condition, and six percent of the body as a whole for both his 
 
        neck and back conditions as a result of his fall on May 6, 1981.
 
        
 
        6. Claimant was given medical restrictions against lifting 
 
        weights over 40-50 pounds.
 
        
 
        7. Claimant left work due to his medical condition in February 
 
        1985.
 
        
 
        8. Subsequent to the injury of May 6, 1981, claimant cannot 
 
        perform the duties of his prior job, or lift, drive a vehicle, or 
 
        perform heavy labor.
 
        
 
        9. Claimant's work experience is limited to welding, plumbing and 
 
        heavy labor.
 
        
 
        10. Claimant's age at the time of the hearing was 65 years old.
 
        
 
        11. Claimant had an eighth grade education.
 
        
 
        13. Claimant's weekly rate is $226.72.
 
        
 
        14. Claimant has a 35 percent loss of earning capacity at the 
 
        time of hearing.
 
        
 
        BRITTAIN V. FISHER CONTROLS
 
        Page 8
 
        
 
        
 
        15. Claimant had a loss of earning capacity of ten percent prior 
 
        to his injury of May 6, 1981.
 

 
        
 
 
 
 
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant's present neck and back conditions are causally 
 
        connected to his work injury of May 6, 1981.
 
        
 
        Claimant has an industrial disability of 35 percent as a result 
 
        of his work injury of May 6, 1981
 
        
 
        Claimant had an industrial disability of ten percent prior to his 
 
        work injury of May 6, 1981.
 
        
 
        Interest on the unpaid portions of this award shall accrue as 
 
        each payment became due.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants are to pay unto claimant one hundred twenty-five 
 
        (125) weeks of permanent partial disability benefits at a rate of 
 
        two hundred twenty-six and 72/100 dollars ($226.72) per week from 
 
        August 17, 1981.
 
        
 
        That defendants shall pay accrued weekly benefits in a lump sum.
 
        
 
        That defendants shall pay interest on unpaid weekly benefits 
 
        awarded herein as set forth in Iowa Code section 85.30.
 
        
 
        That defendants are to be given credit for benefits previously 
 
        paid.
 
        
 
        That defendants are to pay the costs of this action.
 
        
 
        That defendants shall file claim activity reports as required by 
 
        this agency pursuant to Division of Industrial Services Rule 
 
        343-3.1(2).
 
        
 
        
 
        Signed and filed this 28th day of February, 1989.
 
        
 
        
 
        
 
                                         DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        
 
        ELDON BRITTAIN,
 
        
 
         Claimant, File No. 
 
        669180
 
        
 
        vs.
 
        
 
        FISHER CONTROLS,                R U L I N G
 
        
 
            Employer,                                           O N
 
        
 
        and R E H E A 
 
        R I N G
 
        
 
        INSURANCE COMPANY OF NORTH
 
        AMERICA,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants have requested a rehearing limited to the question of 
 
        when the obligation to pay interest on the award of benefits to 
 
        claimant shall begin. The rehearing request was granted.
 
        
 
                                      ISSUES
 
        
 
        The sole issue on rehearing is when defendants' obligation to pay 
 
        interest on claimant's permanent partial disability award begins.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        Claimant was injured on May 6, 1981. Claimant was paid healing 
 
        period benefits by defendants and returned to work in August 
 
        1981. Claimant retired in February 1985.
 
        
 
        On February 12, 1985, claimant filed his petition. It was not 
 
        until June 24, 1985 that claimant obtained a rating of permanent 
 
        physical impairment. The deputy's arbitration decision determined 
 
        that claimant's healing period ended August 16, 1981 and 
 
        claimant's entitlement to permanent partial disability benefits 
 
        began on that date. The arbitration decision awarded claimant 125 
 
        weeks of permanent partial disability benefits from August 17, 
 
        1981. Defendants appealed. The appeal decision affirmed the 
 
        review-reopening decision and ordered defendants to pay interest 
 
        on any unpaid benefits from August 17, 1981. Defendants' 
 
        rehearing is limited to the interest question.
 
        
 
        BRITTAIN V. FISHER CONTROLS
 
        Page 2
 
        
 
        
 
                                 APPLICABLE LAW
 
        
 
        Section 85.30, Code of Iowa, provides:
 

 
        
 
 
 
 
 
        
 
        Compensation payments shall be made each week beginning on the 
 
        eleventh day after the injury, and each week thereafter during 
 
        the period for which compensation is payable, and if not paid 
 
        when due, there shall be added to the weekly compensation 
 
        Payments, interest at the rate provided in section 535.3 for 
 
        court judgments and decrees. (Emphasis added.)
 
        
 
                                      ANALYSIS
 
        
 
        Defendants request application of the approach adopted for 
 
        review-reopening cases in Dickenson v. John Deere Products 
 
        Engineering, 395 N.W.2d 644, 648 (Iowa App. 1986). Dickenson was 
 
        decided by the Iowa Court of Appeals on June 25, 1986. The court 
 
        held that interest on claimant's permanent partial disability 
 
        award should have commenced on the date when the claimant 
 
        commenced his action for review-reopening of his claim. In 
 
        reaching this conclusion, the court of appeals considered 
 
        Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1954).
 
        
 
        In Bousfield, the supreme court held that a claimant awarded 
 
        additional benefits upon review-reopening was entitled to 
 
        interest only from the date of the decision awarding further 
 
        benefits. However, in Dickenson the court noted that Bousfield 
 
        was decided prior to amendments of both section 85.30 and 535.3, 
 
        Code of Iowa. The court therefore found Bousfield not 
 
        controlling.
 
        
 
        In Dickenson, the court of appeals rejected the employer's 
 
        argument that interest should only begin on the date of the 
 
        industrial commissioner's decision. However, the court of appeals 
 
        also rejected Dickenson's argument that interest should accrue 
 
        from the end of the healing period.
 
        
 
        The court of appeals concluded by stating: "We find the better 
 
        rule in review-reopening proceedings is to begin interest 
 
        payments on the date the claimant files the petition for review 
 
        reopening." Dickenson, at 649.
 
        
 
        Four months later, on October 15, 1986, the Supreme Court of Iowa 
 
        decided Teel v. McCord, 394 N.W. 2d 405 (Iowa 1986). Teel was 
 
        injured in 1974. The extent of his disability was not known, 
 
        however, until after his last surgery in 1980. He returned to 
 
        work in February of 1981.
 
        
 
        Teel filed a claim in review-reopening. After Teel was awarded 
 
        permanent partial disability benefits, the defendants sought a 
 
        declaratory judgment as to the date the interest was to accrue. 
 
        Both the deputy industrial commissioner and the commissioner 
 
        ruled that interest accrued from the date of the
 
        
 
        BRITTAIN V. FISHER CONTROLS
 
        Page 3
 
        
 
        
 
        award, but this ruling was reversed on appeal to the supreme 
 
        court, which held that interest accrued from the end of the 
 
        healing period.
 
        
 
        The case sub judice and Teel are factually similar. In Teel, 
 
        defendants promptly paid claimant all benefits that were known at 
 
        the time. In the present case, defendants promptly paid claimant 
 
        all benefits that were known at the time. In Teel, claimant was 
 
        off work for a period of time and then returned to work. In the 
 
        present case, claimant was off work for a period of time and then 
 
        returned to work.
 

 
        
 
 
 
 
 
        
 
        The supreme court noted in Teel that under section 85.34(1), an 
 
        employee's healing period terminates when he returns to work, and 
 
        permanent disability compensation payments became "due" at that 
 
        point, and accordingly the interest on Teel's award began to 
 
        accrue when he returned to work. The supreme court stated: "Thus, 
 
        the time when an employee's healing period is terminated is the 
 
        time when disability payments become due.... Accordingly, the 
 
        interest on this employee's award for permanent partial 
 
        disability became due when he returned to work...." Teel, at 407.
 
        
 
        After reaching this conclusion, the supreme court then went on to 
 
        say:
 
        
 
        Moreover, there is no question the employee in this case suffered 
 
        some disability as a result of his injuries. The problem occurred 
 
        in determining how much it was. Had the medical community been 
 
        able to answer that question without further treatment, he 
 
        clearly would have been entitled to compensation when he first 
 
        returned to work. Thus, the legislature could conclude that when 
 
        the extent of a disability is unknown until after treatment, the 
 
        employer should pay interest for the period between the 
 
        termination of the healing period and the award. After all, the 
 
        employer in effect is holding the employee's money, and 
 
        presumably earning interest on it. By paying this amount back the 
 
        employer is only returning money it does not rightfully own.
 
        
 
        Teel, at 407. (Emphasis in original.)
 
        
 
        Review-reopening cases exist in two forms. A review-reopening 
 
        case may be based on a change of condition occurring subsequent 
 
        to a prior award or agreement of settlement. Additionally, a 
 
        review-reopening may be based on a prior memorandum of agreement 
 
        if the injury occurred before July 1, 1982. Both Teel and 
 
        Dickenson were review-reopening cases based on prior memorandums 
 
        of agreement. The case sub judice is also a review-reopening 
 
        based on a memorandum of agreement. Teel was decided by the Iowa 
 
        Supreme Court four months later than Dickenson. However,
 
        
 
        BRITTAIN V. FISHER CONTROLS
 
        Page 4
 
        
 
        
 
        Teel does not expressly overrule Dickenson. Dickenson lays down a 
 
        specific holding that "We find the better rule in 
 
        review-reopening proceedings is to begin interest payments on the 
 
        date the claimant files the petition for review-reopening." 
 
        Dickenson, at 649. Yet Teel, also a review-reopening case, 
 
        applies a different approach and awards interest from the end of 
 
        the healing period.
 
        
 
        Defendants urge that Teel does not overrule Dickenson, but rather 
 
        supplements it. Defendants would maintain that Teel establishes 
 
        an exception to the rule of Dickenson. Defendants urge that 
 
        Dickenson requires interest only from the date of the petition, 
 
        except where the defendants knew or should have known at an 
 
        earlier point in time that permanency had resulted (Teel). 
 
        Defendants then conclude that since they had no notice of 
 
        permanency, they fall under Dickenson and not Teel. Defendants 
 
        place emphasis on the following:
 
        
 
        Moreover, there is no question the employee in this case suffered 
 
        some disability as a result of his injuries.... Thus, the 
 
        legislature could conclude that when the extent of a disability 
 
        is unknown until after the treatment, the employer should pay 
 
        interest for the period between the termination of the healing 
 

 
        
 
 
 
 
 
        period and the award. (Emphasis in original.)
 
        
 
        Teel, at 407.
 
        
 
        Defendants argue that the converse of this statement is as 
 
        follows: when an employer has no indication of permanent 
 
        disability, the employer is not liable for interest between the 
 
        healing period and the award. However, this is an incorrect 
 
        reading of the quoted passage. Teel refers not to a lack of 
 
        knowledge of permanency on the part of the employer, but on the 
 
        part of the medical profession. This is confirmed by the third 
 
        sentence of the paragraph in question: "Had the medical community 
 
        been able to answer that question (the extent of permanent 
 
        disability) without further treatment, he clearly would have been 
 
        entitled to compensation when he first returned to work." 
 
        (Emphasis added.) Teel, at 407. The supreme court recognized that 
 
        Teel's actual medical condition was not determinable
 
        until a later point in time. When his permanent disability was 
 
        finally determined, interest was awarded from its onset (the end 
 
        of the healing period).
 
        
 
        Section 85.30 states that if compensation benefits are not paid 
 
        "when due," interest thereon shall be paid. Section 35.30 does 
 
        not by its language limit itself to that point in time when 
 
        defendants are put on notice that permanent compensation will be 
 
        due and owing, but rather states that the obligation to pay 
 
        interest begins to accrue when compensation owing is not paid 
 
        "when due."
 
        
 
        BRITTAIN V. FISHER CONTROLS
 
        Page 5
 
        
 
        
 
        In arguing that defendants acted in good faith, defendants 
 
        misinterpret the nature of the duty to pay interest under section 
 
        85.30. Interest is not a penalty, such as the penalty 
 
        contemplated in section 86.13 for unreasonable delay in the 
 
        payment of benefits. Defendants are not being assessed interest 
 
        because they unreasonably delayed payment of permanent partial 
 
        disability benefits to claimant. Defendants are being assessed 
 
        interest because from the date of claimant's permanent disability 
 
        (the end of his healing period) until the compensation is paid, 
 
        defendants had the beneficial use of the compensation funds 
 
        claimant became entitled to at the end of his healing period.
 
        
 
        Thus, the fact that defendants acted in good faith and reasonably 
 
        did not realize that an obligation for permanent disability 
 
        compensation was accruing is not relevant. Claimant's 
 
        compensation for his loss of earning capacity during this period 
 
        of his life was in defendants' hands earning money for defendants 
 
        instead of for claimant. There is no allegation that defendants 
 
        unreasonably withheld these funds. If such an allegation were 
 
        made and proven, then a penalty under section 86.13 might be 
 
        appropriate. Defendants commendably paid the obligations known at 
 
        the time promptly. But while doing so may protect defendants from 
 
        a claim for penalty under section 86.13, it does not entitle them 
 
        to the interest they earned on claimant's money during the time 
 
        claimant's permanency existed but was as yet undetermined. 
 
        Claimant's permanent disability did not begin on the date he 
 
        filed his petition, or when he received his rating of permanency. 
 
        Claimant's permanent disability was round to have begun earlier, 
 
        on August 16, 1981, at the end of his healing period, and both 
 
        compensation payments and the interest thereon began to accrue at 
 
        that time. To find that claimant's permanent loss of earning 
 
        capacity and compensation therefor became "due" on August 16, 
 
        1981, but that interest on that compensation is not owing until a 
 

 
        
 
 
 
 
 
        later point in time would directly contradict the plain language 
 
        of section 85.30.
 
        
 
        Finally, it is noted that the primary purpose of workers' 
 
        compensation laws are to benefit working persons and should be 
 
        liberally construed in favor of injured employees. Doerfer 
 
        Division of CCA v. Nichols, 359 N.W.2d 428, at 432 (Iowa 1984). 
 
        Although the result is not wholly satisfactory in light of the 
 
        substantial period of time elapsed between claimant's return to 
 
        work and the filing of the claim, it is nevertheless concluded 
 
        that under section 85.30 and Teel, claimant is entitled to 
 
        interest on his permanent partial disability award from August 
 
        16, 1981, the date on which his healing period ended and his 
 
        permanent partial disability began.
 
        
 
        It is also noted that this case is a review-reopening based on a 
 
        memorandum of agreement. A review-reopening based on a change of 
 
        condition subsequent to an award or settlement may require a 
 
        different analysis.
 
        
 
        BRITTAIN V. FISHER CONTROLS
 
        Page 6
 
        
 
        
 
                                 CONCLUSION OF LAW
 
        
 
        Claimant is entitled to interest on the award of permanent 
 
        partial disability benefits from the end of the healing period 
 
        (August 16, 1981).
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That defendants shall pay interest on unpaid portions of the 
 
        award of permanent partial disability benefits from August 16, 
 
        1981.
 
        
 
        Signed and filed this 20th day of November, 1989.
 
        
 
        
 
        
 
         DAVID E. 
 
        LINQUIST
 
         INDUSTRIAL 
 
        COMMISSIONER
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
                                          3800
 
                                          Filed November 20, 1989
 
                                          DAVID E. LINQUIST
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ELDON BRITTAIN,
 
        
 
        
 
            Claimant ~
 
            -- :                       File No. 669180
 
        vs.
 
        
 
        FISHER CONTROLS,                ~ :          R U L I N G
 
        
 
            Employer,                  i.ll.
 
                                            O N
 
        
 
        and i :
 
        
 
        INSURANCE COMPANY OF NORTH ; ~-~ R E H E A R I N G AMERICA,
 
                                       ,
 
        
 
        Insurance Carrier,
 
        Defendants.
 
        
 
        
 
        
 
        3800 -~
 
        
 
        Claimant was awarded permanent partial disability. The record 
 
        established that claimant was paid temporary total disability 
 
        benefits to the extent known at the time, but later claimant 
 
        received a rating of impairment. The review-reopening decision 
 
        established the onset of permanency, and ordered interest from 
 
        that date. Deputy's decision affirmedon appeal. Defendants asked 
 
        for a rehearing limited to the question of when interest began to 
 
        accrue.
 
        
 
        Discussion appears in the decision analyzing Teel and Dickenson, 
 
        since defendants urged application of the Dickenson approach of 
 
        awarding interest from the filing of the petition. Defendants' 
 
        "good faith" argument under Teel that interest should not accrue 
 
        until employer knew some permanency had resulted, was rejected. 
 
        Interest under section 85.30 differs from penalty under 86.13, 
 
        and good or bad faith is irrelevant. Claimant was entitled to 
 
        interest on her compensation from when it was "due" under section 
 
        85.30, i.e. from the end of the healing period. This result is 
 
        the same as the result in Benson v. Good Samaritan Center, 
 
        arbitration decision, October 18, 1989. However, it was noted 
 
        that this case was a review-reopening based on a memorandum of 
 
        agreement, and that the result might differ for a 
 
        review-reopening based on a change of condition.
 
        
 
        
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ELDON BRITTAIN,
 
        
 
           Claimant,
 
        vs.                              File No. 669180
 
        
 
        FISHER CONTROLS,                 O R D E R
 
        
 
           Employer,                  G R A N T I N G
 
        
 
        and                            R E H E A R I N G
 
        
 
        INSURANCE COMPANY OF NORTH
 
        AMERICA,
 
        
 
           Insurance Carrier,
 
           Defendants
 
        
 
        
 
        The defendants have filed an application for rehearing of the 
 
        appeal decision in this case pursuant to Iowa Code section 
 
        17A.16(2). The application for rehearing is limited to the 
 
        interest issue.
 
        
 
        THEREFORE, it is ordered:
 
        
 
        A rehearing limited to the interest issue is granted
 
        
 
        The parties shall have twenty (20) days from the date of this 
 
        order in which to file briefs on the interest issue.
 
        
 
        
 
        Signed and filed this 17th day of March, 1989.
 
        
 
        
 
        
 
                                         DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER