BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ MARGARET A. KOOPMANS, Claimant, File No. 694831 VS. A P P E A L IOWA ELECTRIC LIGHT AND POWER COMPANY, D E C I S I O N Employer, Self-Insured, Defendant. _________________________________________________________________ STATEMENT OF THE CASE Defendant appeals from arbitration decisions awarding claimant death benefits. The record on appeal consists of the transcript of the arbitration hearings filed May 20, 1986 and May 16, 1986; claimant's exhibits 1, 2a, 2b, and 3-10; and joint exhibits 1-21. Both parties filed briefs on appeal. ISSUES Defendant states the following issues on appeal: 1. Whether claimant's action is barred by a failure to give notice under Iowa Code section 85.23. 2. Whether claimant's death by heart attack arose out of and in the course of his employment. REVIEW OF THE EVIDENCE The arbitration decisions adequately and accurately reflect the pertinent evidence and it will not be totally reiterated herein. Briefly stated, claimant is the surviving spouse of Gerald L. Koopmans, hereinafter referred to as decedent. Decedent worked for defendant Iowa Electric Light and Power Company since 1957, for the last ten years as the foreman of a line crew. Several workers testified that decedent had a great concern for safety of his crew, and had a better safety record than other crews. His duties included working after hours in emergencies and inclement weather. There was also testimony that decedent often experienced a conflict with his supervisor, with the supervisor frequently countermanding decedent's instructions and expressing dissatisfaction with the crew's performance. Decedent's coworkers stated that the problems with decedent's supervisor occasionally resulted in friction between the crew members and decedent, and between customers and decedent. The record also showed that decedent smoked, drank coffee, and suffered from indigestion, which he treated with an antacid tablet. Claimant stated that decedent sought medical attention in the past for indigestion, and that he often used an antacid for this. Claimant stated that prior to March 5, 1980, decedent had spoken of problems with his supervisor at work, and at one point talked of quitting. On March 5, 1980 decedent returned home from work, ate dinner with his wife and minor son, and then watched a basketball game with his son when his wife left for a meeting. The son retired for the evening early, leaving decedent watching the game. When decedent's wife returned, she found decedent dead in his chair with a bottle of antacid tablets spilled nearby. Both decedent's wife and son testified that decedent related no unusual work events that evening, and displayed no excitement during the game. His last occasion to work overtime was February 18, 1980, over two weeks before his death. An autopsy showed decedent died of cardiac arrest due to moderately severe atherosclerosis. Medical testimony showed that this is a disease that is gradually built up over a period of years. Risk factors include smoking, obesity, poor diet, and a sedentary lifestyle. Decedent had no previous history of heart or circulation problems. Defendant-employer's witnesses testified they had no knowledge of any heart or circulation problems on the part of decedent. Subsequent to decedent's death, claimant's spouse retained legal counsel who represented the estate in probate proceedings. That attorney forwarded a letter to defendant Iowa Electric asking for certain company employee benefits decedent was entitled to. There was no reference in the letter to workers' compensation benefits. The company also received a copy of decedent's death certificate showing the cause of death as cardiac arrest as a consequence of arteriosclerotic cardiovascular disease. Claimant testified she had an eighth grade education, a GED, and was considered;intelligent enough for college courses. She has been a homemaker most of her adult life. On cross-examination, claimant acknowledged the following: (1) that she knew her husband's work was stressful; (2) that her husband had seen doctors prior to his death for nerves or stress; (3) that she knew stress sometimes caused heart attacks; (4) that her husband had died of a heart attack; (5) that she felt a connection might exist between her husband's work and his heart attack and death; (6) that no written notice under section 85.23, The Code, was forwarded to Iowa Electric; (7) that she was aware of workers' compensation being available for injuries from an earlier claim her husband pursued for an injured knee. Claimant indicated that prior to January 29, 1982, she did not realize that a death from a heart attack might-be covered by workers' compensation. Testimony was elicited that she thought workers' compensation applied only to injuries. It was not until she received legal advice on January 29, 1982, that workers' compensation might be available that she pursued her claim, one year and eleven months after decedent's death. Claimant testified as follows: Q. Did you ever wonder whether his job might have in KOOPMANS V. IOWA ELECTRIC LIGHT AND POWER COMPANY, Page 3 some way contributed to his death or his heart problem? A. Yes, I did. Q. Did you do anything to try and pursue that possibility? Did you require Dr. Utter or any other doctor to see what happened? A. No, I didn't, personally. Q. Do you know if anyone did prior to the time you filed your petition, let's say? A. I don't think so. I don't know. Q. What was it that occurred that finally caused you to decide to file this Worker's [sic] Compensation claim and essentially, to assert that in fact, his occupation was contributing factor for his death? A. I wasn't aware that I could make such a claim until the date that you have. I wasn't aware that there was this possibility. Q. Well A. Or that it was available. I don't know what word I want to use here. Q. You knew there was Worker's [sic] Compensation, didn't you? A. Yes. Q. You knew that if he had been, for example, electrocuted at his employment, that Worker's [sic] Compensation would be available, didn't you? A. I'm not sure I knew that. Q. Well, you knew that if people were injured at work, there was Worker's [sic] Compensation? A. Yes. Yes, but I did not know in death what happened. Q. And you said that before that you had thought that you had wondered in your own mind whether or not his employment might have contributed to his death, isn't that right? A. Repeat that. Q. Didn't you say a little while ago that you wondered in your own mind whether his employment might have contributed to his death? In some way you thought that that might be possible? KOOPMANS V. IOWA ELECTRIC LIGHT AND POWER COMPANY, Page 4 A. I knew that he was under stress. I knew that he was very nervous. Q. Okay. A. And I did wonder if this would cause your heart to overwork or whatever. Q. You thought -- I think you said A. That there could be a connection. Q. Okay. So what was it, then, on or about February 2 -- on or right before February 2, that you found out that you didn't know before? A. What did I find out? I just don't know how to answer that. If you -- If you have something that caused -- that would cause death, that Worker's [sic] Compensation was available, I never knew that before. (Claimant's Exhibit 10, pages 21-23) Q. Now, you have covered this in your deposition and response to some of the questions that Mr. Washburn asked you, but I do, for the record, want to ask you again, Mrs. Koopmans, when your husband died, did you know that a worker's [sic] compensation claim can be made in circumstances where job induced stress produces a heart attack and death; did you know that? A. No, I didn't. Q. Had you had ever in your lifetime any experience any worker's [sic] compensation death claims? A. No. Q. Did you know that worker's [sic] compensation provides benefits if there is a death; did you know that? A. I don't think I have ever talked to anyone or known anything about this. Q. What did you think workers -- you knew there is a worker's [sic] compensation law? A. Yes. Q. What did you think that was? A. I thought that was for people who were like injured on the job or that type of -- an injury or -- I didn't even know, I never really thought about whether it covered an illness, but I thought of it as injury. KOOPMANS V. IOWA ELECTRIC LIGHT AND POWER COMPANY, Page 5 Q...At the time of your husband's death you were aware, were you not, that stress might be related to causing heart attacks, isn't that right? A. Yes. Q. And in fact at or about the time of his death, you had some question or concern or suspicion in your own mind that his work might have been related to his death, isn't that true? A. Yes. Q...And isn't it a fair statement that the only thing that you learned in January of 1982 that you didn't know a long time before that about this, was that workers [sic] compensation law might provide benefits in a work related death situation? A. I don't think I understand that question fully. Q. Well, didn't you testify in your direct examination that on January 29th, 1982, Mr. Stobbs informed you that a stress or a job stress related death might be compensable under the worker's [sic] compensation law, that you could get money under the worker's [sic] compensation law. A. Yes. Q. And that's what caused you then to file the claim for worker's [sic] compensation, isn't that right? A. Yes. Q. But all of the other facts that you have alleged in your claim that Mr. Koopmans' job was stressful, that stress caused his heart attack, that he died on March 5th, 1980 of a heart attack, you knew all of those facts long before January 29th, 1982, didn't you? A. Yes. Q. Certainly more than 90 days before January 29th, 1982, isn't that true? A. Yes. (Transcript, pp. 18-19, 21-22, 24-26) Iowa Electric asserted that the first indication they had that claimant viewed decedent's death as job related was when they received the original notice and petition upon which this action is based. KOOPMANS V. IOWA ELECTRIC LIGHT AND POWER COMPANY, Page 6 APPLICABLE LAW Iowa Code section 85.23 provides: Unless the employer or his representative shall have actual knowledge of the occurrence [sic] of an injury received within ninety days from the date of the occurrence [sic] of the injury, or unless the employee or someone on his behalf or a dependent or someone on his behalf shall give notice thereof to the employer within ninety days from the date of the occurrence of the injury, no compensation shall be allowed. Failure to give notice is an affirmative defense which the employer must prove by a preponderance of the evidence. DeLong v. Iowa State Highway Commission, 229 Iowa 700, 295 N.W. 91 (1941). Mefferd v. Ed Miller & Sons, Inc., 33 Biennial Report of the Industrial Commissioner 191 (Appeal Decision 1977). The time period contemplated in Iowa Code 85.23 does not begin to run until the claimant has knowledge of the nature of his disability. Jaques v. Farmers Lumber and Supply Co., 242 Iowa 548, 47 N.W.2d 236, 239 (1951). An employer's actual knowledge of occurrence of injury must include some information that the injury is work-connected in order to satisfy the alternative notice of claim requirement. Robinson v. Department of Transportation, 296 N.W.2d 809, 812 (Iowa 1980). A claimant's duty to give notice of injury arises when the claimant should recognize the nature, seriousness and probable compensable character of his injury or disease. The reasonableness of claimant's conduct is to be judged in light of his education and intelligence. Claimant must know enough about the injury or disease to realize that it is both serious and work connected, but positive medical information is unnecessary if he has information from any source which puts him on notice of its probable compensability. Id. The purpose of the 90 day notice or actual knowledge requirement is to give the employer an opportunity to timely investigate the acts of the injury. Id.; Knipes v. Skelgas Co., 229 Iowa 740, 748, 294 N.W. 880, 884 (1941); Hobbs v. Sioux City, 231 Iowa 860, 2 N.W.2d 275 (1942); Dillinger v. City of Sioux City, 368 N.W.2d 176 (Iowa 1985). The word "compensable" in the workers' compensation notice context is not used to connote legal knowledge that a claim is within the workers' compensation Act. Rather, "compensable" means that the disabling injury was work-connected. Quaker Oats Co. v. Miller, 370 So.2d 1363, 1366 (Miss. 1979). Unless a statute that imposes a period of limitations expressly authorizes exceptions for extenuating circumstances, it must be applied uniformly even though the result may be harsh. Burgess v. Great Plains Bag Corp., 409 N.W.2d 687, 679 (Iowa 1987). KOOPMANS V. IOWA ELECTRIC LIGHT AND POWER COMPANY, Page 7 A mistake of law is no more an excuse in connection with a late compensation claim than anywhere else, unless expressly made so by statute. 3 Larson, Workmen's Compensation Law, 78.47 at 15-334. ANALYSIS The initial determination is whether claimant gave adequate notice of her claim to the employer under section 85.23. The parties agree she did not file a written notice within 90 days of decedent's death from a heart attack. The question then is whether the employer or his representative had actual knowledge of the injury. The employer knew from the death certificate that decedent died of a heart attack. But the 11 actual knowledge" clause also requires that the employer be made aware that the injury or death was work-connected. The record shows that the employer had no prior knowledge of decedent's heart and circulation condition. Although several coworkers testified that decedent's work did involve stress, three of the employer's representatives testified that they were not aware of any health problems on the part of decedent. However, one of the three was the foreman alleged to be a source of the stress and his assertion may be viewed as self-serving. Along with their testimony is the fact that claimant died at home KOOPMANS V. IOWA ELECTRIC LIGHT AND POWER COMPANY, Page 8 and had not worked overtime or on emergencies for two weeks prior to his death. It is therefore clear that the employer had no actual knowledge of a connection between decedent's death and his employment from any factors prior to his death. Subsequent to his death no new facts, medical or nonmedical, came to the employer's attention that would give the employer actual knowledge that decedent's heart attack at home was work-related. Thus, the record is devoid of any indication that the employer knew of a connection between decedent's death by heart attack at his home and his work until service of the original notice and petition, almost two years after his death. The employer therefore had no actual knowledge of the occurrence of a work-related injury. Claimant urges that the 90 day notice period did not start until she learned that a death could be covered under workers' compensation. The "discovery rule" does apply to section 85.23. The 90 day period does not,,begin to run until the claimant knew or should have known that a compensable injury occurred. In this regard claimant's intelligence and education are relevant subjective factors. Claimant argues that her lack of sophistication in legal and business matters kept her from recognizing that she might have a claim. Her first attorney basically handled probating decedent's estate, but other than a general letter to employer asking for employee benefits, apparently did not advise her that a workers' compensation claim might be available. She acknowledged that she was not aware of this option until so advised by her second lawyer, at which time she promptly filed an action. It was not necessary that claimant have medical evidence that the heart attack may have been work-related, but information from any source would put her on notice. Although couched in terms of "suspecting" decedent's death was work related and "wondering" if it was covered under workers' compensation, she nevertheless admitted that she was aware of decedent's job stress and its possible connection to his heart attack at all times subsequent to his death. No new medical information came to her other than new legal advice. The discovery rule focuses on that point in time when a claimant knows or should know two things: that his injury is serious, and that it is work connected. The operative phrase is "compensable character of the injury." What is a "compensable" injury? Claimant argues that it is an injury which the claimant realizes may be compensated under the workers' compensation system. "Compensable" here refers to the fact that the serious injury and claimant's work are in fact connected. To hold that 11 compensable" means a subjective understanding by claimant as to the applicability of the workers' compensation law would be to negate the protection provided to employers by section 85.23. A claimant would only need to assert a lack of such an understanding to circumvent the notice requirement. Claimant's failure to recognize her legal remedy in time was a mistake of law, not a mistake of fact, and does not diminish the effect of KOOPMANS V. IOWA ELECTRIC LIGHT AND POWER COMPANY, Page 9 section 85.23 in her case. To hold otherwise would, in effect, restrict the applicability of the notice requirement to situations when it could be established that claimant had received legal advice from an attorney acquainted with the nuances of workers' compensation law. This is not the intent of the discovery rule. The subjective test of the discovery rule, which looks to claimant's intelligence and education, goes to a question of fact, and focuses on the point in tune at which claimant could be expected to recognize the connection between the injury and the employment. It does not apply to claimant's ability to recognize her legal options and act on them diligently. The statute imposing the 90 day notice period does not make exceptions for extenuating circumstances such as claimant's subjective lack of education or intelligence. Indeed, the Iowa Supreme Court has upheld the applicability of a statute of limitations in a workers' compensation case even against a claimant who could not read or write. Therefore, claimant, with an eighth grade education, a GED, and college level intelligence is similarly so bound by section 85.23. Thus, defendants have proven by the greater weight of the evidence that claimant failed to comply with Iowa Code section 85.23. In light of this determination, issue 2 is now moot and need not be addressed. FINDINGS OF FACT 1. That claimant was the spouse of decedent. 2. That decedent died of cardiac arrest on March 5, 1980. 3. That decedent died at home. 4. That decedent's heart or circulation problems were not known prior to March 5, 1980. 5. That decedent may have experienced stress at work. 6. That no written notice of injury was forwarded to employer concerning decedent's death. 7. That claimant has an eighth grade education plus a GED, and was tested and found to be intelligent enough to attend college courses. 8. That claimant opined that her husband's work inflicted stress on him. 9. That claimant knew stress can cause heart attacks. 10. That claimant knew her husband died of a heart attack. 11. That at the time of decedent's death claimant thought a connection might exist between decedent's death and his work. 12. That claimant did not know that workers' compensation KOOPMANS V. IOWA ELECTRIC LIGHT AND POWER COMPANY, Page 10 might provide benefits in the case of death until she was advised of that fact by her second attorney on January 29, 1982. 13. That claimant filed her petition for arbitration on February 2, 1982. CONCLUSION OF LAW Claimant's action is barred for failure to give timely notice under the provisions of Iowa Code section 85.23. WHEREFORE, the decision of the deputy is reversed. ORDER THEREFORE, it is ordered: That claimant shall take nothing from these proceedings. That each party is to pay their own costs Of this appeal and defendant is to pay the costs of the transcription of the hearing proceeding. Signed and filed this 30th day of December, 1987. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Walter L. McNamara Attorney at Law 208 Executive Plaza 4403 First Avenue SE Cedar Rapids, Iowa 52402 Mr. John Dale Stobbs Attorney at Law P.O. Box 472 500 Bond Street Alton, Illinois 62002 Ms. Julie A. Cohen Attorney at Law P.O. Box 351 Cedar Rapids, Iowa 52406 2802 Filed December 30, 1987 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ MARGARET A. KOOPMANS, Claimant, File No. 694831 VS. A P P E A L IOWA ELECTRIC LIGHT AND POWER COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. _________________________________________________________________ 2802 Spouse of deceased worker was held to have failed to give notice to employer under Iowa Code section 85.23. Spouse's failure to recognize applicability of workers' compensation law to her husband's work-related death was held to be a mistake of law and not a mistake of fact. The discovery rule looks to that point in time where claimant, in view of her education and intelligence, should have recognized that the injury was both serious and work related. The discovery rule does not contemplate a determination of when claimant recognizes her available legal remedies. Page 1 before the iowa industrial commissioner ____________________________________________________________ : GERALD MADSEN, : : File Nos. 695235 Claimant, : 808301 : vs. : R E V I E W - : WILSON FOODS CORPORATION, : R E O P E N I N G : Employer, : A N D Self-Insured, : : A R B I T R A T I O N and : : D E C I S I O N S SECOND INJURY FUND, : : Defendants. : ____________________________________________________________ statement of the case This decision concerns two proceedings brought by Gerald Madsen against his former employer, Wilson Foods Corporation. File number 695235 is a proceeding in review-reopening from a memorandum of agreement which was filed March 12, 1982. In that proceeding, the claimant and the employer stipulated that he is entitled to receive permanent partial disability for a 90 percent loss of use of his left leg based upon an injury of February 8, 1982 to the left knee. The Second Injury Fund of Iowa did not join in that stipulation. File number 808301 deals with an alleged injury of July 13, 1985. (The injury date was amended at hearing.) It was stipulated by the claimant and the employer that the claimant was injured on that date, but the Second Injury Fund of Iowa did not join in that stipulation. Under file number 808301, claimant seeks compensation from the Second Injury Fund of Iowa. The injury alleged is to the claimant's right knee. The case was heard and fully submitted at Storm Lake, Iowa on October 4, 1990. The record consists of joint exhibits 1 through 45 and testimony from Gerald Madsen and Marjorie Ann Madsen. At pages 13, 14, 15 and 17 of exhibit 44, counsel for the employer and the Fund objected to hypothetical questions on the basis that the facts to be assumed were an incorrect statement of the record. The objections are overruled. Rule of Evidence 705 does away with the need for an accurate disclosure of facts before an expert opinion is issued. Facts relied upon may be addressed on cross-examination. The facts to be assumed may be presented to the expert in the light most favorable to the questioning party. Any Page 2 inaccuracy goes to the weight given the opinion, not to its admissibility. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. The stipulation made by the claimant and the employer regarding the February 8, 1982 injury is supported by an impairment rating from orthopaedic surgeon Richard C. Johnston, M.D. (Exhibit 43) The stipulation between the claimant and the employer is found to be fair and in conformance with the evidence in the case. It is therefore found that Gerald Madsen has a 90 percent permanent partial disability of his left leg as a result of the February 8, 1982 injury. From other evidence in the record, it is further found that he had been previously paid 30 percent permanent partial disability of the leg for this injury and, prior to that time, had been paid for a 25 percent permanent partial disability of the left leg based upon a 1974 injury. Gerald Madsen's appearance and demeanor were observed as he appeared at hearing and testified. He is found to be a fully honest and credible witness, despite some lack of proficiency as an historian. In particular, his deposition testimony that he had no knee injuries between 1974 and 1985 is clearly incorrect as shown by the fact that the employer filed a memorandum of agreement with regard to the February 8, 1982 injury and exhibits 21, 22 and 25 which likewise make reference to intervening left knee injuries or problems. Claimant's testimony with regard to denial of right knee injuries between 1974 and 1985 is, however, supported by the evidence and is found to be correct. The occurrence of the July 13, 1985 right knee injury is well corroborated by evidence in the record (exhibit 28; exhibit 29; exhibit 34, pages 2-4; exhibit 31 at notes dated June 28, 1981, November 19, 1985, December 17, 1985, January 14, 1986 and March 4, 1986). Claimant's testimony regarding injuring his right knee on July 13, 1985 is found to be correct as is his testimony of increasing symptoms in the knee following that injury and leading him into the course of medical care which resulted in surgery to replace his right knee. The opinion evidence from Dr. Johnston which finds a causal connection between the July 13, 1985 injury and the knee replacement surgery and resulting disability is accepted as being correct (exhibit 44, pages 12-17, 20, 21 and 24-26). Gerald Madsen does have a long history of knee problems. They appear to have their origin in 1974 when he fell while working for this employer. He underwent surgery on his left knee in July 1977 and again in October 1977 at which time a total knee prosthesis was installed (exhibit 11, pages 2-6). Thereafter, claimant continued to work for the employer. For a time, he also farmed. On one occasion, he fell, while off work, and fractured his right ankle. There is no evidence in the record to indicate that the Page 3 ankle fracture, or a subsequent sprain of the ankle, had any permanent effect upon either of his knees. Between 1977 and 1985, claimant was able to perform his work, although he did have some occasions where left knee symptoms were disabling, in particular the 1982 injury. The record fails to show any continuous patterns of problems affecting his right knee during that span of time. It is clear from the evidence in the record that Gerald Madsen had marked degenerative arthritis in his right knee prior to the time of the 1985 injury. That injury was certainly an aggravation of that preexisting condition. None of the physicians have, however, made any apportionment of disability as between that resulting from the injury and that which might have preexisted. From the record, it is found that the right knee was generally symptom-free prior to the time of the July 13, 1985 injury, but that thereafter, it developed the disability which is now a subject of this case. Since 1977, there have been two revisions of claimant's left knee prosthesis with the most recent having been performed by Dr. Johnston on January 24, 1989 (exhibits 36, 37 and 41). Dr. Johnston's 90 percent permanent impairment rating of the left knee was made in July 1989 following the most recent surgery on that knee. In his deposition, Dr. Johnston indicated that the 30 percent permanent partial disability rating for the right knee, as had been arrived at by Thomas W. Bower, L.P.T., and Scott B. Neff, D.O., was reasonable (exhibit 39; exhibit 44, pages 11 and 12). It is therefore found that Gerald Madsen does have a 30 percent permanent partial impairment of his right leg as a result of the July 13, 1985 injury. Madsen was 58 years of age at the time of hearing. He is a high school graduate with no further formal education or training. His work history consists of farming and work for Wilson Foods Corporation. As indicated by Dr. Johnston, he is probably capable of performing some types of light work, but he may need retraining and it is questionable with regard to whether or not anyone would actually hire him (exhibit 44, pages 16-18 and 27). Claimant has applied unsuccessfully for a position as a rural mail carrier. He attempted to sell used cars, but had no aptitude for that type of work. He applied to be an insurance salesman, but was unable to pass the physical examination required for the position. It is specifically found that this claimant would attempt to perform any job which had any reasonable prospect of being within his capabilities if the same were to be offered to him. He is highly motivated, but is also realistic regarding his capabilities. conclusions of law A memorandum of agreement, as filed in case number 695235 for the February 8, 1982 injury, conclusively establishes the existence of the employer-employee relationship and the occurrence of an injury arising out of and in the course of employment. Trenhaile v. Quaker Oats Page 4 Co., 228 Iowa 711, 292 N.W. 799 (1940). It does not establish the nature or extent of disability. Freeman v. Luppes Transp. Co., 227 N.W.2d 143 (Iowa 1975). It cannot be set aside by this agency. Whitters & Sons, Inc. v. Karr, 180 N.W.2d 444 (Iowa 1970). It is not necessary to show a change of condition to review the payments made under the unilateral filing of a memorandum of agreement. Caterpillar Tractor Co. v. Mejorado, 410 N.W.2d 675 (Iowa 1987). In this case, it is determined that the additional 35 percent permanent partial disability for the left leg which is due in file number 695235 is payable commencing on the date the petition was filed, namely May 1, 1989. Dickenson v. John Deere Products Eng'g, 395 N.W.2d 644 (Iowa App. 1986). The additional 35 percent permanent partial disability entitles the claimant to recover an additional 77 weeks of compensation under the provisions of Iowa Code section 85.34(2)(o), payable at the rate of $319.90 based upon the February 8, 1982 injury. In file number 808301, the stipulation made by the claimant and employer with regard to the occurrence of injury arising out of and in the course of employment has been found to be supported by the facts and correct. In the prehearing report, it was stipulated by the parties that permanent partial disability for that injury should be payable commencing August 10, 1987. It having been found that claimant experiences a 30 percent permanent partial disability of the left leg as a result of the July 13, 1985 injury, he is therefore entitled under Iowa Code section 85.34(2)(o) to recover 66 weeks of compensation payable at the stipulated rate of $279.40 per week for that injury from the employer. Since claimant had previously lost the use of his left leg before injuring his right leg, he is entitled to recover benefits from the Second Injury Fund of Iowa under the provisions of Iowa Code section 85.64. The permanent partial disability payable by the Second Injury Fund is compensated industrially. Second Injury Fund v. Mich Coal Co., 274 N.W.2d 300 (Iowa 1979). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." 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, 1121, 125 N.W.2d 251, 257 (1963). Page 5 Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. It is specifically noted that Gerald Madsen is approaching the age at which individuals in our society are known to commonly retire from gainful employment. While the condition of his knees makes him unsuitable for many types of employment, the same does not constitute a total loss of his earning capacity. When all the pertinent factors of industrial disability are considered, it is found and concluded that Gerald Madsen presently experiences an 80 percent reduction of his earning capacity as a result of the condition of his knees. This entitles him to recover 400 weeks of compensation for permanent partial disability. After deducting the compensable value of the prior losses, namely 198 weeks for the left leg and 66 weeks for the right, for a total of 264 weeks, the Second Injury Fund of Iowa is obligated to pay this claimant 136 weeks of compensation for permanent partial disability, payable commencing at the time the employer completes payment of the 66 weeks which were previously determined to be the extent of its liability. Sixty-six weeks following the date of August 10, 1987 computes to November 14, 1988. The Second Injury Fund is therefore obligated to pay this claimant 136 weeks of compensation for permanent partial disability payable commencing November 14, 1988. The accrued amount shall be paid in a lump sum, but without interest. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990). order IT IS THEREFORE ORDERED that, in file number 695235, Wilson Foods Corporation pay to Gerald Madsen, on account of the February 8, 1982 injury, seventy-seven (77) additional weeks of compensation for permanent partial disability at the rate of three hundred nineteen and 90/100 dollars ($319.90) per week payable commencing May 1, 1989. The entire amount thereof is past due and shall be paid to Madsen in a lump sum together with interest pursuant to Iowa Code section 85.30 computed from the date each payment came due until the date of actual payment. IT IS FURTHER ORDERED that, in file number 808301, Page 6 Wilson Foods Corporation pay to Gerald Madsen, on account of the July 13, 1985 injury, sixty-six (66) weeks of compensation for permanent partial disability at the rate of two hundred seventy-nine and 40/100 dollars ($279.40) per week payable commencing August 10, 1987. The entire amount thereof is past due and owing and shall be paid to Madsen in a lump sum together with interest computed pursuant to Iowa Code section 85.30 from the date each weekly payment came due until the date of actual payment. IT IS FURTHER ORDERED that the Second Injury Fund of Iowa pay Gerald Madsen one hundred thirty-six (136) weeks of compensation for permanent partial disability at the rate of two hundred seventy-nine and 40/100 dollars ($279.40) per week payable commencing November 14, 1988. All past due, accrued amounts shall be paid in a lump sum without interest with the balance to be paid in weekly payments. IT IS FURTHER ORDERED that costs in file number 808301 are assessed equally to the Second Injury Fund of Iowa and the employer pursuant to rule 343 IAC 4.33 and, in file number 695235, the costs are assessed entirely against the employer. IT IS FURTHER ORDERED that defendants Wilson Foods Corporation and the Second Injury Fund of Iowa shall file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. David L. Sayre Attorney at Law 233 Pine Street P.O. Box 535 Cherokee, Iowa 51012 Mr. Greg Knoploh Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50309 5-1803; 3201 Filed January 23, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : GERALD MADSEN, : : File Nos. 695235 Claimant, : 808301 : vs. : R E V I E W - : WILSON FOODS CORPORATION, : R E O P E N I N G : Employer, : A N D Self-Insured, : : A R B I T R A T I O N and : : D E C I S I O N S SECOND INJURY FUND, : : Defendants. : ____________________________________________________________ 5-1803 Fifty-eight-year-old claimant with two artificial knee joints awarded 90 percent permanent partial disability from Second Injury Fund. 3201 Where stipulation regarding injury arising out of and in the course of employment and extent of disability entered into by employer and claimant was consistent with the evidence in the case and appeared to have been entered into in good faith, the stipulations were adopted as being correct despite lack of acquiescence from the Second Injury Fund. BEFORE THE IOWA INDUSTRIAL COMMISSIONER STEVEN H. BALDUS, Claimant, File No. 695505 VS. R E V I E W - GEORGE A. HORMEL & CO., R E 0 P E N I N G Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE Co., Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in review-reopening brought by Steven H. Baldus, claimant, against George A. Hormel & Co. (Hormel), employer, and Liberty Mutual Insurance Co., insurance carrier, for benefits as a result of an injury on February 17, 1982 (a memorandum of agreement was filed herein on April 22, 1982). A hearing was held in Fort Dodge, Iowa, on December 2, 1986 and the case was submitted on that date. The record consists of the testimony of claimant and Kay Baldus; claimant's exhibits 1 and 2; and defendants' exhibits A through Y. At the hearing held on December 2, 1986, defendants objected to a portion of exhibit 1 (deposition of June Hageness taken October 16, 1986 that was designated as item 7 of the exhibit) and exhibit 2. These objections are now overruled. In defendants' post trial brief, they cite the agency to Osborn v. Massey-Ferguson, Inc., 290 N.W.2d 893 (Iowa 1980); however, the quoted portion of this decision relates to the exclusion of portions of a deposition, not an entire deposition. Defendants' argument that the entire Hageness deposition should be excluded because it is a "discovery deposition" is without merit. Claimant also filed a brief in this case. The parties stipulated that claimant's weekly rate of compensation is $322.15; and that claimant never returned to work after his work-related injury of February 17, 1982. ISSUES BALDUS V. GEORGE A. HORMEL & CO. Page 2 The contested issues are: 1) Whether there is a causal relationship between claimant's injury of February 17, 1982 and his asserted disability; and 2) Nature and extent of disability; specifically, claimant argues that his injury is a whole body injury while defendants argue that claimant's disability is limited to his right upper extremity. SUMMARY OF THE EVIDENCE Claimant testified that he is 43 years old. Claimant also testified that he graduated from high school in 1961, and has had eleven months of training in hairdressing but did not complete this training. He has no other technical training or formal education. He farmed at some point and has worked at a gas station. Claimant started working for Hormel in August 1971 as a laborer; he worked at Hormel until February 17, 1982. He was "officially terminated" by Hormel "52 weeks later." Claimant testified that on February 17, 1982, he was working in the cafeteria at Hormel and was required to move tables and take the wax off the floor. On February 16, 1982, claimant and a foreman talked about a "potential [health] problem" because of claimant's job. Claimant testified that he injured his right arm on the job when he was stripping and mopping the floor. Prior to February 17, 1982, claimant did not have any restrictions due to problems with his right arm and/or right shoulder. Claimant sought medical attention because of his injury. Currently, he only goes to a doctor "if the pain gets bad." At some point, he was given a shot of cortisone in his right forearm. Claimant testified that after February 17, 1982, he has sold cowboy boots and travels around the country in order to do so (he has had this job for about two and one-half years). The cowboy boot job has Ono set method of compensation.O He earned about $5,500 the first year selling boots and about $9,000 the second year. He was earning $560 per week gross at the time of his injury at Hormel. The cowboy boot job does not have any physical requirements. He has no fringe benefits and no social security taxes are withheld. He cannot afford financially to keep this job. He recently drove a grain truck and this caused "lots of problems with the right arm." Claimant testified that he currently does not use his right arm at all unless he has to because "the minute I use it, it hurts." On February 17, 1982, claimant was training and breeding horses, but cannot now physically do these things. Claimant testified that he was treated for arthritis in his neck, knees, and hands in the early 1970's. He also acknowledged that he has a drinking problem and goes to AA meetings as a result. He has gone to the Mercy Pain Clinic in Des Moines. He currently is not on medication. Claimant testified that "the pain is all one from the top of his shoulder to the forearm; it feels like one unit." His right BALDUS V. GEORGE A. HORMEL & CO. Page 3 elbow and right shoulder started hurting together. He "can't use his right shoulder at all." In January 1986, a lump (calcium deposit) started on his right shoulder. His right elbow has not improved since February 17, 1982 and is "still painful." His right forearm swells once in awhile but not his right elbow. The pain in his right shoulder is like the pain in his neck as it feels like one unit. He acknowledged that he has had pain in his neck for years. Claimant testified that he has never been released by Dr. Birkett to return to work so he did not complete a Job Service application to help him find work. He last saw Dr. Birkett about four months prior to hearing. Claimant acknowledged on cross-examination that Dr. Blessman of the Mercy Pain Clinic is of the opinion that claimant can work. He also stated that the Fort Dodge Hormel plant closed in June 1982 and claimant had an opportunity to transfer to the Beloit, Wisconsin Hormel plant at that time; however, he "went on disability with Hormel" instead. He was not physically able to start work at Beloit. His job at Fort Dodge had been a "handicap job" (he was on this particular handicap job for about three months prior to February 17, 1982) and Hormel did not have such a job for claimant at Beloit. For eight years prior to February 17, 1982, claimant had been on a "handicap job" of some sort. Claimant testified that between 1983-86, he made "no placement .contacts." He did not look into any educational opportunities during that period. He was last in contact with Job Service in 1983. Between January 1986 and May 1986, claimant was in Arizona selling boots. Between 1973-81, he went to Iowa City because of his neck problems and because of a problem with one of his knees. He "could not remember" whether he had problems with his right shoulder in the 1970's. Prior to February 17, 1982, claimant did not have pain to the extent he could not use his right shoulder. On redirect, claimant testified that he did not miss any work during the twelve months prior to February 17, 1982 because of his right shoulder or right elbow. Kay Baldus testified that she is claimant's spouse. Prior to February 17, 1982, claimant was able to do his job at Hormel and work with horses. He "did not exhibit any real problems with,his right arm" prior to February 17, 1982. After February 17, 1982, claimant was in a lot of pain. After February 17, 1982, he was "hurting" and he "couldn't move his arm when he came home." She has to turn claimant over in bed. Prior to February 17, 1982, claimant missed work because of his neck problems. For the last two years, she has not observed any improvement in claimant's physical condition; he cannot use his hands and arms a lot. Exhibit E, page 1, dated February 22, 1974, is authored by Robert L. Rodnitzky, M.D., and reads in part: Your patient Steven Baldus was seen in the Neurology Out-Patient Department on February 19, 1974. This 30 year old, right handed, meat cutter suddenly became aware of neck stiffness one year ago. He stated that while at work he BALDUS V. GEORGE A. HORMEL & CO. Page 4 suddenly became unable to turn in either direction. Within three months this improved considerably. In December, 1973, his neck once again became stiff and there was difficulty in turning his head to the left and extension. Direct pain has now come to radiate somewhat into the left shoulder and the lateral aspect of the left arm. The arm pain is intermittent in nature. Additionally in December he noted the onset of a steady aching mid-lumbar pain located just to the left of the midline. The pain radiates into the left lateral thigh. There is no cough or sneeze pain. He finds that sleeping on his abdomen or his back results in worsening of the back pain. He can sleep on his side without difficulty. He denies weakness of the extremities and there has been no bowel or bladder dysfunction. The past medical history is significant in that the patient was involved in an auto accident in 1965 during which he states he hurt both arms so severely that he had to keep them motionless for one week. Family history and review of systems was not contributory to the current problem with the exception of complaint of frequent swelling of the hands and feet in the past several weeks. Exhibit K, dated August 5, 1974, is authored by Dr. Rodnitzky, and reads in part: Your patient, Steven Baldus, was seen in the Neurology Out-Patient Department on August 2, 1974. Since Mr. Baldus' last visit he attempted to return to work but was unable to continue because of nausea and generally not feeling well. In regard to his cervical problem, he continues to note mid-cervical pain radiating into the right posterior shoulder. There are no sensory symptoms and the arms are strong. He denies any dysfunction in the lower extremities with the exception of a "catch" in his right knee when initially standing. Exhibit N (dated October 15, 1975) is authored by Dr. Rodnitzky and reads in part: "[H]e has noted some shoulder pain on the left .... It was my feeling that Mr. Baldus's [sic] shoulder pain was referred for the most part from his neck." Exhibit T (dated February 26, 1982) is authored by Mark Fortson, M.D., and reads in part: "We feel that Mr. Baldus' right shoulder pain most likely represents right shoulder tendinitis.O Exhibit W, page 2 (dated September 27, 1982), contains Dr. Blessman's opinion that claimant can return to work. Exhibit X, page 2, contains a 19 percent impairment rating for claimant's right arm given by Thomas W. Bower, L.P.T. Dr. Birkett's deposition taken on June 12, 1985 contains testimony on page 18 that supports claimant's material aggravation theory. Thomas Bower's deposition taken on February 11, 1986 contains testimony on page 9 that provides the basis for his 19 percent impairment rating. Dr. Blessman's deposition contains the following opinion at page 22 thereof: BALDUS V. GEORGE A. HORMEL & CO. Page 5 I think it was my opinion, at least, that the reason for his failure to respond was that he had the problem of alcoholism that was aggravating any long term or chronic pain problem that may have been there. Q. Okay. Upon discharge then, did you obtain a final diagnosis at that time? A. Yes. Q. What was that diagnosis? A. His final diagnosis would have been tendinitis of the elbow and alcoholism. Q. All right. There are references in this letter, and this will be put into evidence, anyway, but to attempts to refer him to various groups for assistance in dealing with his alcohol addiction. Do you know or have any information as to whether any follow-up was made by Mr. Baldus subsequent to his discharge from the Pain Center? A. Up until the time of discharge, he was into a lot of denial that he needed comprehensive treatment for his alcoholism and did not follow through with recommendations. Exhibit 1 contains a letter dated July 16, 1982, which is authored by W. Leimbach, M.D., that reads in part: "We feel that Mr. Baldus has a lateral epicondylitis as a cause of his right elbow pain." APPLICABLE LAW AND ANALYSIS The claimant in this case bears the burden of showing that "there resulted an ailment extending beyond the scheduled loss...." Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 1262, 130 N.W.2d 667, 669 (1964). This is a question of fact determined from the record. Id. at 1257, 130 N.W.2d at 669. The Iowa Supreme Court held that such a showing had been made in Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.w.2d 660 (1961). There the court stated that: [W]hile the trauma, the injury, was limited to the right foot, the Commissioner found claimant, as a result thereof, was affected with an ailment that extended beyond the scheduled loss of a foot, or the use thereof. The schedule is not applicable. Id. at 292, 110 N.W.2d at 664. The Iowa court reached a similar conclusion in Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). In Dailey, the claimant sustained an injury to his right femur. This injury caused a shortening of the leg, which in turn ..resulted in a tilting of the pelvis and curvature of the spine, Id. at 763, 10 N.W.2d at 571. On the basis of this evidence, the court held that claimant's initial scheduled injury resulted in a BALDUS V. GEORGE A. HORMEL & CO. Page 6 nonscheduled permanent ailment, and that he was entitled to nonscheduled permanent disability benefits. Id. at 765, 10 N.W.2d at 573-74. The Iowa Court of Appeals stated in Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890, 893 (Iowa App. 1983): The statute which confers the right to collect disability compensation can also limit the amount of compensation payable for specifically enumerated disabilities. Barton v. Nevada Poultry Co., 253 Iowa 285, 289, 110 N.W 2d 660, 662 (1961). Thus, Iowa Code SS 85.34(l) provides a statutory compensation schedule for the loss of specifically enumerated members. "The very purpose of the schedule is to make certain the amount of compensation in the case of specific injuries and to avoid controversies." Dailey v. Pooley Lumber Co., 233 Iowa 758, 760, 10 N.W.2d 569, 571 (1943). If a claimant's impairment is limited to a scheduled member "we are not concerned with the question of the extent of disability. The compensation in that event is definitely fixed according to the loss of use of the particular member." Dailey, 10 N.W.2d at 571. See also Graves v. Eagle Iron Works, 331 N.W.2d 116, 118-119 (Iowa 1983). "[W]here the result of an injury causes the loss of a foot, or eye, etc., such loss, together with its ensuing natural results BALDUS V. GEORGE A. HORMEL & CO. Page 7 upon the body, is declared to be a permanent partial disability and entitled only to the prescribed compensation.O Barton, 253 Iowa at 290, 110 N.W.2d at 663. (Emphasis added.) In the instant case, claimant's impairment that resulted from his injury of February 17, 1982 is clearly limited to the right upper extremity. Claimant has therefore failed to establish by a preponderance of the evidence that his injury is an "unscheduled" injury. See Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834, 835 (Iowa 1986). Claimant's neck and shoulder problems were present prior to February 17, 1982; that is,claimant's injury of February 17, 1982 did not cause his neck and shoulder problems nor does the evidence of record support the conclusion that this injury materially aggravated claimant's preexisting neck or shoulder problems. Claimant is entitled to 47.5 weeks of permanent partial disability benefits commencing on October 20, 1982 based on the 19 percent impairment rating of record. See Iowa Code section 85.34(2)(m) (this subsection determines the amount of compensation to be paid because of an injury to a claimant's right upper extremity). FINDINGS OF FACT 1. On February 17, 1982, claimant injured his right upper extremity while working for Hormel stripping wax from floors and mopping floors. 2. The physical impairment from claimant's injury of February 17, 1982 did not extend beyond his right arm. 3. Claimant had neck and shoulder problems prior to his February 17, 1982 injury and this injury did not cause claimant to have neck or shoulder problems nor did it materially aggravate his preexisting neck or shoulder problems. 4. Claimant roached maximum healing on October 19, 1982. 5. Claimant's stipulated weekly rate of compensation is three hundred twenty-two and 15/100 dollars ($322.15). CONCLUSIONS OF LAW 1. Claimant established by a preponderance of the evidence that his injury of February 17, 1982 caused some physical impairment. 2. Claimant failed to establish by a preponderance of the evidence that he sustained a whole body injury. 3. Claimant established entitlement to healing period benefits from February 17, 1982 through October 19, 1982 and then forty-seven point five (47.5) weeks of permanent partial disability benefits commencing on October 20, 1982 at a rate of three hundred twenty-two and 15/100 dollars ($322.15). BALDUS V. GEORGE A. HORMEL & CO. Page 8 ORDER That defendants pay the weekly benefits described above at a rate of three hundred twenty-two and 15/100 dollars ($322.15). That defendants pay accrued benefits in a lump sum and pay interest pursuant to section 85.30, The Code. That defendants be given credit for benefits already paid to claimant. That defendants pay the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33, formerly Industrial Commissioner Rule 500-4.33. That defendants shall file claim activity reports, pursuant to Division of Industrial Services Rule 343-3.1(2), formerly Industrial Commissioner Rule 500-3.1(2), as requested by the agency. Signed and filed this 7th day of January, 1987. T. J. McSWEENEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Monty Fisher Attorney at Law P.O. Box 1560 Snell Building, Suite 200 Fort Dodge, Iowa 50501 Mr. Tito Trevino Attorney at Law P.O. Box 1680 503 Snell Building Fort Dodge, Iowa 50501 1402.40; 1803 Filed 1-7-87 T. J. McSweeney BEFORE THE IOWA INDUSTRIAL COMMISSIONER STEVEN H. BALDUS, Claimant, File No. 695505 VS. R E V I E W - GEORGE A. HORMEL & CO., R E 0 P E N I N G Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. 1402.40; 1803 Held in review-reopening that claimant's neck and shoulder problems were not causally related to his work-related injury of February 17, 1982. However, claimant's disability to his right arm was determined to be causally related to this injury. 47.5 weeks of permanent partial disability benefits were awarded based on a 19% impairment rating for claimant's right arm. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES CONRAD, FILE NO. 696189 Claimant, R E V I E W - vs. R E O P E N I N G MARQUETTE SCHOOL, INC., D E C I S I O N Employer, F I L E D and MAY 20 1988 U.S.F.& G Insurance Co., IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in review-reopening brought by James Conrad, claimant, against Marquette School, Inc., employer, and U.S.F. & G. Insurance Company, insurance carrier, for the recovery of further workers' compensation benefits as a result of an injury on January 11, 1982. A prior review-reopening decision for this injury was filed on April 30, 1984, following a hearing on February 28, 1984. This decision became a final agency decision. On March 3, 1988, a hearing was held on claimant's petition filed herein 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. No oral testimony was received during the hearing in this case. Claimant failed to appear, but his attorney was present. The exhibits received into the evidence at hearing are listed in the prehearing report. In the last review-reopening proceeding, claimant was found to have a 10 percent permanent partial impairment to the body as a whole as a result of the injury to his low back on January 11, 1982. According to the decision in that proceeding, the injury resulted in a 25 percent industrial disability and weekly benefits were awarded accordingly. It was also found in that decision that claimant had other permanent partial impairments due to non-work related causes and degenerative arthritis. Claimant was only employed sporadically at the time of the last hearing. It was found in the last proceeding that claimant had a varied work background rendering it likely that he would be able to find entry level positions utilizing his past experience but that he was physically capable of only light to moderate work on an intermittent basis. Official notice was taken of the prior medical records as requested by the parties. ISSUES The parties submit the following issues for determination in this proceeding: I. Whether claimant suffered a change of condition causally related to the original work injury since the last review-reopening proceeding; and, II. The extent of claimant's entitlement to additional permanent disability benefits as a result of the alleged change of condition. SUMMARY OF THE EVIDENCE The following is a summary of the 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, it any, in the following summary should be considered as preliminary findings of fact. The exact nature of the claimed change of condition in this proceeding is somewhat in question due to claimant's failure to testify at the hearing. The written evidence submitted shows that since the last proceeding, claimant has received medical treatment from William H. Whitley, D.O., for bilateral shoulder pain after playing volleyball in June, 1985. An x-ray report at that time revealed degenerative arthritis of the acromioclavicular (A/C) joints bilaterally. In June, 1987, claimant was treated for two weeks by Nile Kennedy, D.C., for pain and subluxations in the lower cervical/thoracic level of his spine. According to Dr. Kennedy, x-rays of the low back at that time revealed some arthritic spurring at various levels of the low back but Dr. Kennedy in his deposition stated that this spurring was not a source of claimant's pain complaints to him. Also, offered into the record was evidence that claimant was rejected from a job titled "water superintendent" by the City of Westpoint, Iowa due to his back problems. According to the city administrator at the time, this job required occasional heavy lifting. Finally, William Boulden, M.D., an orthopedic surgeon, opined from a review of most of the records in this case that claimant's current arthritis spurring in the low back is not work related. APPLICABLE LAW AND ANALYSIS In a review-reopening proceeding, claimant has the burden of establishing by a preponderance of the evidence that he suffered a change in 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 Company, 170 N.W.2d 455 (Iowa 1969); Meyers v. Holiday Inn of Cedar Falls, Iowa, Iowa App. 272 N.W.2d 24 (1978). Such a change of condition is not limited to a change of physical change of condition. A change in earning capacity subsequent to the original award which is approximately caused by the original injury also constitutes a change in condition under Iowa Code section 85.26(2) and 86.14(2). See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). Claimant has not demonstrated even an argueable case for additional benefits. His only recent complaints of difficulties involve the upper back and shoulders, not the low back. All costs requested by defendants are assessed against claimant except that defendants may not receive more than $150.00 for the cost of any written report. It is the position of this agency that a doctor should not receive more fees for a written report than he would receive from oral testimony. The parties stipulated in the prehearing report that the request for costs have been paid. FINDINGS OF FACT 1. Claimant has had upper back and shoulder problems since the last review-reopening proceeding in 1984. 2. Claimant has degenerative arthritic spurring in the low back vertebras. 3. Since the last review-reopening proceeding, claimant has been rejected from a job due to an inability to perform heavy lifting. It could not be found from the evidence presented that the shoulder and arthritic conditions were related to the original injury. CONCLUSIONS OF LAW Claimant has not established by a preponderance of the evidence entitlement to additional workers' compensation benefits. ORDER 1. Claimant shall take nothing from this proceeding. 2. Claimant shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33 and specifically taxed as costs are the items listed in claimant's request filed April 8, 1988, except that defendants shall not receive more than one hundred fifty and no/100 dollars ($150.00) for any written medical report. Signed and filed this 20th day of May, 1988. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road Keokuk, Iowa 52632-1066 Mr. Ross H. Sidney Mr. Stephen D. Hardy Ms. Iris J. Post Attorneys at Law 2222 Grand Avenue P. 0. Box 10434 Des Moines, Iowa 50306 1800 Filed May 20, 1988 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES CONRAD, Claimant, FILE NO. 696189 vs. R E V I E W MARQUETTE SCHOOL, INC., R E 0 P E N I N G Employer, D E C I S I 0 N and U.S.F.& G Insurance Co., Insurance Carrier, Defendants. 1800 Claimant denied additional permanent partial disability benefits for a failure to show a change in condition. The case was not found to be argueable and claimant was assessed the costs.