Page 1 before the iowa industrial commissioner ____________________________________________________________ : LARRY L. PRICE, : : Claimant, : : vs. : : File No. 910370 SIOUX TOOLS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Larry L. Price, claimant, against Sioux Tools, Inc., employer and CNA Insurance, insurance carrier, defendants for benefits as the result of an alleged injury which occurred on February 8, 1989. A hearing was held at Sioux City, Iowa, on October 22, 1990, and the case was fully submitted at the close of the hearing. Claimant was represented by Harry H. Smith. Defendants were represented by Michael P. Jacobs. The record consists of the testimony of Larry L. Price, claimant; William Booe, plant superintendent; Don Campbell, personnel director; joint exhibits 1 through 25 and defendants' exhibits A through Z and AA. The deputy ordered a transcript of the hearing. Both attorneys submitted a brief description of the contentions of their respective client at the time of the hearing. Both attorneys submitted excellent posthearing briefs. stipulations The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. That the extent of entitlement to temporary disability benefits, in the event defendants are found liable for the injury, is stipulated to be from February 10, 1989 to November 13, 1989; with two brief occasional gaps which were not specified, but which were agreed to by the parties for two different periods when claimant attempted to return to work. That the commencement date for permanent disability benefits, in the event such benefits are awarded, is November 14, 1989. Page 2 That the rate of compensation, in the event of an award, is $263.30 per week. That all requested medical benefits have been or will be paid by defendants. That defendants assert no claim for employee nonoccupational group health plan benefits paid to claimant prior to hearing. That defendants paid claimant 37 weeks of temporary workers' compensation benefits at the rate of $263.30 per week prior to hearing. That there are no bifurcated claims. issues The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on February 8, 1989, which arose out of and in the course of employment with employer. Whether the injury was the cause of temporary or permanent disability. Whether claimant is entitled to permanent disability benefits, and if so, the nature and extent of benefits to which he is entitled. findings of fact injury It is determined that claimant sustained an injury to his wrists, elbows, shoulders, neck and upper back on February 8, 1989, which arose out of and in the course of employment with employer. Claimant was employed by employer for approximately 20 years prior to the alleged injury. Claimant testified that he passed a pre-employment physical examination when he began work. Claimant denied and there was no evidence of any prior injuries or problems with claimant's neck, back, arms or hands (transcript pages 24 & 25). Employer is in the business of manufacturing hand tools and valve grinders (tr. p. 25). More specifically, they produce air and electric hand tools, valve phased grinding machines and related product lines (tr. p. 80). Claimant and other employees work on an incentive program (tr. pp. 26, 27, 80, 81 & 82). Claimant described his work as subassembly work in which he assembles small parts and then moves them down the line (tr. p. 25). He related that the work is not heavy, but it is repetitive and requires the use of his hands, arms and shoulders (tr. p. 26). Claimant testified that he either met or exceeded the Page 3 incentive requirements until the middle or later part of 1988 at which time he experienced loss of strength in both upper extremities and found that he could not meet the incentive rates as easy as he previously did (tr. p. 26). He mentioned this to his foreman and was moved to other jobs which did not require reaching out with his upper extremities or tightening movements with his hands and arms (tr. p. 27). Claimant related that he experienced pain on the inside of his elbows which moved to his wrists, shoulders, neck and across the back of his shoulders (tr. pp. 28-30, 36, 37). By mid-February of 1988, he experienced a greater loss of strength and found that he could not lift his arms (tr. pp. 30, 31, 33, 37). Claimant testified that his symptoms became the most severe while operating the 12685 palm sander (tr. pp. 31 & 62). Claimant described his work as loading manufactured pieces into fixtures and tightening and ratcheting them into the fixture with his hands extended away from his body. He also knocked out flash, drilled holes with overhead drills and installed a sleeve in the product. He also pounded in pins and pressed in bearings (tr. p. 31). William Booe, plant superintendent, testified that employer's plant is machine intensive rather than labor intensive (tr. p. 83). Many of the machines are computer operated (tr. p. 84). He went through each of the photographs and explained the operations that were performed by claimant (exs. A-Z, tr. pp. 85-98). Booe testified that claimant worked on a total number of 20,753 separate parts for employer in 1988, during 1,657 hours of employment which resulted in 12.52 pieces per hour that claimant averaged in 1988 (tr. p. 104). He showed some of the parts manufactured and gave their weights and discussed the amount of ratcheting, tightening and repetitiveness to the jobs that claimant performed (tr. p. 111-121). Employer sent claimant to see D.M. Youngblade, M.D., on February 22, 1989 (ex. 1). He ordered an EMG/NCV from B. Krysztofiak, M.D., a physiatrist at the Marion Health Center. The first test on February 23, 1989 showed slowing of conduction across the right wrist compatible with carpal tunnel syndrome. The ulnar nerve conduction was within normal limits on each side. The EMG demonstrated no indication of superimposed cervical radiculopathy on each side. The doctor said that the patient's symptoms involving his shoulder joints were suggestive of superimposed rotator cuff tendonitis on each side right greater than left (ex. 2). On February 22, 1989, Dr. Youngblade recorded, "Can't use his arms, hands or shoulders-`can't lift a pencil'." (ex. 1). On March 3, 1989, Dr. Youngblade answered the question, "Is this injury related to work?" with the word, "yes." (ex. 3). After he saw claimant on March 15, 1989, he recorded bursitis and myofascial syndrome and referred claimant to Daniel J. Miller, M.D., a neurosurgeon. An MRI on April 27, 1989, ordered by Dr. Miller showed: (1) normal appearing cervical cord. (2) no evidence of herniated disc. Page 4 (3) mild indentation against the spinal canal at the 4th and 6th disc level, which may be due to spurring with no evidence of any herniated disc. (exhibit 7) The spurring appears to be somewhat speculative. The diagnostic arthrogram of the right shoulder on May 15, 1989, was completely negative (ex. 10). There are no medical reports, as such, from Dr. Miller, but he did involve Kevin J. Liudahl, M.D., an orthopedic surgeon, as a consultant (ex. 8). A second EMG/NCV test by Dr. Krysztofiak on May 9, 1989, reconfirmed mild carpal tunnel syndrome of the right arm, but improved over the previous test on February 23, 1989 (ex. 9). Claimant had been off work in between the two examinations. On April 27, 1989, Dr. Liudahl diagnosed bilateral subacromial bursitis, with possible small rotator cuff tear on the right and bilateral early signs of carpal tunnel disease worse on the right than the left. On May 26, 1989, Dr. Liudahl recommended against a carpal tunnel release surgery. A diagnostic right shoulder arthrogram on May 15, 1989, was negative (ex. 10). Employer allowed claimant to see his personal physician, Vernon Helt, M.D., on June 26, 1989. He found claimant had shoulder strain from repetitive motion and recommended less use of the right shoulder. He imposed several restrictions, to-wit, (1) no ratcheting, (2) no arbor press work, (3) no pushing-pulling, (4) no heavy lifting or lifting with arm away from the body and (5) no continuous repetitive motion on use of the hands and forearms (ex. 12). Dr. Miller concurred in Dr. Helt's restrictions (ex. 13). Dr. Liudahl stated on July 18, 1989, "I believe that this is related to the patient's employment and essentially it falls into the category of over-use type syndrome." (ex. 14). Claimant was then examined by R.F. Reeder, M.D., an orthopedic surgeon, who administered a cervical myelogram and CT scan of the cervical spine (ex. 15, pp. 1 & 2). On September 21, 1989, Dr. Reeder reported: The patient's myelogram demonstrated minimal ventral effacement of the subarachnoid space at C4-5 and 5-6 due to an osseous ridge, but no evidence of herniated disc material. This was confirmed with the CT scan showing no evidence of herniated disc, although there was minimal bilateral foraminal encroachment at C4-5 by these ridges. These were not significant enough to warrant surgical decompression. His problems persist. His pain is not severe when he is not working. (exhibit 16) Page 5 Dr. Reeder concluded: IMPRESSION: The patient has some chronic brachialgia of an undetermined cause. I suspect this is a mechanical sprain or strain type injury which is worsened by any kind of work activity. Presently, the patient does not have any objective abnormalities, with the exception of a mild right carpal tunnel syndrome. This is not bothering him to any great extent. In my opinion the patient's elbow and arm pain would not improve with release of the carpal tunnel, and I therefore would not recommend it. (exhibit 16) He finished his report by stating, "I suspect the patient would benefit from retraining in order to perform a job which would limit his activity about the shoulders." (ex. 16). On October 2, 1989, Dr. Youngblade wrote: With all of the combinations of physical and chemical studies that have been carried out on this patient nothing from a true objective standpoint has been proven or disproven referrable to his neck, upper back, shoulders and general neurologic examination. The patient has shown only subjective findings and it is the feeling of the neurologist and myself that this patient should be tried back at routine work and activity. It is suggested that he could be limited to 25 lbs. or less of lifting and decrease his twisting or ratcheting with his hands to some degree, but otherwise should be able to do the type of work that he has attempted and tried before. I feel that this patient is capable of returning to work if only on a limited capacity as far as weight that is lifted, deceasing the continual ratcheting affect or twisting affect of his hands and hopefully this would allow the patient to return to the work force. (exhibit 17) On October 3, 1989, Dr. Youngblade completed a workers' compensation questionnaire in which he answered the question, "Is this work related?" with the word "yes." (ex. 18). Claimant was examined by Pat Luse, D.C., on February 27, 1990, who reviewed the medical reports of Dr. Liudahl, Dr. Youngblade, Dr. Helt, Dr. Reeder and Dr. Miller. He Page 6 diagnosed: 1. Chronic shoulder bursitis-bilateral. 2. Rotator cuff tear-bilateral. 3. Overuse syndrome both shoulders. 4. Carpal tunnel syndrome-not rated in this report. (exhibit 19, page 4) Dr. Luse found, "It is my opinion, based on the available information, that Larry Price did receive an injury as a result of the repetitive motion job he was performing. The subjective complaints were consistent with the objective findings." (ex. 19, p. 4). Dr. Luse's impairment rating was a total impairment to the whole person of 20 percent, although it is not clear how he arrived at this final figure based upon the preliminary measurements which he used (ex. 19, p. 4). Claimant was examined by Michael J. Morrison, M.D., an orthopedic surgeon, on July 13, 1990 and he diagnosed, "(1) cervical and shoulder girdle strain, chronic; (2) degenerative cervical disc disease (mild)-no evidence of disc herniation; (3) weakness upper extremities-etiology unclear". (ex. 22, p. 2). Dr. Morrison said that claimant attributed his stiffness and pain to repetitive use of his upper arms at work, such as tightening heavy vises over an extended period of time. Dr. Morrison countered that degenerative cervical disc disease can also occur with an aging process and not necessarily be related to repetitive twisting and motion involving his neck. Dr. Morrison said since there were no objective findings on physical exam or diagnostic testing, that he could not justify work restrictions based on objective findings, but only subjective complaints. He agreed that claimant did have carpal tunnel syndrome and that tight gripping and heavy lifting with his hands would aggravate this condition (ex. 22, pp. 1 & 2). All of the doctors indicated that claimant's symptoms were related to his work. Employers' physician, Dr. Youngblade, specifically indicated that his complaints were work related (exs. 3 & 18). Dr. Helt said the shoulder strain was from repetitive motion (ex. 12). Dr. Miller concurred in Dr. Helt's restrictions (ex. 13). Dr. Liudahl specifically stated, "I believe that this is related to the patient's employment and essentially it falls into the category of over-use type syndrome." (ex. 14). Dr. Reeder said claimant's condition was worsened by work activities (ex. 16). Even though Dr. Morrison suggested degeneration, degeneration was not shown on any of the objective tests that were done. Dr. Morrison did grant that the carpal tunnel was aggravated by tight gripping and heavy lifting with his hands (ex. 22, pp. 1 & 2). Dr. Luse said that claimant's injury was caused by his employment (ex. 19, p. 4). The EMG of Dr. Krysztofiak showed improvement when claimant had been off work (exs. 2 & 9). Wherefore, it is determined that claimant sustained an injury to his wrists, elbows, shoulders, neck and upper back on February 8, 1989, which arose out of and in the course of Page 7 employment with employer. type of injury It is determined that the injury is an injury to the body as a whole. It is clear that claimant's complaints, treatment, testing and evaluations all extended to parts of the body beyond the glenohumerol joint into the body as a whole--more specifically, both shoulders, neck, and across the shoulder blades. Therefore, it is determined that claimant has sustained an industrial disability to the body as a whole. causal connection-entitlement-temporary disability On the prehearing report the parties agreed that defendants are liable for temporary disability benefits from February 10, 1989 to November 13, 1989, a period of 39.571 weeks. Therefore, it is determined that claimant is entitled to temporary disability benefits for this period of time. Casual connection is not in question. The only reason any of the doctors suggested for the disability was claimant's work history which he related to them at the time he was examined. Assuming that claimant did have some degeneration in his cervical spine, as suggested by Dr. Morrison (ex. 20), or spurring as suggested by the MRI (ex. 7), defendants are, nevertheless, liable for an aggravation of a preexisting condition which quite clearly appears to be caused by the work history which claimant related at the hearing and to the doctors. No other cause of the disability is realistically suggested by any of the evidence. Therefore, it is determined that claimant is entitled to 39.571 weeks of temporary disability benefits as agreed to by the parties in the prehearing report. causal connection-entitlement-permanent disability It is determined that claimant is entitled to 20 percent industrial disability to the body as a whole. For the injury to his wrists, elbows, shoulders, neck and upper back on February 8, 1989, which arose out of and in the course of employment with employer. Claimant, born February 16, 1944, was approximately 43 years old at the time of the injury and 44 years old at the time of the hearing. Claimant's industrial disability is more serious than a younger or older worker because he is at the peak of his earnings career, particularly after 20 years of employment with the same employer. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (Appeal Decision April 28, 1989). Claimant has the benefit of a high school education. During high school he worked as a grocery stock clerk and a filling station attendant pumping gas. Later, he drove a Page 8 delivery truck, worked as a construction laborer and frame carpenter, worked in a packing house as a butcher on the kill floor and was an order picker for a wholesale grocery firm. There was no evidence of any other past experience, education or training. Claimant is young enough to be retrained and rehabilitated and from his appearance in the courtroom appears to have the intelligence and adaptability to be retrained. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Retraining is one of the considerations used in the determination of industrial disability. Dr. Youngblade did not give a physical impairment rating, nor is there any indication that he was asked to do so or that he was capable of doing so. Dr. Reeder stated on March 29, 1990, "In my opinion Mr. Price shows no subjective evidence of nerve damage to the right upper extremity. Beyond this I really have no expertise or inclination to rate this type of injury for permanent disability percentages." (ex. 5). Dr. Miller and Liudahl did not give impairment ratings, although as orthopedic surgeons it would appear they were fully capable of doing so if they were asked. Dr. Morrison was unable to award any impairment rating (ex. 22). Dr. Luse gave a bottom line, "Total impairment to whole person = 20%." (ex. 19, p. 4). However, his final figure does not tally with his preliminary figures and therefore, the reliability of a 20 percent rating is brought into question. Nevertheless, several restrictions were placed on claimant. His personal physician, Dr. Helt, said (1) no ratcheting, (2) no arbor press work, (3) no pushing-pulling, (4) no heavy lifting or lifting with arm away from the body and (5) no continuous repetitive motion on use of the hands and forearms (ex. 12). Dr. Miller, an orthopedic surgeon, concurred in these restrictions (ex. 13). Dr. Reeder recommended, "...retraining in order to perform a job which would limit his activity about the shoulders." (ex. 16). Dr. Youngblade suggested he be limited to lifting 25 pounds or less and decrease his twisting and ratcheting with his hands and if he did so hopefully this would allow him to return to the work force (exs. 17 & 18). Dr. Luse did not suggest any restrictions (ex. 19). Dr. Morrison said any restrictions would have to be based upon subjective findings (ex. 22). Dr. Reeder on April 10, 1990, said that claimant should be assigned to tasks which avoid repetitive motions of the right shoulder especially those above the head. He did not think a weight restriction was necessary. Again he declined to rate the claimant on the basis of a nerve injury because he said the problem was mainly that of arthropathy (ex. 21). Although claimant's hand, arm and shoulder movements were not highly repetitive, they were, nevertheless, repetitive. Therefore, it is determined that claimant is foreclosed from returning to his prior employment which he was performing at the time this injury occurred. Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Page 9 Report 282 (1984); Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (Appeal Decision January 30, 1979). Claimant was terminated from his employment by employer for the reason that he failed to request a leave of absence as he was required to do by the bargaining agreement. Actually, claimant was determined to have voluntarily quit, according to the bargaining agreement, because he failed to extend his request for a leave of absence, even though he was off work based on a doctor's orders due to his injury, according to the testimony of Donald Campbell, the personnel director (tr. pp. 132-134). This termination of employment is the subject of a grievance procedure at the present time (exs. 24, 25 & AA). Claimant testified that he has a continuous dull pain all of the time in his upper extremities which never goes away (tr. pp. 33 & 34). Claimant maintained that the two times he returned to work he was unable to perform even the light duty work which was provided for him (tr. pp. 40 & 50). Claimant testified that after his termination he took a job for a plumber digging trenches, putting in water pipe and performing warehouse work and he continued to experience loss of strength in his arms and shoulders and pain in his neck (tr. p. 52). Claimant granted that he has performed work in a home workshop on starters, generators and alternators for several years, but since this injury it has been difficult for him to do (tr. pp. 52, 53, 55, 57 & 70). Employer did not offer claimant any vocational rehabilitation, nor did claimant actively pursue any vocational rehabilitation on his own initiative (tr. pp. 54, 59, 60). Claimant testified that the injury has reduced his competition in league softball, but also conceded on cross-examination that he had discontinued league softball sometime prior to this injury. Claimant indicated that formerly he played a lot of basketball, but defendants pointed out that claimant had played basketball all winter extensively with his son and his son's friends as well as with claimant's own friends (tr. pp. 56 & 68). Claimant acknowledged that he has had no active medical treatment or medications for this injury since June of 1989. Claimant conceded that when he worked in the warehouse, he handled parts which were 20 feet long and weighed 40 to 50 pounds and performed overhead work without assistance by use of a ladder (tr. pp. 72 & 73). Claimant said he could run a mile if he had to (tr. p. 69). In conclusion, it is determined that there is labor and work which claimant can perform; however, he is precluded from performing repetitive tasks with his hands, arms and shoulders. This limitation prevents him from performing many of the easiest jobs to obtain and sometimes the better paying jobs in the competitive labor market. It is also noted that claimant's physical injuries did Page 10 not require surgery and the surgeons who examined claimant recommended ag v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (Appeal Decision March 26, 1985); and (3) applying agency expertise, [Iowa Administrative Procedure Act 17A.14(5)]; it is determined that claimant has sustained a 20 percent industrial disability to the body as a whole and is entitled to 100 weeks of permanent partial disability benefits at the rate of $263.30 per week. conclusions of law Wherefore, it is determined that based upon the evidence presented and the foregoing and following principles of law, these conclusions of law are made: That claimant sustained an injury on February 8, 1989, to his wrists, elbows, shoulders, neck and his upper back which arose out of and in the course of employment with employer. Iowa Code section 85.3(1). McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). That the injury was the cause of temporary disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant is entitled to healing period benefits Page 11 from February 10, 1989 to November 13, 1989, as stipulated to by the parties in the prehearing report, a period of 39.571 weeks. Iowa Code section 85.34(1). That the injury was the cause of permanent disability. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl, 236 Iowa 296 18 N.W.2d 607 (1945). That claimant is entitled to 100 weeks of permanent partial disability benefits at the rate of $263.30 per week in the total amount of $26,330. order THEREFORE, IT IS ORDERED: That defendants pay to claimant thirty-nine point five seven one (39.571) weeks of healing period benefits at the rate of two hundred sixty-three and 30/100 dollars ($263.30) in the total amount of ten thousand four hundred nineteen and 04/100 dollars ($10,419.04) commencing February 10, 1989. That defendants are entitled to a credit for thirty-seven weeks of healing period benefits paid to claimant prior to hearing at the rate of two hundred sixty-three and 30/100 dollars ($263.30) in the total amount of nine thousand seven hundred forty-two and 10/100 dollars ($9,742.10). Defendants are also entitled to credit for the days that claimant returned to work and received wages on his two short-lived attempts to return to work which the parties indicated that they could agree to the amount of the credit. That defendants pay to claimant one hundred (100) weeks of permanent partial disability benefits at the rate of two hundred sixty-three and 30/100 dollars ($263.30) in the total amount of twenty-six thousand three hundred thirty dollars ($26,330) commencing at the end of healing period. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action, including the cost of the transcript, are charged to defendants pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. That defendants file Division of Industrial Services form 2A to show the payments made to claimant prior to hearing. Signed and filed this ____ day of November, 1990. Page 12 ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Harry Smith Attorney at Law 632-640 Badgerow Bldg. PO Box 1194 Sioux City, Iowa 51102 Mr. Michael P. Jacobs Attorney at Law 300 Toy National Bank Bldg Sioux City, Iowa 51101 Page 1 51106; 51401; 51402.20; 51402.30; 51402.40; 52209; 51802; 51703; 51803; 1807 Filed November 28, 1990 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : LARRY L. PRICE, : : Claimant, : : vs. : : File No. 910370 SIOUX TOOLS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51106; 51401; 51402.20; 51402.30; 51402.40; 52209 Claimant sustained a cumulative type of injury to his wrists, elbows, shoulder, neck and upper back from use of his upper extremities at work as a production worker. 51802 Claimant awarded healing period for a stipulated period of time. 51703 Defendants allowed an offset for workers' compensation and wages paid to claimant prior to hearing. 51803 Claimant awarded 20 percent industrial disability based partially on a 20 percent functional impairment rating from a forensic chiropractic evaluator that wasn't too reliable, but primarily because he was foreclosed from his prior employment doing work which was repetitive in nature by medical doctors who were orthopedic and neurosurgical specialists. Several tests disclosed no objective evidence of injury except slight carpal tunnel and no surgery was performed of any kind. 1807 Page 2 Employer chose to call 20-year employee a voluntary quit when he failed to ask for a leave of absence even though he was under doctor's restrictions, which was their right to do under the bargaining agreement. Using this technical ground to terminate a 20-year employee who had become an employment problem appeared to be very much like or tantamount to a refusal to rehire. Prior to this leave of absence, employer had assisted him in completing the necessary request for leave of absence while being treated for this injury. before the iowa industrial commissioner ____________________________________________________________ _____ : SCOTT DMOCHOWSKI, : : Claimant, : : vs. : : File No. 910389 HY-VEE FOOD STORES, INC., : : A P P E A L Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed October 22, 1991 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of February, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Harry W. Dahl Attorney at Law 974 73rd St., Ste 16 Des Moines, Iowa 50312 Mr. Robert C. Landess Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 9998 Filed February 24, 1992 Byron K. Orton DRR before the iowa industrial commissioner ____________________________________________________________ _____ : SCOTT DMOCHOWSKI, : : Claimant, : : vs. : : File No. 910389 HY-VEE FOOD STORES, INC., : : A P P E A L Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 9998 Summary affirmance of deputy's decision filed October 22, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : SCOTT DMOCHOWSKI, : : Claimant, : : vs. : : File No. 910389 HY-VEE FOOD STORES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case Claimant Scott Dmochowski filed a petition in arbitration seeking benefits under the Iowa Workers' Compensation Act as the result of a stipulated work injury on February 6, 1989. Defendant Hy-Vee Food Stores, Inc., was his employer and was insured by defendant Employers Mutual Companies. The cause came on for hearing in Des Moines, Iowa, on August 14, 1991. Claimant, Paul Blanchard and John Powers testified personally. Joint exhibits 1 through 9, claimant's exhibits 1 and 2 and defendants' exhibits A, B and D through H were received into evidence. Claimant objected to defendants' exhibit C on the basis that it was untimely pursuant to the hearing assignment order filed herein on March 20, 1991. Defendants asserted that the exhibit stood in rebuttal to claimant's exhibit 1, which was served only on or about the last day permitted for discovery under the hearing assignment order. Ruling was reserved. Under the result reached in this decision, the issue is moot. issues The parties have stipulated that claimant sustained an injury arising out of and in the course of his employment with Hy-Vee Food Stores, Inc., on February 6, 1989, that the appropriate rate of compensation is $246.67 per week, that affirmative defenses are waived, and that certain payments were voluntarily made and continue to be made through the date of hearing. Issues presented for resolution include: Page 2 1. Whether there exists a causal relationship between the injury and permanent disability (claimant seeks no additional healing period or temporary total disability); 2. The extent of claimant's industrial disability, if any; and, 3. Whether claimant is entitled to medical benefits under Iowa Code section 85.27. findings of fact The undersigned deputy industrial commissioner finds: Scott Dmochowski, 30 years of age at hearing, is a 1978 high school graduate. At age 15, he was involved in an automobile accident resulting in a compression fracture of the fourth lumbar vertebra. The injury did not result in the imposition of permanent medical restrictions and Mr. Dmochowski claims that he suffered no ongoing back problems. Prior to accepting work with Hy-Vee Food Stores, claimant was physically active and engaged in athletic activities without limit. Claimant first began working in a grocery store in the state of Illinois where he was raised. He moved to Iowa in approximately July 1978 and commenced work with Hy-Vee, also a grocery business. Claimant worked in several stores in the Des Moines area through the stipulated injury date of February 6, 1989. During the first ten months or so of his employment, he worked as a grocery bagger, shelf stocker, and in various duties such as helping customers load groceries into cars. This was generally strenuous work and involved lifting up to perhaps 80 pounds. Afterwards, claimant worked in building maintenance for some six or seven years in two different stores. Duties included sweeping, mopping, waxing floors and the like. In approximately 1985, defendant contracted out the floor cleaning duties to a private concern and claimant was reassigned to a night crew job unloading delivery trucks and stocking shelves. Typically, five or six employees would spend 2-3 hours unloading a truck using a roller track, then stocking shelves with this merchandise. Claimant described the work as relatively heavy. Some 40,000 pounds of product were typically unloaded and shelved. On February 6, 1989, claimant was stationed in the truck, sliding cases of product down the roller track. He developed severe back pain, and after reporting this to his supervisor, was transferred to a job out of the truck. He made it through the rest of the shift with pain symptoms described as "jolting" or like "lightning." Unlike previous experiences with sore muscles, the pain did not improve after a night's rest. On February 8, 1989, claimant was seen by Debra A. Benjamin, D.O., at the College of Osteopathic Medicine in Page 3 Des Moines. In pertinent part, her report of that date included: He has been working at Hy-Vee as a night stock person for the past ten years. He states he does approximately 40,000 pounds of lifting a night. He is usually able to do this without any excruciating or radiating back pain. Over the past seven to eight years, he has noticed episodes once every three to four months where he will have a lightening [sic] like sensation radiating down both of his legs. Over the past two to three weeks, however, this lightening [sic] like sensation has become much increased. It will start in his lower back region and radiate down the back of his legs, at times just to his knees and at other times down to his ankles. He has no weakness associated with this. He has no problem with bowel or bladder. He has no sexual problems. He states this is usually brought on by bending forward but this is not always the case. At times he can do this and not be bothered. When he gets these sensations, he has to stand still for approximately one to two minutes and then the pain will subside. He states occasionally this will shoot up his back a ways, but certainly no higher than the umbilical region. He states these episodes occur up to twenty times a day. He also tends to exacerbate some of these problems with coughing. He admits to taking Advil and using a heating pad, but has not been on bed rest for any of these complaints. (Exhibit 4, page 1, emphasis added) Dr. Benjamin's report fails to mention the incident of February 6, 1989. Her impression was of status post-lumbar fracture with some tic-like paresthesias in the lumbar region with radiation down the legs. Neurological examination was normal. Claimant was cross-examined on the history he gave Dr. Benjamin. At first, he denied reporting "lightning like" episodes for a period of years, then indicated that he did not recall giving that history. It will be recalled that claimant also testified to suffering no ongoing back problems following the spinal injury he suffered at age 15. However, a review of Dr. Benjamin's report convinces this observer that the doctor did not misunderstand claimant's history. A fair reading of the quoted remarks shows that they are consistent with a history of exacerbation "over the past two to three weeks," much more so than a history of only two days. The history claimant gave to a treating physician when he was in acute need of medical attention is more reliable than his testimony more than two years later when his focus is more immediately upon this litigation than the need for medical care. It is established that claimant had a seven- or eight-year history of "lightning like" Page 4 sensations radiating down both legs and pain, symptoms which had become "much increased" in the two to three weeks prior to February 8, 1989. This is also two to three weeks prior to the alleged work injury. It should also be noted that admission notes of the emergency department at Mercy Hospital Medical Center dated May 20, 1989 reflect a history of "several years of back pain." Claimant was next seen by Sinesio Misol, M.D., on February 15, 1989. Dr. Misol continued to follow claimant for some months. Initial history was consistent with claimant's hearing and deposition testimony, but inconsistent with the history given Dr. Benjamin. Chart notes of February 28 reflect a two-week history of back pain "that started suddenly while unloading a truck." On March 24, Dr. Misol notes that claimant was "pretty much asymptomatic until he got hurt at work." On that basis, Dr. Misol believed claimant had sustained an aggravation of a preexisting underlying disc disease problem. Claimant was also treated by William R. Boulden, M.D., who eventually performed surgery on January 12, 1990 described as transverse process fusion L3-4 bilaterally with internal bone stimulator. The history given Dr. Boulden on June 13, 1989 was of pain in the lower back that "first started at work." Again, the history given Dr. Boulden was inconsistent with that given Dr. Benjamin, the first physician to be seen. Dr. Boulden eventually concluded that claimant's disability resulted from a work injury at Hy-Vee. conclusions of law The parties have stipulated that claimant sustained an injury arising out of and in the course of his employment. Entitlement to healing period or temporary total disability is not at issue. Claimant was sporadically off work from February 12, 1989 through October 30, 1990, but seeks no further compensation. The parties dispute whether the work injury caused permanent disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of February 6, 1989 is causally 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 Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or Page 5 unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). Two physicians have expressed a view as to causation: Drs. Misol and Boulden. However, both opinions are based on a faulty history. Dr. Misol and Dr. Boulden each believed that claimant was asymptomatic before suffering the sudden onset of back pain on February 6, 1989. It is unknown how those physicians might have viewed the causation issue had they been aware of a seven- to eight-year history of pain and lightning like sensations much exacerbated in the two to three weeks immediately preceding the alleged work injury. The significance of the incorrect history upon which these well-qualified physicians based their opinions is obvious. In any event, it is claimant's burden of proof to establish the necessary causal nexus between the asserted work injury and present disability. Unloading the truck on February 6, 1989 may well be causally related to some or all of the temporary disability that followed, but that is not in dispute. Indeed, that incident may in some part be related to current disability, but claimant has failed to meet his burden of proof in establishing that relationship. Other issues are thereby rendered moot. order THEREFORE, IT IS ORDERED: Claimant shall take nothing further from these proceedings. The costs of this action are assessed to claimant pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. Page 6 ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry W. Dahl, III Attorney at Law 974 73rd Street, Suite 16 Des Moines, Iowa 50312 Mr. Robert C. Landess Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 1108.50 Filed October 22, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : SCOTT DMOCHOWSKI, : : Claimant, : : vs. : : File No. 910389 HY-VEE FOOD STORES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES,: : Insurance Carrier, : Defendants. : ____________________________________________________________ 1108.50 Although two treating physicians opined that work injury caused permanent disability, both opinions were flawed by incorrect histories given each doctor. Claimant had suffered a fractured L-4 vertebra in childhood. After work incident, the first physician seen--two days later--noted a 7-8 year history of pain and radiating "lightning like" jolts which had become much exacerbated (up to 20 times per day) over the past two to three weeks. A review of her notes convincingly showed that the reference to "weeks" was not a misunderstanding or clerical error. Because the medical opinions were based on a faulty history, claimant failed to meet his burden of proof on causation. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DENNIS L. VIERS, : : Claimant, : : vs. : : File No. 910392 ALLIED PRODUCTS CORP, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Dennis L. Viers against his former employer, Allied Products Corporation and its insurance carrier, CIGNA, based upon an admitted injury of February 21, 1989. The issues for determination are the rate of compensation and the extent of permanent partial disability. It was stipulated that claimant's healing period ran from February 23, 1989 through January 15, 1990, and that 116 4/7 weeks of compensation benefits had been paid at the rate of $230.72 per week. It was stipulated that claimant was married and entitled to four exemptions. The case was heard and fully submitted at Mason City, Iowa, on July 16, 1993. The evidence consists of testimony from Dennis Viers and John Culbertson. The record also contains jointly offered exhibits 1 through 78. FINDINGS OF FACT Dennis Viers is a 48-year-old married man who dropped out of school in the eighth grade but obtained a GED in 1969. He is an honorably discharged veteran of the Viet Nam War. Dennis has a varied work history which includes construction, dairy farming, cemetery maintenance, truck driving, operation of heavy construction equipment, manufacturing, and foundry work. The employer in this case, Allied Products Corporation, was formerly known as White Farm Equipment. Dennis has been employed by the employer on two separate occasions. The first ran from 1973 until October 1981. He was a chipper and grinder in the foundry. Due to a reduction in his hours he resigned in order to take a better paying job in a factory near Minneapolis, Minnesota. After two years he was laid off from that factory and returned to northern Iowa. Page 2 Upon returning to northern Iowa, Dennis obtained employment with M.R. Fishel Construction. He drove a truck, operated a roller and performed other assorted activities. His annual earnings were in the range of $6000 to $8000 due to the seasonal nature of the work. In 1988 Dennis returned to work at what is now Allied Products Corporation as a grinder. The work involved lifting pieces which weighed as much as 140 pounds. His pay was based on the amount of work performed rather than by the hour. On February 21, 1989, Dennis had been working with 110-pound flywheels and heavy weights used on the front end of farm tractors. He felt pain in his back and neck, reported it and was sent to receive medical care. Dennis then entered into a course of medical care and treatment which has involved extensive physical therapy, diagnostic tests and other conservative care as directed by the employer-selected physicians. The diagnostic testing has shown degeneration in his right shoulder and lumbar spine (exhibit 2, page 12; ex. 4, pp. 25-26; ex. 35). J. Michael Donohue, M.D., has rated Dennis as having a 9 percent impairment of the whole person as a result of the February 1989 injury (exs., 24, 25, 26). Dr. Donohue imposed activity restrictions which consist of avoidance of repetitive bending and lifting, a maximum lifting restriction of 75 pounds and which permits lifting up to 50 pounds frequently so long as it is not so frequent as to be considered repetitive. Dr. Donohue also recommended that claimant minimize repetitive use of his right shoulder and limit use of the right arm to chest level and below. He recommended that Dennis be permitted to change position every two hours (exs. 24, 25). The record does not show any physician to have any significant disagreement with Dr. Donohue's assessment of the case. In fact, David W. Beck, M.D., a neurosurgeon, has concurred with Dr. Donohue (ex. 40). Dr. Donohue is a well-regarded orthopedic surgeon. His assessment is accepted as being correct. Commencing in May 1989 and running through January 1990, Richard Jorgensen, a vocational consultant with Intracorp, was involved in claimant's case. Jorgensen was not able to arrange a successful return to work for Dennis (exs. 48-67). Dennis obtained employment with M.R. Fishel Construction in 1991. After learning that Dennis had obtained that employment, Jorgensen then re-offered rehabilitation services (exs. 68-73). Dennis is now employed as a truck driver for M.R. Fishel Construction. As during the previous employment with that employer, the work is seasonal, typically starting in the month of May and ending in the month of November (ex. 77, deposition ex. 1, pp. 7-11). Dennis receives unemployment when work is not available. In 1991 he earned $7,468.50. In 1992 he earned $10,338.85. By the end of June in 1993 Dennis had earned only $2,954.34. Dennis currently earns $6.50 per hour and has no fringe benefits. According to Michael Fishel, superintendent for M.R. Fishel Page 3 Construction, Dennis performs his work satisfactorily and performs as much manual labor as other truck drivers. If Dennis were still employed at Allied Products Corporation he would be earning in excess of $12 per hour. The Allied plant was scheduled to close, however, due to lack of work with all remaining employees to be terminated. As indicated by John Culbertson, human resources manager, it will be difficult for most of those 450 workers to find replacement employment. The Allied plant did not always operate 40 hours per week while Dennis was employed there. Dennis also missed work on occasion for personal reasons. Exhibit 75 shows the gross earnings for the last 24 weeks that Dennis worked at Allied. Of those, nine contain less than 40 work hours. Three show more than 40 work hours. According to the testimony from John Culbertson the reduced hours shown for the weeks of December 17, 1988 were probably a result of a lack of work. The evidence fails to show any reason for why Dennis worked less than 40 hours during any of the other weeks. Dennis generally worked whenever work was available but also had some absences for personal reasons. It is therefore determined that the 13 weeks preceding the injury which are representative of the claimant's customary earnings in this case are the weeks ending February 18, February 11, January 21, January 14, January 7, December 31, both weeks marked December 17, December 3, November 19, November 12, November 5, and October 29. The total earnings during that 13-week period are $4,965.49. The gross average weekly earnings are $381.96. CONCLUSIONS OF LAW The first issue to be addressed is the rate at which weekly compensation benefits should be paid. It is well settled that unrepresentative weeks are to be excluded. Davis v. Weitz Company, file number 898933 (App. Dec. Nov. 1992); Lewis V. Aalfs, I Iowa Industrial Commissioner Report 209 (App. Dec. 1980). The rate of compensation was known to be an issue in this case. It is one of only two disputed principal issues. It would be expected that an employer would have records showing whether an employee's absence was due to personal reasons or whether it was due to a lack of work which placed all employees out of work. There is some question with regard to which of the parties in a workers' compensation proceeding has the burden of proving the earnings upon which the rate of compensation is based. Generally, the burden of proving a fact rests upon the party who has possession of the facts or information the other party lacks. Sponsler v. Clarke Electric Cooperative, 329 N.W.2d 663 (Iowa 1983); Haynes v. Dairyland Mutual Insurance Co., 199 N.W.2d 83 (Iowa 1972). It is determined that an employer has much better knowledge of when it closes and of the reasons for employee absences than an individual employee might have. Employers typically keep attendance records, personnel files and pay records. Individuals seldom do so. In this case, it is appropriate to apply the Page 4 inference that where the party having possession of evidence declines to bring it forward it is reasonable to infer that the evidence would be unfavorable to that party. Crosser v. Iowa Dept. of Public Safety, 240 N.W.2d 682 (Iowa 1986). For those weeks where there is no evidence in the record indicating why Dennis worked less than 40 hours. It is therefore determined that the reduced hours were for personal absences other than the weeks which are identified as December 17 in exhibit 75. Those weeks were shown by the testimony of John Culbertson to have been weeks when work was not available. Culbertson's testimony shows that it is probable that those two weeks were short due to lack of work. For the other weeks the evidence is at an equipoise and application of the inference rule results in the determination that the reduced hours were for personal absences rather than lack of work since the employer has the records of claimant's attendance and of the plant activity. With a gross weekly wage of $381.96 and Dennis being married and entitled to four exemptions, the rate of compensation is therefore determined to be $250.36 per week. 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. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); 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. The change in an individual's actual earnings is normally considered to be strong evidence of the change in their earning capacity. This is so because most individuals tend to earn as much as they are reasonably capable of earning. When the worker is well motivated as Dennis appears to be and all other factors are the same, the change in actual earnings is a good indicator of the change in earning capacity. In this case, however, all other factors are not the same. The closing of the Allied plant is a very material factor. Also to be considered is the fact that Allied would not accommodate Dennis. The activity restrictions recommended by Dr. Donohue are significant but are not extreme. Dennis is still clearly qualified to perform work which requires medium exertional activity. He is foreclosed from the heaviest of work, which is what he Page 5 performed at Allied, but many other jobs are still available to him. The problem in this case is that manufacturing jobs are not readily available in north central Iowa and manufacturing jobs typically have a much better rate of pay and fringe benefits than other types of work which Dennis is qualified to perform. There is nothing in the record to indicate the current scarcity of manufacturing jobs is a temporary situation. It is more likely that the situation is chronic. Earning capacity is not to be confused with actual earnings. Earning capacity is what a person is capable of achieving. It requires application of judgment to known evidentiary facts. Actual earnings, on the other hand, are capable of being determined with absolute certainty based upon evidentiary facts. In this case, a simple comparison of the current actual earnings with what the earnings would be if Dennis were still employed at Allied is not an accurate indicator of the change in his earning capacity which has resulted from the injury. Dennis is in all likelihood working at or near the upper limit of his current earning capacity in the geographical vicinity of north central Iowa. His activity restrictions as set by Dr. Donohue are not particularly restrictive. Dennis remains qualified for many of the types of work which he had performed in his life. When all material factors are considered, it is determined that Dennis has experienced a 30 percent reduction in earning capacity and a 30 percent permanent partial disability under the provisions of Iowa Code section 85.34(2)(u). This entitles him to receive 150 weeks of permanent partial disability compensation. It is noted that Dennis has been paid 116 4/7 weeks of compensation at an incorrect rate. Those weeks have been under paid at a rate which is $19.64 per week less than the correct rate. The amount of the underpayment based upon those weeks is $2,289.45. The healing period entitlement is stipulated to be from February 23, 1989 through January 15, 1990. That amounts to 46 5/7 weeks. ORDER IT IS THEREFORE ORDERED that defendants pay Dennis Viers forty-six and five-sevenths (46 5/7) weeks of compensation for healing period at the rate of two hundred fifty and 36/100 dollars ($250.36) payable commencing February 23, 1989. It is further ordered that defendants pay Dennis Viers one hundred fifty (150) weeks of compensation for permanent partial disability at the rate of two hundred fifty and 36/100 dollars ($250.36) per week payable commencing January 16, 1990. Defendants are entitled to credit for the weekly compensation previously paid. All remaining unpaid amounts are past due and owing and shall be paid to Dennis in a lump sum together with interest pursuant to section 85.30 computed from the date each payment came due until the date it is actually paid. Page 6 It is further ordered that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. It is further ordered that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of September, 1993. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert Pratt Attorney at Law 6959 University Ave. Des Moines, Iowa 50311-1540 Mr. Charles Cutler Attorney at Law 729 Insurance Exchange Bldg Des Moines, Iowa 50309 1404 3001 3002 3700 1803 Filed September 16, 1993 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DENNIS L. VIERS, Claimant, vs. File No. 910392 ALLIED PRODUCTS CORP, A R B I T R A T I O N Employer, D E C I S I O N and CIGNA, Insurance Carrier, Defendants. ___________________________________________________________ 1404 3001 3002 3700 Where the earning record showed a number of weeks which contained less than 40 hours and there was no evidence in the record from which it could be determined whether the short hours were due the employee's personal absences or a lack of work at the employer's place of business those absences were treated as personal absences. It was held that since the employer had the records of its plant operation that its failure to show why the claimant had short work weeks raised an inference that the records would be unfavorable to the employer. Employers typically keep much better records of employee attendance and plant operations than individual employees maintain. 1803 Forty-eight-year-old claimant with GED and mild activity restrictions awarded 30 percent permanent partial disability. Employer would not accommodate. Actual reduction in earnings was in the range of 50 percent.