BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JOSEPH B. JOHNSON, Claimant, vs. File No. 930526 HAPPY JOE'S INC., A R B I T R A T I O N Employer, D E C I S I O N and THE TRAVELERS INSURANCE CO, Insurance Carrier, Defendants. ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration filed by Joseph B. Johnson, claimant, against Happy Joe's, Inc., employer and The Travelers Insurance Co., insurance carrier, defendants for benefits as the result of an injury which occurred on October 5, 1989. A hearing was held in Davenport, Iowa, on November 5, 1993, and the case was fully submitted at the close of the hearing. Claimant was represented by Douglas C. Scovil. Defendants were represented by Vicki L. Seeck. The record consists of the testimony of Joseph B. Johnson, claimant, Brian E. Wells, insurance adjuster, joint exhibits A, B, C, and claimant's exhibit No. 1. Defendants' attorney presented a brief description of disputes at the time of the hearing. The deputy ordered a transcript of the hearing. ISSUES The parties presented the following issues for determination at the time of the hearing. Whether the injury was the cause of permanent disability. Whether claimant is entitled to permanent disability benefits, and if so, the nature and extent of benefits to which he is entitled. Whether claimant is entitled to recover the medical expenses incurred with Michael H. W. Hurst, D.C., in the amount of $1,210. FINDINGS OF FACT causal connection/entitlement/permanent disability It is determined that claimant sustained an injury to the body as a whole. It is determined that the injury was the cause of Page 2 permanent disability. It is determined that claimant has sustained a 6 percent permanent impairment to the body as a whole and a 6 percent industrial disability to the body as a whole. Claimant, born August 11, 1946, was 43 years old at the time of the injury and 47 years old at the time of the hearing (Tran. p. 20). Claimant was injured in an automobile accident on October 5, 1989. Claimant testified that his vehicle was stopped, waiting to turn left, when it was struck in the rear by another vehicle. The force of the impact propelled claimant's car approximately four to five car lengths into a curb (Tran. pp. 28, 29 & 45). As a result of this automobile accident claimant suffered injuries to his cervical spine, upper back and right shoulder, and he has experienced headaches since the time of the accident. The cervical spine, upper back, right shoulder and headaches extend beyond the arm. Iowa Code section 85.34(2)(m). A shoulder injury has been determined to be an injury to the body as a whole. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). Claimant was seen in the emergency room at the Illini Hospital on October 6, 1989, the day after the injury. They gave him a cervical collar to wear (Tran. p. 30). Claimant received two chiropractic treatments from Dr. Ross (full name unknown). Dr. Ross took x-rays. Claimant then went to a Dr. Honda (full name unknown), a neurologist on November 9, 1989. Dr. Honda treated claimant for some time and then referred him to Vijay Verma M.D., a physical medicine and rehabilitation doctor, who saw claimant on January 15, 1990 (Tran. pp. 31, 34 & 35). Subsequent to this treatment claimant was examined and evaluated by Bakkiam Subbiah, M.D., a neurologist, on September 21, 1992. Claimant was examined and evaluated by Robert J. Chesser, M.D., a physical medicine and rehabilitation physician, on January 3, 1991 and again on January 13, 1993 (Tran. p. 39). Dr. Verma treated claimant from approximately May 1, 1990 through November 3, 1990. His diagnosis was myofascial strain. He said this was "... most probably related to his whiplash injury, sustained on [the] October 5, 1989 incident." (Exhibit B, page 9). Xylocaine cortisone iontophoresis injection treatments were helpful but did not completely resolve his pain. Dr. Verma measured claimant's range of motion with a goniometer and found that all measurements were within normal limits except for abduction and external rotation of the right shoulder. These revealed some pain in the anterior shoulder area in the last five degrees but the range of motion was adequate (Ex. B, p. 4). A loss of range of motion in the shoulder constitutes an injury to the body as a whole. Fullerton v. Caterpiller Tractor Co., IV Iowa Industrial Commissioner Report 135 (App. Dec. 1984). Page 3 Dr. Verma did not find any permanent impairment to any of the injured areas and did not impose any permanent physical restrictions on claimant's activities (Ex. B, pp 1-11). Dr. Verma's concluding diagnosis was bicipital tenosynovitis. Claimant testified that Dr. Verma treated him for over one year using acupuncture, cortisone shots and shock treatments, and he prescribed a TENS units on June 4, 1990, which claimant was still using at the time of the hearing (Tran. pp. 32-36). Defendants were still paying for the use of the TENS unit at the time of the hearing (Tran. p. 32). Even though Dr. Verma did not find any permanent impairment or disability, nevertheless, it is clear that Dr. Verma thought claimant's complaints were caused by the injury of October 5, 1989. He said they were most probably related to his whiplash injury of October 5, 1989. Dr. Chesser performed his first examination/evaluation on January 3, 1991. Dr. Chesser stated that claimant had improved with Dr. Verma's care but had continuing complaints of pain in his neck, upper back and right shoulder, and he continued to have headaches. These are all parts of the body as a whole. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986). Dr. Chesser noted that the x-rays of the cervical spine taken by Dr. Honda in November of 1989 were within normal limits. An MRI of his cervical spine on November 21, 1989, was within normal limits. An EMG performed on January 16, 1990, was normal. A CT scan of his head without contrast, on March 26, 1990, was negative. Dr. Chesser determined that claimant's cervical and upper back symptoms were a musculoligamentous strain with resultant tension myaligia which for the most part had improved over time. He felt that in all likelihood claimant may have suffered a specific injury to his right shoulder at the time of the injury as the result of gripping the steering wheel, possibly a tendinitis, or even a mild rotator cuff tear. He determined that claimant had reached maximum medical improvement and that he had nothing further to offer claimant. He did not recommend chiropractic treatment. Dr. Chesser did not find any permanent impairment at this time nor did he impose any permanent work restrictions on claimant (Ex. C, pp. 1-8). Dr. Chesser proceeded on the history of the motor vehicle accident, he described it in some detail and it is clear from his remarks that he believed that claimant's condition was caused by this accident. Dr. Subbiah examined claimant intensively and extensively on September 21, 1992. He proceeded on the history of the automobile accident injury of October 5, 1989. He described the accident in some detail. He said Page 4 claimant had a full range of motion of the shoulder but did complain of pain on abduction. Dr. Subbiah attributes claimant's complaints to this injury which is the automobile accident on October 5, 1989 (Ex. A, p. 5). He indicated that claimant could continue with the TENS unit but he did not feel that it was a medical necessity. Dr. Subbiah said that claimant's remaining complaint was constant right shoulder pain that may be related to an underlying bicipital tendinitis. He stated claimant had an entirely normal range of motion in the shoulder. Dr. Subbiah agreed with Dr. Chesser that nothing further needed to be done. Dr. Subbiah found no permanent partial impairment and no abnormality in the cervical region or in the thoracic region that would merit an impairment rating. He declined to make a finding on the right shoulder. He did not recommend chiropractic care (Ex. A, pp. 1-5). Claimant was examined and evaluated a second time by Dr. Chesser on January 13, 1993, two years after his previous examination in 1991. Dr. Chesser noted that claimant was working, his condition was stable, he had not had any further treatment, but that he continued to note intermittent pain in his neck and right shoulder, and suffered occipital headaches which were aggravated by repetitive use of his arm. Claimant testified that he was now a school trained blackjack dealer (Tran. pp. 25 & 26). He testified and demonstrated that even though his left hand and arm were dominate, he was, nevertheless, instructed by his employer to deal out the cards, and clear the table of cards, with his non-dominate right hand and arm in which he had the continued complaints of pain (Tran. pp. 33, 34, 46, 47 & 58). Dr. Chesser also made a note of this fact (Ex. A, pp. 1-5). Dr. Chesser also noted that claimant had x-rays of the cervical spine, an MRI of the cervical spine, EMG testing of the upper extremities and CT scan of the head, and that all of these test results were normal. Dr. Chesser's physical examination, which he carried out in some detail, was essentially normal, except for pain. It included range of motion measurements of the neck and right shoulder. He did note, however, that active shoulder abduction and external rotation increased pain in his right shoulder, but there was no atrophy in the shoulder on inspection. Dr. Chesser concluded, and his final evaluation in this case is as follows: ASSESSMENT: Based on today's evaluation, there is evidence of ongoing pain symptoms in the cervical spine and right shoulder. I feel that the cervical symptoms are related to a musculoligamentous strain with reflex tension myalgia. This also may be producing the headaches that he intermittently experiences. Based on the ongoing pain symptoms I do feel that there is Page 5 permanent impairment. Using table 53 of the AMA's Guides to the Evaluation of Permanent Impairment, Third Edition (Revised), there would be a 4% whole person impairment based on the ongoing cervical symptoms. The range of motion of the cervical spine is normal. There is no impairment associated with any loss of range of motion. In regards to the right shoulder, there is noted loss of range of motion in abduction and internal rotation. Using the AMA guidelines, there is a 3% impairment to the upper extremity, and it is my impression that his ongoing pain symptoms are related to a chronic tendinitis. He does get some benefit from the use of the TNS unit, so I would suggest that he continue to use this on a long-term basis. Combining the above there is a total of a 6% whole person impairment based on the cervical and shoulder involvement (Ex. C, pp. 5 & 6). An injury to the cervical tract (neck) and shoulder are injuries to the body as a whole. See Alm, Lauhoff and Fullerton cited earlier. The injury was to these parts. The disability was to these parts. The impairment was to these parts. Prewitt v. Firestone, file no. 876688, 931128 (Appeal Decn. June 30, 1993). Earlier, Dr. Chesser said the chronic tendinitis was caused by the automobile accident. Dr. Chesser concluded that claimant had undergone extensive physical therapy, and injections in the right shoulder and that, therefore, at this time he felt there was little more to offer him in regards to ongoing treatment. He saw nothing that would suggest any type of a surgical lesion (Ex. C, p. 6). At the hearing claimant testified that his current situation was that his neck and upper back had improved, however, he still had sharp shooting pains for anywhere from a few minutes to a couple of hours in his right shoulder (Tran. pp. 41 & 42). He said that there was nothing that he knew of that could be done to stop this pain (Tran. p. 42). The TENS unit helped more than anything else (Tran. pp. 42 & 47). Claimant said his shoulder was an ongoing problem and hurts five or six times a week (Tran. p. 44). He has headaches three or four times a week (Tran. p. 44). Claimant said that due to this injury he can no longer swim well or play volleyball or golf as much because he is unable to reach up or swing with his right arm. He cannot mow the lawn. He cannot run a vacuum because he cannot tolerate the back and forth movements of his right hand and arm (Tran. pp. 45 & 46). Claimant testified that he can sweep in the cards after a game of blackjack with his right hand and arm but he is aware of the pain (Tran. p. 47). Claimant said he has lost strength and grip strength in his Page 6 right hand and arm because sometimes, things which he is holding, fall out of his right hand (Tran. p. 48). Claimant denied and there is no evidence of any earlier headaches, neck pain, upper back pain or right shoulder pain (Tran. pp. 48 & 49) Claimant admitted that as a full-time blackjack dealer (originally for the Diamond Lady and later for the Casino Rock Island) he earned a total of $19,599 in 1992; whereas he only earned $250 a week or about $12,000 a year working for employer in this case (Tran. pp. 52 & 53). Claimant further admitted that he was able to perform the blackjack dealer job for both of these employers, but not without some discomfort (Tran. pp. 46, 47 & 54). When applying for his current job he said he had no disabilities on the application form (Tran. p. 54). Claimant testified that when his healing period was over from this injury employer told him that they did not have any employment for him (Tran. p. 27). Claimant also testified that he was not able to return to his job with the Illinois National Guard after this injury which paid $300 per month and $1,300 to $1,500 for summer camp. This would approximate $5,000 per year loss of income (Tran. p. 23). Claimant learned food preparation and food sanitation from his National Guard training (Tran. p. 59). Claimant maintained that he could not continue with his military status with the Illinois National Guard after his injury for the reason that they would not allow him to serve if it was necessary for him to wear a TENS unit. Therefore, he received a medical discharge (Tran. p. 24). It is determined, however, from the medical evidence in this case that Dr. Subbiah said that the TENS unit was not a medical necessity and Dr. Chesser acquiesced in it because claimant said it relieved his pain. Claimant has chosen to wear the TENS unit when he works. He was not ordered to do so by a physician. Nor is there any medical evidence that claimant could not continue with his duties in the Illinois National Guard. Claimant testified that Dr. Verma told him not to lift or carry anything heavy with his right hand, however, there is no evidence of this fact in Dr. Verma's medical records, but it is entirely possible that Dr. Verma told him this as a precaution (Tran. pp. 44, 50, 56 & 57). Brian Wells, an insurance claim representative, testified that he was the adjuster for the insurance company of the person who struck claimant's car at the time of the automobile accident on October 5, 1989. Wells testified that when he knocked on the door of claimant's house on October 16, 1989, to check out the damage on claimant's car he saw through the glass that claimant was laying on the floor prone and presumably playing with his children. However when he heard the knock on the door he "rocketed up" and "shot up off the floor" and went into another room and when he answered the door he had on his cervical collar which he did not have on when he was laying on the floor Page 7 playing with his children (Tran. pp. 14-20). Claimant testified that he was instructed not to wear the collar when he was in bed (Tran. p. 30). Wherefore, based upon the foregoing evidence (1) that claimant sustained a specific traumatic injury, (2) that the injury has caused persistent pain problems over a long period of time to claimant's neck, upper back, right shoulder, (3) that Dr. Chesser assessed a 6 percent overall body as a whole permanent impairment rating, (4) that claimant is impaired on account of pain from the full use of his right upper extremity, especially in abduction, external rotation and internal rotation, (5) based on claimant's age of 43 at the time of the injury and 47 at the time of the hearing, (6) based on the fact that claimant has (a) a high school education, (b) two years of college training in management, marketing and advertising (Tran. p. 21), (c) training in food service through the Illinois National Guard and (d) a variety of past employments including managerial skills (Tran. pp. 55 & 56), (7) considering that claimant has lost no actual earnings, but on the contrary, is earning more now than at the time of the injury (Tran. p. 27), (8) considering that claimant has no permanent restrictions, (9) applying all the factors used to determine industrial disability, Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (App. Dec. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (App. Dec. February 28, 1985) and (10) applying agency expertise [Iowa Administrative Act 17A. 14(5)] it is determined that claimant has sustained a 6 percent permanent industrial disability to the body as a whole. MEDICAL BENEFITS It is determined that claimant is not entitled to recover the $1,210 in medical expenses incurred with Michael H. W. Hurst, D.C. (Ex. 1, pp. 1-27). Employers are liable to furnish reasonable medical care. At the same time they are given the right and privilege of choosing the care. In this case, employer has at all times admitted liability and therefore is entitled to the right to choose the care. Iowa Code section 85.27. Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner Report 16 (Appeal Decn. 1981); Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (1975). Claimant admitted at the hearing that he did not request authorization to see Dr. Hurst from either the employer or the insurance carrier (Tran. p. 57). Claimant testified that he asked Dr. Verma if he thought it would help for him to go to a chiropractor after Dr. verma told claimant that he had nothing further to offer. Claimant contended that Dr. Verma told him, "Well, if you fell that that would help you, then by all means, go." (Tran. p. 36). It is determined that this comment did not constitute referral from one physician to another Page 8 physician on the basis that the original physician acted as the agent of the employer and insurance carrier. Limoges v. Meier Auto Salvage, I Industrial Commissioner Reports 207 (1981); Kittrell v. Allen Memorial Hospital, 34 Biennial Report of the Industrial Commissioner 164 (1979); Coleman v. Coleman Industrial Cleaning, 4 Iowa Industrial Commissioner Reports 76 (1984). Actually Dr. Verma did not specifically recommend a chiropractor and Dr. Hurst was the selection of claimant, not Dr. Verma. Claimant did not produce a written prescription or order for chiropractic care (Tran. p. 57). The fact that defendants paid for two chiropractic treatments shortly after the injury is not authorization to incur $1,210 more in chiropractic expenses without specific authorization some three years after the initial injury. Therefore, the care of Dr. Hurst is unauthorized and no allowance can be made for this care. CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: Claimant sustained an injury to the body as a whole. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Fullerton v. Caterpiller Tractor Co., IV Iowa Industrial Commissioner Report 135 (App. Dec. 1984). That the injury of October 5, 1989, was the cause of permanent 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 sustained a 6 percent industrial disability to the body as a whole and is entitled to 30 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u). That the care of Dr. Hurst was unauthorized and therefore defendants are not liable for the expense of this care. Iowa Code section 85.27. Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner Report 16 (Appeal Decn. 1981); Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Iowa Industrial Commissioner 78 (1975). ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant thirty (30) weeks of permanent partial disability benefits at the stipulated rate of one hundred fifty-five and 90/100 dollars ($155.90) per week in the total amount of four thousand six hundred seventy-seven dollars ($4,677) commencing on July 5, 1990, as stipulated to by the parties. Page 9 That these 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 attendance of the court reporter at hearing and the cost of the transcript, are charged to defendants pursuant to rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 40. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of December, 1993. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Douglas C. Scovil Attorney at Law 2009 9th Avenue Rock Island, IL 61201 Ms. Vicki L. Seeck Attorney at Law 600 Union Arcade Building 111 East Third St. Davenport, IA 52801 1803, 1803.1, 1108.50, 2500, 2700 Filed December 1, 1993 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JOSEPH B. JOHNSON, Claimant, vs. File No. 930526 HAPPY JOE'S INC., A R B I T R A T I O N Employer, D E C I S I O N and THE TRAVELERS INSURANCE CO, Insurance Carrier, Defendants. ___________________________________________________________ 1803.1 Neck, upper back, shoulder and headaches were determined to be injuries to the body as a whole citing Alm, Lauhoff and Fullerton, and not injuries to the arm. 1108.50, 1803 It was determined that the injury was the cause of permanent disability. Several doctors examined and evaluated claimant. None of them found a permanent impairment rating or that any permanent restrictions were needed until three and one-half years after the injury one of them determined claimant was entitled to a 6 percent permanent impairment rating based on continued pain in his neck and some mild limitation of motion in his shoulder. It was determined that claimant sustained a 6 percent permanent impairment and also a 6 percent industrial disability to the body as a whole. Claimant was earning more after the injury than before the injury in his new profession as a blackjack dealer. 2500, 2700 It was determined that claimant was not entitled to $1,210 in chiropractic treatment that he obtained without authorization from either employer or insurance carrier. His arguments in favor of entitlement were rejected. The fact that one of the authorized treating physicians told claimant, in response to a question from claimant, that he could seek chiropractic treatments if he thought it would help, after the treating physician said there was nothing Page 2 more that he could do, was not construed as referral from authorized treating physician to another physician as the agent of the employer and insurance carrier. This was a general question and a general response. The authorized physician did not in fact refer claimant to a chiropractor. Rather, claimant chose one he wanted to see and went to him. The fact that defendants had paid for two chiropractic treatments immediately after the injury was not construed to be implied consent for claimant to incur another $1,210 in chiropractic expenses without specific authorization some three and one-half years after the injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ NORMAN KEDDIE, Claimant, vs. File No 930533 FIRESTONE TIRE & RUBBER, A R B I T R A T I O N Employer, D E C I S I O N and CIGNA, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Norman Keddie, claimant, against Firestone Tire & Rubber, employer, and CIGNA, insurance carrier, and the Second Injury Fund of Iowa for benefits as a result of an injury to claimant's right arm which occurred on December 4, 1987, (file no. 884054) and an injury to claimant's left arm which occurred on August 17, 1989 (file no. 930533). Employer and its insurance carrier settled both claims against defendant employer at the time of the hearing. A hearing was held in Des Moines, Iowa on October 6, 1992, and the case was fully submitted at the close of the hearing. Claimant was represented by Robert W. Pratt. Defendant Second Injury Fund of Iowa was represented by Stephen E. Moline. The record consists of the testimony of Norman Keddie, claimant, Mike Ables, union representative, joint exhibits 1 through 20, and defendant Second Injury Fund's exhibits A & B. The deputy ordered a transcript of the hearing. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether the Second Injury Fund is liable to claimant, and if so, the extent of benefits, if any, to which claimant is entitled. FINDINGS OF FACT LIABILITY OF THE SECOND INJURY FUND It is determined that claimant has satisfied the Page 2 requirements of Iowa Code section 85.64 and has established the liability of the Second Injury Fund of Iowa. Claimant and the Second Injury Fund of Iowa stipulated on the prehearing report that claimant sustained an injury which arose out of and in the course of his employment to his right arm on December 4, 1987, and that it was the cause of permanent disability. The fund also stipulated that claimant sustained an injury to his left arm on August 17, 1989, which arose out of and in the course of employment with employer which caused permanent disability to his left arm. Thus, the threshold requirements for the liability of the Second Injury Fund have been established. Iowa Code section 85.64. The primary issue is the extent of benefits, if any, to which claimant is entitled from the Second Injury Fund of Iowa. ENTITLEMENT TO SECOND INJURY FUND BENEFITS It is determined that claimant sustained a 35 percent industrial disability to the body as a whole for which the overall entitlement is 175 weeks of permanent partial disability benefits. It is determined that claimant sustained an 8.25 percent permanent impairment to his right arm for which the entitlement is 20.625 weeks of scheduled member permanent partial disability benefits. It is determined that claimant sustained an 8.5 percent permanent impairment to his left arm for which the entitlement is 21.25 weeks of scheduled member permanent partial disability benefits. When the scheduled member disability benefits for both arms, which totals 41.875 weeks (20.625 + 21.25), is subtracted from claimant's overall industrial disability of 175 weeks, it leaves 133.125 weeks of permanent partial disability benefits for which the Second Injury Fund of Iowa is liable at the stipulated rate of $566.81 in the total amount of $75,456.58. Irish v. McCreary Saw Mill, 175 N.W.2d 364 (Iowa 1979); Second Injury Fund v. Mich Coal Co., 274 N.W.2d 300, 364 (Iowa 1979); Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989). The basis for these determinations are as follows: Claimant first reported symptoms of pain, numbness and tingling in his right arm on December 4, 1987. Oscar Mayer Foods Corp. v Tasler, 483 N.W.2d 824,830 (Iowa 1992). Conservative medical treatment, limited pace duty and light duty failed to correct the situation. Arnis Grundberg, M.D., an orthopedic surgeon, diagnosed right cubital tunnel syndrome, right carpal tunnel syndrome, and right ulnar tunnel syndrome and performed a decompression of each of these three areas on May 4, 1988 (Exhibit 12, page 71). Claimant continued to have right arm problems after the surgery and Dr. Grundberg subsequently diagnosed medial Page 3 epicondylitis of the right elbow and performed a decompression for medial epicondylitis of the right elbow on November 14, 1988 (Ex. 13, p. 72). Claimant developed similar symptoms in his left arm on August 17, 1989, which Dr. Grundberg diagnosed as mild left cubital tunnel syndrome on August 18, 1989, (Ex. 15, p. 89) and further diagnosed left carpal tunnel syndrome on September 22, 1989 (Ex. 15, p. 91). He performed a decompression of the left carpal tunnel and a decompression of the left cubital tunnel on October 4, 1989 (Ex. 15, p. 93). On March 7, 1989, Dr. Grundberg determined that claimant sustained a 7.5 percent permanent impairment to the right arm (Ex. 15, pp. 84 & 89). On December 1, 1989, Dr. Grundberg determined that claimant sustained an 8 percent permanent impairment of the left arm (Ex. 15, pp. 93 & 97). No permanent restrictions appear in the written evidence from Dr. Grundberg himself, but claimant testified that Dr. Grundberg told him not to build tires anymore (Transcript page 51). Claimant's testimony is given corroboration and credence by James Blessman, M.D., a company physician, who later restricted claimant from building tires permanently. On September 25, 1989, which was prior to the left arm surgeries on October 4, 1989, Dr. Blessman stated, "The patient is also having quite a bit of trouble with his left upper extremity. Had EMG studies which were apparently positive for both the elbow and the wrist. He has already had surgery on the right wrist and elbow. Expect we will have to put him on permanent restriction from tire building for repetitive trauma injuries." (Ex. 17, p. 101). After left arm surgeries were performed on October 4, 1989, Dr. Blessman stated in his notes, on November 13, 1989, "He wants to go back to limited pace in two weeks. I asked him to go ahead and go over that with Dr. Grundberg. The question will be whether he should go back and build tires at all." (Ex. 17, p. 101). On December 4, 1989, Dr. Blessman entered in his notes, "In reviewing his medical history I would question whether he should be building tires and he is going to return back to see me in January. At that point, will probably put him on permanent restriction from tire building to prevent him from future recurrences of his upper extremity pain and disease problems." (Ex. 17 p. 102). In a subsequent entry which has the date cut off by the copy machine and which cannot be quoted because the quotable portion has a hole punched in it by a paper punch, Dr. Blessman stated that at this point he would like to put claimant on a permanent restriction from tire building. He further indicated that claimant wanted to bid out of it Page 4 because claimant felt he could no longer continue the activities of a tire builder. Dr. Blessman concluded this note by stating that he agreed that claimant would be at risk of further medical problems to his upper extremities should he return to active tire building activities (Ex. 17, p. 102). On February 13, 1991, Dr. Blessman noted that claimant had appealed the permanent restriction from tire building and reluctantly released claimant to try it again. Dr. Blessman stated, "If he develops any problems with his upper extremities, we will go ahead and reinstitute his permanent restriction. I basically do not agree that it is a good idea for him to go back, but we will give him a trial to see how he does." (Ex. 17, p. 103). Thus, Dr. Blessman, the in-house company physician, made it crystal clear that in his professional medical opinion that claimant is foreclosed from tire building in the future even though he recanted his restriction temporarily to let claimant try it again after claimant had appealed Dr. Blessman's imposition of a permanent restriction against tire building. Claimant corroborated Dr. Blessman's notes by testifying that the doctor did agree to let him try tire building before he totally disqualified him but that Dr. Blessman told claimant that ". . . he didn't want me building tires, period." (Trans., p. 51). Claimant related that when he was disqualified from tire building in December of 1989, and bid into another job of his own choice to make as much money as he could, he nevertheless suffered a loss of $15 per hour (Trans., p. 56). This is verified by claimant's pay records (Defendant's Exhibit B). For the week of December 3, 1989, claimant's incentive pay rate as a tire builder was $25 per hour (Ex. B, p. 22). Subsequent to that as a tire layer (Trans., p. 57) it was $9 and $10 per hour (Ex. B, pp. 23-25). This constitutes an initial 60 percent decrease in his pay. By mid 1990 claimant's hourly rate of pay had increased to almost $15 per hour at some points and at other times it only reached $12 or $13 per hour (Ex. B, pp. 26-33). The decrease in his hourly rate from $25 per hour to $15 per hour constitutes a loss of a 40 percent loss of pay for most of 1990. Claimant testified that the reason he begged Dr. Blessman to allow him to return to tire building in February of 1991, was because Firestone had started layoffs at that time and tire builders are the last persons to be laid off and the first persons to be called back after a layoff (Trans., pp. 54 & 58). He said it was solely to avoid a layoff (Trans., p. 60). Claimant then worked as a tire builder from February of 1991 until his termination in November of 1991, a period of nine months. After returning to tire building claimant began to make $15 per hour at the incentive rate and gradually worked back up to $17 and $18 per hour by July of 1991, (Ex. B, pp. 35-37 and the two top pages of Exhibit B which are unnumbered). A decrease from claimant's top incentive rate of $25 per hour to $18 per hour is a 28 percent decrease in pay. Page 5 Claimant was examined by Martin S. Rosenfeld, D.O., at claimant's request on March 10, 1992. Dr. Rosenfeld determined that using the AMA Guides he found that claimant sustained a 9 percent permanent impairment to each arm caused by his carpal tunnel and cubital tunnel syndromes and surgeries (Ex. A). Dr. Blessman did not give any impairment ratings but he made it patently clear that he felt claimant should be permanently restricted from tire building even though claimant was able to perform this function for nine months from February of 1991 until his termination in November of 1991. Claimant testified that if he had reported to the medical department on one single occasion with a complaint to his hands or arms that he would have been summarily and peremptorily disqualified from tire building. Mike Ables, the union representative, corroborated and verified that after claimant returned to tire building in February of 1991 he was on a "do-or-die basis." (Trans. p. 121). Ables explained that if claimant would have reported to medical just one time with any kind of problem with his carpal tunnel or cubital tunnel they would have immediately taken him out of tire building and placed him on a day work job. Based on the foregoing evidence these findings of fact are made. First, it is determined that based upon Dr. Grundberg's impairment rating of 7 1/2 percent to the right arm and Dr. Rosenfeld's impairment rating of 9 percent to the right arm it is determined that claimant has sustained an 8.25 percent permanent impairment to the right arm. This determination is supported by the fact that claimant and defendant employer agreed that this was the correct permanent impairment to the right arm and that the industrial commissioner approved a settlement of this injury based upon this amount of impairment. Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice (2nd Ed.) Section 13-4, page 125. Second, it is determined that based upon Dr. Grundberg's determination of an 8 percent permanent impairment to the left arm and Dr. Rosenfeld's determination of a 9 percent permanent impairment to the left arm it is determined that claimant has sustained an 8 1/2 percent permanent impairment to the left arm. This determination again is supported by the agreement of claimant and defendant employer as to the degree of impairment and it is also supported by the fact that the industrial commissioner has approved a settlement for this amount of impairment. Third, it is determined that for all practical purposes claimant is foreclosed from tire building based upon the strong and frequently repeated opinion of Dr. Blessman, the company physician, who should be in a better position to know that even Dr. Grundberg and Dr. Rosenfeld. Even though claimant was able to perform this job with difficulty from February to November of 1991, the evidence from Dr. Blessman indicates that it was inevitable that he would not have been Page 6 able to do so on a long term basis. Claimant admitted to his wife that he could not continue as in the past. Furthermore the testimony of claimant and Ables established that if he would have had one single complaint to either of his upper extremities he would have been disqualified from tire building because of the previous disqualification from tire building by Dr. Blessman due to the difficulties that he had encountered with his arms. Fourth, it is determined that claimant has sustained a substantial loss of actual earnings. A 60 percent loss and a 40 percent loss have been established. Even when claimant returned to tire building from February to November of 1991, his incentive hourly rate was decreased from $25 per hour to $18 per hour at it's highest point and this constitutes a 28 percent loss of actual earnings for a period of approximately nine or ten months. Fifth, it is further determined that claimant has probably foreclosed from other repetitive work with his hands and arms in the competitive labor market because of the cubital tunnel, carpal tunnel and ulnar tunnel problems and surgeries that transpired while working for employer from September of 1987 to November of 1991, a period of a little over four years. A large segment of the competitive labor market is foreclosed to persons who have sustained previous injuries of carpal tunnel, cubital tunnel, and ulnar tunnel and who have had multiple surgeries for these conditions. It is very doubtful that claimant could start new employment at the $18 per hour that he was earning for employer at the time of his termination (Ex. B, 1st p.). If claimant were fortunate enough to find employment at $12 per hour, which would indeed be rare, he would still have a loss of $13 per hour from his pre-injury peak wage of $25 per hour and this would amount to a 52 percent loss of earnings. It is difficult to assess claimant's true actual loss of earnings because he has not performed any employment since his termination with this employer. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981). Although the test of industrial disability is loss of earning capacity, loss of actual or potential earnings is a significant indicator of loss of earnings capacity. Claimant was 30-years-old at the time of this injury. Although claimant was in the early years of his adult working lifetime, it would appear that he was, nevertheless, near the peak of his earnings capacity as a tire builder because he was earning $23, $24, and $25 per hour at the time he was disqualified by Dr. Blessman from tire building on account of these injuries in December of 1989 (Ex. B, p. 22). Claimant frequently made these amounts of hourly pay between May and December of 1989 (Ex. B, pp. 16-22). These extremely high earnings for unskilled labor certainly increase claimant's loss of earning capacity. Claimant's education is quite good and tends to reduce Page 7 his loss of earning capacity. Even though claimant quit high school twice, once in the 10th grade and once again in the 11th grade, he nevertheless obtained his high school education equivalency certificate (GED) at the Des Moines Area Community College in the following year after high school (Trans. pp. 16, 17, & 72). Claimant also obtained an associate degree through studies at Central Texas College while he was in the military service (Trans., pp. 15 & 73-75). Claimant further took correspondence courses after that which enabled him to enter the army flight training program and become a helicopter pilot in the grade of chief warrant officer two. Claimant testified that he was capable of getting B average grades in school (Trans. p. 15) but that it was still difficult for him to enter flight training without retaking several of the military tests that were required (Trans., p. 79). Furthermore the normal period to learn the tire building trade is 90 days but claimant met all performance standards at the end of 30 days (Trans., pp. 25, 87 & 88). Thus, claimant is very capable of acquiring new skills either academically or through on-the-job training based upon his previously demonstrated performance. Claimant's past employments include working for Sambos' restaurants from the time he was in high school at age 14 for a period of seven to ten years even while he was in the military service. With Sambos he began as a dishwasher, became a cook, and advanced to waiter, host and assistant manager. He was designated as a trainer of new employees at new restaurants because of the speed with which he could teach new employees to cook. Thus, claimant probably has some transferable skills in training and managing other persons which would not be affected by the disability in his arms caused by these injuries. Prior to Sambos claimant worked as a truck driver and fork lift driver. Claimant testified that he was foreclosed from driving a fork lift by Dr. Blessman and he did not feel that he could do it because it requires repetitive use of his hands and arms constantly turning the steering wheel. Claimant's previous military skills of helicopter mechanic, helicopter pilot, and helicopter test pilot would probably require refresher courses in order to perform these occupations. Furthermore the demand for these occupations as a civilian in Iowa would be somewhat limited. Claimant testified that he could not pass the physical examination to be a pilot now. Claimant did work as a manager and mechanic at a salvage yard. It is doubtful if he could employ the mechanic skills due to the condition of his arms and the prohibition against repetitive use of his arms and hands but his management experience would be transferable (Ex. 1, p. 1). Claimant contended that he was fired by employer based on a charge of theft of time. Claimant testified that he filed a grievance and an agreement was worked out where he Page 8 would drop the grievance if employer would put on his record that he voluntary quit (Trans. pp. 60, 61 & 99). Claimant further contended that he missed work to have his teeth worked on and a dispute arose with one of his supervisors who told claimant that he was going to get him fired. Claimant related that he was terminated approximately two weeks after the supervisor told him that he would get him terminated (Trans., p. 111). Claimant testified that he was told by employer that he was terminated for cause because he was operating a machine that was suppose to be down (Trans., pp. 99 & 103). Claimant said it was a misunderstanding because he thought that one of the supervisors had turned the machine on so that it could be operated. Claimant further contended that this accusation was not asserted until some three weeks after the incident. Claimant further testified that when he applied for unemployment compensation he received it over the resistance of the employer because the hearing officer ruled that claimant was terminated for an unjust cause (Trans., p. 102). Ables, a union representative for nine years, and an employee of employer for 26 years, testified that claimant's termination was connected with his physical capabilities and limitations because a friend told Ables that claimant's supervisor said "I want a tire builder that's a hundred percent." (Trans., p. 130). It is determined that claimant did not prove that he was terminated because of his physical limitations due to these injuries. The testimony of claimant and Ables does raise a strong possibility, however, that claimant's physical limitations due to these injuries may be connected with his termination. The testimony of claimant and Ables was not controverted, contradicted, rebutted or refuted. Furthermore, it is consistent with Dr. Blessman's frequently stated opinion that claimant should be permanently disqualified from tire building. Irrespective of whether claimant was fired or voluntarily quit his job or how the termination occurred, claimant is now placed in the competitive employment market with seriously disabling bilateral injuries and his beginning rate of pay is most likely to be far less than the $25 per hour that he was earning at the time of this second injury. Claimant testified that he had no prior problems with his right or left arm prior to this employment and there is no medical evidence to disprove his testimony. On the contrary, a pre-employment medical evaluation on September 16, 1987, indicated claimant had no prior problems with his hands or arms and that he was fully capable of performing the job of tire builder (Ex. 2, pp. 6 & 7). Thus, claimant's employment with employer seems to be the primary cause of the injury and disability to both his left and right arm. Claimant testified that when a tire builder begins to Page 9 have problems with his arms the first thing employer talks about is disqualifying the person as a tire builder (Trans., p. 30). At the same time claimant admitted that after he returned to tire building in February of 1991 and his incentive rate decreased because of the trouble he was having with his arms that he and his wife agreed that he should slow down in order for him to just keep employed in a tire building position (Trans., p. 97). Claimant testified that when he returned to tire building in February of 1991, he really tried hard to bring his incentive pay rate up to $24 or $25 per hour but his arms were killing him and could not do it so he had to bring it down to where he could work and still not have the pain in his arms (Trans., p. 98). Claimant testified that according to his recollection he thought he was earning approximately $15 per hour when his employment was terminated in November of 1991 (Trans., p. 70). This would constitute a $10 an hour loss from his highest incentive rate of $25 per hour (Trans., p. 71). This calculates out to a 40 percent loss of earnings. Claimant testified that he has searched for employment since his termination in November of 1991, but had been unable to find any work as of the date of the hearing on October 6, 1992 (Trans., p. 65). Claimant testified that he had applied for approximately 150 jobs. Claimant contended that when he honestly answered the question on the employment applications and disclosed his prior injuries and surgeries it generated a lot of questions by the prospective employers about the full extent of his problems (Trans., p. 67). Claimant testified that from his point of view his major loss was the loss of power in his hands and the loss of grip with his hands. Unless he absolutely concentrates on it he can lose his grip (Trans., P. 68). Claimant's inability to find work in the year since he was terminated is uncharacteristic when compared with his prior employment record. Claimant testified that he was seldom if ever unemployed prior to this. In addition he worked at Sambos and held other jobs at the same time for a number of years. When claimant interviewed for this employer one of the evaluators stated that he would be a good piece worker or tire builder because claimant was an over achiever and he likes a challenge (Ex. 1, p. 3). Another evaluation is unreadable (Ex. 1, p. 4). A third evaluator believed that claimant would be an excellent employee and a good asset to the company based upon his previous work record (Ex. 1, p. 5). Claimant testified that the company offered time and a half for overtime and double time on Sunday and claimant frequently volunteered to work overtime (Trans., p. 109 & 110). Neither employer nor the Second Injury Fund of Iowa has offered claimant any vocational rehabilitation assistance nor has claimant sought any vocational rehabilitation assistance of his own volition (Trans., p. 105). Claimant Page 10 testified that he would be willing to participate in any training necessary to perform any job which he thought he could do. Since claimant is foreclosed from most of his prior employments, save perhaps management and training positions, claimant may well have to undergo either academic or on-the-job training in order to secure new employment. Academic training would be expensive and claimant testified that he did not have the money and that is the reason why he did not go back to school (Trans., p. 105). Claimant contended that he is entitled to a 50 percent industrial disability award. Defendants contended that claimant's award should be limited to his loss of earnings as established by Exhibit B. Claimant's loss of earnings have been calculated by several different methods in the body of the decision and this award considers claimant's lowest conceivable estimated loss of earnings. It is doubtful that claimant could have continued to earn $25 per hour at the incentive rate for the balance of his working lifetime. Claimant's right arm injury was cubital tunnel, carpal tunnel and ulnar tunnel which required multiple surgeries. Three incisions were made at the time of the first surgery on May 4, 1988. Another incision at the time of the second right arm surgery was made on November 14, 1988. The repair and decompression of the left arm carpal tunnel and cubital tunnel required two incisions. Employer's own company physician stated that claimant was foreclosed from tire building. Claimant had worked his way up to an incentive pay rate of $25 per hour at the time that this physician disqualified claimant from tire building. When claimant was transferred to the tire layer job in 1990 (Trans., p. 57), he only earned about $10 per hour which would constitute a 60 percent loss of earnings. Later in 1990, he was earning approximately $15 per hour and this would constitute a 40 percent loss of earnings. When claimant returned to tire building he was able to get his incentive pay rate back up to $18 per hour by July of 1991 and this would constitute a 28 percent loss of earnings, however, the evidence supports the proposition that claimant would not be able to continue in tire building for the indefinite future. According to Exhibit A, claimant was earning approximately $18 per hour in July of 1991. There is no written earnings record after July of 1991 but claimant testified he was only earning $15 per hour in November of 1991 when he was terminated. If claimant were fortunate enough to find employment at $12 per hour, which is not too likely, he would still have a 52 percent loss of earnings from his highest achieved incentive pay rate. Claimant's award is mitigated somewhat because at his young age and because retraining is feasible Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Claimant is a very intelligent and capable young man who can set goals and achieve them. He has the equivalent of a high school diploma and he has an associate degree from Page 11 a college and subsequent courses which enabled him to complete flight training and become an army helicopter pilot with the rank of a chief warrant two (C.W.O. II). Furthermore, claimant's inability to find work after his termination with employer is uncharacteristic with his previous stable employment and high motivation to earn money, which impugns to some degree his motivation to seriously find new employment. Wherefore, based upon (1) all of the evidence in this case (2) the evidence discussed above (3) and all of the factors used to determine industrial disability Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (App. Dec. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (App. Dec. February 28, 1985) (4) and applying agency expertise [Iowa Administrative Act section 17A. (14)(5)], it is determined that claimant has sustained a 35 percent industrial disability to the body as whole. A 35 percent industrial disability entitles claimant to 175 weeks of permanent partial disability benefits. From this is subtracted the value of the right arm scheduled member injury which is determined to be an 8.25 percent permanent impairment of the right arm valued at 20.625 weeks and the value of the 8.5 percent permanent impairment to the left arm which is valued at 21.25 weeks. The first and second scheduled member injuries for which the employer is liable total 41.875 weeks. Therefore claimant's overall industrial disability of 175 weeks is reduced by the scheduled member injuries of 41.875 weeks and claimant is entitled to the remaining 133.125 weeks of permanent partial disability benefits which is the liability of the Second Injury Fund of Iowa. CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law these conclusions of law are made. That claimant has met the threshold requirements for liability against the Second Injury Fund of Iowa, Iowa Code section 85.64. That claimant has sustained a 35 percent industrial disability to the body as a whole, Iowa Code section 85.34(2)(u). That the scheduled member value of the right and left arm separate injuries totals 41.875 weeks Iowa Code section 85.34(2)(m). That the remaining liability of the Second Injury Fund of Iowa is 133.125 weeks, Iowa Code section 85.64. ORDER THEREFORE, IT IS ORDERED: Page 12 That defendant Second Injury Fund of Iowa pay to claimant one hundred thirty-three point one two five (133.125) weeks of permanent partial disability benefits at the stipulated rate of five hundred sixty-six and 81/100 dollars ($566.81) per week in the total amount of seventy-five thousand four hundred fifty-six and 58/100 dollars ($75,456.58) commencing on the date of this decision. That interest will accrue pursuant to Iowa Code section 85.30 as of the date of this decision. Second Injury Fund v. Braden, 459 N.W.2d 467 (Iowa 1990). That the costs of this action including the cost of the attendance of the court reporter at hearing and the transcript of the hearing are charged to the defendant Second Injury Fund of Iowa pursuant to Iowa Code section 86.19(1) and 86.40 and rule 343 IAC 4.33. That Defendant Second Injury Fund of Iowa file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Page 13 Signed and filed this ____ day of October, 1992. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert W. Pratt Attorney at Law 6959 University Ave. Des Moines, Ia 50311-1540 Mr. Marvin E. Duckworth Attorney at Law 2700 Grand Ave, Ste. 111 Des Moines, IA 50312 Mr. Stephen Moline Assistant Attorney General Tort Claims Division Hover State Office Bldg. Des Moines, IA 50319 53200 Filed October 22, 1992 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ NORMAN KEDDIE, Claimant, vs. File No 930533 FIRESTONE TIRE & RUBBER, 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. ___________________________________________________________ 53200 Claimant established the liability of the Second Injury Fund of Iowa. Claimant awarded benefits for overall industrial disability less the value of the separate two scheduled member injuries. The decision is non-precedential as a legal matter. It is an interesting factual situation.