BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
SUSAN R. HAFFNER,
Claimant,
vs.
File No. 955542
ELECTRICAL SYSTEMS,
A P P E A L
Employer,
D E C I S I O N
and
WAUSAU INSURANCE COMPANY,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA,
:
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.
ISSUES
Defendants state the following issues on appeal:
[W]hether the Deputy Commissioner erred in finding that the
claimant's injury of August 8, 1989, constitutes an injury
which is to the body as a whole. ...[W]hether the Deputy
Commissioner erred in finding that claimant sustained a 20
percent industrial disability to the body as a whole.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed August 16, 1993 are adopted as set forth
below. Segments designated by asterisks (*****) indicate
portions of the language from the proposed agency decision
that have been intentionally deleted and do not form a part
of this final agency decision.
It is determined that the injury of August 8, 1989 was
the cause of permanent disability.
It is determined that the injury of August 8, 1989 was
an injury to the body as a whole.
It is determined that claimant has sustained a 20
percent industrial disability to the body as a whole and
that claimant is entitled to 100 weeks of permanent partial
disability benefits.
Page 2
*****
Claimant, born June 29, 1950, (Exhibit 15, page 31) was
39 years old at the time of the injury and 42 years old at
the time of the hearing. Claimant started to work for
employer on March 20, 1986 and she continued to work for
employer at the time of the hearing which is a period of
seven years (Ex. 14, p. 1). Personnel records show that she
has been employed as a laborer, inspector, and an assembly
person (Ex. 14, pp. 1-38). When she applied for employment
with employer she indicated that she did not have any
physical condition which might limit her ability to perform
the particular job for which she was applying. She
indicated she did not have any physical defects which
precluded her from performing any kind of work. She agreed
to undergo a preemployment physical examination (Ex. 14, p.
35). Subsequent to her employment with employer she did
sustain bilateral carpal tunnel syndrome and a bilateral
carpal tunnel release was performed on April 11, 1988 (Ex.
15, p. 1).
Claimant's prior employments were basically production
work which required extensive use of her hands, arms and
shoulders. These employments included a sewing factory,
ball bearing plant, pork plant, beef plant, waitressing,
cooking, and extensive production work for employer (Ex. 14,
pp. 33-37; Tran. pp. 19-37; Ex. 9, p. 3).
Claimant had previously injured her right shoulder
working for another employer.
Claimant reported that this injury to her left shoulder
occurred as follows: "I was inspector back in the cutting
area and the terminators at that time, and I went to reach
for a part, and my shoulder caught and sent a pain down
through my shoulder over into my chest (indicating) (Tran.,
pp. 38 & 39).
Claimant testified that she had never experienced a
pain like this before. She reported it to her supervisor.
Claimant was sent to see a local doctor, Stephen B. Gruba,
M.D., (Tran., p. 40). Claimant averred that the pain which
she felt was in her
Page 3
shoulder and not in her arm (Tran., p. 40). Dr. Gruba's
records reflect that he first saw claimant for a shoulder
injury on September 19, 1988. Dr. Gruba reported as
follows:
"On 9-9-88, during her regular shift, she
essentially tried to see how hard she could work
and how many units she could do in an eight hour
shift. She is expected to do about 160 and ended
about doing about 1200. ... The day after this
extra exertion, she had aching pain into the left
shoulder, the left elbow and left wrist area."
(Ex. 16, p. 2).
Dr. Gruba diagnosed overuse syndrome with mild
tendonitis. Claimant continued to have trouble with her
left arm and Dr. Gruba ordered an EMG (Ex. 16, p. 2) which
showed slight improvement from the EMG, which was taken at
the time of the carpal tunnel surgeries (Ex. 17, p. 6).
Claimant continued to see Dr. Gruba on February 9,
1990, March 2, 1990, May 29, 1990 and June 6, 1990 (Ex. 16,
p. 3). On the latter date, Dr. Gruba recorded that claimant
had a catching type of pain in her left shoulder when she
moves her arm up and then back (Ex. 16, p. 3). She was not
improved on June 13, 1990 (Ex. 16, p. 4). Dr. Gruba then
referred claimant to Michael J. Morrison, M.D., an
orthopedic surgeon who was also a sports medicine specialist
(Tran., pp. 40 & 43).
Dr. Morrison reported on June 20, 1990, "39 year old
white female who was stretching some wire harnesses at work
which required repetitive use of her shoulders, elbows and
hands and she developed left shoulder pain." (Ex. 4, p. 1).
Dr. Morrison diagnosed tendonitis left shoulder. He
prescribed medications and physical therapy. On July 10,
1990, Dr. Morrison gave a cortisone injection (Ex. 3, p. 4).
On August 14, 1990, Dr. Morrison reported:
Susan's work requires her to use her left arm
overhead and constantly be reaching. She has been
treated for the impingement syndrome with a local
cortisone injection which gave her only temporary
relief. She is wishing to consider further
surgical intervention that consists of an
acromioplasty of her left shoulder to try to
eliminate the impingement and she will call for
possible surgical scheduling.
(Ex. 4, p. 5)
On September 11, 1990, Dr. Morrison found some crepitus
and popping of the left shoulder with abduction and rotation
which was not present in the right shoulder (Ex. 4, p. 6).
Claimant consented to surgery which was performed on
October 8, 1990.
At the time of claimant's admission to the hospital Dr.
Page 4
Morrison summarized the history and attributes it to
claimant's work.
This is a 40-year-old white female whose job
requires excessive lifting, especially overhead.
She has developed a rather chronic impingement
syndrome with supraspinatous tendonitis, not
responding to local cortisone injections,
anti-inflammatory medications, restricted
activities, and physical therapy.
(Ex. 5, p. 1)
The supaspinatous muscle extends from the upper part of
the scapula to the humerus and is primarily a part of the
body as a whole.
He said the x-ray showed mild changes involving the AC
joint. His physical examination disclosed left shoulder
tenderness over the AC joint and the subacromial bursa. He
diagnosed (1) impingement syndrome, left shoulder and (2)
chronic supraspinatous tendonitis, left shoulder (Ex. 5, p.
1).
The AC (acromioclavicular) joint and subacromial bursa
are parts of the body as a whole and not the arm.
At the time of the surgery the operative report shows
that Dr. Morrison diagnosed (1) impingement, left shoulder
with chronic tendonitis, (2) arthritis, acromioclavicular
joint, left shoulder. The procedure that was carried out
was (1) resection of the distal end of the left clavicle and
(2) acromioplasty, left shoulder, with release of
coracoacromial ligament (Ex. 4, p. 2, & Ex. 6, p. 1).
The clavicle and coracoacromial ligament are parts of
the body as a whole.
The operative note further discloses that the distal
end of the clavicle was removed, the anterior and inferior
aspect of the acromion was removed, as well as the
coracoacromial ligament. The rotator cuff was inspected but
there was no evidence of a tear. There was slight
degeneration over the greater tuberosity.
The surgery was confined to parts of the body which are
considered to be parts of the body as a whole.
The gleno-humeral joint is the dividing line between
the arm and the body at the shoulder joint. Parts of the
body distal to that joint are the arm. Parts of the body
proximal to that joint belong to the body as a whole. The
gleno-humeral joint is where the head of the humerus forms a
socket (or joint) with the gleno-cavity of the scapula. The
parts of the arm in that vicinity are the greater
tuberosity, lesser tuberosity and bicipital grove. Parts of
the body as a whole in that vicinity are the acromiam
process the clavicle and the coracoid process. The parts of
the body that were subject to the surgery were all parts of
the body as a whole.
Page 5
Although it was speculated that claimant had bicipital
tendonitis and that she felt pain over the greater
tuberosity; nevertheless, the surgical diagnosis by the
orthopedic surgeon was impingement of the left shoulder with
chronic tendonitis and arthritis of the acromioclavicular
joint of the left shoulder. The acromioclavicular joint is
a part of the body as a whole and not part of the arm.
The parts of the body excised or removed were members
of the body as a whole, more specifically, the distal end of
the clavicle, the anterior and inferior aspect of the
acromion and the coracoacromial ligament, which are parts of
the body as a whole. None of these body parts are parts of
the arm.
Gray's Anatomy, page 134, defines the upper extremity
as follows: "The bones of the upper extremity consist of
those of the shoulder girdle, of the arm, the forearm, and
the hand." Thus, in medical terms the upper extremity
extends from the tips of the fingers through the shoulder
girdle. This terminology of the upper extremity is further
verified by the Guides to the Evaluation of Permanent
Impairment, 3rd Edition (Revised) published by the American
Medical Association, on page 15, figure 2, where it shows
the upper extremity to be the entire arm and the shoulder
girdle. This is why physicians rate arm injuries in terms
of the upper extremity. Likewise, they also rate shoulder
injuries in terms of the upper extremity. Therefore, an
upper extremity rating requires closer analysis.
At the same time the Iowa Workers' Compensation Law
does not have any benefit entitlement for a disability, loss
or loss of use to the upper extremity. The words upper
extremity are not used anywhere in the workers' compensation
law or more particularly in Iowa Code section 85.34(2).
Page 6
The workers' compensation law awards a benefit for
disability, loss or loss of use to the arm. Iowa Code
section 85.34(2)(m). Any other disability, loss or loss of
use other than one of the scheduled members shown in
subparagraphs a through t are awarded under Iowa Code
section 85.34(2)(u) "in relation to five hundred weeks as
the disability bears to the body of the injured employee as
a whole."
Gray's Anatomy, page 144, further defines the arm as
follows: "The arm is that portion of the upper extremity
which is situated between the shoulder and the elbow. Its
skeleton consists of a single bone, the humerus.
Gray's Anatomy, page 150, defines the forearm as
follows: "The forearm is that portion of the upper
extremity which is situated between the elbow and the wrist.
Its skeleton is composed of two bones, the ulna and radius."
For workers' compensation purposes the arm is
constituted by the skeletal bones of the humerus, ulna and
radius.
None of these bones or surrounding tissue was
determined to be injured by either Dr. Gruba or Dr.
Morrison.
In workers' compensation terms the hand is provided for
in Iowa Code section 85.34(2)(l).
The shoulder, and more particularly the acromion,
clavicle and coracoid process, are not a part of the arm,
because they are proximal to the gleno-humeral joint are
considered to be parts of the body as a whole for which
benefits are awarded under Iowa Code section 85.34(2)(u).
In Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38
N.W.2d 161, (1949) defendants contended that a shoulder
injury was an injury to the arm. The supreme court
disagreed, citing Dailey v. Pooley Lumber Company, 233 Iowa
758, 763, 765, 10 N.W.2d 569, 573(1943) and stated that
defendants' assumption that an injury to a shoulder is a
scheduled member injury is unwarranted. The court said that
the arm section of the Code does not apply to the shoulder,
nor is the shoulder designated as a scheduled member in any
other section of the Code. Alm, at page 1177.
Dailey v. Pooley held at page 765 that where the injury
is to a scheduled member, and also to parts of the body not
included in the schedule, then the resultant permanent
disability, if established, is compensable as an injury to
the body as a whole.
Thus, even though claimant may have expressed some arm
complaints, nevertheless, she was diagnosed as having a
shoulder injury. The parts of the arm in the shoulder joint
(socket) were not determined to be injured or disabled. The
major arm part is the head of the humerus which consists of
the greater tuberosity, lesser tuberosity and the bicipital
groove. The injury, the impairment, the loss, the loss of
Page 7
use, the permanent disability all occurred to parts of the
body as a whole. Thus, even if parts of the arm were
considered to be injured, which they were not, claimant
would still be determined to have sustained an injury to the
body as a whole because the injury and disability extended
beyond the scheduled member to the body as a whole under the
rule in the Dailey case.
Dr. Morrison assessed that claimant sustained a 5
percent permanent impairment to the upper extremity (Ex. 2,
p. 1 & Ex. 3, p. 2). This converts to 3 percent of the body
as a whole. Guides to the Evaluation of Permanent
Impairment, 3rd Edition (Revised) Table 3, page 16.
He specifically states that this is "Status post op
acromioplasty left shoulder with resection distal end of the
left clavicle," (Ex. 3, p. 2).
Therefore, the operating and treating orthopedic
surgeon specifically relates this permanent impairment to
the resection of the distal end of the clavicle which is
unquestionably a part of the body as a whole. Furthermore,
so are the acromion and the coracoid process. Therefore,
the permanent impairment in this case is to the parts of the
body as a whole.
The surgery did not touch any of the parts of the arm.
The arm parts were not injured and were not operated upon
and they are not mentioned in the determination of the
permanent impairment rating.
Although, Dr. Morrison has previously attributed the
causal connection to claimant's work, he also provides the
necessary causal connection again in his letter of April 12,
1991: "In regards to causation, it would be my feeling that
if she used her arms excessively overhead, it would have
been a contributing factor to the development of her
problems." (Ex. 3, p. 2). However, back on August 14, 1990,
Dr. Morrison stated that this was the fact of the matter in
this case. He said, "Susan's work requires her to use her
left arm overhead and constantly be reaching." (Ex. 4, p.
5). On the day of the surgery he further stated "This is a
40-year-old white female whose job requires excessive
lifting, especially overhead." (Ex. 5, p. 1). Therefore,
Dr. Morrison attributes the impairment and disability to
claimant's employment.
Page 8
Claimant testified that when she returned to work that she
was demoted. Previously she had been earning $5.95 per hour
and she was transferred to a job which paid $5.80 per hour.
This is a difference of 15 cents per hour in actual
earnings. *****
Claimant testified that the manager of the company told
her on one occasion that she was demoted because she had a
written warning of some kind. Claimant told the manager
that she had not received a written warning. The manager
checked into it and came back and told claimant that she was
demoted because when she asked for a promotion the company
considered that she did not like her job as an inspector and
therefore demoted her. Claimant testified as follows: "...
--- the reason I asked to be on a cutter job is because it
paid more, and he said, 'well, we just figured you weren't
satisfied with your job as inspector, so we put you over
here on line inspector.'" (Tran., p. 49)
Claimant's testimony was not contradicted,
controverted, rebutted or refuted by employer, even though
claimant's supervisor, Shirley Boswell, was in the courtroom
and testified and Deb Andrews the personnel representative
was also in the courtroom but did not testify.
Shirley Boswell, an 11-year employee of employer,
testified that she is the assembly supervisor and also
claimant's supervisor, that she has known and observed
claimant for approximately seven years. Boswell testified:
"I feel like Susie's an excellent employee. She does her
job. She does her job well. She's dependable." (Tran., p.
76). Boswell added that claimant works overtime when
requested to do so, that she is a senior person on her line
and that she takes responsibility for it and sees to it that
it runs smoothly.
Boswell further testified that claimant performed her
job without making any complaints of physical problems,
except occasionally (Tran., pp. 81 & 6).
Boswell agreed that claimant was demoted (Tran., p.
88) but she did not believe that claimant could do the
cutter job that she applied for because that would be heavy
lifting (Tran., p. 88). Boswell did not think claimant
could perform the floor inspector job that she had done
previously because it too required some heavy lifting
(Tran., p. 89-92). Thus, even though Dr. Morrison did not
impose any permanent restrictions on claimant, nevertheless,
her supervisor, Boswell, testified that she is not
physically able to perform the two jobs that she could
possibly be promoted to because of her physical limitations.
Thus, claimant's earnings capacity has been reduced two ways
(1) she has an actual earnings loss which is real and (2)
she has a future earnings loss because she is not
promotable.
It was Boswell's opinion that claimant was demoted from
floor inspector to line inspector because employer did not
feel she was able to perform the floor inspector job but
that she could perform the less active job of line
Page 9
inspector. This was not in claimant's personnel file but
this was Boswell's opinion on the matter by way of sworn
testimony (Tran., pp. 83 & 84).
Boswell, the only witness for employer, had no
explanation for the temporal relationship between claimant's
injury and surgery, and the demotion to a lesser paying job
(Tran., p. 85). Deb Andrews, the personnel representative
did not testify (Tran., p. 87).
One of the exhibits is a letter from the division
manager to claimant dated January 10, 1990, which reads as
follows: "Deb Andrews has told me that you have had perfect
attendance for October through December of this year. I
want you to know how much I appreciate that. This sort of
dedication to your work is what helps make Electrical
Systems a successful business." (Ex. 14, p. 15).
Thus, it must be concluded that if claimant is a good
employee but they were unable to place her in the two
promotable positions available to her, but rather demoted
her to a lower paying less strenuous job that claimant has
sustained a significant injury and a substantial loss of
earning capacity. Claimant is foreclosed from the heavy
work which she previously performed for higher wages.
Michael v. Harrison County, Thirty-fourth Biennial Report
of the Industrial Commissioner 218, 220 (App. Dec. January
30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa
Industrial Commissioner Report 282 (1984).
At age 39, at the time of the injury, and age 42 at the
time of the hearing, it can be stated that claimant's
disability occurred at the peak point in her earnings career
which increases claimant's industrial disability, 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 (App. Dec. 1989).
Claimant has a high school education but her employment
background is strictly manual work and production work. She
is now limited from performing heavy work.
Employer has accommodated claimant by continuing to
find work for her within her capabilities and there is no
indication that her job was in jeopardy. Employer should be
commended for this and their accommodation does
significantly decrease the amount of claimant's industrial
disability.
At the same time, the fact that claimant has been able
to continue her employment with employer will not transfer
nor translate to the competitive labor market as a whole,
Hartwig v. Bishop Implement Company, IV Iowa Industrial
Commissioner Report, 159 (app. dec. 1984). It is not likely
that other employers in the competitive labor market would
find claimant as employable as this employer has done
following two industrial shoulder injuries and bilateral
carpal tunnel surgery. Todd v. Department of General
Page 10
Services, Buildings and Grounds, IV Industrial Commissioner
Report 373 (1983).
Wherefore, (1) based upon claimant's left shoulder
injury which was diagnosed as impingement syndrome and
chronic tendonitis of the left shoulder and arthritis of the
acromioclavicular joint of the left shoulder following seven
years of repetitive work with her hands, arms and shoulders
for employer, (2) based on the fact that claimant had left
shoulder surgery which removed the distal end of her
clavicle, the anterior and inferior aspect of the acromion
and that the coracoacromial ligament was excised, (3) based
upon the fact that claimant has sustained 5 percent
permanent impairment to the upper extremity, which converts
to 3 percent of the body as a whole, (4) based upon the fact
that employer has also demoted claimant to a lesser paying
job, and that claimant's supervisor thought that she was
unable to do the cutter job and the floor inspector job
because of her physical limitations due to this injury and
surgery, and therefore claimant is foreclosed from heavy
work and any known promotable jobs with employer at this
time, (5) considering that claimant has sustained an actual
loss of earnings of 15 cents per hour which amounts to $6 a
week and $312 a year, ***** (6) considering that claimant's
limitations are being accommodated by employer and that
these accommodations are not transferable to the competitive
job market, (7) based upon all the evidence in this case and
(8) based upon all the factors used to determine industrial
disability, Peterson v. Truck Haven Cafe, Inc., vol. 1, no.
3 State of Iowa Industrial Commissioner Decisions 654, 658
(App. Dec. February 28, 1985) and Christensen v. Hagen,
Inc., vol. I, no. 3, State of Iowa Industrial Commissioner
Decisions 529 (App. Dec. March 26, 1985), and applying
agency expertise [Iowa Administrative Procedure Act 17
A.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 permanent partial disability benefits.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed August 16, 1993 are adopted as set forth
below. Segments designated by asterisks (*****) indicate
portions of the language from the proposed agency decision
that have been intentionally deleted and do not form a part
of this final agency decision.
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That the injury of August 8, 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, 236 Iowa 296,
18 N.W.2d 607 (1945).
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, Iowa Code
section 85.34(2)(u).
*****It is determined that there is no liability on the
part of the Second Injury Fund of Iowa pursuant to Iowa Code
Page 11
section 85.63.
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That defendant-employer pay to claimant one hundred
(100) weeks of permanent partial disability benefits at the
stipulated rate of one hundred forty-five and 35/100 dollars
($145.35) per week in a total amount of fourteen thousand
five hundred thirty-five dollars ($14,535) commencing on
December 4, 1990 as stipulated to by the parties.
That defendants are entitled to a credit for twelve
point five (12.5) weeks of permanent partial disability
benefits paid to claimant prior to hearing at the rate of
one hundred forty-nine and 94/100 dollars ($149.94) per week
in the total amount of one thousand eight hundred
seventy-four and 25/100 dollars ($1,874.25).
That interest will accrue pursuant to Iowa Code section
85.30.
That the foregoing benefits are to be paid in a lump
sum.
That the costs of this action are charged to
defendant-employer pursuant to rule 343 IAC 4.33 and Iowa
Code sections 86.19(1) and 86.40.
That defendant-employer should reimburse the State of
Iowa for the 50 percent of the transcript which was paid by
the state prior to this decision.
That defendant-employer file claim activity reports as
requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of February, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Jacob J. Peters
Attorney at Law
P.O. Box 1078
Council Bluffs, IA 51502
Mr. Frank T. Harrison
Attorney at Law
2700 Grand Ave., Ste 111
Des Moines, Iowa 50312
Mr. Stephen Moline
Assistant Attorney General
Page 12
Tort Claims Division
Hoover State Office Building
Des Moines, IA 50319
5-1108, 1803.1, 5-1803
Filed February 25, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
SUSAN R. HAFFNER,
Claimant,
vs.
File No. 955542
ELECTRICAL SYSTEMS,
A P P E A L
Employer,
D E C I S I O N
and
WAUSAU INSURANCE COMPANY,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA,
Defendants.
_________________________________________________________________
5-1108
The treating orthopaedic surgeon provided causal connection of
the injury to the permanent disability.
1803.1
The injury was determined to be to the body as a whole. The
decision approaches the issue from the point of view of the body
parts affected using Gray's Anatomy. All of the body parts that
were the subject to the surgery were on the body side of the
gleno-humeral joint and the impairment was to these body parts.
None of the parts of the arm appeared to be injured or
permanently affected by this injury. Even though some arm
symptoms were noted, especially early on, the injury ultimately
extended to the shoulder and the body as a whole and claimant was
entitled to industrial disability. Alm v. Morris Barick, Dailey
v. Pooley.
5-1803
Claimant was age 40, high school education, employment background
of manual work and production work, was foreclosed from heavy
work and also was demoted to job that was 15 cents less per hour.
The only permanent impairment rating was five percent to the left
upper extremity. Employer accommodated claimant but these
accommodations will not transfer to the competitive labor market.
Claimant awarded 20 percent industrial disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
SUSAN R. HAFFNER, :
:
Claimant, :
:
vs. :
: File No. 955542
ELECTRICAL SYSTEMS, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
WAUSAU INSURANCE COMPANY, :
:
Insurance Carrier, :
and :
:
SECOND INJURY FUND OF IOWA :
:
Defendants. :
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration brought by Susan R.
Haffner, claimant, against Electrical Systems, employer,
Wausau Insurance Company, insurance carrier, and Second
Injury Fund of Iowa, defendants for benefits as the result
of an injury which occurred on August 8, 1989. A hearing
was held in Des Moines, Iowa, on March 18, 1993, and the
case was fully submitted at the close of the hearing.
Claimant was represented by Jacob J. Peters.
Defendant-employer was represented by Matthew Grotnes.
Second Injury Fund of Iowa was represented by Stephen
Moline. The record consists of the testimony of Susan R.
Haffner, claimant, Shirley M. Boswell, supervisor, and joint
exhibits 1 through 18. All three attorneys submitted
excellent post-hearing briefs.
ISSUES
The parties submitted 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 disability to
which she is entitled, to include whether claimant sustained
a scheduled member injury or an injury to the body as a
whole.
Whether the Second Injury Fund of Iowa is liable for
any benefits, and if so, the extent of benefits for which
they are liable.
Page 2
FINDINGS OF FACT
It is determined that the injury of August 8, 1989 was
the cause of permanent disability.
It is determined that the injury of August 8, 1989 was
an injury to the body as a whole.
It is determined that claimant has sustained a 20
percent industrial disability to the body as a whole and
that claimant is entitled to 75 weeks of permanent partial
disability benefits.
It is determined that since the injury is to the body
as a whole that the Second Injury Fund is not liable for any
benefits to claimant.
Claimant, born June 29, 1950, (Exhibit 15, page 31) was
39 years old at the time of the injury and 42 years old at
the time of the hearing. Claimant started to work for
employer on March 20, 1986 and she continued to work for
employer at the time of the hearing which is a period of
seven years (Ex. 14, p. 1). Personnel records show that she
has been employed as a laborer, inspector, and an assembly
person (Ex. 14, pp. 1-38). When she applied for employment
with employer she indicated that she did not have any
physical condition which might limit her ability to perform
the particular job for which she was applying. She
indicated she did not have any physical defects which
precluded her from performing any kind of work. She agreed
to undergo a preemployment physical examination (Ex. 14, p.
35). Subsequent to her employment with employer she did
sustain bilateral carpal tunnel syndrome and a bilateral
carpal tunnel release was performed on April 11, 1988 (Ex.
15, p. 1).
Claimant's prior employments were basically production
work which required extensive use of her hands, arms and
shoulders. These employments included a sewing factory,
ball bearing plant, pork plant, beef plant, waitressing,
cooking, and extensive production work for employer (Ex. 14,
pp. 33-37; Tran. pp. 19-37; Ex. 9, p. 3).
Claimant had previously injured her right shoulder
working for another employer.
Claimant reported that this injury to her left shoulder
occurred as follows: "I was inspector back in the cutting
area and the terminators at that time, and I went to reach
for a part, and my shoulder caught and sent a pain down
through my shoulder over into my chest (indicating) (Tran.,
pp. 38 & 39).
Claimant testified that she had never experienced a
pain like this before. She reported it to her supervisor.
Claimant was sent to see a local doctor, Stephen B. Gruba,
M.D., (Tran., p. 40). Claimant averred that the pain which
she felt was in her shoulder and not in her arm (Tran., p.
40). Dr. Gruba's records reflect that he first saw
Page 3
claimant for a shoulder injury on September 19, 1988. Dr.
Gruba reported as follows:
"On 9-9-88, during her regular shift, she
essentially tried to see how hard she could work
and how many units she could do in an eight hour
shift. She is expected to do about 160 and ended
about doing about 1200. ... The day after this
extra exertion, she had aching pain into the left
shoulder, the left elbow and left wrist area."
(Ex. 16, p. 2).
Dr. Gruba diagnosed overuse syndrome with mild
tendonitis. Claimant continued to have trouble with her
left arm and Dr. Gruba ordered an EMG (Ex. 16, p. 2) which
showed slight improvement from the EMG, which was taken at
the time of the carpal tunnel surgeries (Ex. 17, p. 6).
Claimant continued to see Dr. Gruba on February 9,
1990, March 2, 1990, May 29, 1990 and June 6, 1990 (Ex. 16,
p. 3). On the latter date, Dr. Gruba recorded that claimant
had a catching type of pain in her left shoulder when she
moves her arm up and then back (Ex. 16, p. 3). She was not
improved on June 13, 1990 (Ex. 16, p. 4). Dr. Gruba then
referred claimant to Michael J. Morrison, M.D., an
orthopedic surgeon who was also a sports medicine specialist
(Tran., pp. 40 & 43).
Dr. Morrison reported on June 20, 1990, "39 year old
white female who was stretching some wire harnesses at work
which required repetitive use of her shoulders, elbows and
hands and she developed left shoulder pain." (Ex. 4, p. 1).
Dr. Morrison diagnosed tendonitis left shoulder. He
prescribed medications and physical therapy. On July 10,
1990, Dr. Morrison gave a cortisone injection (Ex. 3, p. 4).
On August 14, 1990, Dr. Morrison reported:
Susan's work requires her to use her left arm
overhead and constantly be reaching. She has been
treated for the impingement syndrome with a local
cortisone injection which gave her only temporary
relief. She is wishing to consider further
surgical intervention that consists of an
acromioplasty of her left shoulder to try to
eliminate the impingement and she will call for
possible surgical scheduling.
(Ex. 4, p. 5)
On September 11, 1990, Dr. Morrison found some crepitus
and popping of the left shoulder with abduction and rotation
which was not present in the right shoulder (Ex. 4, p. 6).
Claimant consented to surgery which was performed on
October 8, 1990.
At the time of claimant's admission to the hospital Dr.
Morrison summarized the history and attributes it to
claimant's work.
Page 4
This is a 40-year-old white female whose job
requires excessive lifting, especially overhead.
She has developed a rather chronic impingement
syndrome with supraspinatous tendonitis, not
responding to local cortisone injections,
anti-inflammatory medications, restricted
activities, and physical therapy.
(Ex. 5, p. 1)
The supaspinatous muscle extends from the upper part of
the scapula to the humerus and is primarily a part of the
body as a whole.
He said the x-ray showed mild changes involving the AC
joint. His physical examination disclosed left shoulder
tenderness over the AC joint and the subacromial bursa. He
diagnosed (1) impingement syndrome, left shoulder and (2)
chronic supraspinatous tendonitis, left shoulder (Ex. 5, p.
1).
The AC (acromioclavicular) joint and subacromial bursa
are parts of the body as a whole and not the arm.
At the time of the surgery the operative report shows
that Dr. Morrison diagnosed (1) impingement, left shoulder
with chronic tendonitis, (2) arthritis, acromioclavicular
joint, left shoulder. The procedure that was carried out
was (1) resection of the distal end of the left clavicle and
(2) acromioplasty, left shoulder, with release of
coracoacromial ligament (Ex. 4, p. 2, & Ex. 6, p. 1).
The clavicle and coracoacromial ligament are parts of
the body as a whole.
The operative note further discloses that the distal
end of the clavicle was removed, the anterior and inferior
aspect of the acromion was removed, as well as the
coracoacromial ligament. The rotator cuff was inspected but
there was no evidence of a tear. There was slight
degeneration over the greater tuberosity.
The surgery was confined to parts of the body which are
considered to be parts of the body as a whole.
The gleno-humeral joint is the dividing line between
the arm and the body at the shoulder joint. Parts of the
body distal to that joint are the arm. Parts of the body
proximal to that joint belong to the body as a whole. The
gleno-humeral joint is where the head of the humerus forms a
socket (or joint) with the gleno-cavity of the scapula. The
parts of the arm in that vicinity are the greater
tuberosity, lesser tuberosity and bicipital grove. Parts of
the body as a whole in that vicinity are the acromiam
process the clavicle and the coracoid process. The parts of
the body that were subject to the surgery were all parts of
the body as a whole.
Although it was speculated that claimant had bicipital
Page 5
tendonitis and that she felt pain over the greater
tuberosity; nevertheless, the surgical diagnosis by the
orthopedic surgeon was impingement of the left shoulder with
chronic tendonitis and arthritis of the acromioclavicular
joint of the left shoulder. The acromioclavicular joint is
a part of the body as a whole and not part of the arm.
The parts of the body excised or removed were members
of the body as a whole, more specifically, the distal end of
the clavicle, the anterior and inferior aspect of the
acromion and the coracoacromial ligament, which are parts of
the body as a whole. None of these body parts are parts of
the arm.
Gray's Anatomy, page 134, defines the upper extremity
as follows: "The bones of the upper extremity consist of
those of the shoulder girdle, of the arm, the forearm, and
the hand." Thus, in medical terms the upper extremity
extends from the tips of the fingers through the shoulder
girdle. This terminology of the upper extremity is further
verified by the Guides to the Evaluation of Permanent
Impairment, 3rd Edition (Revised) published by the American
Medical Association, on page 15, figure 2, where it shows
the upper extremity to be the entire arm and the shoulder
girdle. This is why physicians rate arm injuries in terms
of the upper extremity. Likewise, they also rate shoulder
injuries in terms of the upper extremity. Therefore, an
upper extremity rating requires closer analysis.
At the same time the Iowa Workers' Compensation Law
does not have any benefit entitlement for a disability, loss
or loss of use to the upper extremity. The words upper
extremity are not used anywhere in the workers' compensation
law or more particularly in Iowa Code section 85.34(2).
The workers' compensation law awards a benefit for
disability, loss or loss of use to the arm. Iowa Code
section 85.34(2)(m). Any other disability, loss or loss of
use other than one of the scheduled members shown in
subparagraphs a through t are awarded under Iowa Code
section 85.34(2)(u) "in relation to five hundred weeks as
the disability bears to the body of the injured employee as
a whole."
Gray's Anatomy, page 144, further defines the arm as
follows: "The arm is that portion of the upper extremity
which is situated between the shoulder and the elbow. Its
skeleton consists of a single bone, the humerus.
Gray's Anatomy, page 150, defines the forearm as
follows: "The forearm is that portion of the upper
extremity which is situated between the elbow and the wrist.
Its skeleton is composed of two bones, the ulna and radius."
For workers' compensation purposes the arm is
constituted by the skeletal bones of the humerus, ulna and
radius.
None of these bones or surrounding tissue was
determined to be injured by either Dr. Gruba or Dr.
Page 6
Morrison.
In workers' compensation terms the hand is provided for
in Iowa Code section 85.34(2)(l).
The shoulder, and more particularly the acromion,
clavicle and coracoid process, are not a part of the arm,
because they are proximal to the gleno-humeral joint are
considered to be parts of the body as a whole for which
benefits are awarded under Iowa Code section 85.34(2)(u).
In Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38
N.W.2d 161, (1949) defendants contended that a shoulder
injury was an injury to the arm. The supreme court
disagreed, citing Dailey v. Pooley Lumber Company, 233 Iowa
758, 763, 765, 10 N.W.2d 569, 573(1943) and stated that
defendants' assumption that an injury to a shoulder is a
scheduled member injury is unwarranted. The court said that
the arm section of the Code does not apply to the shoulder,
nor is the shoulder designated as a scheduled member in any
other section of the Code. Alm, at page 1177.
Dailey v. Pooley held at page 765 that where the injury
is to a scheduled member, and also to parts of the body not
included in the schedule, then the resultant permanent
disability, if established, is compensable as an injury to
the body as a whole.
Thus, even though claimant may have expressed some arm
complaints, nevertheless, she was diagnosed as having a
shoulder injury. The parts of the arm in the shoulder joint
(socket) were not determined to be injured or disabled. The
major arm part is the head of the humerus which consists of
the greater tuberosity, lesser tuberosity and the bicipital
groove. The injury, the impairment, the loss, the loss of
use, the permanent disability all occurred to parts of the
body as a whole. Thus, even if parts of the arm were
considered to be injured, which they were not, claimant
would still be determined to have sustained an injury to the
body as a whole because the injury and disability extended
beyond the scheduled member to the body as a whole under the
rule in the Dailey case.
Dr. Morrison assessed that claimant sustained a 5
percent permanent impairment to the upper extremity (Ex. 2,
p. 1 & Ex. 3, p. 2). This converts to 3 percent of the body
as a whole. Guides to the Evaluation of Permanent
Impairment, 3rd Edition (Revised) Table 3, page 16.
He specifically states that this is "Status post op
acromioplasty left shoulder with resection distal end of the
left clavicle," (Ex. 3, p. 2).
Therefore, the operating and treating orthopedic
surgeon specifically relates this permanent impairment to
the resection of the distal end of the clavicle which is
unquestionably a part of the body as a whole. Furthermore,
so are the acromion and the coracoid process. Therefore,
the permanent impairment in this case is to the parts of the
body as a whole.
Page 7
The surgery did not touch any of the parts of the arm.
The arm parts were not injured and were not operated upon
and they are not mentioned in the determination of the
permanent impairment rating.
Although, Dr. Morrison has previously attributed the
causal connection to claimant's work, he also provides the
necessary causal connection again in his letter of April 12,
1991: "In regards to causation, it would be my feeling that
if she used her arms excessively overhead, it would have
been a contributing factor to the development of her
problems." (Ex. 3, p. 2). However, back on August 14, 1990,
Dr. Morrison stated that this was the fact of the matter in
this case. He said, "Susan's work requires her to use her
left arm overhead and constantly be reaching." (Ex. 4, p.
5). On the day of the surgery he further stated "This is a
40-year-old white female whose job requires excessive
lifting, especially overhead." (Ex. 5, p. 1). Therefore,
Dr. Morrison attributes the impairment and disability to
claimant's employment.
Claimant testified that when she returned to work that
she was demoted. Previously she had been earning $5.95 per
hour and she was transferred to a job which paid $5.80 per
hour. This is a difference of 15 cents per hour in actual
earnings. Between the time of her return to work at
approximately age 40 and the time of her retirement at the
normal retirement age of 65 years, this could constitute an
actual earnings loss of several thousand dollars (Tran., p.
46 & 47; Ex. 6, p. 14 & Ex. 10, p. 6) in addition to the
loss of future earnings from inability to be advanced or
promoted.
Claimant testified that the manager of the company told
her on one occasion that she was demoted because she had a
written warning of some kind. Claimant told the manager
that she had not received a written warning. The manager
checked into it and came back and told claimant that she was
demoted because when she asked for a promotion the company
considered that she did not like her job as an inspector and
therefore demoted her. Claimant testified as follows: "...
--- the reason I asked to be on a cutter job is because it
paid more, and he said, 'well, we just figured you weren't
satisfied with your job as inspector, so we put you over
here on line inspector.'" (Tran., p. 49)
Claimant's testimony was not contradicted,
controverted, rebutted or refuted by employer, even though
claimant's supervisor, Shirley Boswell, was in the courtroom
and testified and Deb Andrews the personnel representative
was also in the courtroom but did not testify.
Shirley Boswell, an 11-year employee of employer,
testified that she is the assembly supervisor and also
claimant's supervisor, that she has known and observed
claimant for approximately seven years. Boswell testified:
"I feel like Susie's an excellent employee. She does her
job. She does her job well. She's dependable." (Tran., p.
76). Boswell added that claimant works overtime when
Page 8
requested to do so, that she is a senior person on her line
and that she takes responsibility for it and sees to it that
it runs smoothly.
Boswell further testified that claimant performed her
job without making any complaints of physical problems,
except occasionally (Tran., pp. 81 & 6).
Boswell agreed that claimant was demoted (Tran., p.
88) but she did not believe that claimant could do the
cutter job that she applied for because that would be heavy
lifting (Tran., p. 88). Boswell did not think claimant
could perform the floor inspector job that she had done
previously because it too required some heavy lifting
(Tran., p. 89-92). Thus, even though Dr. Morrison did not
impose any permanent restrictions on claimant, nevertheless,
her supervisor, Boswell, testified that she is not
physically able to perform the two jobs that she could
possibly be promoted to because of her physical limitations.
Thus, claimant's earnings capacity has been reduced two ways
(1) she has an actual earnings loss which is real and (2)
she has a future earnings loss because she is not
promotable.
It was Boswell's opinion that claimant was demoted from
floor inspector to line inspector because employer did not
feel she was able to perform the floor inspector job but
that she could perform the less active job of line
inspector. This was not in claimant's personnel file but
this was Boswell's opinion on the matter by way of sworn
testimony (Tran., pp. 83 & 84).
Boswell, the only witness for employer, had no
explanation for the temporal relationship between claimant's
injury and surgery, and the demotion to a lesser paying job
(Tran., p. 85). Deb Andrews, the personnel representative
did not testify (Tran., p. 87).
One of the exhibits is a letter from the division
manager to claimant dated January 10, 1990, which reads as
follows: "Deb Andrews has told me that you have had perfect
attendance for October through December of this year. I
want you to know how much I appreciate that. This sort of
dedication to your work is what helps make Electrical
Systems a successful business." (Ex. 14, p. 15).
Thus, it must be concluded that if claimant is a good
employee but they were unable to place her in the two
promotable positions available to her, but rather demoted
her to a lower paying less strenuous job that claimant has
sustained a significant injury and a substantial loss of
earning capacity. Claimant is foreclosed from the heavy
work which she previously performed for higher wages.
Michael v. Harrison County, Thirty-fourth Biennial Report
of the Industrial Commissioner 218, 220 (App. Dec. January
30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa
Industrial Commissioner Report 282 (1984).
At age 39, at the time of the injury, and age 42 at the
time of the hearing, it can be stated that claimant's
Page 9
disability occurred at the peak point in her earnings career
which increases claimant's industrial disability, 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 (App. Dec. 1989).
Claimant has a high school education but her employment
background is strictly manual work and production work. She
is now limited from performing heavy work.
Employer has accommodated claimant by continuing to
find work for her within her capabilities and there is no
indication that her job was in jeopardy. Employer should be
commended for this and their accommodation does
significantly decrease the amount of claimant's industrial
disability.
At the same time, the fact that claimant has been able
to continue her employment with employer will not transfer
nor translate to the competitive labor market as a whole,
Hartwig v. Bishop Implement Company, IV Iowa Industrial
Commissioner Report, 159 (app. dec. 1984). It is not likely
that other employers in the competitive labor market would
find claimant as employable as this employer has done
following two industrial shoulder injuries and bilateral
carpal tunnel surgery. Todd v. Department of General
Services, Buildings and Grounds, IV Industrial Commissioner
Report 373 (1983).
Wherefore, (1) based upon claimant's left shoulder
injury which was diagnosed as impingement syndrome and
chronic tendonitis of the left shoulder and arthritis of the
acromioclavicular joint of the left shoulder following seven
years of repetitive work with her hands, arms and shoulders
for employer, (2) based on the fact that claimant had left
shoulder surgery which removed the distal end of her
clavicle, the anterior and inferior aspect of the acromion
and that the coracoacromial ligament was excised, (3) based
upon the fact that claimant has sustained 5 percent
permanent impairment to the upper extremity, which converts
to 3 percent of the body as a whole, (4) based upon the fact
that employer has also demoted claimant to a lesser paying
job, and that claimant's supervisor thought that she was
unable to do the cutter job and the floor inspector job
because of her physical limitations due to this injury and
surgery, and therefore claimant is foreclosed from heavy
work and any known promotable jobs with employer at this
time, (5) considering that claimant has sustained an actual
loss of earnings of 15 cents per hour which amounts to $6 a
week and $312 a year and in her normal working life
expectancy of approximately 25 more years after the injury
to age 65, this would amount to $7,800 in actual earnings,
(6) considering that claimant's limitations are being
accommodated by employer and that these accommodations are
not transferable to the competitive job market, (7) based
upon all the evidence in this case and (8) based upon all
the factors used to determine industrial disability,
Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of
Page 10
Iowa Industrial Commissioner Decisions 654, 658 (App. Dec.
February 28, 1985) and Christensen v. Hagen, Inc., vol. I,
no. 3, State of Iowa Industrial Commissioner Decisions 529
(App. Dec. March 26, 1985), and applying agency expertise
[Iowa Administrative Procedure Act 17 A.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 permanent partial disability benefits.
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That the injury of August 8, 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, 236 Iowa 296,
18 N.W.2d 607 (1945).
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, Iowa Code
section 85.34(2)(u).
That since claimant has sustained an injury to the body
as a whole she has not proven that she is entitled to any
benefits from the Second Injury Fund of Iowa and it is
determined that there is no liability on the part of the
Second Injury Fund of Iowa pursuant to Iowa Code section
85.63.
Page 11
ORDER
THEREFORE, IT IS ORDERED:
That defendant-employer pay to claimant one hundred
(100) weeks of permanent partial disability benefits at the
stipulated rate of one hundred forty-five and 35/100 dollars
($145.35) per week in a total amount of fourteen thousand
five hundred thirty-five dollars ($14,535) commencing on
December 4, 1990 as stipulated to by the parties.
That defendants are entitled to a credit for twelve
point five (12.5) weeks of permanent partial disability
benefits paid to claimant prior to hearing at the rate of
one hundred forty-nine and 94/100 dollars ($149.94) per week
in the total amount of one thousand eight hundred
seventy-four and 25/100 dollars ($1,874.25).
That interest will accrue pursuant to Iowa Code section
85.30.
That the foregoing benefits are to be paid in a lump
sum.
That the costs of this action are charged to
defendant-employer pursuant to rule 343 IAC 4.33 and Iowa
Code sections 86.19(1) and 86.40.
Furthermore, defendant-employer should reimburse the
State of Iowa for the 50 percent of the transcript which was
paid by the state prior to this decision.
That defendant-employer file claim activity reports as
request by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of August, 1993.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Jacob J. Peters
Attorney at Law
233 Pearl Street, PO Box 1078
Council Bluffs, IA 51502
Mr. Matthew Grotnes
Attorney at Law
Suite 111, Terrace Center
2700 Grand Avenue, #111
Des Moines, IA 50312
Mr. Stephen Moline
Assistant Attorney General
Tort Claims Division
Hoover Office Building
Des Moines, IA 50319
51108, 1803.1, 51803
Filed August 16, 1993
Walter R. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
SUSAN R. HAFFNER, :
:
Claimant, :
:
vs. :
: File No. 955542
ELECTRICAL SYSTEMS, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
WAUSAU INSURANCE COMPANY, :
:
Insurance Carrier, :
and :
:
SECOND INJURY FUND OF IOWA :
:
Defendants. :
___________________________________________________________
51108
The treating orthopaedic surgeon provided causal connection
of the injury to the permanent disability.
1803.1
The injury was determined to be to the body as a whole. The
decision approaches the issue from the point of view of the
body parts affected using Gray's Anatomy. All of the body
parts that were the subject to the surgery were on the body
side of the gleno-humeral joint and the impairment was to
these body parts. None of the parts of the arm appeared to
be injured or permanently affected by this injury. Even
though some arm symptoms were noted, especially early on,
the injury ultimately extended to the shoulder and the body
as a whole and claimant was entitled to industrial
disability. Alm v. Morris Barick, Dailey v. Pooley.
51803
Claimant was age 40, high school education, employment
background of manual work and production work, was
foreclosed from heavy work and also was demoted to job that
was 15 cents less per hour. The only permanent impairment
rating was 5 percent to the left upper extremity. Employer
accommodated claimant but these accommodations will not
Page 2
transfer to the competitive labor market. Claimant awarded
20 percent industrial disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
SCOTT LEE PARKER,
File No. 955586
Claimant,
A R B I T R A T I O N
vs.
D E C I S I O N
OSCAR MAYER FOODS CORP.,
Employer,
Self-Insured,
Defendant.
___________________________________________________________
STATEMENT OF THE CASE
This is an arbitration proceeding which was filed by Scott Parker,
claimant, against his former employer, Oscar Mayer & Company,
self-insured employer, defendant. The case was heard on February 21,
1995 at the United States Courthouse in Davenport, Iowa. The record
consists of the testimony of claimant. The record also consists of the
testimony of claimant's mother, Caroline Parker. Additionally, the
record consists of exhibits 1-5.
STATEMENT OF THE ISSUE
The sole issue in this proceeding is: the nature and extent of any
permanent partial disability, if any.
FINDINGS OF FACT
On the date of the work injury, (July 28, 1990), claimant was working
for defendant. He had been assigned to the duties involved in heating
glue. The glue was kept in huge buckets and the buckets were then
placed on shelves in a kiln in order to heat the product. Claimant was
attempting to remove a bucket of heated glue from the kiln. The lid
was not secured tightly and heated glue spilled onto claimant's right
arm, wrist and hand. Claimant ran over to the faucet and attempted to
wash the glue from his arm. Claimant yelled for assistance and a
co-employee rushed to claimant's side.
Initially, claimant was treated at the plant health clinic. He was
then taken to Mercy Hospital where he was treated and transferred to
the burn unit at Franciscan Hospital in Rock Island. According to
exhibit 3, claimant's wound was cleaned, debrided and dressed with
scarlet red and Silvadene.
Exhibit 1 consisted of four photographs of claimant's right forearm,
wrist and hand. The wounds extended from above the elbow to the middle
of claimant's right wrist and into the thumb area.
The wound healed but claimant experienced pain at the elbow and wrist
area. Claimant complained of pain with full extension of the elbow and
with ulnar deviation of the wrist. (Exhibit 3) Physical therapy was
prescribed.
Michael P. Durr, M.D., a burn surgeon, was designated the authorized
treating physician. Because claimant was developing scar tissue, Dr.
Durr referred claimant to a local plastic surgeon, Michael C.
Ferdinands, M.D.
Dr. Ferdinands opined the following relative to claimant's condition in
May of 1991:
This is in reference to Scott Parker. Scott has a hypertrophied
scar of the right forearm following a burn he sustained in July 1990.
The scar is thickened and irritated and is uncomfortable to the
patient. He will need to have the scar removed and will require two
tissue expanders inserted in the forearm and wrist area. This will
incapacitate him from using the right hand other than taking care of
himself for the four weeks that the expander will be inserted and
during the expansion process. Following removal of the expanders
anywhere from 4 to 6 weeks after the first surgery, and removal of the
scar with advancement of the flaps, this will then prevent him for the
next three weeks during the healing process from using the right arm
for any type of work other than taking care of himself. (Ex. 1-3)
On May 29, 1991, Dr. Ferdinands then inserted two tissue expanders in
the right forearm and wrist. The plastic surgeon engaged in follow-up
treatment of claimant.
Several months later, Dr. Ferdinands authored a progress report. He
opined:
This is in reference to Scott Parker who had sustained burns to his
right hand. Most of the keloids on his wrist and forearm have been
removed with tissue expanders, but because of the breakdown of the
expansion, the keloid on his thumb could not be taken out. This is the
only one that is causing restriction in his full motion of the thumb
and wrist.
I feel that he will benefit greatly with removal of the keloid with
a W-plasty closure. This will then allow him to have his full range of
motion with no restriction. The surgery will be done as an outpatient
under general anesthesia. (Ex. 1-7)
Claimant desired the removal of the keloid scar. The surgery occurred
on March 15, 1993. Dr. Ferdinands performed a "release of contracture
with advancement flap closure partial excision of keloid with rapid
tissue expansion." (Ex 1-10)
Dr. Ferdinands restricted claimant from working for three weeks. Then
claimant was assigned to light duty work with full duties allowed after
a period of time. (Ex. 1-12)
Dr. Ferdinands did not do a permanent impairment rating of claimant.
Rather, Dr. Ferdinands referred claimant to Vijay Verma, M.D. Dr.
Verma performed the evaluation on November 15, 1993. In his report of
the same date, Dr. Verma opined:
EXAMINATION
The right upper extremity: shoulder, elbow functions are completely
within normal range as per AMA Guidelines, this includes the wrist
dorsi-flexion, radial/ulnar deviation within normal range as per AMA
Guidelines. Movement of the MP joint of the thumb 0-60o is normal, MP
joint 0-80o is normal; finger joint movements within normal range. MP
joint 0-90o is within normal limits. Dorsiflexion from neutral
position 60o is normal. Palmar flexion from neutral 0-70o is normal.
Grasp is 65 lbs., bilaterally. Radial deviation 0-20o and ulnar
deviation 0-30o within normal limits. The skin reveals measurements on
the dorsum, approximately one inch lateral to the scaphoid area and 1"
inch up and down, and 1" the volar aspect extending approximately 8
inches by [sic] from the scaphoid 2 inches; this area revealed no
hypertrophy, no evidence of causalgia, mildly altered sensory testing
and pressure was present; joint sensation intact. There was no
evidence of inflammation, rash and adherence to underlined structures.
Also, in the function, patient's oppenance was intact to all fingers,
this is tip to tip to all fingers from thumb.
IMPRESSION
As for impairment, this falls in class I which is in the range of
0-5% impairment which is in the range of approximately 2o [sic]. Also,
due to no limitations of movements, the hand function is intact.
(Ex. 2-1)
Claimant desired an independent medical examination from a physician of
his own choosing. Claimant was examined by Arthur B. Searle, M.D., on
March 16, 1994. Dr. Searle is a specialist in physical medicine and
rehabilitation. The physician opined the following in his report of
March 24, 1994:
His burn scar has caused pale discoloration of most of his right
forearm. There is a 2 X 3cm keloid on the lateral aspect of his right
elbow and purple discoloration in a 1 X 2cm area on the radial aspect
of the right wrist. There is no tenderness or adherence of any of the
scars. Sensation, pliability and lubrication of these areas of skin
are normal. The purple scar could be a slight cosmetic problem.
Muscle bulk is well developed and symmetric in the upper
extremities. He has normal strength in the elbow flexors and
extensors, the forearm supinators and pronators, the wrist extensors
and the hand grip bilaterally. He has normal thumb adduction
bilaterally because he can adduct each thumb for enough to touch the
thumb tip against the base of the little finger. He has normal thumb
opposition because he can move the thumb away from the palm far enough
so that the distance from the distal palmar crease to the
interphalangeal crease of the thumb is 8cm.
Active wrist radial deviation is 15 degrees bilaterally and active
wrist ulnar deviation is 35 degrees bilaterally. Active wrist
extension is 85 degrees bilaterally and active wrist flexion is 75
degrees bilaterally.
Diagnoses:
1. Chronic pain from a scar a year old on the right wrist.
2. Slight cosmetic disfigurement from a fresh scar on the right
wrist and an old scar on the right forearm.
3. Slight limitation in wrist radial deviation bilaterally with
normal range of motion in the rest of the upper extremities.
Discussion:
Mr. Parker's range of motion is essentially normal. His main
concern is his pain with activity, but he is able to do all the
activities he would otherwise do. "An individual who complains of
constant pain, but who has no objectively validated limitations in
daily activities has no impairment". [sic] Guides to the Evaluation of
Permanent Impairment, IV edition published by the American Medical
Association in 1993 hereafter referred to as Guides. His pain will
decrease over the next few years as the scar matures, so the client's
pain is not a rating factor for his impairment.
The cosmetic problem will also decrease as the scar fades. There is
no indication that the cosmetic problem bothers the client because it
does not limit his academic, vocational and social activities. He
doesn't need to worry about occupational or other activities causing
worsening of his condition. No adaptation of his working environment
or restriction of his work activities is needed. His use of a wrist
band for sports is not significant from the standpoint of an impairment
estimation.
Impairment calculation:
The only factor that can be used for this client's impairment
calculation is the limitation of radial deviation to 15 degrees
compared to a normal of 20 degrees in both wrists. A limitation of
radial deviation to 15 degrees is a 1% impairment of each upper
extremity according to figure 29, page 38 of the Guides. This
corresponds to a whole person impairment of 0.6% in each upper
extremity. These whole person impairments combine to a whole person
impairment of 1%. The limitation in the right wrist may not be due to
his burn injury. The limitation in the left wrist is certainly not due
to the burn.
Conclusion:
As suggested by this whole person impairment rating of 1%, this
client does not have a significant permanent impairment. There were no
significant inconsistencies among the old records and the client's
history and exam that would raise doubts about the validity of this
impairment estimate. (Ex. 3-2)
During the hearing, claimant testified concerning the condition of his
right wrist and forearm. He testified that prior to this work injury,
claimant had experienced no problems with his right wrist and forearm.
Claimant testified that currently, he has difficulties when he lifts
and lowers his wrist. He also indicated that when he uses hand tools,
he often has pain as he is twisting and turning the wrist. Claimant
indicated he feels sensations from his wrist to above the elbow and
that the sensations resemble pin pricks. Claimant displayed his wrist
and forearm to the deputy industrial commissioner. The scars were
visible. They extended from the area of the wrist to the area above
claimant's elbow. Claimant also testified he had been advised to wear
a wrist band when he experienced pain in his wrist area.
Claimant's mother testified that claimant is required to rub Jobst
lotion on his scars at a minimum of three times per day. He is advised
to eliminate dry skin in the area of his scars. Claimant has been
compliant.
CONCLUSIONS OF LAW
Claimant has the burden of proving that his work injury has resulted in
a permanent impairment. (Ex. 3 and Ex. 4)
No physician has opined that claimant's wrist and upper extremity is
anything less than normal. Both Dr. Verma and Dr. Searle have
indicated that claimant's functional capacity is essentially within the
normal ranges. While Dr. Searle indicates there is the limitation of
radial deviation to 15 degrees, he does not equate the limitation to
claimant's burn injury. In fact, claimant has this same limitation in
deviation in the left wrist as well. It is agreed the left wrist was
not involved in the work injury.
It is therefore the determination of the undersigned that claimant has
not proven by a preponderance of the evidence that he has sustained any
permanent partial impairment as a result of the work injury. Claimant
takes nothing further from these proceedings.
ORDER
THEREFORE, it is ordered:
Claimant takes nothing further from these proceedings.
Each party shall pay its own costs.
Signed and filed this ____ day of March, 1995.
_____________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Burton H. Fagan
Attorney at Law
2535 Tech Dr
Bettendorf IA 52722
Ms. Vicki L. Seeck
Attorney at Law
600 Union Arcade Bldg
111 E Third St
Davenport IA 528033
5-1800
Filed March 6, 1995
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
SCOTT LEE PARKER,
File No. 955586
Claimant,
A R B I T R A T I O N
vs.
D E C I S I O N
OSCAR MAYER FOODS CORP.,
Employer,
Self-Insured,
Defendant.
___________________________________________________________
5-1800
Claimant has failed to prove that he has sustained any permanent
partial impairment as the result of his work injury on July 28, 1990.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DALE E. FUNDERBURK,
Claimant,
vs.
File No. 955614
KEHOE MECHANICAL, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
ALLIED MUTUAL INSURANCE,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition of
claimant, Dale Funderburk, against his former employer, Kehoe
Mechanical, Inc., and its insurance carrier, Allied Mutual
Insurance, defendants. Claimant filed his petition on October 5,
1993. The administrative file contains a first report of injury
which was filed by defendant-employer on July 31, 1990. In the
prehearing conference report, the attorneys indicated they would
be ready for hearing on or after September 1, 1994. The case was
heard on November 22, 1994 at the Division of Industrial Services
in Des Moines, Iowa.
The record consists of the testimony of claimant. The
record also consists of the testimonies of: Pam Duffy, physical
therapist; Roger Marquardt, vocational rehabilitation specialist;
John Lee Egan, Iowa State Vocational Rehabilitation Counselor;
Mervin Vaughn, court reporter; and Bob Jones, vocational
evaluator at Mercy Hospital. Finally, the record is comprised of
joint exhibits 1-22, claimant's exhibits 1-7, and defendants'
exhibit A. Numerous videotapes of the claimant were included in
the record. The record contains numerous duplications of the
submitted exhibits. The duplications are unnecessary for a
speedy resolution of the case.
ISSUES
The parties admitted claimant had sustained a work-related
injury which arose out of and in the course of his employment.
The parties also stipulated that the work injury was causally
connected to claimant's condition. Finally, the parties
stipulated claimant's condition was both temporary and permanent
in nature.
The issues to be determined are: 1) the extent of
claimant's permanent disability; 2) claimant's credibility as a
witness; 3) the proper rate to use in calculating claimant's
weekly benefit rate; and, 4) whether claimant is entitled to
medical expenses pursuant to Iowa Code section 85.27.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The deputy, having heard the testimony and considered all of
the evidence, makes the following findings of fact and
conclusions of law:
Claimant is 54-years-old and a heavy smoker. Previous to
his work injury he had been treated for alcoholism at Powell III.
He is single with three adult children. Claimant graduated from
high school in 1959. He did not attend college but he entered an
apprenticeship program with Local 33 of The Plumbers and
Steamfitters Union. He became a journeyman plumber and
steamfitter in 1964 or 1965. For many years he worked as a
service technician. His trade required claimant to have
knowledge of refrigeration, steam fitting, welding, insulation,
and electricity.
Claimant described many of his routine activities. He was
required to lift 50 pounds or more; crawl in confined spaces;
climb up ladders and onto roofs; and dig dirt and clay. The work
was physically challenging.
As aforementioned, the parties stipulated claimant sustained
a work-related injury which occurred on June 28, 1990. At the
time of the work injury, claimant was digging with a spade. He
stepped onto the spade, and instantly, he dropped onto his hands
and knees. He experienced excruciating pain in the back area.
Claimant testified he went home early on the 28th. He
reported he was never able to return to work after that date. At
the time of his work injury claimant earned $17.64 per hour in
wages plus fringe benefits. The combined wages and fringes
totaled $22.15 per hour.
As of June 1, 1994, the base wage rate for a journeyman
plumber was $19.99 per hour. The fringe benefits brought the
total wage packet up to $26.17 per hour.
Ms. Jackie Buffums, claims adjuster, testified as to the
method defendant-insurance carrier used to calculate claimant's
weekly benefit rate. She accurately described the correct manner
for calculating claimant's gross weekly wages of $612.65 per week
and his weekly benefit rate of $342.70.
As a result of his work injury, claimant endured three low
back surgeries at L-4/L-5. The third surgery occurred in April
of 1991. All of the surgeries were performed by Daniel McGuire,
M.D., a local orthopedic surgeon, who was the authorized treating
physician. The record establishes that claimant saw Dr. McGuire
on approximately 32 occasions (Exhibit 21-241).
Approximately two months after the final surgery, Dr.
McGuire encouraged claimant to engage in vigorous physical
therapy and work hardening. Dr. McGuire opined a return to work
was a reasonable goal (Ex. 21-218). He questioned whether a
fourth surgery was required.
A second opinion was secured from Thomas Carlstrom, M.D.,
(Ex. 3-32). Dr. Carlstrom opined a fourth surgery was
unwarranted. He recommended:
I think he has some radicular pain on the basis of
his postoperative status, and I have nothing to offer
him treatmentwise. He probably needs to be involved in
a Voc Rehab effort or return to his old job, whatever
seems to be appropriate there, and I am sure that you
and Dr. McGuire can work that out.
(Ex. 3-32)
In January of 1992, Thomas W. Bower, P.T., saw claimant for
purposes of rendering a functional capacities evaluation. Mr.
Bower prepared a report dated January 16, 1992. In his report,
Mr. Bower advised:
Summary:
We have viewed many things during the course of this
evaluation. Body mechanics are extremely poor by this
patient and certainly intense instruction in this area,
I think, would be valuable.
The patient is moderately deconditioned and this may
be an explanation at least in part, for the very poor
showing in the functional capacity evaluation. There
is a certain degree of disproportionate pain reporting
which also has entered into the overall results of this
exam.
We would recommend at this time, that the patient be
placed on a very intense stabilization routine, which
in my review, has not been done. He, at this point,
has been started only on very minor flexion/extension
exercises, which really are not going to stabilize the
back. Following the stabilization routine, the patient
may well be a candidate for the work hardening program.
Certainly the Lift Trak analysis would suggest that we
can exceed far greater limits than what were noted
today.
If we are to assume that this patient, after
completing the work hardening program, is going to have
normal function, this certainly would be a
misconception. Certainly, I feel the overall condition
of this patient can be improved and certainly we could
move him probably through higher categories of work
following that procedure.
If we were to leave this gentleman presently where
he is, the following restrictions would apply:
POSITION MAXIMUM LIFT FREQUENT LIFT REPETITIVE LIFT
Floor to Waist 30 lbs. 22 lbs. 0 lbs.
Chest Height 30 lbs. 20 lbs. 10 lbs.
Carry 37 lbs. 22 lbs. 12 lbs.
Push/Pull 40 lbs.
(Ex. 21, p. 319)
In May of 1992, Dr. McGuire opined the following relative
to claimant's condition:
If we were to think about a fourth operation, it
would not be a simple little 45 minute laminectomy, but
instead may become a 3-4 hour surgery, where we would
go in and do a large decompression, instrument him from
behind and perhaps fuse the disk space in front. In
other words, quite a large operation. It may help him
a little bit, but it could make him a lot worse.
With that in mind, we need to start determining the
other things. I believe his permanent partial
disability as it pertains to his back symptoms and his
three operations is 12%. I believe he is basically at
MMI. The tissues have had time to heal from the injury
and from the three subsequent surgical interventions.
The problem is assigning restrictions. We encouraged
him to go to a work hardening program to get a grasp of
his overall activity level and perhaps to be able to
condition him so we could get him into some type of
light sedentary work or even medium sedentary work.
Dale understands this. He has had problems. His
restrictions, therefore, will be quite significant. He
may actually need a Functional Capacity Evaluation to
get some permanent criteria. I believe he is going to
have a difficult time doing anything that requires
repetitive twisting, bending and stooping. He may be
able to do that on a rare or occasional basis. He
probably could do things that would allow him to
alternate between standing, sitting and walking. His
weight restriction is probably going to be in the 5 to
10 to almost 20 pound range. He should not be doing
that on a repetitive basis, but instead, moving about
and doing that on an occasional basis. He has not
worked in almost two years, so it may be hard to get
him back to an 8 hour shift right away, but I think
that would be a reasonable long term goal.
I am not optimistic that Dale will be able to return
to the work force. That is nothing against Dale. That
is not saying that his back symptoms are that severe.
I am just saying that from an overall observation of
the clinical situation.
I think he would have a very difficult time
qualifying for Social Security Disability. I do not
know if he has done any application work in that
regard.
I do not really see much advantage to getting a
fourth opinion from a spine surgeon. He has seen Dr.
Boarini, Dr. Carlstrom and he has seen me and I really
do not know if a fourth opinion will have much to offer
him. Dr. Bill Boulden may be one viable candidate.
The places in Minnesota tend to like to operate on
everyone that they see. There is a seven month wait to
be seen at the University of Iowa.
(Ex. 21-310, 311)
Robert Jones, B.S., a vocational evaluator, directed a
second functional capacity evaluation for claimant on March 23-
24, 1994. Mr. Jones determined the evaluation was invalid, and
in his opinion, the claimant was engaging in malingering and
symptom magnification (Ex. 21-211-324). In support of his
opinion, Mr. Jones wrote:
The patient is a 53 year old white male seen for an
updated Functional Capacity Evaluation. He was
previously seen on September 14, 1993, at which time
very little of the FCE testing was able to be completed
due to reported low back and bilateral buttock and
lower extremity radicular pain on the patient's part.
He did demonstrate a great deal of pain behavior during
that evaluation as documented in the previous report
and the evaluator's resultant conclusion at that time
was that the patient was not competitively employable.
Upon returning on this day the patient entered the
evaluation area walking with a noticeable limp on his
right lower extremity. During the initial interview
situation he was noticed to sit leaned to his left side
with his weight off his right buttock and supporting
his upper body weight on the left arm of his chair,
never maintaining a seated position for more than four
minutes at a time. When not seated he alternated
between limping about the evaluation area, standing
with his back flat up against a wall or leaning up
against something on his left side with his body weight
off his right lower extremity.
. . . .
Upon leaving the evaluation center at this time the
patient was sort of hunched forward at the waist and
limping rather severely on his right leg.
In comparing the previous and current evaluations it
is seen that the patient's demonstrated pain behaviors
are essentially unchanged from slightly over six months
ago, although his reported left lower extremity
radicular pain has changed in location. Despite his
continued reported pain experience and demonstrated
pain behaviors on this day he did manage to complete
the entire testing process, however, although with very
poor performances throughout as well as with some
inconsistencies.
Before having the opportunity to write the final
evaluation report the evaluator coincidentally saw the
patient having lunch in the hospital cafeteria the next
day at 1:00 p.m. The evaluator took a seat at a table
one row over and three tables down from the patient
with his back to him. At 1:10 p.m. the patient got up
to leave the cafeteria, carrying his tray of dirty
dishes approximately 60' to the tray line with only the
slightest perceptible limp on his right leg. At this
point the evaluator proceeded to follow the patient at
a distance to observe him further, with the patient
walking another 240-250' to the nearest exit to step
outside and smoke a cigarette. He again demonstrated
only a very slight limp on his right leg while walking
this distance, certainly much less than he had
demonstrated upon arriving at the evaluation center the
previous day.
(Ex. 21-326 and 331)
Mr. Jones testified as an expert witness who was called by
defendants. He testified during his direct examination that "he
had been duped by the claimant until he observed claimant in the
hospital cafeteria." Mr. Jones testified that claimant is
capable of light employment and that he can lift 20 pounds
occasionally and 10 pounds frequently. Mr. Jones explained that
claimant is not capable of handling all types of sedentary
employment since he has some difficulties sitting for long
periods of time.
In July of 1994, Dr. McGuire examined claimant in a
subsequent examination. The treating surgeon authored a report
which is dated July 1, 1994. In the report, Dr. McGuire wrote:
He is still having problems with low back pain, pain
down the right leg to the posterior calf to the first
and second toe, and numbness there also. He has some
slight symptoms down the left side, but those are
really pretty minimal.
No bowel or bladder dysfunction. With Valsalva, he
claims right leg pain. He denies a history of cancer
or weight loss. He has some night pain. When he gets
up in the morning, he is pretty stiff and sore. If he
takes a hot shower or sits in the whirlpool, he feels
better. Walking causes right leg pain. Standing for
fifteen minutes causes right leg pain. He believes the
symptoms are basically the same as they have been all
along.
PHYSICAL EXAMINATION: 5'10", 150-pound male
appearing roughly the stated age. Examination of the
spine: No real spasms or deformity. He seems to have
a little loss or lordosis. The midline scar is
present. He forward flexes 70 degrees with right
posterior thigh pain. He extends 5 degrees. He can
heel and toe walk. He walks with a rather pronounced
limp on this right leg and almost keeps his hip and
knee flexed. In a sitting position, he has decreased
sensation right L5 and, perhaps, a slight decrease in
right L5. The reflexes are 2+. He seems to have a
global decreased strength of the right leg,
particularly as it pertains to the quads, anterior
tibs, and EHL's. In a sitting position, with flip
test, on the right, he has right buttock pain. On the
left, he has low back pain.
He does wear a corset most of the time.
Two views of this lumbar spine were obtained. No
destructive lesions are noted. There is no evidence of
severe disc space changes, such as discitis. He does
have some minor changes at 4/5 and, perhaps, just a bit
or foraminal stenosis. No real calcifications for his
aorta.
. . . .
I am not really sure what my purpose is today.
Obviously, he has an impairment. I probably have
stated it previously somewhere in his records. He has
had a laminectomy with persistent symptoms. He had two
other laminectomies. It is probably in the 12 to 14%
range. Obviously, he has some restrictions that
pertain to the fact he has had a laminectomy. He has
further restrictions as they pertain to his subjective
aches and pains and further restrictions as they
pertain to his body habitus and NIOSH standards. If
you take into the fact that he has been on Social
Security Disability and has not worked for four years,
it is almost guaranteed that he is never really going
to go back to work again. . . .
(Ex. 21-312 and 313)
Several weeks later Dr. McGuire issued another report. It
was dated July 24, 1994. In the report, Dr. McGuire discussed
the events which were depicted on the aforementioned videotapes.
Dr. McGuire felt claimant had been less than candid with him in
terms of claimant's capabilities. Dr. McGuire noted in the same
report:
I tried my darndest to obtain history from Mr.
Funderburk during the office interview about his day-
to-day activities. The videotape does not fit with what
he told me he is doing. He appears to be much more
active than he indicated. More importantly, he appears
to be much less symptomatic on the videotape. In
addition, it is rare when we see him limp on the
videotape. The only time I saw him limp was when he
walked into your office, out of your office, and into
the insurance company and back. There were just a
couple of other times on the tape he limps for one or
two steps.
I spent quite a bit of time with him when he was in
the office. He put on quite an exaggerated show while
he was in the office, limping in and out of the office.
However, the videotape would indicate he is capable of
doing much better.
Carrying a tray like he did at McDonald's would
probably indicate he could carry twenty or thirty
pounds. The good news about the videotape and
observations at McDonald's indicates that there are
many things he could be doing.
Based on his laminectomy and the observations, he
probably could be lifting things that weigh at least
thirty pounds, doing that on an occasional to almost
frequent basis if he uses good body mechanics. He
could be doing jobs that involve walking and some
sitting. He could do jobs that involve bending and
twisting, but I would try to keep them to an occasional
basis. He could be working eight hours per day.
(Ex. 21-314 and 315)
As a result of the videotapes, Dr. McGuire modified the
physical restrictions he had imposed on claimant (Ex. 21-314 and
315). He testified in his deposition that:
Q. Based upon all of the information that has been
presented to you, do you have an impression as to
whether or not Mr. Funderburk was always open and
honest and credible in his representations of his self
to you?
A. I feel very strongly that when I saw him in the
summer of '94 he was not -- he did not present a
legitimate picture to me. I feel very strongly about
that.
Q. Did any of this at any time give you any cause
to question whether or not the treatment throughout
would have been totally necessary?
A. Well, seeing that videotape in the summer of
1994 really cast doubt on how he presented himself in
the office. So then unfortunately in my own mind I
have to sit back there and go perhaps he misrepresented
his complaints to me in the summer of '90 or the spring
of '91.
(Ex. 21-236 and 237)
Claimant desired an independent medical examination. As a
consequence, he sought an examination and an evaluation from
Martin Rosenfeld, M.D., an orthopedic surgeon. Dr. Rosenfeld
examined claimant on March 2, 1993, and the physician authored a
report which expressed his opinion relative to claimant's back
condition. Dr. Rosenfeld opined:
On examination straight leg raising on the right is
positive at forty-five (45) degrees with positive
popliteal compression. On the left it is negative to
eighty (80) degrees and then there is equivocal
contralateral Lasegue test. I pick up no gross
extensor hallucis or ankle weakness. He has a well
healed lower lumbar scar over the L 4-5 area. He does
have some paraspinal spasm. Patient states that he
does wear a back brace or has worn a back brace and
this does give him relief.
Films are reviewed showing the recurrence of the
disc herniations and equivocal changes more significant
now for scar than for new disc procedures.
Impression: Recurrent lumbar disc syndrome, L 4-5 on
the right with recurrent surgery times
three.
It would appear that there is no question as to the
causal relationship of the on-the-job injury. In using
the AMA Guides, there is a thirteen (13%) percent
impairment to the body as a whole as a result of this
injury and subsequent surgery. The AMA Guides give ten
(10%) percent for the initial operation with residuals;
two (2%) percent for the second operation; and an
additional one (1%) percent for the third for a total
of thirteen (13%) percent. There is discussion in the
patient's files regarding a fourth operation and
although there is natural and reasonable reticence to
make that recommendation, I would think that since he
does improve with external support that consideration
of fusion should be made. I would recommend referral
to the Minnesota Spine Center as I find that their
evaluations are basically conservative in nature, but
fair and once and for all could answer the question
whether the patient should be considered for fusion or
not.
(Ex. 22-Deposition Ex. 2)
Following the issuance of Dr. Rosenfeld's report, Pam Duffy,
P.T., examined and evaluated claimant for purposes of rendering a
functional capacity evaluation. She issued a written report
which was attached as deposition exhibit l to the deposition of
Dr. Rosenfeld. Ms. Duffy testified at the hearing as an expert
witness who was called by claimant. Her testimony was consistent
with her report.
In her report, she recommended the following:
SIGNIFICANT DEFICITS:
The following limited the client's functional
abilities:
1. Inability to tolerate periods of prolonged sitting
limits his ability to tolerate safely more than 15-
30 minutes of static sitting. This is consistent
with his previous diagnosis.
2. Trunk weakness limited his ability to rotate trunk
comfortably on a repetitive basis.
3. Moderately severe gluteus maximus tightness and
restricted trunk flexion limited crouching and
squatting abilities.
4. Trunk weakness limited kneeling capabilities.
5. Trunk weakness limited maximum lifting and carrying
capabilities.
JOB DESCRIPTIONS EXPLORED:
Patient gave detailed and specific knowledge of his
previous position at Kehoe. This required lifting of
equipment and parts for heating and plumbing activities
greater than 50 lbs. No other job descriptions were
provided to the therapist and patient is currently on
Social Security disability and is not currently
actively seeking other employment positions with which
to compare the FCE results to a specific written
career/job description.
PHYSICAL WORK STRENGTHS (COMPARED TO JOB DESCRIPTION):
This patient's current physical work strengths
correspond with sedentary work. This would be lifting
or carrying 10 lbs. on a continuous basis. He would
not be able to lift 20 lbs. but on a horizontal carry
could carry up to 20 lbs. His maximum lifting
capabilities, which could be performed occasionally or
rarely, were 15 lbs. from the floor. See the specific
FCE form that itemizes all of the functional abilities
obtained from our two day testing.
It should be noted that the Isernhagen Work System is a
functional test and correlates directly with a person's
capabilities. Safety is insured during the testing and
clients are not allowed to perform unsafe maneuvers.
PHYSICAL RESTRICTIONS (COMPARED TO THE JOB DESCRIPTION):
Compared to his working in heating and plumbing, this
patient is unable to perform the maximum lifts and to place
his trunk in sustained postures for the periods of time
required to do that type of repair work. The primary
restriction is the lifting capabilities.
RECOMMENDATIONS:
1. Physical abilities do ont [sic] match the job
description of heating and cooling repair/
installation. The areas of discrepancy are as
noted above in that the work-critical demands
include lifting greater than 50 lbs. and his FCE
abilities corresponded with 15-20 lbs. maximum.
Therefore, as we have stated, it is obvious that this
client is not able to return to this type of position.
He states that his company, Kehoe, is no longer in
business.
2. The following recommendations should be used to
increase the functional level:
1) Independent home exercise program for
flexibility and strengthening of the trunk and
lower extremities. We began instructing the
client on day two with some basic flexibility
exercises. He would probably benefit from
additional instruction for further
strengthening.
2) Independent cardiovascular conditioning
program.
3) Vocational assistance.
3. IMPAIRMENT: I will simply comment that I would
concur with Dr. Daniel McGuire's estimate of
impairment between 12 and 14%, as he has noted in
his correspondence of July 24, 1994.
4. If the patient is seeking employment, his
restrictions would include the ability to pace work
independently, vary positions of sitting and
standing as needed; and items greater than 15 lbs.
should be raised off the floor since he is unable
to lift more than this amount of weight from the
floor, and that maximum carries should not exceed
20 lbs.
Ms. Duffy testified that claimant could not work eight hours
per day for five days per week. She admitted claimant was
capable of working sedentary jobs and some jobs in the light
category. However, she opined claimant was unable to return to
full time employment as he was deconditioned.
Dr. Rosenfeld testified by deposition. He disagreed with
Dr. McGuire's opinion that claimant had been exaggerating his
symptoms and capabilities. He reviewed the report of Ms. Duffy,
and he found it to be consistent with the opinions he held
relative to claimant's condition.
With respect to claimant's physical capacities, Dr.
Rosenfeld opined:
A. No, I just would disagree that Mr. Funderburk is
a malingerer, so therefore I wouldn't agree with Mr.
Jones' report.
Q. So it's just the word "malingering" that bothers
you?
A. Well, I don't remember all of the writings in
Mr. Jones' report, but it was to me very inflammatory
against Mr. Funderburk, and I just didn't agree with
it. I just felt that Pam Duffy's report was more
consistent with the history that I had and with what I
saw on the videotapes, and I thought it was -- I saw
somebody that was very consistently leading a life of
-- with the consistency of somebody that had three back
operations, and that he had some leg pain, and it was
not a symptom magnifier to me. He has pain, he's
careful, he does quite a few things, he was quite
independent, but I didn't feel that I saw him do heavy,
continuous work, the type of work that would be
required for his previous occupation.
(Ex. 22-356)
Subsequent to the work injury, defendant-employer ceased
doing business. Because of poor financial prospects, the
business was closed. No return to work was offered to claimant.
In the summer of 1992, claimant invested $800.00 in an
anything but profitable business venture. He purchased several
home water purifying systems which he attempted to sell.
Claimant admitted he had no sales skills. The success of the
business depended on telemarketing. Claimant discovered
telephone solicitation was more difficult than he had
anticipated. Shortly after the start of his venture he became
disillusioned; he neglected the business and donated the systems
to family members.
Claimant did not seek other employment following the failure
of his small business. He voluntarily left the labor market.
Instead, he filed for social security disability through the
Social Security Administration. He prevailed on his claim and he
is receiving monthly disability checks in excess of $900.00 per
month. Claimant also applied for his pension through The
Plumbers and Steamfitters Union. He is receiving those benefits
as well. His monthly check is in the $800.00 per month range.
The parties retained vocational rehabilitation counselors to
provide expert testimony during the hearing. Roger Marquardt
testified on behalf of claimant. He indicated claimant is
employable in light or sedentary activities where sitting and
standing are alternated. Mr. Marquardt testified claimant has at
least a 50 percent reduction of access to the labor market
because of the work injury. He also testified claimant could
expect at least a 60 percent loss of actual wages.
On the other hand, Dave L. Mitchell testified on behalf of
defendants. He opined claimant had access to sedentary and light
employment opportunities. He noted sales, light delivery work,
and security work, as possible employment opportunities. He
opined there was a 40 percent loss of heavy labor positions which
would have been available to claimant. Mr. Mitchell also
recommended part-time positions. He did not obtain employment
for claimant.
John Egan, a counselor with the Iowa Department of
Vocational Rehabilitation, also testified during the hearing. He
was a credible witness. He directed vocational testing and/or
placement for claimant. Mr. Egan, after testing, recommended the
Home Bound Program for claimant. As of the date of the hearing,
claimant had signed up for participation in the program but he
did not appear for two of the sessions.
Mr. Egan opined claimant was capable of making and selling
craft items. Photographic depictions of claimant's handiwork
were submitted as evidence in the case. Claimant is skilled in
woodworking and he has fabricated shelves, end tables, mirrors
and wall sconces.
The burden of proof is on the party asserting the
affirmative of an issue in an administrative proceeding; "on the
party who would suffer loss if the issue were not established."
Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973); Norland v.
Ides, 412 N.W.2d 904 (Iowa 1987).
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to the
injured employee's age, education, qualifications, experience
and inability to engage in employment for which the employee is
fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125
N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110
N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by a
medical evaluator does not equate to industrial disability.
Impairment and disability are not synonymous. The degree of
industrial disability can be much different than the degree of
impairment because industrial disability references to loss of
earning capacity and impairment references to anatomical or
functional abnormality or loss. Although loss of function is to
be considered and disability can rarely be found without it, it
is not so that a degree of industrial disability is
proportionally related to a degree of impairment of bodily
function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to the
injury, immediately after the injury, and presently; the situs of
the injury, its severity and the length of the healing period;
the work experience of the employee prior to the injury and after
the injury and the potential for rehabilitation; the employee's
qualifications intellectually, emotionally and physically;
earnings prior and subsequent to the injury; age; education;
motivation; functional impairment as a result of the injury; and
inability because of the injury to engage in employment for which
the employee is fitted. Loss of earnings caused by a job
transfer for reasons related to the injury is also relevant.
Likewise, an employer's refusal to give any sort of work to an
impaired employee may justify an award of disability. McSpadden
v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are
matters which the finder of fact considers collectively in
arriving at the determination of the degree of industrial
disability.
There are no weighting guidelines that indicate how each of
the factors are to be considered. Neither does a rating of
functional impairment directly correlate to a degree of
industrial disability to the body as a whole. In other words,
there are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw upon
prior experience as well as general and specialized knowledge to
make the finding with regard to degree of industrial disability.
See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 529 (App. March 26, 1985);
Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28, 1985).
Compensation for permanent partial disability shall begin at
the termination of the healing period. Compensation shall be
paid in relation to 500 weeks as the disability bears to the body
as a whole. Section 85.34.
The defendants vigorously questioned claimant's credibility
as a witness. The issue of credibility is central to the
resolution of this claim. The credibility of a witness is always
an issue which must be determined by a deputy industrial
commissioner.
Because defendants challenged claimant's credibility, they
conducted surveillance of claimant on numerous occasions. The
tapes were submitted as evidence and thus reviewed by this deputy
industrial commissioner. It took approximately 3 and 1/2 hours
to review them. This deputy industrial commissioner relied
heavily on the videotapes as evidence of claimant's physical
condition on the dates the surveillance was conducted. The
videotapes more accurately represented claimant's physical
capabilities. But for the submitted videotapes, this deputy
would have awarded claimant a permanent and total disability,
given the restrictions imposed upon claimant, the opinions of Dr.
McGuire before he viewed the tapes, the impairment ratings which
were provided, and given the other factors which are considered
when determining industrial disability. However, the videotapes
convinced the deputy to decide otherwise.
The videotapes support defendants' position that claimant is
capable of handling light duty jobs and even some sedentary
positions. As witnessed on the videotapes, claimant walks with a
normal gait. His movements are not slow and deliberate. They
flow easily and he has no difficulty hopping in and out of
vehicles. Claimant can drive a pick-up truck and carry light
objects like grocery bags or car seats. Claimant can sweep, lift
and stack wooden logs, and manually push motorcycles. He can
stand for short periods of time and work at table saws. He has
difficulties when he sits in the same position for more than 30
minutes. The videotapes even convinced Dr. McGuire to modify the
restrictions he had placed on claimant's work activities. Two
orthopedic surgeons evaluated claimant as having impairment
ratings from 12 to 14 percent.
Even though this deputy industrial commissioner recognizes
claimant can perform work in the competitive labor market, the
undersigned acknowledges claimant's earning capacity and his
actual earnings have been greatly diminished by his work injury.
It is clear claimant cannot return to a position as a plumber or
a steamfitter where he previously earned over $17.00 per hour.
It is doubtful he can obtain other suitable employment which will
compensate him at the hourly rate he earned as a journeyman
steamfitter. Jobs for which claimant is suited will pay in the
$6.00 to $8.00 per hour range.
Claimant's age is a negative factor. At age 54, he will
experience difficulties in obtaining other employment. He has
voluntarily removed himself from the competitive labor market.
It is evident he will not return, although, he has a history of
steady employment which requires skill and expertise. He has no
formal education beyond the high school level. He is not a
candidate for retraining.
Therefore, in light of the foregoing, it is the
determination of the undersigned that claimant has sustained a
permanent partial disability in the amount of 75 percent. He is
entitled to 375 weeks of permanent partial disability benefits
commencing from May 25, 1992, and payable at the rate of $342.70
per week. Defendants are entitled to a credit for all benefits
previously paid. (At the time of the hearing defendants had paid
claimant 229 weeks of compensation at the rate of $342.70 per
week).
Claimant neglected to attach a detailed list of itemized
medical expenses for which he requested payment under section
85.27. Consequently, this deputy was unable to determine whether
certain medical expenses were compensable under section 85.27.
ORDER
THEREFORE, IT IS ORDERED:
Defendants shall pay unto claimant three hundred seventy-
five (375) weeks of permanent partial disability benefits at the
rate of three hundred forty-two and 70/l00 dollars ($342.70) per
week and commencing from May 25, 1992.
Defendants shall take credit for all benefits previously
paid claimant.
Accrued benefits are to be paid in a lump sum together with
statutory interest at the rate of ten percent (10%) per year
pursuant to section 85.30, Iowa Code, as amended.
Costs are taxed to defendants pursuant to rule 343 IAC 4.33.
Defendants shall file a claim activity report as requested
by this division pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of June, 1995.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Larry D. Krpan
Attorney at Law
3100 Ingersoll Ave
Des Moines IA 50312
Mr. Robert C. Landess
Attorney at Law
Terrace Center STE 111
2700 Grand Ave
Des Moines IA 50312
1800; 1803
Filed June 14, 1995
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DALE E. FUNDERBURK,
Claimant,
vs.
File No. 955614
KEHOE MECHANICAL, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
ALLIED MUTUAL INSURANCE,
Insurance Carrier,
Defendants.
___________________________________________________________
1800; 1803
Claimant was injured on the job. As a result of the work
injury, Dr. McGuire performed three laminectomies at L4-5.
Claimant participated in physical therapy and work
hardening. Dr. McGuire imposed severe restrictions.
Claimant was rated as having from a 12% to a 14% impairment.
Defendants conducted surveillance of claimant, once he had
reached maximum medical improvement. It took the deputy
industrial commissioner about 3 and 1/2 hours to review the
tapes. The videotapes depicted claimant performing tasks
which he maintained were impossible for him to do. The
videotapes convinced this deputy that claimant had been less
than candid when he spoke of his physical capabilities. The
videotapes, when shown to the authorized treating physician,
compelled him to modify the work restrictions he had imposed
on claimant.
HELD: Claimant was awarded a 75% permanent partial
disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LISA L. STRAIT,
Claimant,
vs.
File Nos. 955692, 1013367
WOODWARD STATE HOSPITAL-
SCHOOL,
A P P E A L
Employer,
D E C I S I O N
and
STATE OF IOWA,
Insurance Carrier,
Defendants.
___________________________________________________________
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 29, 1992 is affirmed and is adopted as
the final agency action in this case, with the following
additional analysis:
In her brief on appeal, claimant argues that her
situation should be analyzed under the reasoning stated in
Larson, 1A Workmen's Compensation Law, section 23 (1990).
There, Professor Larson states:
The current tendency is to treat the question,
when an instigator is involved, as a primarily
course of employment rather than
"arising-out-of-employment" problem; thus, minor
acts of horseplay do not automatically constitute
departure from employment but may here, as in
other fields, be found insubstantial. So, whether
initiation of horseplay is a deviation from course
of employment depends on: (1) the extent and
seriousness of the deviation, (2) the completeness
of the deviation (i.e., whether it was commingled
with the performance of a duty or involved an
abandonment of duty), (3) the extent to which the
practice of horseplay has become an accepted part
of the employment, and (4) the extent to which the
nature of the employment may be expected to
include some such horseplay.
Even if we were to adopt the standard Professor Larson
espouses, claimant would not prevail, however. The
seriousness of a deviation from employment cannot be judged
by the consequences of the deviation. See Nigbor v.
Page 2
Department of Industry, 355 N.W.2d 532 (Wisconsin, 1984).
Claimant's deviation was serious because of the potential
consequences of leaving three mentally handicapped clients
unattended in a swimming pool, an act which did not permit
claimant to immediately intervene, either actively or
passively, should her clients need her assistance.
Claimant's deviation had a potential for causing any or all
of her clients serious harm. Hence, the deviation was quite
serious. Additionally, claimant's deviation is an almost
wholly complete deviation from the course of her employment.
That claimant intended a substantial disregard of her
employment duties is evidenced by claimant's telling Ms.
Moyer that attending to her clients' safety was the
lifeguard's duties. That remark evidences that claimant's
mindset was that the swimming outing was a recreational
activity for her personal benefit as much as for her
clients' benefit and a recreational activity, which activity
removed her from her regular employment duties. That
claimant's employer did not share claimant's view of the
purpose of the outing is evidenced by the employer's giving
claimant a letter of clarification as regards her conduct at
the outing. Also, the record does not reflect that it was
accepted that residential treatment workers on swimming
outings should spend substantial portions of their time in
their own recreational endeavors and not attending to their
clients. That Ms. Moyer, who did not have supervisory
authority over claimant, felt compelled to comment on the
residential treatment workers' diving and their need to
resume contact with their clients strongly evidences that
the extent of horseplay engaged in when claimant was injured
was greater than that level of horseplay accepted as part of
the employment. Under the same reasoning, it cannot be said
that the nature of the employment would be expected to
include diving engaged in as extensively and as apart from
one's clients and as apart from an interest in one's clients
as claimant displayed when injured. While it is true that
it was anticipated that residential treatment workers, who
were participating with their clients on a swimming outing,
would also engage in water-related activities including
diving in relaxed moments, it was clearly not anticipated
that claimant or other residential treatment workers would
engage in diving activities for substantial periods and at a
distance from their clients' physical location. For all the
foregoing reasons, analyzing the record under the standard
Professor Larson espouses does not change the result.
Claimant shall pay the costs of the appeal, including
the preparation of the hearing transcript.
Signed and filed this ____ day of June, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Page 3
Copies To:
Mr. Stephen D. Lombardi
Attorney at Law
10101 University Ave., Suite 202
Des Moines, IA 50325
Mr. Robert D. Wilson
Assistant Attorney General
Department of Justice - Tort Claims
Hoover State Office Building
Des Moines, IA 50319
Filed June 30, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LISA L. STRAIT,
Claimant,
vs.
File Nos. 955692, 1013367
WOODWARD STATE HOSPITAL-
SCHOOL,
A P P E A L
Employer,
D E C I S I O N
and
STATE OF IOWA,
Insurance Carrier,
Defendants.
___________________________________________________________
Summary affirmance of the deputy's decision with short
additional analysis.
In the additional analysis, defendants' defense of
horseplay was also analyzed under the standard Professor
Larson sets forth in Workmen's Compensation Law, section 23,
without a change in the result.