BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JUDITH A. WILLIAMS, :
:
Claimant, :
:
vs. :
: File No. 964444
UNITED PARCEL SERVICE, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE :
COMPANY, :
:
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.
ISSUE
The issue on appeal is:
Whether the deputy industrial commissioner erred in
finding that claimant's industrial disability was only
20%.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed January 5, 1994 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. Segments designated by brackets ([ ]) indicate
language that is in addition to the language of the proposed
agency decision.
Judith A. Williams, 45 years of age at hearing, attended
school only through the tenth grade, but was awarded a GED
diploma in 1979. She also has taken community college level
courses in accounting, typing, and psychology.
Ms. Williams' work history includes experience as a waitress
or carhop, work in a butcher shop, motel housekeeper, factory
worker, receptionist, and as a clerk and loader for defendant
United Parcel Service, a national package delivery enterprise.
Claimant worked for United Parcel Service (UPS) from March 1981
until February 1992. Subsequently, claimant has held a part-time
clerical position (payroll and record keeping) for a trucking
Page 2
concern.
Claimant worked as a permanent part-time employee. She
performed many clerical and miscellaneous tasks for UPS until
July 30, 1990, when she accepted a position as loader. All jobs
at UPS require the ability to lift in excess of 70 pounds.
Claimant was injured on September 19, 1990, when some
parcels fell on her left shoulder while she was loading a truck.
She eventually underwent arthroscopic surgery to her
(non-dominant) left shoulder on February 15, 1991. The treating
surgeon, Mitchell H. Paul, D.O., reached a postoperative
diagnosis of detached anterior labrum, normal rotator cuff, some
nonspecific synovitis about the insertion of the biceps tendon;
and, subacromial impingement syndrome with chronic subacromial
bursitis.
Dr. Paul eventually imposed permanent lifting restrictions
of 35 pounds frequently and 70 pounds occasionally. Based on
instability of the shoulder, Dr. Paul rated impairment at ten
percent of the upper extremity or five percent of the whole
person.
UPS was unable to accommodate these restrictions and
permanently discharged claimant effective July 15, 1992.
Since then, claimant has [conducted an extensive job
search], shown good motivation in returning to work and is
currently employed in a part-time clerical position with a
trucking company, but at a much lower wage ($5.00 per hour versus
$12.61 per hour with fringe benefits). Claimant worked 20-25
hours per week with UPS, and perhaps 10-20 at her current
job.*****[Claimant's employment with UPS was located in
Burlington, Iowa, a commute of 58 miles (one way) from her home.
Due to the commuting distance and costs associated therewith,
claimant will no longer accept employment in Burlington unless it
pays as much as she was earning per week at UPS.]
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed January 5, 1994 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. Segments designated by brackets ([ ]) indicate
language that is in addition to the language of the proposed
agency decision.
The parties dispute the nature of claimant's permanent
disability, whether it be to the arm or to the body as a whole.
It is clear from Dr. Paul's records that impairment in this case
is to the shoulder, not the arm. Accordingly, the injury is to
the body as whole and must be compensated industrially, Lauhoff
Grain Co. v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Pearson v.
Firestone Tire & Rubber Co., (Appeal Decision, August 31, 1993).
Since claimant has an impairment to the body as a whole, an
industrial disability has been sustained. Industrial disability
Page 3
was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258
N.W.2d 899 (1935) as follows: "It is therefore plain that the
legislature intended the term 'disability' to mean 'industrial
disability' or loss of earning capacity and not a mere
'functional disability' to be computed in the terms of
percentages of the total physical and mental ability of a normal
man."
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to the
injured employee's age, education, qualifications, experience,
motivation, loss of earnings, severity and situs of the injury,
work restrictions, inability to engage in employment for which
the employee is fitted and the employer's offer of work or
failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa
1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288
N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa
285, 110 N.W.2d 660 (1961).
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.
Claimant's age, intelligence and work experience suit her
for retraining.*****[Her medical restriction is not severe and
the impairment rating is low.] Indeed, of all the jobs claimant
has ever held, the only one which is now barred by her medical
restriction is the work at UPS.*****
*****[On the other hand], claimant does have a [very]
substantial loss of actual earnings.*****The inability of UPS to
keep claimant employed is itself indicative of industrial
disability. [Claimant's very substantial loss of actual earnings
coupled with the employer's failure to offer work to the claimant
causes the industrial commissioner to conclude the claimant has
sustained industrial disability beyond the 20 percent found by
the deputy.
Claimant's unwillingness to accept employment in Burlington
at less than her pre-injury weekly earnings does not diminish the
extent of her industrial disability. The claimant was simply
placing a reasonable restriction on her employability due to the
commuting distance from her home and costs associated therewith.
Such a reasonable restriction does not act to diminish the extent
of claimant's industrial disability.]
Considering then all of these factors in specific and the
record otherwise in general, it is held that claimant has
sustained a permanent industrial disability equivalent to 35
percent of the body as a whole, or 175 weeks.
WHEREFORE, the decision of the deputy is affirmed and modified.
ORDER
THEREFORE, it is ordered:
That defendants shall pay claimant one hundred seventy-five
(175) weeks of permanent partial disability at the stipulated
Page 4
rate of one hundred eighty-five and 54/100 dollars ($185.54)
commencing February 3, 1992.
That any accrued benefits shall be paid in a lump sum
together with statutory interest.
That costs of this action are assessed to defendants.
Signed and filed this ____ day of May, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr Patrick L Woodward
Attorney at Law
321 N Third Street
Burlington Iowa 52601
Mr Greg A Egbers
Attorney at Law
600 Union Arcade Building
111 East Third Street
Davenport Iowa 52801-1596
5-1803.1
Filed May 23, 1994
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JUDITH A. WILLIAMS, :
:
Claimant, :
:
vs. :
: File No. 964444
UNITED PARCEL SERVICE, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803.1
Shoulder injury was compensated industrially.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JUDITH A. WILLIAMS, :
:
Claimant, :
:
vs. :
: File No. 964444
UNITED PARCEL SERVICE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a contested case proceeding upon a petition in
arbitration filed by claimant Judith A. Williams against her
former employer, United Parcel Service, and its insurance
carrier, Liberty Mutual Insurance Company. Ms. Williams
sustained a work-related shoulder injury on September 19,
1990, and now seeks benefits under the Iowa Workers'
Compensation Act.
A hearing was accordingly held in Burlington, Iowa on
August 24, 1993. The record consists of claimant's exhibit
1, defendants' exhibit A-G and the testimony of claimant and
Deb Johnston, a rehabilitation specialist.
ISSUES
The parties entered into the following stipulations:
1. Claimant sustained injury arising out of
and in the course of employment on September
19, 1990;
2. The injury caused both temporary and
permanent disability;
3. Entitlement to healing period benefits
is no longer in dispute;
4. The commencement date for permanent
partial disability benefits is February 3,
1992;
5. The appropriate rate of weekly
compensation is $185.54;
Page 2
6. Entitlement to medical benefits is no
longer in dispute; and,
7. Defendants are entitled to credit for
benefits voluntarily paid prior to hearing.
Issues presented for resolution include:
1. Whether claimant's disability should be
compensated industrially or as a scheduled
member injury;
2. The extent of permanent disability.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
Judith A. Williams, 45 years of age at hearing,
attended school only through the tenth grade, but was
awarded a GED diploma in 1979. She also has taken community
college level courses in accounting, typing, and psychology.
Ms. Williams' work history includes experience as a
waitress or carhop, work in a butcher shop, motel
housekeeper, factory worker, receptionist, and as a clerk
and loader for defendant United Parcel Service, a national
package delivery enterprise. Claimant worked for United
Parcel Service (UPS) from March 1981 until February 1992.
Subsequently, claimant has held a part-time clerical
position (payroll and record keeping) for a trucking
concern.
Claimant worked as a permanent part-time employee. She
performed many clerical and miscellaneous tasks for UPS
until July 30, 1990, when she accepted a position as loader.
All jobs at UPS require the ability to lift in excess of 70
pounds.
Claimant was injured on September 19, 1990, when some
parcels fell on her left shoulder while she was loading a
truck. She eventually underwent arthroscopic surgery to her
(non-dominant) left shoulder on February 15, 1991. The
treating surgeon, Mitchell H. Paul, D.O., reached a
postoperative diagnosis of detached anterior labrum, normal
rotator cuff, some nonspecific synovitis about the insertion
of the biceps tendon; and, subacromial impingement syndrome
with chronic subacromial bursitis.
Dr. Paul eventually imposed permanent lifting
restrictions of 35 pounds frequently and 70 pounds
occasionally. Based on instability of the shoulder, Dr.
Paul rated impairment at ten percent of the upper extremity
or five percent of the whole person.
Unfortunately, UPS was unable to accommodate these
restrictions and permanently discharged claimant affective
July 15, 1992.
Page 3
Since then, claimant has shown good motivation in
returning to work and is currently employed in a part-time
clerical position with a trucking company, but at a much
lower wage ($5.00 per hour versus $12.61 per hour with
fringe benefits). Claimant worked 20-25 hours per week with
UPS, and perhaps 10-20 at her current job. However,
claimant will no longer accept work in Burlington, where she
worked pre-injury.
REASONING AND CONCLUSIONS OF LAW
The parties dispute the nature of claimant's permanent
disability, whether it be to the arm or to the body as a
whole. It is clear from Dr. Paul's records that impairment
in this case is to the shoulder, not the arm. Accordingly,
the injury is to the body as whole and must be compensated
industrially, Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834
(Iowa 1986); Pearson v. Firestone Tire & Rubber Co., (Appeal
Decision, August 31, 1993).
Since claimant has an impairment to the body as a
whole, an industrial disability has been sustained.
Industrial disability was defined in Diederich v. Tri-City
Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It
is therefore plain that the legislature intended the term
'disability' to mean 'industrial disability' or loss of
earning capacity and not a mere 'functional disability' to
be computed in the terms of percentages of the total
physical and mental ability of a normal man."
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications,
experience, motivation, loss of earnings, severity and situs
of the injury, work restrictions, inability to engage in
employment for which the employee is fitted and the
employer's offer of work or failure to so offer. Olson v.
Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963);
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980);
Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660
(1961).
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.
Claimant's age, intelligence and work experience suit
her for retraining and suitable employment in the medium job
category in any number of semi-skilled positions. Indeed,
of all the jobs claimant has ever held, the only one which
is now barred by her medical restriction is the work at UPS.
Unfortunately, UPS pays better wages in the Burlington area
than most comparable jobs. And, while claimant is now
earning much less per hour, and for fewer hours, this may
well be in part due to her current refusal to consider work
in the Burlington area.
Nonetheless, claimant does have a substantial loss of
Page 4
actual earnings and substantial loss in earning capacity.
The inability of UPS to keep claimant employed is itself
indicative of industrial disability.
Considering then these factors in specific and the
record otherwise in general, it is held that claimant has
sustained a permanent industrial disability equivalent to
twenty percent of the body as a whole, or 100 weeks.
ORDER
THEREFORE, IT IS ORDERED:
Defendants shall pay claimant one hundred (100) weeks
of permanent partial disability at the stipulated rate of
one hundred eighty-five and 54/100 dollars ($185.54)
commencing February 3, 1992.
Any accrued benefits shall be paid in a lump sum
together with statutory interest.
Costs of this action are assessed to defendants.
Signed and filed this ____ day of January, 1994.
________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Patrick L Woodward
Attorney at Law
321 N Third Street
Burlington Iowa 52601
Mr Greg A Egbers
Attorney at Law
600 Union Arcade Building
111 East Third Street
Davenport Iowa 52801-1596
5-1803.1
Filed January 5, 1994
DAVID R. RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JUDITH A. WILLIAMS, :
:
Claimant, :
:
vs. :
: File No. 964444
UNITED PARCEL SERVICE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803.1
Shoulder injury was compensated industrially.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
GARY LUNDEEN,
Claimant,
vs.
File No. 964602
IOWA NATURAL CASING,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
THE TRAVELERS INSURANCE,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by the claimant,
Gary Lundeen, against his employer, Iowa Natural Casing, and
its insurance carrier, The Travelers Insurance Company, to
recover benefits under the Iowa Workers' Compensation Act,
as a result of an injury sustained on September 7, 1990.
This matter came on for hearing before the undersigned
deputy industrial commissioner in Sioux City, Iowa on July
27, 1993. A first report of injury has been filed. The
record consists of the testimony of claimant and of joint
exhibits 1 through 18.
ISSUES
Pursuant to the hearing report and the oral
stipulations of the parties at hearing, the parties have
agreed to the following:
(1) An employer-employee relationship existed between
claimant and Iowa Natural Casing on the date of injury;
(2) Claimant did receive an injury arising out of and in
the course of his employment on September 7, 1990;
(3) A causal relationship exists between claimant's work
injury and a healing period or temporary total disability
for which claimant has been paid all weekly benefits due;
(4) Claimant was paid temporary partial disability benefits
for a period from November 28, 1990 through December 3,
1990, in the amount of $129.38 representing all temporary
partial disability benefits due claimant;
(5) The commencement date for any permanent partial
disability due claimant is September 17, 1991;
(6) Claimant was married and entitled to three exemptions
and had a gross weekly wage of $361.40 on his injury date
resulting in a weekly rate of compensation of $235.07; and
(7) Claimant has been paid weekly benefits, apparently
Page 2
temporary total disability, of $5,381.86 to which defendants
are entitled to a credit.
Issues remaining for resolution are:
(1) Whether a causal relationship exists between the injury
and claimed disability; and
(2) The extent of claimant's permanent partial disability
benefit entitlement, if any.
FINDINGS OF FACT
The deputy, having heard the testimony and considered the
evidence, finds:
Claimant is a 51-year old high school graduate. Claimant is
now employed and was employed on the date of injury at Iowa
Natural Casing, apparently a subsidiary of the Rumsom
Corporation. Iowa Natural Casing operates under a contract
in the John Morrell hog processing plant. Iowa Natural
Casing's employees collect hog casings for medicinal use.
Claimant has substantial prior work experience in the
packinghouse industry. He has also worked as a
cabinetmaker's apprentice, a job which involved a
significant amount of sanding and gluing and has worked as a
cement finisher pouring and finishing concrete, a job he
characterized as very heavy manual labor. Additionally,
claimant was self-employed for approximately 18 years in his
own building and grounds maintenance business. There,
claimant performed minor repairs, did interior cleaning, and
lawn service and snow removal work. He also supervised
several employees. Claimant discontinued this business for
economic reasons and began work with Iowa Natural Casing in
December 1988.
Claimant initially experienced left shoulder pain while
assisting his supervisor in carrying a large roll of plastic
bags down some steps. Claimant reported that substantial
time passed between that incident and his seeing Bryce A.
Robison, M.D., a family practitioner, who treated claimant
initially on September 10, 1990. Dr. Robison diagnosed
claimant as having left shoulder and right elbow tendonitis
and costochondritis. On September 27, 1990, Robison
reported the costochondritis had resolved.
Doug Meidema, D.O., saw Claimant on September 12, 1990 and
diagnosed overuse syndrome with tendonitis.
Dr. Robison referred claimant to Alan Pechacek, M.D., an
orthopedic surgeon, who apparently initially saw claimant on
October 12, 1990. Dr. Pechacek agreed with claimant's prior
diagnosis. He noted that claimant did not really complaint
of neck pain, soreness or stiffness although claimant had
occasional discomfort in the interscapular region. Claimant
had no cervical tenderness or pain on motion and had full
neck range of motion. On October 29, 1990, Dr. Pechacek
indicated that claimant was unable to return to either light
duty work or restricted work and suggested that were
claimant to seek alternate work, that work should be light
manual activity with claimant avoiding moderate to heavy
lifting, carrying, pushing, or pulling on a repetitive
basis. On November 27, 1990, Dr. Pechacek released claimant
Page 3
to return to full duty work although initially for only four
hours a day with return to full time work as tolerated. On
December 11, 1990, Dr. Pechacek reported claimant had
returned to his regular job and suggested that as long as
claimant was able to the job without problems claimant
should be left in that situation. Claimant continued to
treat with Dr. Pechacek through May 20, 1991. On that date,
Dr. Pechacek noted his impression of rotator cuff tendonitis
and impingement of the left shoulder and medial and lateral
epicondylitis or extensor flexor tendonitis of the right
elbow. Dr. Pechacek opined that both conditions either
resulted from or were aggravated by repetitive motion
required in claimant's work. Dr. Pechacek indicated that
claimant was able to modify his work so as to minimize
symptoms and again stated that claimant should continue
claimant's job as long as claimant was able to do so. Dr.
Pechacek advised that claimant had no further need for
orthopedic follow-up. On April 22, 1991, Dr. Pechacek had
stated that a large part of claimant's problem resulted from
his work activity of repetitive motion, gripping, squeezing,
pushing, and pulling. He stated that claimant may
eventually need to consider changing to a job not involving
repetitive motion.
John D. Kuhnlein, D.O., medical director of the Center for
Occupational Health, initially examined claimant on November
8, 1990. Claimant then had full range of motion of the left
[upper] extremity. Sensation was intact and claimant had
5/5 muscle strength in all shoulder muscle groups tested.
Claimant had mild pain in the right elbow with forced
flexion and extension and also had full range of motion in
the right elbow as well as 5/5 muscle strength for the
forearm flexors and extensors. Claimant underwent
functional capacity evaluation on November 15, 1990. Dr.
Kuhnlein reported claimant had poor endurance with fair body
mechanics for lifting, pushing and pulling with the upper
extremities. Dr. Kuhnlein recommended that claimant
participate in a work hardening program. Claimant did
participate in that program and also underwent physical
therapy on various occasions. Despite this, claimant's
symptoms remain static.
Dr. Kuhnlein reexamined claimant on August 2, 1991. He
indicated claimant was at maximum medical improvement and
could return to work with restrictions of not working above
shoulder or below waist and of not pushing, pulling, or
lifting greater than ten pounds. On approximately September
3, 1991, Dr. Kuhnlein opined that claimant had no permanent
partial impairment of either the left shoulder or the right
elbow under the AMA Guides, Third Edition, Revised. In a
medical report of November 19, 1991, Dr. Kuhnlein stated
that one reason for the restrictions Dr. Kuhnlein advised
for claimant was to permit claimant to work comfortably and
to prevent further injury. He noted that since the work
hardening program had not changed claimant's symptomatology,
some limitations [on claimant's activity] were necessary to
Page 4
prevent claimant from sustaining further work injury.
Apparently, claimant was off work on account of his injury
in Summer 1991. Claimant was then on layoff from Iowa
Natural Casing for another period. Claimant was not
recalled to Iowa Natural Casing in order of seniority on
account of his restrictions.
Claimant sought further evaluation with Timothy C.
Fitzgibbons, M.D., an orthopedic surgeon, who performed an
independent evaluation on November 20, 1991. Dr.
Fitzgibbons' findings were similar to that of Drs. Robison,
Kuhnlein, and Pechacek. Dr. Fitzgibbons' impressions were
of probable post-traumatic cervical strain with referred or
radicular pain to the left upper extremity; probable
secondary left shoulder impingement pain; and chronic right
medical epicondylitis. Fitzgibbons opined that claimant's
work [with Iowa Natural Casing] from December 1988 through
July 1991 had caused claimant's symptoms. Dr. Fitzgibbons
opined that claimant had a permanent partial impairment of 5
percent to the body as a whole on account of the cervical
strain and referred left upper extremity and left shoulder
impingement pain and 2 percent impairment of the right upper
extremity on account of the elbow condition. Dr.
Fitzgibbons opined that he would "absolutely" not restrict
claimant and would let claimant do what claimant's pain
allowed since returning to his former job with Iowa Natural
Casing would not do claimant irreparable damage.
Subsequent to Dr. Fitzgibbons' report, claimant successfully
grieved Natural Casing's failure to return him to work and
return to work without restrictions. Prior to returning to
work with Iowa Natural Casing, claimant had worked for
approximately five to eight weeks at the John Morrell
packing plant cutting thyroid glands. He stated that this
was a straight knife job where he used his right hand.
Claimant did not advise John Morrell of any restrictions
stating he did not do so since he was operating under Dr.
Fitzgibbons' opinion that he could work without
restrictions. Claimant subjectively felt he worked harder
than his John Morrell co-employees whom claimant
characterized as visiting too much.
At defendants' request, Michael T. O'Neil, M.D., an
orthopedic surgeon, examined claimant on or about June 17,
1992. Dr. O'Neil agreed that claimant had sustained a left
shoulder injury on account of his work incident and stated
that claimant's history was compatible with aggravation of
mild degenerative changes found in the AC joint. He also
stated that claimant might have mild impingement syndrome
although that could not be clinically substantiated. He
stated that claimant had mild right elbow recurring medial
and lateral humeral epicondylitis resulting from his normal
work activities. O'Neil opined that claimant could return
to work without restrictions and would be able to tolerate
his work activities without aggravation of either the
shoulder or elbow complaints. Dr. O'Neil did not assign
permanent partial impairment ratings for either claimant's
Page 5
shoulder or elbow.
As recited above, claimant's treating and examining
physicians offer differing opinions as to whether claimant
needs work restrictions and as to whether claimant has any
permanent partial impairment. Sufficient evidence exists in
the record as a whole relative to physicians' belief that
claimant should have restrictions on account of his
continuing symptomatology and relative to physicians' belief
that claimant has permanent bodily impairment on account of
his conditions to establish that claimant does have some
permanent loss of use of his left shoulder and right elbow
function is a result of his work-related activities. [We
have weighed claimant's need to establish an ability to
return to work without restrictions in light of claimant's
employers refusal to permit claimant to return to work with
restrictions. Claimant reports continuing symptomatology on
his job. The symptomatology claimant now reports is consist
with the symptomatology claimant was reporting to Dr.
Pechacek and Dr. Kuhnlein in 1991. Given that, it is
reasonable to presuppose that but for the economic necessity
of remaining employed, claimant would be working under
restrictions Dr. Kuhnlein imposed in fall 1991].
Claimant works at a waist high table where a moving belt
brings casings to claimant's work station. Claimant must
remove the casings from the table, hang the casings on hooks
and cut them. Claimant acknowledged that both hand are
"somewhat" required to do this job. Casings weigh 12 to 20
pounds and a worker cuts 100 to 115 casings per hour on
average with a maximum of 140 casings per hour.
Claimant currently earns $9 per hour. He was earning $8.25
per hour on September 9, 1990. Claimant expressed concern
as to his continued ability to do his job and expressed
concerns as to whether his job would be available should the
John Morrell packinghouse close. Claimant reported that he
has difficulties in hanging pictures, climbing ladders,
combing his hair, and in drying his back, all of which
involve reaching or extension. Claimant reported that he
cannot do heavy lifting for any extended period and
expressed doubts as to his ability to now do construction
work or the majority of packinghouse jobs. Claimant
acknowledged that he still does his own yard work albeit
with some modifications. Claimant acknowledged that he had
taken a two month leave of absence from work in order to
build a house in Colorado.
CONCLUSIONS OF LAW
Our first concern is whether claimant has established a
causal relationship between his work injury and any
permanent disability.
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
Page 6
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
As noted in the above findings, the opinions of the
physicians and the other evidence in the record when
considered as a whole present sufficient credible evidence
to establish taut claimant has some permanent loss of
function relative to both the left shoulder and the right
elbow on account of his work injury.
We next consider the nature and extent of claimant's
permanent partial disability. In that claimant's permanent
partial disability is a disability to the left shoulder and
a disability to the right elbow both resulting from a single
date of injury, we must decide whether claimant's injury is
to be compensated under section 85.34(2)(s) or section
85.34(2)(u).
When disability is found in the shoulder, a body as a
whole situation may exist. Alm v. Morris Barick Cattle Co.,
240 Iowa 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar
Mayer & Co., II Iowa Industrial Commissioner Report 281
(App. 1982), a torn rotator cuff was found to cause
disability to the body as a whole.
In Prewitt v. Firestone Tire and Rubber, (Appeal Decn.,
August 12, 1992) the commissioner relied upon a treating
physician's opinion that a surgical decompression of the
right shoulder resulted in impairment only to the arm,
notwithstanding that the procedure included excision of the
distal clavicle in the shoulder. Prewitt, however,
emphasized that it is the anatomical situs of the permanent
injury or impairment which determines whether the injury
should be compensated industrially or under the schedule.
Claimant's residual disability is in the shoulder and not
the arm. Claimant's symptoms involve the shoulder as a part
of the trunk of the body and are such that Dr. Fitzgibbons
has even characterized the symptoms as creating a cervical
and not a left shoulder problem. Given such, claimant's
shoulder condition results in the body as a whole injury.
Under that circumstance, claimant's injury as a whole, that
is, claimant's injury involving both the left shoulder and
the right elbow is properly assessed as a body as a whole
injury.
Page 7
Dr. Fitzgibbons has opined that claimant has a 5 percent
body as a whole permanent partial impairment on account of
the symptoms generally characterized as related to the left
shoulder and a 2 percent permanent partial impairment of the
right elbow on account of the right elbow symptoms. Under
the AMA Guides, 2 percent of the upper extremity converts to
a 1 percent body as a whole impairment. Under the combined
values charts of the AMA Guides a 5 percent and a 1 percent
body as a whole impairment results in a total body as a
whole impairment of 6 percent. That overall body as a whole
impairment rating is consistent with claimant's reported
symptomatology and with the restrictions other physicians
have imposed. Both the restrictions and the impairment
rating suggest that claimant has mild permanent loss of use
relative to the body as a whole on account of his work-
related condition. As longnoted, functional impairment is
an element to be considered in determining industrial
disability which is the reduction of earning capacity
assessed under section 85.34(2)(u). Consideration must also
be given to an injured employee's age, education,
qualifications, experience, motivation, loss of earnings,
the severity and situs of the injury, work restrictions,
inability to engage in employment for which the employee is
fitted and the employer's offer of work or failure to so
offer work. Olson v. Goodyear Service Stores, 255 Iowa
1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co.,
288 N.W.2d 181, 192 (Iowa 1980); Barton v. Nevada Poulty
Co., 253 Iowa 285, 110 N.W.2d 660 (1961).
Claimant has returned to work performing the same duties as
he performed prior to the injury. He experiences symptoms
in performing those duties although he is not likely to
suffer irreparable damage from performing those duties.
Claimant's symptoms are such that claimant might well be
precluded from doing a number of the heavy manual labor jobs
in either construction or packinghouse work for which he has
prior work experience. Claimant has continuing
qualifications in building and ground maintenance and as a
small business operator who had supervised his own
employees, however. Hence, while claimant remains employed
with the employer claimant has suffered some loss of job
market access which loss results in a reduction of earnings
capacity. That loss of job market access and the
subsequent reduction in earnings capacity is, of course,
substantially less than would be claimant's loss of earnings
capacity had claimant been unable to return to work with his
employer under any circumstances and were claimant qualified
for heavy manual work only. Fortunately, claimant has
currently returned to work with the employer and has some
entrepreneurial and managerial skills. These factors
substantially reduce claimant's loss of earnings capacity.
Claimant is found to have sustained an industrial disability
of 5 percent of the body as a whole.
ORDER
THEREFORE, IT IS ORDERED:
Page 8
Defendants pay claimant permanent partial disability
benefits for twenty-five (25) weeks at the rate of two
hundred thirty-five and 07/100 dollars ($235.07) with those
payments to commence on September 17, 1991.
Defendants pay accrued amounts in a lump sum and pay
interest pursuant to section 85.30.
Defendants pay costs pursuant to rule 343 IAC 4.33.
Defendants file claim activity reports as ordered by the
agency.
Signed and filed this ____ day of August, 1993.
______________________________
HELENJEAN M. WALLESER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Al Strugeon
Attorney at Law
Suite 314, Terra Centre
P.O. Box 5311
Sioux City, IA 51102
Mr. Thomas Plaza
Attorney at Law
701 Pierce Street
P.O. Box 3086
Sioux City, IA 51102
1803; 1803.1; 1808
Filed August 24, 1993
Helenjean M. Walleser
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
GARY LUNDEEN,
Claimant,
vs.
File No. 964602
IOWA NATURAL CASING,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
THE TRAVELERS INSURANCE,
Insurance Carrier,
Defendants.
___________________________________________________________
1803; 1803.1; 1808
Claimant found to have an industrial loss where
claimant sustained injury to his left shoulder and right
elbow in a specific work incident and through repetitive
work. Situs and symptoms relative to the left shoulder
condition were such that the left shoulder injury resulted
in a body as a whole condition. Therefore, extent of
disability was properly determined under section 85.34(2)(u)
and not section 85.34(2)(s). An evaluating physician
declined to issue impairment ratings but did impose work
restrictions. Two subsequent evaluating physicians
indicated claimant could return to work without
restrictions. One of these physicians opined that claimant
had a 5 percent body as a whole impairment relative to the
left shoulder condition and a 2 percent right upper
extremity impairment relative to the right elbow condition.
Claimant's treating orthopedic surgeon had permitted
claimant to return to work to tolerance. Claimant
subsequently was off work on account of his condition and
then underwent layoff. The employer refused to recall
claimant on a seniority basis. Claimant grieved the failure
to recall arguing he lacked restrictions and could work to
tolerance. Claimant then was returned to work. While
neither the permanency rating or the restrictions were
accepted of themselves as determinative, both the
assignation of a permanent impairment rating and the
assignation of work restrictions when considered together
were sufficient to establish a mild body as a whole loss of
Page 2
physical function on account of the work condition.
Claimant awarded 5 percent permanent partial industrial
disability benefits.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
THERESA HEDRICK,
Claimant,
vs.
File No. 964921
EAGLE FOOD CENTERS,
A P P E A L
Employer,
D E C I S I O N
and
ST. PAUL INSURANCE COMPANIES,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
August 6, 1993 is affirmed and is adopted as the final agency
action in this case.
That claimant and defendants shall share equally the costs of the
appeal including transcription of the hearing.
Signed and filed this ____ day of March, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Francis J. Lange
Attorney at Law
P.O. Box 1811
Dubuque, Iowa 52004-1811
Mr. Greg A. Egbers
Attorney at Law
600 Union Arcade Bldg.
111 East Third St.
Davenport, Iowa 52801-1596
5-1801; 5-2500
Filed March 17, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
THERESA HEDRICK,
Claimant,
vs.
File No. 964921
EAGLE FOOD CENTERS,
A P P E A L
Employer,
D E C I S I O N
and
ST. PAUL INSURANCE COMPANIES,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1801
Claimant proved entitlement to 16.429 weeks of temporary
total disability benefits due to a flare-up of back pain
from a preexisting back injury.
5-2500
Pursuant to Iowa Code section 85.27, claimant is entitled to
reasonable and necessary medical expenses and transportation
expenses incurred during the course of treatment for her
work-related injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
THERESA HEDRICK,
Claimant,
vs.
File No. 964921
EAGLE FOOD CENTERS,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
ST. PAUL INSURANCE
COMPANIES,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Theresa
Hedrick, claimant, against Eagle Food Centers, employer, and
St. Paul Insurance Companies, insurance carrier, defendants,
to recover benefits under the Iowa Workers' Compensation Act
as a result of an injury sustained on October 17, 1990.
This matter came on for hearing before the undersigned
deputy industrial commissioner on July 23, 1993, in Dubuque,
Iowa. The record was considered fully submitted at the
close of the hearing. The claimant was present and
testified. Also present and testifying was William Hedrick.
The documentary evidence identified in the record consists
of joint exhibits A-Z (minus B, G, J, K, L, N).
ISSUES
Pursuant to the prehearing report and order dated July
23, 1993, the parties have presented the following issues
for resolution:
1. Whether claimant sustained an injury on October 17,
1990 which arose out of and in the course of employment with
employer;
2. Whether the alleged injury is a cause of temporary
disability during a period of recovery;
3. Whether the alleged injury is a cause of permanent
disability and if so, the extent thereof; and
4. Whether claimant is entitled to medical benefits
under Iowa Code section 85.27.
FINDINGS OF FACT
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
Page 2
findings:
Claimant was born on September 6, 1957 and completed
the 12th garde of school. She has been a part-time student
at Northeast Iowa Community College since May 17, 1993.
Claimant commenced working for employer as a cashier on
August 29, 1973. She was off work from October 18, 1990
through February 9, 1991 due to a back injury. She returned
to her usual and customary job with employer on February 10,
1991. She works four days per week (Tuesday, Thursday,
Friday and Saturday) for five hours a day.
Claimant's medical history includes surgery on August
6, 1988 to remove a ruptured disc at L5-S1. This was
performed at Mercy Health Center in Dubuque, Iowa by David
S. Field, M.D.. Claimant testified that in July 1988, while
swimming, she did a back flip in the water and experienced
acute pain in her low back. She subsequently developed pain
and tingling down her left leg. A myelogram and CAT scan
revealed an obvious defect at L5-S1 on the left (Exhibit E).
According to Dr. Field, who testified in a deposition
on October 30, 1990, claimant's post-operative course was
generally satisfactory but not excellent because she still
had some neuritic components to her leg pain. Dr. Field
released claimant to return to work on November 7, 1988. He
placed no restrictions on her work activities at this time
(Ex. M, pp. 1-10).
Claimant developed a flare-up of her sciatica on April
27, 1989. She was seen by Dr. Field on May 1, 1989 and was
taken off work and assigned to participate in physical
therapy. She was returned to work on November 1, 1989, with
a suggested 15 to 20 pound lifting restriction (Ex. M, pp.
11-20).
Dr. Field testified that he saw claimant on June 11,
1990 for an impairment evaluation. Based upon surgical
excision of a disc, no spinal fusion, a moderate degree of
persistent pain and neuritic symptoms in the leg, Dr. Field
gave claimant a 15 percent permanent impairment rating.
This impairment rating was unrelated to any alleged
aggravation or work activity beginning in April of 1989 (Ex.
F, pp. 107-111 & Ex. M, pp. 26-33).
Claimant testified that while at work on October 17,
1990, she felt a sudden onset of sharp pain in her lower
back which radiated into her left hip. She reported the
incident to the office manager and another worker who
finished out her shift. She immediately sought medical
attention from Dr. Field but he was not available. She was
referred to Thomas J. Hughes but he was also unavailable.
However, she did see Craig C. Schultz, M.D.. He diagnosed
chronic low back pain syndrome associated with sciatica and
acute lumbosacral strain. She was taken off work and
advised to see Dr. Hughes (Ex. F, p. 49).
Claimant saw Dr. Hughes on October 22, 1990. On
examination he diagnosed low back pain with probable left
lateral shift. He prescribed Flexeril and Motrin and
Page 3
advised that she remain off work. A return visit on October
26, 1990 revealed negative straight leg raising but pain
into the left hip. Physical therapy was initiated (Ex. F,
p. 50).
A follow-up visit with Dr. Hughes on November 2, 1990
revealed that claimant's lateral shift was essentially gone.
She had very minimal positive straight leg raising on the
left and some pain into her hip and the posterior aspect of
her heel. She was advised to increase her physical exercise
with an active walking program and physical therapy. A
return visit on November 9, 1990 revealed that claimant was
doing extremely well except for some persistent pain in her
S1 region (Ex. F, p. 52).
Follow-up evaluations on November 16, 26 and December
10, 1990 revealed that claimant was receiving little benefit
from therapy. Therefore, an MRI was performed to determine
if there was an underlying disc contributing to her problem.
The test was essentially negative other than revealing some
nerve root scaring at L5-S1 and degenerative changes at
L4-5, L5-S1 (Ex. 5, p. 54).
On January 2, 1991, Dr. Hughes felt that claimant had
plateaued and a return to work was discussed but resisted by
claimant. She was fitted with a back support and encouraged
to increase her level of physical activity. A follow-up
examination on February 14, 1991 revealed that claimant had
made exceptional progress and there was very little else to
offer her. Dr. Hughes felt that claimant was seeking a
recommendation that she not return to work. He felt that
although her present job involved prolonged standing there
was also a certain amount of mobility and flexibility which
she should be able to handle. On January 28, 1991, Dr.
Hughes indicated that claimant had reached maximum medical
improvement (Ex. F, p. 55).
On February 5, 1991, Dr. Hughes indicated that claimant
could return to work on February 10, 1991. He imposed no
physical work limitations (Ex. F, p. 136).
Dr. Hughes testified in a deposition taken on February
19, 1992. In response to questions from claimant's
attorney, Dr. Hughes stated that, in his opinion, claimant
has a herniated lumbar disc between the fourth and fifth
lumbar vertebrae (Ex. T, p. 7). He based his opinion on
claimant's subjective complaints of pain and a negative
straight leg raising test (Ex. T, p. 8).
Dr. Hughes also testified that claimant's L4-L5 disc is
a new injury which emanated from her job activities. He
stated that he consulted the Guide to Evaluation of
Permanent Impairment, Third Edition, published by the
American Medical Association to evaluate claimant's
impairment. Using these guidelines, Dr. Hughes gave
claimant a 5 percent permanent impairment rating (Ex. T, pp.
8-10).
In response to cross-examination by defendants'
attorney, Dr. Hughes testified that the MRI examination
Page 4
performed on December 11, 1990 did not reveal a recurrent
disc problem (Ex. T, p. 13). Dr. Hughes admitted that
patients who have had lumbar disc surgery have occasional
flare-ups of their condition (Ex. T, p. 14).
Dr. Field testified in a deposition taken on September
22, 1992. Dr. Field is a Board Certified Orthopedic
Surgeon. In response to questions from defendants'
attorney, Dr. Field testified that based on x-ray and MRI
evidence taken on December 11, 1990, there is no clear
documentation of a new disc syndrome affecting the L4-5 disc
or the L5 nerve (Ex. U, p. 7). He further stated that the
clinical findings discussed by Dr. Hughes represent a degree
of irritation of the L1 nerve root. He opined that in order
to diagnose a disc herniation at L4-5, a specific study
including either a lumbar myelogram or CAT scan or
combination of the two or a MRI test is required. He
reported that "... the symptoms of pain in the leg do not
necessarily support a diagnosis of a specific disk unless
you have the studies to correlate that with." (Ex. U, p. 9,
lines 15-18).
Dr. Field explained in his deposition that when he
examined claimant on June 11, 1990, he gave her a 15 percent
impairment rating based on the fact that she had a large
ruptured disc, neurological deficits and neurological damage
to her nerve (Ex. U, p. 12).
Dr. Field testified that he disagreed with Dr. Hughes'
opinion that claimant has a ruptured disc at L4-5. Dr.
Field indicated that claimant never regained full recovery
of the neuritic component of her pain following the original
surgery and since subsequent studies do not confirm a new
disc syndrome the majority of her symptoms emanate from the
original L5-S1 level (Ex. U, pp. 21-22).
CONCLUSIONS OF LAW
The first issue to be determined is whether claimant
sustained an injury on October 17, 1990 arising out of and
in the course of employment with employer.
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
something which acts extraneously to the natural rforming her
duties as a cashier for employer, she experienced severe and
intractable back pain radiating into her hip and left leg.
She was unable to complete her work shift and immediately
sought medical attention. Dr. Hughes saw claimant on
October 22, 1990. He testified that her work activities
were a substantial factor in bringing about her symptoms
(Ex. T, pp. 8-9). Dr. Field testified on September 22,
1992, that the lateral shift reported by Dr. Hughes on
October 22, 1990 was a sign of a flaring up of back pain or
back syndrome and reflects spasm in the back (Ex. U, p. 18).
After carefully considering the total evidence in this
case, the undersigned concludes that on October 17, 1990,
claimant's preexisting back injury was materially aggravated
by her work activities. Therefore, claimant has met her
burden of proof.
Since claimant has suffered an injury, the next
question to be resolved is whether the injury has caused a
permanent disability. The claimant has the burden of
proving by a preponderance of the evidence that the injury
of October 17, 1990, is causally related to the disability
on which she now bases her claim. Bodish v. Fischer, Inc.,
133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18
N.W.2d 607, 613-14 (Iowa 1945). A possibility is
insufficient; a probability is necessary. Burt v. John
Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa
1955). The question of causal connection is essentially
within the domain of expert testimony. Bradshaw v. Iowa
Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert
medical evidence must be considered with all other evidence
Page 6
introduced bearing on the causal connection. Burt, 73
N.W.2d at 738. The opinion of the experts need not be
couched in definite, positive or unequivocal language.
Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).
Moreover, the expert opinion may be accepted or rejected, in
whole or in part, by the trier of fact. Sondag, 220 N.W.2d
at 907. Finally, the weight to be given to such an opinion
is for the finder of fact, and that may be affected by the
completeness of the premise given the expert and other
material circumstances. Bodish, 133 N.W.2d at 870;
Musselman, 154 N.W.2d at 133. The supreme court has also
observed that greater deference is ordinarily accorded
expert testimony where the opinion necessarily rests on
medical expertise. Sondag, 220 N.W.2d at 907.
Claimant was initially taken off work by Dr. Schultz on
October 18, 1990. Dr. Hughes saw her on October 22, 1990.
She related to him that she has had considerable episodes of
sciatica flare-up type pain in the past. Flexeril and
Motrin was prescribed and she was advised to remain off work
(Ex. F, p. 50). On January 2, 1991, Dr. Hughes indicated
that claimant had plateaued. A notation dated January 14,
1991 states that claimant had made very acceptable progress.
By January 28, 1991, Dr. Hughes felt that she had received
maximum benefit from conservative management (Ex. F, p. 55).
Dr. Hughes released her to return to work with no work
limitations effective February 10, 1991 (Ex. F, p. 136).
Claimant testified that she returned to her usual and
customary job with employer on February 10, 1991. She
stated that she works on Tuesday, Thursday, Friday and
Saturday, five hours per day. She has been attending
classes at Northeast Iowa Community College since May 17,
1993. On Monday and Wednesday she is in school from 2 p.m.
- 4 p.m. and 6 p.m. - 8 p.m.. On Thursday she works her
normal five hour day and attends class from 2 p.m. - 4 p.m..
Claimant testified that she is unable to work more than four
days a week, five hours per day because of her class
schedule. Claimant acknowledged that prior to enrolling in
school, she worked in excess of 20 hours per week and in
fact from August 2 through August 8, 1992 worked 31.9 hours
(Ex. P, p. 4). Claimant testified that she has some control
over the number of hours she works but has been a part-time
employee since 1976 (Ex. S, pp. 5-6).
The parties stipulate that claimant was off work from
October 18, 1990 through February 9, 1991. Claimant
returned to her usual job as a cashier with employer. She
was released to return to work without limitations or
restrictions. Claimant's part-time work status is
self-imposed. Claimant has received no active medical
treatment since being released to return to work by Dr.
Hughes. Claimant has subjective complaints of back pain
with radiation into the left hip and left leg. Although Dr.
Hughes gave claimant a 5 percent impairment rating, he
admitted that he based this on claimant's six month period
of subjective complaints (Ex. T, p. 9). Dr. Field felt that
this rating was more than generous in view of the fact that
the flare-up was minor and no surgery was offered or
Page 7
performed and no further treatment recommended (Ex. U, pp.
28-29).
After carefully considering the total evidence in this
case, the undersigned concludes that claimant has not
carried her burden to show that her flare-up of back pain
represents a permanent impairment. Her subjective
complaints of pain are insufficient to carry the causation
burden.
It is determined that claimant proved entitlement to
16.429 weeks of temporary total disability benefits from
October 18, 1990 through February 9, 1991.
Since claimant has shown that she sustained an injury
arising out of and in the course of employment with
employer, she is entitled to medical benefits and mileage
expenses incurred during the course of treatment for her
October 17, 1990 work injury. Iowa Code section 85.27.
ORDER
THEREFORE, IT IS ORDERED:
That defendants pay to claimant temporary total
disability benefits from October 18, 1990 through February
9, 1991 at the stipulated rate of one hundred sixty-six and
07/100 dollars ($166.07) per week.
That defendants pay all medical and mileage expenses
incurred by claimant for treatment of her October 17, 1990
work injury.
That defendants pay accrued amounts in a lump sum.
That defendants pay interest pursuant to Iowa Code
section 85.30.
That defendants pay costs pursuant to rule 343 IAC
4.33.
That defendants file claim activity reports as required
by the agency pursuant to rule 343 IAC 3.1(2).
Signed and filed this ____ day of August, 1993.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Francis J. Lange
Attorney at Law
P.O. Box 1811
Dubuque, IA 52004-1811
Page 8
Mr. Greg A. Egbers
Attorney at Law
600 Union Arcade Bldg.
111 East Third Street
Davenport, IA 52801-1596
5-1801, 5-2500
Filed August 6, 1993
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
THERESA HEDRICK,
Claimant,
vs.
File No. 964921
EAGLE FOOD CENTERS,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
ST. PAUL INSURANCE
COMPANIES,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1801
Claimant proved entitlement to 16.429 weeks of
temporary total disability benefits due to a flare-up of
back pain from a preexisting back injury.
5-2500
Pursuant to Iowa Code section 85.27, claimant is
entitled to reasonable and necessary medical expenses and
transportation expenses incurred during the course of
treatment for her work-related injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
HARRY BRANDT,
Claimant,
vs.
File No. 964929
IOWA POWER AND LIGHT,
(n/k/a MIDWEST POWER) A R B I T R A T I O N
Employer, D E C I S I O N
Self-Insured,
Defendant.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration brought by Harry
Brandt, claimant, against Iowa Power and Light, now known as
Midwest Power, employer and self-insured defendant for
benefits as a result of an injury which occurred on October
4, 1990. A hearing was held in Council Bluffs, Iowa on
October 20, 1992, and the case was fully submitted at the
close of the hearing. Claimant was represented by Sheldon
M. Gallner. Defendants were represented by Cecil L.
Goettsch. The record consists of the testimony of Harry
Brandt, claimant, Randy Williams, area supervisor, and joint
exhibits 1 through 16. Defendant's attorney submitted an
excellent statement of defendant's contentions at the time
of the hearing.
ISSUES
The parties submitted the following issues for
determination at the time of the hearing.
Whether the injury of October 4, 1990, was the cause of
permanent disability.
Whether claimant is entitled to permanent partial
disability benefits, and if so, the extent of benefits to
which he is entitled.
FINDINGS OF FACT
CAUSAL CONNECTION
It is determined that the injury of October 4, 1990,
was the cause of permanent impairment and disability.
Claimant injured his lumbar spine on October 4, 1990,
when the transmission of the truck that he was driving
locked up and jerked his lumbar spine one or more times.
Claimant was off work and received temporary disability
benefits from October 6, 1990 through November 25, 1990, and
defendants have also paid all of claimant's medical
expenses. Claimant was released to return to work by Dr.
Rassekh on November 26, 1990, without any restrictions noted
on the return to work slip (Ex. 1j).
Page 2
On November 20, 1990, Behrouz Rassekh, M.D., a
neurosurgeon, stated that claimant's symptoms apparently
occurred on October 4, 1990, when the transmission in his
truck locked and he was thrown forward several times
(Exhibit 1f). On March 8, 1991, Dr. Rassekh concluded "I do
believe this gentleman should be treated on the conservative
basis; however, in view of recurrent back pain and need of
muscle relaxants, I would estimate his partial permanent
disability at 5 percent as a whole body. He was also
advised it would be best for him not to perform heavy
lifting and repeated bending and stooping." (Ex. 1d)
Daniel J. McGuire, M.D., an orthopedic surgeon, stated
on August 26, 1991, that claimant had a long standing
spondylolisthesis at L5,S1 which has currently flared up and
has been causing claimant persistent symptoms since his
on-the-job injury in October of 1990. He added that this
pars defect is long standing but has been asymptomatic until
this injury (Ex. 3d). Dr. McGuire said, "I believe he has
aggravated a pre-existing condition." (Ex. 3e(3)). On
October 4, 1991, Dr. McGuire said that it may be appropriate
to place a few restrictions on him such as not lifting over
100 pounds on a repetitive basis (Ex. 3e(3)). Dr. McGuire
further stated that he believed that claimant's permanent
partial disability associated with this injury since it is a
pre-existing condition would probably be at the 5 percent
range (Ex. 3e(3) & (4)).
On January 15, 1992, Dr. Rassekh stated that claimant
did not have any functional disability with respect to his
cervical spondylosis (Ex. 1b). However, in this case
claimant is asserting a claim for permanent disability to
his lumbar spine. Dr. Rassehk on January 27, 1992, wrote
that he had re-examined claimant on January 25, 1992, and
reasserted a 5 percent permanent impairment rating. Dr.
Rassekh stated "In the light of the persistent pain and the
requirement of medication, I am revising my previous
statement of no partial permanent functional disability to a
5 percent partial permanent functional disability." (Ex. 1a)
Dr. Rassekh's last examination of claimant and last
statement of permanent impairment based upon that
examination is considered to be his final opinion and the
one that is the most correct.
Even though claimant has a full range of motion, a
normal straight leg raising test, has returned to work for
the same employer, and has not suffered any decrease in his
actual earnings, never-the-less, a 5 percent impairment
rating is found to be reasonable. The Guides to the
Evaluation of Permanent Impairment, Third Edition (Revised),
published by the American Medical Association, state at
Table 53, Impairments Due to Specific Disorders of the
Spine, Part II Intervertevral disc and other soft-tissue
lesions; Subparagraph B, on page 80, that a soft-tissue
lesion which is unoperated, but which has a medically
documented injury and a minimum of six months of medically
documented pain and rigidity with or without muscle spasm
associated with none-to-minimal degenerative changes on
Page 3
structural tests carries a permanent impairment value of 5
percent. Wherefore, it is determined that the injury of
October 4, 1990, was the cause of permanent impairment. It
is further determined that the injury was the cause of a 5
percent permanent impairment to the body as a whole. It is
further determined that claimant is restricted from heavy
lifting based on the recommendations of both Dr. Rassekh and
Dr. McGuire.
ENTITLEMENT
It is determined that claimant has sustained a 5
percent industrial disability to the body as a whole and
that claimant is entitled to 25 weeks of permanent partial
disability benefits.
Claimant is a 39-year employee of employer. He started
in 1953 as a laborer and subsequently worked as a truck
driver and a ground man, gas distribution man and gas
foreman, apprentice lineman, lineman and line foreman and as
an electric service man (Ex. 10). Claimant was previously
injured in 1975 when a double bucket broke and dropped him
40 feet to the ground (Ex. 8, p. 10) injuring his cervical
and lumbar spine (Ex. 15). Cemal M. Adli, M.D., determined
that claimant had sustained a 10 percent permanent
impairment, which appears to be to his lumbar spine, (Ex.
15) and employer voluntarily paid claimant 50 weeks of
permanent partial disability benefits based upon a 10
percent impairment to the body as a whole (Ex. 9, p. 18).
Eventually both claimant and employer recovered on a third
party claim.
In 1976 a truck in which claimant was riding overturned
and injured his right shoulder (Ex. 8, p. 10). As a result
of an arbitration proceeding claimant was awarded 15 percent
industrial disability to the body as a whole based upon a 35
percent permanent functional impairment rating to the right
upper extremity (Ex. 11).
In 1986 claimant stepped off of a tractor and broke his
ankle (Ex. 8, p. 11). It was determined at that time that
claimant had sustained a 10 percent impairment of the foot
which represented an 8 percent permanent impairment of the
leg. According to the Guides to the Evaluation of Permanent
Impairment, Third Edition Revised, Table 46, on page 72, 8
percent of the lower extremity converts to 3 percent of the
body as a whole.
Claimant testified that after each of these injuries he
returned to work and did not miss any time from work on
account of them. However, records of employer show that the
1976 roll over accident did aggravate his back injury in
addition to pulling his shoulder muscle, and he did lose
time from work. Employer's injury record also shows three
other back complaints but claimant's testimony is verified
by this injury report and shows that he did not lose any
time from work (1) when he had a wrenched back on September
27, 1978), (2) when he strained his lower back on November
20, 1981, and (3) when he reported a backache on June 1,
1983 (Ex. 9). Claimant further explained that these were
Page 4
minor incidents and the only reason they were reported is
because he has instructions from the employer to report all
work injuries of any kind that occur at anytime to employer.
Claimant further testified that after his 1975 back injury
he bought a weight machine pursuant to the doctor's
instructions, which he worked out on regularly which kept
his back in good condition.
The parties agreed that claimant did in fact have an
outstanding attendance record with employer and a minimal
amount of absences with the main exception being to keep
medical appointments.
Claimant admitted that he is still working for the same
employer. He acknowledged that he has not suffered any
reduction in actual pay or compensation. He further
admitted that he did not feel that his job was in jeopardy.
He also expressed his desire and intention to retire from
this employment in four more years at age 62, unless
employer should offer a voluntary early retirement program
before that time.
The fact that claimant at age 57 is at or near
retirement tends to reduce his industrial disability, as
does the lack of objective findings caused by this injury
and the fact that claimant feels that he has a secure
position with this employer.
Claimant's high school education neither enhances nor
reduces his industrial disability at age 57. Also due to
his age retraining appears not to be feasible or necessary.
Vocational rehabilitation is not a factor because employer
has continued to provide secure employment to claimant after
all of his injures.
The fact that claimant has been injured on previous
occasions and has either been voluntarily paid or awarded
permanent partial disability benefits based upon certain
permanent physical or functional impairment ratings in no
way reduces or restricts claimant's entitlement to
industrial disability at this time.
With the respect to the 1975 bucket drop back injury,
even though claimant was voluntarily paid 50 weeks of
permanent partial disability benefits by employer, there
never was any determination that claimant had sustained an
industrial disability as a result of that injury. With
respect to the truck rollover right shoulder injury, the
industrial disability award of the deputy industrial
commissioner in that case was entirely based upon a shoulder
injury and none of it was attributable to any aggravation of
claimant's back pain which initially occurred from the 1975
bucket drop back injury (Ex. 11). With respect to the 1986
step off of the tractor broken ankle injury, the impairment
rating in that case was to a scheduled member and there is
no evidence that any industrial disability was ever
ascertained, awarded or paid voluntarily or pursuant to a
settlement or an award (Ex. 16). Thus, it would not be
proper to apportion any part of claimant's current
industrial disability for this lumbar spine injury to any of
Page 5
claimant's prior injuries Bearce v. FMC Corporation, 465
N.W.2d 531 (Ia. App. 1991).
The Bearce case held that it was improper to apportion
a claimant's industrial disability to a previous injury
where there was no substantial evidence to support a finding
that the earlier injury independently produced some
ascertainable portion of the industrial disability being
awarded for the subsequent work related injury. In this
case we have prior injuries. Permanent impairment ratings
were determined. But there is no evidence that any of those
injuries independently produced any industrial disability
which is included in the award of industrial disability
being made at this time. Simply stated, even though
claimant has sustained prior injuries, and impairment
ratings were ascertained, no industrial disability for his
lumbar spine was ever determined pursuant to an award or
settlement or otherwise.
Justice Lavorato in the Bearce case cites Larson as
follows:
"Nothing is better established in compensation law
than the rrce, was able to do so because he had built up his
physical condition by the daily use of weights as
recommended by his physician. Brandt, like Bearce did
Page 6
everything that was expected of him in all of the jobs that
he performed after these injuries. Brandt, like Bearce
sought no further medical attention, met all work quotas,
lost no work and suffered no drop in pay. There is no
record evidence that Brandt sought any medical attention for
his lower back after the 1975 bucket drop injury. Likewise,
in the case of Brandt, like Bearce, there was no record
evidence that Brandt was suffering from any disability to
his lumbar spine affecting his earning capacity caused by
the prior injuries. At that point the court defined
industrial disability as the inability on the part of the
injured employee to carry on the work the employee was doing
before the injury, or any work which the employee could
perform.
Claimant distinguished his prior 1975 back injury from
this back injury by testifying that after the 1975 back
injury he did not have any significant back problems, he did
not require any medical attention and he did not lose any
time from work. He further testified that after the 1975
injury he did not have pain down his left leg whereas he
does have pain down his left leg after this injury. He
further distinguished this injury from the 1975 injury
because after the earlier injury he was not required to take
medications and he is still required to take medications now
as a result of this injury.
In the case of Brandt, like Bearce, there was no
substantial evidence to support a finding that the earlier
injuries were in any way disabling Brandt from performing
his assigned duties with employer at the time of this
injury. Moreover, there is no substantial evidence to
support a finding that the prior back injury in 1975
independently produced some ascertainable portion of the
industrial disability which existed at the time of this
injury. This case is further like Bearce because even
though a physician had determined an impairment rating for
the earlier back injury the physician's impairment rating
cannot be equated to the same percentage of industrial
disability Bearce, 465 N.W.2d 531, 536 and 537 (Ia. App.
1991).
Claimant's final examination by Dr. McGuire and his
final report occurred on October 4, 1991 (Ex. 3e(2)-(5)).
Dr. McGuire's notes also show that he had a conference on
the morning of October 2, 1991, with the attorney for Iowa
Power. He said the attorney supplied new information to him
with respect to the permanent partial disability from the
incident of 1975.
Dr. McGuire concluded his report of October 4, 1991, as
follows:
"He has had two previous claims. He has had a 25
percent permanent partial disability to the body
as a whole as a result of those claims. He is to
be complimented for continuing to work. I do not
think this would really be an additional 5 percent
on top of that 25 percent. Instead from the
Page 7
records I have, he has already been awarded 10
percent for his back for the exact same condition.
I will leave that up to other people to figure out
how they are going to handle that." (Ex. 3e(4)).
The first problem with the quoted material is that
there is no way of knowing what new information the attorney
for Iowa Power supplied to Dr. McGuire on October 2, 1991.
The second problem is that it cannot be determined whether
Dr. McGuire is talking about (1) permanent partial
disability, (2) industrial disability or (3) permanent
functional impairment, sometimes called permanent physical
impairment. The supreme court pointed out in Bearce the
distinction between impairment and disability as follows:
"The accurate and proper use of medical
information to assess impairment depends on the
recognition that, whereas impairment is a medical
matter, disability arises out of the interaction
between impairment and external demands,
especially those of an individual's occupation.
As used in the Guides, "impairment" means an
alteration of an individual's physical health
status that is assessed by medical means,"
disability," which is assessed by nonmedical
means, is an alteration of an individual's
capacity to meet personal, social, or occupational
demands or statutory or regulatory requirements.
Stated another way, "impairment" is what is wrong
with a body part or organ system and its
functioning; "disability" is the gap between what
the individual can do and what the individual
needs or wants to do." Guides to the Evaluation
of Permanent Impairment Third Edition (Revised),
Chapter 1 Concepts of Impairment Evaluation,
Section 1.1 Basic Considerations Impairment,
Disability, Handicap, page 1.
The third problem is that there has been no previously
established compensable industrial disability for claimant's
lumbar spine.
Industrial disability, or loss of earning capacity, for
this injury must be determined as of the date of this
injury. From an examination of the evidence in this case of
claimant's age, education, physical condition, employment
record and prior injuries it is determined that claimant did
not have any loss of earning capacity or industrial
disability due to his lumbar spine on the date of this
injury on October 4, 1990. Defendant's suggestion to the
effect that an employee begins employment life with 100
percent of earning capacity, and that each time he receives
payment for an injury a mathematical deduction must be made
from the initial 100 percent of earning capacity, is not
reasonable nor is it supported in law or in fact.
Defendant's counsel requested that consideration be
given to a reverse application of the principal affirmed by
the Iowa Supreme Court in the case of Oscar Mayer Foods
Page 8
Corp. v. Tasler, 483 N.W.2d 824 (Iowa 1992). In Tasler four
separate injuries were alleged. It was determined that none
of the four separate injuries alleged constituted an injury
but that all four of them combined to constitute one
cumulative, repetitive injury. Defendant's counsel proposes
that claimant has already been compensated, if not over
compensated, industrially for this injury and the three
previous injuries by the amount of money claimant has
received for the three previous injuries. The distinction
between this case and the Tasler case is that Tasler was a
cumulative injury case and this is a case of four distinct,
separate, specific, accidental, traumatic injuries with
different factual situations and each one constitutes it's
own compensable injury under the provisions of the Workers'
Compensation Act. Iowa Code sections 85.3, 85.32 and 85.34.
Employer has been very accommodating for this
57-year-old 39-year employee as a result of this injury.
Even though claimant's disability has been tolerated by
employer this does not mean such gracious toleration would
transfer to another job. Claimant's 5 percent functional
impairment rating and restriction of no heavy lifting
imposed upon a 57-year-old employee definitely reduces
claimant's access to other employment in the competitive job
market where younger healthy employees are preferred over
older disabled employees. Hartwick v. Bishop Implement Co.,
IV Iowa Industrial Commissioner Report 159 (Appeal Decision
June 28, 1984). Claimant's versatility to perform jobs both
with this employer or other employers has been similarly
reduced due to chronic pain which requires regular
medication. Claimant might not find other employers as
accepting and tolerant of his disability as this employer
has been Todd v. Department of General Services, Buildings
and Grounds, IV Industrial Commissioner Report 373 (1983).
Claimant testified that since the injury he has never
been without pain or loss of feeling in his left leg.
Claimant testified that he is currently still taking two
medications for this back injury. He testified that his job
is accommodated by two fellow employees who relieve him of
the jobs that he would find difficult to do on account of
his back and leg pain such as climbing poles.
Randy Williams, area supervisor, testified that he has
supervised claimant for several years. He was not aware
that co-employees were accommodating claimant's work.
Never-the-less, Williams testified that claimant's job was
not in jeopardy and that as far as he knew claimant could
work until he retires.
Claimant enumerated several limitations upon his
physical activity caused by this injury. He stated
previously that he could drive 300 miles a day whereas now
he is limited to 150 miles per day. Claimant testified that
he only gets four to five hours sleep per night and usually
sleeps sitting up. Previous to this injury he said he could
walk on the treadmill but now he is unable to so. He said
his sitting is limited to approximately one hour.
Page 9
Never-the-less, claimant said that his current job as a
service man is the best job for him and the easiest one for
him to do.
Claimant said that he is no longer able to garden, do
his yard work, walk long distances, walk on the treadmill,
shovel snow, raise horses, and raise strawberries.
Previously he would go home at the end of the day and garden
or work in his strawberry patch. Presently when he goes
home he is not able to do anything after work.
Claimant testified that he had a pain in his back at
the time of the hearing which goes into his left hip and
down to his left knee.
Claimant has sustained a 5 percent permanent impairment
of the lumbar spine. He continues to have persistent pain
which continues two years after the accident for which he is
still receiving prescription medications. Even though both
physicians have recommended against surgery claimant
testified that they told him it was a possibility and just
shortly before the hearing his pain reached a degree where
he thought he was ready to consent to surgery. Claimant has
lost some access and employability in the competitive
employment market. Claimant has lost some versatility in
the jobs he can perform for employer as well as other
employers.
This employer's gracious accommodation made for this
57-year-old employee with 39-years of service and only four
years from retirement would not be afforded by other
employers in the competitive employment market. Employer's
toleration of claimant's condition and the assistance he
gets from co-employees is probably not transferable to other
jobs in the competitive employment market. Claimant is near
the end of his normal employment lifetime. A high school
education does not particularly suit him for jobs after
normal retirement age. Retraining is probably not feasible.
Vocational rehabilitation probably would be of no assistance
to claimant.
Wherefore, based upon (1) all of the evidence in the
record (2) the evidence summarized above (3) considering all
the factors used to determine industrial disability
Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa
Industrial Commissioner Decisions 529 (App. Dec. March 26,
1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3
State of Iowa Industrial Commissioner Decisions 654, 658
(App. Dec. February 28, 1985) and (4) applying agency
expertise (Iowa Administrative Act 17A.14(5)) it is
determined that claimant has sustained a 5 percent
industrial disability to the body as a whole and is entitled
to 25 weeks of permanent partial disability benefits.
CONCLUSIONS OF LAW
Wherefore based upon the foregoing and following
principles of law these conclusions are made.
That the injury of October 4, 1990, was the cause of
Page 10
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 5 percent industrial
disability to the body as a whole caused by the injury of
October 4, 1990, and is entitled to 25 weeks of permanent
partial disability benefits. Iowa Code section 85.34(2)(u).
That defendant has not sustained the burden of proof by
preponderance of the evidence that they are entitled to an
apportionment because of previous injuries received by this
employee while working for this employer Bearce v. FMC
Corporation, 465 N.W.2d 531 (Ia. App. 1991). Varied
Industries v. Sumner, 353 N.W.2d 407 (Iowa 1984).
ORDER
THEREFORE IT IS ORDERED:
That defendant pay to claimant twenty-five (25) weeks
of permanent partial disability benefits at the stipulated
rate of four hundred twenty-four and 26/100 dollars
($424.26) per week in the total amount of ten thousand six
hundred and six and 50/100 dollars ($10,606.50) commencing
on November 26, 1990, as stipulated to by the parties.
That all accrued benefits are to be paid in a lump sum.
That interest will accrue pursuant to Iowa Code section
85.30.
That the costs of this action, including the cost of
the attendance of the court reporter hearing, are charged to
defendant pursuant to rule 343 IAC 4.33 and Iowa Code
section 86.40.
That defendant file claim activity reports as requested
by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of October, 1992.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Sheldon M. Gallner
Attorney at Law
803 Third Ave.
P.O. Box 1588
Council Bluffs, IA 51502
Mr. Cecil L. Goettsch
Attorney at Law
801 Grand Ave., Suite 3700
Page 11
Des Moines, IA 50309-2727
51108.50, 51401, 51402.40,
51803,
52206, 52209, 1702, 1703,
1704,
1806
Filed October 30, 1992
Walter M. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
HARRY BRANDT,
Claimant,
vs.
File No. 964929
IOWA POWER AND LIGHT,
(n/k/a MIDWEST POWER) A R B I T R A T I O N
Employer, D E C I S I O N
Self-Insured,
Defendant.
___________________________________________________________
51108.50, 51401, 51402.40, 51803, 52206, 52209
It was determined that the injury was the cause of permanent
impairment and disability. Claimant was awarded 5 percent
industrial disability based upon a 5 percent impairment
rating and restrictions against heavy lifting. Employer had
greatly accommodated this 57-year-old employee with 39-years
of service and who was only four years from retirement.
1702, 1703, 1704, 1806
Defendant was not entitled to an apportionment or a credit
for amounts previously paid to claimant for previous
separate traumatic injuries. Bearce, discussed, quoted and
applied extensively.
The earning capacity of claimant at the time of this injury
was the base point for determining industrial disability
from this injury. The concept that every employee begins
employment life with a 100 percent earning capacity from
which is subtracted mathematically every injury for which
the employee is paid over his or her working lifetime was
rejected.
A reverse application of the Tasler decision was also
rejected.