BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
NEAL CHAMBERS, :
:
Claimant, : File No. 981305
:
vs. :
: A R B I T R A T I O N
GRIFFIN PIPE PRODUCTS, :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Neal
Chambers against Griffin Pipe Products, his former employer,
based upon an alleged injury of October 16, 1990. Chambers
seeks compensation for healing period, permanent partial
disability and payment of medical expenses based upon the
alleged injury. The employer denies his claim. It was
stipulated however, that in the event the employer is
liable, the healing period runs from October 16, 1990
through April 22, 1991, and that any permanent partial
disability compensation awarded is payable commencing April
23, 1991. It was stipulated that the rate of weekly
compensation is $222.64. The only issue with regard to the
medical expenses is the employer's liability for the
condition. The employer also asserts that in the event it
is held liable the permanent disability should be
apportioned between that caused by this alleged injury and
that which resulted from a 1986 motorcycle accident.
The case was heard at Council Bluffs, Iowa, on April 6,
1993. The records consists of testimony from Neal Chambers,
joint exhibits 1 through 11 and claimant's exhibit A.
FINDINGS OF FACT
Neal Chambers appeared at the hearing and testified.
His appearance and demeanor were observed. His testimony
was considered in light of the other evidence in the case.
He is found to be a credible witness.
Neal Chambers is a 36-year-old man who lives at
Glenwood, Iowa. He graduated from high school but has no
other formal training or education. After high school he
was involved in the construction industry working as a
carpenter or concrete worker, both of which are relatively
heavy work.
Chambers was hired by Griffin Pipe Products on March 5,
1984. He passed a pre-employment physical and drug screen.
Chambers worked in the labor pool for only three days and
was then made a material handler, a job which consisted
primarily of driving a fork lift. As time passed, he also
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performed other jobs in the plant.
Neal Chambers had no remarkable back problems until
July 13, 1986, when he was involved in a motorcycle
accident. His injuries included a shattered L1 vertebra.
Part of the treatment involved surgical fusion of the T12,
L1 and L2 vertebrae. He was left with some atrophy of his
left thigh quadricep muscles. As a result of that accident,
he was off work 14 months and 10 days. It was only through
an extensive physical therapy and conditioning program that
he was able to return to work. Behrouz Rassekh, M.D., one
of claimant's treating surgeons, initially provided him with
a 75-pound lifting restriction. The employer required that
Chambers be able to lift 100 pounds in order to be
authorized to return to work. A work capacity evaluation
was then performed which indicated that Chambers was capable
of lifting at the 120-pound level (exhibit 8). The report
shows that Chambers was in a very good state of physical
condition at the time the test was conducted. The range of
motion and velocity of back movements and maximum force
which he was able to generate with his back were all less
than optimum, however. Nevertheless, Dr. Rassekh released
Chambers to work which would include lifting up to 100
pounds (ex. 12).
Chambers was given a limited choice of jobs to which he
could return. He selected the job of first helper in the
melting department. His choice was based upon the belief
that the job offered less hazard of further injury to his
back than any of the other available jobs (ex. 5, pages
11-13). Chambers got along reasonably well in that job.
In July 1990 Chambers bid into a different position in
the labor pool. This job required much more extensive use
of his back than the prior job. After being in the job for
approximately one month, he developed back complaints which
seemed to be associated with repetitive bending and lifting
(ex. 5, pp. 15-18). Chambers returned to Patrick W. Bowman,
M.D., the other specialist who had been involved with Dr.
Rassekh in treating the motorcycle accident injuries. Dr.
Bowman suspected disc disease below the fusion. He
recommended prescription medication and light activity for
the following couple of weeks [ex. 1(c)(1 & 2)]. Chambers
did not keep a follow-up appointment which had been
scheduled for late August 1990. He continued to work
fearing that complaints or absence would jeopardize his
employment. On October 16, 1990, after operating the
skimmer to remove slag from the quadrant ladle, the
claimant's back was so painful that he could hardly endure
it. He told a coworker of his problem and reported the
problem to his foreman. On the following day he reported
the injury to personnel manager, Tom Leedy. Leedy told
Chambers that as far as the company was concerned, his back
problem did not happen at the plant. Claimant has not
returned to work at Griffin Pipe since October 16, 1990.
Chambers sought care from his family physician Robert
Frysek, M.D. Physical therapy relieved some of his pain.
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Chambers also returned to Dr. Rassekh. He sought to see Dr.
Bowman but Dr. Bowman was unabailable. Frank Iwerson, a
partner or associate of Dr. Bowman, saw Chambers. Dr.
Iwerson felt that claimant's back problem was related to his
work and lifting. He indicated that it had aggravated the
back condition. Dr. Iwerson would limit claimant to 35
pounds of lifting. He reported that the claimant's back is
not capable of heavy labor [ex. 1(c)(2)]. Dr. Bowman had
reported that claimant's job at Griffin Pipe had high
potential to aggravate the preexisting spinal condition and
that the work is responsible for claimant's increased level
of disability (ex. 1b).
Dr. Rassekh reported that claimant had a preexisting
condition that was aggravated by lifting and repeated
bending. He assigned a 5 percent permanent impairment
rating to the aggravation and indicated that the total
extent of disability is higher (ex. 2c). Dr. Rassekh
recommended that claimant obtain retraining for an
occupation that did not require lifting over 50 pounds or
repeated bending and stooping (ex. 2e). Dr. Rassekh later
reported that claimant's lifting could extend up to 75
pounds on a rare occasion (ex. 2b).
Dr. Frysek agreed that claimant's manual labor at
Griffin Pipe was a material and substantial aggravation and
contributing factor to claimant's current back problems. He
recommended that claimant give up the heavy job and seek
retraining (ex. 3b). Dr. Frysek felt that claimant had a 10
percent permanent impairment as a result of the October 16,
1990 injury (ex. 3a).
It is found that the physicians are correct in this
case. There is no material discrepancy among them in their
assessments in this case. It is found that claimant's 1986
motorcycle accident caused a preexisting condition in his
spine which was substantially aggravated by the repeated
bending and heavy lifting that Chambers performed in his
employment with Griffin Pipe Products. The bulk of the
aggravation occurred after Chambers moved into the labor
pool in July 1990. The physicians are correct in
recommending that Chambers not resume employment at Griffin
Pipe Company and that he either obtain retraining or find
some other lighter work consistent with their most recent
activity restrictions recommendations.
Chambers made some effort at obtaining re-employment.
He has worked taking surveys and as a telemarketer. He has
helped his father repair and refinish furniture. All of the
jobs have been temporary, part-time work with pay in the
range of minimum wage. The work search conducted by
Chambers has not been particularly aggressive or extensive.
It apparently has taken an extended period of time for
Chambers to realize and accept the fact that heavy work is
out of the question for him. Chambers had been highly
motivated to return to work at Griffin Pipe Products as
evidenced by his remarkable recovery from the 1986
motorcycle accident and his continuing to work in 1990
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despite the onset of quite marked physical problems. It
should be noted that following the 1986 injury Dr. Bowman
had reported that claimant should not plan on performing
heavy physical labor in the future (ex. 1d). Dr. Bowman
later changed the recommendation based upon the functional
capacity evaluation results.
Defendant employed vocational consultant Tricia Conway
to perform an assessment of claimant's employability. Her
report is quite thorough and extensive. It appears to
accurately reflect claimant's employment history, education
and medically imposed functional limitations. It identifies
his transferable skills. The findings made by Conway are
generally accurate and correct. Unfortunately, no attempt
was made to place Chambers in a job.
Claimant's activity restrictions limit him to
performing work which has exertional requirements of medium
or lighter. He is presently capable of performing some
medium to light jobs based upon his transferable skills.
Those jobs generally pay in the range of $5.50 to $7 per
hour. At the time of his 1990 injury he was earning $10 per
hour. Conway concludes that Chambers has experienced a 35
to 40 percent loss of earning capacity, of which 5 to 7
percent preexisted due to loss of access to jobs as a result
of the injuries in the motorcycle accident. Conway felt
that if Chambers were to participate in a formalized
training program the extent of his loss of earning capacity
could be reduced as it would increase his access to the
labor market and allow for higher rates of pay (ex. 6).
On July 11, 1991, the employer sent a letter to the
claimant directing him to report for work on July 15, 1991,
as a general laborer on the day shift, the position he had
last held with the company. It is the position which
produced the aggravation of the preexisting spinal
condition. The letter goes on to indicate that Dr. Rassekh
had imposed a lifting restriction (ex. 11). The letter
does not indicate, one way or the other, whether the
employer was going to make an accommodation for the claimant
or whether it was going to continue to abide by its policy
of requiring the ability to lift at least 100 pounds in
order to actually be allowed to work. Since there is no
indication on the record that the employer was willing to
make an accommodation, it is found that the employer would
have continued to stand by its customary policy. Claimant
did not report for work on that day. His conduct in doing
so was quite reasonable under the circumstances.
CONCLUSIONS OF LAW
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
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injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
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
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).
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 processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
Although many injuries have a traumatic onset, there is no
requirement for a special incident or an unusual occurrence.
Injuries which result from cumulative trauma are
compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d
368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa
1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219,
38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries,
Inc., 218 Iowa 724, 254 N.W. 35 (1934).
Aggravation of a preexisting condition is one manner of
sustaining a compensable injury. While a claimant is not
entitled to compensation for the results of a preexisting
injury or disease, its mere existence at the time of a
subsequent injury is not a defense. Rose v. John Deere
Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the
claimant had a preexisting condition or disability that is
materially aggravated, accelerated, worsened or lighted up
so that it results in disability, claimant is entitled to
recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115
N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co.,
253 Iowa 369, 112 N.W.2d 299 (1961).
When the disability develops gradually over a period of
time, the "cumulative injury rule" applies. For time
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limitation purposes, the compensable injury is held to occur
when because of pain or physical disability, the claimant
can no longer work. McKeever Custom Cabinets, 379 N.W.2d
368.
From the record in this case, it is abundantly clear
that the claimant's 1986 motorcycle accident caused
substantial injury to his spine and that the condition
resulting from that accident became a preexisting condition
for purposes of any subsequent injuries which claimant might
experience. Preexisting conditions can be congenital,
developmental or result from other injuries. A preexisting
condition is simply any physical abnormality or weakness
which makes the individual more susceptible to injury than
the individual would be without that preexisting abnormality
or weakness. Despite the fact that claimant was released to
resume work with an authorization to lift as much as 100
pounds following the motorcycle accident, the mere fact of
the spinal fusion, the weakness in one of his legs and the
other abnormalities noted in the functional capacity
evaluation clearly show that Neal Chambers had some
impairment of physical function as a result of the quite
serious injuries he sustained in the 1986 motorcycle
accident. Dr. Rassekh confirms that fact that some
disability had resulted from that accident in his April 22,
1991 report (ex. 2c). The nature of claimant's work
activities at Griffin Pipe is not controverted by any
evidence in the record. There is opinion evidence from four
physicians in the record in this case indicating that the
work aggravated the preexisting condition and the record is
devoid of any evidence to the contrary. One could theorize
that the onset of claimant's complaints in August 1990 was
merely the progression of the results of the 1986 injury but
there is no substantial evidence in the record to support
such a theory and it is therefore rejected.
It is therefore determined that claimant has proven an
injury arising out of and in the course of employment in the
nature of an aggravation of a preexisting condition. The
date of injury is fixed at October 16, 1990. In accordance
with the stipulation, claimant is entitled to recovery
healing period compensation for 27 weeks running from
October 16, 1990 through April 22, 1991.
The employer asserts that the degree of claimant's
disability should be divided or apportioned between the 1990
injury and the 1986 motorcycle accident.
Apportionment of disability between a preexisting
condition and an injury is proper only when some
ascertainable portion of the ultimate industrial disability
existed independently before an employment-related
aggravation of disability occurred. Bearce v. FMC Corp.,
465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v.
Sumner, 353 N.W.2d 407 (Iowa 1984). Hence, where employment
is maintained and earnings are not reduced on account of a
preexisting condition, that condition may not have produced
any apportionable loss of earning capacity. Bearce, 465
N.W.2d at 531. Likewise, to be apportionable, the
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preexisting disability must not be the result of another
injury with the same employer for which compensation was not
paid. Tussing v. George A. Hormel & Co., 461 N.W.2d 450
(Iowa 1990).
The burden of showing that disability is attributable
to a preexisting condition is placed upon the defendant.
Where evidence to establish a proper apportionment is
absent, the defendant is responsible for the entire
disability that exists. Bearce, 465 N.W.2d at 536-37;
Sumner, 353 N.W.2d at 410-11.
This is a case where apportionment is a bona fide
issue. The employer should not be held responsible for
paying compensation for disability which was not caused by
the employment.
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, expe
rience and inability to engage in employment for which the
employee is fitted. Olson, 255 Iowa 1112, 125 N.W.2d 251;
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
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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).
Industrial disability or loss of earning capacity is a
concept that is quite similar to impairment of earning
capacity, an element of damage in a tort case. Impairment
of physical capacity creates an inference of lessened
earning capacity. The basic element to be determined,
however, is the reduction in value of the general earning
capacity of the person, rather than the loss of wages or
earnings in a specific occupation. Post-injury earnings
create a presumption of earning capacity. The earnings are
not synonymous with earning capacity and the presumption may
be rebutted by evidence showing the earnings to be an
unreliable indicator. Bearce, 465 N.W.2d 531; DeWall v.
Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v.
Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon
of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d
143; Michael v. Harrison County, Thirty-fourth Biennial
Report of the Industrial Commissioner 218 (1979); 2 Larson
Workmen's Compensation Law, sections 57.21 and 57.31.
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 fact that Chambers was able to return to work
following the motorcycle accident without any reduction in
his rate of earnings, other than perhaps for reduced hours
due to the change of positions, does not conclusively
establish that he suffered no industrial disability as a
result of the motorcycle accident. Demonstrated actual
earnings are strong evidence of earning capacity but they
are not conclusive to the extent of excluding the
consideration of the other recognized factors. In this
case, claimant, quite reasonably, went to a job which
provided less hours of work per week than the job he had
held before the motorcycle accident occurred and it was a
job which provided less stress and strain to his back. Even
though the functional capacity evaluation showed him to be
capable of lifting 100 pounds, that fact alone does not mean
that there was no loss of physical capacity or earning
capacity. As indicated by the vocational consultant,
claimant did suffer a loss of access to some jobs as a
result of the motorcycle accident. That loss of access
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equates to some degree of industrial disability.
The injury now being litigated did not occur until
claimant took himself off of the lighter job and placed
himself into the more physically demanding labor pool
position. His action in doing so was quite improvident. It
is recognized that claimant also had worked as a second
shift casting machine operator and second shift casting
utility person before moving to the labor pool. He
apparently moved to the labor pool in order to change to the
first shift so that he would have more time with his family
in an apparent attempt to reconcile some domestic discord.
The attempt unfortunately proved to be unsuccessful. Not
only did his marriage fail to survive, but he also sustained
the injury which is now under litigation.
Apportionment can be conducted in two different ways.
The method used by this agency in Bearce, 465 N.W.2d 531,
was to make a finding of the extent of the overall
disability and then deduct the portion of the preexisting
disability. The defect in that method of analysis is that
an individual's earning capacity often changes over the
individual's lifetime due to a number of factors, some of
which can increase the earning capacity while others may
tend to decrease it. This method requires a finding of the
current degree of industrial disability as well as a finding
of the degree of industrial disability which preexisted the
most recent injury. Since assessment of industrial
disability is not simply a matter of performing a
mathematical calculation, illogical results can occur when
the pure mathematical function of subtracting the
preexisting degree of disability from the current degree of
disability. For example, in Bearce, the commissioner had
found that Bearce had a total of 35 percent industrial
disability and that 25 percent was related to the previous
injury from which he was able to return to work yet only 10
percent was related to the most recent injury which caused
Bearce to lose his livelihood. This method is based upon
the questionable presumption that individuals somehow start
their working life at 100 percent of full capacity and
thereafter lose earning capacity through injuries. It does
not take into account the fact that earning capacity can
increase through things such as increasing education,
increasing technical skills, increasing seniority, maturity,
and other factors. The method used by the commissioner
deducts for things which tend to reduce earning capacity,
but makes no additions for things which tend to increase
earning capacity.
A second method of performing apportionment is to
consider the earning capacity of the individual as being 100
percent immediately prior to the time that the injury under
consideration occurs. Since differing individuals have
differing earning capacities and earning capacities can be
affected either positively or negatively by a wide variety
of events, this method takes into account everything that
has existed prior to the time of the injury under
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consideration. The loss of earning capacity or industrial
disability which is determined is then based upon the
earning capacity that existed immediately prior to the time
the most recent injury occurred. This method of
apportionment avoids some of the pitfalls that are
encountered when attempting to determine the extent of
disability caused by a previous or remote injury and then
subtracting the extent of disability caused by each previous
injury form the current degree of disability. It avoids
getting bogged down in mathematics which can often produce
illogical results. It is this second method of determining
disability proximately caused by this injury and
apportionment that is used in this decision.
Neal Chambers clearly had impairment of physical
capacity as a result of the motorcycle accident. He clearly
had lost the ability to perform heavy physical labor since
it is that activity which caused this injury. While the
functional capacity evaluation might have shown him to be
capable of lifting 100 pounds, it was inaccurate if it was
construed as a predictor that he could safely lift 100
pounds on a continuing, repetitive basis without sustaining
further injury.
Actual earnings are a quite reliable indicator of
earning capacity since most individuals attempt to maximize
their earnings as did Chambers when he bid into higher
paying jobs. His earnings at the time of injury are not,
however, an accurate indicator of his earning capacity prior
to the injury since he was not able to perform those
activities without sustaining injury to himself. A simple
comparison of pre-injury actual earnings with the
anticipated post-injury earnings were he to find employment
consistent to that recommended by the vocational consultant
is somewhat indicative of the extent of lost earning
capacity. Clearly, Neal Chambers had some preexisting
physical disability as a result of the motorcycle injury.
Despite the severity of those injuries and the residual
physical disability, his physical capacities were probably
still well in excess of the physical capacities of many
individuals who have not sustained any injury whatsoever.
The injury in this case has made Chambers unable to perform
physical activity at the level that he was able to perform
following the motorcycle accident. The impact on Chambers
has been very substantial. In making this statement it is
recognized that he has not made a particularly extensive
search to obtain re-employment.
This case is determined based upon the evidence from
Patricia Conway being correct. The employer is not entitled
to benefit from Conway's statement that the degree of
industrial disability could be reduced by formalized
training since defendant is not providing that training.
Further, it is unknown as to whether or not this claimant
has the intellectual capacity to complete further formal
training. A case is to be decided based upon the facts
which are known or readily predictable. It is not proper to
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speculate into what the future might hold. Meier v. John
Kirby, file number 826937 (App. Dec. 1989). The measure of
the employer's liability is with the employee being as the
employer leaves him. It is not as the employee might become
at some unspecified time in the future if events which
benefit the claimant occur during the intervening time.
Having the intellectual ability to complete higher formal
education or training is of little impact if financial
resources are not available to provide that training.
Further, even if the training is obtained, the level of
earning capacity which might then exist would not
necessarily be higher than the level of earning capacity
which existed prior to the injury which is the subject of
this case. The employer had the ability to place claimant
into a job which he was capable of performing, such as those
that he held prior to moving into the labor pool, but it
chose to not allow him the option of those jobs. He was
directed to return to the labor pool. When an employer
chooses to not return an injured employee to work and in
essence removes the employee from its work force, that fact
alone is strong evidence of a high degree of disability.
Sunbeam Corp. v. Bates, 609 S.W.2d 102 (Arkansas Appellate
1980); Army and Air Force Exchange Service v. Neuman, 278
F.Sup. p. 65 (W.D.La 1967); 2 Larson 57.61. This rule
exists because an employer is presumed to know the actual
requirements of employees in industry. An employer's
determination that an employee is not economically feasible
to have as part of its work force is afforded a high degree
of deference. If the employer in whose employ the injury
occurred is not motivated to provide employment to a person
with a disability then there is little reason to expect that
some other employer would have a higher level of motivation
for employing the partially disabled person.
When all the pertinent factors of industrial disability
are considered, together with the fact of the preexisting
disability, it is determined that Neal Chambers has
sustained a 35 percent permanent partial disability as a
result of the October 16, 1990 cumulative trauma injury.
This entitles him to recover 175 weeks of permanent partial
disability compensation.
The only disputed issue regarding the medical expenses
shown in claimant's exhibit A is that of liability. The
bills have been examined. The treatments provided were
consistent with the injury sustained and the dates contained
in the other medical reports. It is therefore determined
that all the expenses contained in claimant's exhibit A were
incurred in obtaining medical treatment for the injury in
this case and that the requisite causal connection exists
between the injury and the expenses. The employer is
therefore responsible for payment of claimant's expenses as
set forth in exhibit A.
ORDER
IT IS THEREFORE ORDERED that the employer pay Neal
Chambers twenty-seven (27) weeks of compensation for healing
Page 12
period at the stipulated rate of two hundred seventy-two and
64/100 dollars ($272.64) payable commencing October 16,
1990.
It is further ordered that the employer pay Neal
Chambers one hundred seventy-five (175) weeks of
compensation for permanent partial disability at the
stipulated rate of two hundred seventy-two and 64/100
dollars ($272.64) payable commencing April 23, 1991.
It is further ordered that all accrued weekly
compensation benefits which have not been paid to the
claimant shall be paid to him in a lump sum together with
interest pursuant to section 85.30 computed from the date
each payment came due until the date of actual payment.
It is further ordered that the employer pay the
following medical expenses: Robert K. Fryzek - $88; Glenwood
Physical Therapy - $289.60; Behrouz Rassekh - $155. Total
medical due $532.60.
It is further ordered that the costs of this action are
assessed against the employer pursuant to rule 343 IAC 4.33.
It is further ordered that the employer file claim
activity reports as requested by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of June, 1993.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Sheldon Gallner
Attorney at Law
803 3rd Ave
PO Box 1588
Council Bluffs, Iowa 51502
Mr. W. Curtis Hewett
Attorney at Law
35 Main Place
PO Box 249
Council Bluffs, Iowa 51502
1806 1807 2206 2209
Filed June 11, 1993
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
NEAL CHAMBERS,
Claimant, File No. 981305
vs.
A R B I T R A T I O N
GRIFFIN PIPE PRODUCTS,
D E C I S I O N
Employer,
Self-Insured,
Defendant.
___________________________________________________________
1806 1807 2206 2209
Claimant with a three-level fusion from a nonwork-related
injury sustained a cumulative trauma injury in the form of
an aggravation of the preexisting condition and was awarded
35 percent permanent partial disability. Two methods of
performing apportionment were discussed and the preferred
method was held to be that of basing the percentage of
industrial disability as a loss from the level of earning
capacity that existed immediately prior to the injury under
litigation. The method of subtracting from a 100 percent
perfect individual for different lifetime events was
rejected. There was a discussion regarding the role of
actual earnings when determining changes in earning
capacity. The decision explains why refusal to rehire
commonly results in a significantly higher award than what
would be the result if the employment relationship had been
maintained.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DENISE THOMAS, :
:
: File No. 981309
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
K-MART CORPORATION, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Denise
Thomas, claimant, against K-Mart Corporation, self-insured
employer, hereinafter referred to as K-Mart, for workers'
compensation benefits as a result of an alleged injury on
January 20, 1989. On July 20, 1992, a hearing was held on
claimant's petition and the matter was considered fully sub
mitted at the close of this hearing.
The oral testimony and written exhibits were received
only from claimant during the hearing and are set forth in
the hearing transcript. Due to prior imposition of sanc
tions by this agency, defendant was not allowed to partici
pate or offer evidence at hearing and did not appear for
hearing.
ISSUES
The claimant submitted the following issues for deter
mination in this proceeding:
I. Whether an employer-employee relationship existed
between claimant and the alleged defendant employer at the
time of the alleged injury;
II. Whether claimant received an injury arising out
of and in the course of employment;
III. The extent of claimant's entitlement to disabil
ity benefits;
IV. The extent of claimant's entitlement to medical
benefits; and,
V. The extent of claimant's entitlement to penalty
benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
Page 2
evidence, the deputy industrial commissioner finds as
follows:
From her demeanor while testifying, claimant is found
credible.
Claimant, age 33, was employed by K-Mart continuously
from 1978 until the work injury herein on January 20, 1989.
Initially, she was assigned to store clerk duties in various
departments or to check out. For the last four years she
was working in a storeroom as a receiving clerk assigned to
unloading semi-trucks, checking-in merchandise and pricing
merchandise. The work was at times heavy, especially in the
handling of large television sets and microwave ovens.
Claimant's average gross weekly earnings in the 13 weeks
before the injury of January 20, 1989 was $260.10, according
to exhibit 12. On January 20, 1989, claimant was single and
entitled to 2 exemptions on her tax returns.
On or about January 20, 1989, claimant injured her
right wrist while unloading a truck. This injury arose out
of and in the course of her employment. The acute pain
became so severe that she was compelled to leave work on the
afternoon of January 20, 1989. She has not returned to work
in any capacity since that time. Claimant's account of the
injury was uncontroverted and consistent with histories she
provided to all treating physicians in this case.
Since January 20, 1989, claimant has had continuing
pain complaints in her right wrist and has received almost
continuous treatment for those complaints. As a result she
has not been able to return to her receiving clerk position
at K-Mart. During her treatment she was released to one-arm
duty only and claimant credibly testified that her job
required the use of both of her hands. Claimant was first
treated by Samir Wahby, M.D., but was referred in March 1990
to an orthopaedic surgeon, Douglas Regan, M.D. Dr. Regan
has treated claimant since that time. This treatment, to
date, has involved two surgeries. The first occurred on
April 11, 1990 and involved a cubital tunnel release in the
elbow, arthroscopy of the wrist and other procedures.
Following a long period of physical therapy and continuing
complaints of wrist pain, she underwent a second surgery on
October 9, 1991 involving a fusion of the wrist and related
procedures. Claimant today still has not reached maximum
healing according to Dr. Regan who indicates that he will
not be able to rate claimant's permanent impairment for
another 6-12 weeks. Two second opinions were obtained from
T. DeBartolo, M.D., during this treatment period. Dr.
DeBartolo essentially concurred with the treatment of Dr.
Regan.
It is found that claimant has been absent from work to
receive treatment continuously since January 20, 1989 as a
result of the work injury of January 20, 1989. Although Dr.
Regan has not issued a specific causal connection opinion
linking his treatment to the events of January 20, 1989, it
is clear from his notes that he, as the authorized physi
cian, sent regular reports to the defendant and did not deny
the casual connection of this treatment to the work injury.
Page 3
Claimant's uncontroverted testimony established that she had
no wrist or arm injuries or complaints prior to January 20,
1989 and has had continuous complaints since.
Also, claimant has underwent two pregnancies since
January 20, 1989 and each one has delayed surgical treat
ment. However, despite these pregnancies, the work injury
remained a substantial contributing factor in preventing a
return to work at all times since January 20, 1989.
Claimant testified that she was notified to return to
work, part-time, in January 1991. Claimant stated that she
did not feel that she could perform the work and did not
report to work in January 1991. Subsequently, claimant's
weekly benefits were terminated by defendant. It cannot be
determined from the record if the work offered was suitable
for her disability or approved by Dr. Regan. The only
release to work in the record was the initial release to
one-handed work in 1989 and no such work was offered at the
time by K-Mart. If K-Mart was offering one-handed work or
other suitable work in January 1991, such is not contained
in the record. Claimant is not obligated to accept
non-suitable work.
Given claimant's testimony verifying the mileage claim
attached to the prehearing report, it is found that claimant
has incurred a total of 6,550 miles, as of the date of hear
ing, in traveling to receive authorized medical treatment of
the work injury of January 20, 1989.
CONCLUSIONS OF LAW
I. Claimant must establish that an employee-employer
relationship existed between herself and K-Mart on the date
of injury. Only employees are entitled to compensation for
work-related injuries under chapter 85 of the Iowa Code.
The definition of employee under chapters 85 and 85A of the
Iowa Code is the same. I.C.A. 85A.3. Iowa Code section
85.61(2) defines employee as "a person who has entered into
the employment of, or works under contract of service,
express or implied..." In this case, it was found that such
an employment contract existed on the date of injury.
II. Claimant has the burden of proving by a preponder
ance of the evidence that claimant received an injury aris
ing out of and in the course of employment. The words "out
of" refer to the cause or source of the injury. The words
"in the course of" refer to the time and place and circum
stances of the injury. See generally, Cedar Rapids Community
Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto
Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An
employer takes an employee subject to any active or dormant
health impairments. A work connected injury which more than
slightly aggravates the condition is considered to be a per
sonal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613, 620,
106 N.W.2d 591 (1961), and cases cited therein.
In the case sub judice, the evidence of an injury was
uncontroverted. It was found that the conditions being
treated were causally connected to the injury. The opinion
Page 4
of experts need not be couched in definite, positive or
unequivocal language and the expert opinion may be accepted
or rejected, in whole or in part, by the trier of fact.
Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). If
the available expert testimony is insufficient alone to sup
port a finding of causal connection, such testimony may be
coupled with non-expert testimony to show causation and be
sufficient to sustain an award. Giere v. Aase Haugen Homes,
Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966)
III. Claimant is entitled to weekly benefits for
temporary total disability or healing period weekly benefits
from the date of disability until claimant returns to work;
is medically capable of returning to substantially similar
work to the work she was performing at the time of injury;
or, if there is permanency, until it is indicated that sig
nificant improvement from the injury is not anticipated,
whichever occurs first. Iowa Code sections 85.33 & 34.
In the case sub judice, there were two conceptual prob
lems. First, claimant became pregnant twice during her
recovery from the work injury. In each case, aggressive
treatment was suspended by Dr. Regan pending completion of
the pregnancy. However, it was found that the work injury
has always been a substantial factor in preventing claimant
from returning to work. The intervening pregnancy did not
change this. Had there been no work injury, claimant would
have been able to work during her pregnancy. There is no
statutory or case law authority to suspend benefits when
treatment is delayed due to another medical condition of a
claimant.
Second, Iowa Code section 85.33(3), suspends temporary
weekly benefits if a claimant refuses to accept suitable
work. However, it could not be found from the record that
suitable work was offered in January 1991.
Therefore, as it was found that claimant has not
reached maximum healing and remains off work as a result of
the work injury, temporary total disability benefits will be
awarded from the date of injury until she is capable of
returning to work or reaches maximum healing.
With reference to weekly rate, it was found that
claimant's gross weekly earnings was $260.10, she was single
and entitled to two exemptions on their tax returns at the
time of injury. Therefore, according to the Industrial
Commissioner's published rate booklet for injuries occurring
in FY 89, the rate of compensation is $166.39 per week.
IV. Pursuant to Iowa Code section 85.27, claimant is
entitled to payment of reasonable medical expenses incurred
for treatment of a work injury. In the case at bar, the
only issue involved medical mileage. This is reimbursed at
the rate of $.21 per mile according to 343 IAC 8.1.
Compensation to claimant will be awarded accordingly.
V. Claimant seeks penalty benefits under Iowa Code
section 86.13(4) for an alleged unreasonable stoppage of
benefits in March 1991 following the refusal to return to
Page 5
work in January 1991. As was the case in determining
whether claimant's benefits should be suspended for this
refusal under Iowa code section 85.33(3), it is crucial to
assess whether or not the offer was for a return to suitable
work. If it were, then the stoppage of benefits without
further notice would be reasonable. In this case, the
record is silent on what work was offered or if such work
was suitable to claimant's disability. In order to prevail
in a claim for unreasonable denial or bad faith, claimant
had to show in this case that the offer in January 1991 was
to unsuitable work and defendant knew or should have known
this. Claimant failed to establish this factual showing.
The lack of a record may have helped claimant on the suspen
sion issue but this lack of evidence also prevents a finding
of unreasonableness upon which to base an award of penalty
benefits. Therefore, the claim for penalty benefits is
denied.
ORDER
1. Defendant shall pay to claimant temporary total
disability or healing period benefits at a rate of one
hundred sixty-six and 39/l00 dollars ($166.39) per week from
January 20, 1989 until termination of such benefits is
appropriate by Iowa Code sections 85.33(1) or 85.34(1).
2. Defendant shall pay to claimant the sum of one
thousand three hundred seventy-five and 50/l00 dollars
($1,375.50) as reimbursement for medical mileage expenses.
3. Defendant shall pay accrued weekly benefits in a
lump sum and shall receive credit against this award for
benefits previously paid.
4. Defendant shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
5. Defendant shall pay the costs of this action pur
suant to rule 343 IAC 4.33, as set forth in the prehearing
report, including reimbursement to claimant for any filing
fee paid in this matter.
6. Defendants shall file activity reports on the pay
ment of this award as requested by this agency pursuant to
rule 343 IAC 3.1.
7. This claim shall be returned to the hearing admin
istrator to schedule a hearing as soon as practicable after
November 1, 1992 on the issue of the extent of claimant's
entitlement to permanent disability benefits.
Signed and filed this ____ day of September, 1992.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Page 6
Copies To:
Mr. Jerry L. Schnurr, III
Attorney at Law
801 Carver Building
P O Box 1680
Fort Dodge, Iowa 50501
Mr. Joel T. S. Greer
Attorney at Law
112 W Church Street
Marshalltown, Iowa 50158
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DENISE THOMAS,
File No. 981309
Claimant,
A R B I T R A T I O N
vs.
D E C I S I O N
K-MART CORPORATION,
Employer,
Self-Insured,
Defendant.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Denise
Thomas, claimant, against K-Mart, a self-insured defendant
employer, for workers' compensation benefits as a result of an
alleged injury on January 20, 1989. On November 3, 1994, a
hearing was held on claimant's petition and the matter was
considered fully submitted at the close of this hearing.
On September 21, 1992, the undersigned issued a prior
arbitration decision finding that claimant suffered a compensable
work injury to her right wrist on January 20, 1989 but that she
had not as yet reached maximum healing from this injury. Medical
benefits and the payment of healing period benefits were ordered
at that time for an indefinite period of time and that a hearing
on claimant's full entitlement to weekly and medical benefits
would be held at a later date, if needed, upon request of the
parties. This decision was not appealed and became a final
agency decision. The hearing on November 3, 1994 was then
conducted pursuant to this prior decision.
It should be noted that defendant was not allowed to
participate or submit evidence in the previous hearing due to
prior sanctions imposed by this agency for discovery rule
violations. However, the undersigned allowed defendant to
participate in and present evidence at the November 3, 1994
hearing. This is a new proceeding and claimant verified that
defendant complied with agency rules and cooperated with claimant
in the preparation for the November 3, 1994 hearing.
The parties have submitted a hearing report of contested
issues and stipulations which was approved and accepted as a part
of the record of this case at the time of hearing. The oral
testimony and written exhibits received during the hearing are
set forth in the hearing transcript.
According to the hearing report, the parties have stipulated
to the following matters:
1. Claimant has been paid her entitlement to healing period
benefits which extend from January 20, 1989 through March 31,
1994.
2. If the injury is found to have caused permanent
disability, the type of disability is a scheduled member
disability to the upper extremity.
3. Defendant agreed that claimant is entitled to and will
be paid the requested medical benefits set forth in the hearing
report.
ISSUES
The parties submitted the following issues for determination
at the November 3, 1994 hearing:
I. The extent of claimant's entitlement to permanent
disability benefits; and,
II. The extent of claimant's entitlement to penalty
benefits, if any.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as follows:
Claimant's credibility was not challenged by defendant.
As a result of wrist and arm pain from the work injury,
claimant has underwent two surgeries. In April 1990, she had a
cubital tunnel release in the elbow and repair of the
scapholunate ligament. In October 1991 she underwent a mid-
carpal row fusion and a radial styloidectomy. Claimant's primary
treating orthopedic surgeon has been Douglas Reagan, M.D.
According to Dr. Reagan, claimant has suffered a 22 percent
permanent partial impairment to the upper extremity from the
injury. Another physician, Dave Archer, M.D., a family practice
physician, rates claimant as suffering from a 35 percent
permanent partial impairment to the upper extremity. Both
physicians state they used the AMA Guides to evaluate this
disability. Although his report is more detailed as to his
findings as to permanency and the doctor spent over a hour in
evaluating claimant's condition, Dr. Archer's views cannot be
given the same weight as the treating orthopedic surgeon who is
more clinically familiar with claimant's condition and who
possesses a specialty in the care and treatment of orthopedic
problems.
However, neither physician appears to have rated claimant's
actual loss of use. As was apparent at hearing, claimant must
wear her wrist brace for most of the day and many times at night
to prevent pain. This brace totally immobilizes claimant's
wrist. Consequently, her actual loss of use is her wearing this
brace, not her range of motion without a brace. Therefore, given
this agency's expertise and experience in these matters, an
additional eight percent loss of use is found over and above the
rating of Dr. Reagan. Consequently, it is found that the injury
of January 20, 1989 was a cause of a 30 percent permanent partial
disability to the right arm.
Claimant's testimony and the written evidence shows that
there were two significant interruptions in the payment of weekly
benefits pursuant to the September 21, 1992 final decision.
Claimant was not paid until October 18, 1993 for the benefit
period from July 10, 1993 through October 15, 1993. She was
likewise not paid until September 2, 1994 for the benefit period
extending from April 2, 1994 through August 26, 1994. The total
amount of payments delayed was over $4,000. No excuse or prior
notice was given for these delays. No reason for the delays were
provided at hearing by defendant. This is unreasonable and
warrants the maximum penalty imposed by law.
CONCLUSIONS OF LAW
I. A permanent partial disability is either scheduled or
unscheduled. A scheduled disability is evaluated by the
functional method. The industrial method is used to evaluate an
unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128,
133 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331
N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d
886, 997 (1983). When the result of an injury is loss to a
scheduled member, the compensation payable is limited to that set
forth in the appropriate subdivision of Iowa Code section
85.34(2). Barton v. Nevada Poultry Company, 253 Iowa 285, 110
N.W.2d 660 (1961). "Loss of use" of a member is equivalent to
"loss" of the member. Moses v. National Union C.M. Co., 184 N.W.
746 (1922). Pursuant to Iowa Code section 85.34(2)(u), the
industrial commissioner may equitably prorate compensation
payable in those cases where the loss is something less than that
provided for in the schedule. Blizek v. Eagle Signal Company,
164 N.W.2d 84 (Iowa 1969).
In the case sub judice, it was found that claimant suffered
a 30 percent permanent loss of use of her right arm. Based on
such a finding, claimant is entitled to 75 weeks of permanent
partial disability benefits under Iowa Code section 85.34(2)(m)
which is 30 percent of 250 weeks, the maximum allowable number of
weeks of disability for an injury to the arm in that subsection.
These benefits will be ordered paid from the end of the
stipulated healing period.
The finding of impairment in this case went beyond the
rating of a physician using the AMA Guides. In making assessment
of the loss of use of a scheduled member, the evaluation is not
limited to the use of a standardized guide. A claimant's
testimony and demonstrated difficulties may be considered in
determining the actual loss of use so long as loss of earning
capacity is not considered. Soukup v. Shores Co., 222 Iowa 272,
268 N.W. 598 (1936). The actual loss of use which is to be
evaluated is the loss of use of the member for the purposes for
which the member is customarily used in daily living, including
activities of employment. Pain which limits use, loss of grip
strength, fatigability, activity restrictions and other pertinent
factors may all be considered when determining scheduled
disability. Moss v. United Parcel Service, File No. 881576
(Appeal Decision, September 26, 1994); Greenlee v. Cedar Falls
Comm. Schools, File No. 934910 (Appeal Decision, December 27,
1993); Westcott-Riepma v. K-Products, Inc., File No. 1011173
(Arbitration Decision, July 19, 1994); Bieghler v. Seneca Corp.,
File No. 979887 (Arbitration Decision, February 8, 1994); Ruyland
v. Rose's Wood Products, File No. 937842 (Arbitration Decision,
February 13, 1994); Smith v. Winnebago Industries, File No.
824666 (Arbitration Decision, April 2, 1991).
II. Claimant seeks additional weekly benefits under Iowa
Code section 86.13, unnumbered last paragraph. That provision
states that if a delay in commencement or termination of benefits
occurs without reasonable or probable cause or excuse, the
industrial commissioner shall award extra weekly benefits in an
amount not to exceed 50 percent of the amount of benefits that
were unreasonably delayed or denied. Defendants may deny or
delay the payment of benefits only when the claim is fairly
debatable. Seydel v. U of I Physical Plant, (Appeal Decision,
November 1, 1889). When the claim is "fairly debatable," the
insurer is entitled to debate it, whether the debate concerns a
matter of fact or law."
Making claimant wait for his money regardless of medical
evidence is unreasonable conduct entitling claimant to penalty
benefits. Hartl v. Quaker Oats Company, File No. 931120, (Appeal
Decision, July 22, 1993).
Turning to the case sub judice, no explanation or prior
notice was given to claimant during two major interruptions in
her weekly benefits. No explanation was offered at hearing. The
maximum penalty will be imposed which will be the sum of $2,000
which is a reasonable penalty given the conduct.
ORDER
1. Defendant shall pay to claimant seventy-five (75) weeks
of permanent partial disability benefits at a rate of one hundred
sixty-six and 39/l00 dollars ($166.39) per week from April 1,
1994.
2. Defendant shall pay to claimant a penalty in the amount
of two thousand dollars ($2,000).
3. Defendant shall pay the medical expenses listed in the
prehearing report. Claimant shall be reimbursed for any of these
expenses paid by him. Otherwise, defendant shall pay the
provider directly along with any lawful late payment penalties
imposed upon the account by the provider.
4. Defendant shall pay accrued weekly benefits in a lump
sum and shall receive credit against this award for all benefits
previously paid.
5. Defendant shall pay interest on weekly benefits awarded
herein as set forth in Iowa Code section 85.30.
6. Defendant shall pay the costs of this action pursuant to
rule 343 IAC 4.33, including reimbursement to claimant for any
filing fee paid in this matter.
7. Defendant shall file activity reports on the payment of
this award as requested by this agency pursuant to rule 343 IAC
3.1.
Signed and filed this ____ day of November, 1994.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Jerry L. Schnurr, III
Attorney at Law
409 Snell Bldg
PO Box 952
Fort Dodge IA 50501
Mr. Joel T. S. Greer
Attorney at Law
112 W Church St
Marshalltown IA 50158
5-1803
Filed September 21, 1992
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DENISE THOMAS,
File No. 981309
Claimant,
A R B I T R A T I O N
vs.
D E C I S I O N
K-MART CORPORATION,
Employer,
Self-Insured,
Defendant.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
1803; 4000
Filed November 28, 1994
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DENISE THOMAS,
File No. 981309
Claimant,
A R B I T R A T I O N
vs.
D E C I S I O N
K-MART CORPORATION,
Employer,
Self-Insured,
Defendant.
___________________________________________________________
1803 - Extent of Scheduled Member Disability
Although the lower scheduled member rating by the treating
physician was given greater weight over a higher rating by a
one-time evaluator, an additional 8 percent permanent
disability found over this rating as claimant's actual loss
of use was more than the physician's ratings under the AMA
Guides. Claimant was required to use her wrist brace most
of time during the day and night to prevent pain and the
brace totally immobilized her wrist function. This real
life loss of use was not included in the treating
physician's rating.
4000 - Penalty
A $2,000 penalty was imposed for two major interruptions in
the payment of weekly benefits without explanation to
claimant or this agency.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DONNIE SHAFFER, :
:
Claimant, :
:
vs. : File Nos. 981314;
: 931131; 910596
EXIDE CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
WAUSAU INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Donnie
D. Shaffer, claimant, against Exide Corporation, employer,
hereinafter referred to as Exide, and Wausau Insurance
Companies, insurance carrier, defendants, for workers' com
pensation benefits as a result of an alleged injury on
September 19, 1988. On June 22, 1992, a hearing was held on
claimant's petition and the matter was considered fully sub
mitted at the close of this hearing. In the prehearing
report submitted at hearing, the parties agreed to a new
work injury date of November 13, 1990 for file number
981314.
Also, at the request of and with the expressed consent
of all parties, the undersigned on June 22, 1992, agreed to
hear and decide the only remaining dispute among the parties
with reference to two pending claims, file numbers 910596
and 931131, which had not been scheduled for hearing.
Apparently the parties entered into a settlement agreement
in February 1991 which was approved by this agency in which
the parties agreed to a work injury date of September 19,
1988 for both claims and to payment of weekly benefits for
healing period and permanent partial disability (PPD). The
payment of PPD was based upon a 5 percent loss to each hand
but the issue was left open for further benefits pending a
final rating by the treating physician. It was further
agreed that claimant was paid his entitlement to weekly ben
efits through December 19, 1990. According to the parties,
now that the only available remaining issue to be decided in
these files is the extent of claimant's entitlement to per
manent disability benefits for the bilateral hand or arm
injuries.
The parties have submitted two prehearing reports for
all of the files discussed above delineating the contested
issues and stipulations. At hearing, these reports were
Page 2
approved and accepted as a part of the record of this case.
The oral testimony and written exhibits received during the
hearing are set forth in the hearing transcript.
According to the prehearing reports, the parties have
stipulated to the following matters:
1. On September 19, 1988 and November 13, 1990,
claimant received injuries arising out of and in the course
of employment with Exide.
2. Claimant is only seeking temporary total or healing
period benefits in this proceeding from November 20, 1990
through January 8, 1992 as a result of the November 13, 1990
injury and defendants agree that claimant was not working
during this time.
3. With reference to the injury of September 19, 1988,
the type of permanent disability is a scheduled member dis
ability to either the hand or arm.
4. With reference to the injury of November 13, 1990,
if permanent partial disability benefits are awarded, they
shall begin as of April 30, 1991.
5. At the time of injury of September 19, 1988,
claimant's gross rate of weekly compensation was $663.30; he
was single; and he was entitled to one exemption.
Therefore, claimant's weekly rate of compensation is $363.54
according to the Industrial Commissioner's published rate
booklet for this injury.
6. At the time of injury of November 13, 1990,
claimant's gross rate of weekly compensation was disputed;
he was married; and he was entitled to 3 exemptions.
7. Medical benefits are not in dispute in any of these
litigated claims.
ISSUES
The only issues submitted by the parties is the extent
of claimant's entitlement to disability benefits and the
weekly rate for the November 13, 1990 injury.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
Claimant has worked for Exide since May 1986 and this
employment continues at the present time. At the time of
the work injuries, claimant was working in the dyna cast
department assembling batteries. This work involved exten
sive use of claimant's hands and arms in the repetitive
gripping and lifting, frequently heavy, of battery compo
nents. After approximately one year following his last sur
gical procedure on his right shoulder, claimant returned to
work at Exide. However, claimant did not return to dyna
Page 3
cast but to a different department called TPT. Work in this
department met his physician imposed physical activity
restrictions against repetitive use of his hands and arms.
Claimant continues in this employment today.
The work injury of September 19, 1988 consists of
bilateral carpal tunnel syndrome; three trigger fingers in
the right hand; two trigger fingers on the left; and, an
ulnar tunnel syndrome on the left. Claimant experienced
chronic pain, numbness and tingling in the fingers, hands
and arms beginning in 1988. These symptoms, although less
ened by treatment, continues today. Claimant underwent
three surgeries for these conditions performed by William W.
Eversmann, Jr., M.D., a specialist in hand surgery, involv
ing release of the tunnel syndromes and trigger fingers.
It is found that claimant suffers from a 5 percent per
manent partial impairment on the left and a 10 percent per
manent partial impairment on the right as a result of the
multiple conditions from the injury of September 19, 1988
which combines and converts to a body as a whole rating of 9
percent. It is also found that this impairment is causally
connected to claimant's repetitive work at Exide prior to
September 19, 1988. These findings are based upon the views
and ratings of the primary treating physician and surgeon,
Dr. Eversmann. The opinions offered by defendants from a
one time evaluator were not convincing. Dr. Eversmann had
far more clinical involvement with claimant. He also had
actually observed the condition surgically. Finally, with
reference to the injury of September 19, 1988, claimant has
not shown a total or 100 percent loss of earning capacity
from the two injuries sustained on that date.
The injury of November 13, 1990 involves another
overuse syndrome problem resulting in a multi-flap tear of
the glenoid labrum in the right shoulder as well as
arthritic changes within the shoulder joint all due to
repetitive or cumulative traumas while working in the dyna
cast department at Exide. This was the diagnosis and causal
scenario opined by Keith W. Riggins, M.D., the treating
orthopedic physician. His treatment of claimant began in
November 1990 upon complaints of chronic shoulder and arm
pain. Claimant underwent a fourth surgery, this time on the
shoulder in January 1991. Despite extensive treatment,
including this surgery, claimant still has difficulty using
his arms and hands today due to these shoulder conditions.
Dr. Riggins opines that this condition is permanent and
results in a 7 percent impairment of the arm under the AMA
guides. He did not provide a body as a whole rating. He
also opined that claimant reached maximum benefits from
treatment at the time of his examination of claimant on
February 28, 1991. Therefore, it is found that maximum
healing was achieved at that time.
Despite the lack of a body as a whole rating from Dr.
Riggins, the extent of impairment is a legal not a medical
question. It is found that the work injury of November 13,
1990 is a cause of a significant permanent partial impair
ment extending into the body as a whole. The exact percent
age is unimportant in body as a whole or industrial disabil
Page 4
ity cases. What is important is that Dr. Riggins recommends
against employment requiring repetitive use of claimant's
hands and arms and no overhead use of arms as such work
would result in a recurrence of symptoms. As a consequence,
claimant was unable to return to Exide in the dyna cast
department. However, in January 1992, he returned to Exide
in the TPT department which has much less repetitive work
and Dr. Riggins has approved of the work.
Claimant's medical condition before the work injury of
November 13, 1990 was certainly not excellent and he had
considerable problems with his bilateral hand and finger
conditions. However, these prior injuries and resulting
disabilities were not independent of his employment at
Exide. Consequently, apportionment of disability cannot be
attempted. However, in any event it should be noted that
the change of jobs at Exide from dyna cast to TPT did not
occur until after the November 13, 1990 injury.
The change of jobs from dyna cast to TPT has resulted
in approximately a 22.5 percent loss of actual earnings
according to figures complied by an accountant retained by
claimant. Claimant's average wage in 1990 was $15.82 per
hour but is only $12.26 per hour in his current job.
Although both jobs have a similar base rate and both are
incentive pay jobs, there is more "down time" resulting in
lower average pay in TPT. Claimant usually worked a 40 hour
week. It is found by multiplying the average hourly rate by
40 that claimant's customary weekly earnings at the time of
the November 13, 1990 injury was $632.80.
It should be noted that the accountant's calculations
arriving at a present value for claimant's projected future
loss of earnings was not utilized in arriving at the indus
trial disability findings herein.
The Exide industrial relations manager testified that
claimant's average pay in 1990 was $15.12 because the
accountant's figures included vacation pay. He also testi
fied that claimant's current pay is somewhat higher, $12.52.
These figures were rejected as a basis for the findings
herein as the manager failed to fully explain how he arrived
at his figures. Vacation pay may or may not be properly
included depending upon the manner of calculation. No
explanation was offered for the difference in current pay.
Claimant is 32 years of age and has a high school edu
cation. Claimant's past employment consists of gas station
attendant, construction work, packaging and weighing crack
ers at a biscuit plant and supply handler. His ability to
perform these jobs is very extremely restricted by his cur
rent disabilities.
Before he was rehired by Exide, claimant made an
attempt to find suitable work in the area of his residence
for almost a year but failed.
However, vocational rehabilitation and seeking alterna
tive suitable work is not necessary at this time as Exide
and the local UAW union has chosen to accommodate for
Page 5
claimant's disability; a medical placement was allowed; and,
a severe loss of earning capacity has been averted, for now.
A future loss of his job at Exide would certainly be a sig
nificant change from his current condition requiring this
agency to reexamine this matter.
Despite his current employment, claimant still has a
significant disability which must be compensated.
From examination of all of the factors of industrial
disability, it is found that the work injury of November 13,
1990 was a cause of a 25 percent loss of earning capacity.
CONCLUSIONS OF LAW
I. The September 19, 1988 injury: It was stipulated
that claimant suffered permanent impairment to two hands or
upper extremities from a single injury date. Consequently,
the extent of disability must be measured pursuant to Iowa
Code section 85.34(2)(s). Measurement of disability under
this subsection is peculiar. Under this Code section, this
agency must first determine the extent of industrial dis
ability or loss of earning capacity caused by the two simul
taneous injuries. If the injury caused a loss of earning
capacity that is less that total or 100%, then the extent of
the permanent disability is measured only functionally as a
percentage of loss of use for body member affected which is
then translated into a percentage of the body as a whole and
combined together into one body as a whole value. This was
done by Dr. Eversmann using the AMA guides. If the indus
trial disability is total or there is a total loss of earn
ing capacity, then claimant is entitled to permanent total
disability benefits under Iowa Code section 85.34(3). See
Simbro v. DeLong's Sportswear 332 N.W.2d 886 (Iowa 1983);
Burgett v. Man An So Corp., 3 Iowa Indus. Comm'r Rpt 38
(Appeal Decision 1982).
In the case sub judice, it was found that claimant had
not suffered a total loss of earning capacity, consequently
his entitlement to permanent disability benefits is measured
only functionally. Based upon a finding of a combined 9
percent impairment to the body as a whole as a result of
permanent injury to both hands and arms, claimant is enti
tled as a matter of law to 45 weeks of permanent partial
disability benefits under Iowa Code section 85.34(2)(s)
which is 9 percent of the 500 weeks allowable for a simulta
neous injury to two extremities in that subsection.
Claimant has been paid for a 5 percent loss of both hands or
a total of 19 weeks through December 19, 1990 according to
the settlement agreement. Therefore, defendants will be
ordered to pay the difference, 26 weeks, from December 20,
1990.
II. The November 13, 1990 injury: As the claimant has
shown that this work injury was a cause of permanent physi
cal impairment or limitation upon activity extending into
the shoulder and the body as a whole, the degree of perma
nent disability was measured pursuant to Iowa Code section
85.34(2)(u). However, unlike scheduled member disabilities,
the degree of disability under this provision is not mea
Page 6
sured solely by the extent of a functional impairment or
loss of use of a body member. A disability to the body as a
whole or an "industrial disability" is a loss of earning
capacity resulting from the work injury. Diederich v.
Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899
(1935). A physical impairment or restriction on work
activity may or may not result in such a loss of earning
capacity. Examination of several factors determines the
extent to which a work injury and a resulting medical
condition caused an industrial disability. These factors
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 healing
period; the work experience of the employee prior to the
injury, after the injury and 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. See Peterson v. Truck Haven
Cafe, Inc. (Appeal Decision, February 28, 1985).
Although it was found that due to prior work-related
conditions, claimant had prior physical impairment to his
extremities, apportionment is not possible in measuring dis
ability resulting from the November 13, 1990 injury.
Apportionment of disability between a preexisting condition
and an injury is proper only in those situations where a
prior injury or illness unrelated to employment indepen
dently produces some ascertainable portion of the ultimate
disability. Tussing v. George A. Hormel & Co., 461 N.W.2d
450 (Iowa 1990); Varied Enterprises, Inc. v. Sumner, 353
N.W.2d 407 (Iowa 1984). Also, prior existing impairment
does not mandate a finding of loss of earning capacity when
there has been no prior lost earnings or employment. See
Bearce v. FMC Corp, 465 N.W.2d 531 (Iowa 1991)
In the case sub judice, it was found that claimant suf
fered a 25 percent loss of his earning capacity as a result
of the work injury of November 13, 1990. Such a finding
entitles claimant to 125 weeks of permanent partial disabil
ity benefits as a matter of law under Iowa Code section
85.34(2)(u) which is 25 percent of 500 weeks, the maximum
allowable number of weeks for an injury to the body as a
whole in that subsection.
Claimant's entitlement to permanent partial disability
also entitles him to weekly benefits for healing period
under Iowa Code section 85.34 from the date of injury until
claimant returns to work; until claimant is medically capa
ble of returning to substantially similar work to the work
he was performing at the time of injury; or, until it is
indicated that significant improvement from the injury is
not anticipated, whichever occurs first. The only dispute
involved claimant's absence from work from November 20, 1990
through January 8, 1992. It was found that claimant reached
maximum healing on February 28, 1991. Benefits will be
awarded accordingly.
Page 7
With reference to rate of compensation, the parties'
dispute involves the calculation of gross wages. As
claimant had an incentive pay job which varied from week to
week, the gross rate should be calculated under Iowa Code
section 85.36(6) using the previous 13 week average before
the injury. Absent such evidence, claimant's gross weekly
earnings had to be calculated by using the average wage evi
dence offered. Barker v. City Wide Cartage, 1 Iowa Indus.
Comm'r Rpt 12 (Appeal Decision 1980). In this case, it was
found that claimant's gross weekly earnings at the time of
injury was $632.80. According to the applicable rate book
let published by this agency and the stipulations of the
parties as to martial status and entitlement to exemptions,
claimant's rate of compensation for disability caused by the
November 13, 1990 injury is $388.43.
ORDER
1. With reference to the injury of September 19, 1988,
defendants shall pay to claimant twenty-six (26) weeks of
permanent partial disability benefits at the stipulated rate
of three hundred sixty-three and 54/l00 dollars ($363.54)
per week from December 20, 1990.
2. With reference to the injury of November 13, 1990,
defendants shall pay to claimant one hundred twenty-five
(125) weeks of permanent partial disability benefits at the
rate of three hundred eighty-eight and 43/l00 dollars
($388.43) per week from February 29, 1991. Defendants shall
also pay to claimant healing period benefits from November
20, 1990 through February 28, 1991, at the rate of three
hundred eighty-eight and 43/l00 dollars ($388.43) per week.
3. Defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against this award for
weekly benefits previously paid.
4. Defendants shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
5. Defendants shall pay the costs of this action pur
suant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fees paid in this matter.
6. Defendants shall file activity reports on the pay
ment of this award as requested by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of July, 1992.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Page 8
Copies To:
Mr. Michael J. Schilling
Attorney at Law
205 Washington Street
P O Box 821
Burlington, Iowa 52601
Mr. E. J. Kelly
Attorney at Law
Suite 111, Terrace Center
2700 Grand Avenue
Des Moines, Iowa 50312
5-1803
Filed July 16, 1992
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DONNIE SHAFFER,
Claimant,
vs. File Nos. 981314;
931131; 910596
EXIDE CORPORATION,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
WAUSAU INSURANCE COMPANIES,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.