before the iowa industrial commissioner
_________________________________________________________________
:
ERNEST E. WISSLER, :
:
Claimant, : File No. 955181
:
vs. : A P P E A L
:
CITY OF FREMONT, IOWA, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
_________________________________________________________________
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
June 9, 1992 is affirmed and is adopted as the final agency
action in this case with the following additional analysis:
On appeal, defendant urges as an issue whether claimant's prior
disability should be apportioned from his award. When an award
of permanent total disability is made, apportionment for a prior
disability is not appropriate. Tesch v. Sieh Farm Drainage Co.,
Appeal Decision, March 1992.
Defendant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of February, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Harold B. Heslinga
Attorney at Law
118 North Market Street
Oskaloosa, Iowa 52577
Mr. John E. Swanson
Attorney at Law
8th Floor, Fleming Bldg.
218 Sixth Avenue
Des Moines, Iowa 50309
1806
Filed February 22, 1993
Byron K. Orton
LPW
before the iowa industrial commissioner
____________________________________________________________
_____
:
ERNEST E. WISSLER, :
:
Claimant, : File No. 955181
:
vs. : A P P E A L
:
CITY OF FREMONT, IOWA, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
_____
1806
Held on appeal that apportionment for prior disability is
not appropriate when an award of permanent total disability
is made.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ERNEST E. WISSLER, :
: File No. 955181
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
CITY OF FREMONT, IOWA, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Ernest
E. Wissler, claimant, against City of Fremont, Iowa,
employer, a self-insured defendant, for workers' compensa
tion benefits as a result of an alleged injury on July 13,
1990. On May 5, 1992, a hearing was held on claimant's
petition and the matter was considered fully submitted at
the close of this hearing.
The parties have submitted a prehearing report of con
tested 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 prehearing report, the parties have
stipulated to the following matters:
1. On July 13, 1990, claimant received an injury aris
ing out of and in the course of employment with City of
Fremont, Iowa.
2. Claimant is seeking temporary total or healing
period benefits from July 13, 1990 and defendant agrees that
he has not worked in any capacity since that time.
3. The injury is a cause of a permanent industrial
disability to the body as a whole, the extent of which is in
dispute.
4. At the time of injury, claimant's gross rate of
weekly compensation was $330.46. She was married and enti
tled to 2 exemptions. Therefore, claimant's weekly rate of
compensation is $212.80 according to the Industrial
Commissioner's published rate booklet for FY 91 (the stipu
lated rate in the prehearing report was incorrect).
5. All requested medical benefits have been or will be
paid by defendant.
ISSUE
Page 2
The only issue submitted by the parties for determina
tion in this proceeding is the extent of claimant's entitle
ment to permanent industrial disability benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
Claimant worked for Fremont from November 1989 until
the work injury herein. Claimant was the town superinten
dent. His duties consisted of maintenance and care of the
city water, sewer and lagoon systems, reading meters, dog
control and general handyman work. At times the job
required heavy shoveling and lifting.
Claimant injured his low back on July 13, 1990 when he
slipped on a wet concrete floor in the city water plant and
twisted his back. He did not fall. However, after twist
ing, he felt the immediate onset of low back pain. Claimant
initially received treatment from a chiropractor for a few
weeks and then he was referred to Tobin Jacks, M.D. Dr.
Jacks felt that claimant only suffered a ligament strain and
that he would soon return to normal. However, when the pain
continued through November, he referred claimant to an
orthopedic surgeon, Donald Berg, M.D. Dr. Berg treated
claimant with physical therapy and medication over the next
few weeks. He stated that claimant had aggravated a
pre-existing degenerative condition of the lower spine. He
stated that claimant would require six months of healing and
then, if symptoms persisted, he would suffer a 2 percent
permanent partial impairment to the body as a whole. He
stated that claimant will never be able to return to heavy
physical labor and that he should not lift over 20 pounds or
frequently bend or twist. Dr. Berg referred claimant for a
second evaluation to William Boulden, M.D., another
orthoepic surgeon. Dr. Boulden again treated claimant with
physical therapy and work hardening and also arrived at the
conclusion that claimant should not return to heavy work and
must be restricted in lifting and repetitive activity. Dr.
Boulden rated claimant's impairment at 7 percent and stated
that this was all due to the work injury as claimant
reported no back problems before July 13, 1990.
As recognized by all physicians in this case,
claimant's low back condition is complicated by old injuries
to his left hip and head. These old injuries were the
result of a serious motorcycle accident in 1969 in which
claimant suffered multiple fractures to his arm, leg, hip
and head. He suffered what was estimated then to be a 60
percent disability and inability to return to heavy work.
He was unconscious for six weeks after the accident. As
first noticed by the chiropractor after the injury and later
verified by the orthopedic surgeons, the old frozen hip from
the 1969 injury works in combination with the work injury in
July 1990 causing excessive strain to the back after any
thing but very light duty. Dr. Boulden was the only physi
cian to attempt to separate the effects of the two injuries
Page 3
and it was clear that most of claimant's current restric
tions were due to the new back injury rather than the old
hip injury.
Claimant had little or no industrial disability prior
to July 1990. He returned to work successfully for over 20
years after the 1969 accident without physician imposed
restrictions. Many of these jobs required occasional heavy
labor and prolonged sitting as a truck driver.
The work injury of July 13, 1990 was a cause of a sig
nificant permanent partial physical impairment to the body
as a whole. More importantly from an industrial disability
standpoint, as a result of the injury herein, claimant is
physically unable to perform work activities consisting of
lifting or carrying over 30 pounds and no prolonged sitting
or standing for more than 45 minutes without being able to
change positions. These are the most recent restrictions
imposed by Dr. Boulden.
Claimant has an extensive and multifaceted employment
history. He has been a farmhand; gas station mechanic; body
ship worker; route delivery of bread; beer warehouseman;
warehouse foreman; advertising; sales promotion for a
tobacco company; motorcycle mechanic; manager of the motor
cycle department of a car dealership; gas station operator;
service manager and ship foreman at a car dealership; pro
duction worker; and over-the-road trucker hauling cars from
Florida. His transferable skills are extensive. Many of
the more mentally demanding jobs occurred after the 1969
accident. Claimant was able to perform these jobs with only
a tenth grade education. Almost all of the jobs claimant
had held in the past required heavy physical labor, the type
of work claimant can no longer perform.
Claimant is 55 years of age and the evidence did not
reveal any retirement plans at the time of injury herein. A
vocational counselor was retained by defendant to attempt to
locate suitable work for him. After six months the coun
selor was only able to locate a possible part-time job as an
assistant activity director for a nursing home. The salary
of this job was not stated. The counselor complained that
claimant and his wife were not motivated to return to work
and did poorly in the interview for the activity director
job due to lack of aggressiveness.
However, the most recent evaluation of claimant's men
tal and physical condition clearly demonstrates that
claimant is incapable of any return to the work force. Marc
Hines, M.D., reports on March 25, 1992 that claimant's past
head injuries are now resulting in psychosensory symptoms
from illusions, episodic macropsia, speech and word finding
difficulties, speech confusion and memory gaps. Claimant
has staring spells on a daily basis. He has chronic anxiety
and perplexity. Dr. Hines states that these neurological
symptoms, combined with the physical disability from the
July 13, 1990 work injury, prevents him from being able to
work. This opinion as to the combined mental problem and
physical effects from the work injury is uncontroverted and
found to be correct.
Page 4
Consequently, the work injury of July 13, 1990 is a
cause of a total or 100 percent loss of earning capacity.
CONCLUSIONS OF LAW
Claimant must establish by a preponderance of the evi
dence the extent of weekly benefits for permanent disability
to which claimant is entitled. As the claimant has shown
that the work injury was a cause of permanent physical
impairment or limitation upon activity involving the body as
a whole, the degree of permanent disability must be measured
pursuant to Iowa Code section 85.34(2)(u). However, unlike
scheduled member disabilities, the degree of disability
under this provision is not measured 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 disabil
ity" 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 restric
tion on work activity may or may not result in such a loss
of earning capacity. Examination of several factors deter
mines the extent to which a work injury and a resulting med
ical condition caused an industrial disability. These fac
tors 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).
In the case sub judice, it was found that claimant suf
fered a total or 100 percent loss of his earning capacity as
a result of the work injury. Such a finding entitles
claimant to permanent total disability benefits as a matter
of law under Iowa Code section 85.34(3). These weekly bene
fits shall begin with the date of the work injury and shall
extend for an indefinite period into the future and may last
for life absent a change in condition.
Although a considerable portion of this disability is
due to the combined effect of the work injury and non-work
related 1969 accident, apportionment of disability as envi
sioned in Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407
(Iowa 1984) is not appropriate or possible in a permanent
total disability case because the benefits are not payable
for a definite time period under Iowa Code section 85.34(2)
but are paid to claimant indefinitely during the period of
his disability under Iowa Code section 85.34(3). The July
1990 injury was the proverbial "straw that broke the camel's
back" and permanent total disability benefits was awarded
accordingly. Loftus v. Waterloo Comm. School Dist., Case
No. 777678, Arbitration Decision Filed March 30, 1989; Brown
Page 5
v. Nissen Corp., Arbitration Decision Filed June 29, 1988.
Additionally, prior existing impairment, if it were
shown, does not mandate a finding of loss of earning capac
ity when there has been no lost earnings or employment for
almost 20 years prior to the injury. See Bearce v. FMC
Corp, 465 N.W.2d 531 (Iowa 1991)
Finally, when claimant establishes a causal connection
between the claimed disability and the work injury, the
claimant does not have the additional burden to establish
the lack of a preexisting disability. After establishing a
prima facia case for permanent disability, the undersigned
believes that the burden of persuasion shifts to defendant
to establish such a preexisting disability for purposes of
apportionment. The plaintiff in a personal injury case is
not normally charged with a burden of proof as to the actual
apportionment of damages. Any burden of that nature should
be assumed by the defendant, since the defendant is the
party standing to gain by litigating the apportionment
issue. 2 Damages in Tort Actions, 15.34(1)(a); Wonder Life
Company v. Liddy, 207 N.W.2d 27 (Iowa 1973). If no appor
tionment can be made, the defendant is responsible for the
entire damage. Becker v. D & E Distributing Co. 247 N.W.2d
727, 731 (Iowa 1976).
ORDER
1. Defendant shall pay to claimant permanent total
disability benefits at a rate of two hundred twelve and
80/l00 dollars ($212.80) per week from July 13, 1990, for an
indefinite period of time during the period of his
disability.
2. Defendant shall pay accrued weekly benefits in a
lump sum and shall receive credit against this award for all
benefits previously paid.
3. Defendant shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
4. Defendant shall pay the costs of this action pur
suant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
5. Defendant 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 June, 1992.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Page 6
Copies To:
Mr. Harold B. Heslinga
Attorney at Law
118 North Market Street
Oskaloosa, Iowa 52577
Mr. John E. Swanson
Attorney at Law
8th Floor Felming Building
218 6th Avenue
Des Moines, Iowa 50309
5-1803
Filed June 9, 1992
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ERNEST E. WISSLER, :
: File No. 955181
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
CITY OF FREMONT, IOWA, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
RAELYN J. WOMACK, :
: File No. 955356
Claimant, :
: D E C I S I O N
vs. :
: A N D O R D E R
LAMONT LIMITED, :
: A P P R O V I N G
Employer, :
: S E T T L E M E N T
and :
: B Y
UNITED STATES FIDELITY AND :
GUARANTY, : A C Q U I E S C E N C E
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
statement of the case
Raelyn J. Womack filed a petition in arbitration
against Lamont Limited and United States Fidelity and
Guaranty on April 19, 1991. She claims to have sustained a
back injury in a work-related fall on July 5, 1990, and
asserts entitlement to workers' compensation benefits.
Defendants duly filed answer denying that claimant sustained
an injury arising out of and in the course of employment.
On May 8, 1991, claimant filed an Application for
Alternate Medical Care. Defendants deny that relief is
appropriate.
Following prehearing conference, the parties agreed on
January 8, 1992, to submit that dispute (but no other)
specifically to the undersigned deputy industrial
commissioner for binding arbitration pursuant to rule 343
IAC 4.42.
In a telephone conference hearing held on February 3,
1992, the undersigned advised counsel that he believed no
justiciable issue had been presented, since defendants could
not be ordered to pay or provide any benefits absent
adjudication or agreement that claimant had sustained a
compensable injury. On February 6, 1992, defendants
accordingly amended their answer to admit an injury arising
out of and in the course of employment.
The undersigned conducted an informal prehearing
conference with respective counsel on March 26, 1992.
Because the rule governing binding arbitration is silent as
Page 2
to the manner in which hearing is to be conducted, the
parties were given three options: (1) conduct the hearing
by telephone conference; (2) conduct an in-person hearing in
Des Moines; or, (3) conduct an in-person hearing in the
appropriate venue (here, Burlington) on the next occasion
this deputy happened to be scheduled for that venue. The
parties agreed to conduct the hearing by telephone
conference.
That hearing was held on April 20, 1992. Claimant was
represented by Susan Diehl, defendants by Mark Woollums.
Claimant's exhibits 1 through 3 and defendants' exhibits 1
through 8, each inclusive, were received. Claimant
testified personally. Official notice was taken of the
distance between Burlington and Davenport as shown by the
official Iowa Department of Transportation road map: 77
miles. The distance between Burlington and Rock Island,
Illinois, would be roughly equivalent.
issue
The sole issue presented for resolution is:
1. Whether defendants should be ordered to provide
alternate medical care under Iowa Code section 85.27.
findings of fact
Raelyn J. Womack suffered a work injury on July 5,
1990. She described the onset of pain in her right knee,
shooting up into the hips. She now asserts a back injury.
While defendants admit that Ms. Womack sustained an injury
arising out of and in the course of employment, they dispute
whether she sustained permanent industrial disability
causally related to this injury. In particular, they point
to the existence of a prior injury and alleged
noncooperation with treatment modalities.
After the injury, claimant first sought medical
treatment from a practitioner of chiropractic, Raymond
Hanks, Jr., D.C., who testified by deposition on April 9,
1992 (claimant's exhibit 1). Dr. Hanks had treated claimant
extensively following a 1987 automobile injury.
Dr. Hanks advised claimant to seek authorization for
medical treatment from defendants. She did so and was
referred to the company doctor, P. H. Breckner, M.D.
Defendants next referred claimant to Mitchell H. Paul, D.O.,
an orthopaedic specialist. At his advice, a return to work
was attempted in September 1990, but for whatever reason
proved unsuccessful. In October, claimant requested
authorization to treat with another chiropractor and
defendants referred her to Thomas A. Rexroth, D.C. Claimant
felt that Dr. Rexroth's treatment was unhelpful or even
aggravated her condition. At his advice, she unsuccessfully
attempted another return to work in December.
Page 3
Claimant subsequently returned to Dr. Paul, who
suggested evaluation at the University of Iowa Spine Clinic.
Defendants refused to authorize this evaluation and referred
her instead to Robert O. Crous, III, M.D., an orthopaedic
surgeon located in Rock Island, Illinois. Dr. Crous
released claimant to return to her regular duties effective
January 31, 1991, as per a videotape purportedly depicting
those duties. This litigation ensued.
Claimant saw Dr. Crous again on April 3, 1992, and was
on this occasion favorably impressed. Nonetheless, she
complains that the distance between her residence and Dr.
Crous's office renders his care unduly inconvenient within
the meaning of section 85.27.
Claimant is currently a full-time student, having begun
her course of study by way of vocational rehabilitation in
fall, 1990. She is taking instruction in design
engineering, requiring some "hands on" laboratory courses,
not amenable to tape recording in the same manner as lecture
courses. She goes to school from 1-4 hours per day, but
classes are scattered rather than in a block of time.
Ms. Womack complaints that, in order to see Dr. Crous,
she must in advance: advise teachers of her impending
absence, purchase blank audio tapes, arrange for the taping
of lectures, arrange child care for her 12- and 15-year-old
children, arrange transportation with defendants (she must
rent a car, since her own vehicle is not trustworthy over
such distances) and arrange for a friend to go with her,
since she complains she is unable to drive the entire round
trip due to low back pain aggravated by distance driving.
Dr. Hanks suggests in his deposition that driving a car
might cause her a problem, or at least more of a problem
than riding a motorcycle. Medical opinion on the
advisability of distance driving is scant in this record.
conclusions of law
In pertinent part, Iowa Code section 85.27 provides:
For purposes of this section, the employer is
obliged to furnish reasonable services and
supplies to treat an injured employee, and has the
right to choose the care. The treatment must be
offered promptly and be reasonably suited to treat
the injury without undue inconvenience to the
employee. If the employee has reason to be
dissatisfied with the care offered, the employee
should communicate the basis of such
dissatisfaction to the employer, in writing if
requested, following which the employer and the
employee may agree to alternate care reasonably
suited to treat the injury. If the employer and
employee cannot agree on such alternate care, the
commissioner may, upon application and reasonable
proofs of the necessity therefor, allow and order
Page 4
other care. In an emergency, the employee may
choose the employee's care at the employer's
expense, provided the employer or the employer's
agent cannot be reached immediately.
While defendants have offered prompt treatment, they
are not currently doing so "without undue inconvenience to
the employee." Without in any way belittling Dr. Crous's
speciality, it cannot be said that it is so esoteric that
competent practitioners cannot be found within a more
realistic geographic distance. A city the size of
Burlington must surely boast qualified practitioners of that
speciality, and claimant testified that others are to be
found in Fort Madison. Even Keokuk, Mount Pleasant and
Muscatine are much closer than Rock Island. On April 3,
claimant asserts that she took nearly three hours to drive
the distance one way (indicative of a much less leaden foot
than her testimony implied). Still, a round trip on the
order of 150 miles is no small undertaking for most people,
much less a back patient without a reliable vehicle. The
time investment alone has a serious potential for
detrimental conflict with classroom attendance.
Defendants have made clear that they intend to strictly
hold claimant to the requirements of section 85.27 with
respect to emergency care (claimant's exhibit 2). Claimant
has run up a substantial bill with Dr. Hanks continuing to
treat with him even though he has not been authorized, thus
indicating a continuing need for treatment, at least in her
mind. This decision does not address the issue of whether
those expenses are compensable, although a reasonable
argument can certainly be made that defendants cannot assert
an authorization defense at least prior to their amended
answer of February 6, 1992. See Barnhart v. MAQ, Inc., I
Iowa Industrial Commissioner Report 16 (1981); Mason v.
Thermo-Gas, File No. 819978 (App. Decn., July 28, 1989).
Claimant has not requested the right to choose her own
physician, even though defendants are very late to an
admission of compensability in this case. Rather, she
requests only that defendants authorize a physician of their
choice more conveniently located. This request is
reasonable. The medical care now offered her is not, since
it entails undue inconvenience to the employee. Note, as
persuasive authority, Commercial Carrier Corp. v. Fox, 400
So. 2d 154 (Fla. App. 1981), where the only physicians
authorized were located 50 miles from claimant, who
complained (successfully) that this travel aggravated his
pain. See also Bogguss v. Sheller-Globe Corp., File No.
927477 (Arb. Decn., July 26, 1991). The equities are with
claimant on this issue.
Rule 343 IAC 4.42(5) requires that an Order Approving
Settlement by Acquiescence be entered by the industrial
commissioner simultaneously with the entry of this decision.
Page 5
The undersigned treats himself as the industrial
commissioner's designee under 343 IAC 4.40, and thereby
collectively referred to as the industrial commissioner.
The Order Approving Settlement by Acquiescence shall be
contained with this decision.
order
THEREFORE, IT IS ORDERED:
Defendants shall provide reasonable and necessary
medical treatment under Iowa Code section 85.27 by a
physician of their choice located at a reasonable distance
from claimant's place of residence. Authorization of Dr.
Crous as the sole treating physician entails undue
inconvenience to claimant. This order does not address the
issue of whether any particular medical treatment is or has
been reasonable and necessary or causally related to the
work injury of July 5, 1990.
IT IS FURTHER ORDERED that no assessment of costs shall
be made at this time.
IT IS FURTHER ORDERED that, because this binding
arbitration does not resolve all outstanding issues, the
cause shall be returned to the prehearing docket.
AND:
IT IS ALSO ORDERED that the foregoing is approved as a
settlement by acquiescence within the meaning of rule 343
IAC 4.42(5).
Signed and filed this ______ day of ____________, 1992.
______________________________
DAVID RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Ms. Susan A. Diehl
Mr. Charles C. Brown, Jr.
Attorneys at Law
3401 Williams Blvd. SW
P.O. Box 998
Cedar Rapids, Iowa 52406-0998
Mr. Mark A. Woollums
Mr. Craig A. Levien
Attorneys at Law
600 Union Arcade Building
111 East Third Street
Page 6
Davenport, Iowa 52801
Page 1
2501; 2900
Filed April 21, 1992
DAVID RASEY
before the iowa industrial commissioner
____________________________________________________________
:
RAELYN J. WOMACK, :
: File No. 955356
Claimant, :
: D E C I S I O N
vs. :
: A N D O R D E R
LAMONT LIMITED, :
: A P P R O V I N G
Employer, :
: S E T T L E M E N T
and :
: B Y
UNITED STATES FIDELITY AND :
GUARANTY, : A C Q U I E S C E N C E
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
2900
Parties submitted alternate medical care issue to
binding arbitration under rule 343 IAC 4.42. As the rule is
silent as to the manner in which a hearing is to be
conducted, the deputy selected by the parties gave the
following options: (1) telephone conference hearing; (2)
hearing in Des Moines; or, (3) hearing in the appropriate
venue when the deputy was next assigned to service that
venue. The parties agreed to a telephone conference
hearing.
Simultaneously with and as a part of the decision, the
deputy entered an "Order Approving a Settlement by
Acquiescence" as a designee of the industrial commissioner,
and thereby collectively referred to as the commissioner
under rule 343 IAC 4.40.
2501
Defendants withdrew authorization of all physicians
except an orthopaedic surgeon located some 75-80 miles from
claimant's residence. Claimant, a back patient, asserted
that she could not drive this far due to pain, thus
requiring an assistant driver. She also needed to rent a
car by prior arrangement with defendants because her own was
not road worthy at such distances. The time necessary for
round trips had the potential to unduly interfere with
college courses claimant is taking by way of vocational
rehabilitation. Because the treatment offered by defendants
Page 2
was not "without undue inconvenience to the employee,"
within the meaning of section 85.27, defendants were ordered
to authorize another physician of their choice at a more
reasonable distance. Claimant did not seek the right to
choose her own care.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
TIMOTHY SHINN,
Claimant,
vs.
File No. 955539
COLONIAL BAKING COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
PACIFIC EMPLOYERS
INSURANCE CO.,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition of
claimant, Tim Shinn, against his employer, Colonial Baking Co.,
and its insurance carrier, Pacific Employers' Insurance Co.,
defendants. The administrative file reflects a filing of the
first report of injury on July 23, 1990. Claimant filed his
petition with the Iowa Division of Industrial Services on July
14, 1993. The parties, in their prehearing conference report,
indicated they would be ready for a hearing on the matter on or
after September 1, 1994. The case was heard on December 14,
1994, in Des Moines, Iowa at the office of the Division of
Industrial Services.
The record consists of the testimony of claimant. The
record also consists of joint exhibits 1-16 and claimant's
exhibits 1-3.
ISSUES
The issues to be determined are: 1) whether there is a
causal relationship between the work injury and any permanent
disability; and, 2) whether claimant is entitled to any permanent
partial disability benefits.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The deputy, having heard the testimony and considered all of
the evidence, makes the following findings of fact and
conclusions of law:
Claimant is 36-years-old. He is the married father of five
children. Claimant did not graduate from high school. He
completed the tenth grade but he left school prior to his
graduation. After he left school, claimant assisted his father
in the family business. His father owned and operated an
automobile garage.
Claimant completed truck driving school. He earned a
certificate of course completion. For a period of time he was
licensed to operate commercial vehicles. Claimant drove semi-
trucks for several different periods of time. However, as of the
date of the hearing, claimant did not hold a valid license for
driving trucks.
Claimant entered the military for a short period of time.
He encountered several difficulties and he left after two months.
Claimant's previous work experience centered around the
automobile area. Claimant performed various mechanical duties
when he worked in his father's garage. He installed exhaust
systems, he worked on brakes, and he installed transmissions.
Claimant drove tow trucks. He also worked as a heavy equipment
mechanic and he repaired heavy truck tires. Additionally,
claimant fabricated flatbed utility trailers.
Claimant commenced his employment with the present employer
in April of 1988. He was hired as a transport truck driver. His
duties required claimant to load and unload products and to
transport the products from Des Moines, Iowa to Lincoln, Nebraska
and then return to Des Moines. He testified he worked seven to
eight hours per day and his shift was from 7 p.m. to 3 a.m.
Claimant earned $494.00 per week.
The parties stipulated claimant's work injury occurred on
July 4, 1990. At the time, a wire cart loaded with products
toppled and landed on claimant. He was struck on the right
shoulder, the back of his head, and on his back. A co-employee
removed the rack from claimant. However, claimant did complete
his shift on the night of the work injury.
Subsequent to the work injury, x-rays were taken of
claimant's right shoulder and cervical spine (Exhibit 4-28). The
x-rays showed no abnormality (Ex. 4-28).
Michael J. Makowsky, M.D., was designated as the authorized
treating physician. He ordered a MRI. The MRI indicated there
was no tear or impingement detected (Ex. 1-4). Several steroid
injections were attempted.
Dr. Joshua Kimmelman, D.O., an orthopedic surgeon, was
designated as a treating surgeon. On January 14, 1991, Dr.
Kimmelman performed a right impingement release with resection
coracoacromial ligament and anterior acromioplasty (Ex. 2-9).
Following surgery, claimant engaged in physical therapy and work
hardening. Because claimant did not progress as quickly as his
physicians had hoped, additional physical therapy including water
exercises and whirlpool baths were prescribed. Claimant
cooperated with the medical care providers.
Dr. Makowsky released claimant to return to work in a light
duty capacity at the bakery. The physician authorized claimant
to return to truck driving but on a limited route and for
approximately six hours per shift. Claimant participated in the
light duty program; however, he voiced complaints relative to
right shoulder pain. Claimant was released to return to full
duty effective September 19, 1991 (Ex. 1-10). He did not believe
he was capable of handling his regular shift. Consequently, he
resigned from his employment with defendant.
In October of 1991, Dr. Makowsky examined claimant. The
physician opined the following in his clinical notes for October
21, 1991:
O: NO OBJECTIVE FINDINGS. HE IS DIFFUSELY TENDER UP
AND DOWN HIS RIB CAGE ALONG THE AXILLARY LINE. HIS
ROM IN ABDUCTION WAS 0-95 DEGREES. FORWARD FLEXION
WAS 0-170 DEGREES. THERE IS STILL TENDERNESS ON
PALPATION OVER THE RIGHT ANTERIOR SHOULDER.
P: I HAVE NOTHING ELSE TO OFFER HIM. I FILLED OUT A
FORM FOR THE VOCATIONAL REHABILITATION SERVICES. I
RECOMMENDED THE FOLLOWING FUNCTIONAL LIMITATIONS:
AVOID ABOVE RIGHT SHOULDER LEVEL WORK, NO REPETITIVE
PUSHING AND PULLING WITH THE RIGHT ARM, AND MAXIMUM
LIFTING WITH THE RIGHT ARM OF 25 LBS. I TOLD HIM
THAT WE WOULD SPEAK TO RENEE KING TO SEE WHAT ELSE
CAN BE DONE. I SUGGESTED THAT HE DISCONTINUE THE
EXERCISES FOR ONE WEEK TO RE-EVALUATE HIS PAIN OVER
THE ANTERIOR CHEST. HE IS TAKING DARVOCET AND
IBUPROFEN. FOR NOW, I WILL NOT PLAN TO SEE HIM BACK
AGAIN EXCEPT PRN.
(Claimant Ex. 1-2)
Dr. Makowsky authored a report concerning claimant's
permanent impairment. In the report, the occupational medicine
practitioner opined:
I have calculated that according to the American
Medical Association's "Guide's to the Evaluation of
Permanent Impairment", 3rd edition, revised, Mr. Shinn
has sustained an eight percent impairment of the right
upper extremity secondary to his right shoulder
impingement and being status post right shoulder
acromioplasty. I also recommend the following
permanent restrictions: he should avoid above right
shoulder level work, he should avoid repetitive pushing
and pulling with his right arm and he should avoid a
maximum lifting above the right arm of 25 pounds.
(Cl. Ex. 1-1)
Claimant was also evaluated by Dr. Kimmelman. In his
clinical note for September 19, 1991, Dr. Kimmelman opined:
Follow-up of right shoulder impingement release.
Tim has restriction of internal rotation, slight
forward flexion. Positive impingement test and pain in
the shoulder.
I believe this represents 5% permanent impairment of
his right shoulder.
(Cl. Ex. 1-21)
Since claimant did not return to his full duty shift, and
other suitable work was not available within the bakery, claimant
filed for unemployment benefits. An administrative law judge
awarded claimant unemployment insurance benefits (Ex. 2-37). In
rendering her decision, the judge determined that:
An individual who leaves employment because of
disability is disqualified from receiving benefits
unless he establishes that his disability was either
caused or aggravated by the employment. Hedges v. Iowa
Department of Job Service, 368 N.W.2d 862 (Iowa App.
1985). It is undisputed that Mr. Shinn's disability
was caused by a work-related injury. He is unemployed
because Colonial Baking Company could no longer provide
him with employment that would accommodate his doctor-
imposed limitations. Therefore, Mr. Shinn was
separated for no disqualifiable reason, and benefits
are allowed.
(Cl. Ex. 3-38)
Since his termination from the bakery, claimant has engaged
in construction, including roofing. Defendants directed a
private investigator to conduct surveillance on claimant during
September of 1993. Exhibit 11 is comprised of three videotapes
of claimant. Claimant is depicted carrying bundles of shingles
over his head. He is able to carry, without any apparent
difficulty, aluminum ladders. Claimant bends and reaches with
his arms. He engages in numerous physical activities which are
required in the roofing business. He works from ladders and he
is able to balance himself while he is working on a roof. This
observer noted no visible signs of any pain manifestations.
Portions of the videotape were shown to Dr. Makowsky. After
he reviewed the relevant portions, Dr. Makowsky amended his
opinions relative to claimant's condition and his work
restrictions. Dr. Makowsky opined:
I reviewed a video tape that you provided. The date
of the video tape was September 7, 1993 and September
10, 1993. In the video tape, Tim Shinn was seen
carrying building and roofing material at waist level
and above his shoulder and repetitively using his right
arm to hold an air gun. Also, in the video tape Tim
Shinn reached above shoulder level and apparently did
not have any difficulty. I did not notice any favoring
of his right arm. Mr. Shinn did not appear to have any
functional limitations as it relates to his right
shoulder.
In a March 13, 1992 letter to David D. Drake, I
indicated Mr. Shinn had sustained an 8% impairment of
his right upper extremity, secondary to right shoulder
acromioplasty. I also recommended he be assigned the
following permanent restrictions: he should avoid
above right shoulder level work, avoid repetitive
pushing and pulling with his right arm, and avoid a
maximum lifting above the right arm of twenty-five
pounds.
Based upon my review of the video tape, Mr. Shinn
does not have a permanent impairment of his right
shoulder as it relates to his previous injury. The
video tape did not show him to have any functional
limitations. Therefore, I think the previous
restrictions I assigned to Mr. Shinn are obsolete.
(Jt. Ex. 1-1)
Dr. Kimmelman also reviewed the same videotape. He opined
the following in his report of June 28, 1994:
HISTORY:
Tim comes in for reevaluation. He reports he is
unchanged since last being seen. He continues to
complain of discomfort in the shoulder and pain in the
side of the chest wall. He reports it is increased
with activity.
PHYSICAL EXAMINATION:
He lacks 35 degrees of full forward flexion. He is
barely able to get his arm behind his back. He has
full external rotation. He has not atrophy or weakness
in the upper extremity compared to the opposite side.
He has full range of motion cervical spine. He has
good sensation in the arm. The right anterior shoulder
incision is well healed.
RADIOGRAPHS:
X-ray shows well preserved joint space with no
evidence of osseous abnormality in the shoulder; fairly
flat acromial undersurface.
IMPRESSION:
Status post right impingement syndrome with
continued subjective complaints.
PLAN:
Currently not taking any medication or under any
treatment. We'll see him PRN.
ADDENDUM:
I additionally reviewed a video tape of Mr. Shinn
roofing a house. During the course of the video tape,
it was noted that he was lifting bundles of shingles
and other building material over his head, throwing
them up on the top of a rack on a pick-up truck and
demonstrating excellent ability to use his right arm
and shoulder without any apparent compensation for his
previous shoulder injury.
(Jt. Ex. 2-6,7)
Claimant testified that as of the time of the hearing, he
experienced pain in his right shoulder which radiated down to his
right ribs. He added that he did not have the full range of
motion of his right shoulder.
During cross-examination, claimant testified he is able to
perform mechanical repairs on vehicles. He can get underneath
them with the aid of a "creeper" and then complete the requisite
repairs.
He also admitted he is capable of performing residential and
some commercial remodeling work. He can operate hand tools and
air guns. He has laid carpeting. He has secured several
construction projects on his own. He has performed some concrete
work as an independent contractor. Claimant admitted he was not
registered as a contractor with the Iowa Division of Labor
Services.
Additionally, claimant assists with the family business. He
can perform basic bookkeeping skills and inventory control. He
engages in some mechanical repairs.
The burden of proof is on the party asserting the
affirmative of an issue in an administrative proceeding; "on the
party who would suffer loss if the issue were not established."
Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973); Norland v.
Ides, 412 N.W.2d 904 (Iowa 1987).
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).
Claimant has proven that he has sustained a permanent injury
to his right shoulder. He underwent a right impingement release
with resection of the coracoacromial ligament and anterior
acromioplasty. Dr. Kimmelman, the treating orthopedic surgeon,
determined claimant had a permanent impairment in the amount of
five percent. Dr. Kimmelman is a well respected orthopedic
surgeon. He also noted some reduced range of motion in
claimant's full flexion. Claimant's testimony also supports a
conclusion of permanent disability. He testified extensively
about his right shoulder pain and the limitations he has
encountered since the work injury.
It is acknowledged that Dr. Makowsky revised his opinion
after he reviewed the videotape which is exhibit 11. Originally,
he had imposed permanent restrictions. He removed those
restrictions after two years, and after claimant had endured a
rigorous home exercise program.
Therefore, it is the determination of the undersigned that
claimant has sustained a permanent partial disability as a result
of his work injury on July 4, 1990. Claimant's injury is a body
as a whole injury. His disability, if any, is calculated by the
industrial method.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to the
injured employee's age, education, qualifications, experience
and
inability to engage in employment for which the employee is
fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125
N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110
N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by a
medical evaluator does not equate to industrial disability.
Impairment and disability are not synonymous. The degree of
industrial disability can be much different than the degree of
impairment because industrial disability references to loss of
earning capacity and impairment references to anatomical or
functional abnormality or loss. Although loss of function is to
be considered and disability can rarely be found without it, it
is not so that a degree of industrial disability is
proportionally related to a degree of impairment of bodily
function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to the
injury, immediately after the injury, and presently; the situs of
the injury, its severity and the length of the healing period;
the work experience of the employee prior to the injury and after
the injury and the potential for rehabilitation; the employee's
qualifications intellectually, emotionally and physically;
earnings prior and subsequent to the injury; age; education;
motivation; functional impairment as a result of the injury; and
inability because of the injury to engage in employment for which
the employee is fitted. Loss of earnings caused by a job
transfer for reasons related to the injury is also relevant.
Likewise, an employer's refusal to give any sort of work to an
impaired employee may justify an award of disability. McSpadden
v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are
matters which the finder of fact considers collectively in
arriving at the determination of the degree of industrial
disability.
There are no weighting guidelines that indicate how each of
the factors are to be considered. Neither does a rating of
functional impairment directly correlate to a degree of
industrial disability to the body as a whole. In other words,
there are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw upon
prior experience as well as general and specialized knowledge to
make the finding with regard to degree of industrial disability.
See Christensen v. Hagen, Inc., Vol. 1, No. 3 State of Iowa
Industrial Commissioner Decisions 529 (App. March 26, 1985);
Peterson v. Truck Haven Cafe, Inc., Vol. 1, No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28, 1985).
Compensation for permanent partial disability shall begin at
the termination of the healing period. Compensation shall be
paid in relation to 500 weeks as the disability bears to the body
as a whole. Section 85.34.
Claimant left his employment with this defendant because he
believed full duty was too strenuous for him. At the time, Dr.
Makowsky also believed claimant needed to find another line of
work. Defendant-employer did not have light duty available to
claimant for an extended time period. Consequently, claimant
felt he was unable to continue his employment at the bakery. He
terminated the employment relationship.
Claimant exaggerated the severity of his right shoulder
condition. It is apparent to the undersigned that two years
after the work injury, claimant was physically capable of
handling construction work. He was even able to sustain
employment which involved working above shoulder level and
lifting more than 25 pounds. As of 1993, permanent restrictions
were lifted from claimant's work activity. He was not precluded
from pursuing all types of manual labor.
Since permanent restrictions were lifted, claimant was able
to return to any of his former occupations. He has many
transferable skills from previous jobs in the building trades or
from his experiences in auto mechanics. He is a "hands on"
person. There are many job opportunities in the labor market
which pay at nearly the same rate of pay as his job at the
bakery. Claimant has had an actual loss of earnings for the
period before he returned to construction work. However, once
the restrictions were lifted, he had the potential for achieving
nearly the same earning capacity.
Therefore, in light of the foregoing, it is the
determination of the undersigned that claimant is entitled to a
fifteen percent permanent partial disability. He is entitled to
75 weeks of permanent partial disability benefits at the
stipulated rate of $320.12 per week and commencing from September
25, 1991.
ORDER
THEREFORE, IT IS ORDERED:
Defendants shall pay unto claimant seventy-five (75) weeks
of permanent partial disability benefits at the stipulated rate
of three hundred twenty and 12/l00 dollars ($320.12) per week and
commencing from September 25, 1991.
Accrued benefits are to be paid in a lump sum together with
statutory interest at the rate of ten percent (10%) per year
pursuant to section 85.30, Iowa Code, as amended.
Defendants shall take credit for all benefits previously
paid claimant.
Costs are taxed to defendants pursuant to rule 343 IAC 4.33.
Defendants shall file a claim activity report as requested
by this division pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of May, 1995.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. David D. Drake
Attorney at Law
West Towers Office Complex
1200 35th St STE 500
West Des Moines IA 50266
Mr. Michael R. Hoffmann
Attorney at Law
Breakwater Bldg
3708 75th St
Des Moines IA 50322
1800
Filed May 24, 1995
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
TIMOTHY SHINN,
Claimant,
vs.
File No. 955539
COLONIAL BAKING COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
PACIFIC EMPLOYERS
INSURANCE CO.,
Insurance Carrier,
Defendants.
___________________________________________________________
1800
Claimant was awarded a 15 percent permanent partial
disability as a result of a work injury to his right
shoulder. Lengthy videotapes convinced the deputy
industrial commissioner that claimant exaggerated the
severity of his symptoms.