BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DAN BIRKENHOLTZ,
Claimant,
File Nos. 955799
vs. 1015924
1026343
ANDERSON ERICKSON DAIRY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
These are proceedings in arbitration upon the petitions
of claimant, Dan Birkenholtz, against his employer, Anderson
Erickson Dairy, and its insurance carrier, Employer's Mutual
Companies, defendants. The cases were heard on August 5,
1994 in Polk County, Iowa at the county courthouse. The
record consists of the testimony of claimant. The record is
also comprised of the testimony of Kevin Smith, M.D., an
occupational medicine specialist; the testimony of Cindy
Birkenholtz, spouse; Greg Wilkinson, plant manager; the
testimony of Scott Maly, a rehabilitation consultant; and
the expert witness who was retained by defendants. The
record also consists of certain exhibits. The exhibits
which are part of the record are: claimant's exhibits 1-50
and defendants' exhibits A-G. For purposes of
administrative economy, the files were consolidated at the
hearing. Each file number relates to a separate date of
injury. File number 955799 involves an alleged injury date
of March 9, 1990. File number 1015924 involves an alleged
injury date of April 30, 1992. File number 1026343 relates
to an alleged injury date of March 15, 1990.
ISSUES
The issues to be determined are:
For file number 955799, March 9, 1990 -
1) whether there is a causal relationship between the
injury of March 9, 1990 and any permanent disability; 2)
whether claimant is entitled to any permanent partial
disability benefits, and if so, the commencement date for
those benefits; and, 3) whether claimant is entitled to any
medical expenses in the form of medical mileage.
For file number 1026343, March 15, 1990 -
1) whether there is a causal relationship between the
injury of March 15, 1990 and any permanent disability; 2)
whether claimant is entitled to any permanent partial
disability benefits; 3) whether claimant is entitled to any
medical expenses in the form of medical mileage; and, 4) the
proper rate for any weekly benefits.
For file number 1015924, April 30, 1992 -
1) whether claimant is entitled to any healing period
benefits; 2) whether claimant is entitled to any permanent
partial disability benefits; 3) the appropriate rate to be
used in calculating any permanent partial disability
benefits; and, 4) whether claimant is entitled to medical
benefits in the form of medical mileage.
FINDINGS OF FACT
The deputy, having heard the testimony and considered
all the evidence, finds:
Prior to the hearing, the parties stipulated that
claimant sustained three work-related injuries which arose
out of and in the course of claimant's employment. The
stipulated dates were March 9, 1990, March 15, 1990 and
April 30, 1992.
Claimant is 43 years old. He is a 1969 high school
graduate from Prairie City High School. He entered college
at Colorado State University following his graduation from
high school. However, claimant did not meet academic
expectations and he dropped out of college after two years.
His academic grade point was less than satisfactory.
Claimant is the married father of two children. At the
time of the first two work injuries, claimant had two
dependent children. At the time of the third work injury,
claimant had only one dependent child.
Primarily, claimant had worked in hard manual labor
type jobs. Frequently, he was required to lift 50 pounds.
He was also required to walk, squat, and climb. Many of his
jobs required positions in farm operations or in the
construction
industry. Prior to his employment with this defendant,
claimant described his health, including his spine, as
excellent.
Claimant testified he commenced his employment with
this defendant in September of 1989. He was hired to work
in the cooler. His responsibilities included pulling carts
and product, filling orders and lifting bags which weighed
45 pounds each. The last position which claimant had held
within the plant was Bottle Filler-N5 Operator. It is
classified in the medium category of work (Exhibit A-5).
On March 9, 1990, claimant hit the top of his head on a
doorway. He obtained a medical consultation from K.
Barrett, M.D., on March 15, 1990 which was also the date of
claimant's second work injury. Dr. Barrett's office note
for the March 30th date details both of the work injuries.
Dr. Barrett noted:
s: Daniel comes in today complaining of shoulder
pain. He states that on 3/09/90 he was
stepping up into the cooler and bumped his head
on entrance to the cooler. He states he has
pain in his right shoulder area. It tends to
be a sharp pain. It tends to be worse after a
day has gone by. He has no numbness or
tingling in his arms. He has no loss of
strength. He also complains of an area on his
right calf, inner side, where he has been hit
and it tends to be somewhat increasing and is
painful once in awhile. He states that he
does't [sic] really notice it that much, but
his wife noticed it and would also like to get
it checked out.
o: PERR, EOMI. He has good shoulder shrug. He
has good strength in his arms. No loss to
sensation., [sic] He has no increased pain to
palpation of the right shoulder area. He has
no pain to palpation to his vertebrae. He has
good ROM of his neck.
A: 1) Probable entrapment of cutaneous nerve on
the right side of shoulder area. 2)
Varicosities of the right mid inner calf.
P: The patient is to have a C-spine and results
will be called to me. If these are negative,
we will start him on non-steroidal anti-
inflammatory drugs and some PT. He is to wear
support stockings for the varicosities of his
right leg.
(Ex. 1, page l)
Claimant returned to the family practitioner on June
18, 1990. The physician detailed the following in his
clinical note for the day:
S: This white male presents today after having
developed sudden left arm pain and left
shoulder pain while at work. He notes that his
neck popped and suddenly everything disappeared
except that then he had a spasm-type pain on
the left side of his neck. He notes that while
at work at A&D on 03/09/90, he had stepped into
the cooler and bumped his head very hard on the
entrance to the cooler. At that time he
developed pain in his right shoulder. It
tended to be a sharp pain and kept getting
worse. He notes that he went to physical
therapy for a long period of time and this pain
totally resolved. At that time he did have a
cervical x-ray which showed a normal exam.
Today he is denying any numbness and tingling
and he denies any muscle weakness. He just
notes a spasm-type right shoulder pain.
O: Examination shows an alert and oreinted [sic]
white male in no acute distress. His head is
normocephalic without evidence of trauma. Ears
are normal. Eyes are PERRLA and EOMI.
Neurologic exam shows no focal deficits.
Strength is 5/5 with normal range of motion of
the upper extremities. He has normal strength
of flexion/extension, supination and pronation.
Grip is strong with normal sensation to light
touch intact, normal graphesthesia and joint
proprioception as well. There is no evidence
of muscle weakness. Lower extremities show no
evidence of difficulty with deep tendon
reflexes being 2/4 and equal in all four
extremities.
A: Probable cervical strain secondary to activity
at work.
P: Patient was placed on Orudis 75 mg tid with
food. He is to use moist heat and ice,
alternating every 20 minutes every 3-4 hours.
If he has continued pain, he will return to the
clinic. We will consider the possibility of
physical therapy at that time.
(Ex. 2, pp. 1 & 2)
The family physician prescribed medications such as
Voltaren and physical therapy for claimant's neck and
shoulder problems. Claimant continued expressing subjective
complaints of pain in the neck and shoulder area. He also
developed superficial varicosities in his leg.
In February of 1992, claimant sought a medical
examination from John A. Stern, M.D. The physician opined
that claimant had patent deep veins but no evidence of deep
venous thrombosis (Ex. 15, p. 18). Dr. Stern related
claimant's varicose veins to claimant's work injury in March
of 1990 (Ex. 16, p. 19). Dr. Stern specifically opined:
As you can see from the temporal occurrence of his
varicose veins and his injury, it appears that the
varicose veins did present following the injury to
his posterior calf. Because there are no varicose
veins on the other leg and no family history, it
would be my assumption that the varicose veins did
result from the posterior calf injury and have
progressed since that time.
(Ex. 16, p. 19)
On February 26, 1992, claimant underwent a litigation
and excision of varicose veins of the right leg. The
surgical procedure was performed by Kathleen L. Smith, M.D.
The evidence establishes that with respect to file
number 955799, claimant was paid weekly benefits for the
period from July 25, 1990 through August 12, 1990 and from
October 1, 1990 through October 6, 1990. The corrected
stipulated rate is $331.68 per week.
The evidence also establishes that with respect to file
number 1026343, claimant was paid benefits from February 26,
1992 through March 8, 1992. The stipulated weekly benefit
rate is $325.49. Claimant is entitled to the difference
between the two totals.
In February and March of 1992, claimant returned to the
family practice clinic. He was examined by J. W. Opoien,
M.D. The physician reported the following to claimant's
workers' compensation carrier:
When I saw him 2/12 he did relate that he had
tripped over a "policeman" at work and he states
that he developed varicose veins following that
injury. I performed venous duplex scanning at
Iowa Lutheran Hospital and it did show the
varicose veins, otherwise the venous duplex study
was normal. The deep venous system appeared to be
normal. Mr. Birkenholtz feels certain that the
varicosities were not present prior to his initial
injury. It is somewhat difficult to formulate an
opinion as to whether the varicose veins are the
result of the specific injury two years ago. In
order to develop varicose veins from an injury,
you
would need to have some sort of an increased
venous pressure, most commonly as a result of a
clot forming in the deep venous system.
Theoretically, that clot could dissolve over time
but in order to create superficial varicosities,
it would be more probable that this deep venous
occlusion would need to persist for a prolonged
period of time. Based on the information that I
have, I would suspect that the varicose veins,
most likely, are not related to the injury. It
might be worthwhile to obtain an opinion from Dr.
Stern concerning the possibility of the varicose
veins being related to his previous injury.
(Ex. 14, p. 16)
Claimant testified regarding his work injury on April
30, 1992. He described the events involved in his work
injury. As he was climbing down from a ladder, claimant
stepped off a rung; he then slipped on a hose, and his left
foot hit the ladder. He twisted his right ankle and he felt
a twinge in his back.
Claimant went to the offices of Dr. Opoien. The
physician diagnosed claimant as having "back strain" (Ex. 2,
p. 4). The physician prescribed medication and physical
therapy.
The evidence establishes that claimant was paid weekly
benefits for file number 1015924. He was paid benefits for
the periods from:
May 1, 1992 through June 21, 1992
August 14, 1992 through August 27, 1992
August 30, 1992 through October 22, 1992
October 22, 1992 through November 6, 1992
June 1, 1993 through July 19, 1993.
He was paid at the weekly benefit rate of $273.76 per
week.
In October of 1992, claimant was examined and evaluated
by William R. Boulden, M.D., an orthopedic surgeon. Dr.
Boulden opined:
We reviewed his MRI. The patient does not have
any type of neural entrapment at all. He has
degenerative disc disease.
Impression: Mechanical back pain with
significant myofascial pain and tightness.
At this time in my medical opinion, the patient
has nothing to benefit from an operative
standpoint. I question the patient's back
rehabilitation process. It sounds to me as though
it has been `hit or miss' situation at different
centers. I'm not sure what's been going on all of
this time, but the patient continues to suffer. I
recommend getting his back mobilized, loosened up
and teaching him the stabilization exercise
program. Then I think he would probably benefit
from a good work conditioning program. I have not
heard him say that he's had any type of this
treatment and wonder what all of this other
therapy was involving. I would like to see him
back in two weeks to monitor his progress.
(Ex. 19, pp. 22-23)
In December of 1993, Dr. Boulden determined there was
nothing more he had to offer to claimant other than to
exercise and to engage in physical therapy. Dr. Boulden
opined the following relative to claimant's back condition:
I think it is ok for him to continue therapy
for another couple of weeks regaining better
motion. He needs to work hard on his
stabilization exercises. From my standpoint, I
anticipate that he continue working at this
regular job, however, when they take him off of
his regular job that breaks down they need to
follow his restrictions of no bending and twisting
with his back. If they do this, then I think he
will be ok. If the [sic] don't follow the
restrictions, then that will definitely put him at
risk of having increasing symptoms again and
therefore job vocational rehabilitation needs to
be considered.
In reference to his permanent partial
impairment rating, I feel that according [sic] the
AMA guidelines he has a 7% impairment of the
lumbar spine.
(Ex. 20, p. 25)
For the purposes of obtaining an independent medical
examination, claimant made an appointment with Keith W.
Riggins, M.D. Dr. Riggins interviewed and evaluated
claimant in June of 1993. The physician opined the
following in his report of June 28, 1993:
Diagnosis: 1. Intervertebral disc disease,
lumbar.
Impairment is rated in accordance with the AMA
Guide to Evaluation of Permanent Impairment at
sixteen
percent (16%) impairment of the whole person
secondary to restriction of range of motion of the
lumbar spine and seven percent (7%) percent [sic]
impairment of the whole person based on
intervertebral disc disease, category 2C, as noted
in Table 49, with these values, sixteen and seven,
combining to produce an impairment of the whole
person of twenty-two percent (22%).
Mr. Birkenholtz' current symptoms are felt to be
due to intervertebral disc disease aggravated by
his injury of March 30, 1992 and thereby converted
from an asymptomatic to a symptomatic state and is
responsible for the impairment described above.
It is recommended that he not be placed in job
assignments which require recurrent forward
flexion of more than thirty degrees. Frequent
lifting should be limited to twenty pounds with
occasional lifting to forty pounds. In neither
instance should these weights be lifted from floor
height but could be lifted at approximately waist
level from one surface to another surface at waist
level. He should not engage in activities which
require repetitive twisting or rotational motions
of the trunk. Even working within such
limitations, he is likely to have recurrent
episodes of exacerbation of his back pain.
Records of Dr. Opoien, Dr. Smith, Physical
Therapy, and Physical Therapist have been reviewed
in the course of preparation of this report. MRI
study performed in May of 1992 was also reviewed.
(Ex. 44, pp. 52 & 53)
Claimant participated in an evaluation at the Iowa
Department of Vocational Rehabilitation. He sought
assistance from the department upon his own initiative.
John Hollister completed an evaluation of claimant. In his
written report, Mr. Hollister summarized his findings. He
indicated:
Summary:
...
Dan does not make physical complaints, although
there is a combination of facial expression, and
body positioning that could indicate physical
problems. I think Dan's doctor should be aware of
future vocational planning.
While Dan has completed a number of adaptions
in his shop, he still needs additional devices to
aid in
handling heavy objects. Dan maintains that he
physically performs best if able to frequently
change work positions. I see Dan as being
impatient, and as a result may not take the time
to always use physical accommodation devices. I
do not think anyone will convince Dan to look else
where [sic] for potential employment.
It appears that we are dealing with potentially
a future small business evaluation. In my opinion
the first step is to provide an opportunity for
Dan to gain knowledge about automotive electronic
control systems. I think this could be best
accomplished by auditing that portion of the DMACC
automotive training program. I might also suggest
adaptive equipment involvement. (perhaps the
adaptive equipment technician can see addition
devices to accommodate physical restrictions)
Equipment that I could see being of benefit
would be a modified transmission jack, and a
hydraulic lift cart (to move objects from floor to
bench top height). He appears to have the welding
equipment accommodated, and should not require any
addition [sic] help with that area.
Recommendation is for self employed Automobile
Mechanic 620.261-010, and Welder-Combination
819.384-010.
(Ex. 45, pp. 60 & 61)
Claimant was then sent to Kevin F. Smith, M.D., M.P.H.,
of the Workmed Midwest Clinic. He is a specialist in
occupational medicine. Dr. Smith made several
recommendations relative to claimant's condition. In his
medical report of August 1, 1994, Dr. Smith opined:
I have reviewed my medical records and have
found that there is a difference between Mr.
Birkenholtz's subjective complaints and objective
medical findings. Due to this difference I have
made two sets of recommendations based on these
differences. Mr. Birkenholtz has many subjective
complaints of pain and limited function associated
with pain. The medical records document mostly
unremarkable objective findings on examination,
diagnostic testing, and functional capacity
testing.
I have reviewed the information that you have
provided to me. My recommendations are the
following:
1. If only considering patient's subjective
complaints:
A. The permanent restrictions of:
*No lifting greater than 10 lbs
*No repetitive bending
*Activities as tolerated
B. The restrictions started on 6/3/94
C. Job classification - physical demand level
of sedentary
D. Mr. Birkenholtz can return to work at
Anderson Erickson as a Bottle Filler
with appropriate modifications:
*Limiting work activities to below shoulder
and above knee levels.
*No lifting greater than 10 lbs from floor level
*Sit/stand as appropriate
2. If only considering objective medical findings:
A. Mr. Birkenholtz can work at a job
classification with a physical demand
level of medium.
B. Mr. Birkenholtz can return to work at
Anderson Erickson as a Bottle Filler
C. The appropriate restrictions would be:
*Unlimited sitting and standing
*Lifting 30-50 lbs above knee and below shoulder
level
*Pushing and pulling 30-50 lbs above knee and
below shoulder level
*Climbing is not an issue
*Twisting is not an issue
I hope this information will be useful to you.
It is important to remember that Mr. Birkenholtz's
diagnosis of chronic lower back pain has not
changed. It is a diagnosis based on subjective
complaints. It is often difficult to adequately
outline exact activity restrictions, so as
physicians we tend to overly guard our demand on
the patient. We also tend to set activity
restriction based on patient's own report of
activity tolerance. I believe that this is true
in Mr.
Birkenholtz's case. I also believe that on review
of the medical records and the information
supplied that Mr. Birkenholtz's job classification
should be medium physical demand level rather than
the present sedentary physical demand level that I
set in June, 1994.
(Ex. B, pp. 1 & 2)
Dr. Smith testified during the hearing. He opined
that if claimant confined himself to the restrictions listed
in 2 C above, then claimant would be able to work as a
Bottle Filler within the plant. Dr. Smith emphasized that
claimant was capable of working. Dr. Smith also testified
that claimant was capable of lifting more than 30 pounds.
Scott Maly, a vocational rehabilitation consultant,
testified that certain accommodations could be made by
defendant employer if claimant would return to work. Mr.
Maly testified that claimant had certain transferable skills
available to him but that 20 percent of the available labor
market was lost to claimant because of his low back
condition. Mr. Maly testified that claimant was precluded
from the heavy and very heavy classifications of work. Mr.
Maly also testified that most jobs which were available to
claimant were in the range of $7.50 to $8.00 per hour.
During the hearing, claimant testified that he
remodeled his home and that he expended $30,000 for a home
auto repair shop. Claimant testified he works on 6 to 8
repair projects per year. Some of his projects have
included overhauling an engine, working on a Ford tractor,
and overhauling a lawn mower. Claimant also testified that
he fabricated his own work bench and he built wood cabinets.
He testified that in a three year time period, he had earned
$4,000 from repair work.
Claimant admitted that he preferred not to work outside
the confines of his own shop. He indicated he wanted to be
self- employed. He testified his preference was based on
his ability to manage his own pain. According to claimant,
he was able to rest and move about the shop without
prolonged sitting and standing.
During cross-examination, claimant admitted that he was
modifying his claim with respect to the March 15, 1990 work
injury. He admitted there was no permanent impairment to
his leg. He indicated the only issue involved was the rate
of any weekly benefits.
Also during cross-examination, claimant testified
regarding the March 9, 1990 work injury. He admitted there
were no permanent restrictions imposed upon him with respect
to his neck.
However, claimant maintained he was paid at an incorrect
rate and that he was still claiming permanency benefits
despite the lack of physician imposed restrictions.
Greg Wilkinson, plant manager at Anderson Erickson,
testified. He indicated that he had always tried to
accommodate employees in the workplace. He testified that
he tried to modify claimant's position as a N-5 Bottle
Filler and that he had never refused to accommodate claimant
within the plant. Mr. Wilkinson testified he had made
reasonable accommodations. He was a credible witness.
CONCLUSIONS OF LAW
The first issues to address deal with the work injury
of March 9, 1990. There is no evidence in the record before
this deputy which would substantiate a permanent partial
disability. There are no permanent restrictions imposed
upon claimant as a result of this work injury. There are no
permanent impairment ratings for this work injury. The
parties stipulated the corrected weekly benefit rate is
$331.68 per week. Claimant was paid at the rate of $303.49.
He is entitled to the difference of $28.19 per week for the
following periods:
July 25, 1990 through August 12, 1990
October 1, 1990 through October 6, 1990.
The next issues deal with the work injury date of March
15, 1990. Claimant admitted there is no permanency with
respect to this particular claim. Rate is the only
remaining issue. The parties have stipulated that the
correct weekly benefit rate is $325.49 per week. The
evidence establishes that claimant was paid at the weekly
benefit rate of $303.49. Claimant is entitled to the
difference of $22.00 for the following periods:
February 26, 1992 through March 8, 1992.
The final group of issues deals with the work injury of
April 30, 1992. Claimant indicated he had submitted a
request for reimbursement of mileage expenses for medical
visits. He indicated the sum was in the amount of $1300.00.
Defendants admitted they would reimburse claimant for all
legitimate medical mileage expenses.
The next issue to address is the issue of healing
period benefits. Claimant alleges he is entitled to
benefits from February 4, 1994 through May 13, 1994 and from
June 3, 1994 through the present. Defendants maintain they
have paid claimant for all the healing period benefits. The
evidence indicates claimant was paid weekly benefits for the
following periods:
May 1, 1992 through June 21, 1992
August 14, 1992 through August 27, 1992
August 30, 1992 through October 22, 1992
October 22, 1992 through November 6, 1992
June 1, 1993 through July 19, 1993.
Section 85.34(1) provides that healing period benefits
are payable to an injured worker who has suffered permanent
partial disability until: (1) the worker has returned to
work; (2) the worker is medically capable of returning to
substantially similar employment; or (3) the worker has
achieved maximum medical recovery. The healing period can
be considered the period during which there is a reasonable
expectation of improvement of the disabling condition. See
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
App. 1981). Healing period benefits can be interrupted or
intermittent. Teal v. McCord, 394 N.W.2d 405 (Iowa 1986).
The evidence supports a conclusion that claimant is
entitled to healing period benefits for the periods from:
May 1, 1992 through June 21, 1992
August 14, 1992 through August 27, 1992
June 30, 1992 through October 21, 1992
October 22, 1992 through November 6, 1992
June 1, 1993 through July 19, 1993
February 7, 1994 through June 3, 1994
As of June 3, 1994, Dr. Smith opined that claimant
could return to work with certain restrictions. The
restrictions included:
1. Return to work
a. No lifting over 10 lbs.;
b. No repetitive bending;
c. Activities as tolerated.
d. At MMI
2. Return to clinic in one month.
3. Continue exercises.
Functional Impairment Rating: 5% of body as a whole.
(Ex. 43, p. 49)
Dr. Smith opined that claimant had reached maximum
medical improvement with respect to the injury on April 30,
1992. The deputy is in agreement with the opinion of Dr.
Smith. He was a credible witness.
The next issue to address is the issue dealing with
permanency. The parties dispute the nature and extent of
any permanency.
Since claimant has an impairment to the body as a
whole, an industrial disability has been sustained.
Industrial disability was defined in Diederich v. Tri-City
R. Co., 219 Iowa 587, 258 N.W. 899 (1935) as follows: "It
is therefore plain that the legislature intended the term
'disability' to mean 'industrial disability' or loss of
earning capacity and not a mere 'functional disability' to
be computed in the terms of percentages of the total
physical and mental ability of a normal man."
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications,
experience, motivation, loss of earnings, severity and situs
of the injury, work restrictions, inability to engage in
employment for which the employee is fitted and the
employer's offer of work or failure to so offer. Olson v.
Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963);
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980);
Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660
(1961).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
Claimant has received functional impairment ratings
from three physicians. The ratings vary from 5 percent to
22 percent. Dr. Smith has imposed some lifting
restrictions. Claimant is precluded from lifting more than
10 pounds. There is some discrepancy on the part of Dr.
Smith whether the 10 pound lifting restriction is permanent.
Dr. Riggins has imposed lifting restrictions of 20 pounds.
Claimant is also precluded from repetitive bending and from
twisting with his lower back (Ex. 20, p. 25; Ex. 44, p. 52).
The restrictions are rather severe, no matter which opinion
is accepted.
Defendants have been and they are currently willing to
accommodate claimant in the work environment. They are to
be commended for their willingness to cooperate with
claimant. They have found meaningful employment within the
plant setting for
claimant. This deputy is overwhelmingly convinced of the
genuine desire defendants have to provide suitable work for
claimant. Members of management are willing to continue
employment for claimant. Current job placement as a Bottle
Filler is available to claimant.
Claimant does not want to return to the dairy. He
desires self-employment as an auto mechanic. Claimant has
expended substantial sums of money in designing and building
a shop on his own property. He has been tinkering with
motors for several years, although the income he has
realized, is minimal.
This deputy questions whether claimant will be able to
sustain himself as a self-employed mechanic. Claimant is
unable to work on vehicles which have electronic computer
systems. He has no training in the computer area.
Claimant has investigated vocational rehabilitation,
but he is adamant. He wants to work within his own shop.
It is questionable whether claimant will pursue other areas
of training, or whether claimant will attempt to finish his
requirements for a bachelors' degree. He has approximately
two years of college. Claimant is of at least average
intelligence. He is articulate. He has approximately 20
more years before he is able to retire. If claimant does
not return to the dairy, it will be difficult for him to
find outside employment, unless he pursues some other
training.
At the time of his work injury, claimant was earning
$10.86 per hour. The hourly rate is about the highest
paying position which claimant has ever held. This deputy
doubts whether claimant will be able to earn the same hourly
wage as a self-employed mechanic, given claimant's current
training.
Therefore, after reviewing all of the evidence, after
having observed the witnesses, and after listening to the
testimony, it is the determination of the undersigned that
claimant is entitled to a 30 percent permanent partial
disability which commenced as of June 4, 1994.
Rate is an issue with respect to the work injury of
April 30, 1992. The undersigned is persuaded by the
argument of claimant. The correct weekly benefit rate is
$331.61 per week. Claimant is entitled to be compensated at
this rate for all weekly benefits due to him.
ORDER
THEREFORE, IT IS ORDERED:
With respect to file number 955799, claimant is
entitled to healing period benefits at the rate of three
hundred thirty-one and 68/l00 dollars ($331.68) for the
period from July 25, 1990 through August 12, 1990 and from
October 1, 1990 through October 6, 1990.
With respect to file number 1026343, claimant is
entitled to healing period benefits at the rate of three
hundred twenty-five and 49/l00 dollars ($325.49) for the
period from February 26, 1992 through March 8, 1992.
With respect to file number 1015924, claimant is
entitled to healing period benefits for the periods from May
1, 1992 through June 21, 1992; August 14, 1992 through
August 27, 1992; June 30, 1992 through October 21, 1992;
October 22, 1992 through November 6, 1992; June 1, 1993
through July 19, 1993; and February 7, 1994 through June 3,
1994 and said benefits shall be paid at the weekly benefit
rate of three hundred thirty-one and 61/l00 dollars
($331.61) per week.
With respect to file number 1015924, claimant is
entitled to one hundred fifty (150) weeks of permanent
partial disability benefits commencing on June 4, 1994 and
payable at the weekly benefit rate of three hundred thirty-
one and 61/l00 dollars ($331.61) per week.
Defendants shall pay unto claimant medical mileage
pursuant to section 85.27.
Defendants shall take credit for all disability
benefits previously paid to claimant.
Accrued benefits are to be paid in a lump sum together
with statutory interest at the rate of ten percent (10%) per
year.
Costs are taxed to defendants pursuant to rule 343 IAC
4.33.
Defendants shall file a claim activity report as
requested by this division and pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of November, 1994.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert W. Pratt
Attorney at Law
6959 University
Des Moines IA 50311-1540
Mr. Cecil L. Goettsch
Attorney at Law
801 Grand Ave STE 3700
Des Moines IA 50309-2727
5-1803
Filed November 23, 1994
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JAY S. ANDERBERG,
File No. 1028769
Claimant,
A R B I T R A T I O N
vs.
D E C I S I O N
WHITE CONSOLIDATED
INDUSTRIES, INC.,
Employer,
Self-Insured,
Defendant.
___________________________________________________________
5-1108
Idiopathic fall held not compensable as claimant failed to
show that the work environment aggravated the effects of his
fall.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LARRY JOHNSON,
Claimant,
vs.
File No. 956008
WAGNERS PRINTERS, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
CONTINENTAL LOSS ADJUSTING
COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on December 6, 1993, at
Davenport, Iowa. This is a proceeding in arbitration where
claimant seeks compensation for permanent partial disability
benefits as result of an alleged injury occurring on July
28, 1990. The record in the proceeding consists of the
testimony of the claimant and joint exhibits 1 through 7.
ISSUES
The issues for resolution are whether there is any
causal connection as to any permanent disability to either
his right foot or right leg as to claimant's July 28, 1990
work injury.
FINDINGS OF FACT
Claimant is 45 years old and was working for the
defendant- employer on July 28, 1990, when he fell on his
foot and injured himself. He described his injury and said
he hurt his foot, ankle and leg and had a knot on his right
leg approximately one-half way between his ankle and knee
joint. Claimant said his right leg ligaments were injured
also.
Claimant described the pain he had which he still
experiences in his foot, ankle and up to his knee. Claimant
said his leg, ankle and foot get sore after he is on them
after an eight hour shift.
Claimant was prescribed an ankle brace that came up to
his leg and covered his calf to an area below his knee.
Claimant went through work hardening which involved
ultrasound and this helped him including helping the knot
swelling on his leg.
Claimant said he still feels an ache or pain in his
Page 2
foot, ankle, and leg area where the knot and tendons were
affected. Claimant contends he will wear the brace now if
he is going to lift heavy items.
Claimant acknowledges that Dr. Motto saw him the most
and was his treating doctor. He last saw this doctor in
February 1991. Claimant further acknowledged that Dr. Motto
released him in January 1991 to return to work. Claimant
contends he still has symptoms and his right leg is numb
sometimes when he awakes in the morning.
Claimant has seen a Dr. Riggins per his attorney's
request and saw Dr. Kreiter once per defendants' request,
since he last saw Dr. Motto in January 1991.
Dr. E. A. Motto, M.D.'s, notes are joint exhibit 1,
pages 1 through 6. There is no reference to claimant's leg
until November 1, 1990. The doctor refers to the claimant's
right ankle or foot mainly. Thereafter he also refers to
claimant's lateral malleolus.
The physical therapist's notes of August 23, 1990,
refer to claimant's right ankle edema and said the entire
right ankle and foot are reddish purple. This exhibit 2,
page 7 through 12 refers to claimant's ankle and foot and
also to swelling present anterior to the lateral malleolus.
Joint exhibit 3, page 19 is the doctor's prescription
for claimant to get the custom hinged prosthesis for his
ankle.
This is obviously the brace that claimant referred to
that covered his calf. It is understandable that this type
brace must be attached to the calf or leg to be affective in
helping the foot or ankle. This does not mean it is a leg
brace unless it is found the ankle is part of the leg and
not the foot.
Dr. R. L. Kreiter, M.D.'s, reports of March 2, 1992,
refer to claimant's right ankle and foot except in his
September 16, 1993 letter, in which he is giving a
permanency rating per employer's request. The doctor opined
that claimant has 10 percent disability to claimant's lower
extremity. It is this report that is aiding the dispute as
to whether claimant's injury is to his leg or ankle or foot
or all three (Joint Exhibit 5, p. 23-24; Joint Exhibit 7, p.
29).
Dr. Keith Riggins, M.D., on June 7, 1993, referred to
claimant's right ankle and circumference of the ankle at the
malleoli which is one-half inch longer. He opined a total
of 22 percent impairment of claimant's lower extremity.
As to whether claimant has any permanent impairment,
the defendants contend not and claimant contends there is.
Dr. Motto, defendants' authorized treating doctor had not
seen claimant since February 1991, when he released
claimant. Although he was the longest treating doctor, he
has no current opinion on claimant's impairment.
Page 3
Defendants obtained Dr. Kreiter, who opined in
September 1993, that claimant had a 10 percent permanent
impairment to his lower extremity. Kreiter opined a 10
percent lower extremity disability which the undersigned
believes the doctor means impairment. The undersigned
presumed that the defendants requested this doctor rather
than Dr. Motto to make an impairment rating because he is
more of a specialist or is known to be more favorable to
defendants' position.
Claimant's doctor, Dr. Riggins opined the 22 percent of
claimant's right lower extremity.
The next dispute is whether the injury is to claimant's
right foot, right ankle or right leg. All three are right
lower extremities. This agency's experience shows that
doctors too often refer to the extremities whether it be the
foot, ankle, leg, hand, wrist, arm or shoulder. This too
often confuses the issue and creates an issue within an
issue like we have herein. An additional report was not
requested by either or both sides to nail these doctors
down, as to whether he means the leg, ankle, or foot
specifically. This writer can only guess that neither side
wanted to take the chance of what a doctor might say and
rather leave it with some confusion hoping the deputy
industrial commissioner may decide in one's favor thereby
granting greater or lessor weekly benefits.
The undersigned finds claimant's injury is to his foot
and ankle and that the ankle is considered the foot. This
is analogous to the current agency decision holding a wrist
is part of the hand and not the arm.
Understandably when one has a foot injury there is
soreness in the leg on use of the foot and ankle. The
doctors consistently refer to claimant's foot and ankle and
not his leg but they opine a right lower extremity injury.
The undersigned realizes it is often hard to understand a
wrist is the hand and not an arm and likewise how the ankle
is part of the foot and not the leg. The undersigned
believes agency precedence has established this at the
current time.
The undersigned further finds that because he believes
the doctors are referring to the ankle (which is the foot as
set out above) and also specifically referred to the foot,
that they are synonymously called the foot and ankle which
are lower extremities and conversion is not necessary.
The undersigned therefore finds that claimant has a 15
percent permanent impairment of his foot and is entitled to
22.5 weeks of benefits at the rate of $327.94.
The undersigned further finds that claimant's work
injury caused the above impairment and claimant's
entitlement to weekly compensation that is set out above.
The undersigned further finds that he believes that the more
recent impairment rating should be given more weight as the
claimant had not seen his original treating doctor for in
excess of two years. The undersigned also was more
Page 4
impressed with Dr. Riggins' report and his more detailed
examination and appeared to do more to determine the
functional impairment of claimant's foot.
CONCLUSIONS OF LAW
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).
The right of an employee to receive compensation for
injuries sustained is statutory. The statute conferring this
right can also fix the amount of compensation payable for
different specific injuries. The employee is not entitled
to compensation except as the statute provides. Soukup v.
Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
Compensation for permanent partial disability begins at
termination of the healing period. Section 85.34(2).
Permanent partial disabilities are classified as either
scheduled or unscheduled. A specific scheduled disability
is evaluated by the functional method; the industrial method
is used to evaluate an unscheduled disability. Simbro v.
Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v.
Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v.
Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
A wrist injury is an injury to the hand, not the upper
extremity. The hand extends to the distal end of the radius
and ulna, including the carpus or wrist. Elam v. Midland
Mfg., II Iowa Industrial Commissioner Report 141 (App.
1981).
It is further concluded that claimant's work injury of
July 28, 1990, caused claimant to incur a 15 percent
permanent impairment to his right foot entitling him to 22.5
permanent partial disability benefits.
Page 5
ORDER
THEREFORE, IT IS ORDERED:
That defendants shall pay to claimant twenty-two point
five (22.5) weeks of permanent partial disability benefits
at the rate of three hundred twenty-seven and 94/100 dollars
($327.94) beginning October 8, 1990.
Defendants shall pay any accrued weekly benefits in a
lump sum.
Defendants, if applicable, shall receive credit against
the award for any weekly benefits previously paid.
Defendants shall pay interest on benefits awarded as
provided in section 85.30.
Defendants shall pay costs of the action pursuant to
rule 343 IAC 4.33.
Defendants shall file claim activity reports pursuant
to rule 343 IAC 3.1(2).
Signed and filed this ____ day of December, 1993.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. James P. Hoffman
Attorney at Law
Middle Road
Keokuk, IA 52632-1087
Ms. Vicki L. Seeck
Attorney at Law
600 Union Arcade Bldg.
111 E. 3rd Street
Davenport, IA 52802-1550
5-1108, 5-1803
Filed December 15, 1993
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LARRY JOHNSON,
Claimant,
vs.
File No. 956008
WAGNERS PRINTERS, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
CONTINENTAL LOSS ADJUSTING
COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1108, 5-1803
Found claimant incurred a work injury that resulted in
claimant being entitled to 22.5 weeks of permanent partial
disability due to a 15 percent impairment to his right
foot/ankle.
5-1803
Found that the ankle is considered the foot and not the leg.
Also concluded the doctors also meant foot/ankle when they
at times referred to claimant's right lower extremity.
Page 1
before the iowa industrial commissioner
____________________________________________________________
_____
:
LARRY HOCH, :
:
Claimant, :
:
vs. : File Nos. 956038
: 976617
BRIDGESTONE/FIRESTONE, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
CIGNA, :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND, :
:
Defendants. :
____________________________________________________________
_____
The record, including the transcript of the hearing
before the deputy and all exhibits admitted into the record,
has been reviewed de novo on appeal. The decision of the
deputy filed July 13, 1992 is affirmed and is adopted as the
final agency action in this case with the following
additional analysis:
Defendants were obligated to file a first report of
injury under Iowa law. They failed to do so. This omission
was pointed out to defendants at the time of the pre-trial
conference. The hearing assignment order also ordered
defendants to file a first report of injury, and specified
that a failure to do so by the commencement of the hearing
would result in defendants' evidence and activity being cut
off. Although defendants allege they complied with the
order, there is no first report of injury on file.
Defendants have not produced a file-stamped copy showing
compliance, or any other documentation corroborating their
assertion of compliance. The sanction imposed was
appropriate.
Defendants were also obligated to provide claimant with
a list of exhibits that would be offered at the hearing.
Defendants' exhibit list, containing only a reference to all
medical reports exchanged, was wholly inadequate to allow
claimant to prepare to meet defendants' evidence at the
Page 2
hearing. Defendants failed to comply with the rules of this
agency and the hearing assignment order in regard to the
exhibit list. In addition, regardless of whether the list
complied with the order and our rules, the order cutting off
defendants' evidence and activity prohibited the
introduction of defendants' exhibits.
Defendants shall pay the costs of the appeal, including
the preparation of the hearing transcript.
Signed and filed this ____ day of January, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert W. Pratt
Attorney at Law
6959 University Avenue
Des Moines, Iowa 50311
Ms. Ann L. Clark
Attorney at Law
Terrace Center STE 111
2700 Grand Avenue
Des Moines, Iowa 50312
Ms. Joanne Moeller
Assistant Attorney General
Tort Claims Division
Hoover State Office Building
Des Moines, Iowa 50319
2908
Filed January 29, 1993
Byron K. Orton
DRR
before the iowa industrial commissioner
____________________________________________________________
_____
:
LARRY HOCH, :
:
Claimant, :
:
vs. : File Nos. 956038
: 976617
BRIDGESTONE/FIRESTONE, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
CIGNA, :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND, :
:
Defendants. :
____________________________________________________________
_____
2908
Deputy's sanction of cutting off evidence and activity for
failure to comply with order to file a first report of
injury and for failing to comply with obligation to exchange
exhibit list affirmed. Defendants failed to file a first
report of injury, and were ordered to do so by the
pre-hearing deputy prior to the hearing. No first report
was on file when the hearing commenced. Defendants
maintained they had mailed the first report, but had no
corroboration of this.
The exhibit list submitted by defendants recited merely all
medical reports exchanged. This was held inadequate and
even if the sanction of cutting off evidence and activity
were not imposed, no exhibits would be allowed.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
COREY JOHNSON,
Claimant,
vs.
File No. 956356
NORTHCOTE LOCKER,
A P P E A L
Employer,
D E C I S I O N
and
U S F & G,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
February 24, 1993 is affirmed and is adopted as the final agency
action in this case.
Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of June, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Larry G. Wilson
Mr. Donald G. Beattie
Attorneys at Law
204 8th St. SE
Altoona, Iowa 50009
Mr. Frank T. Harrison
Attorney at Law
2700 Grand Ave., Ste 111
Des Moines, Iowa 50312
5-1803
Filed June 24, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
COREY JOHNSON,
Claimant,
vs.
File No. 956356
NORTHCOTE LOCKER,
A P P E A L
Employer,
D E C I S I O N
and
U S F & G,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1803
Non-precedential, extent of disability case.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
COREY JOHNSON, :
:
Claimant, :
:
vs. :
: File No. 956356
NORTHCOTE LOCKER, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
USF & G, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Corey
Johnson, claimant, against Northcote Locker, employer, here
inafter referred to as Northcote, and United Fire & Casu
alty, insurance carrier, defendants, for workers' compensa
tion benefits as a result of an alleged injury on June 28,
1990. On January 26, 1993 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 June 28, 1990 claimant received an injury aris
ing out of and in the course of employment with Northcote.
2. Claimant is seeking temporary total or healing
period benefits only from February 7, 1991 through March 28,
1991 and defendants agree that he was not working during
this time.
3. If the injury is found to have caused permanent
disability, the type of disability is an industrial disabil
ity to the body as a whole.
4. At the time of injury claimant's gross rate of
weekly compensation was $160.00; he was single; and he was
entitled to one exemption. Therefore, claimant's weekly
rate of compensation is $103.70 according to the Industrial
Commissioner's published rate booklet for this injury.
Page 2
5. Medical benefits are not in dispute.
ISSUE
The only issue submitted by the parties or determina
tion in this proceeding was the extent of claimant's enti
tlement to disability benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
A credibility finding is necessary to this decision as
defendants placed claimant's credibility at issue during
cross-examination as to the nature and extent of the injury
and disability. From his demeanor while testifying,
claimant is found credible.
Claimant worked for Northcote, a meat locker plant, as
a manual laborer. He started part-time while in high school
and moved to a full time at $4.00 per hour in the summer of
1990. His duties consisted of assisting in meat processing,
clean up and delivery of meat products using both a company
vehicle and his personal automobile. Claimant's unrebutted
testimony established that this job was very physical,
requiring a lot of lifting.
Claimant's work injury occurred as a result of an auto
accident during delivery of meat products. While driving
through a small town, claimant's vehicle collided with a
mini-Van that had pulled out in front of him. Claimant was
driving approximately 25 mph at the time of the accident.
Claimant's testimony established that he initially injured
his neck and upper back in the accident. Claimant also
injured his jaw but did not immediately notice the symptoms
due to his other problems until approximately a week later.
After the accident, claimant was taken to a local hos
pital emergency room and treated for neck strain with a cer
vical collar and pain medication. Following hospital treat
ment, claimant was treated for cervical strain and the jaw
problems by a general practitioner, E. J. McKeever, M.D.
The cervical sprain treatment consisted of medication and
physical therapy using hot packs, ultrasound, massage, mobi
lization and use of a TENS unit, an electrical device to
reduce pain. Claimant was also taken off all work during
this treatment.
When claimant failed to improve, he was referred for
examination by Jerome G. Bashara, M.D., an orthopaedic sur
geon. After testing, Dr. Bashara likewise diagnosed only
cervical strain. Claimant remained off work under the
direction of both Drs. McKeever and Bashara until February
28, 1991 at which time he was released by Dr. McKeever for
return to work but only under physical activity restric
tions. It is found that claimant reached maximum healing at
that time. Although Dr. McKeever, in an office note of
Page 3
November 30, 1990, stated that claimant had plateaued, his
treatment continued until the release to work.
The work injury of June 28, 1990 is found to be a cause
of a 10 percent permanent impairment to the body as a whole.
Also, as a result of the injury, claimant is permanently
unable to perform physical activities consisting of repeti
tive or excessive use of his head and neck and lifting over
25 pounds above shoulder level. These findings are based
upon the views of the treating physicians, Drs. McKeever and
Bashara, who are more familiar with claimant's clinical pro
file than the contrary views of a one time evaluator
retained by defendants in this case. Also, claimant and his
mother stated that this one time evaluator stated to them
that claimant would not be able to ever again return to
physical labor work. This is quite inconsistent with the
evaluator's written report which states that there is no
permanent impairment. Consequently, the views of this
evaluator are not credible.
Based upon his credible and unrebutted testimony, it is
found that claimant had no prior work injuries or permanent
impairments.
Due to his physical limitations, claimant's medical
condition prevents him from returning to his former job or
any other manual labor work requiring claimant to violate
his work restrictions. Claimant is very young at 20 years
of age. Claimant has a high school education. Claimant's
past employment consists of only part-time, low wage work
prior to the injury. Since his release to return to work,
claimant attended a brief training session and has worked as
an asbestos remover at $7-7.50 per hour. However, this work
is intermittent. After extensive applications in the area
of his residence, he is unable to secure stable full time
employment at the present time. Claimant established that a
significant portion of his problems in finding employment
today is due to this work injury and resulting restrictions.
However, the poor state of the Iowa economy is also to
blame. Given his youth, claimant has some potential for
vocational rehabilitation. However, his potential for
future education has not been evaluated. He is interested
in additional education if he can find some financial assis
tance. However, despite this retraining potential, he
remains disabled today with an uncertain future.
From examination of all of the factors of industrial
disability, it is found that the work injury of June 28,
1990 is a cause of a 30 percent loss of earning capacity.
Page 4
CONCLUSIONS OF LAW
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 perma
nent disability must be measured pursuant to Iowa Code sec
tion 85.34(2)(u). However, unlike scheduled member disabil
ities, 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 disability" is a loss of earning
capacity resulting from the work injury. Diederich v.
Tri-City R. 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. Examina
tion 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 intellec
tually, emotionally and physically; earnings prior and sub
sequent to the injury; age; education; motivation; func
tional 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 trans
fer 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 30 percent loss of his earning capacity as a result
of the work injury. Such a finding entitles claimant to 150
weeks of permanent partial disability benefits as a matter
of law under Iowa Code section 85.34(2)(u) which is 30 per
cent 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. It was found that
claimant reached maximum healing on February 28, 1991.
Healing period benefits will be awarded accordingly.
Claimant seeks such benefits in this proceeding only from
February 7, 1991.
Page 5
ORDER
1. Defendants shall pay to claimant one hundred fifty
(150) weeks of permanent partial disability benefits at a
rate of one hundred three and 70/l00 dollars ($103.70) per
week from February 29, 1991.
2. Defendants shall pay to claimant healing period
benefits from February 7, 1991 through February 28, 1991, at
the rate of one hundred three and 70/l00 dollars ($103.70)
per week.
3. Defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against this award for all
benefits previously paid.
4. Defendants shall pay interest on unpaid weekly ben
efits 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 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.
Signed and filed this ____ day of February, 1993.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Larry G. Wilson
Mr. Donald G. Beattie
Attorneys at Law
204 - 8th Street SE
Altoona, Iowa 50009
Mr. Frank Harrison
Attorney at Law
2700 Grand Avenue STE 111
Des Moines, Iowa 50312
5-1803
Filed February 24, 1993
LARRY P. WALSHIRE
before the iowa industrial commissioner
____________________________________________________________
:
COREY JOHNSON, :
:
Claimant, :
:
vs. :
: File No. 956356
NORTHCOTE LOCKER, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
USF & G, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROBERT H. FENNEMA,
File No. 956442
Claimant,
A P P E A L
vs.
D E C I S I O N
SECOND INJURY FUND OF IOWA,
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.
ISSUES
The issue on appeal is: Whether claimant's injury on July
20, 1990 was a qualifying loss under Iowa Code section 85.64
for second injury fund benefits.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed November 10, 1993 are adopted as set forth
below. Segments designated by asterisks (*****) indicate
portions of the language from the proposed agency decision
that have been intentionally deleted and do not form a part
of this final agency decision.
Claimant was born on January 31, 1938, and attended
high school but did not graduate. Claimant's primary work
activity during the past 34 years has been as a truck
driver.
In January 1989 claimant was working as a truck driver
for Van Top Industries in Holstein, Iowa. His job involved
loading, unloading and driving. On January 25, 1989,
claimant fell on the ice while working for employer and
fractured his right femur. He was initially treated at
Buena Vista County Hospital in Storm Lake, Iowa. He was
diagnosed with a comminuted intertrochanteric fracture
extending into the subtrochanteric space of the right femur.
On January 21, 1989, he was transferred to Marian Health
Center in Sioux City, Iowa. Upon admission he was seen by
J.H. Walston, M.D. He noted a past history of diabetes and
osteomyelitis in the left foot. An examination demonstrated
a shortening in rotation of the right lower extremity which
was quite painful. On January 26, 1989, D.G. Paulsrud,
M.D., performed an open reduction and internal fixation of
the fracture. Claimant was discharged on February 7, 1989
(exhibit 12).
The record clearly indicates that claimant's right hip
fracture affected his right lower extremity. An examination
Page 2
by Michael T. O'Neal, M.D., orthopedic surgeon, on August
11, 1989, revealed back and lower extremity pain and sensory
changes consistent with a diffuse neuropathy (ex. 9).
An evaluation by Leonard E. Weber, M.D., a neurologist,
on September 22, 1989, revealed that claimant's right leg
was about one inch shorter than his left and he limped on
the right while walking. Dr. Weber indicated that
claimant's right femoral neuropathy was secondary to femoral
nerve damage related to the right femur fracture on January
25, 1989. Dr. Weber imposed physical limitations such as
prohibition against repetitive squatting, standing and
climbing due to quadriceps weakness (ex. 8).
A work capacity evaluation performed on December 12,
1989, by Karen Brown, R.P.T., revealed claimant's gait to be
extremely antalgic with a severe list to the left. Test
results indicated a five-minute maximum tolerance to static
standing and a 30-minute tolerance for active standing.
Claimant demonstrated an ability to walk for as much as 20
minutes but had severe Trendelenberg gait to the left. He
was unable to squat with evident limited bending ability.
He lacked good balance and was unable to perform lower
lifting tasks with proper mechanics due to limitation of
movement in his right hip and knee (ex. 7).
On May 8, 1990, Dr. Paulsrud stated that claimant
should not perform work activities which required prolonged
walking or standing, repetitive stooping and bending, and
lifting over 30 pounds (ex. 17).
Dr. Weber re-examined claimant on May 29, 1990. Dr.
Weber's impression after this examination was an
intertrochanteric fracture of the right femur with a
secondary right femoral neuropathy and continued discomfort
on the medial aspect of the right thigh with sensory changes
in the anterior and lateral aspects of the right thigh as
well as diminution of the right knee reflex, and some very
mild right quadriceps weakness secondary to the right
femoral neuropathy. Dr. Weber gave claimant a six percent
impairment due to right femoral neuropathy and restricted
claimant to frequently lifting no more than 20 pounds and
avoidance of repetitive forward flexion extension movements
of the back (ex. 19).
Claimant returned to work for employer as a truck
driver in June 1990. He worked with a partner and did not
assist in loading or lifting. On July 20, 1990, he was
involved in a severe motor vehicle accident when a wheel
came off the truck and he struck another vehicle. He
sustained a dislocated right shoulder. Although claimant
was hospitalized as a result of this accident, the hospital
records are not in evidence. Upon release, claimant sought
ongoing treatment with J.H. Walston, M.D., his family
physician (ex. 1).
On December 20, 1990, employer sent claimant to Joel T.
Cotton, M.D., for evaluation. Claimant presented with
complaints of right shoulder pain and an inability to reach
behind his back or fully raise his arm. He also presented
Page 3
with persistent numbness in the third, fourth and fifth
fingers of his right hand and pain on lifting and decreased
right grip. On examination, he had normal strength in his
upper extremities with no loss of strength in the right arm
either proximally or distally, including the deltoid muscles
and intrinsic muscles of the hand. His neurological
examination was normal except for diminished sensation in
the lateral aspect of the right hand and forearm. His
primary complaint originated from the shoulder joint itself.
The right arm weakness was secondary to pain in the shoulder
joint (ex. 4).
Claimant was examined by Bernard L. Kratochvil, M.D.,
on February 20, 1991. Dr. Kratochvil concluded that
claimant had a 15 percent permanent partial impairment of
the right upper extremity as a result of his shoulder
injury, a 10 percent permanent partial impairment of the
lower back and a 30 percent permanent partial impairment of
the right lower extremity as a result of the fractured femur
(ex. 20).
*****
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed November 10, 1993 are adopted as set forth
below. Segments designated by asterisks (*****) indicate
portions of the language from the proposed agency decision
that have been intentionally deleted and do not form a part
of this final agency decision. Segments designated by
brackets ([ ]) indicate language that is in addition to the
language of the proposed agency decision.
The issue to be determined is whether claimant is
entitled to Second Injury Fund benefits.
Iowa Code section 85.64 governs Second Injury Fund
liability. Before liability of the Fund is triggered, three
requirements must be met. First, the employee must have
lost or lost the use of a hand, arm, foot, leg or eye.
Second, the employee must sustain a loss or loss of use of
another specified member or organ through a compensable
injury. Third, permanent disability must exist as to both
the initial injury and the second injury.
The Second Injury Fund Act exists to encourage the
hiring of handicapped persons by making a current employer
responsible only for the amount of disability related to an
injury occurring while that employer employed the
handicapped individual as if the individual had no
preexisting disability. See Anderson v. Second Injury Fund,
262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers'
Compensation-Law and Practice, section 17-1.
The Fund is responsible for the industrial disability
present after the second injury that exceeds the disability
attributable to the first and second injuries. Section
85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467
(Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335
(Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274
N.W.2d 300 (Iowa 1970).
Page 4
The Second Injury Fund argues that they have no
liability in this case because claimant [has not suffered]
***** a qualifying second injury. Defendant's contention is
without merit.
The injury to claimant's right shoulder and neck for which
he received an injury to the body as a whole, nevertheless
qualifies as a loss or loss of use of another such member
because it affected and caused a loss of use of claimant's
right arm. Second Injury Fund of Iowa v. Braden, 459 N.W.2d
467 (Iowa 1990); Second Injury Fund of Iowa v. Neelans, 436
N.W.2d 355 (Iowa 1989).
As discussed above, the record clearly establishes that
claimant's ***** dislocated right shoulder affected the use
of his right arm. ***** Claimant's shoulder injury has
resulted in restricted use of his right hand and arm (exs.
4, 5 and 20). [Dr. Cotton found that claimant had
diminished sensation in the right hand and forearm, although
claimant's primary problem was pain in the shoulder joint.
Dr. Kratochvil's impairment rating of the right upper
extremity and his other findings show that claimant has
suffered loss of use of his right arm as well as having
shoulder problems.] Accordingly, Second Injury Fund
benefits are triggered. *****
*****
[The Second Injury Fund has raised no other issue on appeal.
Therefore, the calculation and determination of the amount
of the Fund's liability need not be discussed.]
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That the Second Injury Fund shall pay claimant one
hundred nine point four six weeks (109.56) permanent partial
disability benefits at the rate of two hundred forty-two and
99/100 dollars ($242.99) per week. The Second Injury Fund's
liability begins at the end of the employer's liability for
weekly benefits for the second injury (right arm and
shoulder).
That the Second Injury Fund pay accrued weekly benefits
in a lump sum.
That the Second Injury Fund pay interest on unpaid
weekly benefits beginning on the date of this decision.
Braden, 459 N.W.2d 467, 473.
That the Second Injury Fund shall pay the costs of this
matter including the transcription of the hearing.
That the Second Injury Fund file claim activity reports
as required by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of March, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Page 5
Copies To:
Ms. Kay E. Dull
Attorney at Law
PO Box 3107
Sioux City, Iowa 51102
Mr. James Christenson
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg
Des Moines, Iowa 50319
5-3202
Filed March 17, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROBERT H. FENNEMA,
File No. 956442
Claimant,
A P P E A L
vs.
D E C I S I O N
SECOND INJURY FUND OF IOWA,
Defendant.
____________________________________________________________
5-3202
Claimant found entitled to Second Injury Fund benefits. He
suffered a first loss of use to the right leg and a second
loss of use to the right arm. Claimant's injury was a
dislocated shoulder but it resulted in loss of use of his
right arm. Loss of use of a qualifying member triggers Fund
liability. Claimant found 60 percent industrially disabled.
The Second Injury Fund was credited with 190.54 weeks of
permanent partial disability benefits, as a result of
settlement agreements between claimant and employer with
respect to each injury. The liability of the Second Injury
Fund after credit for 190.54 weeks was 109.46 weeks.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ROBERT H FENNEMA, :
: File No. 956442
Claimant, :
: S E C O N D I N J U R Y
vs. :
: F U N D
SECOND INJURY FUND OF IOWA, :
: D E C I S I O N
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Robert
H. Fennema, claimant, against Second Injury Fund of Iowa,
defendant, to recover benefits under the Iowa Workers'
Compensation Act as a result of an injury sustained on July
20, 1990. This matter came on for hearing before the
undersigned deputy industrial commissioner on November 2,
1993, in Sioux City, Iowa. The record was considered fully
submitted at the close of the hearing. The claimant was
present and testified. The documentary evidence identified
in the record consists of claimant's exhibits 1 through 14
and 16 through 24 and defendant's exhibits A through D and F
through G.
ISSUE
Pursuant to the hearing report and order approving same
dated November 2, 1993, the only issue presented for
resolution is whether claimant is entitled to Second Injury
Fund benefits.
FINDINGS OF FACT
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant was born on January 31, 1938, and attended
high school but did not graduate. Claimant's primary work
activity during the past 34 years has been as a truck
driver.
In January 1989 claimant was working as a truck driver
for Van Top Industries in Holstein, Iowa. His job involved
loading, unloading and driving. On January 25, 1989,
claimant fell on the ice while working for employer and
fractured his right femur. He was initially treated at
Buena Vista County Hospital in Storm Lake, Iowa. He was
diagnosed with a comminuted intertrochanteric fracture
extending into the subtrochanteric space of the right femur.
On January 21, 1989, he was transferred to Marian Health
Center in Sioux City, Iowa. Upon admission he was seen by
J.H. Walston, M.D. He noted a past history of diabetes and
Page 2
osteomyelitis in the left foot. An examination demonstrated
a shortening in rotation of the right lower extremity which
was quite painful. On January 26, 1989, D.G. Paulsrud,
M.D., performed an open reduction and internal fixation of
the fracture. Claimant was discharged on February 7, 1989
(exhibit 12).
The record clearly indicates that claimant's right hip
fracture affected his right lower extremity. An examination
by Michael T. O'Neal, M.D., orthopedic surgeon, on August
11, 1989, revealed back and lower extremity pain and sensory
changes consistent with a diffuse neuropathy (ex. 9).
An evaluation by Leonard E. Weber, M.D., a neurologist,
on September 22, 1989, revealed that claimant's right leg
was about one inch shorter than his left and he limped on
the right while walking. Dr. Weber indicated that
claimant's right femoral neuropathy was secondary to femoral
nerve damage related to the right femur fracture on January
25, 1989. Dr. Weber imposed physical limitations such as
prohibition against repetitive squatting, standing and
climbing due to quadriceps weakness (ex. 8).
A work capacity evaluation performed on December 12,
1989, by Karen Brown, R.P.T., revealed claimant's gait to be
extremely antalgic with a severe list to the left. Test
results indicated a five-minute maximum tolerance to static
standing and a 30-minute tolerance for active standing.
Claimant demonstrated an ability to walk for as much as 20
minutes but had severe Trendelenberg gait to the left. He
was unable to squat with evident limited bending ability.
He lacked good balance and was unable to perform lower
lifting tasks with proper mechanics due to limitation of
movement in his right hip and knee (ex. 7).
On May 8, 1990, Dr. Paulsrud stated that claimant
should not perform work activities which required prolonged
walking or standing, repetitive stooping and bending, and
lifting over 30 pounds (ex. 17).
Dr. Weber re-examined claimant on May 29, 1990. Dr.
Weber's impression after this examination was an
intertrochanteric fracture of the right femur with a
secondary right femoral neuropathy and continued discomfort
on the medial aspect of the right thigh with sensory changes
in the anterior and lateral aspects of the right thigh as
well as diminution of the right knee reflex, and some very
mild right quadriceps weakness secondary to the right
femoral neuropathy. Dr. Weber gave claimant a 6 percent
impairment due to right femoral neuropathy and restricted
claimant to frequently lifting no more than 20 pounds and
avoidance of repetitive forward flexion extension movements
of the back (ex. 19).
Claimant returned to work for employer as a truck
driver in June 1990. He worked with a partner and did not
assist in loading or lifting. On July 20, 1990, he was
involved in a severe motor vehicle accident when a wheel
came off the truck and he struck another vehicle. He
sustained a dislocated right shoulder. Although claimant
Page 3
was hospitalized as a result of this accident, the hospital
records are not in evidence. Upon release, claimant sought
ongoing treatment with J.H. Walston, M.D., his family
physician (ex. 1).
On December 20, 1990, employer sent claimant to Joel T.
Cotton, M.D., for evaluation. Claimant presented with
complaints of right shoulder pain and an inability to reach
behind his back or fully raise his arm. He also presented
with persistent numbness in the third, fourth and fifth
fingers of his right hand and pain on lifting and decreased
right grip. On examination, he had normal strength in his
upper extremities with no loss of strength in the right arm
either proximally or distally, including the deltoid muscles
and intrinsic muscles of the hand. His neurological
examination was normal except for diminished sensation in
the lateral aspect of the right hand and forearm. His
primary complaint originated from the shoulder joint itself.
The right arm weakness was secondary to pain in the shoulder
joint (ex. 4).
Claimant was examined by Bernard L. Kratochvil, M.D.,
on February 20, 1991. Dr. Kratochvil concluded that
claimant had a 15 percent permanent partial impairment of
the right upper extremity as a result of his shoulder
injury, a 10 percent permanent partial impairment of the
lower back and a 30 percent permanent partial impairment of
the right lower extremity as a result of the fractured femur
(ex. 20).
Claimant entered into a settlement agreement with
employer and insurance carrier on both claims. As to the
January 29, 1989 injury, claimant settled for 90.54 weeks of
permanent partial disability benefits. As to the July 20,
1990 injury, claimant settled for 100 weeks of permanent
partial disability benefits. Thus, the Second Injury Fund
is entitled to a credit for 190.54 weeks of permanent
partial disability benefits.
CONCLUSIONS OF LAW
The issue to be determined is whether claimant is
entitled to Second Injury Fund benefits.
Section 85.64 governs Second Injury Fund liability.
Before liability of the Fund is triggered, three
requirements must be met. First, the employee must have
lost or lost the use of a hand, arm, foot, leg or eye.
Second, the employee must sustain a loss or loss of use of
another specified member or organ through a compensable
injury. Third, permanent disability must exist as to both
the initial injury and the second injury.
The Second Injury Fund Act exists to encourage the
hiring of handicapped persons by making a current employer
responsible only for the amount of disability related to an
injury occurring while that employer employed the
handicapped individual as if the individual had had no
preexisting disability. See Anderson v. Second Injury Fund,
262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers'
Page 4
Compensation-Law and Practice, section 17-1.
The Fund is responsible for the industrial disability
present after the second injury that exceeds the disability
attributable to the first and second injuries. Section
85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467
(Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335
(Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274
N.W.2d 300 (Iowa 1970).
The Second Injury Fund argues that they have no
liability in this case because claimant does not suffer a
qualifying first injury or a qualifying second injury.
Defendant's contentions ware without merit.
The injury to claimant's right shoulder and neck for
which he received an injury to the body as a whole,
nevertheless qualifies as a loss or loss of use of another
such member because it affected and caused a loss of use of
claimant's right arm. Second Injury Fund of Iowa v. Braden,
459 N.W.2d 467 (Iowa 1990); Second Injury Fund of Iowa v.
Neelans, 436 N.W.2d 355 (Iowa 1989).
As discussed above, the record clearly establishes that
claimant's right hip fracture affected the use of his right
leg and his dislocated right shoulder affected the use of
his right arm. Medical doctors have imposed restrictions on
claimant's ability to use his lower extremity (exs. 1, 8,
9). Claimant's shoulder injury has resulted in restricted
use of his right hand and arm (exs. 4, 5 and 20).
Accordingly, Second Injury Fund benefits are triggered and
an assessment of industrial disability is appropriate in
this case.
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 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
Page 5
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 is 55 years old. Claimant is near normal
retirement age. This tends to reduce the amount of earning
capacity he has lost as a result of his injury. Rowe v.
Nichols-Homeshield, Inc., file number 935936 (App. Dec.
August 20, 1993). Claimant attended school through the
twelfth grade but never graduated. He is foreclosed from
performing his prior work as a truck driver. Claimant has
not worked since his July 20, 1990 injury. He applied for
and received social security disability benefits on November
30, 1990. His motivation to be retrained or re-enter the
job market is questionable. He has not made a serious
effort to be employed and there is a paucity of evidence to
determine what claimant can and cannot do within the
boundaries of his restrictions and disability. Schofield v.
Iowa Beef Processors, Inc., II Iowa Industrial Commissioner
Report 334, 336 (1981).
An employee making a claim for industrial disability
will benefit from a serious attempt to find work in the
competitive employment market. Hild v. Natkin & Co., I Iowa
Industrial Commissioner Report 144 (App. Dec. 1981).
Employers are responsible for the reduction in earning
capacity caused by the injury. They are not responsible for
a reduction in actual earnings because the employee resists
Page 6
returning to work. Williams v. Firestone Tire and Rubber
Co., III Iowa Industrial Commissioner Report 279 (1982).
Claimant's industrial disability is reduced by his lack
of interest in vocational rehabilitation and returning to
the competitive job market.
After carefully considering all the factors of
industrial disability and employing agency expertise, the
undersigned concludes that claimant is 60 percent
industrially disabled. This is equivalent to 300 weeks.
The Second Injury Fund's liability is reduced by the
combined losses of claimant's right leg (90.54 weeks) and
claimant's right arm (100 weeks). The total reduction is
190.54 weeks. The Second Injury Fund's liability is 109.46
weeks of benefits.
ORDER
THEREFORE IT IS ORDERED:
That the Second Injury Fund shall pay claimant one
hundred nine point four six weeks (109.56) permanent partial
disability benefits at the rate of two hundred forty-two and
99/100 dollars ($242.99) per week. The Second Injury Fund's
liability begins at the end of the employer's liability for
weekly benefits. Finneman v. Wilson Foods Corp., file
numbers 834479/913590 (App. Dec. March 17, 1993).
That the Second Injury Fund pay accrued weekly benefits
in a lump sum.
That the Second Injury Fund pay interest on unpaid
weekly benefits beginning on the date of this decision.
Braden, 459 N.W.2d 467, 473.
That the Second Injury Fund pay all costs pursuant to
rule 343 IAC 4.33.
That the Second Injury Fund file claim activity reports
as required by this agency pursuant to rule 343 IAC 3.1.
Page 7
Signed and filed this ____ day of November, 1993.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Ms Kay E. Dull
Attorney at Law
PO Box 3107
Sioux City, Iowa 51102
Mr. James Christenson
Assistant Attorney General
Hoover State Office Bldg
Des Moines, Iowa 50319
53202
Filed November 10, 1993
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROBERT H FENNEMA,
File No. 956442
Claimant,
S E C O N D I N J U R Y
vs.
F U N D
SECOND INJURY FUND OF IOWA,
D E C I S I O N
Defendant.
___________________________________________________________
53202
Claimant found entitled to Second Injury Fund benefits. He
suffered a first loss of use to the right leg and a second
loss of use to the right arm. Claimant found 60 percent
industrially disabled. The Second Injury Fund was credited
with 190.54 weeks of permanent partial disability benefits
as a result of settlement agreements between claimant and
employer with respect to each injury. The liability of the
Second Injury Fund after credit for 190.54 weeks was 109.46
weeks.