BEFORE THE IOWA INDUSTRIAL COMMISSIONER
DENNIS MALLORY,
Claimant,
vs. File Nos. 960214; 1050300;
HORNBACK & ASSOCIATES and 1050301
HILLANDALE FARMS OF IOWA,
Employers, A R B I T R A T I O N
D E C I S I O N
and
HERITAGE INSURANCE and
AETNA CASUALTY & SURETY
COMPANY,
Insurance Carriers,
Defendants.
-------------------------------------------------------------------
STATEMENT OF THE CASE
Claimant filed petitions for arbitration as a result of
injuries to the left lower extremity which allegedly
occurred on July 3, 1990 in file number 960214, with respect
to defendant Hornback and Associates, insured by Heritage
Insurance. Claimant alleged injuries to the left lower
extremity on July 31, 1992 in file number 1050300, with
respect to defendant Hillandale Farms as insured by Aetna
Casualty and Surety along with an injury on February 17,
1993 in file number 1050301, as against the same defendant
and insurance carrier. All defendants denied liability and
multiple issues are presented for resolution.
This case was heard and fully submitted at Des Moines,
Iowa on April 21, 1995. The record in the proceeding
consists of joint exhibit 1, claimant exhibits 5, 6 and 12,
defendant Hornback and Associates exhibits 7 through 11 and
13; and testimony from Dennis Mallory, Thomas Mallory, Gary
Bartness, Pamela Bartness, Glenn Troyna, Thomas Hornback,
David Smothers and Louis Rizutti. Steven Jayne, Attorney at
Law, represented claimant. Glenn Goodwin, Attorney at Law,
represented Hillandale Farms of Iowa and Aetna Casualty and
Surety Company. Roger Ferris, Attorney at Law, represented
Hornback and Associates and Heritage Mutual Insurance
Company.
ISSUES
The parties present the following issues for
determination.
1. Did claimant sustain work related injuries on July
3, 1990, July 31, 1992 and February 17, 1993, which arose
out of and in the course
of employment?
2. The extent of permanent disability causally
connected to each work injury.
3. The extent of temporary disability causally
connected to each work injury.
4. The commencement date for permanent disability
payments.
5. Whether section 85.27 medical expenses are causally
connected to each work injury.
6. Whether an employer/employee relationship existed
with respect to the February 17, 1993 injury; and
7. Whether defendants Hornback and Associates and
Heritage Insurance are entitled to
a credit for prior payment of benefits
amounting to 19 3/7 weeks at the rate of $178.65.
FINDINGS OF FACT
Having heard the testimony of the witnesses and having
considered all of the evidence in the record the deputy
industrial commissioner finds:
Dennis Mallory, claimant, worked for defendant Hornback
and Associates as a brick tender. Claimant, on July 3,
1990, was carrying a large block with the assistance of his
brother. Claimant stepped into a rut injuring his knee
while in the course of employment. The medical records
created close in time to the initial event indicate a
history consistent with the facts presented. Claimant, a
poor historian, exaggerated the size of the hole and weight
of the block as time went on. However, the medical history
taken close in time to the actual event is consistent with
facts presented at the time of hearing. Therefore,
claimant's testimony concerning a work injury on July 3,
1990 while employed by Hornback and Associates is found
credible. The deputy finds that claimant sustained a work
injury on July 3, 1990 arising out of and in the course of
employment with Hornback and Associates. The injury was a
sprain to the left knee.
The deputy finds Thomas Mallory as an unreliable
witness. Exhibit 10 and the testimony from Thomas Mallory
is found entitled to little or no consideration. Thomas
Mallory, a felon, testified at hearing while adorned in
shackles and leg irons. Thomas Mallory, currently in
custody of the Polk County Sheriff on alleged probation
violations for a prior felony, provided testimony that was
entirely inconsistent with prior statements. Based upon the
appearance, action, demeanor, prior felony record and
inconsistent statements of Thomas Mallory, his testimony and
letter marked exhibit 10 are found to lack credibility.
As a result of the July 3, 1990 work injury with
Hornback and Associates claimant was under medical care from
July 4, 1990 through September 8, 1990. The time off work
is causally connected to the work injury based upon medical
records which document continuing medical treatment for
the left knee strain.
The defendant insurance carrier failed to give claimant a timely
notice under Iowa Code section 86.13, with respect to
termination of temporary disability benefits. Additional
temporary disability benefits were paid by the insurance
carrier effective September 9, 1990 through November 16,
1990 in order to fulfill the obligation under Iowa Code
section 86.13.
Claimant continued to suffer with left knee pain
intermittently until July 31, 1992 when an exacerbation of
the preexisting condition occurred while working for another
employer. The deputy finds that claimant's medical problems
with the left knee incurred effective July 3, 1990 through
July 30, 1992 are a direct and proximate result of the work
injury with Hornback and Associates. All medical expenses
incurred for treatment of the left knee between those dates
is causally connected to the July 3, 1990 work injury.
Claimant sustained a work injury with Hillandale Farms
of Iowa on July 31, 1992. Claimant had continuing problems
with the left knee to that date. Claimant's work for
Hillandale Farms required extensive climbing of stairs.
This work, a repetitive trauma, exacerbated the preexisting
condition resulting in a significant flare-up on July 31,
1992. The deputy finds that the July 31, 1992 left knee
pain is a new and distinct work related injury to the left
knee which is best qualified as an exacerbation of a
preexisting condition.
Claimant lost time from work effective August 1, 1992
through August 24, 1992 as a result of the July 31, 1992
work injury to the left knee incurred with Hillandale Farms.
The causal connection to the work injury is clearly
demonstrated by medical records indicating continuous
treatment for the July 31, 1992 exacerbation.
Claimant incurred medical expenses causally connected
to the work injury of July 31, 1992 beginning July 31, 1992
through February 16, 1993. Medical expenses incurred during
that time are causally connected to the work injury of July
31, 1992 based upon ongoing complaints of pain in the left
knee temporally related to the July 31, 1992 repetitive
trauma injury.
On February 17, 1993 claimant sustained a traumatic
injury to the left knee when running. Claimant was not
employed for Hillandale Farms on February 17, 1993.
Claimant was not employed for Hornback and Associates on
February 17, 1993. Claimant's left knee injury of February
17, 1993 was traumatic in nature and required immediate
medical treatment and surgical intervention. The situs of
the injury was essentially the same however, the degree and
extent of injury were greatly exacerbated as a result of the
February 17, 1993 injury. The event of February 17, 1993
breaks the causal connection of claimant's left knee
problems to the work related injuries incurred with Hornback
and Associates and Hillandale Farms. The deputy finds that
claimant has failed to establish a causal connection of the
February 17, 1993 injury to work for Hillandale Farms. The
deputy finds that an employer/employee relationship did not
exist as of February 17, 1993 between claimant and
Hillandale Farms. The deputy further finds that
claimant has failed to establish a causal connection between
medical treatment incurred for the left knee on and after
February 17, 1993 and any prior left knee injury with
Hillandale Farms and Hornback and Associates. The medical
evidence, when viewed as a whole, indicates that all
treatment after February 17, 1993 was the direct and
proximate result of a trauma injury incurred on that same
date.
Claimant has failed to offer sufficient evidence to
establish permanent disability causally connected to the
July 3, 1990 left knee injury with Hornback and Associates.
The record is devoid of medical evidence indicating
permanent functional impairment incurred as a result of that
particular knee injury. The one medical record authored by
Val Lyons, M.D., on April 26, 1994 indicates 10 percent
impairment to the left lower extremity. The deputy
industrial commissioner finds that the impairment issued by
Dr. Lyons is causally connected to the February 17, 1993
injury. The records are devoid of evidence which would
causally connect any permanent impairment to the July 3,
1990 work injury.
With respect to the July 31, 1992 left knee injury
incurred while working for Hillandale Farms, claimant has
failed to establish a causal connection to permanent
disability. As previously stated, the 10 percent impairment
rating authored by Dr. Lyons can only be attributed to the
February 17, 1993 injury based upon the medical evidence
presented. The evidence in the record fails to establish
permanent functional impairment resulting from the July 31,
1992 aggravation injury because of the intervening February
17, 1993 injury. Claimant's request for permanent
disability with respect to the July 31, 1992 injury fails.
CONCLUSIONS OF LAW
The first issues concern whether claimant established
work related injuries arising out of and in the course of
employment.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. of App. P. 14(f).
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241
N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261
Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of"
refer to the cause or source of the injury. The words "in
the course of" refer to the time, place and circumstances of
the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa
1986); McClure v. Union County, 188 N.W.2d 283 (Iowa
1971).
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).
When the disability develops gradually over a period of
time, the "cumulative injury rule" applies. For time
limitation purposes, the compensable injury is held to occur
when because of pain or physical disability, the claimant
can no longer work. McKeever Custom Cabinets v. Smith,
379 N.W.2d 368 (Iowa 1985).
The deputy industrial commissioner holds that claimant
sustained an injury to the left knee on July 3, 1990 arising
out of and in the course of employment with Hornback and
Associates.
The deputy industrial commissioner holds that claimant
sustained a cumulative trauma aggravation injury to the left
knee on July 31, 1992 arising out of and in the course of
employment with Hillandale Farms of Iowa.
The deputy industrial commissioner holds that claimant
failed to establish by a preponderance of the evidence that
he sustained a work related injury to the left knee on
February 17, 1993 with employer Hillandale Farms. Claimant
failed to establish an employee/employer relationship on
February 17, 1993. Furthermore, claimant failed to
establish medical causation with respect to the February 17,
1993 injury.
The next issues concern entitlement to permanent
disability.
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).
The deputy industrial commissioner holds that claimant
failed to establish by a preponderance of the evidence
permanent disability resulting from the July 3, 1990 left
knee injury incurred while employed by Hornback and
Associates. Insufficient medical evidence was presented to
establish permanent functional impairment as a result of the
left knee strain. Claimant's request for permanent
disability thereby fails.
The deputy industrial commissioner holds that claimant
failed to establish entitlement to permanent disability
benefits as a result of the July 31, 1992 left knee injury
incurred while working for Hillandale Farms.
Insufficient medical evidence was presented to establish
permanent functional impairment resulting from the
cumulative trauma aggravation injury to the left knee.
Claimant's request for permanent disability benefits thereby
fails.
The next issue concerns entitlement to temporary
disability benefits.
Iowa Code section 85.33(1) allows for temporary total
disability during a period of recuperation. Claimant
established off work status with respect to the July 3, 1990
injury with Hornback and Associates effective July 4, 1990
through November 16, 1990 including the statutory Iowa Code
section 86.13 notice.
The deputy industrial commissioner further holds that
claimant incurred temporary total disability beginning
August 1, 1992 through August 24, 1992 with respect to the
July 31, 1992 work injury incurred with Hillandale Farms.
Claimant was off work during both periods of time receiving
appropriate medical treatment and recuperating from the
respective work injuries to the left knee.
Having established an entitlement to temporary
disability and no entitlement to permanent partial
disability, the issue of credit for prior payments made by
Hornback and Associates and Heritage Mutual Insurance
becomes moot. Claimant is entitled to the full period of
benefits paid beginning July 4, 1990 through November 16,
1990 as he was temporarily totally disabled and the
insurance company failed to give appropriate notice until
the second payment was made. Therefore, no further
discussion will be made concerning the credit for benefits
previously paid.
The final issue concerns entitlement to Iowa Code
section 85.27 medical benefits.
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Section 85.27. Holbert
v. Townsend Engineering Co., Thirty-second Biennial
Report of the Industrial Commissioner 78 (Review-reopen
1975).
The deputy industrial commissioner holds defendants
Hornback and Associates and Heritage Insurance liable for
medical expenses incurred effective July 3, 1990 through
July 30, 1992. Claimant received ongoing treatment and care
during the period in question without any break in the
causal connection. The medical records clearly establish
that all treatment during that period in question was a
direct and proximate result of the initial injury of July 3,
1990.
The deputy industrial commissioner holds that
defendants Hillandale Farms of Iowa and Aetna Casualty and
Surety are liable for all medical expenses incurred
effective July 31, 1992 through February 16, 1993. The
aggravation injury of July 31, 1992 broke the causal
connection to the initial injury of July 3, 1990. Claimant
then received ongoing medical care which would not have been
received but for the aggravation injury of July 31, 1992.
The trauma injury of February 17, 1993 breaks the
causal connection and prevents claimant from establishing
liability of either defendant for any medical expenses
incurred on and after February 17, 1993.
ORDER
THE DEPUTY INDUSTRIAL COMMISSIONER ORDERS:
Claimant shall take nothing from file number 1050301.
Defendants Hornback and Associates and Heritage
Insurance shall pay claimant temporary total disability
benefits at the rate of one hundred seventy-eight and 64/100
dollars ($178.64) per week for the period beginning July 4,
1990 through November 16, 1990 and Iowa Code section 85.27
medical expenses incurred effective July 3, 1990 through
July 30, 1992.
Defendants Hillandale Farms of Iowa and Aetna Casualty
and Surety shall pay claimant temporary total disability
benefits at the rate of one hundred fifteen and 84/100
dollars ($115.84) per week for the period commencing August
1, 1992 through August 24, 1992 and shall pay Iowa Code
section 85.27 medical expenses effective July 31, 1992
through February 16, 1993.
It is further ordered that defendants shall receive
credit for benefits previously paid.
It is further ordered that all accrued benefits are to
be paid in a lump sum.
It is further ordered that interest shall accrue
pursuant to Iowa Code section 85.30.
It is further ordered that the costs of this action are
assessed against defendants pursuant to 343 IAC 4.33. Each
defendant shall bear their own costs. Each defendant shall
pay one-half (1/2) of the costs incurred by claimant.
It is further ordered that defendants shall file claim
activity reports pursuant to 343 IAC 3.1.
Signed and filed this __________ day of May, 1995.
______________________________
MARLON D. MORMANN
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Steven C. Jayne
Attorney at Law
5835 Grand Avenue STE 201
Des Moines, Iowa 50312
Mr. Roger L. Ferris
Attorney at Law
1900 Hub Tower
699 Walnut Street
Des Moines, Iowa 50309
Mr. Glenn Goodwin
Attorney at Law
Equitable Building, 4th Floor
Des Moines, Iowa 50309
1801; 2500
Filed May 2, 1995
MARLON D. MORMANN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
DENNIS MALLORY,
Claimant,
vs. File Nos. 960214; 1050300;
HORNBACK & ASSOCIATES and 1050301
HILLANDALE FARMS OF IOWA,
Employers, A R B I T R A T I O N
D E C I S I O N
and
HERITAGE INSURANCE and
AETNA CASUALTY & SURETY
COMPANY,
Insurance Carriers,
Defendants.
1801; 2500
Claimant established entitlement to temporary total
disability due to a sprain of the left knee. The injury was
aggravated by a subsequent employer. A third non-work
related injury broke the causal connection and prevented
claimant from establishing entitlement to permanent
disability benefits. Medical benefits awarded.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
LARRY R. PETERSEN, :
:
Claimant, : File No. 960674
:
vs. : A P P E A L
:
WILSON FOODS, : 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.
ISSUE
Claimant states the following issue on appeal: What is the
industrial disability of the claimant?
FINDINGS OF FACT
Claimant was born May 1, 1942, and was 51 years of age at
the time of hearing. (Transcript, page 6) Claimant is a high
school graduate and describes himself as an average student.
(Tr., pp. 7-8)
After graduating from high school the claimant attended
Linotype school in Charles City, Iowa and earned a certificate
upon completing the 17 week program. For the next 4-5 years the
claimant worked for several newspapers as a Linotype operator.
(Tr., pp. 8-11)
As the Linotype printing process was becoming obsolete,
claimant decided to seek employment in a different occupational
field. For approximately two years the claimant operated a
multiwall machine for Georgia-Pacific. (Tr., pp. 11-12)
Claimant's next employment was with defendant employer,
Wilson Foods. The claimant began his employment on April 17,
1967 and has been continuously employed by Wilson Foods since
that date. (Tr., p. 13)
During his more than 25 years with defendant employer,
Page 2
claimant has performed a variety of jobs. From the time of hire
until June 1985 the claimant worked in various positions on the
production line. (Joint Exhibit 57; Tr., pp. 16-25) From July
1985 until April 1991 the claimant worked in the mechanical
department repairing and maintaining machinery as well as
welding. (Jt. Ex. 57; Tr. pp. 34-35) From April 8, 1991 to
present the claimant has worked as a knife sharpener. (Jt. Ex.
57; Tr., pp. 43-44) The jobs performed by claimant at Wilson
Foods required repetitive movement of the shoulders, arms and
hands.
On March 19, 1988 claimant sustained an injury to his right
shoulder arising out of and in the course of his employment with
defendant employer. (Jt. Ex. 60; Tr. p. 36) The claimant was
seen by Keith Garner, M.D., Wilson Foods' company doctor. An x-
ray showed mild arthritic changes at the AC joint. (Jt. Ex. 7)
Claimant continued to have right shoulder problems. In late
summer of 1990 claimant was referred to an orthopedic specialist,
Scott Neff, D.O. Dr. Neff's examination, including x-rays,
showed significant spurring and lipping of the acromioclavicular
joint and narrowed subacromial space. He believed claimant had a
chronic tear of the right rotator cuff and an impingement
syndrome. Dr. Neff recommended an arthrogram and bone scan, and
limited claimant to work at or below shoulder height. (Jt. Ex.
28)
The arthrogram confirmed the rotator cuff tear. Surgery was
scheduled and performed by Dr. Neff on September 18, 1990. (Jt.
Ex. 45) Claimant received follow-up care until December 1990
when he was released to return to light duty work. (Jt. Ex. 46)
The claimant was assigned a light duty job by defendant employer
picking up hooks weighing less than one pound. (Tr., p. 42)
On April 8, 1991 the claimant successfully bid on a job as a
knife sharpener and has continuously been in that job through the
date of hearing (February 10, 1994). (Jt. Exs. 53, 57) The
knife sharpening job is considered light duty and allows the
claimant to work at a table that is waist high. (Tr., pp. 43-44)
On April 24, 1991, after having already begun the job as a knife
sharpener, the claimant was released by Dr. Neff with the
following restrictions: "No lifting or carrying 10-20 lbs. or
less; stay on knife sharpening job." (Jt. Ex. 41) Dr. Neff
testified that as of the date of his deposition (November 1,
1993), the claimant was restricted to lifting 25 pounds or less
above the height of his shoulder with a one arm lift with his
right arm. Dr. Neff felt the claimant could lift 40-50 pounds
above the shoulders using both arms. Dr. Neff felt claimant had
full range of motion of his right shoulder and that he had
regained excellent strength in his right shoulder since his last
examination of March 3, 1993. (Jt. Ex. 43; Jt. Ex. 51, pp.
Page 3
23-24) Dr. Neff felt the claimant had received an "excellent
result" from the surgery and subsequent rehabilitation. (Jt. Ex.
51, pp. 21-22)
The claimant is motivated and defendant employer has at all
times accommodated claimant's work restrictions. Since his
return to work in April 1991 claimant has missed little, if any,
work due to his right shoulder. (Tr., pp. 47-49, 86) Claimant
does not require any medical treatment for his right shoulder and
for the past two years has not been prescribed any medication for
his shoulder. (Tr., pp. 86, 93) Dr. Neff has assigned a six
percent permanent impairment to the right upper extremity. (Jt.
Ex. 42)
Claimant has experienced a loss in actual earnings. At the
time of injury claimant was paid $10.85 per hour (Tr., p. 87) and
worked overtime hours ranging from a few hours per week up to 20
hours per week. (Tr., pp. 50, 95) As a knife sharpener the
claimant is paid $10.10 per hour (Tr., pp. 55, 87), works 36-40
hours per week (Tr., p. 50) and during some months works 4-8
hours of overtime. (Tr., p. 95) The claimant's tax returns
reflect the following wages paid to him by defendant employer:
1987 $26,376
1988 $26,567
1989 $27,390
1990 $20,725
1991 $21,134
1992 $21,912
1993 $21,467
(Jt. Ex. 56; Tr., pp. 51-52)
REASONING AND CONCLUSIONS OF LAW
The only issue on appeal is the extent of claimant's
industrial disability.
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
Page 4
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. Iowa Code section 85.34.
Claimant, a high school graduate, 51 years of age at the
time of hearing, sustained a work injury to the right shoulder
that resulted in surgical intervention. Claimant is motivated,
and even though defendant employer has at all times accommodated
claimant's work restrictions, the fact remains claimant has
experienced an actual loss of earnings. The actual loss of
earnings, time of injury versus time of hearing, is seven percent
when measured strictly on the basis of hourly rate of pay, more
substantial when the loss of overtime pay is taken into account.
As reflected by Joint Exhibit 41 and Dr. Neff's deposition
testimony, claimant has work restrictions and those work
restrictions cause the industrial commissioner to conclude
claimant is somewhat less attractive to employers in the open
labor market. These factors establish the claimant has sustained
a loss of earnings capacity. On the other hand, even though
there was surgical intervention, the result from the surgery and
subsequent rehabilitation was excellent, the six percent
permanent impairment rating is very modest, the claimant has
missed little, if any, work since beginning the job as a knife
sharpener on April 8, 1991, and the claimant does not require
medical treatment or prescription medication for his right
shoulder. Additionally, claimant has returned to a stable
employment relationship with his employer of more than 25 years
as evidenced by defendant employer's full and complete compliance
with claimant's work restrictions and the fact that claimant has
been continuously employed as a knife sharpener for almost three
Page 5
years at the time of hearing.
For these reasons, it is the decision of the industrial
commissioner that Larry R. Petersen has sustained a 10 percent
industrial disability.
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That defendant shall pay claimant permanent partial
disability benefits for fifty (50) weeks at the rate of three
hundred eleven and 55/100 dollars ($311.55) per week commencing
April 24, 1991.
That defendant shall receive credit for permanent partial
disability benefits previously paid.
That defendant shall pay interest on the award as governed
by Iowa Code section 85.30.
That claimant shall pay the costs of the appeal including
the transcription of the hearing. Defendant shall pay all other
costs.
That defendant shall file claim activity reports as required
by this agency pursuant to rule 343 IAC 3.1(2).
Signed and filed this ____ day of October, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Steve Hamilton
Attorney at Law
P.O. Box 188
606 Ontario St.
Storm Lake, Iowa 50588
Mr. Charles T. Patterson
Attorney at Law
P.O. Box 3086
Sioux City Iowa 51102
5-1803
Filed October 31, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
LARRY R. PETERSEN, :
:
Claimant, : File No. 960674
:
vs. : A P P E A L
:
WILSON FOODS, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
_________________________________________________________________
5-1803
Claimant awarded 10 percent industrial disability based on
all factors.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
LARRY R. PETERSEN, :
: File No. 960674
Claimant, :
:
vs. : A R B I T R A T I O N
:
WILSON FOODS, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
:
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Larry
Petersen against his employer, Wilson Foods. The employer
is self-insured.
The matter was heard on February 10, 1994, at Storm
Lake, Iowa. The record consists of the live testimony from
the claimant and Melvin Zollman (co-worker), as well as
deposition testimony from Scott Neff, D.O., Adrian Wolbrink,
M.D., and the claimant; joint exhibits 1-61; and, claimant's
exhibits A-C.
ISSUES
The parties submitted the following issues for
resolution:
1. Whether claimant is entitled to permanent partial
disability payments;
2. Whether claimant sustained an injury to the body as
a whole, or an injury to his right arm; and,
3. Whether claimant is entitled to four exemptions or
five exemptions when calculating his workers' compensation
rate;
FINDINGS OF FACT
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Claimant, Larry Petersen, was born on May 5, 1942. At
the time of the hearing, he was 51 years of age.
Claimant is a high school graduate, and described
himself as an average student. During high school, he
worked part-time at a gas station.
Page 2
After graduating from high school, claimant secured
summer employment with Wells Dairy in LeMars, Iowa. He
then attended linotype school in Charles City, Iowa, a 17-
week program. Claimant obtained a certificate in
linotyping, and for the next four years, worked for several
newspapers before being laid off due to the obsolescence of
linotype operators.
From 1965 to 1967, claimant worked for Georgia Pacific
in Oregon, and then returned to Cherokee, Iowa, and began
working for Wilson Foods, the defendant in this case. He
has worked for the employer for more than 25 years. As a
result, he has held many positions within the meat
processing plant. During claimant's tenure with the
employer, he has witnessed the company progress through many
changes. In the 70s, Wilson stopped the beef kill
operations, and in 1986, discontinued the hog kill
operations. Currently, it is strictly a processing plant.
Claimant offered that every job he has held with the
plant has been a job which requires repetitive movement of
his shoulder, arms and hands. Jobs he has held include beef
kill, hog kill and pork converting. Throughout much of his
career with the employer, claimant has been required to
work 8 to 10 hours per day, five to six days per week. He
has performed a job called shoulder shaving, which involved
using a knife to shave off the remaining hair on the meat,
and the front foot job, which required him to remove the toe
nails and shave the hair off of the feet. Additional jobs
include boning picnic hams and removing eyelids from the
hams. All jobs have required repetitive movements with the
arms.
Claimant has a history of shoulder problems, all of
which can be attributed to his work. He received treatment
for a muscle strain, but has always been able to return to
work.
In March of 1988, claimant was injured on the job. He
visited Keith Garner, M.D., the company physician. An x-ray
showed mild arthritic changes at the AC joint. (Joint
Exhibit 7)
Claimant continued to have problems with his right
shoulder, and in the late summer of 1990, was referred to an
orthopedic specialist, Scott Neff, D.O. His examination and
x-rays showed significant spurring and lipping of the
acromioclavicular joint, and a narrowed subacromial space.
He believed claimant had a chronic tear of the right rotator
cuff and an impingement syndrome. He recommended an
arthrogram and bone scan, and work limited to at or below
shoulder height. (Jt. Ex. 28)
The arthrogram confirmed the rotator cuff tear, and
surgery was scheduled, and performed by Dr. Neff on
September 18, 1990, at Lutheran Hospital in Des Moines,
Iowa. Claimant received follow-up treatment until December
of 1990, when he was released to return to light duty at the
plant. This consisted of moving throughout the plant
picking up meat hooks which weighed less than one pound.
Page 3
(Jt. Ex. 45)
Eventually, claimant was released to full duty work,
after acquiring a knife sharpening job at the plant. This
is considered a light duty job, and claimant is required to
sharpen knives at a table which is waist high. In April of
1991, Dr. Neff recommended that claimant continue to work on
the knife sharpening job indefinitely. (Jt. Ex. 41)
Eventually, Dr. Neff rendered his decision that claimant had
sustained a 6 percent permanent impairment to the right
upper extremity, attributable to the surgery and range of
motion. Claimant apparently worked hard at his
rehabilitation program, and has had an excellent result from
the surgery. (Jt. Ex. 42)
Due to the physical requirements of the job, claimant's
current position pays less than his prior jobs, and claimant
has suffered actual loss of earnings of approximately
$5,500.00. He works 36 to 40 hours per week. (Claimant
exhibit B)
Claimant plans to work until he is 62 years of age.
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to address is whether claimant has
sustained a permanent disability.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).
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).
While it is recognized that claimant has had arthritic
changes in his shoulder since as early as 1982, he had never
undergone extensive medical treatment for the same.
Likewise, he has always been able to perform repetitious,
Page 4
labor-intensive activities, until the rotator cuff tear.
Dr. Neff, the treating physician, and really the only
physician associated with the case, has determined that
claimant has sustained a 6 percent impairment to the right
upper extremity due to the surgery and limited range of
motion now shown by claimant.
After considering all of the evidence, it is determined
that claimant has sustained a permanent injury.
The next issue to address is whether claimant sustained
a scheduled member injury, or an injury to the body as a
whole. If the latter, claimant's industrial disability must
be addressed.
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).
An injury to a scheduled member may, because of after
effects or compensatory change, result in permanent
impairment of the body as a whole. Such impairment may in
turn be the basis for a rating of industrial disability. It
is the anatomical situs of the permanent injury or
impairment which determines whether the schedules in section
85.34(2)(a) - (t) are applied. Lauhoff Grain v. McIntosh,
395 N.W.2d 834 (Iowa 1986); Blacksmith, 290 N.W.2d 348;
Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569
(1943). Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598
(1936).
When disability is found in the shoulder, a body as a
whole situation may exist. Alm v. Morris Barick Cattle Co.,
240 Iowa 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar
Mayer & Co., II Iowa Industrial Commissioner Report 281
(App. 1982), a torn rotator cuff was found to cause
disability to the body as a whole.
Apparently, defendant is of the view that claimant's
shoulder injury has caused disability only to the upper
extremity, and should be compensated as a scheduled loss.
Claimant believes his disability is to the body as a whole,
and should be compensated industrially.
Evidently, defendant relies on a recent agency decision
which determined that a claimant, who sustained a shoulder
injury, should be compensated by one schedule. See, Prewitt
Page 5
v. Firestone Tire and Rubber Company (Appl. Dec., August 12,
1992). In Prewitt, medical testimony and documentation was
used to show that claimant's actual disability was confined
to the arm, and specifically denied that the disability was
to the body as a whole. Prewitt confirmed that it is the
situs of the impairment which determines whether the
schedules in section 85.34(2)"a" -"t" are applied. Lauhoff
Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986).
In the case at bar, it is determined that claimant's
impairment extends to the body. He is restricted from some
lifting or work activities at or above shoulder level. The
surgery involved the muscles and joints on the body side,
rather than the arm. Claimant's residual pain is in his
shoulder. As a result, he has sustained an injury to the
body as a whole, and should be compensated industrially.
The next issue to determine is claimant's industrial
disability.
Claimant is 51 years of age. He is a high school
graduate, and has limited training in linotyping. These
skills have not been used in quite some time.
Claimant is essentially a career employee with the
defendant. He has been an excellent employee.
While claimant's shoulder condition and the subsequent
surgery has caused claimant some pain and loss of time from
work, he has had an excellent recovery. His motivation to
return to suitable work is shown not only by his dedication
to physical therapy and rehabilitation after the surgery,
but by the efforts he has made to continue working at the
plant. His job duties have changed, but at his age, and
with his seniority, this is probably not unusual. The
employer has accommodated claimant's restrictions, and has
continued to employ him at the plant. Before the injury,
claimant was able to perform a variety of jobs within the
plant; now, he is restricted to only the knife sharpening
job.
Claimant's 6 percent impairment to the upper extremity
converts to a 4 percent impairment to the body as a whole.
After considering all of the factors enumerated above,
it is determined that claimant has sustained a 10 percent
industrial loss.
Finally, the undersigned finds claimant is entitled to
five exemptions when determining his rate. Claimant
testified that he had dependent children in March of 1988.
He claimed all of them as exemptions on his tax returns. As
a result, claimant's workers' compensation rate is $311.55
per week based on gross weekly earnings of $481.79, marital
status and five exemptions.
ORDER
THEREFORE, it is ordered:
Page 6
That claimant has sustained a cumulative injury and
left work on October 10, 1991.
That defendant shall pay claimant permanent partial
disability benefits for fifty (50) weeks at the rate of
three hundred eleven and 55/100 dollars ($311.55) per week
commencing April 24, 1991.
That defendant shall receive credit for permanent
partial disability benefits previously paid.
That defendant shall pay interest on the award as
governed by Iowa Code section 85.30.
That defendant shall pay the costs of this action.
That defendant shall file a claims activity report as
provided by the agency.
Signed and filed this ____ day of March, 1994.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Steve Hamilton
Attorney at Law
P O Box 188
Storm Lake IA 50588
Mr John D Ackerman
Mr Charles T Patterson
Attorneys at Law
P O Box 3086
Sioux City IA 51102