BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ALEJANDRO L. VASQUEZ, :
:
Claimant, :
:
vs. : File Nos. 924090
: 970006
H. J. HEINZ, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This decision concerns two proceedings in arbitration
brought by Alejandro L. Vasquez against his employer, H. J.
Heinz, and its insurance carrier, Liberty Mutual Insurance
Company. The claims are based upon admitted injuries of
June 29, 1989 and October 20, 1990. Claimant seeks
additional weekly benefits for healing period and permanent
partial disability. He has not, however, specified the
periods of time for which he claims additional healing
period compensation. The employer denies that the first
injury caused any permanent disability but it agrees that
the second caused some permanent disability. The employer
contends that it has paid in full all amounts which the
claimant is entitled to receive as a result of either of the
two injuries.
The case was heard and fully submitted at Davenport,
Iowa, on march 26, 1992. The evidence consists of joint
exhibits A through K; and testimony from Alejandro L.
Vasquez, Beatrice Vasquez, David Marler, and Kendall Kelly.
FINDINGS OF FACT
Having considered all the evidence received, together
with the appearance and demeanor of the witnesses, the
following findings of fact are made.
It is found that Alejandro L. Vasquez suffers from
chronic back pain. He is a 38-year-old married man who was
born in Mexico and then moved to the United States at age
16. He attended six years of school in Mexico but has no
further formal education. He speaks English poorly but
demonstrated sufficient proficiency in order to participate
in the hearing of this case. He appears to have sufficient
spoken English language proficiency to function adequately
Page 2
in industrial plant settings. He would be unlikely,
however, to be able to function sufficiently well to engage
in any occupation where average proficiency in verbal
communication in the English language was a job requirement.
His ability to read and write in English is much lower than
his ability to converse. It is extremely unlikely that he
could perform any job where reading or writing in English
was a substantial part of the job.
Since coming to the United States, all of claimant's
employments have consisted entirely of physical labor. He
was hired by Heinz in 1977 but quit after approximately two
years to move to the Quad Cities. He returned to the
Muscatine area and was re-employed by Heinz in 1981. He has
remained employed by Heinz since 1981.
On June 27, 1989, claimant injured his back when his
foot slipped on a wet floor while he was pushing racks. He
was initially seen by the company nurse and then referred to
orthopedic surgeon Ralph H. Congdon, M.D. It was initially
suspected that claimant had a herniated lumbar disc but
diagnostic testing failed to definitely identify any such
condition. Claimant was off work under the care of Dr.
Congdon from July 10, 1989 through September 4, 1989, when
he returned to work with a 40 pound lifting restriction
(Exhibit F, page 13). On October 30, 1989, Dr. Congdon
authorized claimant to resume full duty work (Ex. F, p. 14).
While claimant was off work he was paid temporary total
disability benefits. While working under restriction, he
was paid temporary partial disability benefits according to
testimony from Kendall Kelly. There is no evidence in the
record to show whatever amounts were paid were incorrect.
After returning to work following the 1989 injury,
claimant moved into a higher paying position. He worked for
approximately a year without exhibiting any notable problems
with regard to his back. While he testified at hearing that
his back never completely recovered, the record does not
show any distinct manifestations of any disability affecting
his back between the time he returned to work following the
1989 injury and the date that the 1990 injury occurred more
than one year later. It is therefore found that the June
29, 1989 injury did not cause any permanent disability
though it might have caused some chronic discomfort.
On October 20, 1990, claimant was working on the second
shift repairing pallets. He carried a pallet which needed
repair and when setting it down, he experienced an onset of
pain in his lower back. He reported the incident to the
nurse. Eventually he was referred to the company physician,
William Catalona, M.D., a board certified orthopedic
surgeon. Claimant was again taken off work and treated
conservatively. Diagnostic tests were conducted but showed
no degenerative disc disease (Ex. G, pp. 5 and 9).
A second opinion was sought from Robert O. Crous, III,
M.D. By December 12, 1990, Dr. Crous had released claimant
to resume full duty work (Ex. G, p. 12).
Claimant was also referred for evaluation to Bakkim
Page 3
Subbiah, M.D., a neurologist. Dr. Subbiah diagnosed
claimant as having degenerative disc disease without nerve
root compression (Ex. H, pp. 1 and 2). A myelogram was
performed which was interpreted as being normal except for
degenerative disc disease (Ex. H, p. 6). EMG tests were
interpreted as being normal. Dr. Subbiah noted that
claimant could return to work without restrictions (Ex. H,
p. 7). Dr. Subbiah also assigned a permanent impairment
rating of 7 percent of the whole person (Ex. H, p. 8).
Dr. Catalona rated claimant as having a 5 percent
permanent impairment, he felt that the rating was not
inconsistent with that made by Dr. Subbiah (Ex. K, pp. 7-9).
Dr. Catalona felt that claimant should follow activity
restrictions in the nature of avoidance of lifting more than
25 pounds (Ex. K, p. 11). He felt that the restrictions
should be applied because it was his opinion that claimant
did not have the physical capacity to perform heavier work
as a result of instability in his spine and that the
restrictions were imposed due to that instability (Ex. K,
pp. 15, 16 and 19). Dr. Catalona apparently found the case
somewhat perplexing because none of the diagnostic tests
revealed the cause of claimant's backache (Ex. K. pp. 6-7).
Claimant did not improve significantly from any of the
treatment which had been provided (Ex. D, p. 4).
Following recuperation from the second injury, claimant
resumed work and has continued to work at a higher paying
job than the one he held at the time of the first injury.
Claimant customarily performs jobs which require a
relatively high degree of physical effort. It appears as
though he does not follow the restrictions recommended by
Dr. Catalona and that the employer does not limit claimant's
activities to those which fall within the restrictions
recommended by Dr. Catalona.
Claimant has restricted his recreational activities and
such is evidence that the symptoms and discomfort of which
he complained at hearing are real and bonafide. As
indicated by Dr. Catalona, the case is somewhat perplexing
in the sense that no cause for the back pain, other than
degenerative disc disease, has been identified. The only
physician who treated claimant after the first injury
released him to return to work without any restriction.
Both of the physicians to whom claimant was referred by Dr.
Catalona following the second injury have released him to
return to work without restriction. It is only Dr. Catalona
who has recommended any activity restrictions. Dr. Catalona
does not relate those restrictions directly to either of the
injuries so much as he relates them to the claimant's
expressed symptoms. Claimant, himself, does not follow
those recommended restrictions as evidenced by the fact that
he has attempted to move into a position which has high
exertional requirements than the position he normally holds
and also by his volunteering to work double shifts. While
some restriction of claimant's activities is likely
appropriate the degree of that restriction is not as severe
Page 4
as what Dr. Catalona recommended.
It is also recognized that claimant in his case is a
married man with four dependent children. His job with
Heinz likely pays considerably better than any other job he
would be likely to obtain or perform with any other employer
in the vicinity where he resides. Claimant is uneducated
and untrained but he is apparently intelligent enough to
realize that the alternatives to remaining at Heinz are
quite undesirable. His limited English language skills
effectively restrict him to positions which consist entirely
of physical activity.
The impairment ratings which have been entered into the
record appear to be based upon his symptomatic degenerative
disc disease. As explained by Dr. Catalona, performance of
heavy activity has the propensity to aggravate degenerative
disc disease and lumbar instability (Ex. K, pp. 13, 14, 16
and 17). It is found in this case that the injury claimant
sustained on October 20, 1990, permanently aggravated those
underlying conditions and caused them to become symptomatic.
It is further found that there is a wide disparity among the
three physicians in regards to their recommendations for
activity restrictions. Two have recommended full duty work
while Dr. Catalona recommends a 25 pound restriction. These
assessments are irreconcilable. When viewed in relation to
the claimant's symptomatology and also his actual
accomplishments, it is found that he has lost some of his
physical capabilities but that those recommended by Dr.
Catalona are overly cautious. It is therefore found that
the claimant's lack of English language skills makes any
impairment whatsoever of his physical capacity a quite
serious factor when his earning capacity is evaluated. It
is found that he has experienced a 10 percent reduction in
his earning capacity as a result of the October 20, 1990
injury.
CONCLUSIONS OF LAW
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's claim for additional healing period or
temporary partial disability should be denied in both files.
He has not specified any particular periods of time for
which he seeks additional recuperation benefits and the
record does not show any clear basis for finding an
entitlement to additional healing period, temporary total or
temporary partial disability benefits.
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
Page 5
(Iowa 1974).
The claimant has not introduced sufficient evidence to
prove that the 1989 injury caused any permanent partial
disability. He is therefore not entitled to any additional
recovery based upon the June 29, 1989 injury. The employer
has fully paid to the claimant every benefit which he is
entitled to as a result of that injury.
Aggravation of a preexisting condition is one manner of
sustaining a compensable injury. While a claimant is not
entitled to compensation for the results of a preexisting
injury or disease, its mere existence at the time of a
subsequent injury is not a defense. Rose v. John Deere
Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the
claimant had a preexisting condition or disability that is
materially aggravated, accelerated, worsened or lighted up
so that it results in disability, claimant is entitled to
recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115
N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co.,
253 Iowa 369, 112 N.W.2d 299 (1961).
Industrial disability or loss of earning capacity is a
concept that is quite similar to impairment of earning
capacity, an element of damage in a tort case. Impairment
of physical capacity creates an inference of lessened
earning capacity. The basic element to be determined,
however, is the reduction in value of the general earning
capacity of the person, rather than the loss of wages or
earnings in a specific occupation. Post-injury earnings
create a presumption of earning capacity. The earnings are
not synonymous with earning capacity and the presumption may
be rebutted by evidence showing the earnings to be an
unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531
(Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa
1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973);
Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516
(Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County,
Thirty-fourth Biennial Report of the Industrial Commissioner
218 (1979); 2 Larson Workmen's Compensation Law, sections
57.21 and 57.31.
There are a number of rules for evaluating industrial
disability. No single rule is absolutely conclusive
notwithstanding the ruling in the case Bearce v. FMC
Corporation, 465 N.W.2d 531 (Ia. App. 1991). The fact that
Bearce had returned to work without any activity
restrictions and without any loss of income is certainly
strong evidence of a lack of industrial disability. The
burden of proof differs somewhat when dealing with
apportionment of disability for a preexisting condition.
That case is not construed as overruling prior precedents
which have indicated there can be a loss of earning capacity
even though actual earnings have not been reduced. It is
determined that Alejandro L. Vasquez has a 10 percent loss
of earning capacity and a 10 percent industrial disability
under the provisions of Iowa Code section 85.34(2)(u). This
entitles him to recover 50 weeks of permanent partial
Page 6
disability compensation, 20 weeks more than that which has
been voluntarily paid by the employer. It should be noted
that the claimant's substandard English language skills
makes the degree of industrial disability considerably
greater than what it would be if his language skills were
comparable to those normally possessed by most Iowa
employees. It makes him suitable only for work which
consists of physical labor or physical activity. It does
not permit him access to any portion of the job market which
would otherwise be available to individuals who have better
language skills.
Since defendants have prevailed in file No. 924090,
claimant will not be entitled to recover any costs incurred
in that case. Since claimant has prevailed in file No.
970006, he will be entitled to recover costs associated with
that proceeding. Those costs are as follows: Filing fee
$65; service cost $2; impairment evaluation and report by
Dr. Catalona $150; expert witness fee, Dr. Catalona $150;
reporting fee for Dr. Catalona's deposition $119.75, for a
total of $486.75.
ORDER
THEREFORE, it is ordered:
That in file number 970006 defendants pay Alejandro L.
Vasquez fifty (50) weeks of compensation for permanent
partial disability at the rate of three hundred fifty and
50/100 dollars ($350.50) payable commencing June 10, 1991.
Defendants are granted full credit for the thirty (30) weeks
of permanent partial disability compensation previously
paid. The remaining twenty (20) weeks are now all past due
and owing and shall be paid in a lump sum together with
interest pursuant to Iowa Code section 85.30 computed from
the date each weekly payment became due until the date of
actual payment.
IT IS FURTHER ORDERED:
That all claims made in file No. 924090 are denied as
are all claims made by the claimant for any other weekly
compensation in file No. 970006.
IT IS FURTHER ORDERED:
That the costs in file No. 924090 are assessed against
the claimant.
Page 7
IT IS FURTHER ORDERED:
That the costs in file No. 970006 in the amount of four
hundred eight-six and 75/100 dollars ($486.75) are assessed
against defendants.
IT IS FURTHER ORDERED:
That defendants file claim activity reports as
requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of September, 1992.
________________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr John D Stonebraker
Attorney at Law
P O Box 2746
Davenport IA 52809
Mr Greg A Egbers
Attorney at Law
600 Union Arcade Bldg
111 E Third St
Davenport IA 52801-1596
5-1402.40; 5-1803
Filed September 24, 1992
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ALEJANDRO L. VASQUEZ, :
:
Claimant, :
:
vs. : File Nos. 924090
: 970006
H. J. HEINZ, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1402.40; 5-1803
Claimant could not identify periods for which he sought
additional healing period and temporary partial disability.
None was awarded.
Claimant with poor English languish skills awarded 10%
permanent partial disability even though his earnings had
increased since the injury and the evidence was conflicting
upon the issue of activity restrictions. He was rated as
having a 5 to 7 percent permanent impairment.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JIMMIE L. BAILEY,
Claimant,
vs.
File Nos. 970243 & 991508
ROBERTS DAIRY COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
NATIONAL UNION FIRE,
Insurance Carrier,
Defendants.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration filed by Jimmie L.
Bailey, claimant, against Roberts Dairy Company, employer,
and National Union Fire, insurance carrier, defendants, for
benefits as the result of two injuries. One of the injuries
occurred on December 3, 1990 when claimant slipped and fell
on his back (file number 991508). The other injury occurred
on December 8, 1990 when claimant strained his back pulling
a heavy stack of milk cartons. A hearing was held in Des
Moines, Iowa, on August 27, 1993, and the case was fully
submitted at the close of the hearing. Claimant was
represented by Max J. Schott. Defendants were represented
by Stephen W. Spencer. The hearing, which was scheduled for
three hours, actually consumed approximately six and
one-half hours and generated a 296 page transcript. The
record consists of claimant's exhibits 1 through 76 (minus
exhibits 8 through 13), defendants' exhibits A through F,
the testimony of Jimmie L. Bailey, claimant, Carol M.
Bailey, claimant's wife, Roger Marquardt, vocational
rehabilitation consultant for claimant, David Greimann,
vocational rehabilitation consultant for defendants, and
Lori Lien, claims supervisor. The deputy ordered a
transcript of the hearing.
STIPULATIONS
The parties stipulated to the following matters at the
time of the hearing.
That claimant sustained an injury on December 3, 1990
when he slipped and fell and injured his back which arose
out of and in the course of employment with employer.
That claimant sustained an injury on December 8, 1990
to his back and legs while pulling cases of heavy cartons of
milk which arose out of and in the course of employment with
Page 2
employer.
That these injuries were the cause of temporary and
permanent disability.
That claimant is entitled to and was paid healing
period benefits for the period from December 9, 1990 through
July 27, 1992 and that claimant's entitlement to healing
period benefits is no longer in dispute.
That the type of permanent disability, if any, is
industrial disability to the body as a whole.
ISSUE
The sole issue for determination is whether claimant is
entitled to permanent disability benefits, and if so, the
extent of benefits to which he is entitled.
FINDINGS OF FACT
CAUSAL CONNECTION-ENTITLEMENT-PERMANENT DISABILITY
It is determined that the injury was the cause of
permanent disability, that claimant has sustained a 45
percent industrial disability to the body as a whole, and
that claimant is entitled to 225 weeks of permanent partial
disability benefits.
Claimant, born June 30, 1960, was 50 years old at the
time of these injuries and 53 years old at the time of the
hearing. Because claimant was at or near the peak of his
earnings career, at least chronologically by age, his
industrial disability is greater than it would be for an
older or younger employee (Transcript page 22). Becke v.
Turner-Busch, Inc., Thirty-fourth Biennial Report of the
Industrial Commissioner 34 (Appeal Decision 1979); Walton
v. B & H Tank Corp., II Iowa Industrial Commissioner Report
426 (1981); McCoy v. Donaldson Company, Inc., file numbers
782670 & 805200 (App. Dec. 1989).
Claimant has a limited formal education. He dropped
out of high school in the ninth grade. He has not obtained
a GED. He has not acquired any additional formal education
but has learned a number of skills and semi-skills through
experience on many of his prior employments (Tran. p. 24).
Claimant's lack of formal education tends to decrease his
employability which tends to increase his industrial
disability, particularly at his age in the lower fifties.
At the same time, claimant's excellent work history and past
admirable work ethic tends to increase his employability and
concommittently decreases his industrial disability.
However, an older worker with a back injury without a high
school education will find his or her employment
opportunities limited. A good work record is helpful but
employers will more likely hire a younger and healthier
worker before hiring an older, injured and less educated
worker.
Claimant is probably not suitable for retraining of an
Page 3
academic nature but has proven his ability to adapt to and
learn job skills through on-the-job training and experience.
Conrad v. Marquette School, Inc., IV Iowa Industrial
Commissioner Report 74, 89 (1984).
With respect to claimant's past employments, claimant
is now foreclosed from performing those functions which
require heavy lifting and other strenuous activity. At the
same time he has acquired many skills which he could use in
other employments which are available in the job market at
this time.
Claimant's past employments are as follows.
Claimant first performed farm work after he dropped out
of school in the ninth grade. Claimant would be limited on
the farm work that he could perform after these injuries.
Claimant was a boiler tender in the Navy where he read
charts and gauges, performed calculations and kept records
on fuel and fresh water (Tran. p. 25). Claimant is probably
capable of performing similar work again if he could find
such employment and if he chose to do so.
Claimant has been a carpenter and said that he carried
140-pound bundles of shingles up onto a roof. Claimant is
now foreclosed by these injuries from performing heavy work.
Furthermore, the skilled occupation of carpentry as a
general rule requires heavy lifting, bending, stooping and
repetitive pounding which claimant is now restricted from
doing.
Claimant has worked as an over-the-road truck driver of
general freight in 17 states. His current restrictions
probably foreclose him from most forms of truck driving,
especially those that require loading and unloading.
Claimant stated that he lifted 200 to 250 pounds as a truck
driver (Tran. p. 28).
Claimant learned to operate a lathe and become a
machinist. Eventually he became employed as a journeyman
machinist and worked for one employer for ten years as a
machinist. Claimant maintained that as a machinist he
lifted 300 pounds of cold steel by himself. Claimant added
that lifting weights of over 100 pounds was not uncommon in
an average workday (Tran. pp. 29-34). There are
transferable skills which claimant used as a machinist which
would be helpful to him in finding machinist related work.
At the same time, claimant's restrictions foreclose him from
being in a position where heavy lifting is required.
Claimant has performed work as a heavy equipment
operator. He has operated D-9 Cats, backhoes, cherry
pickers and cranes. Claimant averred that this job also
required him to lift 300-pound pieces of steel (Tran. p.
34). Claimant is probably proscribed by his restrictions
from operating heavy equipment because he is foreclosed from
performing heavy work.
Claimant worked as a machinist a second time
Page 4
supervising 65 other employees. In this job he claimed that
he routinely lifted 100 to 150 pounds (Tran. pp. 32-42).
Claimant is probably capable of supervisory work in areas
where he has prior knowledge and experience but he would not
be able to do the heavy lifting.
Claimant worked in the oil fields in California for
seven years as a production superintendent, which meant
keeping the wells operating. He said that he fixed some
things himself. For other problems, he called in a repair
crew. Claimant contended that he lifted pipe joints in this
job which weighed 250 to 300 pounds. Claimant's mechanical
skills are transferable in some degree. He is prohibited
from heavy lifting now.
Just prior to this employment claimant drove a truck
over- the-road again which involved loading and unloading
weights of 200 to 250 pounds by himself without equipment
assistance (Tran. pp. 47 & 48). Claimant can no longer do
this kind of work without significant job accommodations or
modifications.
Claimant's past employments are also described in more
detail in a number of the exhibits (Ex. 1, p. 3, Ex. 77, &
Ex. E). Claimant testified that he did not have and there
is no evidence of any significant work limitations prior to
these two injuries (Tran. p. 50). Claimant testified that
he has never had a workers' compensation claim before these
two injuries (Tran. p. 51). This was verified by an
investigative check for prior workers' compensation claims
by employer through an agency who does this research. The
report verified that claimant had no prior workers'
compensation claims (Ex. 7). Claimant also had a clean
driving record free of violations, suspensions, or
convictions.
Claimant's application for employment with employer
shows no prior injuries, illness, or work limitations.
Claimant stated on the application that he was physically
capable of manual labor (Ex. 2). A physical examination
performed for the Iowa Department of Transportation on
October 11, 1990, did not disclose any spinal injuries (Ex.
3).
When claimant fell on December 3, 1990, he did not see
a doctor and did not lose any time from work. After he
strained his back on December 8, 1992, he was examined at
the emergency room by Barbara K. Moats, M.D., who diagnosed
acute back pain (Ex. 17). An x-ray on December 8, 1990,
disclosed (1) mild degenerative changes at L3-4 and 4-5, (2)
no spinal compression fractures and (3) some calcification
of the distal abdominal aorta (Ex. 18).
Dr. Moats referred claimant to Michael J. Makowsky,
M.D., an occupational and sports medicine doctor, who took
claimant off work on December 9, 1990 (Ex. 19). Claimant
has not returned to work since that date (Tran. pp. 55 &
57).
Dr. Makowsky ordered an MRI on December 10, 1990, which
Page 5
revealed (1) a diffuse bulge at the L4-5 disc without focal
herniation as well as (2) hypertrophic facet joint changes
and (3) hypertrophy ligamentum flavum changes at L4-5 which
produced moderate to marked spinal stenosis (Exs. 20 & 32).
Claimant reported pain in both legs to Dr. Makowsky on
December 14, 1990 (Tran. p. 27). On December 21, 1990, Dr.
Makowsky said that claimant's chief problem was spinal
stenosis and degenerative disc disease (Ex. 27).
Dr. Makowsky saw claimant several times from December
of 1990 to May of 1991. He prescribed medications, physical
therapy, work-hardening, a TENS unit and epidural steroid
injections. Several times Dr. Makowsky commented that
claimant would not be able to return to his former
employment or to heavy work. Dr. Makowsky's office notes
show that claimant continued to complain of pain but that
Dr. Makowsky could find no objective or physical findings to
support the reason for his pain (Exs. 26-41).
On June 24, 1991, Dr. Makowsky wrote to the disability
examiner for the Disability Determination Services Bureau at
the Division of Vocational Rehabilitation Services that
claimant's diagnoses were (1) degenerative spondylolisthesis
at L4-L5 and (2) acquired spinal stenosis. Dr. Makowsky
concluded,
"I do not think that Mr. Bailey is capable of
returning to work at Robert's Dairy. I think he
is probably qualified for Light Work; that is:
1. Maximum lifting of no more than 20 lbs.
with frequent lifting up to 10 lbs.
2. No repetitive bending at the waist.
3. No repetitive pushing or pulling (Ex. 42,
p. 2)
On the same date, June 24, 1991, Dr. Makowsky wrote to
the insurance carrier representative that claimant had
reached maximum medical improvement earlier on May 1, 1991.
Dr. Makowsky further stated,
You have requested an evaluation for a
permanent impairment rating. As we discussed on
the telephone, this is very difficult since most
of his problem is probably pre-existing. However,
his work apparently aggravated his problem. I
would like to suggest that his partial-permanent
impairment is 10% of the body as a whole with
about half of this permanency (5%) being secondary
to his work related injury (Ex. 43, p. 1).
Dr. Makowsky recommended no further treatment at that
time Ex. 43, p. 2).
In a letter to claimant's counsel, dated September 25,
1991, Dr. Makowsky stated that claimant's underlying
degenerative spondylolisthesis at L4-L5 and spinal stenosis
Page 6
were not work-related conditions, however, according to the
patient they became symptomatic on December 8, 1990, when he
experienced back pain while pulling heavy milk cartons. Dr.
Makowsky then stated, "At that time, I felt his work injury
aggravated a pre-existing problem."
Dr. Makowsky said that based on his recommendation
claimant returned to work on April 4, 1991 but that he
reaggravated his condition after having returned to work for
only five hours (Ex. 47, p. 2). Dr. Makowsky again causally
related the employment to this injury in these words,
"Within a reasonable degree of medical certainty, the
symptom complex currently being experienced by Jimmie Bailey
is consistent with the injury that he sustained at Robert's
dairy together with his underlying medical conditions
previously stated." (Ex. 47, p. 2).
Dr. Makowsky repeated his split impairment rating, but
added that there is no medical way he could scientifically
determine what percent of his impairment was related to this
injury versus his underlying condition, but he estimated
that 5 percent of the overall 10 percent was work-related
(Ex. 47, p. 2).
In the course of Dr. Makowsky's treatment he referred
claimant to Daniel J. McGuire, M.D., an orthopedic surgeon,
who saw claimant on February 18, 1991 and March 18, 1991.
On both occasions Dr. McGuire indicated (1) that he did not
believe that claimant would be able to return to a heavy
manual labor job with or without surgery and (2) he did not
believe that surgery was recommended at that time.
Then on May 1, 1991, Dr. Makowsky was talking in terms
of maximum medical improvement and issuing a permanent
impairment rating. At about that same time claimant applied
for social security benefits on May 28, 1991. His
application was initially denied on August 7, 1991. And it
was denied again on September 9, 1991 (Ex. 71).
Claimant then returned to see Dr. McGuire on November
14, 1991 indicating that his symptoms were severe enough at
that time that he wanted surgical intervention (Ex. 52).
Dr. McGuire performed the surgery on December 10, 1991.
He described the surgery as follows.
Posterior decompression L4-L5 with exploration
of the L4, L5, and S1 nerve roots; posterior
spinal fusion L4 to L5 with iliac bone graft;
posterior segmental instrumentation at L4-L5 with
steffe plates; and harvesting of cortical
cancellous bone graft right posterior ilium (Ex.
23, p. 1).
On August 6, 1992, Dr. McGuire gave the following
rating.
The permanent partial disability associated
with his surgical intervention was 12%. This is
based on the decompression and one level fusion.
Page 7
He also has some persistent symptoms. Of this, 6%
of this is pre-existing disease and 6% of this is
related to the aggravation and actual surgical
intervention.
From my standpoint, he is released to return to
work. We are unable to get a good idea of
restrictions that we can place on him because he
did not complete the FCE. Realistically speaking,
he could lift in the 50-70 pound range. I would
keep him away from a lot of vibration, such as
driving a truck. I would try to avoid excessive
bending, lifting and twisting (Ex. 56).
The reason that claimant did not complete the
functional capacity examination was because the insurance
company representative did not authorize payment for the
motel reservations for the entire course of his treatment
(Tran. pp. 208-213). Claimant, who did not want to be at
the evaluation in the first place, because he was already
drawing social security benefits as well as workers'
compensation benefits, took advantage of the situation and
went home.
Claimant was examined by his own independent medical
examiner, Martin S. Rosenfeld, D.O., on September 15, 1992.
In his report Dr. Rosenfeld stated,
X-rays brought with the patient as noted in the
chart show a single fusion with a double level
decompression at L4 and L5. The films of 05/04/92
do not show complete bridging, especially on the
left side, but the area is, of course, stable with
the plates intact.
...
I feel the patient has severe residuals with
pain and stiffness, but fortunately has had relief
of his radiculopathy.
...
In view of the amount of pain and spasm and
rigidity that Mr. Bailey is suffering, I doubt
that he will be able to return to work doing any
type of labor or any type of sedentary work (Ex.
67, pp. 1 & 2).
Dr. Rosenfeld assessed his impairment rating as
follows.
"In regard to your questions, I feel over all
that Mr. Bailey has a twenty-five (25%) percent
permanent physical impairment to the body as a
whole as a result of the build up of spinal
stenosis, the on-the-job injury, and subsequent
surgery.
...
Page 8
Based on the history and x-rays, it is my
feeling that a significant amount of his
impairment is due to the on-the-job injury
although some of his impairment is due to the
pre-existing and developmental problems. I would
rate his impairment due to the injury at thirteen
(13%) percent using the AMA Guides (Ex. 67, p. 2).
On May 28, 1993, claimant was examined by Gordon M.
Mead, M.D., a board certified orthopedic surgeon since 1979,
who was an independent medical examiner for defendants. Dr.
Mead stated that claimant moved to Louisiana because it was
cheaper to live there. Dr. Mead opined,
According to the AMA Guides to the Evaluation
of Permanent Impairment, 3rd Edition, this
gentleman has a 12% impairment of the whole
person. This is a permanent condition. ... He
will not be able to return to truck driving. He
would not be able to do anything other than
essentially light or light/medium type work. He
would not be able to do any repeated bending or
lifting." (Ex. 68, p. 2).
Dr. Mead gave a telephonic deposition shortly before
the hearing on August 11, 1993. Dr. Mead stated that the
fusion appeared to be solid to him but it was difficult to
tell from the plain x-rays (Ex. 74, p. 8). The doctor
further related that claimant had almost complete limitation
of any motion of his back because of his pain complaints
(Ex. 74, p. 9). He did not perform any new x-rays.
Dr. Mead said that the total lack of bending was not
compatible with the one level fusion, because all of the
other levels of the spine should be mobile. He said that
fusing one segment would eliminate a small amount of the
motion but certainly not to the extent that claimant states
his motion was limited.
Also, Dr. Mead stated that claimant had pain in his
back on range of motion of his hips but he did not know of
any anatomical basis for that because there really is no
correlation between motion of the hips and back pain (Ex.
74, p. 12).
Also, claimant complained of pain in his back on the
straight leg raising test which the doctor said did not have
any significance because the straight leg raising test is to
see if claimant had leg pain from an irritated nerve in his
back. To find back pain on straight leg raising really did
not mean very much. He said this was not compatible with a
one segment fusion (Ex. 74, p. 13).
Likewise, he said that the fact that claimant could not
heel or toe walk had no significance with respect to a one
level fusion because what he was looking for was weakness in
the dorsiflexors of the foot or the plantar flexors of the
foot (Ex. 74, pp. 12-14).
Page 9
Dr. Mead found no neurologic involvement at the time of
his examination (Ex. 74, p. 14). Dr. Mead stated that if a
person had severe back pain over a long period of time he
would expect to find some atrophy of the muscles in the
extremity but he did not find any atrophy upon claimant's
examination (Ex. 74, p. 14).
Dr. Mead explained his terminology of light/medium
work, "Light medium work is defined as lifting 30 pounds
maximum with frequent lifting and/or carrying of objects
weighing up to 20 pounds." The doctor pointed out that he
also recommended a restriction against repeated bending or
lifting and defined repeated as three times within an hour
(Ex. 74, pp. 16 & 17).
The doctor said claimant should be allowed to move
around and alternate standing, sitting and walking. Dr.
Mead said that he was surprised that claimant contends that
he could not bend at the waist at all (Ex. 74, pp. 18 & 19).
With respect to pain the doctor stated, "He expressed more
pain than I would judge to be reasonable for someone who's
had that kind of surgery." (Ex. 74, pp. 20 & 23).
Roger Marquardt, rehabilitation consultant, performed
an evaluation of claimant and made a report on June 22,
1993. He interviewed claimant by telephone. Marquardt
questioned whether claimant could work six to eight hours
Page 10
per day, five days a week. Therefore because of his
continuing severe pain Marquardt said claimant would be
restricted from competitive employment of even a light or
sedentary nature (Ex. 70, p. 4). Marquardt testified at the
hearing that he was relying on claimant's testimony as to
this limitation (Tran. p. 180). He also stated that an
older worker has more difficulty in adjusting to new and
unique working situations (Tran. p. 180). He recommended
against schooling (Tran. p. 181). He said that claimant's
limited education makes rehabilitation more difficult (Tran.
p. 181). Marquardt was asked and answered as follows,
Q. If we accept Mr. Bailey's subjective
complaints of pain as you've heard them testified
to today, is there work in the competitive
employment sector that Mr. Bailey can perform?
A. In my opinion, no, sir.
...
Q. What in particular are you focusing on?
What are the particular limitations that are most
meaningful for you in that regard with respect to
his testimony?
A. The person's ability to sustain a work
task at a competitive rate, six to eight hours a
day, 40 hours a week." (Tran. pp. 200 201).
The difficulty with Marquardt's opinion is the fact
that it is based almost entirely upon claimant's subjective
complaints of pain and inability to work.
On August 12, 1993, Sonya K. Simms, a vocational
consultant for Crawford and Company, in Shreveport Louisiana
concluded there were a number of jobs which claimant could
perform in that locality (Exs. C & D).
On August 13, 1993, David L. Greimann, another
vocational consultant for Crawford and Company in Des
Moines, Iowa concluded that when claimant's work
restrictions were combined with the wide range of skills
that he has developed in several industries that there are a
number of positions available which claimant could perform
within his medical restrictions. Like Simms, he gave a
listing of some of the jobs. Greimann added that these jobs
are typically within the light duty lifting range which most
of the physicians said claimant could perform (Exs. A & B).
At the time of Marquardt's telephone examination of
claimant he extracted a number of subjective physical
limitations that claimant related to him (Ex. F, p. 16-20).
Marquardt did take into consideration Dr. Rosenfeld's
evaluation, who was a one-time examiner for the purposes of
litigation (Ex. F, p. 37). He also took into consideration
the information of the Social Security Administrative Law
Judge. However, the administrative law judge found as
follows,
Page 11
The claimant has the residual functional
capacity to perform the physical exertional and
nonexertional requirements of work except for
lifting and carrying more than five pounds;
sitting more than 15 to 20 minutes at a time;
standing more than 15 to 20 minutes at a time;
walking more than one-half block; any climbing on
ladders, ropes, or scaffolds; any bending; more
than occasional balancing, stooping, crouching,
crawling; and any repetitive use of push and pull
controls (Ex. 71, p. 5).
However, these restrictions were not voiced by any of
the doctors in this case or any of the vocational
rehabilitation consultants in this case. Therefore this
deputy has no direct evidence from any professional medical
authority that these limitations are anything other than
what claimant subjectively feels he can and cannot do. The
vocational rehabilitation person who appeared at the social
security hearing has not given any testimony in this case.
And if she had testified to the above quotation it would
still be at odds with the other medical and vocational
rehabilitation evidence introduced into evidence in this
case, except for Mr. Marquardt's acceptance of these
limitations.
Greimann testified at the hearing that he did not
personally interview claimant (Tran. p. 219), but rather
examined most of the significant medical evidence in this
case. Greimann testified that it was his practice with
respect to subjective complaints of pain to encourage the
person to seek medical treatment for them (Tran. p. 222).
He said they need to be evaluated by the appropriate medical
professionals if they are of a medical nature (Tran. p.
223). Greimann stressed that the majority of physicians
concluded that claimant could perform medium level work
which is defined by the United States Department of Labor as
ranging from 20 to 50 pounds (Tran. p. 225). He found that
claimant had a number of transferable skills (Tran. p. 226),
that qualified claimant for a number of jobs (Tran. p. 227).
He itemized a number of these jobs (Tran. p. 229 & 230). He
said a large number of jobs were available in both the light
and medium category (Tran. p. 232).
With respect to claimant's age he said it would not
decrease claimant's access to the labor market because there
was a high demand for mature workers with a lot of
experience by employers today (Tran. pp. 234 & 235).
Greimann said classifications of work top out at the very
heavy classification at 100 pounds. There are no
classifications for 200 or 300 or more pounds (Tran. p.
236). He said there are virtually no jobs that have that
requirement (Tran. p. 236). He has never heard of a
machinist being required to lift 300 pounds in his total of
15 years of vocational rehabilitation experience (Tran. p.
240).
Greimann did a labor market survey in the Des Moines
area and found a number of jobs for machinists. He said
that they are wanted in other states also (Tran. pp. 243 &
Page 12
244). A number of the machines are now what he described as
CNC (computer numerical controlled) machines (Tran. p. 244).
He said claimant's job history shows that he is adaptable to
new lines of work (Tran. p. 244). Machinist jobs range
between $7 per hour and $20 per hour (Tran. 246). Claimant
was earning $11 per hour at the time of this injury (Tran.
p. 52). He said the last survey for Polk County showed that
machinists made $13.97 per hour which is an annual salary of
$29,057 (Tran. p. 247). Greimann acknowledged his
evaluation did not take into account pain (Tran. p. 253).
After hearing claimant's testimony he said that he would not
change his opinion (Tran. p. 255 & 260).
Dr. McGuire testified by deposition shortly before the
hearing on August 11, 1993, that he is a board certified
orthopedic surgeon with subspecialty interest and training
in adult spine problems.
Dr. McGuire stated that prior to his surgery he would
have rated claimant's impairment at zero because the x-ray
changes predated the on-the-job injury (Ex. 73, p. 17). He
said that on November 14, 1991, claimant was hurting bad
enough that he wanted surgery (Ex. 73, p. 18). The doctor
said that claimant's MRI did not show a herniation of a disk
and that fit because he did not have any neurological
deficit (Ex. 73, p. 19). Dr. McGuire said the pressure on
the nerve roots was coming from behind. He said it was not
a herniated disk in front pushing backwards. Therefore, he
did a posterior nerve root decompression and a fusion at
L4-L5 where he had the worst problems (Ex. 73, p. 20).
Dr. McGuire was very critical of the finding of the
Social Security Administrative Law Judge. When it was
presented to him Dr. McGuire stated, "I don't mean to hurt
your feelings, but who wrote that crock of shit?" Dr.
McGuire then proceeded to criticize these findings in some
detail (Ex. 73, p. 32). The doctor was surprised to learn
that somebody had made this evaluation while he was still
treating claimant (Ex. 73, p. 33).
In his deposition Dr. McGuire talked about restrictions
against working around vibrating equipment and to avoid
lifting things more than 20 to 40 pounds maybe 50 pounds.
He said he should avoid repetitive bending, lifting all day
long (Ex. 73, p. 36). Dr. McGuire could not explain why
claimant could not bend at the waist at all (Tan. p. 37).
He said that bending is performed at the hips and he never
claimed any injury to his hip sockets (Ex. 73, p. 38).
Dr. McGuire repeated that claimant's impairment based
on the AMA Guides would be about 12 percent, maybe 14
percent. He added that about a half or two-thirds of this
impairment would be related to the work incident (Ex. 73, p.
42). One-half of 14 percent is 7 percent. Two-thirds of 14
percent would be about 9 percent.
Dr. McGuire granted that something caused his back
condition to become symptomatic (Ex. 74, p. 44). He said he
would rely on Dr. Makowsky's records as to what caused that
(Ex. 73, p. 45). Dr. McGuire, granted that claimant slipped
Page 13
and landed on his back and that appears to be a work-related
incident. The doctor agreed that a significant portion of
claimant's disability would relate to the two incidents at
work (Ex. 73, p. 47).
Dr. McGuire agreed that he was doubtful from the
beginning that claimant would be able to return to work for
employer or to any kind of labor that he was performing at
the time of this injury (Ex. 73, p. 51). Dr. McGuire was
skeptical of claimant's pain complaints for the reason that
a neurological injury was never identified and he never
really documented any true damage like a neurological
deficit (Ex. 37, p. 57). Dr. McGuire agreed that he could
live with Dr. Makowsky's weight restriction of 15 to 20
pounds (Ex. 73, p. 60). Contrary to Dr. Rosenfeld, Dr.
McGuire never found any spasm but he did find rigidity
because claimant asserted that he was not able to bend at
the waist (Ex. 73, p. 61).
In summary then the permanent impairment ratings are as
follows: (1) Dr. Makowsky 5 percent, (2) Dr. McGuire 6
percent, 7 percent and 9 percent, (3) Dr. Rosenfeld 13
percent, and (4) Dr. Mead 12 percent. All of the doctors
agreed that claimant was foreclosed from manual labor in the
heavy work and very heavy work classification that claimant
had performed most of his adult life. Most of the doctors
agreed that claimant could perform light or light/medium
classification of work. Dr. Rosenfeld thought claimant
should be restricted to sedentary work.
Thus, there is substantial evidence that claimant is
capable of performing medium work, which in the opinion of
this deputy is the ability to lift up to 50 pounds
occasionally and 20 pounds frequently. It has been
demonstrated that there are several jobs for this work
classification in the competitive labor market.
It has been further demonstrated that claimant is
capable of light work which in the opinion of this deputy
would be lifting up to 20 pounds occasionally and lifting 10
pounds frequently. There are even more jobs available in
the competitive labor market for this job classification.
With respect to impairment ratings and restrictions the
opinions of Dr. Makowsky and Dr. McGuire are preferred over
the opinion of Dr. Rosenfeld, who was a one time examiner,
who evaluated claimant for purposes of litigation. Dr.
Makowsky and Dr. McGuire were responsible for the ultimate
success or failure of claimant's treatment. Their opinions
are reinforced by that of Dr. Mead. Rockwell Graphics
Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
With respect to vocational rehabilitation counselors
the opinions of Greimann and Simms are preferred over the
opinion of Marquardt. Marquardt admits that his opinion is
focused on the subjective symptoms that claimant related to
him as well as the opinion of Dr. Rosenfeld and the Social
Security Administrative Law Judge. There is no evidence in
this record that any medical professional care provider in
the evidence of record in this case found the subjective
Page 14
findings that the administrative law judge found in making
his determination.
Claimant did not seriously seek work. On the contrary,
he sought social security disability benefits rather than
attempt to return to work. Claimant has not been motivated
to return to work. This appears to be a conscious choice on
his part. He is certainly entitled to make this decision
and has good reasons for doing so. However, 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 returning to
work. Williams v. Firestone Tire and Rubber Co., III Iowa
Industrial Commissioner Report 279 (1982).
In most cases, an employee making a claim for
industrial disability will benefit by showing some attempt
to find work. Hild v. Natkin & Co., I Iowa Industrial
Commissioner Report 144 (Appeal Decision 1981); Beintema v.
Sioux City Engineering Co., II Iowa Industrial Commissioner
104 (1976); Cory v. Northwestern States Portland Cement
Company, Thirty-third Biennial Report of the Industrial
Commissioner 104 (1976).
Claimant asserts that he is permanently and totally
disabled due to his subjective symptoms of pain. This
proposition has been rejected by the industrial commissioner
numerous times and these precedents would fill a large book.
A long time standard of the industrial commissioner is that
pain that is not substantiated by clinical findings is not a
substitute for impairment. Waller v. Chamberlain
Manufacturing, II Iowa Industrial Commissioner Report 419,
425 (1981).
Dr. Mead found that several of claimant's complaints
did not correlate with the type of injury he sustained for a
one level fusion. He had absolutely no explanation for
claimant's inability to bend. He further stated that one or
more of claimant's lower extremities should be atrophied if
claimant has had as much pain as he asserts for as long as
he asserts. But he said there was no atrophy in his lower
extremities.
An employee's approaching retirement may also be taken
into consideration. Lawyer and Higgs, Iowa Workers'
Compensation--Law and Practice, (2d ed.) section 13-5 at
page 131. Claimant has moved home to Louisiana where he has
purchased a home on a lake and operates a boat with power
equipment with a power lift to get it into and out of the
water. He and his wife also maintain a garden and flower
beds.
Claimant's earnings at the time of the injury were $11
per hour. Greimann testified that claimant could earn
someplace between $7 and $20 an hour at the present time.
Greimann said that claimant could earn $13 an hour in
certain machinist jobs.
Thus, even though claimant has a substantial loss of
earning capacity, his actual earnings loss is either
Page 15
negligible or none.
Wherefore, based upon (1) claimant's age in the early
fifties, (2) his lack of a high school education but also
considering his transferable skills as a machinist, (3)
considering that his permanent impairment ratings range from
5 percent by Dr. Makowsky, somewhere between 6 percent and 7
or 9 percent by Dr. McGuire, 12 percent by Dr. Mead and 13
percent from Dr. Rosenfeld, (4) based upon the fact that
claimant is foreclosed from returning to his employment with
this employer and that his job market has been reduced from
all of the jobs that were available in the very heavy
classification and heavy classification and he is now
restricted to either the medium or light/medium or the light
classification of jobs, (5) based on the fact that there are
jobs available in the competitive employment market
according to Simms and Greimann, (6) based upon the fact
that claimant has not seriously sought employment since this
injury and it appears as though claimant has retired, (7)
that claimant has elected to receive social security
disability benefits, has returned home and appears to be
living in retirement, (8) based upon the fact that claimant
has not made a diligent search to find employment, (9) based
upon all the factors used to determine industrial
disability, Christensen v. Hagen, Inc., vol. I, no. 3, State
of Iowa Industrial Commissioner Decisions 529 (App. Dec.
March 26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1,
no. 3 State of Iowa Industrial Commissioner Decisions 654,
658 (App. Dec. February 28, 1985) and (10) applying agency
expertise (Iowa Administrative Procedure Act 17A.14(5) it is
determined that claimant has sustained a 45 percent
industrial disability to the body as a whole and is entitled
to 225 weeks of permanent partial disability benefits.
Although claimant's work history is excellent and his
work ethic prior to this injury were commendable this injury
did result in an extensive spine surgery which has severely
decreased claimant's employability because of the fact he is
no longer able to perform manual labor, heavy and very heavy
types of work as he has performed for most of his life prior
to this injury.
Taken into consideration also is that claimant has
several severe preexisting back conditions and a heart
condition that he was not aware of until the time of this
injury. It is considered that this injury was not the
entire cause of claimant's lack of employability, access to
the labor market and loss of earnings capacity.
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That claimant did sustain the burden of proof by a
preponderance of the evidence that these two injuries of
December 3, 1990 and December 8, 1990 were the cause of
permanent impairment and permanent disability. Bodish v.
Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl
v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
Page 16
That claimant has sustained the burden of proof by a
preponderance of the evidence that he sustained a 45 percent
industrial disability to the body as a whole and is entitled
to 225 weeks of workers' compensation benefits. Iowa Code
section 85.34(2)(u).
ORDER
THEREFORE, IT IS ORDERED:
That defendants pay to claimant two hundred twenty-five
(225) weeks of permanent partial disability benefits at the
stipulated rate of three hundred six and 41/100 dollars
($306.41) per week and in the total amount of sixty-eight
thousand nine hundred forty-two and 25/100 dollars
($68,942.25) commencing on July 28, 1992, as stipulated to
by the parties.
That defendants are entitled to a credit for permanent
partial disability benefits paid to claimant prior to
hearing which at that time totaled fifteen thousand six
hundred ninety and 39/100 dollars ($15,690.39) and any
additional permanent disability benefits paid to claimant
since the time of hearing.
That interest will accrue pursuant to Iowa Code section
85.30.
That all accrued benefits are to be paid in a lump sum.
That the costs of this action, including the cost of
the attendance of the court reporter at hearing and the
transcript of hearing, are charged to defendants pursuant to
rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.
That defendants file claim activity reports as
requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of March, 1994.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Max Schott
Attorney at Law
6959 University Ave.
Des Moines, IA 50311
Mr. Stephen W. Spencer
Attorney at Law
218 6th Ave, Ste 300
P.O. Box 9130
Des Moines, IA 50306
1803
Filed March 31, 1994
Walter R. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JIMMIE L. BAILEY,
Claimant,
vs.
File Nos. 970243 & 991508
ROBERTS DAIRY COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
NATIONAL UNION FIRE,
Insurance Carrier,
Defendants.
___________________________________________________________
1803
Claimant, in his early fifties, with a ninth grade
education, who was foreclosed from most of his prior
employments because he was restricted to light to medium
work, with permanent impairment ratings from 5 percent to 13
percent, who appeared to be retired after this injury on
social security disability, who had a prior excellent work
history and work ethic, was awarded a 45 percent industrial
disability.
Claimant contended that he was permanently and totally
disabled based on intractable pain. His contention was
rejected because his pain was not supported by any objective
evidence, but on the contrary, many of his complaints did
not track with common medical experience and knowledge.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
JOYCE HOSTETTER,
File Nos. 970497
Claimant, 985188
985189
vs.
PARKVIEW CARE CENTER,
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
This is a proceeding in arbitration brought by
claimant, Joyce Hostetter, against her former employer,
Parkview Care Center, and its insurance carrier, Employers'
Mutual Insurance Companies.
A hearing was held before the undersigned deputy
industrial commissioner on August 25, 1994, at Oskaloosa,
Iowa.
The record in the case consists of testimony from the
claimant, and Janice Orndoff (defendant employer's
administrative secretary); and, joint exhibits 1-6.
ISSUES
For agency file number 985188 (alleged injury date of
January 10, 1991), the parties submitted the following
issues for resolution:
1. Whether claimant sustained an injury on January 10,
1991, which arose out of and in the course of her
employment;
2. Whether the injury caused a permanent disability;
and,
3. Whether claimant filed her petition within two
years of the date of the injury, as governed by Iowa Code
section 85.26. It should be noted that no workers'
compensation benefits were paid to claimant for this injury
date.
For agency file number 985189 (alleged injury date of
May 10, 1991), in addition to the issues listed above, the
parties submitted the following additional issue for
resolution:
Page 2
1. Whether claimant's injury is to a scheduled member,
or to the body as a whole.
For agency file number 970497 (alleged injury date of
February 12, 1991), the parties submitted the following
issues for resolution:
1. Whether claimant is entitled to industrial
disability benefits.
FINDINGS OF FACT
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Claimant, Joyce Hostetter, was born on July 30, 1937.
At the time of the hearing, she was 57 years of age. She is
married to James Hostetter.
Claimant completed the eighth grade in school. She
attended courses at Indian Hills Community College and
obtained a certification as a nurse's aid in 1986.
Employment history includes positions as private
nursing for two years; as a nanny for 5 years; and, as a
certified nurse's aid for 9 years.
Claimant worked for the defendant employer from October
of 1990 to June of 1991.
On January 10, 1991, claimant was working for the
defendant employer. She and a coworker (Mindy) were
attending to a resident, when Mindy accidentally pushed the
bed, which hit claimant's right leg, specifically the right
knee. Claimant reported the incident to Sue Sedore, the
supervisor, but did not secure any medical attention.
Claimant did not miss any time from work as a result of the
accident. At the hearing, claimant stated that she
occasionally takes Motrin for pain in the knee, which "comes
and goes."
On February 12, 1991, claimant was taking out the
garbage, which was contained in a plastic garbage sack. She
fell on the way to the dumpster, and landed on her back.
She filled out an accident report, and was sent to Donald
Berg, M.D., an orthopedic specialist. His notes indicated
that a CT scan performed in July 1991 showed evidence of a
herniated disc at the L5-S1 level and a bulging disc at the
L4-5 level. After a trial period of epidural injections,
claimant underwent laminectomies to repair both discs.
These were performed on September 5, 1991. (Joint Exhibit
1, p. 8) She was released to return to work, with a 50-
pound lifting restriction, on January 20, 1992. (Jt. Ex. 1,
p. 7)
Following the surgeries, claimant had several episodes
of falling. In March, 1992, Dr. Berg's notes provide the
following information:
Page 3
I feel because of her symptoms she is having
although she is not having leg symptoms per say
[sic] outside of the giving way. I feel an MRI
could be done to see if there is an occult problem
here and will schedule this but I do not feel she
will need any surgical procedure in the future.
(Jt. Ex. 1, p. 7)
Chad Abernathey, M.D., reviewed the results of the
scan, and found no specific neurologic dysfunctions or
neural compressions. He favored conservative treatment.
(Jt. Ex. 5)
In July of 1992, Dr. Berg was of the opinion that
claimant had a 9 percent impairment to the body as a whole
due to the herniated discs and resulting surgeries. (Jt.
Ex. 1, p. 5)
In October of 1992, he indicated to the social security
disability determination board that claimant was restricted
to lifting only 20 pounds on an occasional basis.
Apparently, some of the limitations addressed claimant's
arthritic condition in her cervical spine. (Jt. Ex. 1, p.
6)
In January of 1993, Michael Pogel, M.D., conducted an
independent medical evaluation, and offered that claimant
had "an impairment of 11% to the whole body, as applied to
her back." (Jt. Ex. 2, p. 5) He did not relate to the back
injury any of the problems claimant was experiencing with
her feet. (Jt. Ex. 2, p. 1)
In August of 1994, Dr. Berg provided the following
information:
I reviewed your list of activities which she
would be involved in and I would state most of
these on the cleaning schedule I think she could
do. The only problems she would have is if she
has to twist and bend to get into these areas to
do the cleaning and doing frequent twisting
motions I think she would have problems with.
Most of these types of activities one would allow
her to do but would have top go on the basis of
how she feels if she continued to do these. They
certainly are not heavy activities but I am
concerned some about the twisting motion. As far
as setting the tables, wrapping the silverware and
setting up carts, I think this is possible for
her. I feel she would have trouble with sweeping
floors and activities which would require a lot of
bending and twisting of her back when she is doing
cleaning such as leaning over chairs or tables. I
think if she stays under the 10 lb. lifting limit
I think this would be advisable and also avoiding
the frequent bending and twisting activities.
(Jt. Ex. 1, pp. 1-2).
Page 4
The list of activities referred to by Dr. Berg are
included as joint exhibit 1, pages 3-4.
In May of 1991, claimant noticed pain in both feet,
which manifested itself after she was bumped by the bed in
the knee in January of 1991. Various physicians' notes with
respect to treatment of this condition are found at joint
exhibit 4. While the notes are somewhat confusing, and the
physicians involved ran numerous tests to address claimant's
myriad of complaints (ranging from wrist pain, shoulder and
neck pain, ulcers, leg pain and swelling, Lyme disease,
etc.), the final diagnosis on the feet seems to be arthritis
and/or metatarsal disease.
Claimant has had a full array of physical problems,
including tumors on one lung (for which she underwent
surgery), connective tissue disorder, hip and leg pain,
thumb and right arm pain, etc. (Jt. Ex. 3).
ANALYSIS AND CONCLUSIONS OF LAW
With respect to agency file number 985188, the first
issue to address is whether claimant sustained an injury
which arose out of and in the course of her 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. 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 evidence supports a finding that on January 10,
1991, claimant was performing her regular job duties at the
Parkview Care Center, which included attending to residents
and their hospital beds. A coworker accidentally pushed a
bed into claimant's shin. Claimant reported the incident to
the appropriate people. Apparently, the pain was not severe
enough to warrant medical treatment, but nonetheless,
claimant did sustain an injury which arose out of and in the
course of her employment.
The next issue to address is whether claimant filed her
petition within the two-year statute of limitations, found
at Iowa Code section 85.26.
An original proceeding for benefits must be commenced
within two years from the date of the occurrence of the
injury for which benefits are claimed or within three years
from the date of the last payment of weekly compensation
benefits if weekly compensation benefits have been paid
under Iowa Code section 86.13. Section 85.26(1). A
Page 5
proceeding in review-reopening must be commenced within
three years from the date of the last payment of weekly
benefits under either an award for payments or an agreement
for settlement. Section 85.26(2). The "discovery rule" may
extend the time for filing a claim where weekly benefits
have not yet been paid. The rule does not extend the time
for filing a claim where benefits have been paid. Orr v.
Lewis Cent. School Dist., 298 N.W.2d 256 (Iowa 1980). Under
the rule, the time during which a proceeding may be
commenced does not begin to run until the claimant, as a
reasonable person, should recognize the nature, seriousness
and probable compensable character of the condition. The
reasonableness of claimant's conduct is to be judged in
light of the claimant's education and intelligence.
Claimant must know enough about the condition to realize
that it is both serious and work connected. Orr, 298 N.W.2d
at 261; Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa
1980).
Failure to timely commence an action under the
limitations statute is an affirmative defense which
defendants must prove by a preponderance of the evidence.
DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940).
Claimant was injured on January 10, 1991. She filed
her petition on April 8, 1993, which is more than two years
after the injury. As a result, her petition is dismissed.
With respect to file number 970497, the only issue to
address is the extent of claimant's industrial disability.
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 he is
fitted. Olson v. Goodyear Service 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 disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter 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 healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
Page 6
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. 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. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. 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, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
Claimant is 57 years of age. She has an eighth grade
education. Retraining for any type of position would be
highly unlikely.
Her overall physical condition is very poor; some of
her ailments are directly related to the work injury of
February of 1991, and some were preexisting. Her recovery
from the back surgery seemed to progress well, with no major
complications or setbacks noted in the record.
Most of claimant's work experience, which apparently
spans approximately 15 years, has been in the nursing area,
either as a private nurse or certified nurse's aid.
Currently, claimant has lifting restrictions including
no lifting of more than 20 pounds on an occasional basis.
Obviously, nurse's aid work is more demanding, and requires
lifting, pushing or pulling of more than 20 pounds on a
regular basis.
The employer has not reinstated claimant, although
claimant appears very reluctant to return to work.
After considering all of the factors enumerated above,
it is determined that claimant has sustained a 35 percent
industrial disability.
Agency file number 985189, the petition is dismissed.
There is no evidence that claimant's foot problems are
associated with any work injuries.
ORDER
THEREFORE, it is ordered:
Page 7
That claimant take nothing for file numbers 985188 and
985189.
That defendants shall pay claimant one hundred seventy-
five (175) weeks of permanent partial disability benefits at
the rate of one hundred fifty and 38/100 dollars ($150.38)
per week commencing July 5, 1992.
That defendants shall pay accrued benefits in a lump
sum, and shall receive credit for benefits previously paid.
That defendants shall pay interest on the award, as
governed by Iowa Code section 85.30.
That defendants shall pay the costs of this action.
That defendants shall file a claims activity report as
required by the agency.
Signed and filed this ____ day of October, 1994.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Page 8
Copies To:
Mr H Edwin Detlie
Attorney at Law
114 N Market
Ottumwa IA 51501
Mr Steven E Ort
Attorney at Law
121 W Main St
New London IA 52645
5-1803
Filed October 26, 1994
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
JOYCE HOSTETTER,
File Nos. 970497
Claimant, 985188
985189
vs.
PARKVIEW CARE CENTER,
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.
------------------------------------------------------------
5-1803
Claimant awarded 35% industrial disability.