BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
GARY LEON SANTI,
Claimant,
vs.
File No. 975549
G.M. TRADING CORP.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
LIBERTY MUTUAL
INSURANCE CO.,
Insurance Carrier,
Defendants.
________________________________________________________________
STATEMENT OF THE CASE
This is a contested case proceeding under Iowa Code chapter 17A.
Claimant, Gary Santi, sustained a work injury on December 6, 1990 and
now seeks permanent disability benefits from defendant employer G.M.
Trading Corporation and defendant insurance corporation Liberty Mutual.
This case was heard and fully submitted in Des Moines, Iowa on November
22, 1994. The record consists of claimant's testimony and joint
exhibits 1 through 40.
ISSUES
The parties have stipulated to the following:
1. Claimant sustained injury arising out of and in the course of
employment on December 6, 1990;
2. The injury caused temporary disability, the extent of which is no
longer in dispute;
3. Permanent disability, if any, should be compensated by the
industrial method commencing April 15, 1991;
4. At the time of the injury, claimant had weekly earnings of
$200.00, was married and entitled to two exemptions;
5. Affirmative defenses are not at issue;
6. Entitlement to medical benefits is no longer at issue; and
7. Defendants are entitled to credit totalling $3,817.75 against any
award of permanent disability benefits .
ISSUES
Issues presented for resolution include:
1. Whether the work injury caused permanent disability;
2. The extent of claimant's permanent disability;
The parties calculated the rate of compensation at $152.71 based upon
the foregoing factual stipulations. However, the rate tables published
by the commissioner in effect at the time of the work injury show that
an individual so situated is entitled to a compensation rate of
$138.18, which is hereby adopted as the correct rate.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
Gary Santi, 47 years of age at hearing, left school in the 11th grade
as a poor student. Psychometric testing indicates that claimant is of
low average intelligence, but that his academic skills are extremely
weak. Claimant's work history is largely in unskilled and semiskilled
labor.
The work injury occurred when claimant slipped while lifting an animal
hide from a conveyor. Claimant now suffers constant pain in the neck
and right shoulder, especially with excessive use. Claimant suffers
numbness in the left shoulder blade with use, and constant numbness to
the left part of his face. He also complains of daily headaches of
varying intensity. He complains of numbness and reduced grip strength
in the right hand and arm, along with a propensity to drop grasped
items.
The dispute in this case is whether claimant's current symptoms are
causally related to the stipulated work injury as opposed to a
subsequent injury in 1992 while working for another employer, or due to
natural arthritic processes.
Robert R. Sundell, M.D., a board certified neurologist, evaluated
claimant on August 15, 1994. The following history is adopted from his
report:
In reviewing the records of Dr. Monte Harvey, he states on 12/7/90 that
the patient was throwing hides off of the end of the salting table when
he slipped on some salt and twisted his back. There is no mention of
any radicular pain, weakness, or numbness. He was diagnosed as having
traumatic thoracic imbalance and was taken off work briefly. Three
days later the patient was seen again by Dr. Harvey and diagnosed as
having thromboid muscle spasm and he was given another five days off
work. On 1/3/91 the patient was seen again with complaints that he was
still having pain. Dr. Harvey stated "I don't find anything. The
muscle spasm he had a month ago is gone." There was no mention of any
pain radiating down the arms, tingling in the hands, or muscle weakness
involving the right triceps. The patient was subsequently seen by Dr.
Dougherty. In his note of 3/18/91 Dr. Dougherty reports that the
patient has normal strength in his arms. His sensation and reflexes
are intact. His neck did not seem tender. The patient had cervical
spine x-rays taken 1/11/91 and the report states there are moderate
spondylotic changes present at the C5-6 and C6-7 levels in addition to
a clay shovelers type fracture of the C7 spinous process which is a
stable injury. On 3/29/91 the patient was seen again by Dr. Dougherty
and an EMG of the right upper extremity was ordered. The EMG done by
Dr. B. Krvsztofiak showed no indication of a cervical radiculopathy or
any other abnormality. On 4/5/91 Dr. Dougherty reported that the
patient complained he was tender but he "doesn't impress me as being
tender". He found him to have good biceps and triceps strength with
intact reflexes. He had good neck flexion, extension, and rotation.
There is no mention of any numbness involving the hand or thumb and no
mention of any loss of reflexes or strength. Dr. Dougherty stated "I
also informed him that the disks in the neck are narrowed but they have
been narrowed for a long time". In Dr. Dougherty's note of 4/15/91 he
relates that he felt the patient could return to work as of 4/8/91. He
felt the patient had degenerative arthritis of longstanding duration
and that in terms of the fracture of the C7 spinous process he felt it
would be best to leave this alone.
This patient was seen by Dr. Christopher Blake on 10/17/91. In Dr.
Blake's report, he states that the patient has had no arm symptoms or
leg symptoms but was complaining of pain in his mid back that radiates
up his neck. There is no mention of any numbness involving the hand or
thumb or arm and no mention of any weakness or reflex asymmetry. Dr.
Blake stated "At this time I find no objective findings on his
examination." A bone scan was obtained and was felt to be essentially
negative according to Dr. Blake.
On 12/10/92 this patient apparently suffered a new injury at work.
According to the report by Dr. Stephen Ritland of 1/4/94, the patient
was lifting boxes to stack when he slipped on a cart and strained his
neck. In the report stated 3/25/93 by Dr. Jeffrey S. Levine, the
patient reported neck pain with radiation into the trapezius region on
the right and at times descent of the pain into the right upper
extremity. There were also complaints of dysesthetic sensations in the
entire arm when he would lift his arm up. The patient also noted that
his thumb tip was permanently numb on the right. Dr. Levine confirms
that the patient indicates these symptoms were not present prior to the
injury of 12/10/92. Again, according to Dr. Levine, "He claims he
never had any right arm pain nor did he have dysesthesias in the right
upper extremity pre the 12/10/92 injury." On examination, Dr. Levine
found diminished sensation in the right thumb. His impression was that
a C6 radiculopathy was present and he suggested further studies be
done.
The patient was also seen by Dr. Khalid S. Aslam on 7/30/93. Dr. Aslam
reported the patient injured his neck while at work in December of 1992
and that the patient was complaining of weakness in the right upper
extremity and that he would drop things when he picked them up. There
was also numbness of the whole hand. His examination did reveal
weakness in his right triceps and an absent right triceps jerk. Dr.
Aslam's concern was for an acute radiculopathy on the right.
The patient was seen by Dr. W. E. George on 12/10/93. Dr. George also
found in his history that the patient complained of numbness involving
the tip of the thumb on the right. Dr. Stephen Ritland in his note of
1/4/94 also mentioned that the patient would get tingling and
paresthesias into the right arm with radicular pain that was
intermittent. He felt there may be slight weakness in the right
triceps compared to the left. Dr. Ritland reported that the MRI done
10/25/93 did show cervical degenerative disk disease with central disk
protrusion at C5-6 and C6-7.
. . . .
This patient initially presented on 12/7/90 to Dr. Harvey with
complaints of upper thoracic pain. There were no definite radicular
symptoms or signs, and this continued to be the case when he
subsequently saw Dr. John Dougherty and Dr. Christopher Blake in 1991.
He was found to have pre-existing degenerative disk disease involving
his cervical spine. He was also found to have a clay shovelers'
fracture involving the spinous process of C7 of uncertain age. An EMG
examination was done in 1991 which also did not show any evidence of a
cervical radiculopathy. The patient was released to return to work on
4/8/91 by Dr. Dougherty. Subsequently, in December of 1992 the patient
suffered a new injury with the occurrence of new symptoms involving
pain and numbness down the right arm as well as numbness involving the
right thumb and hand documented by three physicians. In addition, he
was found to have new physical findings including weakness of his right
triceps by two physicians and absence of a right triceps jerk by one
physician. These symptoms and signs of cervical radiculopathy
involving the C7 nerve root were not present prior to 12/92.
Despite the appearance of new symptoms, Dr. Levine found that
claimant's condition was causally related to the subject work injury,
and that the 1992 injury was more in the nature of a temporary
exacerbation. It is difficult to reconcile this opinion with the
appearance of substantial new reported symptoms. Dr. Sundell, who
opines that the work injury did not result in any permanent impairment,
and that any aggravation of claimant's preexisting condition was
temporary in nature, offers the more persuasive opinion.
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. of 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).
This decision accepts the opinion of Dr. Sundell that the subject work
injury caused a temporary, not permanent aggravation of claimant's
preexisting condition. Accordingly, claimant fails to meet his burden
of proof on the issue and takes nothing further.
ORDER
THEREFORE IT IS ORDERED:
Claimant takes nothing further.
Costs are assessed to defendants.
Signed and filed this _____ day of March, 1995.
________________________________
DAVID RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Daryl L. Hecht
Attorney at Law
PO Box 27
Sioux City, Iowa 51102
Mr. M. James Daley
Attorney at Law
PO Box 1828
Sioux City, Iowa 51102
5-1402.40
Filed March 20, 1995
DAVID RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
GARY LEON SANTI,
Claimant,
vs.
File No. 975549
G.M. TRADING CORP.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
LIBERTY MUTUAL
INSURANCE CO.,
Insurance Carrier,
Defendants.
________________________________________________________________
5-1402.40
Claimant failed to prove that he sustained permanent disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
LEO J AZINGER,
Claimant,
vs.
File No. 975612
SANCHEZ STRUCTURES,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
I.N.A. (CIGNA),
Insurance Carrier,
Defendants.
________________________________________________________________
STATEMENT OF THE CASE
Leo Azinger, claimant, has filed a petition in arbitration and seeks
workers compensation benefits from Sanchez Structures, defendant
employer and I.N.A., defendant insurance carrier. The hearing was held
before the undersigned on November 21, 1994 at Des Moines, Iowa. The
evidence in this case consists of the testimony of claimant, Steve
O'Brien; joint exhibits A through K and claimant's exhibit 1. The case
was considered fully submitted at the close of the hearing.
ISSUES
The parties submitted the following issues for resolution:
1. Whether claimant sustained an injury on October 31, 1990 which
arose out of and in the course of his employment;
2. Whether the injury resulted in any permanent disability;
3. Whether claimant is entitled to additional healing period benefits;
4. The nature and extent of claimant's entitlement to permanent
partial disability benefits, and the appropriate commencement date
for benefits, and;
5. Whether claimant's proper workers' compensation rate is $333.3
per week or $288.86 per week.
FINDINGS OF FACT
The undersigned deputy industrial commissioner, having reviewed all of
the evidence received, finds the following facts:
Claimant Leo Azinger was born on May 13, 1934 and was 60 years old at
the time of the hearing. He has been an ironworker for 35 years.
He graduated from high school in 1952. After high school he attended
the University of Montana for three years, but did not receive a
degree. Claimant left college because he had an emergency appendectomy
that required he spend all of his college money on medical bills.
During the summers while he was in college claimant worked as a logger.
After leaving college claimant began as an ironworker with the Anaconda
Company for $2.43 per hour in October of 1955.
From 1957 through 1959 claimant was in the army. When discharged from
the military claimant went back to being an ironworker.
Ironworkers are hired out of the union hall and go from company to
company as they are needed. During his career as an ironworker,
claimant has worked out of a number of local unions in Montana,
Illinois, California, North Dakota, Missouri, and Iowa. In order to
stay busy the claimant has always gone were the work was. Iron work is
difficult. It requires workers, including claimant, be able to lift
heavy materials, like rebar weighing up to 150 pounds sometimes while
climbing up the side of a partially constructed building. Workers must
be able to climb while carrying materials and be able to hold on to the
structure while they are climbing.
During his 35 years as an ironworker, the claimant has had several
previous on-the-job injuries. In 1961 while working in Montana a
tornado came through the job site and blew one and a half tons of steel
on the claimant, breaking his neck in five places. After a recovery
period, he was able to return to iron working with no limitations on
his activities.
In 1964 while working 32 feet in the air, claimant fell through a hole
in the floor and landed on his feet. His left heel was cracked in five
places and the ball of his left foot was crushed and his left wrist was
broken. He was hospitalized for five or six days and eventually
returned to iron working with no limitations.
In 1970 while working in California claimant was tied off to a tall
building when he was blown off the building and fell down the side of
the building requiring 26 stitches in his head. He returned to work
the day after the accident.
In 1981 while working in Nebraska claimant suffered a ruptured biceps
muscle in his right arm. He received no workers' compensation benefits
and testified that after a few weeks it didn't bother him at all.
In 1982 while doing some welding work in Ottumwa molten metal dripped
into his left eardrum, ruining his eardrum. He went right back to
work. None of claimant's previous industrial accidents have in any way
impaired his ability to do ironwork.
On October 31, 1990 claimant was working as an ironworker building
separation tanks at the sewage plant in Des Moines, Iowa. When he
started that particular job in September of 1990 he was paid $14.27 per
hour. His pay was later raised to $14.45 per hour.
All day long on October 30, 1990 claimant worked as a feeder with a
crew that was putting in vertical rebar. Claimant was responsible for
picking up and lifting rebar that weighed between 20 and 30 pounds.
Claimant picked up rebar and handed it up to the men who working above
him for eight hours that day. At the end of the day he was having
trouble holding pliers in his hand and was unable to keep his right arm
elevated without supporting it with his left hand and arm. The pain he
was experiencing spread from his right shoulder into his chest. He did
not go to the doctor that night because he thought he had just
overworked his arm and needed to rest.
The next day, October 31, 1990, claimant and the rest of the crew were
working on tying the vertical and the horizontal rebar together.
Claimant and a coworker would pick up a 200-pound piece of rebar, climb
the side of the tank, put in place the 200-pound rebar and then tie it
to the existing structure. Claimant lifted a piece of rebar over his
head and when he brought his hand down he heard a tearing sound, like
cloth tearing. Immediately after that he experienced a tremendous
cramping in his right arm and shoulder that spread into his chest.
Claimant asked a coworker, Steve O'Brien, who was walking by to grab
his arm and pull the cramp out. Steve grabbed his right arm around the
wrist and pulled while claimant leaned back and twisted his arm. This
procedure provided claimant with some relief from the pain.
Claimant began to work again on rebar mats when he heard three pops,
the pain in his arm was gone but claimant was unable to lift his right
arm.
Steve O'Brien, claimant's coworker, testified that he was present when
claimant was injured. Mr. O'Brien's testimony is consistent with the
testimony of claimant. He actually heard the pop that claimant
described hearing in his arm. He also testified that he did pull on
claimant's arm to try and work out what they thought was a cramp.
On November 1, 1990 claimant was sent by defendant employer to see
Achille Pandullo, D.O. Dr. Pandullo diagnosed a rotator cuff injury of
the right shoulder. Claimant was instructed to remain off work for
three days and then to return to light duty lifting no more than ten
pounds until November 12, 1990. If he was still symptomatic after
three to five days Dr. Pandullo wanted claimant to see an orthopedic
surgeon. (Joint Exhibit A, page 2)
In a recheck visit on November 13, 1990 Dr. Pandullo kept the claimant
on light duty and referred him to Scott Neff, D.O., an orthopedic
surgeon because claimant's symptoms had not diminished or improved.
(Jt. Ex. A, p. 3)
On December 17, 1990 Dr. Neff wrote to Dr. Pandullo to outline his
findings. He determined that claimant had a complete tear of the
rotator cuff in addition to superior subluxation or displacement of the
humeral head as well as osteolysis of the AC joint and huge subacromial
spurring both on the acromial and subclavicular side. He did not feel
that the rotator cuff was repairable because of the migration of the
humeral head. (Jt. Ex. B, p. 1-4)
Claimant continued to work light duty until December 10, 1990 when he
was layed off. After being layed off claimant filed for and received
unemployment compensation benefits for ten weeks.
Dr. Neff concluded that claimant's injury was a cumulative trauma or
repetitious trauma injury with the October 30, 1990 injury representing
the straw that broke the camel's back. (Jt. Ex. B, p. 6)
On April 19, 1991 claimant underwent arthrotomy of the right shoulder
with rotator cuff debridement, acromioplasty and excision of
coricoracromial ligament, resection of residual biceps tendon from
glenoid and osteophytectomy, right humeral head. (Jt. Ex. B, p. 13)
In May claimant began a course of physical therapy and later a weight
rehabilitation program. (Jt. Ex. B, p. 16)
On May 22, 1991 in an office note Dr. Neff wrote, "[t]he healing period
following this type of surgery is at minimum 6 months, especially with
his work requirements." (Jt. Ex. B, p. 17)
On September 3, 1991 Dr. Neff wrote to the claim's representative of
the insurance company to update them on claimant's progress. In
reference to the claimant's permanent impairment he wrote, "[t]his
patient will have a profound impairment with reference to his body as a
whole as a result of a completely torn and retracted and irreparable
rotator cuff." (Jt. Ex. B, p. 22) Dr. Neff also determined that
claimant's previous biceps rupture would be an impairment to his upper
extremity and not to the body as a whole because the biceps muscles
don't extend into the body. (Jt. Ex. B, p. 22) Dr. Neff also opined
that claimant "has worked extremely diligently thus far with physical
therapists and with physical therapy at home, and is certainly not
trying to abuse the system at all. His most desperate desire is to
return to gainful employment." (Jt. Ex. B, p. 23)
On October 30, 1991 Dr. Neff determined that claimant still had not
reached maximum medical improvement because he was still improving and
gaining strength. (Jt. Ex. B, p. 25)
Claimant was clearly motivated to return to work as an ironworker. He
tried everything he could to gain mobility and strength in his shoulder
to enable him to return to work. On December 18, 1991 Dr. Neff wrote:
I must confess, and I am surprised. I have an extensive shoulder
practice, and this gentleman has worked harder than most in order to
try and return to work. I am very proud of what he has accomplished
and his willingness to go through a prolonged and strenuous
rehabilitation program.
I think there still may have to be some modifications to the resumption
of his normal job, but he wants to try getting back to his regular job,
and I would certainly support that attempt.
(Jt. Ex. B, p. 26)
On February 3, 1992 Dr. Neff released claimant back to work effective
March 1, 1992 with the recommendation that he not do repetitious
lifting greater than ten pounds at or above shoulder height. (Jt. Ex.
B, p. 27)
On March 2, 1992 Dr. Neff determined that claimant was at maximum
medical improvement and that he had a 15 percent functional impairment
to the body as a whole as a result of rotator cuff tear and subsequent
debridement. Dr. Neff continued as permanent, prohibitions against
claimant lifting greater than ten pounds above shoulder height. (Jt.
Ex. B, p. 28)
Tom Bower physical therapist determined that claimant's permanent
impairment rating was 24 percent of the upper extremity. He converted
the rating to the body as a whole since the rotator cuff was involved
and determined claimant had a 14 percent impairment to the whole body.
(Jt. Ex. C, p. 5)
In summarizing claimant's complete work restrictions found at joint
exhibit C pages 9 and 10, Mr. Bower wrote, "we are somewhat displeased
with the overall result. This is certainly not to the fault of Mr.
Azinger, who has given us complete cooperation." (Jt. Ex. C, p. 9, 10)
Claimant was certainly motivated to regain every bit of strength
possible to return to work as an ironworker. Mr. Bower did not think
that claimant would ever be able to return to the heavy work of an
ironworker. (Jt. Ex. C, p. 11)
Claimant testified he would have worked in construction until he
dropped because he loved the work so much.
Joint Exhibit I illustrates the numerous job searches claimant made
after being released to return to work. It is clear that claimant was
highly motivated to return to some employment, even though he will
never be able to work as an ironworker again.
In May of 1992 claimant began with NPI security as a security guard.
He started at $5.50 per hour and at the time for the hearing was making
$6.25 per hour.
On September 6, 1994 claimant underwent an independent medical
examination with Keith Riggins, M.D. Dr. Riggins determined pursuant
to the AMA Guides to the Evaluation of Permanent Impairment, that
claimant had a 44 percent impairment of the upper extremity, which
converted to a 26 percent impairment of the whole person. (Jt. Ex. D,
p. 5)
In his deposition taken on July 6, 1994, Dr. Neff states that he does
not believe that claimant's injury extends into his body as a whole and
that any impairment is limited to his upper extremity. (Jt. Ex. G)
This completely contradicts what Dr. Neff wrote in numerous previous
reports and letters. Dr. Neff also testifies that claimant's work did
not cause his injury and in his opinion claimant could have been doing
absolutely nothing, like sleeping in bed, and his rotator cuff could
have torn. (Jt. Ex. G) This also completely contradicts what Dr. Neff
had previously written in numerous reports. The undersigned believes
that Dr. Neff's deposition testimony is not as credible as the numerous
letters and written reports prepared by him during his treatment of
claimant. Where the reports and deposition testimony contradict, the
most compelling or credible evidence is that which was done at the time
of the treatment of claimant.
Claimant's rate of pay was $14.27 per hour for the weeks immediately
preceding the injury. Claimant's pay raise to $14.45 per hour was not
in effect until week ending November 3, 1990 as reflected in claimant's
exhibit 1, page 3. Claimant's exhibit 1, page 1 reflects the hours and
pay received by claimant for the weeks immediately prior to his injury.
The first 13 weeks immediately before claimant's injury are the proper
weeks to use to calculate his weekly benefits, beginning with the week
October 27, 1990 through and including August 4, 1990. Claimant's
total earnings for the inclusive weeks, not including overtime are
$6,378.70, for an average gross weekly wage of $490.67. Claimant is
married thus he is entitled to two exemptions. His proper weekly
benefit amount is $304.14
ANALYSIS AND CONCLUSION OF LAW
The first issue to be addressed is whether claimant sustained an injury
on October 31, 1990 which arose out of and in the course of his
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 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).
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 credible testimony of claimant and Mr. O'Brien as well as the
medical records make clear that claimant was injured on October 31,
1990. Even though the injury to his shoulder may have been occurring
over a period of years, it was on October 31, 1990 that the actual
injury occurred. Claimant was off of work immediately after the injury
for three days and when he did return to work it was only at light duty
work. It is clear that the heavy lifting involved in being an
ironworker over a period of years is what caused his injury. Dr. Neff,
with the exception of his deposition testimony, concluded that the
final injury on October 31, 1990 was the "straw that broke the camel's
back." Dr. Riggins also concurs that claimant's injury was caused by
his long years as an ironworker. Thus it is determined that claimant
did sustain an injury that arose out of and in the course of his
employment on October 31, 1990.
The next issue to be determined is whether claimant's injury resulted
in any permanent disability.
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).
Dr. Neff felt compelled to place permanent work restrictions on
claimant and he assigned a permanent impairment rating. As did Mr.
Bower, claimant's physical therapist and Dr. Riggins. It is clear that
claimant can never go back to being an ironworker again. He is unable
to lift over ten pounds with his right arm, he is unable to lift his
right arm and hold it up without supporting it with his left arm. He
is unable to lift with his right arm on a consistent basis and his
shoulder locks up periodically. Claimant's injury clearly has resulted
in permanent disability.
The next issue to be determined is claimant's entitlement to healing
period benefits.
Section 85.34(1) provides that healing period benefits are payable to
an injured worker who has suffered permanent partial disability until
(1) the worker has returned to work; (2) the worker is medically
capable of returning to substantially similar employment; or (3) the
worker has achieved maximum medical recovery. The healing period can
be considered the period during which there is a reasonable expectation
of improvement of the disabling condition. See Armstrong Tire & Rubber
Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period
benefits can be interrupted or intermittent. Teel v. McCord, 394
N.W.2d 405 (Iowa 1986).
Claimant was off work for three days after his October 31, 1990 injury
and then on light duty until December 10, 1990 when he was layed off
permanently and unable to obtain other iron work because of his arm.
Dr. Neff released claimant to return to work on March 1, 1992. Up
until that time claimant was forbidden from working by his treating
physician. Claimant is entitled to healing period benefits from
December 10, 1990 through March 1, 1992.
The next issue to be determined is the nature and extent of claimant's
entitlement to permanent partial disability benefits as well as the
appropriate commencement dates for benefits.
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.
Rotator cuff extends into body as a whole and is not limited to the
upper extremity or the arm. The upper extremity is not necessarily
synonymous with arm. Auten v. Celotex Corp., file number 873898 (App.
Decn. May 27, 1993)
Dr. Neff, up until the time of his deposition, had concluded that
claimant's injury would result in impairment to his body as a whole and
not just to his arm, because the injury involved his rotator cuff. It
is clear from the medical evidence that claimant's injury is not
limited to his arm, but extends into his body as a whole. Since
claimant has an injury to his body as a whole, an evaluation of his
industrial disability is mandated.
Functional impairment is an element to be considered in determining
industrial disability which is the reduction of earning capacity, but
consideration must also be given to the injured employee's age,
education, qualifications, experience and inability to engage in
employment for which the employee is fitted. Olson v. Goodyear Serv.
Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by a medical
evaluator does not equate to industrial disability. Impairment and
disability are not synonymous. The degree of industrial disability can
be much different than the degree of impairment because industrial
disability references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss. Although
loss of function is to be considered and disability can rarely be found
without it, it is not so that a degree of industrial disability is
proportionally related to a degree of impairment of bodily function.
Factors to be considered in determining industrial disability include
the employee's medical condition prior to the injury, immediately after
the injury, and presently; the situs of the injury, its severity and
the length of the healing period; the work experience of the employee
prior to the injury and after the injury and the potential for
rehabilitation; the employee's qualifications intellectually,
emotionally and physically; earnings prior and subsequent to the
injury; age; education; motivation; functional impairment as a result
of the injury; and inability because of the injury to engage in
employment for which the employee is fitted. Loss of earnings caused
by a job transfer for reasons related to the injury is also relevant.
Likewise, an employer's refusal to give any sort of work to an impaired
employee may justify an award of disability. McSpadden v. Big Ben Coal
Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of
fact considers collectively in arriving at the determination of the
degree of industrial disability.
There are no weighting guidelines that indicate how each of the factors
are to be considered. Neither does a rating of functional impairment
directly correlate to a degree of industrial disability to the body as
a whole. In other words, there are no formulae which can be applied
and then added up to determine the degree of industrial disability. It
therefore becomes necessary for the deputy or commissioner to draw upon
prior experience as well as general and specialized knowledge to make
the finding with regard to degree of industrial disability. See
Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck
Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner
Decisions 654 (App. February 28, 1985).
Compensation for permanent partial disability shall begin at the
termination of the healing period. Compensation shall be paid in
relation to 500 weeks as the disability bears to the body as a whole.
Section 85.34.
At the time of his injury claimant was 56 years old. He had worked as
an ironworker for almost 35 years. His injury and work restrictions
make it impossible for him to ever work as an ironworker again.
Claimant is a remarkable man with a work ethic that is incredible.
None of his previous injuries, including a broken neck, stopped him
from being an ironworker. His motivation to return to iron working and
to cooperate with his treatment and physical therapy is apparent from
the doctors notes and the physical therapy notes. His present
employment pays $6.25 per hour, a considerable drop from the $14.45 per
hour he was earning as an ironworker. His permanent work restrictions
include no repetitive lifting over ten pounds at or above his shoulder.
He has functional impairment ratings of 15 percent, from Dr. Neff, 14
percent from Tom Bower, and 26 percent from Dr. Riggins.
After considering all of the factors used to determine industrial
disability, it is the decision of the undersigned that claimant has
sustained a 65 percent industrial disability.
Claimant's healing period terminated on March 1, 1992, when Dr. Neff
released him to return to work. The commencement date for industrial
disability benefits is March 2, 1992.
The final issue to be determined is claimant's proper rate of weekly
compensation benefits.
Iowa Code section 85.36(6) provides:
In the case of an employee who is paid on a daily, or hourly basis, or
by the output of the employee, the weekly earnings shall be computed by
dividing by thirteen the earnings, not including overtime or premium
pay, of said employee earned in the employ of the employer in the last
completed period of thirteen consecutive calendar weeks immediately
preceding the injury.
The thirteen weeks previous to claimant's injury are the proper weeks
to use to calculate claimant's gross weekly wages and his weekly
benefit amount. Those weeks are August 4, 1990 through and including
October 27, 1990. Claimant's total earning were $6,378.70 for an
average gross weekly wage of $490.67. At the time of his injury
claimant was married, thus he is entitled to two exemptions, thus his
proper weekly benefit amount is $304.14.
ORDER
THEREFORE IT IS ORDERED:
That defendants pay claimant three hundred twenty-five (325) weeks of
permanent partial disability benefits at the rate of three hundred four
and 14/100 dollars ($304.14) per week.
That defendants pay claimant sixty-four (64) weeks of healing period
benefits at the rate of three hundred four and 14/100 dollars ($304.14)
per week.
That defendants be given a credit for benefits previously paid.
That defendants pay interest as provided by Iowa Code Section 85.30.
That defendants pay the costs of this action pursuant to rule 343 IAC
4.33.
That defendants file claim activity reports as requested by the agency.
Signed and filed this __________ day of January, 1995.
______________________________
TERESA K. HILLARY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Nick J. Avgerinos
Attorney at Law
30 N. LaSalle St.
Chicago, IL 60602
Mr. Stephen Lombardi
Mr. Peter Sand
Attorneys at Law
10101 University Ave
Des Moines, IA 50325
Mr. William W. Schwarz
Attorney at Law
Westgate Plaza
1000 73rd St STE 10
Des Moines, IA 50311
51802, 51803, 51803.1,
52209, 53001, 53002
Filed January 31, 1995
Teresa K. Hillary
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
LEO J AZINGER,
Claimant,
vs.
File No. 975612
SANCHEZ STRUCTURES,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
I.N.A. (CIGNA),
Insurance Carrier,
Defendants.
________________________________________________________________
51802, 51803, 51803.1, 52209, 53001, 53002
Fifty-six-year-old claimant awarded 65 percent industrial disability
award based on a shoulder injury, that was determined to be, based on
medical evidence, part of body as a whole and not scheduled member,
when claimant had actual loss of earning from $14.45 per hour to $6.25
per hour and lifting restriction of 10 pounds at or above shoulder
height. Rate calculated based on earnings over thirteen weeks previous
to the injury.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
FRED R. FEHRMANN, :
:
Claimant, :
:
vs. :
: File No. 975646
SAMPSON FARMS, :
: 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 Fred R.
Fehrmann against his former employer, Sampson Farms, and its
insurance carrier, Employers Mutual Companies. The matter
came on for hearing before the undersigned deputy
commissioner on December 11, 1992, at Des Moines, Iowa.
The evidence in the case consists of testimony from the
claimant, Thomas Mohan (claimant's current employer), Lyn
Ashmore (vocational rehabilitation counselor), and Barbara
Fehrmann (claimant's wife); and, joint exhibits 1 through 9.
FINDINGS OF FACT
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Claimant, Fred Fehrmann, was born in 1942. At the time
of the hearing he was 50 years of age. Claimant completed
the eighth grade at Ferguson High School in Ferguson, Iowa.
He has no military experience. Although he is currently
married, he was single on December 7, 1990.
Claimant testified that on December 7, 1990, while
working as a truck driver for Sampson Farms, he was loading
sheet steel at a plant in East Chicago, Indiana. His truck
consisted of a flat bed with a tarp and two sides. He
removed the side rails to load the steel which measured six
feet by twelve feet. The load consisted of two separate
piles of the sheet steel, three to three and one-half feet
high.
As claimant began to tie down the first stack, he threw
the chain over the pile of steel and as he chained down the
first stack, the latch binder broke. Claimant fell off of
the truck to the ground, a distance of between six feet to
seven feet.
Page 2
Claimant could not recall whether he was unconscious,
but eventually stood up and went into the plant to tell
someone that he had fallen from the truck. At this time,
claimant felt pain in his back and lower hip. Claimant
drove his truck back to Marshalltown, apparently calling his
wife from the road and telling her about the incident and
that he was experiencing substantial pain. Once he returned
to Marshalltown, Barbara Fehrmann picked up claimant from
the dropoff site.
Claimant was unable to make an appointment with his
family physician until Tuesday, December 11, 1990. Although
initially seen by Joseph Pollpeter, M.D., he was immediately
referred to Carl O. Lester, M.D., an orthopedic surgeon
(Joint Exhibit 3, page 9). Dr. Lester noted that claimant
fell off of a truck while unloading steel, landing on his
left elbow and left buttock. An examination revealed that
claimant displayed diminished feeling in the foot and shin
and sensory decrease in the L-5 nerve root distribution.
Claimant was unable to walk on his toes and could walk on
his heels with difficulty. Dr. Lester's initial diagnosis
was that of a ruptured or herniated disc at the L-4 and L-5
level. He recommended an MRI (Jt. Ex. 3, p. 9).
During the next several days, claimant underwent both
an MRI scan and a CT scan both of which were normal.
Claimant returned to Dr. Lester on several occasions during
January of 1991 and continued to complain of left leg
numbness and pain. Dr. Lester was of the opinion that
claimant may have bruised his sciatic nerve and recommended
an EMG study. Instead, claimant was sent to David Boarini,
M.D., for a second opinion (Jt. Ex. 3, p. 10).
Dr. Boarini recommended an epidural steroid injection
and EMG study. The study revealed a peripheral neuropathy
with no evidence of radicular changes. He recommended a
neurological workup and physical therapy (Jt. Ex. 3, pp. 2
and 1). Claimant underwent physical therapy during January
and February for a total of 14 visits. The notes indicate
that claimant continued to have hip pain radiating into the
left leg. The discharge note states that the claimant did
not meet goals through physical therapy (Jt. Ex. 3, pp. 14-
19).
Dr. Boarini had also recommended claimant see Ronald
Sims, M.D., a neurologist. Dr. Sims' examination and
further nerve conduction studies suggested that claimant was
suffering from a neuropraxic lesion in the left sciatic
nerve or left lumbosacral plexus. Dr. Sims indicated that
this type of lesion would account for the mild findings on
the EMG needle exam. He recommended continued physical
therapy and observation, and released claimant to return to
work without restrictions on March 25, 1991. His letter
stated that claimant was able to resume work as long as his
symptoms did not worsen. Claimant was instructed to return
to the clinic if he did not continue to improve (Jt. Ex. 3,
pp. 32-40).
Apparently, claimant again saw Dr. Sims at the request
Page 3
of John Hughes, M.D., and Dr. Lester in September of 1991.
Claimant continued to have some low back pain as well as
hypesthesias and parethesias along the left leg,
particularly when sitting for prolonged periods of time.
Again, Dr. Sims indicated claimant had low back pain
associated with lumbar degenerative disc disease and a left
sciatic neuropathy. He recommended claimant continue with
low back exercises prescribed earlier by the physical
therapist and he agreed to see claimant on an as-needed
basis (Jt. Ex. 3, p. 41).
Although claimant had initially sought an impairment
rating from Dr. Sims, he was referred to Joseph Doro, D.O.,
an associate of Sims for the rating. Dr. Doro's evaluation,
dated May 6, 1992, indicated that claimant continued to
complain of pain in the back and left leg. He had episodes
of paresthesia.
The notes indicate that claimant was no longer able to
drive a truck because of the constant sitting which caused
pain. An examination of claimant's motor skills revealed no
"focal weakness, atrophy, fasciculations or abnormal
movements." Sensation testing revealed "patchy" decrease in
pinprick in the left lower extremity. Straight leg raising
tests were negative. Dr. Doro noted tenderness over the
lower lumbosacral paraspinal muscles on the left side. He
confirmed that his findings were consistent with Dr. Sims'
diagnosis of a sciatic neuropathy (Jt. Ex. 3, pp. 42-43).
Dr. Doro was of the opinion that claimant had the
following impairments:
In looking at the Guides To Evaluation of
Permanent Impairment, 3rd Edition, Revised, on
Page 77, Table 51, the maximum percent loss of
function due to sensory deficit, pain or
discomfort for sciatic involvement above the
hamstring innervation, would be 25 percent. Since
the patient has not responded to conservative
measures and since he feels that his pain is as
bad as it has been since the injury and since he
has not been able to work because of the pain, I
would place that at that maximum level.
When relating this impairment of the lower
extremity to impairment of the whole person, using
Table 46 on Page 72, this would translate into 10
percent.
(Jt. Ex. 3, p. 43)
Claimant currently works for Sunset Sales, Inc., a
company which manufactures and constructs mobile homes.
Since the spring of 1991, claimant has been employed in a
supervisory position and acts as a skilled operator of a
"toter," an apparatus which moves the large pieces of mobile
homes. Claimant currently earns $1,600 per month, or
$19,200 per year. Prior to his employment with Sampson
Farms, claimant had worked for Sunset Sales, beginning in
1969 and leaving the company in 1987. He testified that
Page 4
during this time, he earned more money than he currently
earns. Claimant's job duties during his initial employment
with Sunset Sales included actual construction of the homes.
In this position, claimant was required to perform an
extensive amount of lifting. Currently, claimant's position
as primary supervisor does not require him to lift
materials.
Thomas Mohon, claimant's employer and owner of the
company, stated that claimant was a very good employee who
had not missed any time from work during his employment with
the company. Both claimant and Mr. Mohon speculated that
claimant would continue to work for the company until
retirement.
Lyn Ashmore, the vocational rehabilitation counselor,
recommended that claimant undergo the general aptitude test
battery to determine his aptitude in several areas. The
results of these examinations can be found at joint exhibit
1, pages 1 through 25). The tests were administered in
March of 1992.
Barbara Fehrmann, claimant's wife, also testified at
the hearing. She stated that claimant has undergone a
change in his sleep patterns and currently constantly turns
and twists due to pain. She attended all doctor
appointments with claimant, and stated that although a
herniated disc was possible, no tests corroborated this
diagnosis.
analysis and conclusions of law
The first issue to be addressed is whether claimant
sustained an injury on December 7, 1990, which arose out of
and in the course of his employment.
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on December 7,
1991, which arose out of and in the course of his
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904
(Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa
352, 154 N.W.2d 128 (1967).
The injury must both arise out of and be in the course
of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246
Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406
of the Iowa Report. See also Sister Mary Benedict v. St.
Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen
v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
The words "out of" refer to the cause or source of the
injury. Crowe, 246 Iowa 402, 68 N.W.2d 63.
The words "in the course of" refer to the time and
place and circumstances of the injury. McClure v. Union
et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa
Page 5
402, 68 N.W.2d 63.
"An injury occurs in the course of the employment when
it is within the period of employment at a place the
employee may reasonably be, and while he is doing his work
or something incidental to it." Cedar Rapids Comm. Sch.
Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure 188
N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
Defendants have denied liability in this case and in so
doing have intimated that claimant hurt his back and hip
during the weekend after claimant's trip to Illinois, not
while on his regular run to East Chicago to load sheet
steel. Nothing in the record corroborates this argument.
The histories given to the various physicians claimant has
seen for treatment is consistent with his version of how the
accident occurred both at the hearing and during his
deposition, taken September 9, 1992. The evidence supports
a finding that claimant was performing his regular job
duties in a manner consistent with the requirements of the
same. And, he was scheduled to drive to East Chicago,
Indiana, to load sheet steel, duties which he was performing
on December 7, 1990. That there were no witnesses is not
fatal to claimant's case. Likewise, although claimant did
not report the injury to his employer until Sunday, there is
no requirement that he do so. In fact, many claimants
believe that they have not been seriously injured and do not
report incidents immediately.
As a result, it is found that claimant received an
injury on December 7, 1990, which arose out of and in the
course of his employment.
The next issue to be addressed is whether there is a
causal relationship between claimant's work injury and his
disability.
The claimant has the burden of proving by a
preponderance of the evidence that the injury of December 7,
1990, is causally related to the disability on which he now
bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
Page 6
133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154
N.W.2d 128.
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal
connection, such testimony may be coupled with nonexpert
testimony to show causation and be sufficient to sustain an
award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146
N.W.2d 911, 915 (1966). Such evidence does not, however,
compel an award as a matter of law. Anderson v. Oscar Mayer
& Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish
compensability, the injury need only be a significant
factor, not be the only factor causing the claimed
disability. Blacksmith v. All-Amnerican, Inc., 290 N.W.2d
348, 354 (Iowa 1980).
The only opinion regarding the nexus between claimant's
injury and his disability can be found at page 15 of Dr.
Doro's deposition, joint exhibit 5. He states that the
diagnosis of sciatic neuropathy was a condition secondary to
the injury that claimant sustained. Likewise, in reviewing
the medical evidence in its entirety, it is found that
claimant has sustained his burden of proof to show by a mere
prove by a preponderance of the evidence that there is a
causal relationship between his injury and disability.
The next issue to be addressed is whether claimant is
entitled to temporary total disability or healing period
benefits or permanent partial disability benefits.
Claimant was off of work from December 8, 1990 through
March 24, 1991. He was released to return to work without
restrictions by Dr. Sims. However, Dr. Sims' notes indicate
that claimant should perform normal job activities as
tolerated. Claimant was advised to seek further medical
treatment on an as-needed basis. Claimant did not seek
medical treatment, and in fact did not seek medical
attention until he desired an impairment rating from Dr.
Sims who eventually referred him to Dr. Doro. These events
took place in May of 1992. However, Dr. Doro has rendered
an impairment rating. As a result, it is found that
claimant has sustained a permanent injury, and is entitled
to healing period benefits from December 8, 1990 through
March 24, 1991.
Having resolved whether claimant has sustained a
permanent injury, the parties failed to agree upon what
portion of the body claimant injured. Defendants contend
that claimant has sustained a scheduled member; claimant
argues that he is entitled to an injury to the body as a
whole so that claimant's industrial disability can be
evaluated.
Dr. Doro is of the opinion that claimant had some
objective findings in the lower lumbar spine. There is
nothing in the medical evidence to refute this opinion. It
is found that claimant has sustained an injury to the body
as a whole.
As a result, an evaluation of his industrial disability
Page 7
is warranted.
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;
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).
At the time of the hearing, claimant was 50 years of
age. He is currently employed, and earns more than what he
was earning at the time of the injury. Although claimant
tried to establish that he had an earning potential in
Page 8
upwards of $40,000 per year, it was not shown that claimant
had ever earned this much in a year in the truck driving
business. Although he stated on numerous occasions that he
was unable to perform the work, this is not borne out by the
medical evidence. In fact, Dr. Doro was even unwilling to
state that claimant would not be able to earn a living as a
truck driver.
Claimant has sustained some functional loss of the
lumbar spine. His physical limitations may make it more
difficult for him to perform the same type of job duties he
has performed in the past.
Claimant does not have much education, and given his
age and lack of formal education would probably be very
difficult to train in any type of occupation. However, he
appears to be a very productive worker and has found
suitable employment.
After considering all of the factors, it is found that
claimant has sustained a 15 percent industrial disability.
The last issue to be addressed is claimant's workers'
compensation rate.
At the time of the injury, claimant was single and
entitled to one exemption. The parties were able to
stipulate that his gross weekly wages for the 13 weeks
preceding the injury total $554. Using the appropriate
guides, it is found that claimant's workers' compensation
rate is $316.76.
order
THEREFORE, it is ordered:
That defendants shall pay claimant healing period
benefits from December 8, 1990 through March 24, 1991, at
the rate of three hundred sixteen and 76/100 dollars
($316.76) per week.
That defendants shall pay claimant seventy-five (75)
weeks of permanent partial disability benefits at the rate
of three hundred sixteen and 76/100 dollars ($316.76) per
week beginning March 25, 1990.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
Page 9
to rule 343 IAC 3.1.
Signed and filed this ____ day of December, 1992.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Ms Gail E Boliver
Attorney at Law
8 E Southridge Rd
Marshalltown IA 50158
Mr D Brian Scieszinski
Attorney at Law
801 Grand Ave Ste 3700
Des Moines IA 50309-2727
5-1800; 5-1805
Filed December 30, 1992
Patricia J. Lantz
before the iowa industrial commissioner
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