BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DEBRA TWEDT,
Claimant,
vs.
File No. 979758
CABIN CRAFT MIDWEST INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
UNION INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Debra
Twedt, claimant, against Cabin Craft Midwest Inc., employer,
and Union Insurance Company, insurance carrier, defendants,
to recover benefits under the Iowa Workers' Compensation Act
as a result of an injury sustained on January 23, 1991.
This matter came on for hearing before the undersigned
deputy industrial commissioner on April 20, 1994, in Des
Moines, Iowa. The record was considered fully submitted at
the close of the hearing. The claimant was present and
testified. Also present and testifying were Stanley Twedt,
Steve Twedt and Ann Mauldin. The documentary evidence
identified in the record consists of joint exhibits 1-5,
claimant's exhibits 6-10 and defendants' exhibits A, B & C.
ISSUES
Pursuant to the prehearing report and order dated April
20, 1994, the parties have presented the following issues
for resolution:
1. Whether claimant sustained a right shoulder injury
arising out of and in the course of employment with employer
(defendants admit that claimant sustained a right elbow
injury arising out of and in the course of employment with
employer);
2. Whether the alleged right shoulder injury is the
cause of temporary and permanent disability and if so, the
extent thereof; and
3. Whether claimant is entitled to payment of an
independent medical examination pursuant to Iowa Code
section 85.39.
FINDINGS OF FACT
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
Page 2
contained in the exhibits herein, and makes the following
findings:
Claimant was born on October 7, 1954 and completed the
ninth grade of school. She received her GED certificate in
1971. Prior to commencing work with employer in 1989,
claimant worked as a waitress, sandblaster, factory
assembler, kitchen helper, truck driver and counter clerk.
She commenced working part-time for employer in 1989 in the
warehouse shipping and receiving department. She was put on
full-time duty in January of 1990. Claimant alleges an
injury to her right elbow and right shoulder on January 23,
1991. She went off work in March of 1991 and never
returned. In 1993, she was a paid baby-sitter and worked
three months on weekends for Caseys. On February 28, 1994,
she commenced working for Iowa State University in the
housekeeping department. She earns $7.02 per hour which is
a $1.70 increase from the $5.25 she was earning at the time
of her injury.
A review of the pertinent medical evidence of record
reveals that claimant presented to J. M. Koester, D.O., a
family physician, on January 23, 1991, with complaints of
right elbow pain radiating to the right thumb of one months
duration. She reported that her pain increases with
activity. Dr. Koester diagnosed tendonitis, probably
secondary to overuse at work (Exhibit 1-2).
Claimant had follow-up visits with Dr. Koester on
February 11 and March 11, 1991. Her complaints were
referable to persistent pain in her right elbow. Dr.
Koester diagnosed lateral epicondylitis and/or tendonitis of
the right elbow secondary to overuse at work. At this time,
he took her off work to rest her arm (Ex. 1-3).
On March 25, 1991, claimant had x-rays taken of her
right elbow at Story City Memorial Hospital. The results
were normal without evidence of fracture or significant
hemarthrosis (Ex. 5).
Claimant saw Dr. Koester for follow-up visits on March
25 and April 28, 1991. Again, her complaints were referable
to right elbow pain (Ex. 1-3-4).
Dr. Koester referred claimant to the McFarland Clinic,
Department of Orthopedics on May 9, 1991. Claimant related
complaints of pain in the elbow, forearm and occasionally up
into the upper arm. On examination she had full range of
motion of the elbow. She had some mild tenderness over the
lateral epicondyle and pain upon resistive maneuvers
involving the later muscle mass. Dr. Buck referred claimant
for physical therapy and recommended that she return to work
after a couple of weeks of therapy (Ex. 1-2).
Claimant returned to Dr. Koester on May 22, 1991. She
continued to complain of right elbow pain. He advised her
to speak with employer regarding some sort of job assignment
which would be light in terms of physical use of the right
upper extremity (Ex. 1-5).
Page 3
Defendant insurance carrier referred claimant's case to
Intracorp on May 24, 1991 for the purpose of obtaining a
medical release of information, completing a job analysis
and reviewing a job analysis with Dr. Koester and Dr. Buck
to determine whether she can return to the same job and
employer. A job analysis was completed and employer
informed Shelley Foss, rehabilitation specialist, assigned
to the case that employer was willing to make some job
modifications to enable claimant to return to work (Ex. C,
pp. 1-4).
Claimant returned to Dr. Koester on July 2, 1991. Her
complaints were referable to pain in the right elbow. He
diagnosed persistent lateral epicondylitis of the right
upper extremity (Ex. 1-5).
Claimant was then referred by defendants to Thomas F.
DeBartolo, M.D., for an independent medical examination. On
July 17, 1991, claimant was accompanied to the examination
by Shelley Foss who provided Dr. DeBartolo with an analysis
of claimant's job duties with employer. On examination, she
was only able to forward flex her right shoulder to
approximately 155-160 degrees. Abduction of her arm was
slightly limited at the extreme of motion. She was unable
to rotate her arm behind her back touching the opposite
shoulder blade. She had full flexion and extension of her
elbow with evidence of significant ulnaritis. There was
some mild tenderness around the lateral epicondyle. Dr.
DeBartolo's impression was that claimant's symptoms are
primarily of radial nerve entrapment in the proximal forearm
as opposed to an epicondylitis. He felt that in order to
make a positive diagnosis, a radial nerve block should be
performed and her arm immobilized in a cast (Ex. 4, pp.
1-2).
Claimant communicated to Ms. Foss that she agreed to
transfer her medical care to Dr. DeBartolo and to follow
through with the nerve block (Ex. C-11). On August 8, 1991,
a radial nerve block proximal to the localized area of
discomfort was performed by Dr. Ming. Since the claimant
was leaving for a one week visit to Texas, Dr. DeBartolo did
not apply a long-arm cast at this time. The nerve block
confirmed the diagnosis of radial nerve entrapment and a
long-arm cast was applied on September 4, 1991, when
claimant returned from Texas (Ex. 4-3 & Ex. C-12).
Claimant returned to Dr. DeBartolo on September 24,
1991. The cast was removed and she reported decreased pain
in the right forearm. Dr. DeBartolo advised claimant to
avoid repetitive supination of her right upper extremity
(Ex. 4-4).
Ms. Foss, who accompanied claimant on her visit with
Dr. DeBartolo, contacted employer regarding a job compatible
with her physical restriction of no repetitive supination of
the right upper extremity. Employer indicated that there
was an opening for a bandsaw operator in the wood shop. Dr.
DeBartolo had no problem with claimant performing this job
since it involved basically radial ulnar deviation of the
wrist. He outlined a program of gradual return to full-time
Page 4
work activity (Ex. 4-5).
In the meantime, claimant reported to Ms. Foss that she
probably would not return to Cabin Craft even if work were
available to her because she had a disagreement with
employer several months prior regarding contract work she
did for them and decided to go into business with a friend
who had a country craft store (Ex. C-17).
Ms. Foss met with claimant in her home on October 1,
1991. There is a written memorandum in evidence concerning
this meeting. In essence, claimant reported to Ms. Foss
that she probably would not return to work at Cabin Craft
because she was considering working for herself or with a
friend as a craft painter (Ex. C-18). A letter from Ms.
Foss to Dr. DeBartolo dated October 15, 1991, reiterates
claimant's intentions (Ex. C-22).
Employer had work available for claimant beginning
October 28, 1991. Ms. Foss contacted claimant via telephone
on October 24, 1991, to inform her that the job was cleared
by Dr. DeBartolo. At this time, claimant stated that she
would not return to work for employer due to a personal
conflict and that she could work in her own wood shop
operating a wood lath and bandsaw to fill orders for Cabin
Craft in Nevada, Iowa and Texas (Ex. C, pp. 28-29).
Claimant returned to Dr. DeBartolo after a four month
absence on February 12, 1992. At this time, Dr. DeBartolo
reported that:
The patient returns and states that as she uses
her band saw she tends to have her shoulder
abducted. She feels that she is not able to
tolerate that activity. She has a sense of the
shoulder joint coming out of place. She describes
discomfort in the right shoulder and in the neck
area.
He also noted that her elbow was not particularly
discomforting at this time. He noted that Ms. Foss was no
longer actively following her case. Claimant was adamant
that she needed some information about continuing to work
with the bandsaw. Based on the history she related, Dr.
DeBartolo stated that she appears to be unable to tolerate
the abducted position of her arm. He indicated that it is
primarily postural and muscle fatigability as opposed to any
type of underlying structural problem. Dr. DeBartolo
reiterated his October 23, 1991 return to work program with
avoidance of repetitive supination and 15 pound lifting
limit (Ex. 4, pp. 6-7).
Claimant was referred by Dr. DeBartolo to M. Davenport,
physical therapist, for neck and upper extremity evaluation
on March 31, 1992. Claimant reported that she was presently
working an average of 25 hours per week at home running a
lathe bandsaw and painting for Cabin Craft. It was noted
that recent x-rays of the cervical spine and right shoulder
were negative. Claimant's complaints were referable to pain
in the right scapular region, right anterior shoulder and
Page 5
the dorsal proximal right forearm in the area of supinator.
A functional capacity evaluation was performed and it was
determined, among other things that claimant was capable of
occasionally working with her arms at shoulder level and
performing overhead work but that she should avoid
repetitive pronation/supination with the right upper
extremity (Ex. 3).
Claimant was seen again by Dr. DeBartolo on May 6,
1992. Claimant's complaints were referable to neck and
shoulder discomfort. Dr. DeBartolo felt that this was due
primarily to some strain in the shoulder area as a result of
altered use of her right arm. Nevertheless, he felt that
this has not resulted in measurable impairment and that she
had reached maximum medical improvement at this time (Ex. 4,
pp. 9-10).
Being dissatisfied with Dr. DeBartolo's assessment,
claimant requested a second opinion.
Claimant was referred by defendants to Rodney E.
Johnson, M.D., for evaluation on July 1, 1992. Dr. Johnson
reported that claimant was self-employed at this time doing
arts and crafts using a saw to cut wood blocks and also
doing some painting. She presented with complaints of right
shoulder discomfort with no specific history of trauma. Dr.
Johnson agreed with Dr. DeBartolo that her discomfort
resulted from a substitution pattern with active use of the
arm but he also felt that the nature of her work contributed
to her shoulder discomfort. After conducting a physical
examination, Dr. Johnson injected in and around the AC joint
and the subacromial space. He concluded that she has some
impingement. He indicated that an MRI may be warranted in
the future (Ex. 6).
At this juncture, Ms. Foss became reinvolved with
claimant's case. She accompanied claimant to Dr. Johnson's
office visit. She recounted the particulars of the visit in
a letter to claimant dated July 9, 1992. She noted that Dr.
Johnson recommended three weeks of physical therapy to work
on range of motion and then to work on strengthening (Ex.
C-39).
Dr. Johnson then referred claimant to Bradley R. Adams,
D.O., for evaluation of her right shoulder. Dr. Adams saw
claimant on July 22, 1992. He obtained x-rays of her right
shoulder and noted some mineralization of the inferior
aspect of the AC joint with definite tenderness in the area.
He locally injected the area and she experienced some mild
relief of her symptoms. Dr. Adams suspected an impingement
syndrome as well as AC pathology. He recommend an MRI and
bone scan to further assess rotator cuff structures and to
determined whether surgery was necessary (Ex. 7-3).
On October 2, 1992, claimant underwent an MRI of the
right shoulder and a bone scan. The MRI revealed severe
impingement and probable full thickness tear. The bone scan
of both shoulders revealed good distribution of radial
activity and symmetrical uptake of radial activity in both
shoulders. The intensity around the glenoid area of the
Page 6
right shoulder was slightly greater than the left (Ex. 9).
Claimant returned to Dr. Adams on October 5, 1992. He
noted that the MRI scanned findings were consistent with
probable partial tear of the rotator cuff and severe
impingement. He discussed with her the option of continuing
with pain, reinstituting a therapy program or considering
surgical intervention. She indicated a willingness to
proceed with surgery (Ex. 7-5).
Claimant testified that she did not proceed with
surgery because she developed severe respiratory problems
and was bedridden while taking prescribed Prednisone.
Claimant presented no medical records in this regard.
Nevertheless, on March 15, 1993, claimant presented to Dr.
Adams stating that she was significantly better and had less
pain than the last time she was seen in October, 1992. On
examination, she had full range of motion of her shoulder
with normal strength. Dr. Adams indicated that since she
had clinically improved and despite the MRI findings, there
was no need to operate on her shoulder at this time. He
attributed her improvement to the Prednisone and released
her from his care (Ex. 7-6).
One year later, claimant presented to Dr. Adams on
February 9, 1994. On examination, her pain was still
localized in the anterior clavicle acromial complex. On
examination, she lacked approximately 20 degrees of forward
flexion. She was able to painfully abduct to 90 degrees.
She had a positive speeds impingement sign and tenderness in
the anterior coracoacormial complex. No instability was
evident and strength was 5/5. Dr. Adams was unable to
answer whether she would require surgery in the future (Ex.
7-7).
Claimant was referred by her attorney to Thomas W.
Bower, P.T., for an independent functional capacity and
impairment evaluation on April 5, 1994. After an extensive
functional capacity evaluation, Mr. Bower indicated that
claimant cannot perform any work requiring overhead reaching
or any overhead activity above shoulder height. He felt
that she had reached maximum medical improvement at this
time since she has not had surgery and felt that she had
sustained an overall 14 percent impairment to the right
upper extremity which converts to 8 percent to the body as a
whole (Ex. 8-12).
Mr. Bower's impairment rating contrasts with the rating
given by Dr. DeBartolo on May 6, 1992. At that time, Dr.
DeBartolo gave claimant a 10 percent impairment rating of
the upper extremity due to entrapment neuropathy and radial
nerve at the elbow (Ex. 4-9).
CONCLUSIONS OF LAW
The first issue to be determined is whether claimant is
entitled to additional temporary total disability benefits.
Defendants have paid claimant benefits from March 11, 1991
through November 3, 1991. Claimant contends that she is
entitled to benefits through November 4, 1992, the date she
Page 7
was scheduled to undergo right shoulder surgery but was
unable to do so because of respiratory problems.
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 employed by Cabin Craft Midwest, Inc. from
February 1, 1990 to March 12, 1991, when Dr. Koester took
her off work due to right elbow pain. On October 23, 1991,
Dr. DeBartolo released claimant to initially return to work
three to four hours every other day for three weeks, and if
she continued to do well, three to four hours daily for
another three-week period, and then a full day every other
day for three weeks and ultimately a 40-hour week with no
overtime (Ex. 4-5). Employer had agreed to accommodate this
program and provide claimant with a job approved by Dr.
DeBartolo. Insurance carrier agreed to pay claimant
temporary partial disability benefits during those times she
was not working. Claimant indicated to Ms. Foss, the
rehabilitation specialist assigned to her case by defendant
insurance carrier, that instead of returning to work with
employer, she intended to work out of her home as a hand
craft painter and bandsaw operator. She indicated that she
already had 600 orders lined up for customers in Iowa and
Texas (Ex. C pp. 18-32)
Accordingly, the undersigned concludes that claimant is
not entitled to receive additional temporary total
disability benefits than what has already been paid to her
by defendants. Employer cannot be obligated to pay claimant
healing period benefits after being released to return to
work by her physician and after refusing to participate in
the work offered by employer which was previously approved
by claimant's treating physician as work well within her
physical restrictions.
The next issue to be determined is whether claimant's
right shoulder injury is the proximate result of her
original injury.
In 1936, the Iowa Supreme Court attempted to supply
some guidance for sorting through this type of case in
Oldham v. Scofield and Welch, 222 Iowa 764, 767, 266 N.W.
480, 482 (Iowa 1936).
The question of whether the disability sustained
by the employee shall be attributed to the first
accident or to the later accidents depends on
whether or not the disability sustained was caused
by a change in the original condition, or by a
Page 8
recurrence of the original injury, or by an
independent and subsequent cause. If the employee
suffers a compensable injury and thereafter
suffers further disability which is the proximate
result of the original injury, such further
disability is compensable. Where an employee
suffers a compensable injury and thereafter
returns to work and, as a result thereof, his
first injury is aggravated and accelerated so that
he is greater disabled than before, the entire
disability may be compensated for.
More recently the court in DeShaw v. Energy
Manufacturing Co., 192 N.W.2d 777, 780 (Iowa 1971)
established this rule:
When a workman sustains an injury, later sustained
another injury, and subsequently seeks to reopen
an award predicted on the first injury, he must
prove one or two things: (a) that the disability
for which he seeks additional compensation was
proximately caused by the first injury, or (b)
that the second injury (and ensuring disability)
was proximately caused by the first injury.
This issue has been addressed by Dr. DeBartolo and Dr.
Johnson. On May 6, 1992, Dr. DeBartolo indicated that
claimant's neck and shoulder discomfort is related to the
altered use of her right arm. He noted that she was
instructed to avoid repetitive supinatory motions of the arm
and in attempting to compensate for and to protect the
elbow, she may have strained the shoulder area (Ex. 4-9).
Dr. Johnson stated that he agrees with Dr. DeBartolo as to
the cause of her shoulder pain but added that her work with
employer also contributed to her shoulder discomfort (Ex.
601). Both of these opinions were available to defendants
on September 22, 1992, when a telephone conference was held
pursuant to a petition for alternate medical care filed by
claimant. In the proceeding, defendants admitted liability
for both the elbow and right shoulder condition. They have
not produced any additional evidence to dispute or discredit
the opinions rendered by Dr. DeBartolo and Dr. Johnson in
this regard. Therefore, the determination that claimant's
right elbow and right shoulder problems arose out of and in
the course of employment with employer is res judicata and
will not be relitigated in this proceeding.
The next issue to be determined is whether claimant's
injury is to a scheduled member or to the body as a whole.
Dr. Adams saw claimant specifically for her right
shoulder problems. An MRI and bone scan were taken on
October 2, 1992 (Ex. 9). On April 6, 1994, Dr. Adams
reported that the test results indicate a probability that
claimant has a full thickness rotator cuff tear of the right
shoulder (Ex. 7-8).
A shoulder injury is an injury to the body as a whole
if the injury affects the "body side" or the shoulder joint.
Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986). The
Page 9
agency has typically compensated shoulder injuries
industrially on the basis that such injuries involve
disability to the body as a whole.
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 the Oscar
Mayer & Co., II Iowa Industrial Commissioner Report 281
(Appeal 1982), a torn rotator cuff was found to cause
disability to the body as a whole.
Accordingly, claimant has met her burden of proof that
her upper extremity injury extends beyond the scheduled
member and into the body as a whole. Kellogg v. Shute and
Lewis Coal Company, 130 N.W.2d 667 (1964).
The next issue to be determined is whether claimant's
injury has caused permanent disability.
Since claimant has suffered an injury, the next
question to be resolved is whether the injury has caused
permanent disability. The claimant has the burden of
proving by a preponderance of the evidence that the injury
of , is causally related to the disability on which now
bases claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868
(Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14
(Iowa 1945). A possibility is insufficient; a probability
is necessary. Burt v. John Deere Waterloo Tractor Works, 73
N.W.2d 732, 738 (Iowa 1955). The question of causal
connection is essentially within the domain of expert
testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d
167, 171 (Iowa 1960). Expert medical evidence must be
considered with all other evidence introduced bearing on the
causal connection. Burt, 73 N.W.2d at 738. The opinion of
the experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903, 907 (Iowa 1974). Moreover, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Sondag, 220 N.W.2d at 907. Finally, 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 material circumstances. Bodish, 133 N.W.2d
at 870; Musselman v. Central Telephone Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The supreme court has also observed
that greater deference is ordinarily accorded expert
testimony where the opinion necessarily rests on medical
expertise. Sondag, 220 N.W.2d at 907.
Claimant has received two permanent partial disability
ratings. One from Dr. DeBartolo and another from Thomas
Bower. Claimant has permanent restrictions which have been
validated on a functional capacity evaluation performed on
April 5, 1994. The greater weight of the evidence supports
claimant's contention that she has suffered permanent
disability as a result of her injury.
The next issue to be determined is the extent of
permanent disability. Since claimant's injury extends into
the body as a whole she is entitled to industrial
disability.
Page 10
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
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.
Page 11
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
Claimant is 40 years old and a younger individual at
the peak time of her earnings career. Her disability is
therefore worse than it would be for a younger or older
employee. 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); IAWC decisions of the Iowa Industrial
Commissioner 400 (1989).
Claimant's functional limitations limit her to
light-medium work activity (Ex. 8-13).
Claimant had a non-surgically treated elbow injury
which has now resolved and a non-surgically treated shoulder
injury with persistent shoulder discomfort and limited range
of motion. The pain is localized in the anterior clavicle
acromial complex (Ex. 7-7). Nevertheless, claimant has been
gainfully employed since February 28, 1994 and earns more
now than she did when she was originally injured in January
of 1991.
It is entirely possibly for a claimant to suffer a loss
of earning capacity and yet to continue to work and not
experience a loss of wages. Holland v. Associated Grocers
of Iowa, No. 757549 (Appeal Decn., February 26, 1990).
Based on a functional capacity evaluation and using the
AMA Guides to the Evaluation of Permanent Impairment, Fourth
Edition, Mr. Bower gave claimant a 14 percent impairment to
the right upper extremity which converts to an 8 percent
whole person impairment (Ex. 8-12).
After carefully considering all of the factors of
industrial disability and employing agency expertise, it is
determined that claimant is 10 percent industrially disabled
and entitled to 50 weeks of permanent partial disability
benefits at the rate of $104.47 per week commencing November
4, 1991.
The final issue to be determined is whether claimant is
entitled to payment for an independent medical examination
pursuant to Iowa Code section 85.39.
At the hearing, defendants indicated that they had not
reimbursed claimant for the independent medical examination
performed by Mr. Bower because they had not received his
bill. They voluntarily agreed to pay for this examination
upon receipt of the bill.
ORDER
THEREFORE, IT IS ORDERED:
That defendants pay to claimant fifty (50) weeks of
permanent partial disability benefits at the rate of one
Page 12
hundred four and 47/100 dollars ($104.47) per week
commencing November 4, 1991.
That defendants pay to claimant healing period benefits
from March 11, 1991 through November 3, 1991.
That defendants receive credit for any benefits
previously paid.
That defendants pay accrued amounts in a lump sum.
That defendants pay interest pursuant to Iowa Code
section 85.30.
That defendants reimburse claimant for the cost of an
independent medical examination pursuant to Iowa Code
section 85.39.
That defendants pay costs pursuant to Iowa Code section
85.30.
That defendants file claim activity reports as required
by the agency pursuant to rule 343 IAC 3.1(2).
Signed and filed this ____ day of May, 1994.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Christopher D. Spaulding
Attorney at Law
840 Fifth Ave.
Des Moines, IA 50309
Mr. Joseph S. Cortese II
Attorney at Law
500 Liberty Bldg.
Des Moines, IA 50309
1100, 5-1802, 5-18-3, 5-1803.1
5-2200
Filed May 11, 1994
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DEBRA TWEDT,
Claimant,
vs.
File No. 979758
CABIN CRAFT MIDWEST INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
UNION INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1802
Claimant's request for additional healing period
benefits denied. Claimant's treating physician released her
to return to work and employer had a job available which was
within her restrictions and approved by her treating
physician. Claimant declined the offer of employment and
instead became self-employed.
5-2200
Based on uncontroverted medical opinion from
defendants' own physicians, claimant's shoulder problems
found to be a sequela of compensating for and protecting her
right elbow which was injured as a result of her repetitive
work activities.
1100
Defendants admission of liability for claimant's elbow
and right shoulder problems in a previous alternate medical
care hearing was determined to be res judicata and
relitigation of liability was not permitted at this hearing.
5-1803.1
Claimant's shoulder injury which was described as a
full thickness rotator cuff tear of the right shoulder was
found to be an injury to the body as a whole rather than to
a scheduled member. Alm v. Morris Barick Cattle Co., 240
Iowa 1174, 38 N.W.2d 161 (1949).
Page 2
5-1803
Based upon all the factors of industrial disability
including claimant's ability to work full-time and earn more
now than she did when she was injured, it was determined
that claimant is 10 percent industrially disabled.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DEBRA TWEDT, :
: File No. 979758
:
Claimant, :
: A L T E R N A T E
vs. :
: M E D I C A L
CABIN CRAFT, :
: C A R E
Employer, :
: D E C I S I O N
and :
:
UNION INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding for alternate care brought by
Debra Twedt, claimant, against Cabin Craft and Union
Insurance, as defendants. On January 23, 1991, Ms. Twedt
sustained an injury to her elbow and shoulder which arose
out of and in the course of her employment. She is
dissatisfied with the medical treatment provided by the
employer.
The petition for alternate medical care was filed on
September 10, 1992. A telephone conference hearing was held
on September 22, 1992. Claimant appeared personally and
through counsel; defendants appeared through counsel.
The record consists of testimony from claimant;
claimant's exhibit A, consisting of nine pages of medical
documentation; and, defendants' exhibit 1, a two page letter
dated July 27, 1992, under the signature of Thomas F.
DeBartolo, M.D.
Claimant, Debra Twedt, injured her right upper
extremity at work and was sent to Thomas DeBartolo, M.D.,
for treatment. Dr. DeBartolo practices in Mason City, Iowa,
and claimant drove approximately 200 miles round trip for
her appointments, which have totaled six or seven in number.
His initial diagnosis was that of radial nerve entrapment
with associated muscle fatigue. He did not prescribe any
medications but placed claimant in a cast which reached half
way between her right elbow and shoulder. Once the cast was
removed, claimant's arm had improved but she would
experience pain when she began to move or use her arm and
shoulder. She explained that whenever the arm and/or
shoulder "flared up" she would call for an appointment with
Dr. DeBartolo which would be scheduled for a date four to
Page 2
six weeks later.
Dr. DeBartolo last examined claimant on May 6, 1992.
His report marked claimant's exhibit A, pages 8 through 9,
notes that claimant was complaining of discomfort in the
paraspinous musculature of the neck on the right side and
achy discomfort in the shoulder. The results of x-rays
revealed no evidence of any significant bony abnormality,
fracture, dislocation or significant arthritis. He was of
the opinion that claimant's shoulder discomfort was related
to her work injury of the elbow. He noted restricted range
of motion, and recommended conservative treatment such as
heat, nonsteroidal inflammatories and strengthening
exercises. He indicated that claimant would not be able to
return to normal job duties which required repetitive
rotations and that claimant felt unable to return to light
duty work. He stated that she reached maximal medical
improvement on May 6, 1992, and had sustained a 10 percent
permanent impairment of the right upper extremity.
Claimant asked for and received a second opinion when
she was sent to Rodney Johnson, M.D., a physician she first
saw on July 1, 1992. Claimant's exhibit A, pages 6 through
7, documents Dr. Johnson's findings that although he agreed
with Dr. DeBartolo's evaluation that claimant's pain in the
right shoulder was a sequela of the substitution pattern of
active use of her arm, he also thought that her work
activities contributed to the shoulder discomfort. His
examination revealed that active movement of the shoulder
elicited neck discomfort as well as limited range of motion.
To palpation, claimant displayed pain over the AC joint and
cortical acromial ligament as well as over the lateral
subacromial. Claimant showed positive signs of impingement.
Dr. Johnson injected the AC joint and the subacromial space
with Xylocaine which enabled increased range of motion. he
recommended claimant undergo physical therapy in Story City
for increased range of motion and strength. She was to
return in three weeks.
On July 22, 1992, claimant returned to Dr. Johnson.
The physical therapy had improved the range of motion, but
she continued to complain of pain in the shoulder and
displayed an arc of impingement on forward flexion and
abduction as well as moderate discomfort over the AC joint.
Dr. Johnson referred claimant to his partner, Bradley Adams,
D.O. Dr. Adams ordered x-rays which showed mineralization
of the inferior aspect of the AC joint. His examination
revealed full range of motion but a positive impingement
sign. His diagnosis was that of an impingement and AC
pathology, and he recommended an MRI scan and bone scan to
further assess rotator cuff structures to determine whether
claimant was in need of surgical intervention. He was aware
that claimant had undergone conservative therapy (Claimant's
Exhibit A, pages 5-7).
Dr. DeBartolo's correspondence to Shelly Foss, a
rehabilitation specialist assigned to claimant's case,
indicated that he recommends further conservative treatment,
Page 3
and seemed unwilling to order other tests. He is of the
opinion that claimant does not have a significant pathology,
and that although her "right upper extremity function is
never going to be normal" a nonsurgical approach is in the
patient's best interests.
Apparently, the insurance company has not authorized
claimant to undergo the MRI and bone scan. Claimant does
not have any future doctor appointments scheduled.
ANALYSIS AND CONCLUSIONS OF LAW
In pertinent part, Iowa Code section 85.27 provides:
For purposes of this section, the employer is
obliged to furnish reasonable services and
supplies to treat an injured employee, and has the
right to choose the care. The treatment must be
offered promptly and be reasonably suited to treat
the injury without undue inconvenience to the
employee. If the employee has reason to be
dissatisfied with the care offered, the employee
should communicate the basis of such
dissatisfaction to the employer, in writing if
requested, following which the employer and the
employee may agree to alternate care reasonably
suited to treat the injury. If the employer and
employee cannot agree on such alternate care, the
commissioner may, upon application and reasonable
proofs of the necessity therefor, allow and order
other care.
This statute was amended as House File 2250 by the 74th
General Assembly, effective July 1, 1992. The amendment
required the Industrial Commissioner to provide a method to
expeditiously resolve disputes under this section.
An employer's right to select the provider of medical
treatment to an injured worker does not include the right to
determine how an injured worker should be diagnosed,
evaluated, treated, or other matters of professional medical
judgment. Graves v. Crouse Cartilage Co., (Arbitration
Decision, July 27, 1987); Pote v. Mickow Corp.,
(Review-Reopening Decision, June 17, 1986).
The physicians involved with the case have two
conflicting opinions: Dr. DeBartolo recommends further
conservative treatment; Drs. Johnson and Adams both
recommend further testing to ascertain the extent of
claimant's physical problems. Claimant has undergone
conservative treatment for several months but to no avail.
She continues to complain of pain and objective tests
corroborate her complaints. The recommendations from Drs.
Johnson and Adams are consistent with the general practice
of therapy to treat this type of physical ailment. Although
Dr. DeBartolo's final report of July 27, 1992 continues to
support conservative treatment and restrengthening
exercises, he has not seen claimant since May 6, 1992, and
his recommendations are based on a report by Dr. Johnson.
Defendants have neither provided claimant with other care,
Page 4
as claimant has no further appointment with Dr. DeBartolo,
nor have they proposed any expressed alternative to
recommendations from Drs. Johnson and Adams. As a result,
claimant's application is granted; defendants are ordered to
provide claimant with further treatment from Drs. Johnson
and Adams.
ORDER
THEREFORE, it is ordered:
That defendants provide claimant further care with Drs.
Johnson and Adams.
Signed and filed this ____ day of September, 1992.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Ms. Christopher D. Spaulding
Attorney at Law
840 5th Ave
Des Moines IA 50309
Mr Joseph Cortese III
Attorney at Law
500 Liberty Bldg
Des Moines IA 50309
5-2700
Filed September 23, 1992
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DEBRA TWEDT, :
: File No. 979758
:
Claimant, :
: A L T E R N A T E
vs. :
: M E D I C A L
CABIN CRAFT, :
: C A R E
Employer, :
: D E C I S I O N
and :
:
UNION INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-2700
Claimant awarded alternate medical care where defendants did
not provide any medical care even though authorized
physicians familiar with the claimant had recommended
further tests.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MICHAEL REEVES,
Claimant,
vs.
File No. 979818
PEPSI COLA GENERAL BOTTLERS,
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 COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration filed by Michael
Reeves, claimant, against Pepsi Cola General Bottlers,
employer, and National Union Fire Insurance Company,
insurance carrier, defendants, for benefits as the result of
an injury which occurred on March 14, 1991. A hearing was
held in Des Moines, Iowa, on June 30, 1993, and the case was
fully submitted at the close of the hearing. Claimant was
represented by Jerry L. Schnurr, III. Defendants were
represented by Stephen W. Spencer. The hearing was
scheduled for six hours but actually consumed approximately
eight and one-half hours, and generated a 235 page
transcript. The deputy ordered a transcript.
The record consists of the testimony of Michael Reeves,
claimant, Brenda Reeves, claimant's wife, David Reeves,
claimant's brother, Daniel P. Berg, sales manager,
claimant's exhibit 1, the deposition testimony of Susan
White, rehabilitation specialist, consisting of 116 pages
with 9 deposition exhibits, and claimant's exhibits 2
through 21 consisting of another 146 pages of evidence
(Transcript pp. 217 & 236). Defendants' exhibits admitted
into evidence are defendants' exhibits A through H
consisting of 97 pages, exhibit J the deposition testimony
of Bob Morris, human resources manager, exhibit K, the
deposition testimony of Dan Berg, sales manager, Exhibit L,
the deposition testimony of Daniel J. McGuire, M.D., a board
certified orthopedic surgeon, exhibit M, the deposition
testimony of Samuel Reeves, claimant's father, exhibit N,
the deposition testimony of John Babyar, private
investigator, exhibit O, the deposition testimony of David
Miller, private investigator, exhibit P, containing 15 pages
Page 2
and exhibit Q consisting of 60 pages. Defendants' exhibit
I, was withdrawn at the time of the hearing. With respect
to defendants' exhibit F, pages 2, 4, 5, 6, 7, 8, 9, were
excluded from evidence but remain with the record as an
offer of proof (Tran. pp. 235 & 236). The excluded pages of
exhibit F are the surveillance reports of Doug Johnson, Rich
Silver, and Donya Allen. The motion to exclude these
reports was granted at hearing for the reason that the
identity of these witnesses was not timely disclosed by
defendants to claimant before defendants' discovery deadline
which was 30 days prior to hearing and it was determined
that their reports constituted prejudicial unfair surprise
to claimant (Tran. p. 17).
The parties presented a much larger number of exhibits
at the beginning of the hearing. The deputy reminded the
parties that paragraph 9 of the hearing assignment order
requires exclusion of irrelevant, immaterial and unduly
repetitious evidence and that a party's submission of 50
pages or more would be subject to a detailed review at the
hearing for compliance with Iowa Code section 17A.14(1).
After the testimonial evidence, the parties did reduce the
amount of initially proposed exhibits by approximately
one-third (Tran. pp. 205-236). Nevertheless, claimant's
exhibits still constitute 146 pages counting the lengthy
deposition of Susan White and the deposition exhibits as
only one page. Defendants' exhibits still constitute 178
pages counting each of the six depositions as only one page.
A significant number of the remaining exhibits still were
not relevant, material, essential or helpful in the
determination of the issues of this case.
ISSUES
The parties submitted the following issues for
determination at the time of the hearing.
Whether claimant is entitled to permanent disability
benefits, and if so, the extent of benefits to which he is
entitled.
Whether defendants are entitled to the hourly rate they
paid to their private surveillance investigators for
testifying at a deposition at the request of claimant's
counsel.
FINDINGS OF FACT
causal connection-entitlement-permanent disability
It is determined that claimant has sustained a 35
percent industrial disability to the body as a whole and is
entitled to 175 weeks of permanent partial disability
benefits.
Claimant, born December 1, 1958, was 32 years old at
the time of the injury and 34 years old at the time of the
hearing (Tran. p. 74). Growing-up claimant lived and worked
on a farm. In high school claimant worked as a clerk in a
grocery store stocking shelves and sacking groceries for
Page 3
approximately one year from May of 1976 to August of 1977.
He graduated from high school in 1977 and has received no
advanced education or training after high school. In the
Summer of 1978 he drove a tractor and mowed roadways for
Warren County.
Claimant's first real permanent employment was for this
employer. Claimant applied for work with employer on
September 7, 1978. He was hired as a route helper an
eventually a route salesman. Claimant continued to work for
employer until the date of this injury on March 14, 1991.
Thus, up until the time of the injury claimant had been a
career employee of employer for a period of approximately 13
years from approximately age 19 to age 32 (Tran. pp. 74-76;
Ex. 27, pp. 1 & 2).
On his application for employment with employer
claimant indicated that he did not have any physical
condition which limited his ability to work (Ex. 27, p. 1).
Claimant took a preemployment physical examination on
September 7, 1978, which included an x-ray of his back. The
examining physician stated, "lumbar spine - ok" (Ex. 26, p.
1). The physician further stated on the physical
examination report that claimant was "Satisfactory for any
type of duty." (Ex. 26, p. 2).
As a route salesman, claimant drove a 14 bay
semi-trailer, delivered product to stores, setup displays,
stocked shelves, and sorted and removed empty bottles from
the stores he serviced. Claimant was also responsible for
sales, merchandising and opening new accounts (Ex. 23, p.
2). Empties were normally sorted in a bent over position.
Unloading the truck involved lifting cases of pop from the
truck to a 2-wheeler, then unloading the 2-wheeler to the
shelf or storage area in the store. Claimant's job required
constant lifting, bending, stooping, squatting and twisting.
All of the witnesses unanimously agreed with claimant that
claimant's job was very physically demanding and strenuous
(Tran. pp. 76-79 & 80). Claimant testified that a full case
of 16 ounce bottles weighed approximately 55 pounds (Tran.
pp. 79, 81 & 82).
Since claimant worked on commission it was in his best
interest to work as fast and as energetically and as
effectively as he could (Tran. pp. 79-81). Claimant
estimated that he handled possibly 400 or more cases of pop
every working day. He said that on a big day when there was
a promotion or sale he would handle as many as 1,000 to
1,200 cases of pop a day (Tran. p. 82). Claimant estimated
that he handled approximately 135,000 cases of pop a year
(Tran. pp. 81 & 82).
Claimant denied any prior injuries other than
occasional back strain which was not uncommon for the type
of work that he was performing (Tran. p. 82). He only lost
time from work on three occasions prior to this injury and
then the only time lost was the day on which he saw the
doctor. These dates were on March 25, 1983, July 11, 1983
and September 20, 1983 as reported by Adeline McCormick,
D.O., on October 11, 1983 (Ex. 2, Tran. p. 82).
Page 4
Claimant testified that immediately prior to the injury
that he was working approximately 14, 15, and 16 hours per
day and approximately 80 to 100 hours per week. Claimant
related that his back began hurting to the point where it
did not recuperate overnight just immediately prior to this
injury in late 1990 and early 1991 (Tran. pp. 83 & 84).
Claimant testified that he asked Dan Berg, the sales
manager, in January of 1991 to reduce the size of his route
(Tran. pp. 84-86).
On March 14, 1991, claimant reported his back pain to
employer. On March 15, 1991, claimant consulted his
personal physician who diagnosed low back pain and advised
claimant to see the company physician (Ex. 3, p. 1). It was
arranged for claimant to see Richard D. Miller, D.O., on
March 20, 1991. Dr. Miller diagnosed degenerative disc
disease at L5, S1 with a grade I spondylolisthesis and he
referred claimant to William R. Boulden, M.D., an orthopedic
surgeon (Exs. 4, 5 & 6).
Dr. Boulden saw claimant on March 28, 1991 and found,
"The patient has overstressed a Grade I spondylolisthesis.
I think it has just been a matter of time with the
underlying degenerative condition that he has, that he would
develop symptoms." (Ex. 8, p. 1). Dr. Boulden placed
claimant on a stabilization program initially and that was
followed by a work hardening program.
On May 7, 1991, Dr. Boulden commented that claimant had
good strength but persisted in using poor back mechanics.
Dr. Boulden stated, "In other words, he keeps doing abnormal
mechanical lifting and techniques which are stressing his
back and we told him that this needs to be changed or it
will be very difficult to get him back to work." (Ex. 8, p.
2).
On May 23, 1991, Dr. Boulden stated, "He has been an
excellent worker but we are also dealing with a situation
that he has an unstable segment in his back and he may be to
the point where he cannot return back to that work." (Ex. 8,
p. 2).
After an MRI which was performed on May 24, 1991 (Ex.
9), Dr. Boulden stated on June 11, 1991,
... we have found that the patient is really
limited in the fact that he has degenerative disc
disease at L1-2, L2-3, L4-5, besides the L5-S1
problem. He basically only has one normal
appearing disc.
Therefore, I don't think surgery is an
alternative answer at this point. I do not feel
that he can return back to his previous
employment. Major job modification may have to be
carried out where he does not have to bend and
twist with his back and does not have prolonged
sitting. If that cannot be accomplished, then
vocational rehabilitation will be necessary." (Ex.
Page 5
8, p. 3).
The radiologist who performed the MRI on May 24, 1991
stated that the bulging disc at L5-S1 was probably related
to the spondylolisthesis (Ex. 9).
On July 17, 1991, Dr. Boulden stated that claimant had
attained maximum medical improvement and recommended job
vocational rehabilitation since he did not feel that
claimant needed surgery (Ex. 8, p. 3). Claimant last saw
Dr. Boulden on December 18, 1991. At that time he said that
there were no neurological deficits. Straight leg raising
was negative. He said that claimant should be treated very
conservatively with anti-inflammatory medications and
exercises and that claimant could return to see him as
necessary (Ex. 8, p. 4).
With respect to causal connection, on April 23, 1993,
Dr. Boulden, who was the primary treating orthopedic
surgeon, stated,
Michael Reeves as [sic] an acquired problem
called spondylolysis and spondylolisthesis. These
were pre-existing to his work activities but it
would be my medical opinion that the patient's
work over these years has definitely made this
unstable segment more symptomatic.
Therefore, we feel that it has definitely
aggravated a pre-existing problem." (Ex. 8, p. 5).
On May 6, 1993, Dr. Boulden wrote,
Therefore, I really have nothing else to
recommend at this point in time. I doubt surgery
would be in his best interest because of the
multiple levels of degenerative disc disease.
Therefore, doing surgery at one level will put
undo [sic] stress in the other levels and may
cause other secondary problems in the future.
Therefore, the conservative approach is still
the best in our opinion. (Ex. 8, p. 6).
Dr. Boulden did not impose any permanent work
restrictions, as such. He did indicate, however, on June
11, 1991 that if major job modifications with respect to
bending and twisting with his back, and prolonged sitting,
were not accomplished then vocational rehabilitation would
be necessary (Ex. 8, p. 3). Thus, it would appear that Dr.
Boulden feels that claimant should be limited in the amount
of bending, twisting and prolonged sitting that he can
perform.
In the course of his physical therapy treatment
claimant saw Thomas E. Bower, L.P.T. on April 16, 1991 (Ex.
10). On May 7, 1991, Mr. Bower wrote to employer relating
his difficulty in getting claimant to abandon poor body
mechanics and to adopt proper lifting techniques (Ex. B, p.
1). On May 20, 1991, Mr. Bower commented on claimant's
Page 6
functional capacity. He stated,
As you recall, the functional capacity
evaluation that was done on May 6, 1991,
demonstrated an individual lifting 105 pounds
maximally from a floor to waist position with
frequent lifts of 72 pounds and repetitive lifts
of 52 pounds. I would refer you to that letter
for the specifics on overall restrictions for this
patient." (Ex. 11, p. 1).
Mr. Bower further stated that claimant continued to use
poor body mechanics and should focus on this problem. He
indicated that claimant was probably foreclosed from
performing repetitive work. Mr. Bower stated, "It is
doubtful that he is going to be able to handle the
repetition that is required in setting up displays, and
supplying his route customers on the basis of what I'm
seeing today." (Ex. 11, p. 1). He said further work
hardening was not indicated (Ex. 11, p. 1).
On July 23, 1991, Mr. Bower wrote to employer that
claimant admitted that he was not doing his stabilization
exercises faithfully (Ex. B, p. 2).
Mr. Bower performed a newer form of a functional
capacity examination which was called a lift trak analysis
on August 29, 1991. He said that claimant continued to use
poor body mechanics and that this has contributed to his
inability to perform his job. Mr. Bower concluded, "I am
uncertain as to why Mr. Reeves cannot master better
technique. However, until he can, we are going to be forced
to recommend this patient not exceed a lift of 57 pounds,
otherwise the back compression forces will reproduce
increased symptoms." (Ex. 12, p. 3).
On September 17, 1991, Mr. Bower commented that the
stabilization and work hardening program did not improve
claimant's condition to where he was satisfactorily able to
return back to his previous job. He phrased claimant's
permanent impairment rating based on the Guides to
Evaluation of Permanent Impairment as follows, "In regards
to impairment, the patient, in accordance with Table 49,
specifically a Grade I spondylolisthesis, has sustained an
8% impairment to the body as a whole. This is strictly
based on the pathology noted." (Ex. 13, p. 1).
Mr. Bower commented that in the past he had arbitrarily
apportioned one-half of such an impairment rating to the
preexisting condition, but he had no way to prove it, and
therefore, he refused to make an apportionment as to how
much of this rating should be apportioned to the preexisting
condition (Ex. 13, p. 2).
Dr. Boulden also signed this evaluation along with Mr.
Bower, adopting it as his evaluation also.
Claimant admitted that he was not faithful to Dr.
Boulden's exercise program (Tran. pp. 92 & 93). With
respect to body mechanics, claimant testified,
Page 7
Well, I did the best I could, you know. My
back hurt but you don't say anything about it, you
just do it, you know. It's like a job. I know
they had problems with me not doing the body
mechanics correctly but I've been doing them like
I had for 13 years, It's hard to change just like
that, you know." (Tran. p. 89).
Claimant also admitted he was not faithful to the
recommendation of Daniel G. McGuire, M.D. and Mr. Bower to
exercise and maintain his back in good condition (Tran. pp.
163 & 164).
Thus, it would appear that claimant's failure to fully
recover from this injury may be due to his refusal to
perform the exercises recommended. Furthermore, it would
appear that claimant's lifting techniques may have
contributed significantly to both his injury and his
disability.
Defendants referred claimant to Dr. McGuire for an
independent medical examination with an excellent summary of
the treatment claimant had received up to that time (Ex. 14
& 15). Dr. McGuire saw claimant on July 15, 1991. He
stated that claimant was not participating in his own
recovery and that he was not working hard enough with
physical therapy. Dr. McGuire found the lower extremities
to be intact neurologically. Dr. McGuire recorded,
He has very small spondylo, he has multiple
level degenerative disc disease in his lumbar
spine. There is no way in heck that all of these
problems are the result of something that happened
in March. He has a worn out disc as a part of his
aging process, he has a spondylolisthesis as a
result of probably a congenital situation or
realistically speaking, as a young child." (Ex. C,
p. 1).
Dr. McGuire diagnosed "back pain" but stated that there
is no guarantee that the spondylolisthesis or his worn out
discs were the cause of his back pain. "I think he would be
nuts to have surgery at this point. ... I think it would be
really ludicrous to do some type of anterior spine fusion at
three or four levels for these bad discs. ... He is a young
guy, he has problems, there is no guarantee we can cure him
with surgery, it would be best for him to try get himself
better." (Ex. C., p. 1). Thus, Dr. McGuire felt that either
all, or a substantial portion of claimant's permanent
disability, was not caused by this injury, but rather was
caused by claimant's own peculiar congenital, developmental
or preexisting back condition prior to March 14, 1991.
Dr. McGuire thought that claimant could perform light
duty. Claimant reported to employer to perform light duty.
Employer had claimant place adhesive back letters on a
banner on a table, but claimant walked out after two hours
saying that it caused him too much pain. Claimant testified
that putting the letters on the banner required bending over
Page 8
and that it hurt his back (Tran. p. 96 & 177). Claimant
further testified that he told Dr. McGuire that he did not
want to work light duty unless Dr. McGuire would guarantee
him that more damage would not result to his back (Tran. pp.
94 & 96).
On July 29, 1991, Dr, McGuire stated, "The only thing
keeping him from working is his subjective complaints of
pain." (Ex. C, p. 3).
On September 26, 1991, Dr. McGuire assessed that
claimant had an 8 percent permanent impairment and that he
attributed 75 percent of it to claimant's preexisting
condition. The doctor concluded, "Based on my two visits,
very minimal PPD. 2-3 % No real permanent life-long
restrictions" (Ex. C, p. 6).
At a conference on July 29, 1992, Dr. McGuire told
defendants' counsel that claimant's spondylolisthesis, "...
is not the result of working at the job, but, instead, 7% of
the population have it and it probably related to activities
children do at age four and five." (Ex. C, p. 8). Also at
that conference Dr. McGuire contended that claimant's
disability was also related to the aging process and poor
lifting techniques (Ex. C, p. 8). Dr. McGuire concluded
that note by stating, "Realistically speaking, Mike Reeves
may have to do a few thing to help us. At this time, I have
nothing further to offer." (Ex. C, p. 8).
At his deposition given on June 4, 1993, Dr. McGuire
ruled out a serious intervertebral disc problem. He stated,
"... if that disk rupture is clinically significant, he
should have a lot of leg pain. By history he didn't have
much leg pain. Then we would expect to find a neurological
deficit in his lower extremities. He didn't have that. ...
My impression at that time was he must not be working too
hard on his exercises at PT because he was so tight yet."
(Ex. L, pp. 7 & 8).
Dr. McGuire further testified that simply having pain
while working did not mean that it was causing any damage
(Ex. L, pp. 13 & 24). He said that claimant should be able
to lift things in the 30 to 50 pound range (Ex. L, p. 16).
He added that if claimant was capable of performing dairy
farming that claimant was capable of performing hard work
(Ex. L, pp. 17-21). Dr. McGuire said that the functional
capacity examination of Mr. Bower that claimant could lift
105 pounds maximally from floor to waist with frequent lifts
of 72 pounds and repetitive lifts of 52 pounds was
compatible with his examination of claimant (Ex. L, p. 23).
The doctor said that the spondylolisthesis may or may not
have been present at the preemployment physical examination
x-ray depending on several factors (Ex. L, pp. 47 & 49).
Dr. McGuire said that work might cause an increase of
claimant's symptoms due to the spondylolisthesis but it
would not increase the slippage of it from Grade I to Grade
II (Ex. L, pp. 51 & 52).
Claimant was examined by his own independent evaluator,
Ronald C. Evans, D.C., on June 15, 1992 and he made a report
Page 9
on July 10, 1992. Dr. Evans reviewed the other medical
evidence and performed his own physical examination and
formed this diagnostic impression which also contains a
causal connection statement,
In my opinion, Mr. Reeves as a result of
cumulative work related trauma, occurring last in
3/91, and in the absence of significant subsequent
trauma, has sustained moderate chronic sprain of
the lumbosacral spine. This has materially
aggravated a pre-existing spondylolisthesis at L5.
Disc degeneration is present. Left leg sciatic
pain is present (Ex. 18, p. 5).
Dr. Evans continued,
The patient has low back pain, with occasional
leg pain. Range of motion is disturbed by
myospasm. All this is due to destabilization of a
spondylolisthesis at L5-S1 with marked signs of
L5-S1 disc degenerating [sic]. The ratable
entities are the destabilized L5-S1
spondylolisthesis and the left leg pain (Ex. 18,
p. 6).
Dr Evans concluded, "The rating assigned for this
patient, in whole person terms is 10% wp." (Ex. 18, p. 6).
The doctor added that claimant was not likely to improve
with surgical intervention or other acts of medical
treatment (Ex. 18, pp. 6 & 7).
Dr. Evans clarified by a separate letter dated April
26, 1993 that "the cumulative work trauma exposure came from
duties as a delivery man for Pepsi-Cola." (Ex. 28). Dr.
Evans further clarified that "destabilization of the L5
spondylolisthesis arose from the cumulative work trauma
exposure. The spondylolisthesis did not occur at work, but
was harmed by it." (Ex. 28).
It is noteworthy that Dr. Evans did not mention that
any permanent restrictions should be imposed upon claimant's
future work (Ex. 18 & 28).
In summary, then, it is determined that Dr. Boulden,
the treating orthopedic surgeon and Mr. Bower, the
evaluating physical therapist, determined that claimant had
sustained an 8 percent permanent impairment based primarily
upon the spondylolisthesis which had become symptomatic from
claimant's work for employer. They felt a portion of the
impairment was attributable to claimant's preexisting
condition. They said they normally allocated 50 percent to
the preexisting condition, but in this case refused to make
a numerical allocation because they were not able to prove
it.
Dr. McGuire assessed an 8 percent permanent impairment,
75 percent of which he attributed to the preexisting
condition, which leaves 2 to 3 percent which he attributed
to this injury in this case.
Page 10
Dr. Evans assessed a 10 percent permanent impairment.
With respect to permanent restrictions, Dr, Evans'
letter is silent (Ex. 18). Dr. McGuire specifically stated
"no real permanent life-long restrictions." (Ex. C, p. 6).
Dr. Boulden did not impose any permanent restrictions
on claimant, as such, but felt that he was foreclosed from
performing his work for employer because of the bending and
twisting of his back and the prolonged sitting in this job
(Ex. 8, p. 3). Mr. Bower, thought it was doubtful that
claimant would be able to handle the repetition that was
required in setting up displays and supplying his route
customers (Ex. 11, p. 1).
Thus, on the one hand claimant has not sustained a
serious permanent injury in terms of his impairment ratings
and restrictions. Furthermore, no surgery was performed or
recommended. The recommended treatment has been exercises
and inflammatory medications if needed. Furthermore, one of
the chief factors in claimant's recovery is his
responsibility to change his poor body mechanics and lifting
techniques. Claimant admitted that he has not been faithful
in performing his exercises, he admitted he has not been
able to change his body mechanics or lifting techniques and
he is not attempting to do so.
Thus, on the one hand the work injury is basically a
low back pain which aggravated and made symptomatic one or
more of the several preexisting conditions of claimant's
back. (1) Claimant has degenerative discs at L1-2, L2-3,
L4-5 and L5-S1 (the degeneration has also affected the facet
joints). (2) There is evidence of a preexisting bulge at
L5-S1 which the radiologist opined was caused by the
spondylolisthesis. (3) Claimant has a preexisting
spondylosis with associated spondylolisthesis which was
either congenital or developed at approximately age 4 or 5.
However, it is commonly known that an employer takes an
employee in "as is" condition subject to any active or
inactive health impairments. Hanson v. Dickinson, 188 Iowa
728, 732, 176 N.W. 823, 24, (1920).
On the other hand this injury has caused claimant to be
foreclosed from his work for this employer in which he was
earning $50,000 to $55,000 per year, based on the testimony
of the treating orthopedic surgeon Dr. Boulden. Michael v.
Harrison County, Thirty-fourth Biennial Report of the
Industrial Commissioner 218, 220 (App. Dec. January 30,
1979); Rohrberg v. Griffin Pipe Products Co., I Iowa
Industrial Commissioner Report 282 (1984). An employer is
liable to the extent a preexisting condition is aggravated,
accelerated, worsened or lighted up. Yeager v. Firestone
Tire and Rubber Co., 253 Iowa 369, 373-74, 112 N.W.2d 299,
301 (1961)
Claimant's industrial disability is diminished by the
fact of his young age in his early thirties because he is
still capable of learning new pursuits either through
academic training or through on-the-job training. Claimant
testified that his grades in school were approximately B
Page 11
grades. Claimant was highly successful in his job as a
route salesman for employer. For these reasons academic
retraining or on-the-job training is a distinct possibility
for claimant. Conrad v. Marquette School, Inc., IV Iowa
Industrial Commissioner Report 74, 89 (1984).
Vocational rehabilitation is possible through the State
of Iowa Vocational Rehabilitation Services but claimant has
not pursued such vocational rehabilitation training. Nor
did employer endeavor to provide claimant with any
vocational rehabilitation training when it was apparent to
them that claimant could no longer return to his job as a
route salesman with employer. Claimant testified that his
understanding of vocational rehabilitation, when it was
suggested to him by Dr. Boulden, was as follows, "They'll
retrain you, teach you another trade and get you a job."
(Tran. p. 91). Claimant testified that he told the
rehabilitation person hired by defendants that he wanted to
go to engineering school (Tran. p. 151).
Claimant's high school education should not be a
detriment to his future employment. A high school education
is the basic educational requirement for most employments
and claimant has that. Thus, claimant's industrial
disability is not increased because of a lack of formal
education.
Brenda Reeves, claimant's wife of ten years and the
mother of his three children, testified that claimant had no
prior back problems that interfered with his ability to
work. Claimant's wife testified that initially claimant was
working full-time for employer and it was their intention
that she and the elder Mr. Reeves would perform the milking
and run the dairy operation. She corroborated claimant's
testimony that he worked 80 to 100 hours per week and as
many as six or seven days a week. She testified that she
wanted him to have his route cut down because he was not
coming home until 10, 11 or midnight every night and then he
would leave again in the morning at 5:30 a.m. or 6:00 a.m.
She said the route was changed just one week prior to this
injury (Tran. pp. 179 & 183).
Mrs. Reeves testified that her husband's activities
were limited since the injury. She testified, "He doesn't
do as much as he used to. He doesn't pick things up, he has
trouble if he wants to even carry groceries in." (Tran. p.
183).
David Reeves testified that he is the brother of
claimant and that their father is Sam Reeves. He
characterized claimant's work with employer as "extremely
hard" (Tran. p. 49). He said claimant was very limited on
what he could do since the injury. He said that claimant
has gained weight and just lays around (Tran. pp. 50-55).
David Reeves testified that their father handles the
heavy work on the farm or else they wait until he can come
down and do it (Tran. p. 56). He testified that his father
owns the farm and claimant lives in a mobile home on the
farm (Tran. p. 57). He also stated that claimant paid for
Page 12
the dairy building, but it is located on his father's
property (Tran. p. 61). David Reeves testified that his
brother did drive a tractor a little bit, and may on
occasion load the manure spreader, but his dad usually did
that (Tran. pp. 53, 62,& 64). The witness described the
milking operation and stated that his brother did perform
those tasks (Tran. pp. 67 & 68).
Samuel Reeves, claimant's father, testified by
deposition on January 11, 1993, that he owns the land but
claimant and his wife own the milk cows and get the money
from the milk. The elder Mr. Reeves testified that claimant
did very little work on the premises. He testified, "Well,
maybe he will help me ten or 15 minutes at a time, different
times. He will help milk and he has to quit, and he watches
the gate for me when I haul in feed and baby-sits most of
the time and that's about the size of it." (Ex. M, p. 8).
When asked if claimant ever drove a tractor the witness
responded, "Very little. Maybe ten minutes at a time and
then he has to get out." (Ex. M, p. 9).
Mr. Reeves denied several times in his deposition that
claimant ever assisted him in spreading manure on the fields
and said that he had always done that himself (Ex. M, pp.
12, 16, 17, 19, & 22). Mr. Reeves testified several times
that claimant had not taken the pickup and obtained fuel in
the white plastic containers at the filling station (Ex. M,
pp. 13, 15 & 19-21). He said that claimant had done "very
little" around the farm; and that he had never driven the
tractors for more than ten minutes at a time; and that he
had never spread manure (Ex. M, pp. 18 & 19). Mr. Reeves
indicated that during an average day claimant baby-sits his
children most of the time (Ex. M, p. 21).
John Babyar, a private investigator, performed
surveillance on claimant on March 8, 1992 (Ex. N, pp. 2-9).
He testified that he observed claimant driving a tractor on
the road that day pulling a manure spreader to another tract
of land that had a metal building on it (Ex. N, pp. 9-18).
Babyar further testified that later in the day he observed
claimant load the manure spreader with a different tractor.
He said he ran the bucket and picked up manure and dumped it
on the spreader (Ex. N, pp. 19-21).
Babyar further testified that later that day he
observed claimant fill a pickup truck with gasoline and at
that time he also filled up several large white plastic
gasoline containers in the back of the pickup truck. He
stated that he video taped most of this (Ex. N, pp. 22 &
23).
Babyar testified that later at the farm he observed
claimant drive a red tractor and a green tractor (Ex. N, p.
24). The private investigator said he saw claimant crouched
or bent over pushing a box that appeared to be an air
compressor (Ex. N, p. 25). He said he further observed
claimant pushing a four-wheel motorcycle rocking it back and
forth and driving it around the yard (Ex. N, p. 25).
Page 13
Babyar testified that he surveilled claimant again on
May 19, 1992 and saw claimant mount a green tractor and
later a red tractor and drive them out of a shed. He moved
a box-like air compressor again and moved it across the yard
with his left arm approximately 50 to 75 feet (Ex. N, pp. 23
& 37). He said he then observed claimant manually rock the
four-wheel drive back and forth again without difficulty
(Ex. N, p. 37). He said he saw and video taped these tasks
from approximately 150 to 200 yards away. He related that
he observed no obvious impairment or difficulties in
performing these tasks (Ex. N, pp. 38 & 39).
Babyar said he saw claimant mount the motorcycle by
putting his right leg on it and swung his left leg over the
cycle and sat down (Ex. N, p. 40). Next he saw claimant
driving on a hill south of the house with the cows in front
of him coming down the hill and claimant was riding the
cycle (Ex. N, p. 42). Babyar also filed a detailed written
report of these observations (Ex. F).
David Miller, another private investigator, testified
by deposition on June 14, 1993 that he observed claimant on
February 4, 1993 drive a red mini-van and follow his father,
who was driving a tractor, to an implement dealer in
Knoxville approximately 20 miles away and return home. He
said he saw claimant get on and off of a tractor without
difficulty on two occasions using both arms to grab and pull
himself up (Ex. O, pp. 17-26).
Miller testified that he also observed claimant in the
first part of June, 1993. On June 3, 1993 Miller's written
report states,
1:23 PM Arrived. Observed the subject's
father in the truck bed handing bales of hay to
the subject, who was at the rear of the pickup.
The subject would pick up the bales of hay and
would carry them with ease into the barn. The
subject would place the bales of hay in an orderly
stack. The subject lifted and carried each bale
with ease an with no sign of impediments (Ex. F,
p. 11).
Claimant admitted at the hearing that when he gave his
deposition he denied that he was doing farm work. At the
hearing, however, he did admit that he was doing some farm
work (Tran. p. 147).
Claimant admitted that he unloaded 40 square bales of
hay that weigh 50 or 60 pounds apiece. He said, "... I
picked them up waist high and I stacked them chest high."
(Tran. p. 105). He admitted that he also did another load
of 33 bales (Tran. p. 105). Claimant further testified that
afterwards his back hurt for a day or so (Tran. p. 106).
Claimant admitted that he spread manure a few times
(Tran. p. 107). He said he loaded about 80 loads of manure
with the skid loader but his dad hauled about 70 of them to
the field (Tran. p. 108).
Page 14
Thus, claimant's testimony and the testimony of his
wife, brother and father was definitively impeached.
Claimant described the milking process as being highly
automated and within his capabilities (Tran. pp. 117-122).
Claimant admitted that he has driven the tractors and has
unloaded hay with a hay fork attached to the tractor (Tran.
pp. 103 & 104).
Defendants contend that when employer realigned the
routes and claimant was transferred to a lesser paying route
without one of his two big stores that he developed a back
injury in retaliation for the route change.
On the other hand, claimant and his wife contend that
because of the long hours that claimant was working and his
increasing back pain in the latter part of 1990 and early
part of 1991, that claimant had requested a route change.
Claimant denied that the back injury was contrived in
retaliation for the route change.
Claimant said he was looking forward to having his
route cut because even though he would earn less money he
would be able to do his job in 50 to 60 hours per week
(Tran. p. 92). Claimant testified that he lobbied hard to
get the Food Saver store added to his route in mid-1990 so
he could make more money (Tran. p. 159). However, by
December, he was asking to have it removed from his route
and that he admitted to Berg that he had made a mistake
(Tran. pp. 159 & 160). Claimant said that if the Food Saver
store was taken off of his route that he would have his
income back up within a year (Tran. pp. 160 & 161).
Dan Berg testified that he is a 21-year employee of
employer. He stated he became sales manager about January
1, 1991. He testified that claimant was a good salesman;
that claimant could do whatever he wanted to do; and that he
was always in a hurry. He agreed that claimant's job was
physically demanding and that is why they demand a
pre-employment physical examination with a back x-ray (Ex.
K, pp. 3-20). Berg testified that the average earnings for
a route salesman at the time of this injury would be
approximately $35,000 to $40,000. He said all the routes
are different some are bigger than others. A smaller route
might earn $25,000 whereas a good route might earn $40,000
(Ex. K, p. 20).
Defendants thought that the manner in which claimant
told Berg about his injury was unusual. Berg testified that
he first learned of this injury when claimant followed him
home from work one night and pulled up in his driveway
behind his car when Berg arrived home. Berg related that
claimant got out of his car and told him that claimant had
hurt his back and that he was going to the doctor (Ex. K,
pp. 22, 23 & 25).
Defendants contended that another unusual aspect of
this injury was as follows. Berg further testified that he
ran into claimant at the Iowa State Fair in August of 1991
at one of the beer tents at which time claimant stated to
Page 15
Berg,
Well, you guys really didn't leave me much
choice. I was making all that money with the big
route and the two stores, and I find out you're
going to cut my route and take one store away, you
really didn't leave me much choice but to be off
with a bad back." (Ex. K, pp. 28 & 29).
Claimant testified that his conversation with Berg at
the fair was about the size of the routes being too large
and the men not wanting to give up the money if they are cut
down (Tran. pp. 123, 161 & 162). Claimant denied that his
back injury was in retaliation for changing the size of his
route (Tran. p. 125).
Berg said employer had planned to remove one large
store from claimant's route and replace it with several
convenience stores or smaller stops (Ex. K, p. 30). Berg
maintained that claimant's larger route was too big for him
and that he was constantly calling for help (Ex. K, pp. 32 &
33). Berg related that claimant was informed of the change
in route sometime in February of 1991 (Ex. K, p. 33). The
sales manager acknowledged that claimant would have earned
considerably less money on the new route (Ex. K, p. 36).
Berg was also allowed to testify at the hearing in
person as a rebuttal witness. In his rebuttal testimony
Berg related that when he came on as sales manager in
December of 1990 that he felt that claimant's route was too
big. Berg said that Jerry Dennis, claimant's supervisor,
agreed, but claimant did not. Berg testified, "... Mike's
comment was that the route wasn't too big." (Tran. pp. 193 &
194). Berg said that claimant subsequently agreed with the
route change and the change took place on March 11, 1991
(Tran. pp. 194 & 195).
Robert Morris, human resources manager for employer for
the last six years, and a 37-year company employee,
testified by deposition on May 26, 1993. Morris agreed that
claimant performed a very physically demanding job. He said
that is why the company requires a preemployment physical
examination and a back x-ray. Morris related that a case of
16 ounce bottles weighs 56 pounds. A case of 12 ounce cans
weighs 40 pounds and a case of two liter plastic bottles
weighs 45 pounds. The witness estimated that claimant
delivered about 85,000 cases of pop a year on what he
described as a heavy or large route (Ex. J, pp. 1-11).
Morris agreed that claimant was good at this job and earned
a lot of money (Ex. J, pp. 14-20).
Morris testified that he filled out the personnel
change authorization form when claimant resigned on October
23, 1991. The form shows that claimant resigned for the
reason of a workers' compensation injury and medical
restrictions (Ex. 25). The form shows claimant resigned and
was not terminated.
Claimant acknowledged that he resigned from employer in
October of 1991. Claimant averred that he resigned on the
Page 16
advice of his attorney so that he could draw unemployment
compensation. Claimant said that Morris told him that
employer could not use him because of his 57-pound weight
restriction and the fact that claimant could not perform
repetitive work (Tran. p. 139). Claimant's resignation may
also have been influenced by the fact that Morris testified
that claimant was not an actual candidate for promotion to a
higher position within the company (Ex. J, p. 51).
Morris submitted that he attempted to give claimant a
light duty job of putting adhesive back stickers on a
banner. The human resources manager related, "Mike was only
in there for a half hour to forty-five minutes, and he said
he just could not do it; he was in such pain that he could
not even lean over the table, put these on there
(indicating), and he left.... He didn't care what, and he
just left." (Ex. J, pp. 26 & 27). Morris contended that he
did not get a chance to talk to claimant about it, "He was
just gone." (Ex. J, p. 27).
Claimant's testimony on this point is as follows, "I
told him my back hurt and then he said, well, why don't you
go on home then, and that's when I did." (Tran. p. 96 &
177).
Whatever happened at this light duty episode is
immaterial. Berg testified that the company had no light
duty position on a full-time or long-term basis (Ex. K, p.
24). Morris verified that employer had no light duty work
that would fit claimant's restrictions on a long-term basis
(Ex. J, pp. 30 & 31).
Dr. McGuire testified that claimant confided in him
that he knew in December of 1990 that he would be unable to
continue to work (Ex. L, p. 15).
Morris related that when routes get so big that they
fail to show growth that they are realigned. This usually
results in an initial loss of income for the driver but that
the growth has always come back. The witness said
claimant's route had reached the saturation point. He also
confirmed that the proposed route change occurred shortly
before this injury and would have cost claimant several
thousands dollars initially (Ex. J, pp. 40-45). Claimant
also granted that if the Food Saver store was taken off of
his route that he would lose income but that he would have
had his income back up within a year (Tran. pp. 160 & 161).
It is the opinion of this deputy that there is an
element of truth in both the contention of the defendants
and claimant. Claimant and his wife gave convincing
evidence that the long hours of heavy work were too
physically demanding for claimant and that he truly needed a
reduction in the amount of work that he was performing. At
the same time, defendants have given convincing evidence
that none of the route drivers, including claimant, welcome
the initial loss of income, even though there was an eight
week period of adjusted income after a route change took
effect which paid the drivers an average commission on the
four weeks of income prior to the route change.
Page 17
It is understandable that claimant's motivation to work
would be affected by continuing to work at a physically
demanding job for substantially less income. It is not
possible to determine from the evidence submitted that
claimant did in fact contrive this injury in retaliation for
the route change and reduction in his income. On claimant's
behalf, it should be noted that the medical evidence clearly
indicates that claimant has some multiple very serious lower
back problems. Claimant's testimony established that he was
fearful of his continued ability to work because of what the
doctors told him about his back. Furthermore, the facts
speak for themselves that lifting and handling over 400
cases of pop a day would almost certainly aggravate the
various conditions that Dr. Boulden found in claimant's
back.
Claimant was provided with a rehabilitation specialist
for approximately a year from May of 1991 to August of 1992
(Tran. p. 137). Susan White, vocational consultant,
determined that claimant had many transferable skills (Ex.1,
p. 13). White testified that claimant could possibility
obtain jobs that paid $5, $7 or $8 per hour as entry level
positions (Ex. 1, p. 21). The specialist assisted claimant
in preparing a resume, cover letters, schooled claimant in
job interview techniques and provided claimant several job
leads every week (Tran. pp. 125 & 126). White enumerated
some of the jobs that claimant could qualify for in a letter
dated August 15, 1991 (Ex. 16, p. 4).
White testified that claimant was not well motivated to
find work (Ex. 1, p. 57).
Claimant submitted a list of 569 jobs that he inquired
about without finding any employment (Ex. 20). He also
introduced 36 rejection letters in evidence. The rejection
letters are quite general and there is no indication that
claimant was rejected because of this injury (Ex. 23).
Claimant contended that he generated most of these job leads
himself (Tran. pp. 126-130, 153 & 176).
Defendants did introduce a report of one prospective
employer that was contacted by claimant and this individual
stated that he did offer Mr. Reeves a position in marketing
but Mr. Reeves declined it (Ex. D, p. 2).
White testified that sometimes claimant wrote down
employers which, in fact, he had not actually contacted (Ex.
1, p. 29 & 34)
The rehabilitation specialist alleged that claimant
discouraged prospective employers by telling them that he
injured his back while working at his last job and that he
was disabled from that injury. Claimant denied that he
volunteered this information but said that he could not lie
when employers asked about it (Tran. p. 131).
White said claimant told employers that he had a
57-pound weight lifting restriction when applying for work
(Ex. 1, p. 42).
Page 18
The rehabilitation specialist also contended that
claimant discouraged prospective employers by telling them
that he was earning $50,000 in his last job whereas the jobs
that he was applying for probably did not pay half that
much. Claimant maintained that he only supplied this
information when it was requested and furthermore he thought
that it proved his worth to be able to say that he earned
this kind of money in the past (Tran. pp. 131, 132 & 139).
Claimant further explained that when employers asked how
much he expected to earn in the job he was applying for that
he endeavored to give a realistic figure as a good judgment
call (Tran. p. 175).
White said claimant went to job interviews including a
sales job wearing blue jeans (Ex. 1, p. 110).
It is the opinion of this deputy that claimant did not
sincerely try to obtain a job while making all or most of
these inquiries. Claimant has demonstrated by his 13 years
of employment with employer that he is intelligent,
productive, industrious, and effective. His powers of
persuasion were quite good with the stores he called on to
sell employer's products.
In addition to that claimant has demonstrated that he
is capable of running a dairy farm and a milking operation.
Claimant admitted that his tax return shows him as a
propitiator of the dairy operation (Tran. p. 165). Claimant
testified that the dairy herd has consisted of anywhere
between 22 and 36 head of dairy cattle over the years (Tran.
p. 141). Claimant admitted that he grossed $41,000 from
farming in 1991 and that it would be about the same in 1992
(Tran. p. 155). He further elaborated that even though the
net shown on the business return was only $10,000 or $11,000
much of that was book loss (Tran. p. 174).
Claimant further granted that he drew unemployment
compensation benefits and that for a period of approximately
seven or eight months he drew workers' compensation benefits
at the same time (Tran. pp. 164 & 165). In addition,
claimant's wife either worked or was able to work during his
period of disability. Thus, claimant had little incentive
to truly try to obtain a job in the competitive labor market
when he was operating a dairy farm and milking operation, as
well as doing the farming related to it at home.
Thus, claimant has demonstrated that he is capable of
full-time or near full-time employment of his own choosing
when he chooses to do so.
Claimant further demonstrated on the first functional
capacity examination on May 6, 1991 that he was capable of
lifting 105 pounds maximum from floor to waist with frequent
lifts of 72 pounds and repetitive lifts of 52 pounds (Ex.
11, p. 1). Claimant also explained that even though he
could lift heavy weight, it hurt his back when he did so
(Tran. p. 97). If he rests a couple of days the back pain
will go away (Tran. p. 98).
Page 19
Claimant's second functional (lift trak analysis)
capacity examination caused Mr. Bower to recommend that
claimant not lift more than 57 pounds, otherwise the back
compression forces will reproduce increased symptoms (Ex.
12, p. 3). However, Mr. Bower was forced to make this newer
reduced limitation for the reason that claimant had not
faithfully performed the exercises that were recommended and
primarily because of his poor lifting techniques which
claimant did not correct.
Thus, this reduced lifting restriction is self-imposed
by claimant himself. Furthermore, claimant admitted that he
lifted 40 bales of hay and another 33 bales of hay which
weighed 50 or 60 pounds. Therefore, claimant is capable of
performing heavy lifting on a somewhat sustained basis when
he chooses to do so and the conditions are right for it.
Dr. McGuire pointed out and tried to convince claimant
that simply because he felt pain was no indication that he
was injuring his back. At the same time, it is the opinion
of this deputy that no reasonable doctor would recommend
that claimant continue with the physically strenuous work
that he was performing for employer with the multiple
congenital, developmental and degenerative conditions in
claimant's lower back. Thus, as a practical matter claimant
Page 20
should avoid heavy lifting, particularly on a repetitive
basis. This limits his employment opportunities and
increases his industrial disability.
Claimant testified that he can only stand about 15
minutes (Tran. p. 98). He testified that his sitting,
walking and carrying is limited (Tran. p. 99). Claimant
stated that his pain was activity related (Tran. pp. 100,
143 & 156). However, none of the doctors, in particular Dr.
Boulden, Dr. McGuire or Dr. Evans corroborated claimant's
testimony on this point. Claimant's testimony may be true
but it is not supported by any supporting medical evidence.
The testimony of claimant's wife, father and brother
has suffered impaired credibility in view of the findings of
the private surveillance investigators and claimant's
admission at the hearing that he did perform the normal work
of a dairy farmer who operates a milking operation and in
addition assists his father with field work.
Claimant described his pain as usually between 4 to 6
on a scale of 10 (Tran. p. 143).
There is no question that claimant earned a lot of
money in this position as a route salesman for employer at
the time of his injury. The parties stipulated that
claimant's gross earnings at the time of the injury were
$1,146.13 per week. If claimant could maintain his weekly
wage it would mean a gross annual income of $59,598.76. At
the same time, the evidence shows that the route salesman
worked on commission and that their income fluctuated.
According to Berg a route salesman could make anywhere
between $25,000 and $40,000 per year. He said a good route
like claimant had would normally earn $35,000 to $40,000 per
year. Morris indicated that around $45,000 would be the
average earnings for a good route salesman in the top 5 or
10 percent and that claimant was in that group (Ex. J, p.
17). Claimant's 1988 income tax returns show gross earnings
of $38,627. Claimant's income tax returns for 1989 show
gross earnings of $39,126. The income tax returns for the
year 1990 show gross earnings of $48,744.44 from claimant's
earnings that year (Ex. Q).
Using White's figures of five dollars ($5.00) per hour
would produce a gross annual income of $10,400 and eight
dollars per hour would produce an income of $16,640 per
year. However, it should be noted that this was based upon
a 40 hour week whereas claimant was typically working an 80
hour week or more for employer. Theoretically, if claimant
had a second job and earned the same amount of money again
his earnings would be $20,800 or $33,280.
Furthermore, it must be considered that claimant is
grossing $40,000 in farming income. The true net income
from farming is not available because claimant acknowledged
that a lot of his tax write-offs are book losses, or
non-cash expenditure deductions, and that his actual net
income is considerably more than $10,000 or $11,000.
Based on the foregoing numbers it can be seen that it
Page 21
is not possible to make a straight line simple calculation
of claimant's actual loss of earnings.
Nevertheless, industrial disability is based upon loss
of earnings capacity. It is the determination of this
deputy that claimant has sustained a 35 percent industrial
disability or loss of earnings capacity based primarily upon
the fact that he is foreclosed from his former employment
with employer and other similar types of work which require
repetitive heavy lifting, bending and twisting and prolonged
sitting. This determination is based upon the factors
discussed above, coupled with agency expertise [Iowa
Administrative Procedure Act 17A.14(5)] and all of 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).
WITNESS FEES
It is determined that defendants are not entitled to be
reimbursed by claimant for the amounts defendants paid the
private investigators and surveillance witnesses for
deposition testimony at the request of claimant's counsel.
The charges of the private investigators are shown in
exhibits G and H.
First of all, the deputy can find no statutory
authority for defendants' proposition and defendants have
not offered any. Defendants purport to make an analogy
between the deposition testimony of private surveillance
investigators and expert witnesses citing Iowa Rules of
Civil Procedure 125 e. and f. This contention is without
merit for the reason that private investigator surveillance
witnesses are not expert witnesses.
Rule 702 of the Iowa Rules of Evidence defines the
testimony of experts as follows,
Rule 702. Testimony by experts. If
scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education may testify thereto in the form of an
opinion or otherwise.
Babyar and Miller did not supply any scientific,
technical, or other specialized knowledge in this case. Nor
did they render an opinion, for the most part, other than
the fact that based upon what they saw with their own eyes
claimant did not appear to be impaired. Thus, it is
determined that the testimony of these private investigator
surveillance individuals was not expert testimony and
therefore Iowa Rules of Civil Procedure 125 e. and f. would
have no application to their testimony.
Page 22
It should be noted that the private investigator
surveillance persons were injected into the case by
defendants, even though they claim it was necessitated by
claimant's dishonesty in contending that he could not
perform any work on the farm. Therefore, the cost of these
witnesses are trial preparation expenses properly chargeable
to defendants. The investigators themselves either know, or
should know, that once they become involved in a case, they
can be subpoenaed to testify as a witness by any party to
the case. The only obligation on the part of claimant would
have been to obtain a subpoena and attach the witness fee
and mileage fee provided for in Iowa Code section 622.69,
622.104 and section 70A.9. The private investigators,
knowing this, probably have a clause in their contract which
requires the person who hires them to pay them if they are
called upon to testify at a deposition or at a hearing or in
court. Private investigators, being business persons, have
most likely covered this contingency when they were hired in
the first place.
Moreover, claimant's counsel, in his brief, points out
that exhibit H, the bill of Charles Miller in the amount of
$207.33 is not for deposition testimony, but rather for four
and one-half hours of surveillance/investigation and travel
of 39 miles at 35 cents per mile.
Claimant's counsel likewise points out that exhibit G,
the bill of John Babyar is a charge for one-half a day of
service in the amount of $152 and mileage in the amount of
$12.25 with no itemization of how the mileage is calculated.
His total bill is $164.25. Claimant's counsel points out
that Mr. Babyar's deposition testimony only lasted from 9:25
a.m. to 10:35 a.m., one hour and ten minutes, and did not
require a half of day of his services.
Therefore, these surveillance witnesses who were
checking on the honesty of claimant, were either not honest
themselves in their billing practices, or else someone has
made a gross mistake in presenting exhibits G and H for
payment by claimant for the deposition testimony which these
men actually gave (Def. Brief, pp. 15 & 16).
Wherefore, it is determined that the charges of the
private investigators in exhibits G and H, which total
$371.58, are not the responsibility of claimant for the
reasons stated above.
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That claimant sustained the burden of proof by a
preponderance of the evidence that the injury of March 14,
1991, was the cause of permanent disability because it
aggravated and made symptomatic claimant's preexisting
degenerative disc disease, bulging L4-L5 disc and bilateral
spondylolisthesis based upon the testimony of Dr. Boulden,
the board certified treating physician and Dr. Evans,
claimant's independent evaluator. Bodish v. Fischer, Inc.,
Page 23
257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs
Co., 236 Iowa 296 18 N.W.2d 607 (1945).
That claimant has sustained the burden of proof by a
preponderance of the evidence that he has sustained a 35
percent industrial disability to the body as a whole and is
entitled to 175 weeks of permanent partial disability
benefits. Iowa Code section 85.34(2)(u). Diederich v.
Tri-City Railway Co., 219 Iowa 587, 258 N.W. 899 (1935);
Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d
251 (1963).
That defendants did not sustain the burden of proof by
a preponderance of the evidence that claimant is obligated
to pay them for the charges of two private surveillance
investigators hired by defendants who gave deposition
testimony at the request of claimant's counsel and presented
charges to defendants purportedly for the time involved in
giving the depositions. Rule 343 IAC 4.33; Iowa Code
section 86.18(2), 86.40, 622.69, 622.104 and 70A.9; Rules of
Civil Procedure 125 e. and f.
ORDER
THEREFORE, IT IS ORDERED:
That defendants pay to claimant one hundred
seventy-five (175) weeks of permanent partial disability
benefits at the stipulated rate of six hundred fifty-seven
and 77/100 dollars ($657.77) per week in the total amount of
(one hundred fifteen thousand one hundred nine and 75/100
dollars ($115,109.75) commencing on June 12, 1991, as
stipulated to by the parties.
That defendants are entitled to a credit for sixty-two
point seven one four (62.714) weeks of workers' compensation
benefits paid to claimant at the rate of five hundred
twenty-one and 11/100 dollars ($521.11) per week in the
total amount of thirty-two thousand six hundred eighty and
89/100 dollars ($32,680.89) provided that all of these
payments were for permanent disability and exclusive of the
twelve point eight five seven (12.857) weeks of temporary
disability benefits that the parties agreed that claimant
was entitled to at the time of the hearing.
That all accrued benefits are to be paid in a lump sum.
That interest will accrue pursuant to Iowa Code section
85.30.
That the costs of this action, including the cost of
the attendance of the court reporter at hearing and the cost
of the transcript, are charged to defendants pursuant to
rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.
Furthermore, claimant is specifically awarded the costs
attached to the hearing report for the filing fee with the
industrial commissioner's office in the amount of sixty-five
dollars ($65), the cost of the medical report of Dr. Evans
in the amount of one hundred dollars ($100) and the cost of
Page 24
the medical report from Dr. Boulden in the amount of
twenty-five dollars ($25), which latter costs all total one
hundred ninety dollars ($190).
That defendants file claim activity reports pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of February, 1994.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Jerry L. Schnurr III
Attorney at Law
PO Box 952
409 Snell Building
Fort Dodge, IA 50501
Mr. Timothy W. Wegman
Mr. Stephen W. Spencer
Attorneys at Law
218 Sixth Ave., Ste 300
PO Box 9130
Des Moines, IA 50306-9130
2901, 2906,1108.50, 1401, 1402.40,
1803, 2206, 2209, 2906, 2907, 3701
Filed February 28, 1994
Walter R. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MICHAEL REEVES,
Claimant,
vs.
File No. 979818
PEPSI COLA GENERAL BOTTLERS,
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 COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
2901, 2906
Even after the parties substantially reduced the number of
proposed exhibits at the request of the deputy at the time
of the hearing, nevertheless, after examining all of the
exhibits for the decision it was determined that a
significant number of the remaining exhibits were not
relevant, material, essential or helpful in the
determination of the issues in this case.
1108.50, 1401, 1402.40, 1803, 2206, 2209, 3701
Claimant had several preexisting back problems (1)
degenerative disc disease of L1-2, L2-3, L4-5, and L5-S1,
(2) bulging disc at L5-S1 and (3) spondylolisthesis. The
treating orthopedic surgeon and claimant's evaluator said
they were made symptomatic and aggravated by this injury.
Impairment ratings were 2-3 percent, 8 percent and 10
percent. Claimant's back problems were not operable and no
surgery was performed. None of the doctors gave claimant
any permanent restrictions, except the treating orthopedic
surgeon did say claimant was foreclosed from his current job
as a Pepsi-Cola route salesman and that he should not bend,
twist or sit for a long time.
Claimant, claimant's wife, claimant's brother, and
claimant's father testified that there was very little that
he could do on account of this injury. Claimant denied in a
deposition that he was performing or could perform farm
work. Several private surveillance investigators observed
Page 2
and videotaped claimant engaging in farming activities. At
the hearing claimant admitted that he was running a dairy
farm and milking operation and some other related farm
activities.
Claimant was awarded 35 percent industrial disability
primarily on the basis that he was foreclosed from his
previous job in which he earned between $50,000 and $55,000
per year.
Claimant's award was large because his gross earnings
were $1,146.13 and his rate was $657.77.
Claimant's motivation was questioned by employer and
the rehabilitation specialist on several points which
claimant disputed and findings were made on these conflicts.
2906, 2907
It was determined that claimant did not owe defendants
the witness charges of two private surveillance
investigators who gave a deposition at claimant's request.
Rule 343 IAC 4.33; Iowa Code sections 86.18, 86.40, 622.69,
622.104, and 70A.9; Iowa Rules of Civil Procedure 125 e. and
f.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ROBERT BIEGHLER, :
:
Claimant, :
:
vs. :
: File No. 979887
SENECA CORPORATION, :
A R B I T R A T I O N
Employer, :
D E C I S I O N
and :
:
FARMLAND INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a contested case proceeding upon the petition
in arbitration of claimant Robert Bieghler against his
former employer, Seneca Corporation, and its insurance
carrier, Farmland Insurance Companies. Mr. Bieghler
suffered a crush injury to the right lower extremity on
March 27, 1991, and now seeks benefits under the Iowa
Workers' Compensation Act.
A hearing was accordingly held in Des Moines, Iowa on
February 7, 1994. The record consists of claimant's
testimony and joint exhibits A, B and C.
ISSUES
The parties have stipulated to the following:
1. Claimant sustained injury arising out of
and in the course of employment on March 27,
1991;
2. The injury caused both temporary and
permanent disability;
3. Permanent disability should be
compensated as a scheduled member disability
to the right leg;
4. At the time of the injury, claimant was
single and entitled to four exemptions;
5. Entitlement to medical benefits is no
longer in dispute;
6. Defendants voluntarily paid 104.143
weeks of compensation (20 weeks of which
were paid on the day of hearing) at the rate
Page 2
of $309.25 per week; and,
7. Defendants are entitled to credit for
payment of sick pay/disability benefits
under Iowa Code section 85.38(2).
Issues presented for resolution include:
1. The extent of temporary
disability/healing period;
2. The extent and commencement date of
permanent disability; and,
3. The appropriate rate of compensation.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
On March 27, 1991, Robert Bieghler was employed as a
working foreman for Seneca Corporation. Seneca's business
includes installation of underground petroleum tanks.
Claimant was engaged in the installation of such a tank when
he suffered a crush injury to the right ankle area while
operating a Bobcat front end loader. Mr. Bieghler's leg was
caught between the bucket and the frame of this earth moving
machine.
Initial treatment with several physicians was generally
conservative, including casting, physical therapy,
injections and medications. Diagnoses included soft tissue
injury, synovitis and {by radiographic evidence} bony
fragments at the tip of the medial malleolus. The malleolus
is a part of the leg, not the foot.
Claimant's recovery proved to be very slow. He was
eventually referred to an orthopedic surgeon, Bryan Den
Hartog, M.D., who reported in June 1992 that claimant would
have difficulty performing many of the essential functions
of his previous position. As a result, claimant was
discharged on July 1, 1992. At about the same time, Dr. Den
Hartog recommended further treatment, including an
arthroscopy procedure, but defendants refused to authorize
treatment. Indeed, claimant's healing period benefits were
converted to permanency benefits by the insurance carrier.
Dr. Den Hartog continued to treat claimant, especially
with steroid injections, and was eventually granted
permission to perform surgery. This included an
arthroscopic procedure of the right ankle and subtalar
joints, and a right tarsal tunnel release.
Fortunately, the procedure greatly improved claimant's
pain and function. On October 20, 1993, Dr. Den Hartog
estimated impairment at five percent of the right leg based
on residual pain and slight stiffness in the subtalar joint.
He also imposed activity restrictions of no more than four
hours standing in any given eight-hour shift and a weight
lifting restriction of 50 pounds. Claimant was released on
Page 3
a p.r.n. (return as needed) basis.
During the 13 weeks prior to injury (weeks ending
December 30, 1990 through March 24, 1991), claimant was paid
an hourly wage of $11.05. He worked 510.5 hours of
"regular" time and 68.5 hours of overtime, totalling 579
hours. Claimant asserts that the week ending January 13,
1991 was atypical or non-representative, since he worked
only 32 hours straight time and 2 hours overtime. However,
the evidence does not disclose why claimant worked only 32
hours of straight time that week. He may have taken a
personal day, or work may not have been available. The week
is not shown to be nonrepresentative.
CONCLUSIONS OF LAW
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).
Prior to October 1993, claimant did not return to work
and was never medically capable of returning to
substantially similar employment. A brief attempt at
returning to work with defendants, in the nature of a trial,
proved unsuccessful. Claimant also tended bar for a few
hours. Neither constituted any significant return to work
within the meaning of section 85.34(1). The surgery
performed by Dr. Den Hartog clearly improved claimant's
condition, as evidenced by the early impairment rating
issued April 8, 1992 by Dr. Kessler and physical therapist
Thomas Bower: 15 percent. Claimant reached maximum medical
improvement on October 20, 1993, when rated and released by
Dr. Den Hartog with restrictions. Benefits were paid until
April 7, 1992, and are not in dispute.
Although Dr. Den Hartog rated impairment at only five
percent of the leg, the associated restrictions show that
claimant's actual impairment is greater. Claimant was
previously able to be on his feet longer than four hours in
a eight hour shift. Claimant shall be compensated for a 15
percent loss of the leg, 33 weeks. The loss of the leg is
compensated during 220 weeks under Iowa Code section
85.34(2)(o).
Under Iowa Code section 85.36(6), the weekly earnings
of an employee paid on an hourly basis is calculated by
dividing by 13 the total earnings (not including overtime or
premium pay) in the last completed period of 13 consecutive
calendar weeks immediately preceding the injury. Under 343
IAC 8.2, overtime hours are included in determining gross
weekly wages, but at the straight time rate, not a premium
Page 4
rate.
Since claimant worked 579 hours at a wage of $11.05 in
the preceding 13 weeks, the proper calculation is (579 x
11.05) î 13 = $492.15. The rate tables published by the
commissioner show that a single individual with four
exemptions and an average weekly wage of $492.15 is entitled
to a compensation rate of $309.25.
ORDER
THEREFORE, IT IS ORDERED:
Defendants shall pay additional healing period benefits
from April 8, 1992 through October 20, 1993 (80.143 weeks)
at the rate of three hundred nine and 25/100 dollars
($309.25) per week.
Defendants shall pay thirty-three (33) weeks of
permanent partial disability benefits at the rate of three
hundred nine and 25/100 dollars ($309.25) commencing October
21, 1993.
All accrued weekly benefits shall be paid in a lump sum
together with statutory interest.
Defendants shall have dollar for dollar credit for all
benefits previously paid.
Defendants shall have credit under Iowa Code section
85.38(2) for net long-term disability/sick pay benefits paid
during any week in which such benefits were paid and
workers' compensation benefits were not paid.
Costs are assessed to defendants.
Signed and filed this ____ day of February, 1994.
________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Harry W Dahl III
Attorney at Law
974 73rd Street
Suite 16
Des Moines Iowa 50312
Mr Matthew A Grotnes
Attorney at Law
Terrace Center Ste 111
2700 Grand Avenue
Des Moines Iowa 50312
1803
Filed February 8, 1994
DAVID R. RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ROBERT BIEGHLER, :
:
Claimant, :
:
vs. :
: File No. 979887
SENECA CORPORATION, :
A R B I T R A T I O N
Employer, :
D E C I S I O N
and :
:
FARMLAND INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1803
Although surgeon rated impairment at only five percent of
the leg, restrictions imposed (only 4 hours standing in 8
hour shift; 50 pound lifting) indicated impairment of 15
percent of the leg. Award was for 15 percent.