BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
EUGENE FIKE, :
:
Claimant, : File No. 946021
:
vs. :
: A R B I T R A T I O N
JOHN DEERE WATERLOO WORKS, :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration brought by Eugene
Fike, claimant, against John Deere Waterloo Works, employer
and self-insured defendant, for benefits as the result of an
alleged occupational hearing loss which occurred on
September 30, 1987. A hearing was held in Waterloo, Iowa,
on April 29, 1992, and the case was fully submitted at the
close of the hearing. Claimant was represented by Robert D.
Fulton. Defendant was represented by John W. Rathert. The
record consists of the testimony of Eugene V. Fike,
claimant; James L. Conrad, former coemployee; Kay Harkness,
claimant's daughter; Lawrence A. Bowman, claimant's witness;
Paul Fagenbaum, claimant's witness; and joint exhibits 1
through 11. The deputy ordered a transcript of the hearing.
Both parties submitted excellent posthearing briefs.
ISSUES
The parties submitted the following issues for
determination at the time of the hearing:
Whether claimant sustained an occupational hearing loss
which arose out of and in the course of employment with
employer;
Whether claimant is entitled to occupational hearing
loss compensation, and if so, the extent of benefits to
which he is entitled; and
Whether claimant commenced a timely action as required
by Iowa Code sections 85B.14 and 85.26(1) has been asserted
as an affirmative defense by defendant.
Whether defendant should be equitably estopped from
asserting the statute of limitations as a defense.
FINDINGS OF FACT
statute of limitations/equitable estoppel
It is determined that the original proceeding for
occupational hearing loss was not commenced within two years
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of the occurrence of the injury as required by Iowa Code
section 85.26(1). The date of occurrence of the
occupational hearing loss is the date of claimant's
retirement on September 30, 1987. Iowa Code section 85B.8.
The original notice and petition filed in the industrial
commissioner's office is dated July 31, 1990. Therefore,
the original proceeding was not commenced within two years
of the date of the occurrence of the occupational hearing
loss. Nevertheless, defendant is equitably estopped from
asserting the statute of limitations as a bar to this
proceeding.
Under the doctrine of equitable estoppel, the statute
of limitations may not be asserted as a bar to a claim for
workers' compensation. Lawyer and Higgs, Iowa Workers'
Compensation--Law and Practice, (2d ed.) section 11.16, page
104.
The four essential elements of equitable estoppel are
as follows:
1. False representation or concealment of material
facts,
2. Lack of knowledge of the true facts on the part of
the person to whom the misrepresentation or concealment is
made,
3. Intent of the party making the representation that
the party to whom it is made shall rely thereon,
4. Reliance on such fraudulent statement or
concealment by the party to whom made resulting in his
prejudice.
Strict proof of all four elements is usually demanded.
Paveglio v. Firestone Tire and Rubber Co., 167 N.W.2d 636,
638-39 (Iowa 1969); DeWall v. Prentice, 224 N.W.2d 428 (Iowa
1974); Carter v. Continental Telephone Co., 373 N.W.2d 524
(Iowa 1985); Veach v. Wolff Transportation Co., Vol. I no. 1
State of Iowa Industrial Commissioner Decisions 246 (App.
Dec. 1984); Jacobsen v. Iowa Paint Mfg. Co., Thirty-second
Biennial Report of the Industrial Commissioner 111 (App.
Dec. 1976); Hartzler v. Iowa Beef Processors, Inc., file
number 716000 (1987).
Claimant is a career employee of employer. He started
to work for employer in 1955 at age 23. After a lay off, he
started again with employer in 1958 at age 26 and worked
there practically continuously for over 29 years until his
retirement on September 30, 1987, at age 55 (transcript
pages 49-50).
As will be seen in the next section of this decision,
claimant worked for over 29 years of his adult working
lifetime, from age 26 to age 55, in a loud noise environment
which many times constituted an excessive noise level as
provided in Iowa Code section 85B.5.
Claimant testified that after he retired on September
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30, 1987, he first learned that he had two years within
which to file a claim for occupational hearing loss in the
summer of 1989 (tr. p. 90). More specifically, he estimated
that is was in June or July 1989 (tr. p. 103). Claimant
learned of the two-year requirement from a friend and former
coemployee that he chanced to meet and have a causal
conversation with at K-Mart (tr. pp. 91, 101, 126). The
friend and former coemployee was a union representative,
however, claimant did not consult with him in an official
capacity even though claimant had been a member of the union
(tr. p. 103). It was simply a chance meeting (tr. p. 126).
The friend told claimant that he had two years within which
to file a claim for occupational hearing loss (tr. pp. 91,
127).
Claimant testified that he had known this man for
several years and the man knew that claimant had a hearing
problem (tr. p. 105). Claimant testified that he was
probably adjusting his hearing aid during the conversation
in order to hear the friend and that is why the man told him
that he had two years from the date of retirement in which
to file an occupational hearing loss claim (tr. pp. 105,
126). Claimant indicated to his friend that he would file a
claim for occupational hearing loss within two years of his
retirement date (tr. pp. 91, 127).
Claimant testified that he telephoned employer and
talked to Mr. Ray Treiber, manager of benefits (tr. pp.
91-93). Claimant testified that he talked to Mr. Treiber in
July or August 1989. Claimant related, "Yes. I indicated
to Mr. Treiber that I had learned that I had two years from
the time I had retired to file a claim, and that's why I was
there to see him....To file a claim for hearing loss." (tr.
p. 93). Claimant further related that Treiber told him that
it would be necessary to test him. Treiber then scheduled a
hearing test by employer's medical department. Claimant
testified, "And I assumed that that was the procedure I had
to follow. I had no reason not to trust him." (tr. p. 94).
Treiber set up an appointment for claimant with
employer's medical director, Charles D. Bendixen, M.D., in
the fall of 1989 (tr. pp. 92-94).
Neither Mr. Treiber nor Dr. Bendixen testified at the
hearing or by deposition. Treiber was present at the
hearing but chose not to testify.
There is a note of Dr. Bendixen dated October 10, 1989,
after the statute of limitations had expired on September
30, 1989, which stated that he saw claimant on September 21,
1989, who was inquiring about possible hearing loss
compensation. The note states that Dr. Bendixen took an
audiogram, but also made an appointment with Bruce L.
Plakke, Ph.D., for an audiological evaluation preparatory to
making a determination as to claimant's eligibility for
hearing loss workers' compensation (ex. 2-22). Claimant
testified that he did not have any discussion with Dr.
Bendixen about the two year requirement. However, he was
told by Dr. Bendixen that he would have to see Bruce L.
Plakke, Ph.D., at the University of Northern Iowa for an
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audiological evaluation (tr. pp. 94-95).
Claimant testified that the original appointment with
Dr. Plakke was rescheduled for a later date. A letter from
Dr. Bendixen to claimant dated October 10, 1989, told
claimant that the appointment had been made for him to see
Dr. Plakke on October 16, 1989. In that letter Dr. Bendixen
stated to claimant, "After I receive your evaluation from
Dr. Plakke, our Medical Department, Safety Department and
Personnel Department will meet to make a determination
regarding your eligibility for possible hearing loss
compensation." (ex. 2-20). Dr. Plakke performed his
evaluation and sent the results to Dr. Bendixen on October
16, 1989 (ex. 2-32; tr. p. 96).
Claimant testified that he felt that he had followed
the procedures that he was instructed to follow and employer
had not indicated to him that he had not done so at that
point (tr. p. 97).
Claimant was then instructed to undergo a third
post-retirement audiogram at the Wolfe Clinic at
Marshalltown (tr. p. 98). Claimant next received a letter
dated January 16, 1990, from Dr. Bendixen which stated, "We
are still in the process of evaluating a number for [sic]
retirees who have applied for hearing loss compensation.
You are one of the group in whom we feel more complete
Otologic examination is warranted before we can make a final
determination regarding your eligibility for hearing loss
compensation." (exs. 2-21; 6-3).
Next, claimant was sent a letter on February 19, 1990,
from Treiber stating that his claim for workers'
compensation benefits was denied. The letter concluded,
"Thanks for taking the time for the evaluations, and the
best to you in your retirement." (ex. 6-2). There is a
handwritten notation of February 21, 1990, at the bottom of
this letter to the effect that Dr. Bendixen advised that
this letter was in error and that claimant should keep his
appointment with the Wolfe Clinic (ex. 6-2).
The Wolfe Clinic evaluated claimant on April 9, 1990
(ex. 2-18). Dr. Bendixen wrote to Treiber on April 19,
1990, that claimant's workers' compensation claim should be
denied (ex. 2-17). A second denial letter was sent to
claimant on April 27, 1990, which again thanked him for the
time he gave them for the evaluations and wished him the
best in his retirement (ex. 2-16).
Claimant testified that he then contacted an attorney
(tr. p. 99). He further testified that if he had known that
his claim would be turned down when he first saw Treiber and
Dr. Bendixen in the fall of 1989, he would have contacted an
attorney at that time. Claimant was asked and answered as
follows:
Q. Why didn't you contact an attorney in August
when you contacted John Deere?
A. Because I trusted the people at John Deere. I
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felt like I was doing what was required.
(transcript page 100).
Kay Harkness, claimant's daughter, testified that her
father told her that he had a claim for hearing loss and
that he intended to pursue it in a timely manner (tr. pp.
132-133).
Lawrence A. Bowman, a retired employee of employer,
testified that he learned from a union publication that he
had two years to file for occupational hearing loss (tr. pp.
134-139). He retired on November 23, 1988. He contacted
Dr. Bendixen on July 19, 1990, and told Dr. Bendixen he had
two years from the time he retired to get this cleared up
(tr. pp. 139-140). Dr. Bendixen made an appointment for him
at the Wolfe Clinic on September 18, 1990, which he kept
(tr. pp. 141-142). Bowman then received a letter from
Treiber on December 20, 1990, after the statute of
limitations had expired which denied his workers'
compensation claim for occupational hearing loss. He
identified it as the identical letter that had been sent to
claimant and further noted that the word noise had been
misspelled in both letters (tr. p. 143). Bowman testified
that if he had known that his claim was going to be denied
that he would have contacted an attorney before the
expiration of the statute of limitations (tr. pp. 144-145).
Thus, in the case of Bowman, the investigation was completed
before the statute of limitations had expired, but his claim
was not denied until after the statute of limitations had
expired legally barring his claim.
Paul Fagenbaum, a retired employee of employer,
testified that he retired on March 31, 1988. He also
learned of his hearing loss rights from the union
newsletter, The Pioneer. Fagenbaum also contacted the union
representative who told him to contact the employer.
Fagenbaum testified that he contacted Dr. Bendixen on March
1, 1990. At that time he stated, "When I walked in and seen
him, the first thing I told him was I was there for one
purpose only and I stated that my two years were almost up
and I wanted to file a claim for my hearing loss." (tr. p.
148). Dr. Bendixen administered an audiology test but
stated he could not tell if it was job related or not and
that it would be necessary to see the Wolfe Clinic in
Marshalltown. An appointment was set up for May 16, 1990,
which is a date after which the statute of limitations would
expire on March 31, 1990. This question was then asked of
and answered by Bowman:
Q. And what did that lead you to believe
regarding of your filing of your claim?
A. It lead me to believe that I was legitimate in
filing my claim for a hearing loss.
Q. Within the two-year period?
A. Within the two-year period.
Page 6
(transcript pages 149-150)
The Wolfe Clinic sent the results of their audiological
evaluation of Fagenbaum to employer on May 17, 1990. On
August 31, 1990, claimant and his wife contacted Dr.
Bendixen. Fagenbaum testified, "We called Dr. Bendixen and
he said, and I quote, at this time it looks like it's going
to be a compensible [sic] loss." (tr. p. 150). They were
instructed that they would receive a letter from Treiber
within two weeks. Claimant recontacted Dr. Bendixen on
September 18, 1990, "Because I felt that my claim was
filed..." (tr. p. 151). On September 19, 1990, he was told
by Dr. Bendixen that Treiber still had the claim under
consideration. On September 27, 1990, he received a letter
from Treiber which denied his workers' compensation
occupational hearing loss claim (tr. pp. 151-152).
Fagenbaum testified that if he had known that his claim
would have been denied back in March 1990, he would have
contacted his own attorney in the first place. Fagenbaum
identified his denial letter as identical to the letter sent
to claimant in this case, including the misspelling of the
word noise (tr. pp. 152-153).
When Treiber finally denied claimant's workers'
compensation claim for occupational hearing loss by a letter
dated April 27, 1990, the letter is identical to the letter
which he sent to claimant on February 19, 1990, and it is
identical to the letter he sent to both Bowman and Fagenbaum
(exs. 2-16; 6-2)
Although the experience of claimant, Bowman and
Fagenbaum vary in some details, they are, nevertheless,
relevant to show habit and practice of employer in handling
hearing loss claims at or near the expiration of the statute
of limitations. Rule 406 Iowa Rules of Evidence. It is the
kind of evidence on which reasonably prudent persons are
accustomed to rely in the conduct of their serious affairs.
Iowa Administrative Procedure Act 17A.14(1); Defendant's
posthearing brief pages 2-4.
From the foregoing evidence, it is determined that the
statute of limitations had expired when claimant filed his
original notice and petition. Claimant retired on September
30, 1987. The statute expired on September 30, 1989. The
action was not commenced until July 31, 1990. Thus, the
original notice and petition, which is the only act
constituting commencement of an action, Iowa Code section
85.26(3), was not filed within two years from the date of
the occurrence of the occupational hearing loss. Iowa Code
section 85.26(1) and 85B.8.
It is further determined that defendant is equitably
estopped from asserting the statute of limitations as a bar
to this action for the reason that claimant has met the
strict requirements for the application of the doctrine of
equitable estoppel.
First, claimant has established defendant concealed a
material fact. The material fact concealed in this case was
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that by following the procedure prescribed by employer to
investigate and determine their liability, the statute of
limitations would expire before this procedure would be
completed. Furthermore, employer would notify claimant of
its determination of its liablity after the statute of
limitations had expired. The concealment permitted employer
to investigate the claim after the statute had expired to
obtain evidence with which to deny the claim on the merits
before claimant would be alerted to seek legal counsel.
Secondly, it provided employer with the defense of the
statute of limitations irrespective of whether their
investigative process produced evidence to deny the claim on
the merits or not.
Second, claimant lacked the knowledge that he had not
legally commenced an action. He was told he had to file a
claim within two years. He told Treiber that he had to file
a claim within two years. Claimant stated that he believed
that he had properly filed a claim within the time
limitations for filing a claim. There is no evidence that
he had any knowledge of any other requirement about the
proper filing of a claim or the commencing of an action.
Claimant testified that his sole and entire knowledge was
that related to him by a friend who stated that he had to
file a claim within two years from his retirement date.
This lack of knowledge of the true facts was not unreason
able as demonstrated by the fact that at least two other
employees believed that filing a claim with the employer
legally protected their rights.
Third, it is determined that it was the intent of
employer that claimant rely upon the false impression that
he had timely filed a claim which would not be timely when
their investigation was completed. This is evidenced by the
fact that two other employees, who contacted employer
stating that they wished to file a claim within the two year
period for filing claims, were treated in a similar fashion.
Claimant's situation is not an isolated instance. Rather,
there is proof that employer followed a course of dealings
with a number of employees in the same general manner.
Intent is seldom, if ever, capable of direct proof. It is
presumed, however, that one intends the natural consequences
of his own acts. Veach, vol. I no. 1, Iowa Industrial
Commissioner Decisions 246, 248 cited previously. Claimant
followed employer's instructions to his prejudice.
Fourth, it is determined that claimant relied on the
concealment by employer that while he was following their
procedure to investigate his claim that the statute of
limitations would expire during the course of their
investigation. Claimant testified, "I felt I had instigated
the process." (tr. p. 126). Claimant was asked why he did
not contact an attorney in August of 1989 when he contacted
employer and claimant responded, "Because I trusted the
people at John Deere. I felt I was doing what was
required." (tr. p. 100). With respect to whether claimant
had filed a claim, he responded, "I felt I had followed
procedure and they had not indicated to me that I had not."
(tr. p. 97). Claimant further testified that when he was
told that hearing tests would be required, "...I assumed
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that that was the procedure I had to follow. I had no
reason not to trust him." (tr. p. 94).
Defendant employer was not obligated to explain to
claimant his legal rights and their legal obligations.
Furthermore, defendant employer was not obligated to
instruct claimant to seek his own counsel for an explanation
of the rights and liabilities of the parties. Defendant was
obligated not to induce claimant to embark upon a lengthy
course of investigation beyond the time of the expiration of
the statute of limitations and then use this information to
deny the claim based upon the information obtained.
When defendant sent claimant upon a lengthy course of
investigation that continued until after the statute of
limitations had expired and continued to deal with claimant
for a prolonged period of time after the statute had
expired, and even denied his claim once and renewed the
course of investigation to obtain further evidence at the
Wolfe Clinic which was used to deny his claim, then it can
safely be stated that defendant should be equitably estopped
from asserting the statute of limitations as a bar to
claimant's recovery. Cardwell v. Iowa Lutheran Hospital,
Thirty-third Biennial Report of the Industrial Commissioner,
88, 92 (1977).
Estoppel in its broadest sense is a penalty paid by one
perpetrating wrong by known fraud or by an affirmative act
which, though without fraudulent intent, may result in legal
fraud on another. Black's Law Dictionary, fourth ed. page
649. Veach, vol. I no. 1, Iowa Industrial Commissioner
Decisions 246, 247.
The doctrine of equitable estoppel is designed to
prevent fraud and injustice and may come into play whenever
a party cannot in good conscious, gainsay his prior acts or
assertions. Dart v. Thompson, 261 Iowa 237, 243-44, 154
N.W.2d 82 (1967).
Even though claimant displayed ignorance of the law and
simple, unsophisticated and naive diligence and intelligence
by not seeking counsel of his own choosing to find out the
rights and liabilities of the parties, nevertheless, the
conduct of defendant employer of inducing claimant to embark
upon a course of investigation after the running of the
statute of limitations to obtain information to deny his
claim appears to be an unfair or deceptive act or practice
in the business of insurance which would possibly merit
investigation by the insurance commissioner pursuant to the
provisions of Iowa Code section 507B.3, particularly in view
of the fact that this was not an isolated instance but
appears to be a course of dealings with a number of
employees over a period of time.
The typical way which the insurance industry
investigates such a claim is pursuant to a nonwaiver
agreement with the claimant prior to requesting claimant to
cooperate in getting information or cooperating in other
aspects of the investigation of the claim. Such a nonwaiver
agreement provides that the parties agree that the insurance
Page 9
carrier will investigate the claim made by claimant at the
request of the claimant but in so doing does not waive any
right to deny insurance coverage, employ any defense, or to
pay, deny or enter into a compromise settlement of the
alleged loss.
Furthermore, the conduct of employer indicates that it
may have actually intended to waive the statute of
limitations initially because the denial letter sent to
claimant, Bowman and Fagenbaum denied their claims on the
basis of the merits of their respective cases rather than
the basis of the statute of limitations even though the
statue of limitations had expired when the denial letters
were sent. Dr. Bendixen, employer's medical director,
represented to claimant and Fagenbaum that their claims
might be favorably considered after the statute of
limitations had expired. Fagenbaum testified that Dr.
Bendixen told him "...it looks like it's going to be a
compensable loss." (tr. p. 150). On October 10, 1989, after
the statue of limitations had expired, Dr. Bendixen wrote to
claimant that after he received Dr. Plakke's evaluation that
his claim for occupational hearing loss would be considered
(ex. 2-20). In January of 1990, after the statute of
limitations had expired, claimant received a letter from Dr.
Bendixen that stated the employer was still evaluating a
number of claims of retirees who had applied for hearing
loss compensation (exs. 2-21 and 6-3). After claimant was
initially denied by letter in February of 1990 after the
examination by Dr. Plakke, Dr. Bendixen told claimant to
ignore the denial letter and to go and be examined by the
Wolfe Clinic (ex. 6-2). The answer filed by employer on
September 17, 1990, did not assert a statute of limitations
defense. A prehearing conference was held on March 6, 1992,
and the case was rescheduled because neither party had
completed discovery, but employer did not assert the statute
of limitations. A second prehearing conference was set for
December 12, 1991, and it was not until December 11, 1991,
that employer amended its answer to assert the statute of
limitations under Iowa Code section 85.26(1).
Claimant did not assert the discovery rule as a reason
for not commencing a timely action and therefore, the
discovery rule is not an issue to be decided in this case.
In conclusion, it is determined that the occupational
hearing loss claim was not timely commenced but defendant
employer is equitably estopped from asserting the statute of
limitations as a bar to this action.
OCCUPATIONAL HEARING LOSS
It is determined that claimant has sustained an
occupational hearing loss pursuant to Iowa Code section 85B.
Iowa Code section 85B.4(1) defines occupational hearing
loss as a permanent sensorineural loss of hearing in one or
both ears in excess of 25 decibels which arises out of and
in the course of employment caused by prolonged exposure to
excessive noise levels.
Page 10
Iowa Code section 85B.4(2) defines excessive noise
level as sound capable of producing occupational hearing
loss.
Iowa Code section 85B.5 states that excessive noise
level is sound which exceeds the times and intensities
listed in the table shown in that section. This table
provides in part as follows:
Duration per day hours Sound Level, dBA slow response
8 90
7 91
6 92
5 93
4 1/2 94
4 95
3 1/2 96
3 97
2 1/2 98
2 1/4 99
2 100
1 3/4 101
1 1/2 102
1 1/4 103
1 1/8 104
1 105
Claimant testified and prepared an exhibit in which he
divided his employment with employer into four periods of
time, specified the work performed and described the noise
level in his opinion for each of these periods of time (ex.
8).
First, from July 14, 1958 to July 10, 1961, claimant
worked on assembly lines and in tractor repair where the
noise level was general to loud.
Second, claimant worked from December 1, 1961 to August
12, 1969, testing transmissions where the noise level was
very loud.
Third, claimant worked from August 12, 1969 to May 4,
1981, as a bench and line assembler where the noise level
was general to loud.
Fourth, claimant worked from May 4, 1981 to September
30, 1987, in transmission testing again and with the bending
machine where the noise level was very noisy.
During the first period of employment, claimant worked
in departments 13, 42, 43, 44, 45, and 50. He also worked
in department 46 during his short tour of temporary
employment in 1955.
Company records show that the noise level in department
13 on August 23-25, 1971, was 102 to 104 decibels at the
blowoff station and 90-98 decibels at machine number 9622
(ex. 5-2). The noise level in department 50 at various
machines ranged from a low of 83 decibels to a high of 92
Page 11
decibels (ex. 5-2). On July 12, 1977, a noise overexposure
report at machine 5926 showed that the operator was
receiving a noise dose ranging from 118 percent to 894
percent of the maximum allowable noise dose and that it
exceeded the 115 decibel maximum allowable pressure level.
This report also noted that employees working in adjacent
areas had registered complaints about the noise generated by
this machine (ex. 5-3). The parties agreed that the figure
894 percent should be 89.4 percent as is shown on exhibit
5-4. Other reports showed the noise level in department 13
as either being over 115 decibels (ex. 5-5) or otherwise
capable of causing excessive noise. Another exhibit
prepared on September 11, 1974, showed the noise levels in
department 13 of several machines as ranging between a low
of 80 decibels and a high of 92 decibels (exs. 5-6 - 5-21).
Noise levels in department 42 exceeded 115 decibels on
May 6, 1972, and were recorded at 85 and 85.56 decibels on
April 7, 1977 (exs. 5-56 - 5.60).
The exposure in department 45 on December 15, 1975,
exceeded 115 decibels and was reported that the employee was
overexposed (ex. 5-62). In department 46, noise levels of
between 96 decibels and 104 decibels were reported on July
19, 1972 (ex. 5-63). Other reports for department 46 show
noise levels of between 94 decibels and 106 decibels and
that hearing protection was required (exs. 5-66, 5-67).
A report for department 50 on August 23-25, 1971, shows
that decibel levels range between a low of 63 and a high of
92 (exs. 5-2, 5-68). Claimant operated impact wrenches in
assembly and noise level reports for impact wrenches are
shown as 80-90 decibels, 80-87 decibels and 82-94 decibels
in department 50 (ex. 5-69). A report on October 30, 1970,
for department 50 showed decibels ranging between a low of
91.5 and a high of 93 decibels (ex. 5-70). A report on
March 20, 1970, showed decibels ranging between 88 decibels
and 96 decibels in department 50 (ex. 5-71).
During the second period described by claimant he
worked in departments 41, 50 and 52. There are no reports
for department 41. The decibel levels for department 50
have already been given and in department 52 decibel levels
ranged from 92 to 100 on November 17, 1971 (ex. 5-77). In
department 52 they exceeded 115 decibels on March 21, 1972
(ex. 5-80) and exceeded 115 decibels again on March 27, 1972
(ex. 5-82). In department 52 they exceeded 115 decibels
again on May 17, 1973 (ex. 5-84). In department 52 noise
exceeded 115 decibels again on March 2, 1973 and March 5,
1973 (exs. 5-85, 5-86).
Claimant stated that he worked in departments 50, 50A
and 130 in the third period of time. They are no reports
for department 130. Reports for department 50 have been
given previously. Reports for department 50A are reported
at 82 and 84 decibels on August 23-25, 1971 (ex. 5-72).
Another report with the date cut off by the copy machine for
department 50A shows decibel levels between 78 and 87 (ex.
5-73).
Page 12
In the fourth period of time described by claimant, the
record shows that claimant worked in departments 44B, 52B,
57, 344, 376, and 536. Various reports in January 1982
reflect decibel levels in department 376 between a low of 79
and a high of 94 (exs. 5-27 - 5-49) and sometimes exceeded
115 decibels (ex. 5-50). A report on September 29, 1987, at
the time claimant retired from department 376, which was
based on a study done on August 13, 1987, showed sound
measurements of 116 decibels, at the drop housing; 105
decibels at the transmission; and 104 decibels at the drive
mechanism of the transmission testing machine that claimant
operated (ex. 5-52). A specific report for the name Gene
Fike on August 13, 1987, showed that exposure exceeded 115
decibels (ex. 5-53 - 5-55).
A report for department 52B on August 23-25, 1971,
showed a decibel level of 96 (ex. 5-88) and 90 decibels (ex.
5-89). Another report for department 52B on April 16, 1975,
showed decibel levels of between 110 and 114 (ex. 5.94).
Reports for department 536, dated February 16, 1984,
for Gene Fike showed that 115 decibels was exceeded in
department 536 (exs. 5-105 - 5-108).
A report for department 57 on August 23-25, 1987, shows
decibel levels between 90 and 92 (ex. 5-109). For
department 57 on January 25, 1982, decibel levels of between
80 and 87 were reported for department 57 (exs. 5-110,
5-111). Department 57 on January 19, 1992, showed decibel
levels between 79.3 and 92.9 (exs. 5-112, 5-113). Another
report for department 57 on March 4, 1974, showed that the
employee was overexposed (ex. 5-114). Other decibel levels
for department 57 recorded on June 23, 1976, were between 78
decibels and 94 decibels (ex. 5-15).
Claimant testified that he did not experience any
long-term exposure to loud noises previous to working for
employer (tr. p. 54). Claimant admitted seeing ear doctors
for an infection and noises in his ears, but denied he had
suffered any hearing loss problems prior to working for
employer (tr. pp. 106-125, 54). Claimant testified that his
hearing loss began sometime between 1961 and 1969 when he
worked on the transmission test machines (tr. p. 125). When
claimant tested transmissions there were three sources of
noise (1) the dyno motor which ran the transmission, (2) the
transmission and (3) the hydraulic power takeoff was also
being tested (tr. p. 77).
Claimant further testified that when he was testing
transmissions just before he retired in department 376, he
was told that the noise level exceeded 120 decibels. He
operated this machine 12 to 16 hours a day. It hurt his
ears in spite of the fact that he was wearing sponge rubber
inserts and ear muffs for hearing protection (tr. pp.
87-88).
There are no sound level reports for departments 44B
and 344.
Claimant explained and the diagram, exhibit 9, showed
Page 13
that claimant faced a console in front of him but the dyno,
transmission and power takeoff were on his left. Claimant
testified, "I would say that 90 percent of the noise input
that I was exposed to was hitting me from the left side,
because that's where it was." (tr. p. 90).
Claimant also testified that the equipment in the
console in front of him also produced noise. He said that
these hydraulic pumps and motors in the cabinet created
equal or more of a high pitched level than the dyno which
powered the transmission (tr. pp. 77-78). In transmission
testing there was another testing station in front of
claimant and two others behind him that generated the same
amount of noise because they were performing the same
function. Across the aisle there were four other units
performing a secondary test which also produced much noise
(tr. p. 79; ex. 9). Claimant tested transmissions from 1961
to 1969 and again from 1981 to 1987 (tr. p. 82).
James L. Conrad, a former coemployee of claimant and a
current 27-year employee of employer, testified that he
worked with claimant in the early 80's in departments 52B,
536 and 376 which are transmission test areas. Conrad
described claimant's work station and marked on the diagram
that claimant stood in front of the console and verified
that the transmission being tested was on his left side.
Conrad corroborated claimant's testimony that the dyno made
a whining noise in addition to the high pitched noise of the
transmission itself. The witness described the noise level,
"It's noisy. It's noisy. When you get a battery of those
running, it's noisy." (tr. p. 31). He also verified that
there were other machines adjacent to claimant making the
same noise as well as more machines across the aisle from
claimant which were also testing transmissions.
Conrad also verified that they worked extensive
overtime (tr. p. 38). There were many 12 and 14-hour days
(tr. p. 40). Conrad also stated that hearing protection was
not required when claimant worked there, but later several
tests were run and hearing protection is now required to
work in these areas (tr. pp. 42-44). Conrad admitted that
he was not a test machine operator. He was a repairman and
performed repair work on the testing machines in those areas
(tr. pp. 46-48).
Claimant testified that hearing protection was not
required when he worked for employer but that he began using
it sometime between 1961 and 1969 to muffle the noise
because it hurt his ears. Claimant testified that the noise
caused ringing in his ears and tension headaches. He said
the hearing protection helped muffle the noise but he could
still hear it (tr. pp. 84-85, 119). Just prior to his
retirement he was testing the transmission of a road grader
which had 16 forward speeds and 4 reverse speeds which were
not running in oil traveling at approximately 2500 r.p.m.'s
during a 20-minute test cycle. He said the noise was very
excessive. It bothered his ears. It hurt even though he
wore sponge rubber inserts and ear muffs (tr. p. 120).
Claimant testified that he complained and one of the company
sound engineers came out and monitored the sound and showed
Page 14
him that he was hearing 120 decibels while the machine was
operating. Claimant added that he operated that machine 12
to 16 hours per day, some times six days a week, in
department 376 just prior to his retirement (tr. pp. 86-88,
120).
Claimant denied any significant noise exposure after
retiring from employer (tr. p. 100).
Claimant testified that wearing ear protection helped
muffle the noise for his own comfort and safety so that it
did not hurt to hear the noise (tr. pp. 121-122).
During the course of claimant's employment with
employer, eight audiograms were performed. The first one
was made on September 8, 1977, which is some 19 years after
claimant had been exposed to high levels of noise (ex.
2-15). Furthermore, this was subsequent to the first
traumatic period of high noise between 1961 and 1969 when
the noise hurt his ears and he began voluntarily wearing
hearing protection. Claimant was working in department 50A
on September 8, 1977. This first audiogram shows
significant loss in both the right and left ear at the
higher frequencies of 2000 and 3000 hertz. A second
audiogram on June 2, 1980, when claimant worked in
department 50A showed increased losses in both ears at the
lower decibels (ex. 2-13).
Claimant was then transferred back into transmission
testing and the next audiogram on June 2, 1981, when he
worked in department 376 showed significant loss of hearing
in both ears at all four frequencies, but the loss was
greatest in both ears at the higher decibels of 2000 hertz
and 3000 hertz (ex. 2-4).
Page 15
The next audiogram on August 3, 1981, when claimant worked
in department 52B, showed some improvement in his hearing (ex.
2-1).
The next four audiograms demonstrate a continued loss of
hearing in both ears at 2000 hertz and 3000 hertz, but the
greatest and most marked loss was at 3000 hertz in the left ear.
These tests were performed on November 8, 1982, for department
52B (ex. 2-9); January 31, 1984, in department 536 (ex. 2-7);
March 1, 1985, in department 536 (ex. 2-6); and April 4, 1986, in
department 57 (ex. 2-5). It was during this period of time that
claimant and Conrad testified that claimant was exposed to the
high pitched whining of the dyno, the transmission and the rock
shaft in claimant's left ear.
The next audiogram was performed by employer after claimant's
retirement in the course of the investigation of this claim on
September 21, 1989, by P. Kramer (ex. 2-1). This audiogram
showed even a greater loss than was recorded on April 4, 1986,
which may well be explained by the fact that claimant testified
that during his last year and one-half in department 376 he was
testing the transmission of a road grader which was louder than
anything else he had ever tested and one of the sound engineers
told him that the level of sound exceeded 120 decibels.
Claimant's testimony is born out by a dosimeter exposure record
dated August 13, 1987, about a month before claimant retired for
department 376 which indicated that noise level in that depart
ment exceeded 115 decibels (ex. 5-53). A specific report on
claimant's work station on August 13, 1987, showed that the
exposure exceeded 115 decibels (ex. 5-53 - 5-55).
Iowa Code section 85B.4(1) defines occupational hearing loss
as sensorineural loss in excess of 25 decibels which arises out
of and in the course of employment caused by prolonged exposure
to excessive noise levels.
Iowa Code section 85B.4(2) specifies that excessive noise
level means sound capable of producing occupational hearing loss.
Iowa Code section 85B.5 states that excessive noise level is
sound which exceeds the times and intensities listed in the
table.
The lowest decibel exposure rating shown in the chart is 90
decibels. Many of the sound level surveys described above show
decibel ratings for the departments in which claimant worked far
in excess of 90 decibels. The highest decibel exposure rating in
the table is 105 decibels. Many of the sound level surveys
described above show decibel exposures far in excess of 105
decibels.
The sound level surveys do not necessarily correlate in all
cases with the dates that claimant worked in these departments,
but they are, nevertheless, indicative of the sound level in
these departments.
Page òòò 16
Claimant testified that he worked 8, 10, 12, 14, and some
times 16 hours per day in these noise levels five or six days per
week. Conrad corroborated claimant's testimony that they worked
an extensive amount of overtime.
Therefore, claimant has established prolonged exposure to
excessive noise levels. Moreover, the noise levels set out in
section 85B.5 are presumptive only. They do not constitute
minimum levels at which a noise level will be viewed as
excessive. Muscatine County v. Morrison, 409 N.W.2d 685 (Iowa
1987; Weyant v. John Deere Dubuque Works, file number 801718
(App. Dec. February 22, 1988). Prolonged exposure at lower
decibels may constitute an excessive noise level.
It has often been held that prolonged exposure during a
person's adult working lifetime to noise levels in excess of
those shown in section 85B.5 constitute an occupational hearing
loss. Koster v. John Deere Dubuque Works, file number 806022
(April 30, 1987); Croft v. John Morrell & Co., file number 804211
(June 17, 1987); Kautz v. John Morrell & Co., file number 815285
(June 17, 1987); Bisgard v. John Morrell & Co., file number
805242 (January 21, 1988); Bland v. John Morrell & Co., file
number 805241 (January 19, 1988); Slingerland v. John Morrell &
Co., file number 805240 (January 19, 1988).
On October 16, 1989, Dr. Plakke found that claimant's
responses were reliable and showed a moderate to severe
sensorineural hearing loss bilaterally (ex. 2-32).
On April 11, 1990, Michael W. Hill, M.D., an
otolaryn-gologist at the Wolfe Clinic, stated that his
audiometric evaluation revealed a severe high frequency
sensorineural hearing loss bilaterally with the left ear
significantly more impaired than the right ear. He said that a
large component of this hearing loss was noise induced, but he
could not explain the difference for the greater loss in the left
ear based on noise. He recommended a hearing aid for better
hearing (ex. 2-18).
E.L. Grandon, M.D., an otolaryngologist, examined claimant
on October 15, 1991, and found that claimant sustained a severe
sensorineural hearing loss much worse on the left than on the
right. He testified that claimant's hearing loss can be
attributed in great part to his exposure to noise while employed
for 29 years at the John Deere plant (ex. 1-1).
Thus, claimant has proven by a preponderance of the evidence
that he sustained a sensorineural loss of hearing in both ears
caused by noise which arose out of and in the course of employ
ment caused by prolonged exposure to excessive noise levels. It
will be seen that this loss exceeds 25 decibels in the next
section of this decision.
Some of the common causes of nonemployment hearing loss are
ruled out in this case for the reason that claimant has never
performed any military service, there is no family history of
hearing loss, claimant has never farmed, claimant has never snow
mobiled or worked with woodworking tools. He did hunt some in
his earlier years once or twice a season with his sons-in-law,
Page òòò 17
but his exposure to loud noise from hunting would be minimal.
Dr. Grandon said claimant denied any childhood hearing difficulty
or ear infections. He stated that claimant never used a chain
saw (ex. 1-3). Dr. Hill of the Wolfe Clinic stated that claimant
has had minimal recreational exposure (ex. 2-18).
Defendant maintained that claimant's occupational hearing
loss claim should be denied because (1) Dr. Hill at the Wolfe
Clinic could not explain the difference between the right ear and
the left ear on the basis of noise exposure (ex. 2-18);
(2) employer records in 1981 indicated that claimant had a
preexisting loss dating back to 1958; and (3) claimant used
hearing protection at work and therefore, his loss occurred
primarily outside of his employment. These reasons are contained
in a memorandum from Dr. Bendixen to Mr. Treiber dated April 19,
1990 (ex. 2-19). Shortly thereafter on April 27, 1990, Treiber
sent his final denial letter to claimant denying the claim on the
basis that claimant had not sustained a work-caused occupational
hearing loss (ex. 2-16).
Employer's medical records contain a notation by Dr. R.D.
Acker dated September 8, 1977, when claimant requested his first
audiogram. Dr. Acker noted that claimant thought he had a simi
lar audiogram with severe high tone loss in the left ear about 10
years ago by a private physician (ex. 2-25). In addition,
another company medical notation, dated June 2, 1980 prepared by
S.L. Casta at the time of that audiogram, noted that claimant saw
a private physician in 1958 for chiruping in his right ear which
started even before 1958 while driving a diesel truck with a
screaming supercharged engine (ex. 2-24). Dr. Casta repeated
this information at the time of the August 3, 1981, audiogram.
Dr. Casta added that claimant was told by the private physician
in 1958 that he had damage in the inner ear (ex. 2-23). Claimant
denied any noise exposure from his previous employments as a
delivery truck driver and routeman for various employers (tr. p.
54). He denied any loud exposure from recreational activities
(tr. pp. 55-56).
On cross-examination, claimant acknowledged that in-between
his temporary and permanent employment with John Deere between
1955 and 1958, he did drive a truck on a temporary basis and made
one or two trips into Chicago with the truck that made a loud
engine noise. It was not a long-term job (tr. pp. 108-111).
Claimant acknowledged that he did see a private physician
for noises, more specifically, ringing in his ears in possibly
1958, but denied that he had seen a physician for any loss of
hearing. Claimant further denied that he used the word chiruping
and stated that was the doctor's terminology not his (tr. pp.
112-118). Claimant had no recollection of stating that he had
damage to his inner ear (tr. p. 115). Claimant said that he saw
the doctor for noises, not hearing loss. The doctor did not pre
scribe a hearing aid at that time for hearing loss (tr. p. 123).
Claimant stated the problem with his ear or ears at that time was
an infection and that it was only temporary (tr. p. 124).
Thus, defendant has alleged a hearing loss prior to employ
ment with employer based on company medical records prepared by
company doctors who focused on outside causes for claimant's
Page òòò 18
hearing loss rather than the extremely high decibel exposures
that claimant was exposed to eight or more hours per day, five or
six days per week while claimant was working for employer.
Claimant disputed these entries made by Dr. Acker and Dr. Casta
and the terminology that the doctors chose to use. If claimant
did, in fact, have a significant loss of hearing prior to his
employment, then it would seem that the private physicians would
have prescribed a hearing aid for claimant at that time. Like
wise, if the doctor felt claimant was losing his hearing he would
have scheduled another re-test at a later date. Claimant testi
fied that no hearing aid was prescribed. Claimant's testiomony
that his hearing loss first began between 1961 and 1969 is deter
mined to be the best evidence of when his hearing loss began. It
comports best with all of the other evidence in this case.
Claimant has established a prima facie case that he did
sustain a sensorineural noise induced hearing loss which was
caused by his employment. The innuendos suggested by Dr. Casta
in the employer's medical record are not sufficient to rebut the
overwhelming prima facie case established by claimant by the
noise level surveys and his testimony and the testimony of
Conrad.
Furthermore, if defendant seeks an apportionment of the
loss, the burden of proof is upon the employer to show the exis
tence and extent of any preexisting disability or else the entire
disability is attributed to the current defendant. Varied
Enterprises v. Sumner, 353 N.W.2d 407 (Iowa 1984); Becker v. D &
E Easy Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); Rule
14(f)(5) Iowa Rules of Appellate Procedure.
Moreover, Iowa Code section 85B.11 provides that if there is
a preexisting hearing loss, the employer is liable for the dif
ference between the percent of occupational hearing loss deter
mined as of the date of the audiometric examination used to
determine occupational hearing loss and the percentage of loss
established by the preemployment audiometric examination. In
this case, there is no preemployment audiometric examination.
Iowa Code section 85B.11 is an affirmative defense and the
burden of proving an entitlement to a reduction rests on the
employer. The generally accepted proposition is that the burden
of proving anything rests on the proponent and this rule has been
applied to administrative proceedings [Rule 14(f)(5) Iowa Rules
of Appellate Procedure; Wonder Life Company v. Liddy, 207 N.W.2d
27 (Iowa 1973); Henderson v. John Morrell and Co., file number
825137 (Nov. 20, 1987); Lilly v. PLM Railcar Maintenance Co.,
file number 865324 (Dec. 22, 1989)]. In this case, defendant has
not introduced any evidence which established that claimant did,
in fact, have any hearing loss prior to his employment with
employer, and secondly, if he did have such a loss, the extent of
it has not been established.
The fact that Dr. Hill cannot explain a greater loss in the
left ear on the basis of noise was explained by claimant and
Conrad in their testimony at the hearing. Dr. Hill's consterna
tion may be influenced by the fact that he was the second evalua
tor hired by employer to produce evidence to defend this case.
The fact that claimant continued to suffer hearing loss even
Page òòò 19
though he was wearing double ear protection, may well be ex
plained by the fact that the company sound engineer told claimant
that he was working in an environment of 120 decibels when he was
testing road grader transmissions just prior to his retirement.
Claimant agreed that hearing protection does muffle the noise,
but it was still possible to hear the noise. It is entirely
possible that the high decibels of noise exposure which claimant
received over his adult working lifetime for employer for over 29
years, could have caused continued hearing loss in spite of the
fact that claimant was wearing hearing protection. Considering
the extremely high decibels to which claimant was exposed to for
8 to 12 hours per day and five or six days per week for 29 years,
it is not unreasonable that he could suffer hearing impairment
even though he wore hearing protection. The evidence of noise
exposure outside of claimant's employment is extremely minimal.
No other hearing disease was established by employer.
Wherefore, it is determined that claimant has sustained an
occupational hearing loss which is a permanent sensorineural
hearing loss in both ears in excess of 25 decibels which arose
out of and in the course of employment with employer which was
caused by prolonged exposure to excessive noise levels.
EXTENT OF DISABILITY
It is determined that claimant has sustained a total
binaural hearing loss of 64.0625 percent and is entitled to
112.10937 weeks of occupational hearing loss compensation.
Iowa Code section 85B.9 specifies that if more than one
audiogram is taken following the notice of an occupational
hearing loss claim, the audiogram having the lowest threshold
shall be used to calculate occupational hearing loss. In this
case, there were four audiograms taken after the time when
claimant notified Treiber in the summer of 1989 that he wished to
file his claim within two years after his retirement for an
occupational hearing loss.
The first audiogram was performed by P. Kramer at John Deere
on September 21, 1989, and based on the figures used, indicates a
binaural hearing loss of 62.1875 percent. This audiogram cannot
be used for two reasons. First, the qualifications of the person
performing the test are not shown anywhere in the record and Iowa
Code section 85B.9 specifies that audiometric examinations shall
be made by a person with certain qualifications. The qualifica
tions of the person performing the John Deere test are unknown.
Secondly, the John Deere audiogram did not give readings below 90
decibels whereas the other three audiograms do give readings be
low 90 decibels and for that reason the calculated binaural
hearing loss, based on the John Deere examination, is artifi
cially too low. For these reasons, the John Deere audiogram is
not considered to be the lowest and is not used in the determina
tion in the amount of occupational hearing loss in this case.
The Wolfe Clinic audiogram was either performed by or under
the supervision of an otolaryngologist, Dr. Hill, but it resulted
in the highest percent of binaural hearing loss, to wit, 77.1875
percent. There was no explanation why the Wolfe Clinic audiogram
of Dr. Hill was inordinately higher than the others unless it was
trying to make a case that claimant's loss was higher after he
Page òòò 20
was removed from the high noise environment in an attempt to
suggest that something other than employment was causing his
hearing loss. Pottebaum v John Deere, Dubuque Works, file number
954480 (App. Dec. 7-13-92).
Dr. Plakke is a Ph.D., and his letterhead shows that he is a
licensed audiologist and his calculated binaural hearing loss is
65.9375 percent and is not the lowest percent of loss.
The lowest percent of loss was established by Dr. Grandon or
an audiologist under his supervision, and Dr. Grandon, like Dr.
Hill, is an otolaryngologist. Dr. Grandon's determination of
loss is 64.0625 which is fairly close to the determination of Dr.
Plakke. Differences can occur because of differences in the
examiner, examinee, equipment, and technique employed on any
given day or time.
Iowa Code section 85B.6 states that the maximum compensation
is 175 weeks for a total occupational hearing loss and that a
partial loss is payable for a period proportionate to the rela
tion which the calculated binaural hearing loss bears to an
allowable total loss of hearing of 175 weeks.
Dr. Grandon's percent of binaural hearing loss is .640625 x
175 weeks and equals 112.10937 weeks times the stipulated rate of
$486.82 and results in a total award of $54,577.08.
HEARING AID
Iowa Code section 85B.12 provides that an employer who is liable
for occupational hearing loss of an employee is required
Page òòò 21
to provide the employee with a hearing aide unless it will not
materially improve the employee's ability to hear.
Claimant testified that he first acquired a hearing aide on
November 20, 1982, and has purchased two other upgraded and more
efficient hearing aids since then (ex. 8). Thus, a hearing aide
does materially improve claimant's hearing and claimant is
entitled to a hearing aid pursuant to section 85B.12.
Dr. Hill recommended a hearing aid.
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following principles
of law, these conclusions of law are made:
That this action was not commenced within two years of the
occurrence of the occupational hearing loss as required by Iowa
Code section 85B.14 and Iowa Code section 85.26(1), but that
defendant is equitably estopped from asserting the statute of
limitation. Paveglio, 167 N.W.2d 636, 638-39; DeWall, 224 N.W.2d
428; Carter, 373 N.W.2d 524; Veach, Vol. I no. 1 State of Iowa
Industrial Commissioner Decisions 246; Jacobsen, Thirty-second
Biennial Report of the Industrial Commissioner 111; Hartzler,
file number 716000.
That claimant did sustain an occupational hearing loss which
is a permanent sensorineural loss of hearing in both ears in
excess of 25 decibels which arose out of and in the course of
employment with employer which was caused by prolonged exposure
to excessive noise levels. Iowa Code sections 85B.4 and 85B.5.
That claimant has sustained a 64.0625 percent occupational
hearing loss and is entitled to 112.10937 weeks of occupational
hearing loss compensation at the stipulated rate of $486.82 in
the total amount of $54,577.08.
That paragraph 1a of section 9.1b of the Guides to the
Evaluation of Permanent Impairment, third edition, which indi
cates that frequencies greater than 100 decibels shall be taken
as 100 decibels (ex. 11) is not applicable in Iowa for the reason
that rule 343 IAC 2.4 of the Iowa Administrative Procedure Act
provides that the Guides are adopted as a guide for determining
permanent partial disabilities under Iowa Code section 85.34(2)
sections a through r. The Guides have not been adopted for
application to occupational hearing loss cases. Iowa Code
section 85B.9 specifies how hearing loss is to be measured and
places no limitation on readings in excess of 100 decibels.
ORDER
THEREFORE, IT IS ORDERED:
That defendant pay to claimant one hundred twelve point one
zero nine three seven (112.10937) weeks of occupational hearing
loss compensation at the stipulated rate of four hundred
eighty-six and 82/100 dollars ($486.82) in the total amount of
fifty-four thousand five hundred seventy-seven and 08/100 dollars
($54,577.08) commencing on September 30, 1987, as stipulated to
Page òòò 22
by the parties.
That this amount is to be paid in a lump sum.
That interest will accrue pursuant to Iowa Code section
85.30.
That defendant either purchase or reimburse claimant for a
suitable hearing aid for claimant's condition.
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 defendant pursuant to and Iowa Code
sections 86.40 86.19(1) and rule 343 IAC 4.3. Claimant is also
entitled to the filing fee with the industrial commissioner in
the amount of sixty-five ($65) and the report of Dr. Grandon in
the amount of seventy-five ($75) for a total amount of one
hundred forty dollars ($140). Claimant is not entitled to the
copy fee in the amount of seventy-two and 45/100 dollars ($72.45)
in order to secure a copy of claimant's deposition.
That defendant file claim activity reports as requested by
this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of July, 1992.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Robert Fulton
Attorney at Law
First National Bldg, 6th Floor
E 4th and Sycamore
PO Box 2634
Waterloo, Iowa 50704-2634
Mr. John Rathert
Attorney at Law
PO Box 178
Waterloo, Iowa 50704-0178
2402 1403.30 2901 2102
51108.50 51401 2208 51803
Filed July 24, 1992
Walter R. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
EUGENE FIKE, :
:
Claimant, : File No. 946021
:
vs. :
: A R B I T R A T I O N
JOHN DEERE WATERLOO WORKS, :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
2402 1403.30 2901
Claimant failed to commence an action by filing an original
notice and petition for an occupational hearing loss within
two years after his retirement.
2102
Claimant strictly proved the four elements of equitable
estoppel and employer was equitably estopped from asserting
the statute. Cites.
Near the end of the filing period, claimant announced his
intention to employer to file a claim for occupational
hearing loss before the expiration of the two-year period of
limitations. Employer set claimant on a course of
investigation and concealed the fact that when claimant had
completed the additional audiograms and evaluations, that
the time for commencing an action would have expired. Thus,
employer used the period of investigation after the statue
had expired to accumulate evidence to attempt to deny the
claim on the merits and irrespective of what the
investigation revealed, claimant finally would still be
barred from bringing an action due to the expiration of the
statutory period for commencing an action. Until the claim
was finally denied, employer implied the claim was under
consideration for payment.
Two other retired employees testified that employer did
essentially the same thing to them.
Even after the statute had expired and employer had sent the
first denial letter to claimant, the employer then reversed
the decision and requested claimant to obtain another
audiogram implying that his claim would still possibly
receive favorable consideration.
Page 2
Employer's conduct could possibly be the subject of an
investigation by the insurance commissioner pursuant to Iowa
Code section 507B.3.
The proper insurance industry practice under the
circumstances would have been to investigate the claim under
a nonwaiver agreement.
51108.50 51401 2208
Claimant proved occupational hearing loss by the
overwhelming evidence through noise level reports,
audiograms over the years, a coemployee, and his own
testimony. Outside exposures were minimal. Plant exposures
were humongous.
51803
The first audiogram taken by employer after notice of claim
could not be used even though it was the lowest rating
because the qualifications of the person who took the test
were not in evidence and because the rating did not record
values below a 90 decibel loss.
Claimant's evaluator was the lowest acceptable rating and it
was close to an independent rating requested by employer.
Employer's last audiogram and evaluation was inordinately
higher than all of the others and was suspect for that
reason.
Award amounted to $54,477.08 plus a suitable hearing aid.
The AMA Guides could not be used to throw out decibel levels
below 100 decibels because rule 343 IAC 2.4 provides that
the AMA Guides apply only to injuries under Iowa Code
section 85.34(2) a-r. The AMA Guides have not been adopted
for hearing loss cases in Iowa. Hearing loss is measured by
Iowa Code section 85B.9.
The burden of proof of a preexisting hearing loss to reduce
benefits or an apportionment of loss is upon the employer.
Employer failed to prove preexisting loss by a preponderance
of the evidence and wa dheld liable for the entire loss.
Page 1
before the iowa industrial commissioner
____________________________________________________________
_____
:
ROBERT SOUKUP, :
:
Claimant, :
:
vs. :
: File Nos. 927412/946025
D and S SHEET METAL, INC., :
:
Employer, :
:
and : A P P E A L
:
SECURA INSURANCE CO., :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
____________________________________________________________
____
:
ROBERT SOUKUP, :
:
Claimant, :
:
vs. :
: File No. 858701
MARESH SHEET METAL WORKS, :
:
Employer, :
:
and : D E C I S I O N
:
HAWKEYE SECURITY, :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
____________________________________________________________
____
The record, including the transcript of the hearing before
Page 2
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed May 1, 1991 is affirmed and is adopted as the final
agency action in this case.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of December, 1991.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert Rush
Attorney at Law
526 2nd Ave. SE
Cedar Rapids, Iowa 52406
Mr. David Mason
Mr. Mark Fransdal
Attorneys at Law
315 Clay St.
P.O. Box 627
Cedar Falls, Iowa 50613
Ms. Shirley A. Steffe
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg.
Des Moines, Iowa 50319
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
ROBERT SOUKUP, :
:
Claimant, :
:
vs. :
: File Nos. 927412 & 946025
D and S SHEET METAL, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
SECURA INSURANCE CO., :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
____________________________________________________________
_____
:
ROBERT SOUKUP :
:
Claimant :
:
vs. : File No. 858701
:
MARESH SHEET METAL WORKS, :
:
Employer, : A R B I T R A T I O N
:
and :
: D E C I S I O N
HAWKEYE SECURITY, :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
___________________________________________________________
statement of the case
This is a proceeding in arbitration brought by Robert
Soukup as a result of injuries to his shoulder which
Page 2
occurred on May 5, 1989, his knee which occurred on July 2,
1987 and his neck which occurred on May 14, 1990. Defendant
Second Injury Fund of Iowa is a party in file numbers 858701
and 927412 and has denied liability. Defendant D and S
Sheet Metal is a party in File numbers 927412 and 946025 and
has denied liability, but has paid some weekly benefits and
medical expenses. In file number 858701, the employer
Maresh Sheet Metal Works and insurance carrier Hawkeye
Security settled their liability by agreement for settlement
filed October 12, 1990, and they are no longer parties to
this action.
The case was heard and fully submitted at Des Moines,
Iowa, on March 19, 1991. The record in the proceeding
consists of claimant's exhibits 1 through 4, employer's
exhibits A through X, testimony from claimant, Judith
Soukup, Richard Duncalf, Mark DeRycke and Chad Sherwood.
issues
The issues presented for determination in file number
858701 are as follows:
1. Second injury fund liability;
2. Iowa Code section 85A;
3. Odd-lot; and
4. Taxation of costs.
Issues presented for determination in file number
927412 are as follows:
1. Whether claimant sustained an injury to his right
shoulder on May 5, 1989, arising out of and in the course of
employment with employer;
2. Causal connection to temporary disability;
3. Casual connection to permanent disability and the
extent of industrial disability;
4. Weekly rate of compensation;
5. Defense of Iowa Code section 85.23;
6. Defense of Iowa Code section 85.26
7. Iowa Code section 85.27 benefits;
8. Chapter 85A benefits;
9. Odd-lot;
10. Second injury fund liability;
11. Commencement date for payment of second injury fund
benefits; and
Page 3
12. Taxation of costs.
Issues presented for determination in file number
946025 are as follows:
1. Whether claimant sustained an injury to his neck on
May 14, 1990, which arose out of and in the course of
employment with employer;
2. Employer-employee relationship;
3. Causal connection to temporary disability and the
extent of temporary disability;
4. Causal connection to permanent disability and the
extent of industrial disability;
5. Weekly rate of compensation;
6. Defense of Iowa Code section 85.23;
7. Defense of Iowa Code section 85.26;
8. Iowa Code section 85.27 benefits;
9. Chapter 85A benefits;
10. Odd-lot;
11. Commencement date for payment of permanent partial
disability benefits; and
12. Taxation of costs.
findings of fact
Having considered all the evidence received the
following findings of fact are made:
Claimant, Robert Soukup, was born on June 26, 1933. He
dropped out of high school in the ninth grade, but completed
his GED while in the military. Claimant went into the
service at age 19 and served from June of 1953 through May
of 1955. After leaving the service claimant went to work
for Rath Packing Company, a job which he had performed prior
to entering the service. Claimant was a production worker
for the meat packing business. Claimant worked as a meat
packer from about 1955 until mid-1962.
After leaving Rath Packing Company, claimant worked for
Culligan Water Softener Company. He then went back to work
as a meat cutter in Marion, Iowa, for about a year and later
became a fireman trainee.
In November of 1966, claimant went to work for
Universal Climate Control as a sheet metal worker and had
been so employed in the craft until May of 1989.
Claimant described a health history which consisted of
a large number of orthopedic problems. Claimant's history
Page 4
of injuries ranged from spinal injuries to injuries to the
lower extremities and upper extremities combined with
headaches. Claimant also revealed that he had a mild
history of ulcers.
Claimant reported that he had a surgery to his neck in
the early 1970's. After the surgery, he went back to
perform sheet metal work in Iowa and continued performing
that work without restrictions.
Claimant describes his job as a sheet metal worker as
one of heavy manual labor. Claimant stated that his duties
consist of hanging air ducts which connect heating and
cooling units in both residential and commercial properties.
The tools that claimant worked with consisted of hammers,
screwdrivers, tin snips and roto drivers. Weights lifted
averaged 20 to 30 pounds, but went up to 50 to 75 pounds.
Claimant described his usual lifting as nothing typical.
Each job would have a different lifting requirement.
Performing duct work required extensive overhead use of the
arms and shoulders.
As a sheet metal worker claimant also performed
exterior work which consisted of installing siding and
gutters on the exteriors of buildings. Claimant stated that
the sheet metal work required extensive use of shoulders and
arms repetitively and use of all parts of the body.
In 1980, claimant sustained a rotator cuff tear to his
left shoulder which resulted in surgery. This injury
resulted in a permanent partial impairment of 9 percent to
Page 5
the body as a whole or 15 percent to the left upper
extremity (exhibit 1a, page 15 and ex. 1b, p. 39). It is
found that the 1980 injury to the left shoulder resulted in
a loss of use of the left upper extremity to the extent of
15 percent permanent partial disability.
Claimant returned to work after the shoulder injury to
perform his usual services in the sheet metal craft.
Claimant reported that after the left shoulder injury
residual symptoms existed in that he had less strength and a
loss of range of motion.
Claimant incurred another injury in about 1983 to the
left foot. Claimant stated that he had pain between two
toes which was diagnosed as Morton's neuroma. Surgery was
performed by Albert R. Coates, M.D. Residual numbness and
loss of sensation remained in the foot after the surgery.
Claimant described the residual effects as tolerable.
Claimant incurred 3 percent impairment to the left lower
extremity as a result of the injury and resulting surgery
(ex. 1a, p. 11; ex. 1b, p. 15). It is found that claimant
sustained a loss of use of the left foot as a result of the
1983 left foot injury. The evidence indicates that the left
foot impairment lies within the foot as opposed to the lower
extremity, as shown by the situs of the injury which was
located between the web space of the toes. No evidence was
presented which demonstrated impairment that went beyond the
ankle.
Having considered all the evidence presented; including
the medical records, claimant's testimony and having
consulted the AMA Guides to the Evaluation of Permanent
Impairment; it is found that claimant sustained 4 percent
permanent partial disability to the left foot as a result of
the 1983 injury.
On July 2, 1987, claimant sustained an injury to his
right knee while employed by Maresh Sheet Metal Works, Inc.
Claimant settled that claim under an agreement for
settlement with Maresh Sheet Metal and its insurance carrier
Hawkeye Security on October 12, 1990. Claimant agreed to a
7 1/2 percent impairment of his right knee as a result of
that injury. John R. Walker, M.D., had rated the impairment
as 10 percent to the right lower extremity (ex. 1a). Dr.
Coates had rated the impairment as 5 percent of the right
lower extremity (ex. 1b, p. 42). It is found that as a
result of the July 2, 1987, injury, claimant sustained a 7
1/2 percent loss of use of the right lower extremity.
Subsequent to the right knee injury, claimant returned
to the sheet metal craft in 1987 and continued working for
contractors in the Cedar Rapids area.
In 1988, claimant started to experience shoulder
problems. Claimant had been working for defendant, D and S
Sheet Metals intermittently since 1986. Claimant was laid
off by D and S Sheet Metal in the winter of 1988 and did
other work for a company called Novak Heating. In March of
1989, claimant went back to work for D and S Sheet Metal.
Claimant continued on with this work for D and S Sheet Metal
Page 6
until early May 1989 when he was admitted for right shoulder
surgery.
Claimant stated that the repetitive nature of his work
as a sheet metal worker for D and S caused pain to occur in
his right shoulder. The pain prevented claimant from
returning to employment on or about May 3, 1989. Surgery
was performed on claimant's right shoulder on May 5, 1989.
During the months of March, April and May of 1989, claimant
was performing duties for employer consisting of flashing,
guttering and hanging downspout work. Claimant stated that
subsequent to his return to D and S Sheet Metal in March
1989 both shoulders started to hurt on the first day of
work. The pain in claimant's shoulders continued to
increase during the following months until the surgery of
May 5, 1989.
Subsequent to the right shoulder surgery, claimant went
to physical therapy for treatment for the right shoulder
injury. After a long period of convalescence, claimant was
discharged from care for the right shoulder injury. Dr.
Coates was claimant's treating physician and he assigned a 9
percent impairment rating to the body as a whole for the
right shoulder injury (ex. 1b, p. 43). Dr. Walker rated
claimant's right shoulder impairment as 14 percent to the
body as a whole. It is found that Dr. Coates' assessment of
impairment is correct as he has been claimant's treating
physician since 1978 for orthopedic problems. Dr. Coates'
familiarity with claimant's overall health situation leads
to the conclusion that his assessment of impairment and
opinions are more credible than those given by Dr. Walker
who saw claimant on only one occasion. It is also found
that claimant sustained a loss of use of the right upper
extremity amounting to 15 percent permanent partial
disability (ex. 1b, p. 39).
Claimant has also alleged that he incurred an injury on
May 14, 1990, which aggravated his preexisting spine
condition. Claimant testified that after receiving
extensive therapy in 1989 for treatment of his right
shoulder injury that he started experiencing cervical
problems. Dr. Coates was of the opinion that the cervical
problems were not linked to claimant's employment (ex. 1b,
p. 18; ex. W, pp. 43 & 44).
Dr. Walker performed an independent examination on June
19, 1990, which was offered as claimant's exhibit 1a. In
the text of his lengthy opinion, Dr. Walker came to the
conclusion that claimant's preexisting cervical spondylosis
was aggravated by work activities performed for defendant
employer.
As previously stated, Dr. Coates' opinions and
assessments are found to be more credible than those offered
by Dr. Walker in that Dr. Coates has been claimant's
treating surgeon since about 1978. Dr. Walker appears to
have seen claimant only during the year 1990. Dr. Coates'
extensive history with claimant's multiple problems leads to
the conclusion that his opinions are more credible and more
Page 7
accurate than those offered by Dr. Walker. Dr. Coates'
opinion concerning the alleged aggravation of claimant's
cervical condition by employment activities is found to be
correct.
Claimant applied for and received social security
disability as a result of his inability to perform gainful
employment. Claimant has also applied for and received
disability benefits through his union due to his inability
to perform sheet metal work. At the time of hearing,
claimant was receiving approximately $665 per month from the
sheet metal workers' plan and $80 per month from social
security disability along with $397.12 per week from
defendant insurance company. The sheet metal worker
benefits started in May of 1990.
Claimant stated that he has not applied for any jobs
subsequent to May of 1989. He has also failed to request
vocational rehabilitation assistance from employer and or
retraining from employer. Claimant had testified in
December of 1990, at his deposition, that he felt that he
could drive a truck. At the time of hearing, claimant
stated that he felt he could drive a truck, but that he
could not do it all day long.
Judith Soukup testified that she is claimant's wife of
23 years. She stated that claimant has not worked since the
spring of 1989. She stated that he has had increased
discomfort over the last years with his shoulders. She
stated that minor tasks around the house are difficult
because of the pain that he experiences in his shoulders and
back.
Mark DeRycke testified that he has worked for D and S
Sheet Metal for almost five years. His father-in-law owns D
and S Sheet Metal. Mark stated that he is a shop foreman at
this time, but was an apprentice during the period that
claimant worked for employer. He stated that he worked with
claimant for about one to two years on and off. He stated
that as an apprentice he was a helper to the journeyman.
The apprentice would do the menial tasks while the
journeyman would attend to the more difficult task of laying
out the work. He described flashing work as being very easy
work when compared to performing overhead duct work. He
also testified that claimant discussed retirement as did
most of the employees who were over 40 years of age. He
stated that claimant had calcium deposits on his elbows
which he complained about. DeRycke could recall no other
injuries which claimant incurred on the job.
Chad Allen Sherwood testified that he has worked for
employer for about three years. He installs duct work,
flashing, and does general sheet metal apprentice work. He
also worked as an apprentice to claimant during the period
in question. He stated that he learned of the shoulder
injury after claimant had left work in May of 1989. He
stated that as an apprentice he would perform much of the
heavy manual labor while the journeyman would perform the
skillful work. He stated that claimant had often complained
Page 8
of being stiff in the mornings when he would come to work.
Sherwood recalled claimant stating that his knees would
become sore after a full day of work. He recalled no other
statements concerning pain or injuries associated with work
which were made by claimant. Sherwood also testified that
the average work week is 40 hours. He stated that in the
winter months the number of hours worked will quite often be
less.
Richard Duncalf testified that he is the owner of D and
S Sheet Metal. He started the company five years ago. He
testified that his company performs sheet metal work for
both industrial and commercial properties. He stated that
he had hired claimant several times over the years prior to
May of 1989. He stated that 60 to 70 percent of the work
performed by claimant would be exterior sheet metal work.
He was unable to remember what claimant did for the last
several months of work at his place of employment. Duncalf
described claimant as a good field man who always had his
job completed in less hours than were allotted. Duncalf
stated that even during the last few weeks of employment
claimant had not lost his efficiency with respect to
performing his sheet metal work.
Duncalf stated that he had no memory of shoulder
complaints made by claimant while on the job. Duncalf
stated that the first he knew of claimant's shoulder
complaints was a few days before the surgery of May 5, 1989.
Duncalf stated that once he learned of the surgery he
instructed the appropriate personnel to complete a first
report of injury and mail it to the insurance carrier. That
first report of injury was evidently lost as it was not
contained in the industrial commissioner's file or in
defendants' records.
Duncalf stated that during the early months of 1989 his
workers were not performing a full 40 hours of work per
week. He stated that in April of 1989 they would have began
increasing the number of hours worked in order to get closer
to 40 hours per week.
On cross-examination Duncalf stated that the first
report of injury was prepared by his people about three days
before the shoulder surgery. Duncalf stated that the hourly
wage used for preparing the first report was $17.12 per hour
as that was claimant's wage at the time of the alleged
injury in May 1989.
Claimant has alleged in file number 946025 that he
incurred an injury to his cervical spine on May 14, 1990,
arising out of and in the course of employment with
employer. Claimant contends that he had a preexisting
cervical spine condition which was aggravated as a result of
work activities performed for defendant employer. Claimant
has the burden of proving by a preponderance of the evidence
that the aggravation of his condition was caused by work
performed for employer. It is found that claimant has
failed to prove by a preponderance of the evidence that his
cervical spine condition was aggravated by his employment
Page 9
activities for employer. The reasoning follows:
Claimant's cervical spine symptoms did not first appear
while claimant was still working for employer. Instead, the
symptoms first occurred many months after claimant had left
employer's employment. Second, Dr. Coates was of the
opinion that the aggravation of the cervical spine condition
was a possibility and not a probability. As previously
stated, Dr. Coates' opinions are found to be more credible
and correct. Dr. Coates' statement that the cervical spine
pain is the result of a degenerative process not related to
work is convincing (ex. W., pp. 43 & 44). The resulting
conclusion is that claimant has failed to bring forth
sufficient credible medical evidence which proves that his
cervical spine condition was aggravated by work for
employer. Claimant has failed to prove by a preponderance
of the evidence that he sustained an injury on May 14, 1990,
arising out of and in the course of employment with
employer. Resolution of this issue is dispositive of all
other issues with the exception of taxation of costs which
will be addressed later in this decision.
Claimant has filed a petition in file number 858701
alleging an injury to the right knee arising out of and in
the course of employment with employer, Maresh Sheet Metal,
on July 2, 1987. Defendants employer and insurance carrier
settled their claim with claimant with an agreement for
settlement and are no longer necessary parties to this
proceeding. The second injury fund remains as the sole
defendant in this file number.
In order to prove liability for second injury fund
benefits, claimant must establish that he had a loss of use
of a scheduled member in this file number. Claimant has
carried his burden in proving by a preponderance of the
evidence that he sustained a loss of use of his right lower
extremity in 1987 amounting to 7 1/2 percent permanent
partial disability. Pursuant to Iowa Code section
85.34(2)(o) the fund is entitled to a credit of 16.5 weeks
of benefits for the loss of use of the right lower
extremity.
Claimant must also prove a preexisting loss of use of
an appropriate scheduled member. In 1980, claimant
sustained an injury to his left shoulder which resulted in a
loss of use of the left upper extremity amounting to 15
percent permanent partial disability. This injury becomes
part of the equation notwithstanding the fact that it was a
body as a whole injury. Iowa Code section 85.64 states only
that a loss of use must be found in order to establish fund
liability. It is apparent that the left shoulder injury
resulted in a loss of use of the left upper extremity.
Therefore, the loss of use of the left upper extremity must
be used as part of the second injury fund calculation. The
fund is entitled to a 15 percent credit for the 1980 left
upper extremity which amounts to 37.5 weeks of benefits
under Iowa Code section 85.34(2)(m).
In the case at hand, claimant has established a prior
Page 10
loss of use of another qualifying scheduled member under
Iowa Code section 85.64. The evidence presented established
that claimant sustained a left foot injury in 1983 which
resulted in 4 percent permanent partial disability to his
foot. All prior losses of applicable scheduled members must
be factored in when determining second injury fund
liability. In the case at hand, the fund is entitled to a
credit resulting from the 4 percent permanent partial
disability for the 1983 left foot amounting to six weeks of
benefits under Iowa Code section 85.32(2)(n).
All totaled, the fund is entitled to 60 weeks of credit
for scheduled member disability stemming from the 1987 right
lower extremity injury, the 1980 left upper extremity and
the 1983 left foot injury.
The next determination is the extent of industrial
disability which stems from the three previously discussed
injuries. Factors to be considered when assigning
industrial disability include claimant's age, education,
experience, work history and impairment. Claimant was age
54 at the time of the 1987 knee injury and in the prime of
his working life. Claimant dropped out of the ninth grade
of high school, but completed his GED while in the military.
He had no other formal education beyond his GED. Claimant's
work history is primarily that of a skilled and also
unskilled manual laborer. The three injuries in question
did not appear to impose severe work restrictions upon
claimant which precluded him from returning to work in the
same line of work that he had previous training and
experience. Subsequent to each of the three injuries,
claimant was able to return to his chosen avocation of sheet
metal work and perform the services required of him. The
impairment ratings issued by the doctors do indicate
residual symptoms. As a manual laborer, claimant was
required to perform work with his hands, arms, legs and
feet. Residual disability located in claimant's upper
extremity along with one lower extremity and one foot would
definitely have an impact upon claimant's ability to perform
manual labor. The surgeries and resulting disability put
claimant in a position of being less competitive in the open
job market when competing with younger, healthier and better
educated manual laborers.
Having considered all the material factors and all the
evidence presented, it is found that as a result of the
right lower extremity injury of 1987, the left foot injury
of 1983, and the left shoulder injury of 1980, claimant
sustained 15 percent industrial disability and is entitled
to 75 weeks of permanent partial disability less 60 weeks of
scheduled member disability for a total of 15 weeks of
industrial disability under Iowa Code section 85.64.
The calculations are as follows:
15% x 500 = 75 weeks
minus 16.5 weeks (1987 right lower extremity)
minus 6.0 weeks (1983 left foot)
Page 11
minus 37.5 weeks (1980 left upper extremity)
TOTAL 15 weeks 858701 liability
The issue of occupational disease under Iowa Code
section 85A was raised as an issue by second injury fund.
It is found that the injury of July 2, 1987, was not an
occupational injury under that code section. The evidence
presented clearly revealed that the July 2, 1987, injury
came from a specific trauma as opposed to an occupational
disease.
The odd-lot doctrine was raised as an issue by claimant
with respect to second injury fund liability. In order to
prove odd-lot a worker must establish that an injury makes a
worker incapable of obtaining employment in any well known
branch of the labor market. In the case at hand, claimant
returned to work subsequent to his July 1987 injury in the
avocation for which he had previous training and experience
and continued to be so employed until May of 1989. Claimant
has clearly failed to meet his burden in proving that
subsequent to July 1987, he was not capable of employment.
Even if claimant had proven that his current
unemployment status is attributable to the 1987 knee injury
along with the 1983 left foot injury and the 1980 left upper
extremity injury, his request for odd-lot status would still
fail. Agency precedent indicates that if claimant has
failed to search for employment, he cannot make out a prima
facie case of odd-lot.
The issue of taxation of costs will be addressed later
in the decision.
The final issues concern file number 927412 wherein
claimant alleges an injury to his right shoulder arising out
of and in the course of employment with employer on May 5,
1989.
The issue of Iowa Code section 85A benefits concerning
occupational disease was raised as an issue by second injury
fund in file number 927412. It is found that this case is
not one which should be decided under chapter 85A as
claimant's shoulder injury is more appropriately
characterized as a cumulative trauma as opposed to an
occupational disease. Testimony at hearing and exhibits
offered indicate that claimant's right shoulder injury
resulted from repetitive microtrauma incurred while employed
in the sheet metal craft. Insufficient evidence has been
provided to prove by a preponderance of the evidence that
claimant's right shoulder injury should be litigated under
chapter 85A as an occupational disease. Instead, this case
is more appropriately characterized as one of repetitive
trauma under McKeever Custom Cabinets v. Smith, 379 N.W.2d
368, 374 (Iowa 1985).
The next issue concerns whether claimant sustained an
injury arising out of and in the course of employment with
employer on May 5, 1989. Defendants brought forth evidence
Page 12
which revealed that claimant was not working on May 5, 1989,
in that he was undergoing surgery for his right shoulder
problem. The evidence presented at hearing indicates that
claimant's last day of work with employer was on or about
May 2, 1989. Claimant's reliance on May 5, 1989, as a date
of injury does not cause his case to fail. The Iowa Supreme
Court has stated that selection of an injury date is
unimportant in a case where the evidence reveals another
date which is close in time was the actual injury date. See
Yeager v. Firestone Tire and Rubber Co., 253 Iowa 369,
373-74, 112 N.W.2d 299, 301 (1961). The cumulative trauma
doctrine set forth in McKeever indicates that the
appropriate injury date is the last day of work for
employer. In the case at hand, it was apparent that
claimant could not remember his last day of work for
employer and instead chose the date of surgery which was
within one week of his last day of work. It is found that
the date of surgery, which was May 5, 1989, is an
appropriate date of injury in a cumulative trauma case, if
claimant cannot specify the last day of work.
The issue central to this case concerns whether the
alleged cumulative trauma injury actually arose out of and
in the course of employment with employer. Claimant
testified that he worked as a sheet metal worker performing
repetitive tasks with his hands and arms. Some of the work
performed for employer required overhead work when
installing ducts. Much of claimant's work during the last
few months required repetitive use of his hands and arms
when installing flashing on the exterior parts of buildings.
The medical evidence clearly reveals that claimant had a
preexisting right shoulder injury which had plagued him for
years. However, the claim does not fail based on the fact
that the shoulder condition may have preexisted his
employment with employer. It is found that claimant
sustained an aggravation of a preexisting right shoulder
condition on or about May 5, 1989, arising out of and in the
course of employment with employer. The aggravation was
caused by the repetitive nature of claimant's tasks as a
sheet metal worker when employed by employer. It is also
found that the aggravation was material and caused the need
for a shoulder surgery which occurred on May 5, 1989.
The first issue to be addressed concerns employer's
affirmative defense of lack of notice under Iowa Code
section 85.23. Employer asserts that it did not have notice
of the right shoulder injury within 90 days of its alleged
occurrence. At hearing, Richard Duncalf that he was the
owner of D and S Sheet Metal. Duncalf stated that he filled
out a first report of injury on claimant's right shoulder
injury within a few days prior to the surgery of May 5,
1989. The testimony offered by Duncalf makes it clear that
employer was aware of an alleged right shoulder injury
occurring while claimant was employed by employer. It is
found that defendants have failed to prove the lack of
notice defense under Iowa Code section 85.23.
Defendants have also alleged the affirmative defense of
statute of limitations pursuant to Iowa Code section 85.26.
Under that code section claimant has two years to file from
Page 13
the date of injury and three years to file from the date of
injury if weekly benefits were paid. The prehearing report
and order approving the same indicates that weekly benefits
were paid in this case as late as January 25, 1990.
Claimant's petition was filed on November 14, 1989. It is
found that defendants have failed to prove that claimant
failed to file within the applicable statute of limitations
in that claimant filed within three years of the last
payment of weekly benefits.
The next issue to be decided concerns the causal
connection of the injury to a period of temporary
disability. The medical evidence presented by Dr. Coates
clearly indicates claimant sustained a prolonged period of
convalescence as a direct result of the right shoulder
surgery which occurred on May 5, 1989. The parties
stipulated that if the injury is found to be a cause of
temporary disability, that claimant is entitled to healing
period beginning May 5, 1989, through January 25, 1990. It
is found that the injury is a cause of healing period and
the stipulated period of disability is correct. Claimant is
entitled to healing period benefits beginning May 5, 1989,
through January 25, 1990, in file number 927412.
The next issue to be decided is whether the May 5,
1989, shoulder injury is a cause of permanent disability.
Both Dr. Coates and Dr. Walker were of the opinion that
claimant sustained permanent impairment as a result of the
May 5, 1989, shoulder injury. Contrary medical opinions
concerning impairment were not offered. If is found that
the May 5, 1989, injury resulted in permanent disability to
the body as a whole.
The parties stipulated that if the injury is found to
be a cause of disability, that it should be evaluated
industrially. Factors to be considered include claimant's
age, education, experience, permanent impairment and work
restrictions. The evaluation of industrial disability for
which employer and defendant insurance carrier are liable
must be performed in a context as if the right shoulder
injury is the only injury for which claimant is being
evaluated. That is the right shoulder injury of May 5,
1989, is being evaluated industrially alone and of itself
without consideration of the other injuries.
Claimant was age 55 at the time of the injury which
would give him an expected work life of an additional 10
years. At the time of the injury, he had no additional
training beyond the ninth grade of high school and a GED
which was earned in the military. His work experience
consisted of manual labor as a packing house worker and
skilled manual labor as a sheet metal worker. His hourly
rate of pay was $17.12 per hour at the time of injury. The
right shoulder surgery resulted in an impairment rating of 9
percent to the body as a whole according to the treating
physician (ex. W, p. 38). A functional capacity assessment
was performed on claimant on December 11, 1989 (ex. 1b, p.
51). The results of the assessment indicate that claimant
should be restricted from using his right arm over his head
Page 14
and he should not go back to his previous employment as a
sheet metal worker. These restrictions do state that
claimant is restricted from performing work for which he has
previous training and experience. However, the restrictions
appear to apply to all of claimant's injuries with respect
to his restriction from returning to sheet metal work. A
more logical interpretation of the physical capacity
assessment would be that claimant is restricted from
performing work which requires overhead use of the right
shoulder. This would restrict claimant from performing
installation of ducts and pipe work. However, it would not
necessarily prevent claimant from performing exterior sheet
metal work such as installation of flashing and gutters.
Having considered all the evidence and the material
factors, it is found that as a result of the May 5, 1989,
right shoulder injury, claimant sustained 15 percent
permanent partial disability to the body as a whole. This
assessment of industrial disability is in addition to the 15
percent industrial disability assigned in file number
858701. This brings claimant's total industrial disability
to 30 percent to the body as a whole as a result of all
injuries discussed to this point. To be certain no
confusion exists it must be stated that the additional 15
percent industrial disability is the responsibility of
defendant employer and insurance carrier in file number
927412.
The next issue concerns claimant's weekly rate of
compensation. Claimant contends that his weekly rate of
compensation should be based on a flat week consisting of 40
hours. Defendants contend that claimant's rate should be
based upon his earnings for 11 weeks prior to the date of
alleged injury. The testimony offered by the various
witnesses indicated that as a general rule, the work in the
sheet metal craft was seasonal in nature. The evidence
reveals that a standard 40-hour week was the exception as
opposed to the rule. It is found that the average hours
worked in the 11 weeks preceding claimant's injury of May 5,
1989, is a more reliable indicator of claimant's average
weekly wage. Defendants' stated rate of $397.12 per week is
found to be correct. It is also found that claimant's gross
weekly wage is $651 per week with the stipulated marital
status of married and entitled to three exemptions.
The next issue concerns claimant's entitlement to
odd-lot status. The evidence clearly reveals that claimant
failed to make a search for work subsequent to his May 5,
1989, injury. Claimant has failed to bring forth sufficient
evidence proving that he is not employable and his claim for
odd-lot status thereby fails as against employer and second
injury fund.
The next issue concerns claimant's entitlement to Iowa
Code section 85.27 benefits. Exhibit 3 sets forth a list of
medical expenses which claimant alleges were incurred as a
result of injuries at D and S Sheet Metal. The first bill
concerns one from Dr. John Walker in the amount of $1,074.
Page 15
It is apparent from the file that the only services rendered
by Dr. Walker were for the independent medical exam of June
19, 1990 (ex. 1a). This examination was an independent
medical examination under Iowa Code section 85.39 which was
approved by Deputy Industrial Commissioner Michelle A.
McGovern on or about April 15, 1990. A deputy commissioner
is without jurisdiction to overturn the ruling of another
deputy commissioner. The ruling by Deputy McGovern on April
15, 1990, is enforceable. It should be noted that the
parties stipulated in the prehearing report and order
approving the same that the fees charged for the medical
services or supplies rendered are fair and reasonable. This
deputy is without jurisdiction to modify the charges made by
Dr. John Walker for the June 19, 1990, independent medical
exam. However, it should be noted that defendant employer
is only responsible for charges associated with that
particular medical exam. It is noted that exhibit 1a page
17 and page 18 is a report issued by Dr. Walker for the
disability determination services. Defendants are not
responsible for payment of that bill to the extent it is
included in the $1,074 charge.
The second expense concerns medication from Osco Drug
in the amount of $201.36. Dr. Coates stated in his
deposition that the medication was necessary with respect to
treatment of the right shoulder injury notwithstanding the
fact that it may have beneficial effects to other injuries.
It is found that the expense incurred for medication from
Osco Drug in the amount of $201.36 is compensable under Iowa
Code section 85.27 (ex. W, pp. 59 & 60).
The remaining medical expenses shown in exhibit 3
concern various expenses which were incurred while
physicians were attempting to determine whether claimant's
problem was related to the right shoulder or to the cervical
spine. Dr. Coates states that on April 30, 1990, he ordered
an MRI in a effort to explain the chronic nature of the
shoulder pain (ex. W, p. 55). It is found that all medical
services incurred up to and including April 30, 1990, are
reasonable and necessary medical treatment for the right
shoulder injury. Any medical services subsequent to April
30, 1990, which concern diagnosis or treatment of the
cervical spine condition are not compensable in this file
number even if the bill or statement describes treatment for
pain in limb when in conjunction with a cervical problem.
The pain in claimant's right upper extremity subsequent to
April 30, 1990, was clearly a result of the cervical
problems that claimant was incurring. The only medical
expenses which are compensable subsequent to April 30, 1990,
are those which were specifically incurred for treatment of
claimant's right shoulder problem which resulted in an
acromioplasty and a distal clavicle resection.
Claimant's transportation expenses are also compensable
under Iowa Code section 85.27 with respect to those incurred
on April 30, 1990, or before as shown in claimant's exhibit
number 2.
Page 16
It should be noted that the second injury fund is not
responsible for section 85.27 benefits.
The next issue concerns second injury fund liability in
file number 927412. In order to prove fund liability in
this file number, claimant must establish a loss of use of a
specified scheduled member under Iowa Code section 85.64.
Claimant's injury to the right shoulder resulted in a 15
percent permanent partial impairment of the right upper
extremity. It is found that claimant has sustained his
burden in proving a loss of use of the right upper extremity
to the extent of 15 percent. Dr. Coates' assessment of
impairment is accepted as correct for the same reason as
previously expressed.
In order to evaluate industrial disability in a second
injury fund claim, all prior scheduled member injuries which
resulted in loss of use must be considered. Therefore, in
evaluating the industrial disability to be assigned to the
fund the 1980 left upper extremity injury must be considered
along with the 1983 left foot injury, the 1987 right knee
injury and the 1989 right upper extremity injury. When
combining the four injuries and their resulting disability,
it appears that claimant would now be precluded from
returning to his occupation of sheet metal worker due to the
restriction from performing repetitive work with both upper
extremities. This places claimant in a worse position than
when the right shoulder injury was considered alone and of
itself. This factor tends to increase claimant's industrial
disability. However, claimant has shown little motivation
to return to the work force subsequent to being released by
the treating physician. Claimant's lack of motivation to
return to work combined with the limited number of years
remaining in his work life have a tendency to mitigate
against industrial disability. Having considered the loss
of use in the four scheduled members, it is found that
claimant's cumulative industrial disability is 40 percent
which entitles claimant to receive 200 weeks of benefits.
The second injury fund is entitled to a credit for 60 weeks
of benefits allocated to scheduled member disability in file
number 858701. The fund is also entitled to receive credit
for 15 weeks of permanent partial disability benefits paid
in file number 858701 pursuant to Iowa Code section 85.64.
And finally, the fund is entitled to receive credit for 75
weeks of permanent partial disability benefits paid by
employer in file number 927412 pursuant to Iowa Code section
85.34(2)(u). The commencement date for payment of the 50
weeks of benefits by the second injury fund is 75 weeks
subsequent to January 26, 1990.
The calculations are as follows:
40% x 500 = 200 weeks
minus 60 weeks 858701 scheduled member
minus 15 weeks 858701 second injury fund
minus 75 927412 employer
Page 17
TOTAL 50 weeks 927412 second injury fund
liability
The fund is not entitled to receive a credit for social
security benefits paid to claimant under section 85.64.
Insufficient evidence was presented to prove that the
benefits were paid on account of the right shoulder injury
as opposed to the spine complaints.
The final issue concerns taxation of costs. Defendants
contend that claimant should not be allowed to recover costs
expended in obtaining copies of medical records.
Defendants' contentions are without merit. Rule 343 IAC
4.33 states that the costs of obtaining two doctors' reports
may be taxed as costs. "Doctors' reports" can be
interpreted as requesting a written report or requesting
copies of the doctors' records. Therefore, defendants shall
reimburse claimant for the two expenses incurred by claimant
when requesting records or requesting reports. It should be
noted that the 85.39 examination with Dr. Walker is not
included in this case in that it was addressed by order of
another deputy industrial commissioner. Claimant has the
right to request taxation for two reports or requests for
records.
The costs are taxed equally between the second injury
fund and D & S Sheet Metal. Claimant is only entitled to
reimbursement for costs paid out of his own funds.
It should be noted that the exhibits contain
considerable duplication. The parties are admonished to be
more careful when presenting exhibits. Duplication
decreases judicial efficiency and may result in sanctions
under rule 343 IAC 4.36 or Iowa Rule of Civil Procedure Rule
80 or Iowa Code section 619.19.
conclusions of law
The claimant has the burden of proving by a
preponderance of the evidence that the injury of May 14,
1990, is causally related to the disability on which he now
bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
Claimant has failed to establish in file number 946025
his work for employer caused an injury to his cervical spine
on May 14, 1990, arising out of and in the course of
employment.
Under Iowa Code section 85.63 through 85.69, three
requirements must be met in order to establish Fund
liability: First, claimant must have previously lost or
lost the use of a hand, an arm, a foot, a leg, or an eye;
Page 18
second, through another compensable injury, claimant must
sustain another loss or loss of use of another member; and
third, permanent disability must exist as to both injuries.
If the second injury is limited to a scheduled member, then
the employer's liability is limited to the schedule and the
Fund is responsible for the excess industrial disability
over the combined scheduled loss of the first and second
injuries. See Simbro v. DeLong's Sportswear, 332 N.W.2d 886
(Iowa 1983) and Second Injury Fund v. Neelans, 436 N.W.2d
355 (Iowa 1989).
In file number 858701 claimant has established
entitlement to 15 weeks of benefits to be paid by the State
of Iowa Second Injury Fund.
Occupational diseases shall be only those diseases
which arise out of and in the course of the
employee's employment. Such diseases shall have a
direct causal connection with the employment and
must have followed as a natural incident thereto
from injurious exposure occasioned by the nature
of the employment. Such disease must be
incidental to the character of the business,
occupation or process in which the employee was
employed and not independent of the employment.
Such disease need not have been foreseen or
expected but after its contraction it must appear
to have had its origin in a risk connected with
the employment and to have resulted from that
source as an incident and rational consequence. A
disease which follows from a hazard to which an
employee has or would have been equally exposed
outside of said occupation is not compensable as
an occupational disease. McSpadden v. Big Ben
Coal Co., 288 N.W.2d 181 (Iowa 1980); Frit
Industries v. Langenwalter, 443 N.W.2d 88 (Iowa
App. 1989).
(Iowa Code section 85A.8)
Claimant and second injury fund have failed to prove by
a preponderance of the evidence that the injuries in file
numbers 858701 and 927412 are occupational diseases under
Chapter 85A.
Under the odd-lot doctrine, which was formally adopted
by the Iowa Supreme Court in Guyton, supra, a worker becomes
an odd-lot employee when an injury makes the worker
incapable of obtaining employment in any well-known branch
of the labor market. An odd-lot worker is thus totally
disabled if the only services the worker can perform are so
limited in quality, dependability, or quantity that a
reasonably stable market for them does not exist. Id.,
citing Lee v. Minneapolis Street Railway Company, 230
Minn.315, 320, 41 N.W.2d 433, 436 (1950). The rule of odd-
lot allocates the burden of production of evidence. If the
evidence of degree of obvious physical impairment, coupled
with other facts such as claimant's mental capacity,
education, training or age, places claimant prima facie in
the odd-lot category, the burden should be on the employer
Page 19
to show that some kind of suitable work is regularly and
continuously available to the claimant. Certainly in such
cases it should not be enough to show that claimant is
physically capable of performing light work and then round
out the case for noncompensable by adding a presumption that
light work is available. Guyton, 373 N.W.2d at 105.
When a worker makes a prima facie case of total
disability by producing substantial evidence that the worker
is not employable in the competitive labor market, the
burden to produce evidence of suitable employment shifts to
the employer. If the employer fails to produce such
evidence and the trier of fact finds the worker falls in the
odd-lot category, the worker is entitled to a finding of
total disability. Even under the odd-lot doctrine, the
trier of fact is free to determine the weight and
credibility of the evidence in determining whether the
worker's burden of persuasion has been carried. Only in an
exceptional case would evidence be sufficiently strong to
compel a finding of total disability as a matter of law.
Guyton, 373 N.W.2d at 106. The court went on to state:
The commissioner did not in his analysis
address any of the other factors to be considered
in determining industrial disability. Industrial
disability means reduced earning capacity. Bodily
impairment is merely one factor in a gauging
industrial disability. Other factors include the
worker's age, intelligence, education,
qualifications, experience, and the effect of the
injury on the worker's ability to obtain suitable
work. See Doerfer Division of CCA v. Nicol, 359
N.W.2d 428, 438 (Iowa 1984). When the combination
of factors precludes the worker from obtaining
regular employment to earn a living, the worker
with only a partial functional disability has a
total disability. See McSpadden v. Big Ben Coal
Co, 288 N.W.2d 181, 192 (Iowa 1980).
If a claimant has made no attempt to find work, then he
cannot be determined to be an odd-lot employee. Emshoff v.
Petroleum Transportation Services, file no. 753723 (Appeal
Decision March 31, 1987); Collins v. Friendship Village,
Inc., IAWC Decisions of the Iowa Industrial Commissioner 151
(1988).
In file numbers 858701 and 927412 claimant has failed
to prove by a preponderance of the evidence that he is
incapable of obtaining employment in any well known branch
of the labor market and his claim for odd-lot status fails.
Defendants have raised the issue of lack of notice of
the work injury within 90 days from the date of the
occurrence of the injury under section 85.23. Lack of such
notice is an affirmative defense. DeLong v. Highway
Commissioner, 229 Iowa 700, 295 N.W. 91 (1940). In Reddick
v. Grand Union Tea Co., 230 Iowa 108, 296 N.W. 800 (1941),
the Iowa Supreme Court has ruled that once claimant sustains
the burden of showing that an injury arose out of and in the
course of employment, claimant prevails unless defendants
Page 20
can prove by a preponderance of the evidence an affirmative
defense. Although an employer may have actual knowledge of
an injury, the actual knowledge requirement under section
85.23 is not satisfied unless the employer has information
putting him on notice that the injury may be work related.
Robinson v. Department of Transportation, 296 N.W.2d 809
(Iowa 1980).
Defendants in file number 927412 have failed to prove
by a preponderance of the evidence that claimant failed to
give notice of the injury within 90 days of its occurrence.
The testimony offered by Mr. Duncalf clearly reveals that
employer was aware of an allegation of a work-related injury
to the right shoulder prior to May 5, 1989.
An original proceeding for benefits under this
chapter or chapter 85A, 85B, or 86, shall not be
maintained in any contested case unless the
proceeding is commenced within two years from the
date of the occurrence of the injury for which
benefits are claimed or, if weekly compensation
benefits are paid under section 86.13, within
three years from the date of the last payment of
weekly compensation benefits.
[Iowa Code section 85.26(1)]
Defendants have failed to prove by a preponderance of
the evidence in file number 927412 that the claimant is
barred by the statute of limitations as claimant filed
within three years of the last payment of weekly benefits.
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
The injury must both arise out of and be in the course
of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246
Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406
of the Iowa Report. See also Sister Mary Benedict v. St.
Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen
v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
The words "out of" refer to the cause or source of the
injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
The words "in the course of" refer to the time and
place and circumstances of the injury. McClure v. Union
et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa
402, 68 N.W.2d 63 (1955).
Selection of an injury date is unimportant in a
workers' compensation case, Yeager v. Firestone Tire and
Rubber Co., 253 Iowa 369, 373-74, 112 N.W.2d 299, 301
(1961).
Claimant has sustained his burden in file number 927412
in proving that he sustained an injury to his right shoulder
on May 5, 1989, which arose out of and in the course of
employment with employer.
Page 21
The opinions of experts need not be couched in
definite, positive or unequivocal language. Sondag v.
Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). An opinion of
an expert based upon an incomplete history is not binding
upon the commissioner, but must be weighed together with the
other disclosed facts and circumstances. Bodish, 257 Iowa
516, 133 N.W.2d 867 (1965). The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. Burt, 247 Iowa 691, 73 N.W.2d 732 (1955). In
regard to medical testimony, the commissioner is required to
state the reasons on which testimony is accepted or
rejected. Sondag, 220 N.W.2d 903 (1974).
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
Page 22
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
Claimant has proven by a preponderance of the evidence
that the May 5, 1989, injury to the right shoulder resulted
in permanent disability.
Upon considering all the material factors in file
number 927412 it is found that the evidence in this case
supports an award of 15 percent permanent partial disability
attributable to the May 5, 1989, injury which entitles the
claimant to recover from defendant employer 75 weeks of
benefits under Iowa code section 85.34(2)(u).
The basis of compensation shall be the weekly
earnings of the injured employee at the time of
the injury. Weekly earnings means gross salary,
wages, or earnings of an employee to which such
employee would have been entitled had the employee
worked the customary hours for the full pay period
in which the employee was injured, as regularly
required by the employee's employer for the work
or employment for which the employee was employed,
computed or determined as follows and then rounded
to the nearest dollar:
...
6. In the case of an employee who is paid on a
daily, or hourly basis, or by the output of the
employee, the weekly earnings shall be computed by
dividing by thirteen the earnings, not including
overtime or premium pay, of said employee earned
in the employ of the employer in the last
completed period of thirteen consecutive calendar
weeks immediately preceding the injury.
(Iowa Code section 85.36)
Claimant has proven that he is entitled to a weekly
compensation rate of $397.12 in file number 927412.
The employer, for all injuries compensable under
chapter 85 or chapter 85A, shall furnish reasonable
surgical, medical, dental, osteopathic, chiropractic,
podiatric, physical rehabilitation, nursing, ambulance and
hospital services and supplies; therefore, and shall allow
reasonable necessary transportation expenses incurred for
such services. The employer has the right to choose the
provider of care. Iowa Code section 85.27.
Claimant has proven entitlement to reimbursement from
employer for section 85.27 expenses in file number 927412 as
Page 23
outlined in the opinion.
In file number 927412 claimant has established
entitlement to 50 weeks of benefits to be paid by the State
of Iowa Second Injury Fund.
Payments from the fund begin after the full period of
payments by employer. Iowa Code section 85.64. Employer
has been ordered to pay 75 weeks of benefits beginning
January 26, 1990. Therefore, the commencement date for
payment of fund benefits in file number 927412 is 75 weeks
after January 26, 1990.
All costs incurred in the hearing before the deputy
commissioner shall be taxed in the discretion of the deputy
commissioner unless otherwise required by the rule of civil
procedure governing discovery. Iowa Code section 86.40.
Rule 343 IAC 4.33.
Costs are taxed equally between the second injury fund
and D & S Sheet Metal. Claimant has the right to tax the
expense of obtaining two reports or requests for medical
records as a cost.
order
IT IS THEREFORE, ORDERED:
Claimant take nothing in file number 946025.
In file number 858701, the Second Injury Fund of Iowa
pay claimant fifteen (15) weeks of permanent partial
disability benefits commencing sixteen point five (16.5)
weeks after August 16, 1987, at a weekly rate of three
hundred ninety-six and 74/100 dollars ($396.74).
Employer/insurance carrier are to pay claimant healing
period benefits in file number 927412 at the weekly rate of
three hundred ninety-seven and 12/100 dollars ($397.12) for
the period May 5, 1989 through January 25, 1990.
Employer/insurance carrier are to pay claimant
seventy-five (75) weeks of permanent partial disability
benefits in file number 927412 at the rate of three hundred
ninety-seven and 12/100 dollars ($397.12) per week
commencing January 26, 1990.
In file number 927412 the Second Injury Fund of Iowa
pay claimant fifty (50) weeks of permanent partial
disability commencing seventy-five (75) weeks after January
26, 1990, at the rate of three hundred ninety-seven and
12/100 dollars ($397.12).
Employer/insurance carrier in file number 927412 are to
pay claimant's medical expenses as outlined in the opinion.
It is further ordered that employer/insurance carrier
and the Second Injury Fund of Iowa each pay one-half of the
costs of these proceedings pursuant to rule 343 IAC 4.33.
Page 24
It is further ordered that employer/insurance carrier
file a first report of injury in file number 946025 for the
injury date of May 14, 1990.
It is further ordered that defendants shall receive
credit for benefits previously paid.
It is further ordered that all accrued benefits are to
be paid in a lump sum.
It is further ordered that interest will accrue on
benefits paid by employer pursuant to Iowa Code section
85.30.
It is further ordered that interest shall accrue on
benefits paid by second injury fund commencing on the date
of this decision. Second Injury Fund of Iowa v. Braden, 459
N.W.2d 467, 473 (Iowa 1990).
It is further ordered that defendants file claim
activity reports as requested by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of May, 1991.
______________________________
MARLON D. MORMANN
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Robert Rush
Attorney at Law
526 2nd Ave SE
Cedar Rapids, Iowa 52406
Mr. David Mason
Mr. Mark Fransdal
Attorneys at Law
315 Clay St.
PO Box 627
Cedar Falls, Iowa 50613
Ms. Shirley A. Steffe
Assistant Attorney General
Hoover State Office Bldg.
Des Moines, Iowa 50319
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
DANIEL J. MORSE, :
:
Claimant, : File No. 946026
:
vs. : A R B I T R A T I O N
:
LONNIE DEAN, d/b/a : D E C I S I O N
C.L.A.S.S. TRUCKING, :
:
Employer, :
Defendant. :
____________________________________________________________
statement of the case
This is a proceeding in arbitration brought by Daniel
J. Morse against Lonnie Dean, d/b/a C.L.A.S.S. Trucking,
based upon injuries that Morse sustained in a truck accident
on or about May 21, 1989. Claimant seeks compensation for
healing period, permanent partial disability and payment of
medical expenses. Two primary issues which are in the case
are whether Morse was an employee of Lonnie Dean and whether
Morse had deviated from his employment at the time of the
accident.
The case was heard at Burlington, Iowa, on October 8,
1991. The evidence consists of testimony from Daniel J.
Morse, Thelma I. McConahay, Mike Van Ness and Lonnie Dean.
The record also contains jointly offered exhibits 1 through
5 and defendant's exhibit 6.
findings of fact
Having considered all the evidence received, together
with the appearance and demeanor of the witnesses, the
following findings of fact are made.
There is no real dispute in this case regarding the
fact of Morse being injured while driving a truck in the
manner which is alleged. The primary issue in the case is
whether Morse was an employee of Lonnie Dean. There is a
great deal of conflicting evidence in the case. There are a
number of inconsistencies in the testimony from several of
the witnesses. Some statements from some of the witnesses
are likewise considered less than fully credible. Some
matters are, however, established without any substantial
conflict in the evidence.
The truck which Morse was driving at the time of the
accident was owned by a person named Larry Littlejohn.
Morse had never met Littlejohn. Morse had never spoken with
Littlejohn on the telephone. It is possible that Morse did
not even have Littlejohn's telephone number. All the
arrangements and discussions which led to Morse being placed
into the status of driving the truck were conducted between
Morse and Lonnie Dean. While there are disagreements
Page 2
regarding the details, Morse came into contact with Lonnie
Dean at the Billup Tire Store in Burlington, Iowa, at which
time Morse expressed interest in driving and Dean directed
him to Dean's place of business at Sperry, Iowa. Morse then
worked with Dean regarding becoming qualified to drive.
Dean advised Morse that he had a job driving the truck.
There is a dispute with regard to whether or not Dean
advised Morse that Littlejohn was the owner of the truck or
Morse's employer, but it is not disputed that the name of
C.L.A.S.S. Trucking was displayed on the truck. While the
method by which Morse's pay was to be computed and paid to
him is a subject of controversy, it is clear that all
discussions regarding pay were conducted between Dean and
Morse. Littlejohn played no part whatsoever in placing
Morse in the driver's seat of the truck other than, perhaps,
to have expressed consent to Dean for the actions Dean had
taken.
Exhibit 1 is the lease agreement between Littlejohn and
Dean. Under the lease agreement, particularly in paragraphs
2 and 6, it is quite clear that Dean was responsible to the
public and shippers for the operation of the truck and was
given complete possession and control of the use of the
truck.
In paragraph 5, the lessor, Littlejohn, was required to
keep the truck in good repair and pay all expenses of its
operation associated with fuel and mileage taxes, tolls and
the like.
Under paragraph 8, C.L.A.S.S. was required to display
its name on the vehicle.
Paragraphs 7 and 10 provide that C.L.A.S.S. was
responsible for public liability insurance and that the
lessor, Littlejohn, would "identify" [sic] (believed to mean
"indemnify") C.L.A.S.S. for certain damages to cargo and for
payment of fines and other expenses resulting from lessor's
negligence.
In paragraph 12 of the agreement, it is stated that
lessor retains the status of an independent contractor to
the lessee and the lessor agrees to be responsible for and
to provide workers' compensation coverage for all drivers
furnished to the lessee. The amendment to paragraph 5 again
states that the lessor, Littlejohn, is to be responsible for
workers' compensation and other insurance.
At no point in the lease agreement is there any
requirement that Littlejohn provide Dean with a driver for
the truck. There is nothing in the agreement which would
prohibit Dean from hiring a driver and placing a driver in
the truck.
It is undisputed that Dean arranged the loads which
Morse was to haul. Dean and Van Ness both testified that
they provided Morse with a precise route to follow for the
trip on which the accident occurred. It is recognized that
there may be some discrepancy with regard to precisely what
the instructions actually were, but there is no dispute that
Page 3
instructions were given.
It is clear that Dean is the person Morse looked to as
his supervisor and director and that Dean actually
functioned as the supervisor and director without any
notable input from Littlejohn.
This trip when the accident occurred was apparently the
second trip that Morse made under the direction of Dean. He
apparently had made one trip to Chicago and back. On this
trip, Dean initially testified that he picked up the load at
Dubuque, but the fact of the matter was later shown to be
that the load was picked up at Bettendorf. There is a
dispute with regard to where the load was to be delivered.
According to Morse, it was to be delivered at Camp Hill,
Pennsylvania, which is near Harrisburg, while Dean and Van
Ness identified the destination as Bloomsburg, Pennsylvania.
Regardless of which destination was correct, the fact of the
matter is that Morse was considerably off course at the time
of the accident. It is found that Morse was an
inexperienced, immature driver who had simply gotten lost.
There is no evidence that he intentionally deviated from the
most direct and reasonable primary route to his destination.
It is found that, at the time of the accident, Morse
was driving under Dean's authority and permits. Morse was
providing work which was part of the normal work of Dean's
business. Dean was the party responsible for completion of
the tasks which Morse was assigned to perform. Morse
obtained his directives from Dean. Dean received payment
from the customers for the work which Morse performed. Dean
would be responsible to the customers if Morse failed to
perform the work adequately. The agreement between Dean and
Littlejohn under which Morse was permitted to drive
Littlejohn's truck was a long-term contract of one year
which tied the truck exclusively to Dean. Littlejohn had
not filed a certificate of insurance showing workers'
compensation coverage with Dean for any employees which
Littlejohn might hire or might have hired.
After Morse wrecked the truck, he was taken to a
Cincinnati hospital and obtained medical treatment. Upon
his return to Burlington, he received further treatment.
The services described in exhibit 5 appear to be consistent
with services that would be performed for an individual who
has been involved in a motor vehicle accident. Morse's
statement that all the charges were incurred in treating the
injuries from that accident and were not incurred for
treating any other symptoms or conditions is accepted as
being correct. There being no evidence to the contrary, it
is determined that the services were reasonable since they
were apparently provided by licensed medical professionals.
The amounts charged are consistent with charges seen in
other cases before this agency where similar services have
been provided. In the absence of any evidence to the
contrary, those charges are found to be reasonable.
Following the accident, Morse submitted some of his
bills to Dean and Dean indicated that he would attempt to
get them paid. It is not certain whether Dean represented
Page 4
that he would pay them, that he would certainly get them
paid or that he would merely attempt to get them paid. The
bills were not paid. Apparently, neither Littlejohn nor
Dean had workers' compensation insurance to cover Morse.
While there is evidence in the record which indicates
that truck drivers are paid $.18 per mile, $.25 per mile, or
25 percent of the load, there is no evidence showing what
amounts those computations would produce for a typical truck
driver or what amounts were actually earned by Morse. Morse
was never paid for any of the work he performed. When
considering federal minimum wage laws and typical earnings
for truck drivers as seen in other cases before this agency,
it is found that the usual earnings for similar services
where such services are rendered by paid employees would not
be less than $200 per week, an amount which is equivalent to
pay at the rate of $5.00 per hour based upon a 40-hour work
week. While many truck drivers earn considerably more than
$200 per week, the absence of any evidence whatsoever of
what a driver could have been expected to earn working under
the authority of C.L.A.S.S. Trucking requires that the
amount in this case be placed at the lower end of the scale.
While Morse has continuing complaints regarding his
physical condition, there is no evidence from any physician
in the record of this case which shows him to have any
permanent impairment or permanent disability. He was
released to resume work effective June 28, 1989, without any
restrictions (exhibit 2).
conclusions of law
The first issue to be addressed is that of the
employer-employee relationship. In a similar case, the Iowa
Supreme Court held the motor carrier to be the employer of
the driver, despite a contract which provided for
independent contractor status. Towers v. Watson Brothers
Co., 229 Iowa 387, 294 N.W. 594 (1940). While the more
recent case of Elliott v. Wilkinson, 248 Iowa 667, 81 N.W.2d
925 (1957) would seem to provide a conflicting result, the
cases are not irreconcilable. It is particularly noted that
this claimant was not a party to any written contract
entered into between Littlejohn and Dean. Even showing it
to him or explaining it to him would not alter or relieve
any employer's statutory dutiesbe reffe yer of Attorney at Law
305 North Third Street, Suite 520
Burlington, Iowa 52601
Mr. Patrick L. Woodward
Mr. William Scott Power
Attorneys at Law
321 North Third Street
P.O. Box 1046
Burlington, Iowa 52601
1402.10; 1504; 2501; 3001
Filed December 16, 1991
MICHAEL G. TRIER
before the iowa industrial commissioner
____________________________________________________________
:
DANIEL J. MORSE, :
:
Claimant, : File No. 946026
:
vs. : A R B I T R A T I O N
:
LONNIE DEAN, d/b/a : D E C I S I O N
C.L.A.S.S. TRUCKING, :
:
Employer, :
Defendant. :
____________________________________________________________
1402.10; 1504
Motor carrier held to be employer of driver of truck which
was leased to the motor carrier, despite provisions of the
written lease agreement which stated that the owner of the
truck would provide workers' compensation for drivers. The
lease did not expressly require the truck owner to provide a
driver and the owner played no significant part in hiring or
directing the driver. The requirement for a certificate of
insurance was discussed including the recent change which
now relieves the motor carrier from liability in these types
of cases regardless of whether or not the truck owner has
purchased insurance and how the recent statutory change in
1991 effectively repealed the 1986 amendment and the supreme
court case of Towers v. Watson Brothers Co., 229 Iowa 387,
294 N.W. 594 (1940).
2501
Claimant was allowed to recover his medical expenses
resulting from truck accident where there was no evidence
that the expenses were excessive or incurred for unnecessary
treatment. Agency expertise relied upon.
3001
Evidence was silent upon information from which a rate of
compensation could be based. Section 85.36(8) was applied.
Gross weekly earnings of $200 were found based upon federal
minimum wage laws and wages of truck drivers seen in other
cases. Since claimant had introduced no evidence of the
earnings of other truck drivers, the rate was placed at $200
per week, an amount at the low end of the range of
reasonable wages for truck drivers.