Page 1
before the iowa industrial commissioner
____________________________________________________________
:
JAMES BRYANT BROWN, :
: File No. 950829
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
POLK COUNTY, IOWA, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration brought by James
Bryant Brown, claimant, against Polk County, Iowa, employer,
self-insured defendant, for benefits as a result of an
injury which occurred on May 13, 1990. A hearing was held
in Des Moines, Iowa on March 17, 1992 and the case was fully
submitted at the close of the hearing. Claimant was
represented by Jeffrey G. Flagg. Defendant was represented
by Thomas A. Evans, Jr. The record consists of the
testimony of James Bryant Brown, claimant; Kirk Kuhn, deputy
sheriff and claimant's witness; John F. Hemple, assistant
chief jailer and defendant's witness; joint exhibits A
through X; and employer's exhibits 1 and 2.
stipulations
The parties stipulated that claimant sustained an
injury which arose out of and in the course of his
employment on May 13, 1990; that it was the cause of
temporary disability; that claimant's entitlement to
temporary disability from May 13, 1990 through June 26,
1990, had been paid; that the type of permanent disability,
if any, was industrial disability; and that the proper rate
of compensation was $290.87 per week.
The issue of whether defendant was entitled to a credit
for non-occupational group health plan benefits paid to
claimant prior to hearing as shown on the hearing assignment
order was withdrawn by defendant at the time of the hearing.
issues
The parties submitted two issues for determination at
the time of the hearing.
Whether the injury was the cause of permanent
disability.
Whether claimant is entitled to permanent disability
benefits and, if so, the extent of benefits to which he is
entitled.
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findings of fact
Causal Connection - Entitlement
It is determined that the injury of May 13, 1990, was
not the cause of permanent disability and that claimant is
not entitled to permanent disability benefits.
Claimant, a deputy sheriff, while working on the patrol
unit had stopped the sheriff's patrol car with the warning
lights flashing, and as he attempted to exit the vehicle,
the patrol car was struck in the rear end by an intoxicated
driver on May 13, 1990. Claimant was taken by ambulance to
the Emergency Department of Mercy Hospital Medical Center.
The emergency room physician diagnosed cervical and lumbar
spine strain and a forehead contusion. James L. Blessman,
M.D., ordered x-rays. Routine lumbosacral spine x-rays on
May 13, 1990, demonstrated normal alignment of the vertebral
bodies, intervertebral spaces and posterior elements. The
paraspinal soft tissues were normal. Routine cervical spine
x-rays on May 13, 1990, recorded the same identical results.
Claimant reported to Dr. Blessman on May 14, 1990, that
there was pain in his right knee from hitting the steering
wheel or dashboard. An x-ray of the right knee performed on
May 31, 1990, reported normal bones, joints and soft
tissues. No fractures were detected.
David T. Berg, D.O., ordered an MRI of the lumbosacral
spine on May 18, 1990. Dr. Berg reported on May 31, 1990,
that the MRI scan revealed a congenital small lumbosacral
canal, shallow non-compressive protrusion of the L4-5 disc
as well as the L3-4 disc. Dr. Berg added that there was
mild degeneration of the posterior elements of L3, 4, 5 and
Sl. Dr. Blessman and Dr. Berg treated claimant with
physical therapy and medication.
Seven physical therapy treatments were administered
between June 1, 1990 and June 15, 1990. The physical
therapist reported on June 15, 1990, that claimant had shown
steady progress and rated himself at 6 or 7 on a pain scale
of 0 to 10, with 10 being normal. The intensity of the pain
had decreased but claimant still complained of numbness in
his right lower extremity 50 percent of the time, especially
when he changes position. Range of motion of the lumbar
spine was within near normal limits but claimant complained
of painful pulling of the right lumbosacral paraspinals into
the right gluteal region.
Dr. Berg also reported on June 15, 1990, that claimant
continued to have sharp pain in his back and tenderness
extending down his right leg. Due to decreased progression
in the past few days, Dr. Berg referred claimant to William
R. Boulden, M.D., an orthopedic surgeon, who saw claimant on
June 26, 1990.
Dr. Boulden examined claimant on June 26, 1990, for low
back pain and some right patellar numbness which
occasionally radiated down his right shin, but there was no
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pain radiating in his right leg. Dr. Boulden reported that
since claimant did not have any leg pain; and because the
MRI showed some spinal narrowing of the congenital type with
mild degeneration of all of the discs posteriorly that
caused some disc bulging, but did not cause any neural
impingement of either the central canal type or the
foramenal type; then he felt that claimant's symptoms were
mechanical and soft tissue. Claimant wanted to return to
work and Dr. Boulden did not see any reason why he could not
return to work, so he recommended a good exercise program
and released claimant to return to work effective June 26,
1990.
Dr. Boulden referred claimant to the Manual Therapy
Center on June 26, 1990, with a diagnosis of degenerative
disc disease and myofascial strain. Thomas A. Wheatley,
LPT, was directed to develop a stabilization program to
increase claimant's strength and coordination. On June 27,
1990, Julius S. Conner, M.D., of the Polk County Health
Department, released claimant for full duty without
restrictions except for time off for physical therapy as
prescribed by Dr. Boulden.
On July 23, 1990, LPT Wheatley recorded that claimant
had no complaints of pain at that time and that he felt his
condition was much improved. On July 30, 1990, LPT Wheatley
recorded that claimant could not remember the exercises but
that he needed to work on the exercises diligently. On
August 6, 1990, Wheatley recorded that claimant finished the
program, did well and started on maintenance. After August
6, 1990, claimant did not receive anymore physical therapy.
After the June 26, 1990 visit to Dr. Boulden, claimant did
not see a physician for treatment and did not receive any
medications for treatment.
On September 17, 1990, claimant was evaluated by Thomas
W. Bower, LPT, for Dr. Boulden. At that time Bower recorded
that claimant's primary symptoms were (1) constant lower
back pain primarily localized over the right side with
radicular pain occasionally down the right leg and (2)
intermittent tingling experience in the same extremity. LPT
Bower said that the physical examination revealed a full
range of motion of the lumbar spine. LPT Bower concluded,
and he and Dr. Boulden signed the following statement on
September 17, 1990: "Primarily basing our opinion on the
x-ray studies, specifically the MRI, the patient we feel has
sustained an overall 7% impairment to the body as a whole."
(Exhibit B, page 1).
On February 20, 1991, Dr. Boulden wrote to defendant's
counsel pointing out that claimant's rating with LPT Bower
was done based on x-ray diagnosis, adding that since
claimant improved and returned to work he felt that the
accident of May 13, 1990, only aggravated claimant's
preexisting back condition temporarily and did not cause the
impairment that was found to exist based on the x-ray
diagnosis.
On June 25, 1991, Dr. Boulden wrote to defendant's
counsel that based on the newest history provided by
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defendant's counsel that claimant was functioning quite
well, then he felt that the accident of May 13, 1990, only
aggravated his problem but did not cause his back problem to
become more pathological.
In a letter to defendant's counsel on April 18, 1991,
Dr. Boulden stated that in his opinion he felt that the
accident of May 13, 1990, caused a temporary aggravation of
a preexisting condition and made it symptomatic. He awarded
the seven percent impairment on September 17, 1990, because
claimant was symptomatic at that time, however, the last
time he saw claimant, claimant was improving and in his
opinion had returned back to his pre-injury state, thus
indicating again that claimant did not currently have a
seven percent impairment.
Marvin H. Dubansky, M.D., examined claimant on July 22,
1991, at the request of claimant's attorney for an
evaluation. Dr. Dubansky found some limited lumbar motion
to the right and some limited flexion and extension. He
determined that claimant had a five percent physical
impairment as a result of the injury to his lumbosacral
spine based upon claimant's subjective symptoms of pain.
Dr. Dubansky said that his five percent rating was taken
from Table 53 on page 80 of the Guides to the Evaluation of
Permanent Impairment, Third Edition (Revised) section II
which states: "B. Unoperated, with medically documented
injury and a minimum of six months of medically documented
pain and rigidity with or without muscle spasm, associated
with none-to-minimal degenerative changes on structural
tests."
Dr. Dubansky said he could not use the limited range of
motion in his evaluation because the sum of hip flexion plus
hip extension angles was not within 10 percent of the
straight leg raising angle on the tightest side. See Table
60 on page 98 of the Guides to the Evaluation of Permanent
Impairment, Third Edition (Revised).
Dr. Boulden testified by deposition that claimant's
symptoms were basically mechanical or soft tissue in nature.
It was his opinion that the accident caused a strain that
may have aggravated some of the underlying degeneration in
his back. Since the MRI did not show anything new, and
since his own examination found claimant to be normal, he
released claimant to return to work on June 26, 1990. Later
Dr. Boulden and LPT Bower confirmed on September 17, 1990,
that claimant had a full range of motion. Claimant never
contacted Dr. Boulden again after June 26, 1990. Dr.
Boulden concluded that he felt the accident was only a tempo
rary aggravating factor which did not cause any of the
spinal conditions seen on the MRI. Dr. Boulden said: (1) he
reviewed claimant's extensive job duties at the jail which
he performed well and (2) that he noted claimant also
performs off duty security work at football games, dances
and other events. Therefore, he determined that claimant
had been quite active and demonstrated no limitation in his
activities.
Dr. Boulden concluded that it was his opinion that
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there was no permanent impairment from this injury. Dr.
Boulden further testified that he did not use pain alone as
an indicator of impairment. Since pain cannot be measured
it is an unreliable indicator of impairment.
Claimant testified that he had no prior injuries or
health impairments prior to this injury. The evidence
further shows that claimant took and passed a pre-employment
physical examination and had no lumbosacral problems at that
time. Claimant's past employments have been primarily
construction work with other family members. He started to
work for employer in 1983 and has been employed as a full
time deputy sheriff for the past nine years. He testified
that he is 5 foot 9 1/2 inches tall and weighs 225 pounds.
Dr. Dubansky acknowledged that he is overweight, but that he
is well muscled. He was not obese but he was heavy.
Claimant testified that he was not injured in a
subsequent motor vehicle accident when the patrol car that
he was driving rear ended the patrol car in front of him and
totaled out the other car and did extensive damage to the
car he was driving.
Claimant contended that he was transferred from the
patrol unit to the jail because of his back injury but
employer contended that the transfer was caused by the fact
that he was involved in four motor vehicle accidents after
he was assigned to the patrol division. Only one of the
accidents was determined to be unavoidable. Two of the
accidents resulted in the loss of two cars to the sheriff's
office. A review board determined that claimant repeatedly
demonstrated unsafe driving skills and abilities on three
separate occasions and he was transferred from the patrol
division to the jail, not as a punitive action, but rather
based upon the best interests of the Polk County Sheriff's
Office, the citizens of Polk County, his co-workers and
himself. The accidents that he was involved in adversely
impacted the budget and had endangered co-workers, the
public and himself.
Claimant testified that he has performed all of the
duties of a jailer and has performed a number of outside
security jobs. He still engages in sport activities but his
abilities have been limited. He hunts but he has been
unable to hunt deer with a bow or black powder. He
acknowledged that he owned and operated a motorcycle prior
to this injury. He can no longer run. If he stands he has
to move around or stretch. He sold a snowmobile since the
injury because it was not comfortable to ride it.
Claimant acknowledged, one-by-one, that he had
performed all of the duties assigned to him in his job as a
jailer, some of which require claimant to be in excellent
physical condition. He acknowledged that he was not working
under any medically imposed physical restrictions. He
admitted that he had completed the defensive tactics course
which involved taking down and holding an assailant.
Claimant granted that he has worked overtime for the
sheriff's office and never complained that his back had
interfered with his duties to any officials on the job. He
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acknowledged that he last saw Dr. Berg on June 15, 1990 and
Dr. Boulden on June 26, 1990 and has not had any medical
treatment since that time. His job attendance record is
outstanding.
Kirk Kuhn, a deputy sheriff and claimant's friend,
testified that claimant cannot walk as far as he used to
walk and he is required to sit more than he used to do. He
used to be able to run down a car but since the injury he
has not run at all. Kuhn acknowledged that since claimant
had been transferred to the jail that he only has had
limited opportunity to observe him, but he has seen him
grimace and look as if he were in pain.
John F. Hempel, assistant county jailer, testified for
defendant that he knows claimant well. He has observed
claimant perform a number of physical tasks and that
claimant sits, stands, walks and moves without apparent
difficulty. Hempel testified that claimant is an excellent
employee. Hempel has seen no difficulty in claimant's
ability to perform all of his tasks as a deputy sheriff and
as a Polk County jailer. He recently completed the
defensive tactic training which included come along holds,
take downs, and exerting pain on pressure points.
Claimant has completed weapons training and CPR
training. Claimant has successfully completed all of the
training required for all aspects of his job. He said
claimant's attendance at work has been excellent. He said
claimant has never voiced any need for restricted duty.
Hempel testified that since the injury on May 13, 1990,
claimant has been able to do everything well. Claimant has
not asked to be excused from any of the physical aspects of
his training or job.
In summary, claimant and Kuhn testified that claimant
has experienced some limitations on his activities. Hempel
countered this testimony and testified that claimant has
performed all of the physical aspects of his job without any
difficulty.
Dr. Dubansky estimated that claimant had a five percent
physical impairment due solely to his subjective complaints
of pain. Dr. Boulden testified that pain is an unreliable
indicator of impairment.
Dr. Boulden testified that claimant sustained a
temporary aggravation of his preexisting mildly degenerative
back condition which has subsided. Dr. Boulden retracted
the seven percent impairment rating that he and LPT Bower
originally assessed for the reason that it was not caused by
this accident but was rather due to claimant's degenerative
condition.
Dr. Boulden's testimony is preferred over Dr.
Dubansky's testimony in this case because it is
substantiated by the other facts in evidence and his
explanation for his conclusions appear to be more correct
than Dr. Dubansky's reasons for his conclusion. Rockwell
Graphics Systems, Inc. v. Prince, 366 N.W.2d 187 (Iowa
Page 7
1985).
It is noted that neither Dr. Boulden nor Dr. Dubansky
specified that their impairment rating was "permanent." In
order to be awarded permanent disability benefits, claimant
needs to establish that his impairment is permanent. Since
Dr. Dubansky used the Guides to the Evaluation of Permanent
Impairment, it may be implied that his rating was intended
to be a permanent impairment rating. LPT Bower and Dr.
Boulden on the other hand did not say they used the AMA
Guides nor did they say the impairment was permanent.
The x-ray of the neck and the x-ray of the back, both
taken on May 13, 1990, as well as the x-ray of the knee
taken on May 31, 1990, were normal.
The notes of a physical therapist for June 20, 1990,
show: "Mr. Brown has not been heard from since doctor's
appointment 6/15/90. Considered discharged from P.T." (Ex.
D, p. 4)
Claimant's neck pain resolved while he was still
treating with Dr. Berg in June of 1990.
LPT Wheatley reported on July 23, 1990, that claimant
was much improved and he had no complaints of pain at that
time. He further reported on August 6, 1990, that claimant
had finished the program, had done well and had started
maintenance.
Dr. Boulden reported on June 26, 1990, that claimant
had a full range of motion.
Claimant was released by Dr. Boulden on June 26, 1990,
without restrictions.
LPT Bower and Dr. Boulden reported on September 17,
1990, that Bower's physical exam revealed a full range of
motion of the lumbar spine.
There is no impairment rating for claimant's right knee
and claimant sought no further treatment for it after he saw
Dr. Boulden on June 26, 1990.
WHEREFORE, it is determined that the injury of May 13,
1990, was not the cause of permanent disability and claimant
is not entitled to permanent disability benefits.
conclusions of law
WHEREFORE, it is determined that claimant did not
sustain the burden of proof by a preponderance of the
evidence that the injury of May 13, 1990, was a cause of
permanent impairment and therefore claimant is not entitled
to permanent disability benefits.
order
THEREFORE, IT IS ORDERED:
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That no further amounts are owed by defendant to
claimant for permanent disability caused by this injury.
That the costs of the action are charged to defendant
pursuant to Iowa Code section 86.40 and rule 343 IAC 4.33.
That defendant file any claim activity reports
requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of April, 1992.
______________________________
WALTER R. McMANUS
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Jeffrey G. Flagg
Attorney at Law
2716 Grand Avenue
Des Moines, Iowa 50312
Ms. Mary W. Vauroch
Assistant Polk County Attorney
Room 372
Polk County Office Building
Des Moines, Iowa 50309
Mr. Thomas A. Evans, Jr.
Attorney at Law
1742 NW 102 Street
Clive, Iowa 50325
5-1803
Filed April 30, 1992
WALTER R. McMANUS
before the iowa industrial commissioner
____________________________________________________________
:
JAMES BRYANT BROWN, :
: File No. 950829
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
POLK COUNTY, IOWA, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
5-1803
Claimant was not entitled to any permanent disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
KEVIN HARKEY, :
:
Claimant, :
:
vs. :
: File No. 950976
BROWNING-FERRIS INDUSTRIES, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
claimant, Kevin Harkey, against his former (self-insured)
employer, Browning-Ferris Industries. This matter came on
for a hearing before the undersigned deputy commissioner on
May 19, 1994.
The record in the case consists of testimony from the
claimant and Steven Dillinger; claimant's exhibits 1 through
12; and, defendant's exhibit 13.
ISSUE
The parties submitted the following issue for
resolution:
1. Whether claimant is entitled to permanent partial
disability benefits.
FINDINGS OF FACT
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Claimant, Kevin Harkey, was 37 years of age at the time
of the hearing. Currently, he lives in Ankeny, Iowa, and is
married with three children. All of this children are under
the age of 18.
Claimant completed the ninth grade, and dropped out of
high school during the tenth grade. He has not obtain his
general equivalency diploma and has obtained no other formal
education.
Claimant joined the United States Navy soon after he
dropped out of school. He served three years, participated
in basic training, and performed maintenance duties.
Claimant's other work experience includes pumping gas
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at a truck stop, working for Gate City Steel, and working
for a company called Aluminum Siding.
In September of 1985 or 1986, claimant began working
for defendant employer, Browning Ferris Industries (BFI).
Initially, he worked out of the Dallas, Texas office and
drove a roll off container truck. Claimant was required to
obtain his chauffeur's license to perform the job. He
received on-the-job training for one week, and learned how
to tarp loads, open and close the doors on the trash truck,
level loads and work with the cables on the truck.
Eventually, claimant left Dallas, but was rehired in the Des
Moines office. He performed the same job as he had in
Dallas. In addition to his gross weekly earnings of
$725.60, claimant also received company benefits including
medical insurance, driving safety bonuses, access to a 401K
program, and paid vacations.
In April of 1990, claimant was sent to Des Moines Seed
and Nursery to pick up a load of trash. As claimant was
attempting to load a railroad tie, he fell backwards and the
tie fell on top of him. Claimant stated that he felt pain
immediately in the front and back of his left side at the
belt line. He continued to work, hauled the load to the
landfill, returned to the office and told Steve Dillinger
about the incident. He was told to go to the company
physician, who treated claimant on April 26, 1990. Dr.
Foley took claimant off of work for several days, and
referred him to William R. Boulden, M.D. (Claimant's
Exhibit 3)
Dr. Boulden first treated claimant on May 1, 1990.
Complaints at that time included left side pain shooting up
into the back and shoulder area. Activities which increased
the pain included bending, repetitive twisting, coughing and
sneezing. An examination revealed decreased right and left
lateral bending motion, and increased low back pain with
straight leg raising tests. Review of the lumbar spine x-
rays showed significant degenerative disc disease at the L5-
S1 level. Dr. Boulden believed claimant had aggravated the
degenerative disc disease in the lower spine, but scheduled
a CT scan to rule out neural canal sizing and foramen at
the L5-L1 level. Claimant was to remain off of work for the
next three weeks. (Cl. Ex. 5, p. 5)
A follow-up visit on May 22, coupled with the results
of the CT scan, led to Dr. Boulden's diagnosis that claimant
was experiencing mechanical back pain, and it was
recommended that claimant undergo a work conditioning
program. Dr. Boulden did not recommend surgery. (Cl. Ex. 2,
p. 4)
Claimant underwent the work hardening program,
administered by Thomas Bower, a licensed physical therapist.
Mr. Bower's notes indicate that initially, claimant had
limited range of motion in his low back. On a rising scale
from 0 to 10, claimant indicated that the lowest pain he had
experienced in the past 30 days was a 4, and the highest was
a 10, which occurred shortly after the accident. After the
two and one-half week work hardening program, it was
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determined that claimant was ready to return to work. Mr.
Bower and Dr. Boulden offered the following information:
Kevin has done an exceptional job over the last
2 1/2 weeks in our program and has increased all
functional capacities substantially. His floor to
waist lift has increased from 33 pounds to 112
pounds, his knee to chest has increased from 37
pounds to 50 pounds, as has his overhead. His
carry has increased from 42 pounds to 72 pounds,
and probably the most substantial improvement has
been his sustained push and pull force which has
increased from 130 pounds to 455 pounds.
Certainly, I don't think we can ask anymore of
this individual and I do not foresee where any
further work hardening would be of benefit. As
far as functional capacities are concerned, we
feel that this gentleman is ready to return back
to the work situation. We have informed Dr.
Boulden of such. We do feel that Mr. Harkey may
have some problems in driving the truck,
particularly over rough ground which he must do in
order to go into the land fill area. These we do
not feel will be substantial limiting factors,
however.
Based on the degenerative disc disease at
L5/S1, we feel the patient has sustained a 7%
impairment to the body as a whole. The patient
has full range of motion, therefore, this is not a
consideration in the rating.
(Cl. Ex. 5, p. 10)
In December of 1993, Dr. Boulden offered the following
additional information:
I believe that the only thing that I may have
told Mr. Harkey at the time that we last saw him
was the fact that on a long term basis driving a
truck wouldn't be conducive to good back health.
I didn't state at that point in time that he
couldn't return back to his work and that he
needed to continue to use his back properly,
maintain his stabilization exercise program, and
continue to lose weight. Therefore, I didn't give
any specific recommendations at that time to
discontinue driving a truck. I told him that on a
long term basis it would be better to find a
different type of employment. I wouldn't relate
this recommendation to that specific work injury
of April 25, 1990.
(Cl. Ex. 2, p. 2)
Claimant asserted at the hearing that Dr. Boulden had
told him not to drive a truck or else he would not be
walking. However, claimant returned to his position as a
truck driver, a position he held until March of 1992.
Apparently, the company was downsizing, moved claimant to
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the parts room, and then moved him to a dispatch job.
Claimant stated that he received a reduction in pay equaling
$10,000 to $12,000 per year. As a dispatcher, claimant
received $19,000 per year, with no opportunity to earn
driving safety bonuses. He continued to receive all of the
company benefits. Claimant worked in this position for more
than one year, and then was laid off in March of 1993. He
received unemployment benefits.
In the ensuing months, claimant looked for work,
attempted to obtain his general equivalency diploma and
stayed home with his youngest child.
In May of 1993, his wife purchased a company which
provided services to clean out grease traps from various
establishments throughout the greater Des Moines and Ankeny
areas. Currently, claimant helps to run the business. He
solicits customers, as well as services customers. He works
approximately four hours per day, five days a week, and
stated that because of his lower back, he cannot work a full
eight hour day. Claimant is paid $1,000 per month for
performing duties for the company. He does not have health
insurance, there is no 401K plan, and he has no paid
vacations.
Presently, claimant participates in activities such as
hiking, sports, fishing and hunting. He stated that he
takes aspirins, but is not scheduled for additional physical
therapy or any doctor appointments.
On cross-examination, claimant admitted that he
continues to take care of his children while his wife works
full-time at Target. Claimant also admitted that in 1993,
he "volunteered" his services to his wife for the business
because he was receiving unemployment benefits and would
have been unable to receive the benefits if he had been on
the company's payroll.
Steven Dillinger, operations and safety manager for
BFI, also testified at the hearing. He confirmed that when
claimant returned to work in June of 1990, claimant held the
same job as prior to the injury. He worked the same amount
of hours, received the same or increased rate of pay,
performed the same type of duties, and drove the same type
of truck as prior to the accident. Mr. Dillinger stated
that claimant was under no work restrictions which
necessitated accommodations in his job function, and
explained that claimant stopped driving a truck in order to
work in the parts room. Apparently, the company was
experiencing an inventory problem and called upon claimant
to help resolve the problem. The job was not created for
claimant as claimant testified.
Mr. Dillinger also stated that he was not aware
claimant had complained about his back, had lost no time
from work since his return to work, had not requested to see
a physician, and had not received any medical treatments
since June of 1990.
Mr. Dillinger stated that claimant worked in the parts
Page 5
room for two weeks to one month, and due to budget
constraints the job was eliminated. Claimant was not
offered a truck position at that time because of the budget
constraints, but was offered a job in the dispatch area.
Mr. Dillinger confirmed that claimant worked as a dispatcher
for approximately one year.
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to be addressed is whether claimant is
entitled to permanent partial disability benefits. As
claimant has sustained an injury to his back, an evaluation
of his industrial disability is warranted.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).
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
Page 6
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
At the time of the hearing, claimant was 37 years of
age. He is not a high school graduate, and has not obtained
his general equivalency diploma. Claimant has no other
formal education, although he has received some on-the-job
training and holds a chauffeur's license.
Claimant's work experience is concentrated in manual
labor-types of jobs. Claimant had a steady work history
with the defendant, and apparently performed his job in a
satisfactory manner. Claimant worked an average of 58 hours
per week, and earned gross weekly earnings of $725.60.
After his injury, claimant was under active medical
treatment for approximately one month. He was able to
return to his former job, and performed his job duties
satisfactorily for the next 18 months. Additionally,
claimant was given other job opportunities with the company,
but was laid off in March of 1993. Claimant offered that
because he had enrolled at DMAAC, his job search was waived
by job service yet he continued to receive unemployment
benefits. As a result, claimant did not pursue many other
job opportunities.
After the injury, claimant worked as a truck driver for
18 months. During this time, he did not receive any medical
treatment, nor did he complain to his employer that the
duties were aggravating his back condition. Subsequently,
claimant was reassigned to the parts department and then
transferred to the dispatcher area. Claimant worked as a
dispatcher for one year, and was then laid off.
The evidence supports a finding that claimant, himself,
has limited his actual work activities associated with the
grease trap cleaning business. While he attempted to argue
that Dr. Boulden restricted his truck driving activities,
the undersigned is unable to draw the same conclusion after
a thorough review of Dr. Boulden's (and Mr. Bower's)
treatment and subsequent opinions. In fact, both health
care providers released claimant to return to his job with
BFI. Although it was recognized that claimant "may have
some problems in driving the truck," it was not believed
that these "problems" would "be substantial limiting
factors." Likewise, Dr. Boulden specifically stated that
any limitation in claimant's long-term employment as a truck
driver was not related to the work accident. As a result,
it is found that although claimant did sustain an injury
which arose out of and in the course of his employment, he
did not sustain any permanent disability from the injury,
Page 7
and has therefore lost no earning capacity.
Therefore, claimant takes nothing from these
proceedings.
ORDER
THEREFORE, it is ordered:
That claimant take nothing from these proceedings.
That each party shall pay their own respective costs
associated with the claim.
Signed and filed this ____ day of June, 1994.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Toby Swanson
Attorney at Law
1922 Ingersoll
Des Moines IA 50309
Mr Michael R Hoffman
Attorney at Law
3708 75th St
Urbandale IA 50322-3002
5-1803
Filed June 13, 1994
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
KEVIN HARKEY, :
:
Claimant, :
:
vs. :
: File No. 950976
BROWNING-FERRIS INDUSTRIES, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
------------------------------------------------------------
5-1803
Claimant failed to prove by a preponderance of the evidence
that he sustained any loss of earning capacity.
No benefits were awarded.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
MELVINA TURNER, Surviving, :
Spouse of Willie E. Turner, :
and Dependant Children of :
Willie E. Turner, :
: File No. 951058
Claimant, :
: D E C I S I O N R E:
vs. :
: D E A T H B E N E F I T
VAN WYK, INC., :
: P A Y M E N T
Employer, :
:
and :
:
INSURANCE COMPANY OF NORTH :
AMERICA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
This is a proceeding brought by defendants, Van Wyk,
Inc., and its insurance company, the Insurance Company of
North America, regarding Melvina Turner, surviving spouse of
Willie E. Turner, deceased, and dependent children of Willie
E. Turner regarding who is entitled to benefits on account
of the death of Willie E. Turner, which death defendants
concede arose out of and in the course of decedent's
employment. This matter came on for hearing before the
undersigned deputy industrial commissioner at Des Moines,
Iowa on November 30, 1992. A first report of injury has
been filed. Defendants appeared through their attorney,
John D. Ackerman. Named claimants, that is, Melvina Turner
and dependent children of Willie E. Turner, deceased, did
not appear either personally or through an attorney or
attorneys. The record reflects that service was made upon
Melvina Turner and Stephanie Turner. Other stated natural
children of Willie E. Turner would all have been under age
18 at the time of the filing of the original notice and
petition on August 28, 1991. The record consists of
defendant's exhibits 1 through 12.
ISSUES
Defendants concede that claimant did receive an injury
which arose out of and in the course of his employment and
which resulted in his death on May 31, 1990. Defendants
further concede that that injury results in entitlement to
death benefits for any dependents who survive decedent.
Defendants state the issues for resolution as:
1) Who are the dependents of Willie E. Turner who are
Page 2
entitled to benefits;
2) Should the workers' compensation benefits be held in
escrow until such time as the dependents of Willie E. Turner
who are entitled to benefits are identified; and
3) Should the workers' compensation benefits be held in
escrow until such time as there is an apportionment of
benefits between the surviving spouse of Willie E. Turner
and his dependent children.
FINDINGS OF FACT
The deputy having considered the evidence finds:
Decedent, Willie E. Turner, married Melvina Davis on
January 30, 1972. The couple remained married as of
decedent's date of death, May 31, 1990. Melvina Davis
Turner is the surviving spouse of decedent. Decedent and
Melvina Davis Turner had six natural born children, namely:
Stephanie Michelle, born August 5, 1972; Willie Ann, born
September 11, 1973; Willie Earl, Jr. born March 6, 1977;
Reginald R., born September 27, 1989; Roderick M., born
September 13, 1984; and James Earl Gray, born December 31,
1986. Stephanie is now 20 years old. Willie Ann is now 19
years old. Willie Earl, Reginald, Roderick and James are
15, 12, 8 and 6 years old respectively. Stephanie was
registered as a 12th grader during the 1991-1992 school
year. The record does not demonstrate that Stephanie is now
in school. Whether Stephanie is now actually dependent
cannot be determined. Willie Ann was registered as a
student at Grambling State University as of August 19, 1991.
The record does not contain any evidence of Willie Ann's
student status at this time. Whether Willie Ann is now an
actual dependent cannot be determined. Willie Earl,
Reginald, Roderick, and James are all under the age of 18.
Willie Earl, Reginald, Roderick, James, and their mother,
Melvina, are all conclusively presumed dependents of
decedent. See section 85.42.
CONCLUSIONS OF LAW
Section 85.31(1) provides in relevant part:
When death results from the injury, the employer
shall pay the dependents who were wholly dependent
on the earnings of the employee for support at the
time of the injury, during their lifetime,
compensation upon the basis of eighty percent per
week of the employee's average weekly spendable
earnings, commencing from the date of death as
follows:
a. To the surviving spouse for life or until
remarriage, provided that upon remarriage two
years' benefits shall be paid to the surviving
spouse in a lump sum, if there are no children
entitled to benefits.
b. To any child of the deceased until the child
Page 3
shall reach the age of eighteen, provided that a
child beyond eighteen years of age shall receive
benefits to the age of twenty-five years of age
and is enrolled as a full-time student in any
accredited educational institution shall be a
prima facie showing of actual dependency.
Section 85.42 provides in relevant part:
The following shall be conclusively presumed to be
wholly dependent upon the deceased employee:
1. The surviving spouse, ...:
2. A child or children under eighteen years of
age, and over said age if physically or mentally
incapacitated from earning, whether actually
dependent for support or not upon the parent at
the time of the parent's death. ...
Section 85.43 provides in relevant part:
If the deceased employee leaves a surviving spouse
qualified under the provisions of section 85.42,
the full compensation shall be paid to the
surviving spouse, as provided in section 85.31;
provided that where a deceased employee leave a
surviving spouse and a dependent child or children
the industrial commissioner may make an order of
record for an equitable apportionment of the
compensation payments.
If the deceased leaves dependent child or children
who was or were such at the time of the injury,
and the surviving spouse remarries, then and in
such case, the payments shall be paid to the
proper compensation trustee for the use and
benefit of such dependent child or children for
the period provided in section 85.31.
Section 85.26(4) provides:
No claim or proceedings for benefits shall be
maintained by any person other than the injured
employee, or the employee's dependent or legal
representative if entitled to benefits.
Defendants first seek to know who are the dependents of
Willie E. Turner who are entitled to benefits. The record
made establishes only that Melvina Turner as surviving
spouse and her children under the age of 18, that is Willie
Earl, Reginald, Roderick and James are entitled to benefits
as conclusively presumed dependents of decedent. Stephanie
and Willie Ann are both over the age of 18. Any entitlement
to benefits on their part requires a showing of actual
dependency. The record does not disclose that either
Stephanie or Willie Ann are actual dependents of decedent at
this time either by way of being full-time students at an
educational institution or otherwise. Neither Stephanie nor
Willie Ann has appeared to assert rights in this matter;
Page 4
neither Stephanie nor Willie Ann has filed a claim for
benefits. Given that neither has filed any claim for
benefits or otherwise established actual dependency, a
finding of actual dependency is not warranted.
Defendants seek to be permitted to hold in escrow
workers' compensation benefits payable on account of Willie
E. Turner's demise until such time as dependents of decedent
entitled to benefits are identified or until such time as
benefits are apportioned between the surviving spouse and
decedent's dependent children. The record does not
establish a valid interest of defendants that would be
served by holding benefits in escrow which interest is not
overridden by the interest of the surviving spouse and the
conclusively presumed dependent children in receiving timely
payment of benefits. As noted, neither Stephanie nor Willie
Ann are making any claim for benefits. Given that,
defendants can in good faith continue to make payments to
the conclusively presumed dependents and surviving spouse
until such time as decedent's nonminor children actually
file a claim.
Additionally, escrowing until an apportionment of
benefits occurs is also inappropriate. The undersigned has
found no case on point in which benefits were apportioned
between the surviving spouse, nonremarried, and the natural
children of the surviving spouse and decedent. An order of
equitable apportionment is a discretionary act of the
commissioner. It generally requires that some compelling
interest of dependents be served. "The most common
situation requiring equitable apportionment is where the
decedent leaves a surviving spouse and also children from a
previous marriage or marriages." Lawyer & Higgs, Iowa
Workers' Compensation-Law and Practice (2nd) (Ed.), section
14-9 (footnote omitted). That is not the case here.
Melvina Davis Turner is the natural mother of the natural
children of decedent, Willie E. Turner. It is presumed that
natural parents behave naturally. Natural parents are
considered the natural protectors of their minor issue.
Nothing in this record establishes that Melvina Turner is
not both willing and able to act in the best interest of her
natural minor children. Benefits should continue to be paid
to Melvina as surviving spouse.
This directive is consistent with the workers'
compensation law. Section 85.43, unnumbered paragraph three
states that upon remarriage of a surviving spouse where a
dependent child or dependent children also survive that
payments shall be paid to the proper compensation trustee
for the use and benefit of such child of children. No like
provision governs payment where the surviving spouse remains
unmarried. The absence of a similar provision in that
instance suggests a legislative intent that benefits,
nonapportioned, be paid to the surviving spouse with the
presumption that the spouse would in the normal course use
such benefits in a manner that meets the interest of her and
decedent's dependent natural born child or children.
Escrowing of the workers' compensation benefits to be paid
on account of the death of Willie E. Turner is inappropriate
at this time. Workers' compensation benefits payable on
Page 5
account of the death of Willie E. Turner should continue to
be paid to the surviving spouse, Melvina Davis Turner.
ORDER
THEREFORE, IT IS ORDERED:
Defendants continue to pay any workers' compensation
benefits due on account of the death arising out of and in
the course of his employment of Willie E. Turner to his
unremarried surviving spouse, Melvina Turner.
Defendants pay costs of this action.
Signed and filed this ____ day of December, 1992.
______________________________
HELENJEAN M. WALLESER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Judith Ann Higgs
Attorney at Law
701 Pierce Street, Suite 200
P.O. Box 3086
Sioux City, IA 51102
CC to:
Melvina Turner
703 Fourth St.
Lake Providence, LA 71254
1203; 1901; 1902
Filed December 7, 1992
Helenjean M. Walleser
Before the iowa industrial commissioner
____________________________________________________________
:
MELVINA TURNER, Surviving, :
Spouse of Willie E. Turner, :
and Dependant Children of :
Willie E. Turner, :
: File No. 951058
Claimant, :
: D E C I S I O N R E:
vs. :
: D E A T H B E N E F I T
VAN WYK, INC., :
: P A Y M E N T
Employer, :
:
and :
:
INSURANCE COMPANY OF NORTH :
AMERICA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1203; 1901; 1902
Held that it was inappropriate for defendants to escrow
workers' compensation benefits payable on account of
decedent's death until a determination of actual dependents
of decedent was made or until an order of equitable
apportionment of benefits was made. The surviving spouse
was the natural mother of all known issue of decedent. Six
children survived. Two children are over age 18 and have
made no claim for benefits or otherwise demonstrated a
current actual dependency. The four minor children are
natural children of the surviving spouse. The natural
parent is presumed to be the natural protector of the
parent's natural children. No evidence presented
demonstrated any compelling reason for not presuming that
the surviving spouse as natural parent of the minor
dependent children would not use the workers' compensation
benefits in a manner consistent with the minor dependent
children's interest.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
GEORGE ANDERSON, :
:
Claimant, :
:
vs. :
: File No. 951145
GRACE CRYOVAC DIVISION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceedings in arbitration brought by
claimant, George Anderson, against Grace Cryovac Division
and CNA Insurance Companies.
A hearing was held before the undersigned deputy
industrial commissioner on March 21, 1994, at Cedar Rapids,
Iowa. The evidence consists of testimony from the claimant,
Jeanne Juehring and John Elliott; joint exhibits 1-7; and,
defendants' exhibits A-D.
ISSUES
The parties submitted the following issues for
resolution:
1. Whether claimant sustained a permanent disability;
and,
2. Whether claimant is entitled to permanent partial
disability benefits.
FINDINGS OF FACT
At the time of the hearing, claimant was 45 years old.
He is married and has two children, one of whom is a
dependent.
Claimant graduated from Cedar Rapids Jefferson high
school in 1967. He has not pursued any further education.
Claimant's work history can be found at joint exhibit
1, pages 2-4. During the past 25 years, he has worked in
retail sales for several furniture stores and shoe stores.
His job duties included waiting on customers, stocking
Page 2
shelves, setting up displays, moving, loading and unloading
merchandise. Claimant also worked as an encyclopedia
salesman, and for several years worked as an assistant
manager and manager of a Pizza Hut. Additionally, claimant
has worked as a general material handler for the Sheller
Globe company, and on an assembly line for National Oats
company. His various jobs have required claimant to lift up
to 75 pounds, push up to 300 pounds, and perform work at or
above shoulder level.
In June of 1981, claimant began working for the
defendant employer, Grace Cryovac Division. His initial
job, which he held for three months, was as a general
materials handler. He was required to supply materials to
the various machines, fold and fill cartons, and move
finished products to various areas in the plant. He was
required to lift from two pounds to 65 pounds. (It should
be noted that the employer has restricted its workers to no
lifting of greater than 65 pounds without assistance.)
Claimant was also required to use a vacuum with a long hose
to clean the machines. This involved performing a great
deal of overhead work, as well as stooping, bending and
lifting.
Next, claimant worked in the air mold department as a
machine operator. He was required to pull out hot materials
from a machine on a constant basis. He worked at this job
for only two weeks, and was then laid off from the company
for one and one-half years.
When claimant returned to work in August of 1983, he
worked as a 6 color press operator for four to six weeks.
He was required to load the machine with rolls of film
(plastic) weighing 65 to 200 pounds. Claimant was provided
with a hydraulic hoist to help load the film. He also
climbed the machine to load it with ink, or to make general
adjustments.
During the next several months, claimant worked as an
end seal operator, press helper and return good reinspector.
The jobs required essentially the same physical requirements
as set out above.
After another layoff, which lasted approximately one
year, claimant returned to the company in August of 1984 as
an end seal bag machine operator, the same job he held at
the time of the injury, and the same job he holds presently.
This machine processes film into bags to be sold to various
customers. (It was explained that the company makes plastic
bags for all types of food products, such as turkeys.)
Physically, claimant was required to maneuver, with the
aid of a hoist, two rolls of film to be loaded onto the
machine. He controlled the speed of the machine, and made
the necessary adjustments to run the specifications of the
bags the machine produced. Once the bags were produced,
claimant placed the bags into the cartons, folded the top
and bottom of the carton, filled out a "tray ticket," placed
a label on the carton, taped the carton and put the box on a
pallet. He described his duties as requiring work at and
Page 3
above shoulder level and at knee level. He had to change
the rolls of film every 30 to 45 minutes. The finished
goods weighed anywhere from 5 to 65 pounds. Joint exhibit
2, pages 19-23 provides a job description.
In 1984, claimant earned $8.31 per hour for his work on
the end seal bag machine; in 1990, he earned $11.77 per hour
plus incentive pay (based on efficiency and production),
totalling $65 to $100 per week. Currently, he earns $16.06
per hour. As of 1994, the company no longer rewards its
employees through incentive pay.
Claimant sustained a work-related injury on May 30,
1990. During his shift, he was using a crank to correct the
profile of the rollers, and he felt his neck, upper back and
right shoulder tighten. He reported the injury to the front
line supervisor, and was sent by taxi cab to the emergency
room at St. Lukes Hospital. He also reported to John L.
Banks, the company doctor.
Dr. Banks recommended physical therapy directed at the
neck and upper back. Eventually, claimant was referred to
Hugh MacMenamim, M.D., who diagnosed an impingement syndrome
of the right shoulder. He recommended surgery, which was
performed in November of 1990. Due to continued numbness
and pain radiating down claimant's right arm and hand, he
was referred to Dr. Risk, M.D., a neurosurgeon.
In November of 1991, because of continued pain,
claimant was referred to the University of Iowa Spine
Rehabilitation Clinic for a two week program to help him
address and cope with his chronic pain. He stated that he
extracted a "great deal of benefit" from the program, and
credited it with "turning [his] life around."
During his recovery, claimant was returned to work in a
light duty capacity. Since February of 1991, claimant
worked periodically on the end seal machine, but returned to
this job once he completed the program at the University of
Iowa.
Initially, he was released to work only eight hours per
day on the machine, but after one month, returned to work
with unrestricted capacities.
Claimant stated that although at times 12 hour work
days are available, he wishes only to work 8 hours in any
given day. Claimant is not adverse to working overtime on
the weekends, but has thus far declined any 12 hour days.
Claimant's seniority status on his shift is such that he is
one of the first workers asked if voluntary overtime is
offered, and one of the last workers asked if mandatory
overtime arises.
Claimant's efficiency standards are found at
defendants' exhibit B. While he is in the top third when
his departments' efficiency standards are compared, his
latest job evaluation, performed two weeks prior to the
hearing, was described as "good" by his direct supervisor,
John Elliott. Mr. Elliott also explained that the machine
Page 4
on which claimant is working demands the highest hourly wage
in the plant. Cessation of incentive pay was not based on
claimant's injury.
Claimant complained that his current job duties
aggravate pain and other symptoms in his neck, right
shoulder and upper back. Yet, much to claimant's credit, he
has not missed any time from work due to his physical
condition associated with the job injury. This was
confirmed by Jeanne Juehring, human resources representative
for the defendant employer.
In July of 1991, Dr. MacMenamim rated claimant's
impairment as "14% of the upper extremity due to the right
shoulder." (Joint exhibit 3)
In January of 1992, Dr. Found and Mr. Wernimont at the
University of Iowa stated that claimant had sustained a 3
percent impairment to the body as a whole. (Jt. Ex. 5)
In April of 1992, claimant visited Richard Neiman,
M.D., for an independent medical evaluation. Based on what
appears to be a fairly thorough review of claimant's past
medical records and an examination, he believed that due to
residual impaired range of motion of the neck, claimant had
sustained a 9 percent impairment to the body as a whole.
(Jt. Ex. 4)
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to address is whether claimant has
sustained a permanent disability.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
Page 5
Claimant's treating physician is Dr. MacMenamin. He
oversaw and administered most of the medical treatment
received by claimant. Dr. MacMenamin is thoroughly familiar
with claimant's condition, and he is under the impression
that, due to the injury and subsequent treatment, claimant
sustained a 14 permanent impairment to the upper extremity.
This would equate to a an 8 percent impairment to the body
as a whole.
The physicians at the University of Iowa estimated that
claimant had sustained a 3 percent impairment to the body as
a whole due to the worked related injury on May 30, 1990.
THere can be no doubt that claimant has sustained a
permanent disability. Nothing in the record indicates that
claimant has not suffered a permanent disability due to the
work-related injury. Every physician involved in the case
has determined that an impairment exists. As a result, it
is concluded that claimant has sustained a permanent
disability.
As claimant's impairments are to the body as a whole,
an evaluation of his industrial disability is mandated.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, 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
Page 6
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
Claimant's current age is 45. He is at the peak of his
earning years.
Given claimant's background and formal education, he
has a very well-paying job which he is successfully
performing on a consistent basis. Again, much to claimant's
credit, he has been able to maintain a steady level of
performance at his job. While his efficiency level is not
the best in his department, neither is it the worse. As
equally as important is the employer's attitude about
returning claimant to work. While the evidence suggested
some animosity between claimant and management, as well as
some juvenile antics within the plant (such as a caricature
of claimant complaining about neck and back pain), the
employer has allowed claimant to return to a well-paying
job.
Claimant's recovery was enhanced by a program at the
University of Iowa.
All of the impairment ratings were considered in the
evaluation of claimant's physical condition, and its impact
on his earning capacity.
After considering all of the factors enumerated above
that comprise an industrial disability, including claimant's
age; his motivation to successfully return to work;
claimant's surgery; the magnitude of the injury; the lack of
work restrictions placed on claimant; claimant's actual loss
of earnings; and, the employer's continued employment of
claimant, it is determined that he has sustained a 10
percent industrial disability.
ORDER
THEREFORE, it is ordered:
That defendants pay claimant fifty (50) weeks of
permanent partial disability benefits at the rate of three
hundred fifty-one and 95/100 dollars ($351.95) per week
commencing July 3, 1991.
Page 7
That accrued benefits shall be paid in a lump sum, and
defendants shall receive credit against the award for
benefits previously paid.
That defendants shall pay interest on the award as
governed by Iowa Code section 85.30.
That defendants shall pay the costs of this action.
That defendants shall file a claim activity report, as
required by the agency.
Signed and filed this ____ day of March, 1994.
______________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Thomas J Currie
Attorney at Law
3401 Williams Blvd SW
P O Box 998
Cedar Rapids IA 524065-0998
Mr James M Peters
Attorney at Law
115 3rd St SE Ste 1200
Cedar Rapids IA 52401
5-1803
Filed March 30, 1994
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
GEORGE ANDERSON, :
:
Claimant, :
:
vs. :
: File No. 951145
GRACE CRYOVAC DIVISION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
5-1803
Claimant awarded 10% industrial disability.