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Case Title: MILLER, JR V. ROADWAY EXPRESS
File Number: 1043276 & 1055678
Self-Insured and SECOND INJURY FUND,
3301 3202 3203
Agreement for settlement between employer and employee affecting first injury held to be binding upon the Second Injury Fund under doctrines of preclusion and res judicata. The binding nature is not absolutely binding on the Fund if fraud or irregularity was practiced obtaining the agency's approval of the agreement for settlement. Stipulations made in the current proceeding held to be binding upon the Fund.
Claimant with a 1986 left shoulder injury and a 1993 right knee injury found to have 20 percent permanent partial disability. The claim was compensated by payment of 22 weeks for the 1993 knee injury, 55 weeks for the 1986 shoulder injury and 23 weeks from the Second Injury Fund.
Shoulder injury that caused loss of use of the arm held to be an appropriate basis for a first loss in determining Second Injury Fund entitlement.
This is a proceeding in arbitration brought by Jack Miller, Jr. against his employer, Roadway Express, and the Second Injury Fund of Iowa based upon an injury of February 19, 1993 to his right leg. It was stipulated that the claimant has a 10 percent loss of use of the right leg for which he is entitled to receive 22 weeks of compensation for permanent partial disability, all of which has been paid. The principle issue in the case is determination of claimant's entitlement to benefits from the Second Injury Fund of Iowa. The alleged first loss is associated with an injury of July 25, 1986 to the claimant's left shoulder for which he was compensated for an 11 percent permanent partial disability with 55 weeks of permanent partial disability compensation under an agreement for settlement.
STATEMENT OF THE CASE
The case was heard at Des Moines, Iowa on September 27, 1995. The record consists of testimony from Jack Miller, Jr., claimant's exhibits 1 through 23 and defendants' exhibits A, B, C, D, G, and H.
File number 1043276 deals with the injury of February 19, 1993. File number 1055678 is an alternative date of injury for the same right knee condition. It is not a separate claim of injury but agency rules require that alternative pleadings be made in a separate petition. File number 1055678 is dismissed
findings of fact
Jack Miller is a 49-year-old man who dropped out of high school but obtained a GED while in the military service. He has subsequently taken some college and community college courses.
Miller received an honorable discharge from the navy in March 1965, he was trained in radar and as a firefighter. He served in the national guard for approximately two years working in the kitchen and driving trucks. He has lived in central Iowa all of his adult life except for his military service.
After leaving the navy he initially worked at odd jobs for a time and then obtained employment at Bookie Pack for approximately two years as a laborer. Claimant then entered into the trucking industry where he worked for a number of employers. He obtained employment with Roadway Express on September 13, 1971 and has remained so employed up to the present time.
At Roadway claimant initially worked on the dock unloading and loading freight. He became a driver where he picked up, delivered, loaded, and unloaded freight at locations in the Des Moines area. At times his work has consisted primarily of loading or unloading freight such as tires or cigarettes day in and day out.
Despite his injuries claimant remains employed at Roadway Express. At the time of hearing he was earning $17.71 per hour. He was earning $16.71 at the time of injury in 1993. Neither of the injuries which are in the record of this case have caused him to be denied any periodic pay raises that his coworkers have received.
In 1986 the claimant injured his left shoulder. He had impingement syndrome release surgery performed in 1987. (Exhibit 7, page 11) His treating surgeon rated him as having a 12 percent impairment of the left upper extremity based on lost range of motion. (Ex. 3, p. 7) It was recommended that he avoid overhead work as much as possible. (Ex. 1, p. 5)
Claimant's left shoulder was subsequently evaluated by Keith Riggins, M.D., an orthopedic surgeon. Dr. Riggins found claimant to have a 4 percent permanent impairment of the left upper extremity due to restricted range of motion. (Ex. 21, p. 40) He recommended that claimant avoid persistent or repetitive use of the left upper extremity above shoulder level and that claimant avoid handling weights of more than 10 pounds above the shoulder level with the left arm. (Ex. 21, p. 42) According to claimant it is necessary for him to violate the restrictions recommended by Drs. Boulden and Riggins in order to perform his job. He stated that the inside of a trailer is nine or ten feet high and that at times he is required to load freight to the roof.
Claimant's right knee injury is not disputed. He was treated by Sinesio Misol, M.D., an orthopedic surgeon. Initially it was felt that claimant had a tear of his right lateral meniscus. (Ex. 9, p. 13) An MRI failed to show a meniscus tear. (Ex. 11, pp. 16, 18) On February 16, 1993 Dr. Misol rated claimant as having a 7 percent impairment of the right lower extremity. (Ex. 16, p. 28) Shortly thereafter the injury that is the subject of this case occurred. (Ex. 17, p.29) On March 26, 1993 Dr. Misol performed arthroscopic surgery on claimant's right knee. He observed that the medial femoral condyle had lost cartilage and was approximately one-half of it normal width. (Ex. 14, p. 21)
Shortly after the surgery Dr. Misol reported that he did not believe that claimant would be capable of returning to his work as a truck driver. (Ex. 17, p. 31) One month later he released claimant to return to work with a restriction against squatting, climbing and kneeling. (Ex. 17, p. 33) Ten days later, on May 24, 1993 Dr. Misol released claimant to return to work without restrictions. (Ex. 17, p. 33)
On July 19, 1993 Dr. Misol rated claimant as having a 10 percent impairment of his right lower extremity. (Ex. 19, p. 35) In early 1994 Dr. Misol reported that claimant should do more driving and less standing. He also recommended a 10-hour work day limitation. (Ex. 19, p. 36; Ex. 20, p. 37) Dr. Misol attributed the need for surgery and the increase of impairment from 7 percent to 10 percent and the need for activity restrictions to the February 19, 1993 injury. [Ex. 20(a), p. 37(a)] Dr. Riggins found that claimant had a 5 percent impairment of the right lower extremity and recommended that he avoid squatting or kneeling. (Ex. 21, p. 42)
At hearing claimant appeared to be a fully credible, industrious, well-motivated individual. He has been able to maintain his customary employment despite the injuries that are in the record of this case. J. Peter Mattila, Ph.D., felt that claimant had no permanent reduction in his actual earnings as a result of the injuries. (Ex. D) Mattila also noted that claimant is earning at a rate very near to the highest shown for truck drivers in the state of Iowa or in the United States at the present time.
conclusions of law
The record of this case presents no real contested issue of fact with regard to what has or has not occurred. Claimant clearly injured his left shoulder and has some restriction in his ability to make full use of his left arm as a result of that 1986 injury. He injured his knee in 1993 and has some loss of use of his right knee as a result of that incident. Claimant has been compensated with 55 weeks of compensation for the left shoulder injury under an agreement for settlement. (Ex. C) The function of the shoulder is to provide articulation for the arm and impairment of the function of the shoulder is commonly manifested by a loss of use of the arm. The fact that the 1986 injury was not a scheduled injury of the arm does not conclusively establish that the injury failed to cause a loss of use of the arm. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986). The medically recommended activity restrictions clearly establish loss of use of his arm. Accordingly, the injury of 1986 constitutes a first loss for the purpose of determining whether claimant is entitled to benefits under the Second Injury Fund statutes. Nothing in the Second Injury Fund statute limits its applicability to losses that are compensated as scheduled injuries.
There appears to be no dispute regarding the 1993 right leg injury and the 10 percent impairment rating. That injury constitutes the second injury and triggers Second Injury Fund liability.
Section 85.64 governs Second Injury Fund liability. Before liability of the Fund is triggered, three requirements must be met. First, the employee must have lost or lost the use of a hand, arm, foot, leg or eye. Second, the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and the second injury.
The Second Injury Fund Act exists to encourage the hiring of handicapped persons by making a current employer responsible only for the amount of disability related to an injury occurring while that employer employed the handicapped individual as if the individual had had no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation-Law and Practice, section 17-1.
The Fund is responsible for the industrial disability present after the second injury that exceeds the disability attributable to the first and second injuries. Section 85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970).
The doctrine of preclusion or res judicata applies in administrative proceedings. Board of Supervisors, Carroll Co. v. Chicago & Northwestern Transp. Co., 260 N.W.2d 813 (Iowa 1977). When the agency approves an agreement for settlement that is the equivalent of the agency issuing a decision which provides similar findings and adjudications. The doctrine of preclusion makes the agency's approval a matter which is binding on the Second Injury Fund under the standards announced by the Iowa Supreme Court in Hunter v. City of Des Moines, 300 N.W.2d 121 (Iowa 1981). One of the reasons why the industrial commissioner is given statutory authority over settlements is to insure that substantial evidence exits to support the terms of the settlement negotiated by the parties and to ensure that the terms of the settlement are in conformity with the laws of this state. While the Second Injury Fund is not absolutely bound by settlements which have been approved by the industrial commissioner the Fund has a burden of showing some irregularity before the entire settlement and all the underlying facts associated with it can be compelled to be relitigated anew. The settlement approval process is meaningful and serves a legitimate purpose. Little purpose would be served by allowing relitigation of issues which have previously been established by the industrial commissioner, particularly where the assets and resources of the Second Injury Fund are paying for the relitigation.
In order to determine the claimant's entitlement assessment of his industrial disability must be performed. Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31.
Actual earnings are usually considered to be strong evidence of earning capacity because under most circumstances most individuals will attempt to maximize their actual earnings. Activity restrictions are also a very important factor to be considered when determining industrial disability. It is these two factors that are susceptible to change as a result of an injury. The person's age, education, experience and general qualifications, except as affected by activity restrictions, do not change as a result of an injury. In this case the claimant's actual earnings have not been affected. His activity restrictions are such that he has been able to remain employed in the same type of work as he performed prior to the injury. There is some likelihood that it is necessary for him to violate the activity restrictions that have been recommended on some occasions in order to perform all the duties of his employment. Nevertheless, he has been able to persevere. His efforts do cause him pain and discomfort. Claimant is a person who works with his body and the capabilities of his body have been reduced as a result of his injuries that are in the record of this case. When all the material factors of industrial disability are considered, it is determined that the claimant's industrial disability as a result of the September 19, 1993 injury is 20 percent. This entitles claimant to 100 weeks of compensation for permanent partial disability. The compensable value of the two injuries as established by the agreement for settlement and the stipulation in this case has been established as 77 weeks. Accordingly, the claimant is entitled to an additional 23 weeks of compensation from the Second Injury Fund of Iowa payable
in a lump sum since more than 23 weeks have elapsed since the employer's liability for payment ended.
IT IS THEREFORE ORDERED that the claimant's disability from the February 19, 1993 injury to his right leg, file number 1043276, is fixed at ten (10) percent of the leg and has previously been fully compensated by the employer.
It is further ordered that in file 1043276 the Second Injury Fund of Iowa pay claimant twenty-three (23) weeks of compensation at the rate of four hundred eighty-eight and 10/100 dollars ($488.10) in a lump sum of eleven thousand two hundred twenty-six and 30/100 dollars ($11,226.30).
It is further ordered that costs are assessed against the Second Injury Fund of Iowa.
It is further ordered that the employer file claim activity reports as requested by this agency.
It is further ordered that file number 1055678 is dismissed.
Signed and filed this ___________ day of December, 1995.
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Mr. Robert Pratt
Attorney at Law
6959 University Ave
Des Moines, Iowa 50311-1540
Mr. Steven Augspurger
Attorney at Law
801 Grand Ave STE 3700
Des Moines, Iowa 50309-2727
Mr. James Christenson
Ms. Joanne Moeller
Assistant Attorneys General
Hoover State Office Bldg
Des Moines, Iowa 50319