File Number: 5015390

Claimant	Employer/Defendant	Insurance Carrier
NEDZAD LOVIC	CONSTRUCTION PRODUCTS, INC	TRAVELERS INDEMNITY COMPANY OF ILLINOIS f/k/a OR a/k/a TRAVELERS PROPERTY CASUALTY CORPORATION, n/k/a ST. PAUL TRAVELERS

Summary

Decision:

2. Whether claimant gave timely notice pursuant to Iowa Code section 85.23 for the alleged injury;

3. Whether claimant is barred by the statute of limitations under Iowa Code section 85.26;

4. Whether the alleged injury is a cause of temporary disability for the time period of March 17, 2004 through June 23, 2005;

5. Whether the alleged injury is a cause of permanent disability;

6. The extent of industrial disability, if any or whether claimant is an odd-lot employee; and

7. Whether claimant is entitled to payment of medical expenses pursuant to Iowa Code section 85.27; whether the expenses are causally connected to the work injury and whether the expenses were authorized.

The parties stipulated to claimant’s correct weekly rate of compensation for the alleged date of injury as $367.94. A commencement date of June 24, 2005 was agreed upon if liability is found.

I conclude claimant sustained an injury to his left shoulder which arose out of and in the course of his employment with defendant Construction Products. Claimant’s work involved heavy over-head lifting. Claimant’s job as a general laborer required him to lift weights often exceeding 50 pounds. Much of the work was repetitive in nature. Employers take employees as they find them. Claimant passed a physical examination before beginning work at Construction Products. However, the full time work for approximately six years took its toll on claimant’s left shoulder. He was over 50 years old when he joined Construction Products. He had worked his entire adult life in Bosnia as a metal worker performing same or similar physical tasks. I conclude claimant has established that he sustained a cumulative injury to the left shoulder that arose out of and in the course of employment with Construction Products.

The notice issue is considered.

Section 85.23 requires an employee to give notice of the occurrence of an injury to the employer within 90 days from the date of the occurrence, unless the employer has actual knowledge of the occurrence of the injury.

The purpose of the 90-day notice or actual knowledge requirement is to give the employer an opportunity to timely investigate the facts surrounding the injury. The actual knowledge alternative to notice is met when the employer, as a reasonably conscientious manager, is alerted to the possibility of a potential compensation claim through information that makes the employer aware that the injury occurred and that it may be work related. Dillinger v. City of Sioux City, 368 N.W.2d 176 (Iowa 1985); Robinson v. Department of Transp., 296 N.W.2d 809 (Iowa 1980). The time period for giving notice does not begin to run until the claimant, as a reasonable person should recognize the nature, seriousness and probable compensable character of the injury. The reasonableness of claimant's conduct is to be judged in light of claimant's education and intelligence. Claimant must know enough about the condition or incident to realize that it is both serious and work connected. Positive medical information is unnecessary if information from any source gives notice of the condition's probable compensability. Robinson, 296 N.W.2d at 812.

Failure to give notice is an affirmative defense, which the employer must prove by a preponderance of the evidence. DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940).

In the case of cumulative trauma claims the date of injury could be any workday over a period of years. The courts of this state have adopted a rather loose rule when identifying a date of injury in gradual injuries. It may or may not be the first day of symptoms, treatment, or time off work. It may or may not be the last day worked or the day of transfer from injurious activity. The date of injury is the date the disability manifests itself. Oscar Mayer Foods Corp. v. Tasler, 483 N.W. 2d 824, 829 (Iowa 1992).

Cumulative trauma injuries, by their very nature, occur almost every day, but do not always result in disability or the need for treatment. Consequently, the same injurious process occurring over many years can have many manifestation dates warranting differing types of compensation benefits. Initially, a cumulative injury may only require some treatment. Later on, the needed treatment may be more extensive and require absences from work. Finally, the injury may worsen to the point that permanent impairment; work restrictions and permanent disability develops.

Claimant’s chosen date of the alleged cumulative trauma injury was his last day of work on March 16, 2004. Claimant argues that his last day of work was the last day of injurious exposure to the activities causing his cumulative trauma injury. Prior agency decisions have held that the last day of employment may constitute the date of manifestation.

I conclude claimant’s chosen date of injury as March 16, 2004 is acceptable.

Claimant’s counsel forwarded written notice of claimant’s alleged cumulative trauma. (Ex. 10 p. 65) Defendant employer stamped receipt of the notice on April 19, 2004. This is well within the 90-day requirement of Iowa Code section 85.23. Defendants have failed to meet their burden that claimant’s notice was untimely.

Defendants assert an affirmative defense of untimely claim based upon the statute of limitations. The burden of proof is on the defendants to prove that claimant is not entitled to benefits because she failed to file an action in a timely manner as required by Iowa Code section 85.26(1) which states:

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.

Claimant’s petition was filed on April 15, 2005.

I note in defendant’s response to claimant’s request for admission that defendants admit, “20. That the Claimant’s Petition for workers’ compensation benefits was filed pursuant to Section 85.26 of the Iowa Industrial Commissioner’s Rules, within two years from the time alleged as the date of injuries, or if weekly compensation benefits were paid under Section 86.13, within three years from the date of the last payment of weekly compensation benefits.” (Ex. 12, p. 79)

Nonetheless, claimant timely filed his petition.

Having found claimant’s cumulative injury arose out of and in the course of employment, next considered is whether claimant’s injury is a cause of permanent disability.

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. Frye v. Smith-Doyle Contractors, 569 N.W.2d 154 (Iowa App. 1997); George A. Hormel & Co. v. Jordan, 569 N.W.2d 148 (Iowa 1997); Sanchez v. Blue Bird Midwest, 554 N.W.2d 283 (Iowa App. 1996).

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. Supportive lay testimony may be used to buttress the expert testimony and, therefore, is also relevant and material to the causation question. The weight to be given to an expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts the expert relied upon as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000); IBP, Inc. v. Harpole, 621 N.W.2d 410 (Iowa 2001); Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845 (Iowa 1995); Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417 (Iowa 1994). Unrebutted expert medical testimony cannot be summarily rejected. Poula v. Siouxland Wall & Ceiling, Inc., 516 N.W.2d 910 (Iowa App. 1994).

I conclude claimant has sustained permanent disability as a result of the left shoulder injury. I base this conclusion on Dr. Lomax’s aforementioned opinions.

The extent of claimant’s permanent disability is examined. Claimant asserts that he is an odd-lot employee or is totally disabled.

In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), the Iowa court formally adopted the “odd-lot doctrine.” Under that doctrine 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., at 105. Under the odd-lot doctrine, the burden of persuasion on the issue of industrial disability always remains with the worker. Nevertheless, 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 showing availability of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of facts finds the worker does fall in the odd-lot category, the worker is entitled to a finding of total disability. Guyton, 373 N.W.2d at 106. Factors to be considered in determining whether a worker is an odd-lot employee include the worker’s reasonable but unsuccessful effort to find steady employment, vocational or other expert evidence demonstrating suitable work is not available for the worker, the extent of the worker’s physical impairment, intelligence, education, age, training, and potential for retraining. No factor is necessarily dispositive on the issue. Second Injury Fund of Iowa v. Nelson, 544 N.W.2d 258 (Iowa 1995). Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of evidence in determining whether the worker’s burden of persuasion has been carried, and only in an exceptional case would evidence be sufficiently strong as to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106.

A finding that claimant could perform some work despite claimant's physical and educational limitations does not foreclose a finding of permanent total disability, however. See Chamberlin v. Ralston Purina, File No. 661698 (App. October 29, 1987); Eastman v. Westway Trading Corp., II Iowa Industrial Commissioner Report 134 (App. May 19, 1982).

Claimant has established that he does not read or write English. The extent of his formal education is the equivalent of eighth grade in Bosnia. Claimant consistently had an interpreter present with him at his medical appointments. This further evinces that claimant has little to no understanding of the English language. He was able to perform his job based upon his many of years of experience in the construction and welding field. I find it is unlikely that he will be able to learn the English language to the extent that he can obtain employment in the non-manual labor sector.

Mr. Marquardt could not identify appropriate work for claimant given his age, language barriers and post-injury restrictions.

Defendants’ vocational expert, Susan McBroom assessed claimant’s employability in the sedentary and light capacities. However, claimant’s capability is only in the sedentary capacity. Defendants have not established that there is employment available and suitable given claimant’s language, work restrictions, and trade skills. Claimant has no job skills in the sedentary category of work. This is further compounded by the fact that he does not speak, read or write English. Ms. McBroom relied heavily on claimant’s ability to procure employment as a cashier. I find this contrary to his lack of language skills.

Although Dr. Lomax found claimant only has permanent impairment of eight percent to the whole person, he has severe work restrictions. The restrictions preclude his return to the only jobs he has ever held and his potential for adjustment for a new job, if he could find one, is extremely low given his age, education and language barrier.

While there is evidence that the claimant is not 100 percent physically impaired that does not negate an individual performing a regular job on a daily basis. It is not expected that an individual who is totally disabled is totally helpless or incapacitated.
Total disability does not mean a state of absolute helplessness. Permanent total disability occurs where the injury wholly disables the employee from performing work that the employee's experience, training, education, intelligence and physical capacities would otherwise permit the employee to perform. See McSpadden, 288 N.W.2d 181; Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 (1935).

The claimant has established a prima facie case that he is an odd-lot employee. Defendants have failed to meet the burden to show the availability of suitable work in claimant’s labor market. It is concluded that claimant is permanently and totally disabled.

The next issue is whether claimant is entitled to payment of medical expenses pursuant to Iowa Code section 85.27. Medical expenses are set forth in an attachment to the hearing report. Claimant makes a claim for treatment from June 21, 2004 through the January 28, 2005 left shoulder surgery by Dr. Lomax.

The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers’ compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury or the worker has sought and received authorization from this agency for alternate medical care. Freels v. Archer Daniels Midland Co., File No. 1151214 (App. June 2000). Defendants cannot admit injury arising out of and in the course of employment and claim the right to control medical treatment, but at the same time deny that the disabling condition is causally connected to the injury and therefore they are not liable for the disability. Trade Professionals, Inc. and Virginia Surety v. Shriver, No. 17/02-0409 (Iowa, May 2003).

Liability has been found with respect to the alleged shoulder injury. Defendant shall be responsible for payment of medical expenses outlined in claimant’s attachment or a total of $8,373.63.

That defendants shall pay claimant permanent total disability benefits commencing March 16, 2004, at the weekly rate of three hundred sixty-seven and 94/100 dollars ($367.94) for the period during which the claimant remains permanently totally disabled.

That defendants shall pay the medical expenses pursuant to section 85.27 of the Iowa Code as set forth above.

That defendants shall pay interest as provided in Iowa Code section 85.30.

That defendants shall receive credit for benefits previously paid.

That all accrued benefits, plus interest, as allowed by law, shall be paid to claimant in a lump sum.

That defendants shall pay the costs of this action pursuant to rule 876 IAC 4.33.

That defendants shall file subsequent reports of injury as required by the agency.

Signed and filed this __16^th ____ day of November, 2006.

________________________
ANNE M. GARRISON
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies to:

Mr. James Byrne
Attorney at Law
6611 University Ave., Ste. 200
Des Moines, IA 50311-1655

Mr. William D. Scherle
Attorney at Law
218 6^th Ave., Fl. 8
Des Moines, IA 50309-4008

AMG/kjf