This decision is presented AS IS. There is possibility of introduction of error in the posting process. Reliance on this decision should be tempered by sound legal advice from licensed counsel.
Case Title: LOVIC V. CONSTRUCTION PRODUCTS, INC Date: 11/16/2006
File Number: 5015390
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
STATEMENT OF THE CASE
Claimant, Nedzad Lovic, filed a petition in arbitration seeking workers' compensation benefits from Construction Products, Inc., defendant employer and Travelers Indemnity Company of Illinois, f/k/a or a/k/a Travelers Property Casualty Corporation, n/k/a St. Paul Travelers. Claimant alleges he sustained a cumulative injury to the left shoulder which arose out of and in the course of his employment with defendant on March 16, 2004.
This matter was heard and fully submitted to deputy workers' compensation commissioner, Anne M. Garrison, on April 11, 2006, in Des Moines, Iowa. The evidence in this matter consists of claimant’s exhibits 1 through 16 (with the exception of Exhibit 15), defendants’ exhibits A through C, and the testimony of claimant, Doug Uhlenhopp and Susan McBroom. Claimant employed the services of Bosnian interpreter Azra Sikiric. This deputy is well familiar with Ms. Sikiric and finds her to be a very capable and professional interpreter. Ms. Sikiric was appropriately sworn in. The parties submitted post-hearing briefs.
ISSUES FOR RESOLUTION
1. Whether claimant sustained an injury to his left shoulder on March 16, 2004 which arose out of and in the course of employment;
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.
FINDINGS OF FACT
This deputy, after hearing the testimony, and having reviewed the record of evidence and post-hearing briefs, makes the following findings of fact and conclusions of law:
I found claimant to be a good historian of the events in this matter. Claimant was 58 years old at the time of hearing. He has the equivalent of a high school education and three years of metal work training in Bosnia. He worked as a welder while in Bosnia without any restrictions and had no work-related injuries. Claimant immigrated to the United States in 1998. He speaks or reads little to no English.
Claimant began work at defendant Construction Products shortly after arriving to the United States in July 1998. He passed a physical examination. He had no work restrictions or limitations related to his left shoulder. He was 50 years old when he began work as a general laborer. Claimant worked full time for the six years he was employed by defendant. During that period, he had time off for an unrelated right shoulder surgery and a seven month company layoff in 2003.
Claimant’s work involved repetitive heavy-duty, overhead work using his upper extremities and shoulders. He worked on the “Overhead Paint Line.” He worked with “super-studs” which weighed 50 pounds. The defendant’s job description of the duties of a general laborer state the work was “Very heavy work: Exerting in excess of 100 pounds of force occasionally, and/or in excess of 50 pounds of force frequently . . . to move objects;” reaching by “extending hands and arms in any direction;” lifting by “raising an object from a lower to higher position . . . requires substantial use of the upper extremities and back muscles.” (Exhibit 8, page 30)
Defendant terminated claimant’s employment on March 16, 2004 for violation of company rules. Claimant brought a knife to work with him. He was termination was unrelated to his work injury. At the time of his termination he was working his general labor job full time with no restrictions. He missed no time off of work related to his left shoulder condition.
A Mercy Clinic note dated August 21, 2003 indicates complaint was treated for left arm tremors and left shoulder pain. (Ex. 2, p. 18)
Claimant first sought medical attention for his left shoulder in June 2004 at Broadlawns Medical Center. A nursing interview on June 21 notes claimant’s chief complaint was left arm tremors and left shoulder pain since August 2003. (Ex. 1, p. 1) Radiographs of the left shoulder showed a probable 1.2 centimeter tendinous calcification superior to the humeral head near the insertion of the rotator cuff on the greater tuberosity; and left shoulder was otherwise negative. (Ex. 1, p. 3) A neuro consult assessed left upper extremity tremor and left shoulder pain, likely two degree rotator cuff tear. A neurology patient questionnaire states the major complaint was arm pain (left hand) getting progressively worse and weak by one month. Claimant reported the pain began September 2003. The pain in the left shoulder shoots into the neck with pronation and caused numbness and tingling down into the hand and fingers. Claimant denied any injury, however, his interpreter related that claimant worked construction and routinely lifted 50 or more pounds over his head. Lynn M. Rankin, M.D., neurologist noted claimant had a coarse resting tremor in his left upper extremity which was lessened with purposeful movement. (Ex. 1, p. 10) Dr. Rankin suspected the tremor was probably post traumatic, and possibly due to a rotator cuff injury. Claimant was also seen at the Orthopedic Clinic at Broadlawns on August 12, 2004. His history indicated he had one year of left shoulder pain, denied any specific trauma but stated he performed heavy labor with repetitive overhead lifting. Claimant noted his pain was worse when reaching overhead or behind. (Ex. 1, p. 12) An MRI study of the left shoulder on August 5 showed evidence of moderate subacromial bursitis as well as type 2 acromion causing impingement on the superspinatus tendon. There was also evidence of a partial thickness tear of the tendon. However, there was no evidence of a full thickness tear or retraction. (Ex. 1, p. 13) Leonard D. Lomax, M.D., assessed right shoulder impingement syndrome with subacromial inflammatory bursitis and tendonitis. Dr. Lomax suggested a conservative course of treatment. He injected the left shoulder subacromial space with a steroid injection.
Claimant returned to Broadlawns on September 29, 2004 complaining of continued left shoulder pain and tremors. An acromioplasty on the left shoulder via arthroscope with possible rotator cuff repair was planned for November 2004.
Dr. Lomax’s records of January 24, 2005 indicate in the history that claimant described his injury as an injury that occurred to the left shoulder in September 2003. He stated since that time when he uses his left arm he has pain. (Ex. 4, p. 23) Claimant had an interpreter present during the examination. Dr. Lomax examined claimant on January 13, 2005. Claimant had his daughter present with him acting as an interpreter at the office visit. Claimant complained of severe pain in his left shoulder with decreased range of motion and strength. He stated, “approximately 2 years ago he lifted 60 lbs at work and developed severe pain in his left shoulder.” (Ex. 5, p. 26) Dr. Lomax found on physical examination that claimant had decreased range of motion of the left shoulder. He had significant grinding in the left shoulder when performing any flexion maneuver. He had a positive Hawkins sign on the left as well as a positive drop arm exam on the left. Motor strength of the left shoulder was less than the right. The impression was left shoulder impingement syndrome with rotator cuff tendon tear. Dr. Lomax’s record indicates that claimant was previously scheduled for surgery. However, he had an abnormal EKG and had to undergo stress testing, which was negative. Dr. Lomax ordered mobilization and strengthening therapy for the following two weeks before surgery.
Dr. Lomax performed a left shoulder arthroscopy, subacromial decompression, acromioplasty, and debridement of the supraspinatus tendon tear on January 28, 2005. The indications for the surgery state, “Nedzad Lovic is a 55 year old right-hand dominant male who two years ago injured his left shoulder at work while lifting 60 pounds.” (Ex. 5, p. 31) Post operative diagnosis was left shoulder impingement syndrome, bursitis, and a partial thickness tearing of the supraspinatus tendon. The operative note indicates there was no tearing of the glenoid labrum. (Ex. 5, p. 32) Claimant was doing well at follow up on February 3, 2005. He had no restrictions at that point. Dr. Lomax began claimant in physical therapy for strengthening three times per week for the next six weeks. (Ex. 5, p. 34) Dr. Lomax found on March 10, that claimant had excellent range of motion of his left shoulder. Claimant did have mild discomfort with palpation of the interior shoulder and arm. He had 5/5 bilateral upper motor strength. Dr. Lomax assessed biceps tendonitis and recommended anti-inflammatories in addition to the physical therapy modality. (Ex. 5, p. 36)
In May 2005, claimant was having inconsistent rehabilitation and full progression as noted in Dr. Lomax’s record. Dr. Lomax reassured claimant that no aggressive treatment was warranted. Claimant received a pain injection to left shoulder. (Ex. 5, p. 37)
Dr. Lomax offered a letter to claimant’s counsel on May 22, 2005 providing his opinions with regard to causation of the left shoulder injury. He states, “after reviewing all of the records thoroughly, I do feel that the cumulative effects of the work he did led to his need for surgery.” (Ex. 5, p. 38) Dr. Lomax did not find claimant was at maximum medical improvement (MMI).
Claimant returned to Dr. Lomax on June 23 reporting moderate discomfort in his left shoulder. He denied any recent trauma. Claimant’s son accompanied him to the visit to translate. Dr. Lomax believed claimant had reached MMI on that date. Claimant’s range of motion, although not significantly improved, was within the functional realms of norm. Dr. Lomax discussed with claimant that he did not believe the tremor was related to his shoulder problem. Claimant was encouraged to continue anti-inflammatories due to evidence of arthritis. He was to be seen on an as needed basis after that date. (Ex. 5, p. 39)
Dr. Lomax authored a letter to defendant’s counsel on July 12, 2005 providing an impairment rating. Based upon the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, Dr. Lomax assigned 8 percent impairment to the upper extremity or 5 percent to the whole person based upon claimant’s limitations of certain range of the motion and persistent pain. (Ex. 5, p. 40) Dr. Lomax stated that with claimant’s type of over-use condition (e.g. impingement syndrome, rotator cuff tearing, tendonitis) there was a high probability of worsening of the condition, particularly with heavy labor or labor including repetitive overhead lifting. Dr. Lomax stated he did not feel the tremor claimant occasionally exhibited was in any way related to shoulder problems. The tremor was not present at the last visit and when claimant was distracted it went away. Dr. Lomax indicated claimant could return to some form of employment, however, he would restrict him from performing any work that required overhead reaching or lifting greater than five pounds or working with his hands above waist level. He further opined that claimant would be most suitable for sedentary work.
Claimant had prior treatment for his left shoulder in 2003. He was seen at the walk-in clinic at Broadlawns Medical Center on July 14, 2003 for complains of left arm pain, shoulder, elbow, and wrist times three months. Claimant reported that his left elbow swelled. The assessment was left hand tremor and left arm pain. A neurological consultation was recommended for the tremor. (Ex. 7, p. 56)
Claimant underwent a functional capacity examination (FCE), over two days on April 3 and 4, 2006. Defendants requested the FCE. The FCE reports claimant gave maximum and consistent effort during the examination. Claimant’s functional limitations were consistent with physical findings of the musculoskeletal exam. The results gained from the FCE were found to be a valid basis for discussing appropriate work duties. The report indicates under Pain Behavior, that claimant demonstrated appropriate symptom response during functional testing. His primary symptoms included discomfort through his left upper extremity musculature. Claimant has significant deficits of lifting/carrying, pushing/pulling, positional tasks of elevated work, forward bending, trunk rotation, crawling, kneeling, crouching and squatting, and left upper extremity grip and pinch strength. Claimant’s capabilities at that time of the FCE placed him in the sedentary category (lifting up to five pounds on an occasional basis) physical demand characteristics. The projections were for 8 hours per day and 40 hours per week. (Ex. 16, pp. 90-91) The FCE was made by referral of Dr. Lomax. (Ex. A, p. 42)
Claimant’s counsel wrote to Dr. Lomax in April 2006 requesting his opinion with regard to the functional capacity with the FCE report and findings performed on August 4, 2006. It is Dr. Lomax’s opinion that the FCE recommendations regarding claimant’s current capabilities were generally consistent with the restrictions assigned by Dr. Lomax to the left upper extremity on July 12, 2005. Finally, Dr. Lomax affirmed that it was his opinion that claimant’s left shoulder injury including the January 2005 surgery including the treatment and the January 2000 surgery, the permanent impairment and the permanent restrictions to left upper extremity were causally related to the cumulative effect of claimant’s work activities at Construction Products. (Ex. 5, p. 40b)
Claimant retained vocational consultant Roger S. Marquardt, CRC, CDMS, ABVE-D of Marquardt Consulting Services to perform an initial post injury work loss analysis. Mr. Marquardt interviewed claimant on January 10, 2006 with the assistance of claimant’s daughter-in-law as an interpreter. Mr. Marquardt’s report indicates he had available for his review defendant’s job classification worksheet for a general laborer, the medical records of Kary R. Schulte, M.D., medical records from Broadlawns Medical Center, medical certification for disability exemptions completed by Eva Christensen, Ph.D., the medical records and correspondences of Dr. Lomax, a supplemental security income notice of planned action, and a deposition transcript of claimant.
Mr. Marquardt learned that claimant had served in the Yugoslavian Republic Army in 1967 and 1968 performing aircraft maintenance duties. Prior to immigrating to the United States, claimant worked in manufacturing, assembly and welding kiosk structures for approximately 17 years and welding and finishing shoe lasts and forms for 8 years. Claimant performed both automatic and stick welding. In regards to his work at Construction Products, claimant relayed that he first worked as a metal press and sheer operator helper for three months before being assigned to general labor duties. These duties involved metal filing by hand and material hanging and removing on the overhead paint line. The physical demands of the position required repetitive filing with a hand held seven pound file and continuous bilateral above shoulder reaching to hang and remove 40 to 60 pound steel beams (super-studs). Claimant reported to Mr. Marquardt that his left shoulder symptoms began to worsen around August 2003 at which time he requested and received for a short period of time less physical demanding duties. Claimant was earning approximately $13.00 per hour with benefits plus time and a half overtime on March 16, 2004 when he was terminated by Construction Products.
Mr. Marquardt concluded that given claimant’s age, 55, and his older worker status by vocational standards, that it would be difficult for claimant to learn or adjust to new and unfamiliar work. Additionally, documented psychological problems would make any vocational rehabilitation potentially highly unlikely. Claimant had a severe inability to speak or understand English and has only the equivalent of a high school education. Claimant’s training and job experience in welding demonstrated the capacity to earn a mean wage of $15.79 per hour. Claimant’s post injury medical restrictions regarding his left upper extremity, limitation to reach overhead or life over five pounds, or use his hands above waist level, eliminated using those prior job skills. Claimant had pre-injury abilities to perform skilled duties including and related to welding and semi-skilled duties including and related to metal shaping machine operation and material handling and unskilled duties of metal filing or grinding, spray paint line helper and a range of other simple routine tasks. The majority of those skills and tasks according to the U.S. Department of Labor job descriptions do not require proficient reading, writing, and speaking, however, they do require a full range including frequent to constant reaching and handling.
Mr. Marquardt found that claimant was very close to being permanently and totally vocationally impaired. Although there may be some type of select and unique job he could perform, considering his age and lack in understanding or use of the English language coupled with his post-injury functional restrictions, Mr. Marquardt could not identify any appropriate work that could be competitively performed. (Ex. 6, pp. 48-53) Mr. Marquardt clarified a matter in his report on April 3, 2006. He stated only age, education, job history, and lack of English skills coupled with claimant’s post-injury physical impairment would be factors used in his determination of occupational capacity. (Ex. 6, p. 53a)
Claimant’s attorney sent defendant’s a letter on April 16, 2004 regarding notification of claimant’s cumulative injury. The letter states it was intended to provide the employer “notice of injury” pursuant to Iowa Code section 85.24.
Claimant sought and was awarded unemployment benefits based upon an appeal to the unemployment insurance section of Iowa Workforce Development. The administrative law judge found that claimant was not discharged for an act of misconduct based upon claimant’s violation of employer’s policy concerning weapons possession on the property. Claimant was awarded unemployment benefits. (Ex. 11)
Defendant’s retained vocational rehabilitation consultant Susan Kay McBroom, MS, LMHC, to perform an employability assessment of claimant. Ms. McBroom also testified at the hearing in this matter. Her report indicates that she had claimant’s pertinent medical record, and Mr. Marquardt’s vocational report available for her review. Ms. McBroom also had claimant’s employment and personnel file from Construction Products. Ms. McBroom analyzed claimant’s employability based upon sedentary and light-duty jobs. Her report outlined a vocational overview of occupational categories based upon claimant’s work history. They include a punch-press operator, metal finisher, material handler, and welder. Ms. McBroom opines that based upon claimant’s vocational history of unskilled and semi-skilled vocational preparation levels that it appeared claimant would have the ability to learn a new skill and adapt well to a new work environment. (Ex. A, p. 27) It is noted in her report that claimant does not speak English very fluently. Ms. McBroom provided a sampling of positions in the Des Moines area that should be considered by claimant. Those include: line operator, cleaner, cashier, janitor, security, food court, and valet attendant. She also suggested claimant consider fast food opportunities available in the local economy. Positions including fry cook, short order cook, and cashiering. Entry level wages were noted to be $7.00 to $8.00 per hour. The hourly wage of the listed positions averaged approximately $8.00 per hour. It is noted that claimant is earning over $13.00 per hour at the time of his termination from defendant employer. The report also indicates that there are no jobs at the sedentary level in welding. However, there were some welding positions at the light-duty level including: gas welding equipment mechanic, plastic welding machine operator, welding equipment repair, welding machine feeder and welding machine operation friction. These positions offered a wage of close to $16.00 per hour.
Ms. McBroom states that claimant has limited English, “however, there are many schools that offer English as a second language free of charge. Since he has been here from 1998 it would be an appropriate recommendation for him to research English as a Second Language.” (Ex. A, p. 30) She notes his supervisory experience from his work history in Bosnia, however, I suspect his limited English skills negate any opportunity in that regard. Ms. McBroom states that claimant has “some physical restrictions.” I find this largely inconsistent with claimant’s true work restrictions from the FCE and agreement by Dr. Lomax. Claimant’s work capabilities have been reduced to sedentary employment which involves, among others, a five-pound weight restriction. I would consider these significant work restrictions. It is also noted that Ms. McBroom never interviewed or met with claimant. She testified that she had made a number of telephone calls to potential employers on behalf of claimant including Merle Hay Mall for a janitor position. Ms. McBroom stated in her testimony that claimant does have use and no restrictions related to his right upper extremity. Defendants did not request Ms. McBroom to do a direct job placement. Ms. McBroom acknowledged that the bulk of unskilled labor in the sedentary capacity requires bimanual dexterity. Claimant is right-hand dominant.
Defendant’s safety and human resource manager, Doug Uhlenhopp testified on behalf of the employer. Mr. Uhlenhopp stated that claimant was familiar with reporting work injuries. He reported prior work injuries in February 1999 and January 2001. The policy is to relay the work injury to the worker’s supervisor who in turn relays the report of injury to Mr. Uhlenhopp. Claimant was on a company lay off from December 2002 through August 2003. Mr. Uhlenhopp testified he had no indication from claimant’s employment file, his supervisor, or any lead foreman that claimant had sustained an injury on March 16, 2004. Mr. Uhlenhopp first learned of claimant’s injury at the time of the petition filed in April 2005. Mr. Uhlenhopp testified that defendant employs approximately 5 to 10 Bosnians. He stated claimant was able to understand instructions and perform his job to standard. He gave the example that claimant was able to adapt to a new form requirement in manufacturing the super studs. Claimant was also trained and operated a jib hoist crane. Mr. Uhlenhopp never observed a tremor in claimant’s left upper extremity. He stated claimant could not work a forklift with a tremor, which was a task he performed frequently. Claimant was also required to acknowledge and sign off on a number of administrative documents at Construction Products. Mr. Uhlenhopp was unaware of any problems claimant had in understanding or signing the documents. Mr. Uhlenhopp acknowledged that claimant would not be employable at Construction Products with his current work restriction.
I expressly find there is no medical evidence to substantiate that claimant’s tremor is related to the alleged cumulative work injury. There has been no credible evidence by a physician or medical provider that claimant’s complaint of a tremor in his left arm is related or in any way associated to his work at defendant-employer. Claimant has not made a claim for mental injury in this matter. Defendants had claimant undergo a neuropsychological independent medical evaluation with Jim Andrikopoulos, Ph.D. Dr. Andrikopoulos is board certified in clinical neuropsychology. Dr. Andrikopoulos’ report states that claimant’s cognitive functioning is borderline nonverbal intellectual functioning with significant memory impairment. This being consistent with dementia. He concludes that because claimant has no psychiatric or neurological condition that could produce this level of impairment that the most “parsimonious” explanation is that claimant is a malingerer. (Ex. A, p. 31) No formal psychological testing was administered due to the language barrier. Claimant did have a Bosnian interpreter present with him at the evaluation. Dr. Andrikopoulos notes the cognitive deficits described in his report do not reflect any language of cultural barrier.
CONCLUSIONS OF LAW
Claimant must prove that he sustained an injury, whether cumulative or traumatic which arose out of and in the course of his employment with the defendant employer.
The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (Iowa 1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union et al., County, 188 N.W.2d 283 (Iowa 1971).
A personal injury contemplated by the workers' compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something which acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries, which result from cumulative trauma are compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational disease covered by chapter 85A is specifically excluded from the definition of personal injury. Iowa Code section 85.61(5); Iowa Code section 85A.8. When the disability develops gradually over a period of time, the "cumulative injury rule" applies. For time limitation purposes, the compensable injury is held to occur when because of pain or physical disability, the claimant can no longer work. McKeever, 379 N.W.2d 368.
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.
THEREFORE, IT IS ORDERED:
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 __16th ____ day of November, 2006.
ANNE M. GARRISON
Mr. James Byrne
Attorney at Law
6611 University Ave., Ste. 200
Des Moines, IA 50311-1655
Mr. William D. Scherle
Attorney at Law
218 6th Ave., Fl. 8
Des Moines, IA 50309-4008