Before the iowa workers' compensation commissioner
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before the iowa workers' compensation commissioner______________________________________________________________________________ : EDWARD C. SMITH, : : Claimant, : : vs. :
: File No. 1254336 DETER MOTOR COMPANY, : : ARBITRATION DECISION Employer, : : and :
: FARM BUREAU MUTUAL : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ______________________________________________________________________________ STATEMENT OF THE CASE Claimant, Edward C. Smith, has filed a petition in arbitration and seeks workers' compensation benefits from Deter Motors, defendant employer, and Farm Bureau Mutual Insurance Company, defendant insurance carrier, on account of an injury of March 1, 1998, which arose out of and in the course of employment. The case was heard before the undersigned on April 10, 2001, at Des Moines, Iowa. The evidence in this case consists of the testimony of claimant, Jolene Smith, Scott Peter, claimant's exhibits A-N, and defendants’ exhibit 1. The case was considered fully submitted at the close of the hearing. Both parties filed excellent post-hearing briefs. ISSUES The parties presented the following issues for resolution: Whether claimant's injury is the cause of any temporary disability; Whether claimant is entitled to healing period benefits; The extent of claimant's entitlement to permanent partial disability benefits, and the proper commencement date therefore; and Whether claimant is entitled to payment of medical expenses. FINDINGS OF FACT The undersigned, having heard and considered all the evidence received at the hearing, makes the following findings of fact: Claimant, Edward Smith, was 60 years old on the day of the hearing. He attended high school until the 12th grade but then dropped out. He has not obtained a GED. Other than attending an automobile body repair training course in 1969 and a reading course in the year 2000, he has no other formal education or training. The claimant is functionally illiterate, that is he is not able to read or to write. In 1958 claimant worked on a farm for several months and from 1959 through 1966 he worked for Atlantic Building Supply, a gasoline filling station/lumber supply company in Atlantic, Iowa. Claimant began his employment with Deter Motors, defendant employer, in 1966. Claimant has worked variously as a body repairperson and tow truck driver but he worked primarily in defendant employer’s “cleanup” department as an automobile detailer. Claimant worked as an automobile detailer without specific incident until early 1998 when he began to experience chronic severe pain in his arms, hands, and shoulders. During the claimant's 25 years he worked in the defendant employer’s cleanup department his basic responsibility was to prepare new and used automobiles for sale. The very nature of the work claimant performed required he engage in extensive repetitive use of both his hands and arms. Claimant's work required that he use his arms above his head on a frequent basis. In March 1998, claimant began massage therapy sessions in an effort to alleviate his increasing bilateral arm and shoulder pain. When that failed to completely resolve his symptoms he sought treatment from his family doctor, T. Hoehns, M.D., who initially diagnosed him with bursitis and medial epicondylitis and prescribed Naprosyn as an anti-inflammatory. (Claimant's Exhibit A-2, Page 1) Dr. Hoehns recommended physical therapy and eventually referred claimant to Mark E. Goebel, M.D., an orthopedic surgeon. Claimant first saw him on July 3, 1998. (Cl. Ex. D) Dr. Goebel sent claimant for physical therapy, which was unsuccessful in relieving his pain. Physical therapy in fact increased the claimant's symptoms and was terminated by Dr. Goebel in July 1998. Dr. Goebel recommended that claimant have a left elbow medial epicondyle injection and try a different type of non-steroidal medication. (Cl. Ex. D, p. 2) The first epidural steroid injection into claimant's left elbow provided him with some initial relief. Dr. Goebel ordered an MRI to determine the cause of claimant's pain extending down his right neck and into his right arm. (Cl. Ex. D, p. 3) The MRI done on claimant's neck on August 4, 1998, was normal. (Cl. Ex. D, p. 4) Dr. Goebel recommended additional massage therapy treatments as well as prescribing Elavil to help claimant sleep at night. (Cl. Ex. D, p. 7) Claimant underwent another epidural steroid injection into his left elbow in September 1998. (Cl. Ex. D, p. 8; Cl. Ex. N, p. 2) Dr. Goebel eventually referred the claimant for nerve conduction velocity studies (NCV) which were performed on claimant's wrist and elbows on December 1, 1998. The NCV revealed evidence of bilateral carpal and cubital tunnel syndrome. (Cl. Ex. B) Dr. Goebel recommended use of cockup wrist splints for claimant but noted that because claimant worked cleaning cars and was around a lot of water, using cockup splints may not be feasible for him. Dr. Goebel instructed claimant to continue with his Elavil medication at night. At a February 19, 1999 visit, the claimant, accompanied by medical case manager, Stephen J. Schill, who noted that the claimant continued to work full duty without restrictions but that he continued to have difficulty sleeping and continued to have bilateral upper extremity complaints. Dr. Goebel again confirmed his diagnosis of overuse syndrome and recommended that claimant continue working “as tolerated” while using anti-inflammatory medication, including Celebrex. (Cl. Ex. D, p. 14) Defendants eventually sent claimant to another orthopedic specialist, R. Michael Gross, M.D., on May 18, 1999. Dr. Gross evaluated the claimant and determined that the claimant's problems would not completely resolve under the work conditions he had. He suggested claimant's work would increase his discomfort and he suggested that if at all possible for the claimant to adjust his assignments so that he was not constantly all day long doing arm-intensive activities. (Cl. Ex. F, pp. 1-2) Dr. Gross suggested claimant wear a tennis elbow sleeve but his comments, as claimant points out, reflect the seriousness of claimant's symptoms as well as the difficulty in medically managing them. By June 1999, when claimant returned to Dr. Goebel it appeared that Dr. Goebel was out of options. Dr. Goebel stated, “I’ve tried so many different conservative management measures. It helps the patient a bit but not to an extensive degree.” (Cl. Ex. D, p. 15) Consequently, on June 4, 1999, Dr. Goebel recommended claimant be seen by a rheumatologist and/or try a low dose of Prednisone. Dr. Goebel stated, “[h]e may respond very well and actually be able to get back into the work setting . . . without any trouble whatsoever.” (Cl. Ex. D, p. 15) Thereafter, claimant did not see Dr. Goebel or undergo an examination by him again until March 1, 2001, when he assessed the permanent functional restrictions and permanent partial impairment in claimant's arms and shoulders. (Cl. Ex. D, pp. 18-21) Following his June 1999 visit with Dr. Goebel, claimant returned to his family doctor, Dr. Weresh, for additional treatment. On October 22, 1999, claimant's pain became so severe and unbearable that he checked himself into the Cass County Memorial Hospital Emergency Room. (Cl. Ex. A, p. 1) The emergency room doctor recommended obtaining an MRI of claimant's shoulders, which revealed “chronic degenerative changes of the left rotator cuff.” (Cl. Ex. A-4, p. 5) Following this emergency room visit in October 1999, the claimant continued to work although still experiencing severe arm and shoulder pain. He continued to communicate his symptoms to defendants and eventually he was sent by defendants on November 30, 1999, to see a rheumatologist, William R. Palmer, M.D. (Cl. Ex. K, pp. 1-7) After his evaluation Dr. Palmer noted that the claimant had shoulder and bilateral elbow tenderness as well as swollen hands. Dr. Palmer also reported that the work claimant does could aggravate his pain and that he believed it would be in the claimant's best interest to be allowed to use fewer repetitive movements with his upper extremities in his employment. (Cl. Ex. K, p. 7) Dr. Palmer’s report was issued on January 28, 2000. Thereafter, claimant continued working without modification in his job. On January 11, 2000, the claimant was evaluated by David T. Berg, D.O., who determined that he suffered from right carpal tunnel syndrome, impingement syndrome of the right shoulder, and partial rotator cuff tear, ulnar nerve subluxation, bilateral cubital tunnels, and myofascial pain syndrome. Dr. Berg determined that any further use of vibrating tools or repetitive gripping and grasping, as well as any repetitive overhead work would subject the claimant to further risk of injury. He therefore restricted the claimant from all of those sorts of work activities. (Cl. Ex. D-3, p. 4) Despite Dr. Berg’s work restrictions and Dr. Goebel’s recommendation that claimant try a lighter duty position, claimant continued to attempt to work. It was not until March 1, 2000, that the defendants agreed to discuss modifying claimant's work hours. No modifications were made to claimant's actual job duties, but after March 1, 2000, the claimant's work hours reduced to approximately 30 hours per week. No records indicate what claimant's actual hours worked were nor are there any records to indicate what his actual hours worked were prior to the March 1, 2000, slowdown. Dr. Goebel has also permanent work restrictions upon the claimant, including limiting his use of vibrating tools and decreasing claimant's ability to engage in repetitive gripping. Dr. Goebel also limits the claimant's overhead use to a non-repetitive situation. (Cl. Ex. D-1, pp. 24, 33-34) Dr. Goebel reevaluated claimant on March 1, 2001, and determined that pursuant to the AMA Guides to the Evaluation of Permanent Impairment the claimant had sustained a 5 percent permanent impairment to his right upper extremity as a result of his right carpal tunnel syndrome; 2 percent impairment due to left carpal tunnel syndrome; and 5 percent for each shoulder relative to chronic residual discomfort, minimal arthritic changes and impingement type syndromes. (Cl. Ex. D, pp. 18-19) Additionally, Dr. Goebel agrees with the work restrictions imposed by Dr. Berg, but would include the following: no lifting by the claimant of anything greater than 10 pounds above shoulder level with either arm. Additionally, he limited the claimant's repetitive motion of his upper extremities. (Cl. Ex. D-1, p. 33) The claimant continued to work until March 31, 2000, when the pain became so great he could no longer continue. Thereafter, the parties dispute whether claimant's job duties were ever modified or whether he was offered work within his work restrictions. What is clear is that defendant employer could not now accommodate claimant's work restrictions in the job claimant had done previously notwithstanding Mr. Deter’s unpersuasive testimony to the contrary. After claimant terminated working for defendant employer he suffered some heart problems for which he was treated. A vocational consultant, Jeff Johnson, has offered an opinion that considering the claimant's physical limitations and his inability to read and write, claimant's loss of access to the labor marked could be as much as 100 percent. CONCLUSIONS OF LAW The first issue to be determined is the extent of claimant's entitlement to permanent partial disability benefits. Because claimant's injury is stipulated to his body as a whole an evaluation of his industrial disability is mandated. The parties have stipulated that the commencement date for claimant's permanent partial disability benefits is January 11, 2000, this coincides with the date of the report issued by Dr. Berg. However, it is noted that the claimant continued to work until March 30, 2000, for defendant employer. From March 1, 2000, until March 30, 2000, the claimant worked part-time or at reduced hours. At the time of the hearing claimant was 60 years. He does not have a high school diploma although he was passed along in school. It is clear that the claimant is functionally illiterate. He cannot read or write. The claimant’s work history is comprised almost completely of work for defendant employer. With the permanent work restrictions the claimant has now in conjunction with the injuries that he has sustained while performing his work for defendant employer, claimant cannot return to the type of work he did previously for defendant employer. Given claimant's limited work experience and his massive work restrictions now, which include no overhead work, no repetitive use of his arms (which eliminates almost all manual labor jobs, the only type of work he is really qualified for) it is clear that claimant's industrial disability is extensive. This, in conjunction with the fact that claimant is illiterate makes work almost impossible to find. Having considered all the factors that comprise industrial disability, including the fact that claimant has not had surgery, it is determined that the claimant is now permanently and totally disabled. The concept of permanent and total disablement renders the issue of healing period moot. Although the parties have stipulated a commencement date of January 11, 2000, that is an inappropriate date. Claimant's permanent partial disability benefits should commence on March 31, 2000, and continue until one of the triggers of Iowa Code section 85.34 is activated. Claimant has failed to establish that he is entitled to healing period benefits for any period between January 11, 2000 and March 31, 2000, as he continued to work regardless of whether defendants did or did not have his permanent work restrictions. Additionally, it is noted that on the record at the time of the hearing the parties agreed that the medical bills for which claimant sought payment, including mileage, would be paid. There is no further need to address the issue of payment of medical expenses. The parties have stipulated that claimant's gross weekly earnings were $403.26 and that he was married and entitled to two exemptions. Pursuant to the correct rate book claimant's proper weekly rate of benefits is $264.14, not $255.82 as suggested by the parties. The parties may not stipulate to an incorrect rate. Claimant's benefits shall be paid at the rate of $264.14. ORDER THEREFORE, IT IS ORDERED: That defendants pay claimant permanent total disability benefits at the correct rate of two hundred sixty-four and 14/100 dollars ($264.14) commencing on March 31, 2000, during the period of his disability. That defendants pay medical bills as agreed to at the time of the hearing, including claimant's mileage claim. That defendants pay accrued benefits in a lump sum and be given credit for benefits previously paid. That defendants pay interest on the award as required by Iowa Code section 85.30. That defendants pay the costs of this action. That defendants file claim activity reports as required by the agency. Signed and filed this ___________ day of June, 2001. ____________________________________ TERESA K. 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