BRANCHCOMB V. MAIL CONTRACTORS OF AMERICA, INC.
Page 1
BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______
:
JOSEPH BRANCHCOMB, :
:
Claimant, :
:
vs. :
: File No. 5032720
MAIL CONTRACTORS OF AMERICA, :
INC., :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
NEW HAMPSHIRE INSURANCE CO., :
:
Insurance Carrier, :
Defendants. : Head Note No.: 1803
______
This is an appeal by, Joseph Branchcomb, claimant, against defendants, Mail Contractors of America, Inc. and New Hampshire Insurance Co., the alleged employer and its insurer, from an arbitration decision filed January 26, 2012. The issues raised on appeal were considered de novo.
Upon written delegation of authority by the workers’ compensation commissioner pursuant to Iowa Code section 86.3, I render this decision as a final agency decision on behalf of the Iowa workers’ compensation commissioner.
Pursuant to Iowa Code sections 86.24 and 17A.15, I affirm and adopt as the final agency decision those portions of the proposed arbitration decision of January 26, 2012 filed in this matter that relate to issues properly raised on intra-agency appeal with the following additional analysis:
Claimant’s asserts that the odd lot doctrine was not properly applied in this case. However, before any burden shifting can occur under such a doctrine, claimant must first present a prima facie case for permanent total disability. Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). This was not done in this case. No doctor has opined that claimant is unable to work. No reasonable unsuccessful attempt to find suitable work was presented. No vocational expert opined that suitable work was not available to claimant.
I probably agree that the hearing deputy’s observations regarding the surveillance DVD recording is a bit overstated. (Exhibit X) The paint scrapping and painting activity depicted on the DVD only lasted a couple of hours on November 19. The ladders used were a step ladder and an un-extended aluminum ladder which appeared to be about 12 feet long. Claimant did lift the extension ladder, but its weight is unknown. Claimant on one occasion assisted another individual in lifting a chest of drawers from the back of a pickup, but its weight was unknown. The rest of the DVD over several days involved observations of claimant sitting and doing minor activities in the front of his mobile home.
However, I agree with the analysis of the hearing deputy that claimant’s work injury in this case is a cause of a 60 percent loss of earning capacity. He could not return to truck driving activity that required more than occasional lifting of 15 pounds and he likely would not be able to crank up a trailer dolly.
Costs of this appeal are assessed to claimant.
Signed and filed this 9th day of April, 2013.
Copies to:
John T. Hemminger
Attorney at Law
2454 SW 9th Street
Des Moines, IA 50315
Paul F. Prentiss
Attorney at Law
8712 West Dodge Road, Suite 401
Omaha, NE 68114-3419
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