HAINES V. FARMERS ELEVATOR COMPANY
Page 1
BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______
:
LARRY HAINES, :
:
Claimant, :
:
vs. :
: File No. 5007636
FARMERS ELEVATOR COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
FARMLAND INSURANCE, :
:
Insurance Carrier, : HEAD NOTE NO: 1803
Defendants. :
______
STATEMENT OF THE CASE
This is a contested case proceeding in arbitration under Iowa Code chapters 85 and 17A. Claimant, Larry Haines (hereinafter Haines), sustained a stipulated work injury in the employ of defendant Farmers Elevator Company on October 7, 1999. He accordingly now seeks benefits under the Iowa Workers’ Compensation Act from that employer and its insurance carrier, defendant Farmland Insurance.
The case was heard and fully submitted in Des Moines, Iowa, on December 15, 2003. The record consists of Haines’ exhibits 1-5, defendants’ exhibits A-E, and the testimony of Haines, Judy Haines and Jeff Nelson.
ISSUES
STIPULATIONS:
1. Haines sustained injury arising out of and in the course of employment on October 7, 1999.
2. The injury caused both temporary and permanent disability.
3. Healing period entitlement is not in dispute.
4. Permanent disability should be compensated by the industrial method (loss of earning capacity) commencing October 2, 2001.
5. The correct rate of weekly compensation is $608.31.
6. Entitlement to medical benefits is not in dispute.
7. Defendants should have credit for benefits paid.
ISSUE FOR RESOLUTION:
1. Extent of industrial disability.
FINDINGS OF FACT
Larry Haines, age 63, is a 1958 high school graduate with several months of junior college coursework but no other formal education. He worked his entire adult life for Farmers Elevator Company, a full-service agricultural cooperative, from March 16, 1959 until taking retirement effective December 7, 2001.
Haines performed a number of jobs for Farmers Elevator Company during those 41 years, including work as a truck driver, in the grain department (storage, handling), the feed department (customer service, sales, loading trucks), and general office work in the scale are (grading, weighing grain). At times, Haines supervised some 15 workers and was clearly a very responsible employee. He had an annual salary of $52,000.00 on the date of injury.
Haines unfortunately has a history of low back problems going back to his first surgery in 1962. Just a few weeks before sustaining a new injury in October 1999, he presented for evaluation to family physician Steven J. DeVore, D.O., who noted a history of neurological damage to the left lower extremity secondary to previous surgery, with reduced reflex and intermittent paresthesias in the left foot. Dr. DeVore also found Haines’ foot cool to the touch. (Exhibit C, pages 11-12)
The stipulated work injury on October 7, 1999, occurred while Haines was shoveling grain. Within weeks, he was referred to orthopedic surgeon William R. Boulden, M.D. Based on CT scans showing severe bilateral spinal stenosis at L4/5 and L5/S1, Dr. Boulden first recommended physical therapy. According to Dr. Boulden’s records, this was initially helpful, but Haines was complaining of increased leg pain and numbness by January 2000. An epidural steroid injection was ordered next, but this also failed to give symptomatic relief.
On February 21, 2000, Dr. Boulden performed multi-level back surgery at L4-5 and L5/S1. The procedure helped alleviate Haines’ leg pain, but failed to relieve associated problems with numbness and foot drop.
On March 31, 2000, Dr. Boulden released Haines to half-day work, sedentary only. On May 22, Dr. Boulden imposed a number of activity restrictions, including limits on lifting, repetitive bending or twisting, and forklift driving. Haines was then able to return to his regular job, but had to call upon fellow workers for assistance at times.
However, Haines was still symptomatic. After an epidural steroid injection with enzymes failed to relieve symptoms, Dr. Boulden offered a repeat surgery. When his patient declined, Dr. Boulden on January 21, 2001, found him at maximum medical improvement with 10 percent impairment of the spine. (Ex. 3, p. 33) As to job restrictions, Dr.Boulden wrote:
At the present time, they seem to have accommodated sedentary restrictions. I would state that I think he should alternate standing, sitting and walking. He should not do repetitive walking for long distances. He should continue his back exercise program. I would sate that he could probably safely lift 30 to 40 pounds, but when he starts lifting 50 and 60 pounds, he may use incorrect technique. Therefore, I would not recommend that highly.
(Id.)
Haines returned to Dr. Boulden in June 2001, with what Dr. Boulden thought were abnormal test findings. New MRI studies were ordered were ordered, and showed no interval change, but EMG studies showed acute changes at L5 that Dr. Boulden thought consistent with increasing drop foot and sciatica. (Ex. 3, p. 36) A repeat surgery was scheduled.
This, a facet excision for severe spinal stenosis at L5/S1, was accomplished on July 30, 2001.
Two weeks later, Haines retired, joining his wife, Judy, who had herself retired in 1998. Haines is now receiving a pension and Social Security retirement benefits (his application for Social Security disability benefits was denied and on appeal as of the date of hearing). He has not sought to return to work in any capacity, with Farmers Elevator Company or any one else, and has no intention of doing so in the future.
According to Haines, he did not originally intend to retire at his present age, and would still be working but for his injury. He currently has constant low back pain, worse with extended sitting or standing, numbness, coldness, burning and dragging of the foot, and complains of interrupted sleep, reduced lifting ability (perhaps 30 pounds from table height), reduced ability to drive, fatigue, and the need to lie down during part of each day.
According to Jeff Nelson, Farmers Elevator Company general manager, Haines was a good worker and could still be working today (except at the scales), even with such self-imposed restrictions as he has, including the need to lie down during the workday.
On September 28, 2001, Dr. Boulden found Haines with some numbness and tingling, but no pain and beginning to get some active dorsiflexion. He thought maximum improvement might be reached some six months post surgery, but oddly, only a few days later (October 2) wrote:
Mr. Haines has reached his maximum medical improvement from the surgery of July 30, 2001. I will comment, however, that it may be upwards to six months before we know whether the weakness will come back to normal. I would preface this with the fact that he could return to work status under restricted duty, but this would be sedentary work only.
(Ex. 3, p. 40)
On April 12, 2002, Dr. Boulden reported to Dr. DeVore:
This patient was seen by me in the office today for follow-up. He has had his EMG. He still has chronic neuropathic changes seen in the left L5 supply, but the acute irritability noted last summer is 90 percent resolved; therefore, I think he is as good as he is going to get.
(Ex. 3, p. 42)
Dr. Boulden later offered an impairment rating of 13 percent of the spine. (Ex. 3, p. 43) He never recommended permanent activity restrictions, presumably because Haines is no longer a part of the competitive labor market. Haines is currently treating with Dr. DeVore only.
Occupational physician John D. Kuhnlein, D.O., evaluated Haines at his own request on July 31, 2003. Dr. Kuhnlein’s report contained a comprehensive narrative of Haines’ medical and occupational history (although significantly erroneous in one respect: that Haines reported no back or leg symptoms from 1962 through October 1999), and noted the following current complaints:
Mr. Haines relates a nagging low back pain that increases with activity. His pain ranges between 4 and 8 or 9 on a scale of 10, but is usually 6 on a scale of 10. Coughing and sneezing make his symptoms worse, as does a Valsalva maneuver [forcible exhalation effort against a closed glottis]. He does not relate bowel or bladder control problems. He describes numbness from the left knee into all of his toes that increases distally from the knee. He relates that he has alternating hot and cold symptoms with a stinging sensation in his foot that seems to be moving proximally. His wife relates that his left leg flutters at night. Mr. Haines relates that his leg symptoms are worse than his back symptoms.
(Ex. 8, p. 95)
On physical examination, Dr. Kuhnlein noted (as had other doctors in the past) that Haines has marked atrophy of the left calf: 38.5 centimeters versus 41 centimeters on the right. The left foot was significantly colder than the right, and the temperature variation extended proximally to the mid-calf region. Dr. Kuhnlein thought the neuropathic lower extremity symptoms were akin to causalgia or complex regional pain syndrome [“CRPS”], although it is not clear that this diagnosis falls within his area of expertise.
According to Dr. Kuhnlein, Haines’ condition could be improved with evaluation and treatment directed to his causalgia-like pain, but the prognosis for unrestricted return to work was very poor; however, he does think Haines capable of returning to work with accommodations. He outlined restrictions in chart form: occasional lifting up to 25 pounds (waist to shoulder, less above or below), and no stooping, bending, crawling, kneeling, or working on uneven surfaces, heights/pits, or ladders. Haines can sit, stand, or walk to tolerance. (Ex. 8, p. 101) Despite believing that Haines has not yet reached maximum medical improvement (he still needs treatment for causalgia-like symptoms), Dr. Kuhnlein rated current impairment at 27 percent of the whole person. (Id.)
Defendants requested a vocational assessment from vocational consultant Connie Oppedal, who authored a report dated October 24, 2003. Oppedal has never met Haines and has not provided any vocational or rehabilitative services. Her report is based entirely on a review of records. Oppedal correctly points out that Haines’ lack of motivation is a significant factor and points out a number of transferable job skills: customer service, sales, supervision, management, feed and grain/elevator industry experience, quality control, training, purchasing and presentation. She thinks he could return to employment in a number of fields at a salary range of $27,000.00 to $50,000.00. (Ex. E, p. 25)
CONCLUSIONS OF LAW
Loss of earning capacity is measured in relation to the competitive labor market as a whole and is not limited to the person's current position and employer. This is so because the only certainty about the future is uncertainty. Employees are forced into the competitive labor market when their employers go out of business, outsource their work, merge, or are acquired by other businesses. It is for this reason that these unpredictable events occur that the measure of loss is in relation to the competitive labor market rather than employment with a single employer. The degree of loss is measured by comparing the employee's earning capacity as it existed at the time of injury with the earning capacity that exists after recuperation from the injury.
Permanent partial disability that is not limited to a scheduled member is compensated industrially under section 85.34(2)(u). Industrial disability compensates loss of earning capacity as determined by an evaluation of the injured employee’s functional impairment, age, intelligence, education, qualifications, experience and ability to engage in employment for which the employee is suited. Second Injury Fund of Iowa v. Shank, 516 N.W.2d 808. 813 (Iowa 1994), Guyton v. Irving Jensen Co., 373 N.W.2d 101, 104 (Iowa 1985), Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 (1935). The concept is quite similar to the element of tort damage known as loss of future earning capacity even though the outcome in tort is expressed in dollars rather than as a percentage of loss. The focus is on the ability of the worker to be gainfully employed and rests on comparison of what the injured worker could earn before the injury with what the same person can earn after the injury. Second Injury Fund of Iowa v. Nelson, 544 N.W.2d 258, 266 (Iowa 1995), Anthes v. Anthes, 258 Iowa 260, 270, 139 N.W.2d 201, 208 (1965). Impairment of physical capacity creates an inference of lessened earning capacity. Changes in actual earnings are a factor to be considered but actual earnings are not synonymous with earning capacity. Bergquist v. MacKay Engines, Inc., 538 N.W.2d 655, 659 (Iowa App. 1995), Holmquist v. Volkswagen of America, Inc., 261 N.W.2d 516, 525, (Iowa App. 1977), 4 Larson’s Workers’ Compensation Law, §§ 57.21(a) and 57.31(a) (1997). The loss is not measured in a vacuum. The worker’s personal characteristics, which affect the worker’s employability, are considered. Ehlinger v. State, 237 N.W.2d 784, 792 (Iowa 1976). Earning capacity is measured by the employee's own ability to compete in the labor market. An award is not to be reduced as a result of the employer’s largess or accommodations. U.S. West v. Overholser, 566 N.W.2d 873, 876 (Iowa 1997), Thilges v. Snap-On Tools Corp., 528 N.W.2d 614, 617 (Iowa 1995).
Larry Haines is no longer part of the work force. He has retired, joining his wife who retired in 1998. Therefore, as defendants contend, his lack of motivation is a significant factor in determining industrial disability. Haines claims that he retired because of symptoms that left him unable to do the job, or at least all of it, but that contention is unpersuasive: he retired only two weeks after surgery, when the final outcome and level of residual symptoms was still unknown and unknowable. Had he attempted to return to work, rehabilitation protocol may well have included additional physical therapy and work hardening, and potentially additional attention directed to his “causalgia-like” symptoms as recommended by Dr. Kuhnlein. (Note: Haines is entitled to lifetime medical care for his injury, so this may yet come to pass). Haines’ current earnings, zero, are for that reason not indicative of his current earning capacity.
Absent motivation to return to competitive employment, residual earning capacity is largely defined by medical restrictions. Dr. Boulden, the treating surgeon, did not impose permanent restrictions. The best record evidence consists of the recommendations offered by Dr. Kuhnlein, which are significant.
Although special accommodations or largesse not generally available in the industry are not to be used to reduce an award, it is noted that this claimant spent his entire career working for a single employer. That employment essentially defines what his earning capacity has been up to the present time. Farmers Elevator Company considers Haines a valuable employee, and could offer him his regular job, with some assistance from other workers. There is no evidence proving or disproving that other cooperatives or elevators would not offer similar assistance to a valued “jack of all trades” with wide-ranging experience in the field. As vocational consultant Oppedal has pointed out, Haines has many valuable transferable skills.
On the other hand, Haines has now undergone three painful back surgeries and suffers from causalgia-like burning in his left foot. He thinks it necessary to lie down during the work day, although this necessity has not been tested by an actual return-to-work effort. The atrophy in his left calf is mute evidence of what is clearly a painful condition.
Considering all the factors of industrial disability as set forth above, it is found that, by reason of the work injury suffered on October 7, 1999, Larry Haines has sustained loss of earning capacity on the order of 40 percent of the body as a whole, or the equivalent of 200 weeks.
ORDER
THEREFORE, IT IS ORDERED:
Defendants shall pay two hundred (200) weeks of permanent partial disability benefits at the rate of six hundred eight and 31/100 dollars ($608.31) commencing October 2, 2001.
Defendants shall have credit for benefits paid.
Accrued weekly benefits shall be paid in a lump sum together with statutory interest.
Defendants shall file subsequent reports of injury as required by this agency.
Costs are taxed to defendants.
Signed and filed this _____22nd______day of January, 2004.
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DAVID RASEY
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies to:
Mr. Jason D. Neifert
Attorney at Law
6611 University Ave., Unit 200
Des Moines, IA 50311-1655
Mr. Jeffrey W. Lanz
Attorney at Law
317 6th Ave., Ste. 200
Des Moines, IA 50309-4127
DRR/smb