SANDERS V. AMSTED RAIL COMPANY, INC.
Page 1
BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
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:
TONY R. SANDERS, : File No. 5033543
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Claimant, :
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vs. : A P P E A L
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AMSTED RAIL COMPANY, INC., : D E C I S I O N
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Employer, :
Self-Insured, :
Defendant. : Head Note No.: 1803
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Self-insured defendant, Amsted Rail Company, Inc., appeals from an arbitration decision filed November 1, 2011, in which the presiding deputy commissioner found that as a result of a work injury on May 5, 2009, that claimant has sustained a 35 percent loss of his earning capacity – providing defendant a credit for prior whole person permanent partial disability benefits paid for a prior right shoulder injury. Defendant asserts on appeal that the presiding deputy commissioner erred as to the extent of permanent partial disability. Claimant, Tony R. Sanders, asserts that the findings of the deputy should be affirmed on appeal. The arguments of the parties have been considered and the record of evidence has been reviewed de novo.
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 November 1, 2011 filed in this matter that relate to issues properly raised on intra-agency appeal with the following additional analysis:
Defendant asserts on appeal that the presiding deputy commissioner erred in awarding permanent partial disability benefits above functional impairment due to claimant’s injury of May 5, 2009. While defendant is correct that claimant’s loss of job opportunities and overtime income with defendant-employer is also due to restrictions imposed for the prior right shoulder injury for which compensation has been paid by defendant, it is apparent following a de novo review of the evidence that claimant has a combined disability resulting from the bilateral shoulder injuries incurred with this defendant-employer. Claimant’s testimony concerning his chronic bilateral shoulder pain and daily use of Vicodin – which contains the narcotic, hydrocodone – for his bilateral shoulder pain was uncontroverted and was found credible by the presiding deputy commissioner. While claimant was sparse in his testimony regarding the tasks made difficult at work due to his left shoulder injury, claimant did identify in his testimony that he was limited in the one task of assisting the area utility worker in stocking boxes,
but his claim that he is not assisting as much as he used to do is also uncontroverted and was also believed by the presiding deputy.
Further, the opinions of Theron Jameson, D.O., which are based in part on claimant’s report of left AC joint pain, are more convincing as to permanent impairment than was the report of claimant’s impairment by the treating physician, Abdul Foad, M.D. Dr. Foad did report in November 2009 that claimant had no complaints and no AC joint pain in the left shoulder when he released claimant from his care. (Exhibit 2, page 10) However, that evaluation was done before claimant had returned to his regular duties as a pourer. The evaluation of Dr. Jameson was performed after claimant had been performing regular duty for almost 17 months and is therefore a more accurate view of claimant’s functional status at the time of the hearing.
Therefore, given chronic bilateral pain, daily use of a narcotic medication, and the added restrictions by Dr. Jameson, a finding of a 35 percent loss of earning capacity for the combined disability from the two work injuries, as required in Iowa Code section 85.34(7)(b)(2), is appropriate and therefore affirmed. It is also well-settled in Iowa that a showing that claimant had no loss of his job, or actual earnings, does not preclude a finding of industrial disability. Loss of access to the labor market is often of paramount importance in determining loss of earning capacity, although income from continued employment should not be overlooked in assessing overall disability. Ellingson v. Fleetguard, Inc., 599 N.W.2d 440 (Iowa 1999); Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Collier v. Sioux City Comm. Sch. Dist., File No. 953453 (App. February 25, 1994); Michael v. Harrison County, Thirty-fourth Biennial Rep. of the Industrial Comm’r, 218, 220 (App. January 30, 1979).
ORDER
IT IS THEREFORE ORDERED that the arbitration decision is AFFIRMED.
Defendant shall pay the costs of this matter and of the appeal, including the preparation of the hearing transcript.
Signed and filed this 25th day of January,2013.
Copies to:
Nicholas G. Pothitakis
Attorney at Law
PO Box 337
Burlington, IA 52601-0337
Bill M. Lamson
Attorney at Law
222 South 72nd Street, Suite 302
Omaha, NE 68114
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