WEIDEMAN V. INTERSTATE MECHANICAL CORP.
Page 1
BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______
:
JAMES WEIDEMAN, :
:
Claimant, :
:
vs. :
: File Nos. 5005629 & 5005632
INTERSTATE MECHANICAL CORP., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
FEDERATED INSURANCE CO., :
:
Insurance Carrier, : HEAD NOTE NO.: 1803
Defendants. :
______
STATEMENT OF THE CASE
This is a consolidated contested case proceeding in arbitration under Iowa Code chapters 85 and 17A. Claimant, James Weideman, sustained stipulated work injuries in the employ of defendant Interstate Mechanical Corp. on September 30, 1998 (file no. 5005629) and March 12, 2002 (5005632). He accordingly now seeks benefits under the Iowa Workers’ Compensation Act from that employer and its insurance carrier, defendant Federated Insurance Co.
These claims were heard and fully submitted in Sioux City, Iowa, on June 21, 2004. The record consists of Weideman’s testimony and exhibits 1-13 and 16-22). Two other claims consolidated for hearing (file nos. 5005630 and 5005631) were dismissed with permission of the presiding deputy workers’ compensation commissioner.
ISSUES
FILE NO. 5005629 (SEPTEMBER 30, 1998)
STIPULATIONS:
- Weideman sustained injury arising out of and in the course of employment on September 30, 1998.
- The injury caused both temporary and permanent disability.
- Healing period entitlement is not in dispute.
- Permanent disability should be compensated by the industrial method (loss of earning capacity) commencing May 5, 1999.
- The correct rate of weekly compensation is $246.66.
- Entitlement to medical benefits is not in dispute.
- Defendants have paid 45 weeks of permanency benefits at the correct rate.
ISSUES FOR RESOLUTION:
- What is Weideman’s entitlement to permanent disability benefits?
- Are two reports from the same treating physician properly taxable as costs?
FILE NO. 5005632 (MARCH 12, 2002)
STIPULATIONS:
- Weideman sustained injury arising out of and in the course of employment on March 12, 2002.
- The injury caused both temporary and permanent disability.
- Healing period entitlement is not in dispute.
- Permanent disability should be compensated by the industrial method commencing March 24, 2003.
- The correct rate of weekly compensation is $474.06
- Entitlement to medical benefits is not in dispute.
- Defendants have paid 38 weeks of permanency benefits at the correct rate.
ISSUES FOR RESOLUTION:
- What is Weideman’s entitlement to permanent disability benefits?
- Are two medical reports taxable as costs?
- Should permanent disability be apportioned under Iowa Code section85.36(9)(c)?
FINDINGS OF FACT
James Weideman is a right-handed 1983 high school graduate who has attended two semesters of college and taken a six-month welding course resulting in certification. He has also served a four-year apprenticeship as a sheet metal worker.
Weideman’s work history included many years of being a welding route salesman prior to August 1996, when he started with Interstate Mechanical as a union sheet metal “helper.” Eight months later, Weideman began his apprenticeship, and in March 2001 qualified as journeyman. Interstate Mechanical is a heating and air conditioning contractor on both new and existing construction projects.
Weideman had no physical limitations at the time of hire with Interstate, despite having unknown congenitally fused cervical discs at C3-4. This condition was not discovered until after the first of Weideman’s two work injuries at Interstate Mechanical.
This injury was sustained on September 30, 1998, when Weideman experienced a “pop” in his neck while ascending a ladder carrying a load of angle iron. Care was provided by neurosurgeon Thorir S. Ragnarsson, M.D., who ordered an MRI scan demonstrating a large right-sided disk herniation at C6-7. Dr. Ragnarsson then accomplished an anterior C6-7 diskectomy and fusion with bone graft on April 13, 1999. (Exhibit 8, page 8)
A good result was had. Dr. Ragnarsson released his patient to light-duty work on May 10, 1999, and removed all work restrictions on June 11, 1999, at which time he released Weideman from care. (Ex. 8, p. 12)
Although a good result was had, a perfect one was not. On June 30, 1999, Dr.Ragnarsson noted loss of muscle mass in the right upper arm, although he anticipated further recovery and did not impose any activity or work restrictions. (Ex. 8, p. 13) On October 13, 1999, Dr. Ragnarsson rated impairment at nine percent of the whole person. (Ex. 8, p. 16) Defendants voluntarily paid permanency benefits based on that rating.
Weideman continued to work full duty, and became a journeyman in March 2001. Although able to do the full job without assistance he did experience some weakness and spasming neck muscles. Unfortunately, in March 2002 Weideman developed a sensation of electricity and numbness running down both arms and was again in need of medical assistance.
A cervical MRI scan on March 13, 2002 disclosed numerous anomalies, including severe large right and left disc protrusions neuroforaminal encroachment and severe acquired spinal canal stenosis (narrowing) at C5-6, right disc protrusion and moderate neuroforaminal encroachment at C4-5, minor annulus bulging at C6-7, and the previously known congenital nonsegmentation at C3-4. (Ex. 8, p. 19) Dr. Ragnarsson thereupon recommended another extensive surgical repair:
Given Mr. Weideman’s current clinical presentation as well as his MRI scan findings, it is my opinion that his safest and best method of treating this problem is an anterior C4-5 and C5-6 discectomy and interbody fusion with plate instrumentation. In my opinion, he needs to have his spinal cord decompressed. He does have significant spinal cord compression at the C5-6 level, and this needs to be surgically addressed promptly in my opinion. I would also recommend that a C4-5 discectomy be done at the same time simply because he already has a disc herniation there although it’s not very large, but it would be quite likely to further deteriorate and progress if left untreated. I don’t think further conservative treatment is likely to be of any benefit.
(Ex. 8, p. 22)
Dr. Ragnarsson continues to recommend the surgical option, but Weideman has to date declined, wishing to avoid what would amount to a continuous fusion all the way from C3 to C7. Weideman recognizes that the procedure may be inevitable in the long run, but at least prefers to postpone it as long as possible. His position also enjoys professional support in the person of evaluating orthopedic surgeon Patrick Bowman, M.D., who reported on October 16, 2003, as follows:
I do not see an urgency to return to surgery, but certainly feel a close followup to assess for the development of myelomalacia or progressive myelopathy is in order. I think there is a reasonably good chance that he will carry on for an extended period, and I think even if this surgery could be delayed a number of years, it is in his interest in the long term because of his young age. Eventually I think it is highly likely that he will require a pan cervical fusion which will extend from C3 to C7. This long fusion will certainly create problems at the levels above and below these.
In summary, at this point I think that in view of the fact that he appears neurologically stable, the better option is to simply observe this, as long as the status quo is maintained.
(Ex. 12, p. 9)
On October 9, 2002, Dr. Ragnarsson imposed activity restrictions against overhead work or lifting in excess of 20 pounds (occasionally only) and limiting neck extension and flexion. (Ex. 8, p. 26) Since he continues to recommend surgery, Dr.Ragnarsson refuses to rate permanent impairment on the grounds that Weideman has not yet reached maximum medical improvement. (Ex.8, p. 35) He thinks a formal, detailed evaluation of physical abilities and work restrictions should be developed following a functional capacity evaluation.
Dr. Bowman rated impairment at 25 percent of the whole person and recommends the following activity restrictions:
It is my strong opinion that Mr. James Weideman is permanently and totally disabled from carrying out any overhead work because of the adverse forces this places on his cervical spine. This type of activity could certainly accelerate the day that additional intervention becomes necessary. In addition, I think there is a safety element as well, trying to accomplish this type of posture on a ladder or in tight spaces which he is often required to do in his job. It is my opinion his work injuries identified did to some degree serve as an aggravation of this underlying condition and is a factor in causing his current conditions.
(Ex. 12, p. 9)
Interstate Mechanical has not offered continued employment; Weideman has not worked at all since March 12, 2002, and has not actively looked for work since approximately April 2003. In January 2003, Weideman began a community college course of study in computer-aided drafting, with half his tuition covered by the Iowa Division of Vocational Rehabilitation Services. Defendants Interstate Mechanical and Federated Insurance have offered no educational assistance, although some limited job placement assistance was provided. Weideman hopes to graduate in May 2005 with an associate’s degree in architectural technology with an anticipated starting wage of approximately $10.00 per hour.
Dr. Ragnarsson’s associate, Quentin J. Durward, M.D., offered the following recommendations (recorded by physician’s assistant Emile Fernando) on March 24, 2003:
He wanted to know if there is any work here that he can pursue. Dr.Durward recommended that avoiding any labor intensive or heavy lifting type work. He could drive a truck for short periods of time but long hauls might aggravate his neck symptoms. He stated that he is going to school right now to look for a desk job type position which probably will be the ideal work environment for him.
(Ex. 8, p. 27)
Clinical neuropsychologist John E. Meyers, Psy.D., evaluated Weideman with a view to vocational rehabilitation recommendations on January 31, 2003. According to Dr. Meyers, Weideman has a pain disorder with both psychological factors and a medical condition, but his overall performance on the neuropsychological battery of tests was within the normal range and he should be able to perform any vocational level from technical to unskilled, including office, managerial and sales positions. (Ex. 13, pp.5, 7)
It is noted that in June 2002, Weideman for a time had reduced symptoms while off work following layoff, and was released to full duty work without restriction by neurosurgeon Douglas J. Long, M.D. (Ex. 10, p. 4) Dr. Long’s opinion as of that date is unsupported by other health professionals and is not consistent with Weideman’s present level of symptoms. For these reasons, Dr. Long’s release without restriction is not accepted as accurate reflecting Weideman’s current medical condition and limitations.
Currently, Weideman complains of frequent “bad days,” with constant dull pain in the arms, neck and fingers, loss of dexterity, loss of upper extremity strength (more so on the dominant right side), problems sleeping and “falling asleep” sensations in the toes. All of these symptoms tend to worsen with physical activity. Weideman does not think himself capable of performing any of his previous jobs, all of which require lifting and neck extension, and does not think he is capable of driving truck over the road. There are “bench” jobs theoretically available in the sheet metal trade (putting materials together to assist journeymen), but are so few in number as to be an unrealistic aspiration.
CONCLUSIONS OF LAW
FILE NO. 5005629 (SEPTEMBER 30, 1998)
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 Iowav. 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 Iowav. 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, Sections 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. Westv. Overholser, 566 N.W.2d 873, 876 (Iowa 1997), Thilges v. Snap-On Tools Corp., 528 N.W.2d 614, 617 (Iowa 1995).
After reaching maximum medical improvement following the 1998 injury, Weideman was returned to full duty work without restriction, but had impairment and some continued symptoms and residual loss of strength and spasming. Considering all the factors of industrial disability set forth above, it is concluded that, by reason of the September 30, 1998 work injury, James Weideman sustained loss of earning capacity on the order of 10 percent of the body as a whole, or the equivalent of 50 weeks of permanent partial disability. Per stipulation of the parties, permanency benefits commence on May 5, 1999.
FILE NO. 5005632 (MARCH 12, 2002)
Weideman’s 2002 cumulative injury has much greater industrial impact. Due to the work restrictions recommended by Drs. Ragnarsson, Durward and Bowman, Weideman can no longer function as a sheet metal journeyman. Due to lifting and driving requirements, it is unlikely that Weideman can work as a route salesman, his other area of significant vocational experience.
On the other hand, Weideman is a high school graduate who clearly has the mental capacity to retrain at age 40, and the proven motivation to do so. His successful career as a salesman indicates that he has appropriate “people skills” that would be transferable to any number of other vocations, plus the organizational aptitude to back it up. Unfortunately, even if he successfully negotiates his current course of study (for which, incidentally, defendants are not entitled to “credit” in the absence of any assistance), his anticipated starting wage will be significantly less than his earnings as a sheet metal journeyman. Considering all the factors of industrial disability set forth above, it is concluded that, by reason of the stipulated March 12, 2002 work injury, Weideman has sustained loss of earning capacity on the order of 40 percent of the body as a whole, or the equivalent of 200 weeks of permanent partial disability. As per stipulation, permanency benefits commence on March 24, 2003.
Are these benefits apportionable under Iowa Code section 85.36(9)(c)? Under the statute, benefits are apportionable if the worker is “disabled and drawing compensation” at the time of the injury for which compensation is sought. See, Excel Corp. v. Smithart, 654 N.W.2d 891 (Iowa 2002). Weideman’s injury on March 12, 2002 occurred more than 50 weeks after the commencement date of permanency benefits for the 1998 injury; therefore, under any theory, Weideman was not “disabled and drawing compensation” on March 12, 2002, and apportionment is not appropriate.
It remains to determine whether two of Dr. Ragnarsson’s reports are properly assessable as costs. Under 876 Iowa Administrative Code 4.33(6) the reasonable costs of obtaining no more than two doctor’ or practitioners’ reports are properly assessed as costs. The rule does not require that the reports come from two different doctors. Accordingly, both reports from Dr. Ragnarsson are properly assessed as costs in this matter.
ORDER
THEREFORE, IT IS ORDERED:
FILE NO. 5005629 (SEPTEMBER 30, 1998)
Defendants shall pay fifty (50) weeks of permanent partial disability benefits at the rate of two hundred forty-six and 66/100 dollars ($246.66) commencing May 5, 1999.
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.
FILE NO. 5005632 (MARCH 12, 2002)
Defendants shall pay two hundred (200) weeks of permanent partial disability benefits at the rate of four hundred seventy-four and 06/100 dollars ($474.06) commencing March 24, 2003.
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 ____5th______day of October, 2004.
______
DAVID RASEY
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies to:
Mr. Dennis M. McElwain
Attorney at Law
P.O. Box 1194
Sioux City, IA 51102-1194
Mr. Timothy A. Clausen
Attorney at Law
P.O. Box 327
Sioux City, IA 51102-0327
DRR/smc