STATEMENT OF THE CASE
This is an arbitration proceeding. Claimant, Eusebio Pedraza, filed his petition with the Iowa Division of Workers’ Compensation on July 21, 2003. He alleged he sustained a work-related injury on May 15, 2003 while he was in the employ of Huber Slats, Inc. At the time, claimant was employed by Huber Slats, Inc. as a general laborer. For purposes of workers’ compensation, Huber Slats, Inc. is insured by First Comp, Insurance Company. Defendants filed their answer to the petition on September 8, 2003. They denied the occurrence of a work injury.
The parties indicated they would be ready to try this case on or after July 1, 2004. The hearing administrator set the date for hearing as July 23, 2004. The hearing was held on the aforesaid date in Des Moines, Iowa at the office of Iowa Workforce Development.
The undersigned appointed Tammy Guenther as the certified shorthand reporter. She is the official custodian of the records and notes. The parties also waived the audio recording of the hearing proceedings. Rosa Maria Paramo-Ricoy acted as interpreter.
Claimant testified on his own behalf. Ms. Bertha Pedraza, spouse, testified for her husband. Mr. William Le Roy Huber testified for defendants.
The parties offered exhibits as evidence in the hearing. The following exhibits were admitted as evidence: Claimant’s exhibits 1-15 and defendants’ exhibits A-C.
The stipulated matters are:
There was the existence of an employer-employee relationship at the time of the alleged work injury;
At the time of the alleged injury, the claimant’s gross earnings were $401.25 per week and the parties believe the weekly rate to be $288.52 per week; and
The parties can agree to the costs involved in the case to litigate before the commissioner.
The issues for determination are:
Whether claimant sustained an injury on May 15, 2003 that arose out of and in the course of his employment;
Whether the alleged injury is a cause of temporary or permanent disability;
Whether claimant is entitled to temporary benefits for the period from May 16, 2003 through June 30, 2004;
Whether claimant is entitled to permanent partial disability benefits and if so, the commencement date for any permanent partial disability benefits;
Whether defendants are liable for medical expenses pursuant to section 85.27 of the Iowa Code, as amended;
Whether claimant is entitled to penalty benefits pursuant to section 86.13 of the Iowa Code, as amended; and
Whether defendants are entitled to apportionment.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This deputy, after hearing the testimony, after reading the evidence and after reading the post-hearing briefs, makes the following findings of fact and conclusions of law:
Claimant is a 41 year old married father of six minor children. Currently, he resides in Columbus Junction, Iowa. Claimant immigrated to this country from Mexico 12 years ago. He attended school in Mexico through the sixth grade. Since arriving in the United States, claimant has taken English as a second language while he was enrolled in various classes. Claimant testified the classes have assisted him with speaking English but he does not read English well. Claimant can complete employment applications on his own. He is able to write the answers to questions posed on the application form. While he was employed at Huber Slats, Inc., claimant acted as a Spanish interpreter for some of his co-workers.
Previously, claimant sustained a work-related work injury to his left arm while he was in the employ of IBP, inc. Claimant filed an original notice and petition with the Iowa Division of Workers’ Compensation. The deputy workers’ compensation commissioner, after conducting a hearing, determined claimant not only sustained an injury to his left arm but he also suffered from depression and he experienced chronic pain. Consequently, the deputy held claimant was entitled to an industrial disability in the amount of 45 percent. IBP, inc. was ordered to pay claimant 225 weeks of permanent partial disability benefits at the rate of $195.10 per week. The deputy determined the appropriate commencement date for permanent partial disability benefits was April 1, 1997. See: Pedraza v. IBP,inc., File number 1150263, (Arb. December 7, 1999).
Following his workers’ compensation award, claimant was terminated by the packing plant. Apparently, there was no work for claimant to perform.
Claimant’s tax records are summarized in exhibit five. Since 1998, the highest income claimant has even earned has been $18,789.00. In 2003, claimant earned $2,735.00. There is no information for 2004.
On March 16, 2001, claimant commenced his employment with the present defendant-employer. The corporation is engaged in the manufacture of concrete cattle bunks (forms) that weigh as much as 2,850 pounds. The work is in the heavy category of labor. Standard concrete work is required. Some truck driving is involved too. Claimant testified, he did not have any difficulty completing the tasks assigned to him while he was employed as a general laborer until the day in question.
Claimant and his supervisor, William Le Roy Huber were working together on the morning of May 15, 2003. No one else was present. Exhibit 10-4 is claimant’s time card. According to the time card, claimant punched in for work at 7:25 a.m. and punched out at 9:54 a.m. There is a handwritten notation on the time card for May 15, 2003. It reads, “Left early said his back was sore.” (Exhibit 10-4)
Ms. Zana Ennis, bookkeeper and secretary for the corporation, testified she maintains the records for the company. She testified that:
Okay. So that’s my question. Mr. Huber tells you this, what you’ve just told us, and what did you do, based on him telling you what you just told us?
I didn’t do anything.
He didn’t say he had been hurt. He just said that Easy, Eusebio, had left because he said his back was sore. So I didn’t really think that much of it, so I didn’t do anything. I mean, he didn’t say he had had an accident, or anything. He just said his back was sore.
I think the calendar is going to show that this happened on a Thursday, May 15, 2003. You have hours cards, time cards, that are going to show that, wouldn’t you?
In fact, I’ve made a copy and sent to their office.
Just so we’re clear, you weren’t there when Eusebio said, as you say, “My back is sore, I’m going home”? That is something that you just got secondhand from Mr. Huber, right?
MR. McANDREW: That’s all I have.
MR. MOCK: I don’t have anything further.
(Ex. 8, p. 33)
Claimant and his supervisor strongly disagree about the events that occurred during the two and one half hour shift claimant worked on the 15th. Claimant testified in his deposition that:
Now, we’re here today because of an injury that you say happened at Huber Slats. Tell me what happened that day.
That day, we were working on a mold, a form, and we had to – we had lifted it up on a forklift and we were about to turn it. On that day, we were only two of us, because normally we work with three or four people. But there wasn’t very many people, so it was just the two of us.
And so then we were about to turn it over, and we were turning it over. And all of a sudden the form – he had lifted it up a little higher than normal, and then he turned it over, and when he turned it over, it was coming towards us. So with his body – he put the body in there.
And so then when – since he was underneath most – underneath the form, he said, “Hold it, hold it, hold it.” And I knew that I had to hold it because if not, it would have dropped right on his head and smashed it open. And that’s when I suffered this problem.
Now, you said that he told you to hold the form. Who is “he”?
Huber, Bill. Bill – is called Bill.
And was it just you and Mr. Huber working at that – on that bunk that day?
Yes, because the other one was driving out in the road somewhere.
And I just want to make sure I understand what you told me. You and Bill were both turning the form when this injury happened?
Okay. Now, you said that the form was turning over on top of Bill, is that correct?
It wasn’t going to fall. It was turning over too fast on him.
And then you thought the form was going to hit Bill?
He was – he – when it was turning over, he was – he put his body into it, and I knew that it would hit him on the head. So then I was – I heard him say, “Hold it, hold it,” And when I did that, then I remember that I put my hands in there to hold it, and then my back cracked. I heard a noise in my back, and then I knew right there that I had done something to it.
Did you tell Bill that you had hurt your back at that time.
What did you tell Bill?
I told him that I had – I thought that I had hurt my back. And I said, “I think I hurt my back because it cracked. I heard it crack.” And so that was when he told me right there, he says to put some medicine on it, Jodex, and –
THE REPORTER: Pardon?
THE INTERPRETER: Jodex. That’s what he said, J O D E X, I’m assuming.
-- and then to do some exercise and then to go home and lay down.
How soon after you felt the back crack, as you said, did you tell Bill that you hurt your back?
Right there at that moment.
Do you remember the exact words you used to tell Bill what had happened?
I told him right there, I said, “Bill, I think that I just screwed up my back. I can’t do any more work.”
And just so I’m clear, you said that Bill told you to use the medicine?
He – he told me – Yes, he told me to use Jodex – Jodex – and then he started showing me exercises. And right there in front of me, he was doing some exercises for me to do. And that’s all he –
(Ex. 6, pp. 12 through 15)
At his hearing, claimant testified, he specifically informed Mr. Huber he was leaving work because he had injured himself when he was flipping forms. According to claimant’s testimony, that is when Mr. Huber told claimant about the ointment, JODEX and Mr. Huber discussed some back exercises to perform at home. Claimant did not request medical care. Mr. Huber did not offer medical care from an authorized treating physician nor did Mr. Huber discuss light duty work. Claimant never returned to work at Huber Slats, Inc.
In his deposition, Mr. Huber testified that:
What I’m trying to get at is, who is on the fork truck when you and Eusebio are at either ends of the mold turning the mold over?
He’s supposed to be standing in the bunk. It takes about five pounds of – When it’s setting there like that, it takes about five pounds of pressure to settle it. I’m lifting it up.
So that morning when you were stripping the J-bunks, before Eusebio went home with a sore back, you were operating the fork truck and he was flipping the bunks?
That’s incorrect. Absolutely incorrect?
I’m sorry. What was happening?
We lift the bunk up. He’s not flipping it by himself. The two of us are flipping it. You lift it up, he’s steadying it. Five pounds of pressure to steady it. In other words, I could steady it with one finger.
And then after you get it lifted up, then you spin it and then you set it back down. There isn’t – once it’s in this position (indicating), there is very little – like you can lift it up here (indicating), and it’s not going anywhere, right?
Here is my question.
Who is on the fork truck when it’s being lifted up?
Okay. And at that point in time, Eusebio is steadying the mold, correct?
When you’re lifting it up, nobody is steadying it because it doesn’t need steadied. When you’re first lifting it up in this position right here (indicating), you can lift it up and it doesn’t need steadied. You lift it up and you turn it.
Maybe I got you confused here. In this position (indicating), these – these deals right here that spin the bunk, you lift it straight up and it’s pretty much straight. Nobody has to steady it. It’s when you turn it. We do have some stuff that is like that, but these you just lift it up, and you turn it right on this device and then you set it right back down.
You’re on the fork truck, you lift the mold up –
Yep. It’s about this high off the ground (indicating), about two feet. Just enough to clear here (indicating).
Okay. Then do you get off the fork truck?
Okay. And then you’re at one end of the mold, like this mold that we have shown in the photograph –
-- which is Exhibit 11?
And Eusebio is at the other end of the mold?
And the fork truck is like in the middle of this mold?
Okay. And then you, by lifting, roll this thing away from the fork truck, is that correct?
That’s correct. You spin it. You spin it on this clamp. It’s not actually going forward. It’s just sitting there spinning like a Ferris wheel seat.
Right. That’s what you said. You have an I beam that –
-- basically is –
The bunk is not going forward or back. It’s just turning, like this bottle of water (indicating). It’s not going forward or back. It’s just turning in that position.
THE WITNESS: Sorry.
None of your J-bunk molds had any defects in them that made them more difficult to spin than the others?
No, it’s like anything. It’s not perfect. Of course, they do. Every – every form I have – I’ve got over a hundred – a hundred and fifty slab forms. Every one strips a little differently. Same way here. Are they perfect? Absolutely not. Yes, some strip harder than others.
. . . .
Okay. There are a couple of them there that in May of 2003 rolled more difficultly?
Yes, that’s correct.
Eusebio is going to testify that one of them rolled so difficultly that at one point you – you went to grab a different part than what is normal, and that he was left bearing a lot of the weight of the mold. Do you remember that happening on the morning of May 15th?
I don’t necessarily remember that happening on – on – but any time you run, or do anything, your feet, your hands, your positioning – that could be true, absolutely. Like I say, any time you run or you turn something different – if everybody is not doing it in exact unison like a machine, absolutely there is different – people have different amounts of weight. But this bunk form, I can strip by myself.
(Ex. 7, pp. 25 through 28, 29)
The first medical care claimant sought was on May 19, 2003. He presented himself to the Unity HealthCare Clinic in Muscatine. C. Hostetler, M.D. examined claimant. In her clinical notes, she recorded a history of a work injury on the date in question. Dr. Hostetler wrote:
This 40 year old male comes in w/ lower back pain that he has had since 05/15/03, after trying to turn a heavy beam that he says is made out of metal and cement. He was working w/ his supervisor, one on each end of the beam, they were turning it and somehow it slipped and he had to bear a lot of the weight while somebody else was getting out of the way. Since that time, he has had a lot of pain in his lower back.
The family physician diagnosed claimant with “Lower back strain from work incident on 05/15/03. This may be a disk problem. However, will treat conservatively. . . .” (Ex. 1-1). Dr. Hostetler issued a written release form work. (Ex. 1 2) The form stated:
Seen for back injury that is work related. Please excuse from work through 5/25/03. May need another week beyond that if still having problems.
Claimant’s eldest child presented the work release form to Mr. Huber. The child attached the medical bill for services rendered.
Claimant returned to the Unity Health Care Clinic on May 27, 2003. He reported back pain. Dr. Hostetler noted, “Work injury with resulting back pain.” (Ex. 1-3) Claimant was released from work for the period from May 27, 2003 through June 9, 2003. Claimant rated his level of pain as 8 to 10 on a scale of 10. (Ex. 1-7)
On June 10, 2003, claimant returned to Dr. Hostetler. The physician diagnosed claimant with “Back pain secondary to lifting injury at work on 05/15/2003.” (Ex. 1-8) Claimant had significant pain in his mid to lower back. (Ex. 1-8) Dr. Hostetler discussed a phone call she held with a representative of Huber Slats, Inc. (Ex. 1-8) Dr. Hostetler issued a release from work for the period from June 10, 2003 through June 23, 2003. (Ex. 1-9)
On June 14, 2003, claimant sought treatment at the emergency room at the University of Iowa Hospitals and Clinics. (Ex. 2-1) Claimant provided a medical history to hospital personnel that included the injury on May 15, 2003. David Walz, PAC diagnosed claimant with low back pain radiating into the left leg. (Ex. 2-5) Claimant was advised to follow up with his family physician.
On June 27, 2003, claimant returned to the Unity HealthCare Clinic for follow up care. (Ex. 1-10) Dr. Hostetler again diagnosed claimant with “Work injury w/resulting back pain. Possible this is a disk injury.” (Ex. 1-10) Dr. Hostetler opined a referral to the University of Iowa Hospitals and Clinics was appropriate. (Ex. 1-10)
On July 10, 2003, claimant returned to the emergency room at the University of Iowa Hospitals and Clinics. (Ex. 2-7) The diagnosis given was “back pain possibly nerve irritation.” (Ex. 2-11) The hospital listed the injury as a work related injury. (Ex. 2-11)
On July 28, 2003, claimant had a consultation with Joseph J. Chen, M.D. Claimant provided a history of his injury occurring at work on May 15, 2003. Dr. Chen noted:
Patient with lingering back pain of unclear etiology. He has significant muscle guarding and tightness as well as postural and movement faults. His protectiveness and limitation of his motion are compounding the problem.
Ernest Found, M.D. examined claimant on August 13, 2003. The orthopedist diagnosed claimant with “low back pain symptoms associated with lumbar strain.” (Ex. 2-14) On December 5, 2003, claimant underwent a MRI of the lumbar spine. (Ex. 2-21) J. R. Gambach, M.D. interpreted the results as a central subligamentous disc protrusion at L5-S1. Dr. Gambach did not believe the disc protrusion was in contact with the exiting nerve roots. (Ex. 2-21)
On December 9, 2003, claimant underwent a functional capacity evaluation at the University of Iowa Hospitals and Clinics. (Ex. 2-22) Dr. Found recommended light to medium work for claimant. (Ex. 2-24) Karen K. Drake, PT, MA, opined claimant would not be able to return to concrete work. (Ex. 2-28) Ms. Drake noted claimant is fearful he will re-injure his back. As a consequence, claimant is virtually immobile.
Claimant returned to the University of Iowa Hospitals and Clinics on May 28, 2004. Sergio A Mendoza, M.D. examined claimant for low back pain. The attending physician noted claimant’s use of narcotic medication for pain. (Ex. 2-32)
On May 17, 2004, claimant underwent an independent medical examination by Thomas J. Hughes, M.D. in Geneseo, Illinois. (Ex. 3) Dr. Hughes noted a diminished range of motion of the spine. (Ex. 3-5) Additionally, Dr. Hughes provided a permanent partial impairment rating to the body as a whole. Dr. Hughes concluded claimant had reached maximum medical improvement on May 12, 2004. (Ex. 3-7) Dr. Hughes also concluded:
It would be my conclusion based on this evaluation that Mr. Pedraza has incurred an injury to his lumbar spine that would place him into Diagnosis Related Estimate or DRE Lumbar Category II, and that would constitute a 5 to 8% Impairment of the Whole Person.
Dr. Hughes also discussed claimant’s restrictions. The evaluating physician indicated:
Mr. Pedraza has been rated as having physical capacity limitations that would provide a lifting limitation of approximately 10 pounds and I would further offer that this is probably an appropriate restriction, at least for the foreseeable future.
On May 18, 2004, Ms. Barbara Laughlin, M.A., Vocational Consultant, conducted a vocational assessment of claimant’s skills and qualities. She concluded on the final page of her report:
With a past work history of predominantly unskilled work, Mr. Pedraza’s vocational future becomes exponentially more limited with his negligible English language skills. He will be unable, for example, to be employed in a sedentary capacity such as a hotel desk clerk, a telemarketer, ticket seller, an office clerk, or other positions requiring facility in English. His transferable skills are non-existent, with the exception of one position as a janitor, which is the lowest of semi skilled work and is a position that he could not adequately perform.
As he is now limited to sedentary work, he is limited to approximately 11% of all job titles found in the Dictionary of Occupational Titles. Of those, only 137 job titles are unskilled, and 281 are semi skilled. Of course, he does not have transferable skills. The rest of the 1,397 job titles found in the sedentary exertional level are considered skilled or highly skilled, and so he would be precluded from those positions.
It is my opinion that Mr. Pedraza may benefit from selective placement through State Vocational Rehabilitation.
At this time, it is my opinion that although employment may be found for him, there is no significant employment available to him in any dependability, quality, or quantity.
It is my opinion that Mr. Pedraza has suffered a vocational loss of 85-95%.
As of June 30, 2004, Dr. Mendoza opined claimant had reached maximum medical improvement. Dr. Mendoza recommended activity for claimant. The physician opined, in his report of June 30, 2004, “The longer Mr. Pedraza continues to be physically inactive, the worse his symptoms may become.” (Ex. 2-38)
Dr. Mendoza opined the following with respect to the cause of claimant’s condition:
Mr. Pedraza has been diagnosed with an annular tear on the L5-S1 inter vertebral disc. Although the condition of disc degeneration may have been evolving for many years prior to the accident, it is most likely than not, that the lifting episode referred by the patient during the accomplishment of his work responsibilities aggravated this condition and acutely initiated his current symptoms of low back pain.
Claimant served the report of Dr. Mendoza after the discovery deadline had expired for claimant. It was untimely served. Because defendants did not receive this report until July 21, 2004, the record at hearing was held open. The parties were provided with ample time to depose Ernest Found, M.D. (Ex. C ) The record was not fully submitted until September 21, 2004. At that time, the transcript of Dr. Found’s deposition was filed with the Iowa Division of Workers’ Compensation.
In his deposition, Dr. Found recommended claimant engage in strengthening, stretching and aerobic conditioning. Surgery was not listed as a viable option. Dr. Found opined claimant had reached maximum medical improvement as of December 16, 2003. Dr. Found testified in his deposition that he thought claimant had a soft tissue injury. However, the MRI established there was a subligamentous tear in the intervertebral disk or annulus. (Ex. C-21) Dr. Found opined the MRI findings could not all be attributed to the specific work injury in question. (Ex. C-21) Dr. Found concluded that more likely than not claimant’s condition would improve with time.
The first issue to address is whether claimant sustained a work related injury on or about May 15, 2003.
The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 6.14(6).
The claimant has the burden of proving by of preponderance of the evidence that the alleged injury actually occurred and that it both arose out of and in the course of the employment. Quaker Oats Co. v. Ciha, 552 N.W.2d 143 (Iowa 1996); Miedema v. Dial Corp., 551 N.W.2d 309 (Iowa 1996). The words “arising out of” referred to the cause or source of the injury. The words “in the course of” refer to the time, place, and circumstances of the injury. 2800 Corp. v. Fernandez, 528 N.W.2d 124 (Iowa 1995). An injury arises out of the employment when a causal relationship exists between the injury and the employment. Miedema, 551 N.W.2d 309. The injury must be a rational consequence of a hazard connected with the employment and not merely incidental to the employment. Koehler Electric v. Wills, 608 N.W.2d 1 (Iowa 2000); Miedema, 551 N.W.2d 309. An injury occurs “in the course of” employment when it happens within a period of employment at a place where the employee reasonably may be when performing employment duties and while the employee is fulfilling those duties or doing an activity incidental to them. Ciha, 552 N.W.2d 143.
The two persons present on the job site vary vastly with their renditions of the events that transpired on May 15, 2003. Each person has something to gain from the outcome of this decision. The undersigned had ample time to observe both claimant, Mr. Pedraza, and his supervisor, Mr. Huber, during the course of the hearing. The undersigned also had the benefit of the deposition testimony of each person. In his deposition testimony, Mr. Huber provided evasive answers to the questions posed to him. He was uncertain about so many factual details. His poor recall seemed highly unlikely, given the fact he owns seven separate businesses. Additionally, Mr. Huber claimed to have no knowledge concerning corporate records. He kept replying, if he could search his records. Yet, he did not have the records readily available. In short, Mr. Huber did not make a good witness.
The undersigned makes an express finding that Mr. Huber was not credible. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467, 471 (Iowa 1990). This deputy has weighed the proffered testimony and determined its credibility. Id. at 471, citing, Catalfo v. Firestone Tire and Rubber Co., 213 N.W.2d 506, 509 (1973).
The Iowa Supreme Court has held that evidence offered before the workers’ compensation commissioner is subject to the usual tests of credibility. See: DeLong v. Highway Commissioner, 229 Iowa 700, 719-720, 295 N.W.91 (1940). The workers’ compensation commissioner “has the right to draw any legitimate inferences” from the evidence proffered. Id at 704.
Claimant, on the other hand, told a consistent story. Immediately, he reported his back injury to Mr. Huber. Claimant related how he injured himself to each and every medical provider. His medical history was consistent throughout his treatment. He did not vary his version of the events that lead up to his injury. His account regarding the ointment, Jodex, was especially credible. It is the determination of the undersigned that claimant was a credible witness who displayed the capacity to tell the truth.
Because claimant is a credible witness, it is likewise concluded claimant sustained a work-related injury that arose out of and in the course of his employment on May 15, 2003. Claimant’s testimony regarding the events on May 15, 2003 are deemed to be true. Despite his language barrier, claimant was a fine historian.
The next issue to address is the issue whether claimant’s spinal condition was caused by the work injury on May 15, 2003.
The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. George A. Hormel & Co. v. Jordan, 569 N.W.2d 148 (Iowa 1997); Frye v. Smith-Doyle Contractors, 569 N.W.2d 154 (Iowa App. 1997); Sanchez v. Blue Bird Midwest, 554 N.W.2d 283 (Iowa App. 1996).
The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Supportive lay testimony may be used to buttress the expert testimony and, therefore, is also relevant and material to the causation question. The weight to be given to an expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts the expert relied upon as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000); IBP, Inc. v. Harpole, 621 N.W.2d 410 (Iowa 2001); Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845 (Iowa 1995). Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417 (Iowa 1994). Unrebutted expert medical testimony cannot be summarily rejected. Poula v. Siouxland Wall & Ceiling, Inc., 516 N.W.2d 910 (Iowa App. 1994).
Dr. Hostetler only discusses the work injury as a possible explanation for claimant’s mid and low back pain. She does not provide any other explanation for the back pain.
Dr. Mendoza supports the conclusion that claimant’s condition was all related to his work injury. The conclusion is set out in Dr. Mendoza’s report of June 30, 2004.
Dr. Hughes holds a similar opinion to the one held by Dr. Mendoza. Dr. Hughes writes in his report of May 17, 2004:
I would offer that the current findings of an annular tear and the ongoing physical limitations of Mr. Pedraza are more likely than not a consequence of his injury of 5/15/03, while in the employ of Huber Slats.
Dr. Found has a more restrictive view with respect to causation. He concludes claimant suffered from a degenerative condition of the spine. Dr. Found opines the subligamentous tear at L5-S1 was not caused by the work injury. However, Dr. Found concludes claimant’s underlying condition was aggravated by work.
It is the determination of the undersigned that claimant’s spinal condition was caused by the work injury on May 15, 2003. The greater weight of the evidence supports such a conclusion. Dr. Found’s restrictive view is not accorded the weight the other medical opinions are given.
Claimant has a permanent condition that affects the body as a whole. Therefore, claimant is entitled to have his permanency benefits calculated by the industrial method. Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man."
Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).
Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34.
The Iowa court has adopted the full-responsibility rule. Under that rule, where there are successive work-related injuries, the employer liable for the current injury also is liable for the preexisting disability caused by any earlier work-related injury if the former disability when combined with the disability caused by the later injury produces a greater overall industrial disability. Venegas v. IBP, Inc., 638 N.W.2d 699 (Iowa 2002); Second Injury Fund of Iowa v. Nelson, 544 N.W.2d 258, 265 (Iowa 1995); Celotex Corp. v. Auten, 541 N.W.2d 252, 254 (Iowa 1995). The full-responsibility rule does not apply in cases of successive, scheduled member injuries, however. Floyd v. Quaker Oats,646 N.W.2d 105 (Iowa 2002).
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 (Iowa 1995).
The focus in an industrial disability case is not just on what the worker can and cannot do. The focus is on the ability of the worker to be gainfully employed. Second Injury Fund of Iowa v. Nelson, 544 N.W. 2d 258, 264 (Iowa 1995).
In a recently decided appeal decision, Castagnet v. Northwest Airlines, File No. 5003761 (App. September 20, 2004), the workers’ compensation commissioner wrote, “Actual earnings are strong evidence of earning capacity.”
The Iowa Supreme Court has indicated industrial disability “rests on a comparison of what the injured worker could earn before the injury as compared to what the same person could earn after the injury. Thus, the level of post-injury earnings is important evidence of whether the injury impaired the worker’s capacity to earn,” Nelson, Id at 266.
Claimant has never been a high wage earner. There is no evidence to establish he has ever earned more than $19,000.00 in a given year. His wages have always been at the low end of the wage scale. He commenced his employment with this employer in 2001. That year he earned $16,799.00. In 2002, claimant earned $18,789.00 and in 2003, the year of the work injury, claimant earned $2,735.00. He has not worked since May of 2003. However, claimant is not especially motivated to find work either. He spends much of his time sitting and watching television. For seven months in 2003, he did not seek employment.
Claimant was working in the heavy category of labor as defined by the U.S. Department of Labor. Now he is capable of handling work in the light or medium work categories. Claimant is unable to return to any form of concrete work. It is just too strenuous. Likewise, it is doubtful claimant can return to migrant farm labor with all of the bending and twisting involved. Claimant does hold a valid license to drive a vehicle.
Ms. Laughlin maintains claimant is precluded from holding 85 to 95 percent of all the jobs in this country. She is basing a portion of her opinion on claimant’s language skills. She erroneously believes claimant cannot speak English. However, this deputy finds claimant is able to speak enough English to work in unskilled labor positions. His writing skills are only marginal. His language arts skills have greatly improved with the many classes he has taken. He has a functional use of English and has even worked as an interpreter for Mr. Huber.
Claimant is limited to lifting 10 pounds per lift. He is to alternate sitting and standing. No physician has restricted claimant from working. Quite the contrary has been reported to claimant. His physicians at the University of Iowa Hospitals and Clinics have advised claimant to engage in activities. Dr. Found believes claimant will be able to lift as much as 35 pounds per lift if only claimant will engage in a rehabilitation program. To date, claimant remains inactive. He insists his back hurts too much with exercise or walking. His own inactivity is contributing to his deconditioned state.
Since December 2003., claimant has applied for jobs at the Econo-Mart in Columbus Junction, the King of Kings Store in Columbus Junction, a nursery in Washington, Iowa, the Subway in Columbus Junction, the Dollar Store in Columbus Junction, Orr Hardware in Columbus Junction, a warehouse in Columbus Junction, the Pizza Ranch in Washington, Iowa, and at Kelly Temporary Services in Iowa City, Iowa. Claimant testified he has sought most of the jobs in the two to three months prior to the date of the hearing. He has not been able to locate employment. The undersigned recognizes the pay scale for the above positions will be at the low end of the wage scale. The wages are probably somewhat less than the wages claimant earned prior to the work injury and while he was employed by Huber Slats, Inc..
In light of the foregoing, it is the determination of the undersigned that claimant has a permanent partial disability in the amount of 65 percent. Claimant is entitled to 325 weeks of permanent partial disability benefits from these defendants and commencing from December 17, 2003.
The next issue to address is the issue of healing period benefits.
Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. SeeArmstrong Tire & Rubber Co. v. Kubli, Iowa App 312 N.W.2d 60 (1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
Claimant was in a healing period from May 15, 2003, the date of the work injury until December 16, 2003, the date, Dr. Found informed claimant he could not return to concrete work. (Ex. 2-24) This is a period of 30.857 weeks. At that time, a functional capacity evaluation was performed by Spine Research and Rehabilitation Team at the University of Iowa Hospitals and Clinics. The team measured claimant’s physical capabilities and provided restrictions for claimant’s employment. Claimant’s condition remained stable after claimant underwent the functional capacity evaluation. Moreover, claimant began to apply for employment after he received the results of his evaluation. Claimant is entitled to 30.857 weeks of healing period benefits.
The next issue to address is the issue of medical benefits pursuant to section 85.27 of the Iowa Code, as amended.
The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance, and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975).
Claimant is entitled to the payment of his medical expenses that he incurred to treat his spinal condition. Defendants denied liability for the claim. Therefore, they cannot assert the defense of authorization. The medical expenses that are attached to the hearing report detail the services provided to claimant. Claimant is entitled to the payment of medical expenses in the amount of $5,078.06 and for medical mileage costs in the amount of $1,011.42.
The next issue to address is the issue of future medical care. Claimant is entitled to continued care for his spine at the University of Iowa Hospitals and Clinics. This is his desired medical provider.
Claimant is requesting payment for the independent medical examination he had with Dr. Hughes. The cost for the examination is $700.00.
Section 85.39 permits an employee to be reimbursed for subsequent examination by a physician of the employee's choice where an employer-retained physician has previously evaluated "permanent disability" and the employee believes that the initial evaluation is too low. The section also permits reimbursement for reasonably necessary transportation expenses incurred and for any wage loss occasioned by the employee attending the subsequent examination.
Defendants are responsible only for reasonable fees associated with claimant's independent medical examination. Claimant has the burden of proving the reasonableness of the expenses incurred for the examination. SeeSchintgen v. Economy Fire & Casualty Co., File No. 855298 (App. April 26, 1991). Defendants' liability for claimant's injury must be established before defendants are obligated to reimburse claimant for independent medical examination. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
Section 85.39 of the Iowa Code does not apply in this case since defendants denied liability for the claim. It was claimant’s choice to have another examination by Dr. Hughes. Claimant is responsible for the costs of the same.
The final issue to address is the issue of penalty benefits as provided in section 86.13 of the Iowa Code as amended. In Christensen v. Snap-on Tools Corp., 554 N.W.2d 254 (Iowa 1996), and Robbennolt v. Snap-on Tools Corp., 555 N.W.2d 229 (Iowa 1996), the supreme court said:
Based on the plain language of section 86.13, we hold an employee is entitled to penalty benefits if there has been a delay in payment unless the employer proves a reasonable cause or excuse. A reasonable cause or excuse exists if either (1) the delay was necessary for the insurer to investigate the claim or (2) the employer had a reasonable basis to contest the employee’s entitlement to benefits. A “reasonable basis” for denial of the claim exists if the claim is “fairly debatable.”
Christensen, 554 N.W.2d at 260.
The supreme court has stated:
(1) If the employer has a reason for the delay and conveys that reason to the employee contemporaneously with the beginning of the delay, no penalty will be imposed if the reason is of such character that a reasonable fact-finder could conclude that it is a "reasonable or probable cause or excuse" under Iowa Code section 86.13. In that case, we will defer to the decision of the commissioner. SeeChristensen, 554 N.W.2d at 260 (substantial evidence found to support commissioner’s finding of legitimate reason for delay pending receipt of medical report); Robbennolt, 555 N.W.2d at 236.
(2) If no reason is given for the delay or if the “reason” is not one that a reasonable fact-finder could accept, we will hold that no such cause or excuse exists and remand to the commissioner for the sole purpose of assessing penalties under section 86.13. SeeChristensen, 554 N.W.2d at 261.
(3) Reasonable causes or excuses include (a) a delay for the employer to investigate the claim, Christensen, 554 N.W.2d at 260; Kiesecker v. Webster City Custom Meats, Inc., 528 N.W.2d at 109, 111 (Iowa 1995); or (b) the employer had a reasonable basis to contest the claimthe “fairly debatable” basis for delay. SeeChristensen, 554 N.W.2d at 260 (holding two-month delay to obtain employer’s own medical report reasonable under the circumstances).
(4) For the purpose of applying section 86.13, the benefits that are underpaid as well as late-paid benefits are subject to penalties, unless the employer establishes reasonable and probable cause or excuse. Robbennolt, 555 N.W.2d at 237 (underpayment resulting from application of wrong wage base; in absence of excuse, commissioner required to apply penalty).
If we were to construe [section 86.13] to permit the avoidance of penalty if any amount of compensation benefits are paid, the purpose of the penalty statute would be frustrated. For these reasons, we conclude section 86.13 is applicable when payment of compensation is not timely . . . or when the full amount of compensation is not paid.
(5) For purposes of determining whether there has been a delay, payments are “made” when (a) the check addressed to a claimant is mailed (Robbennolt, 555 N.W.2d at 236; Kiesecker, 528 N.W.2d at 112), or (b) the check is delivered personally to the claimant by the employer or its workers’ compensation insurer. Robbennolt, 555 N.W.2d at 235.
(6) In determining the amount of penalty, the commissioner is to consider factors such as the length of the delay, the number of delays, the information available to the employer regarding the employee’s injury and wages, and the employer’s past record of penalties. Robbennolt, 555 N.W.2d at 238.
(7) An employer’s bare assertion that a claim is “fairly debatable” does not make it so. A fair reading of Christensen and Robbennolt, makes it clear that the employer must assert facts upon which the commissioner could reasonably find that the claim was “fairly debatable.” SeeChristensen, 554 N.W.2d at 260.
Meyers v. Holiday Express Corp., 557 N.W.2d 502 (Iowa 1996).
Weekly compensation payments are due at the end of the compensation week. Robbennolt, 555 N.W.2d 229, 235.
Penalty is not imposed for delayed interest payments. Davidson v. Bruce, 593 N.W.2d 833, 840 (Iowa 1999).
When an employee’s claim for benefits is fairly debatable based on a good faith dispute over the employee’s factual or legal entitlement to benefits, an award of penalty benefits is not appropriate under the statute. Whether the issue was fairly debatable turns on whether there was a disputed factual dispute that, if resolved in favor of the employer, would have supported the employer's denial of compensability. Gilbert v. USF Holland, Inc., 637 N.W.2d 194 (Iowa 2001).
As set forth in great detail previously, there were significant disagreements between claimant’s version of the events on May 15, 2003 and defendants’ version of the events. The disagreements made the claim fairly debatable. There were huge factual disputes that were debated by the parties. The issue of arising out of and in the course of employment depended on the issue of credibility of the two witnesses, the claimant and his supervisor The undersigned determined the factual disputes by judging the ability of those witnesses to tell the truth. This case is a fine example of a “fairly debatable claim.” No penalty benefits are awarded.
THEREFORE, IT IS ORDERED:
Defendants shall pay unto claimant three hundred twenty-five (325) weeks of permanent partial disability benefits at the stipulated weekly benefit rate of two hundred eighty-eight and 52/100 dollars ($288.52) per week and commencing from December 17, 2003.
Defendants shall also pay healing period benefits for the period from May 16, 2003 through December 16, 2003 at the stipulated weekly benefit rate of two hundred eighty-eight and 52/100 dollars ($288.52) per week ; this is a period of thirty point eight five seven (30.857) weeks.
Defendants are liable for the costs of medical care and for medical mileage as detailed in the body of this decision.
Defendants shall pay for all future medical care that is reasonable and necessary to treat the work-related spinal condition and said care is hereby authorized at the University of Iowa Hospitals and Clinics.
Accrued benefits shall be paid in a lump sum together with interest as allowed by law.
Costs, as allowed by law, are assessed to defendants.
Defendants shall file all reports with this agency as required by law.
Signed and filed this ____31st_______ day of January, 2005.
MICHELLE A. MCGOVERN
Mr. Paul J. McAndrew, Jr.