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BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER___________________________________________________________________

:STEPHEN DRAKE, :

:Claimant, :

:vs. : File Nos. 5038575/5038576

: 5038577MCCOMAS-LACINA CONSTRUCTION, :

: A R B I T R A T I O NEmployer, :

: D E C I S I O Nand :

:UNITED HEARTLAND, :

: Head Note Nos.: 1702; 1703; 1803;Insurance Carrier, : 1804; 1807Defendants. :

___________________________________________________________________

STATEMENT OF THE CASE

Claimant, Stephen Drake, filed petitions in arbitration seeking workers’ compensation benefits from McComas-Lacina Construction, employer, and United Heartland, insurance carrier, both as defendants, as a result of stipulated injuries sustained on July 11, 2008, August 28, 2009, and December 2, 2010. This matter came on for hearing before Deputy Workers’ Compensation Commissioner, Erica J. Fitch, on February 7, 2013, in Cedar Rapids, Iowa.

In the interim between evidentiary hearing and entering a proposed decision in these matters, the Division of Workers’ Compensation became aware the transcript of the proceedings had been inadvertently destroyed by the court reporter. The undersigned contacted counsel for the parties in order to schedule a rehearing of these matters, as the lack of a transcript would render an appeal of the proposed decision impossible. The parties indicated their preference was not to rehear these matters at the current time and requested the undersigned issue a proposed decision. The undersigned consulted with the Workers’ Compensation Commissioner, Christopher Godfrey, and received direction to enter the proposed decision.

The record in this case consists of claimant’s exhibits 1 through 12, defendants’ exhibits A through P, and the testimony of the claimant, Teresa Drake, and Brad Kronk.

DRAKE v. MCCOMAS-LACINA CONSTRUCTION

The parties submitted post-hearing briefs, the matter being fully submitted on April 10, 2013.

ISSUES

In File No. 5038575 (Date of Injury: December 2, 2010 (Low Back))

The parties submitted the following issues for determination:

1. The extent of claimant’s industrial disability, including whether claimant is permanently and totally disabled under the industrial disability principles or as an odd-lot employee;

2. Whether defendants are entitled to apportionment or credit for permanent disability on prior injuries;

3. Whether claimant is entitled to reimbursement for an independent medical evaluation under Iowa Code section 85.39;

4. Whether claimant is entitled to reimbursement of medical mileage; and5. Specific taxation of costs.

The stipulations of the parties in the hearing report are incorporated by reference in this decision.

In File No. 5038576 (Date of Injury: July 11, 2008 (Right Shoulder, Neck))


1. The extent of claimant’s industrial disability; 2. Whether defendants are entitled to apportionment or credit for permanent

disability on prior injuries;3. Whether claimant is entitled to reimbursement for an independent medical

evaluation under Iowa Code section 85.39; 4. Whether claimant is entitled to reimbursement of medical mileage; and5. Specific taxation of costs.


In File No. 5038577 (Date of Injury: August 28, 2009 (Left Shoulder))


1. Whether the stipulated injury of August 28, 2009 is a cause of permanent disability;

2. The extent of claimant’s industrial disability;


3. Whether defendants are entitled to apportionment or credit for permanent disability on prior injuries;

4. Whether claimant is entitled to reimbursement for an independent medical evaluation under Iowa Code section 85.39;

5. Whether claimant is entitled to reimbursement of medical mileage; and6. Specific taxation of costs.


FINDINGS OF FACT

The undersigned, having considered all of the evidence and testimony in the record, finds:

Claimant’s testimony was consistent as compared to the evidentiary record and his deposition testimony, and his demeanor at the time of evidentiary hearing gave the undersigned no reason to doubt claimant’s veracity. The undersigned observed claimant shift in his chair, stand, lean upon the wall, and move about the room during the course of evidentiary hearing. Claimant is found credible.

Claimant was 54 years of age at the time of hearing. He is a resident of Coralville, Iowa. Claimant completed the 11th grade, yet has no other formal education. He has not obtained a GED or any certifications. (Claimant’s testimony; Exhibit 4, page 4) While in high school, claimant described himself as not a “real good” student. Claimant is right hand dominant. (Claimant’s testimony) Claimant’s work history consists of approximately 10 years performing general maintenance, construction, and cement finishing. (Ex. 4, p. 4; Ex. H, Depo. Tr., pp. 16-17)

Thereafter, in 1987, claimant became employed by defendant-employer, a commercial construction company in Iowa City, Iowa. The company builds commercial buildings and employs approximately 125 to 150 employees. Claimant worked with cement; his duties included concrete finishing, forming walls, carpentry, form building, and rebar reinforcement. This work required claimant to lift, bend, and remain on his feet throughout the entire day. Claimant testified wall forms, which he held himself, could weigh 100 pounds each. (Claimant’s testimony; Ex. 4, p. 4) Defendants represented claimant’s duties at defendant-employer involved no sitting, but standing for eight hours per day and walking for four hours per day. Other physical requirements included frequent bending, stooping, and reaching above shoulder level, and occasional squatting, climbing, crouching, kneeling, balancing, pushing and pulling, and twisting and turning. Claimant was required to lift and carry up to 50 pounds frequently and up to 100 pounds occasionally. (Ex. 5, p. 6) Claimant’s duties remained essentially unchanged throughout the course of his employment. (Claimant’s testimony)


Claimant generally worked 40 hours per week, plus varied overtime, working more hours during the summer months. (Claimant’s testimony; Ex. H, Depo. Tr., p. 15) He earned in the range of $27.00 per hour at the time of his ultimate termination in April 2011. Claimant also received employer-provided benefits such as paid vacation and holidays, health insurance, and a 401(k). (Claimant’s testimony; Ex. 4, p. 4; Ex. J, p. 3)

Claimant’s relevant medical history includes bilateral carpal tunnel releases in 1993, as well as back, left shoulder, and neck treatment. Claimant testified to feeling “fumbly” with his hands, even following carpal tunnel releases. (Claimant’s testimony; Ex. H, Depo. Tr., p. 61) In December 2000, claimant sought care for occasional low back aches dating for several years. David Paul, M.D., assessed probable degenerative back disease, prescribed Vioxx, and imposed temporary work restrictions. (Ex. C, p. 1) B.J. Ringenberg, M.D., also assessed low back pain secondary to degenerative back disease and noted the condition was likely to be chronic in nature. (Ex. C, p. 2) In January 2001, Dr. Paul released claimant from care and to regular duty for assessed chronic back ache. (Ex. C, p. 3)

In June 2001, claimant received care for intermittent left shoulder soreness of a five year duration. Dr. Paul assessed chronic and recurrent left glenoscapular pain and recommended an EMG nerve conduction test of the left arm and an MRI of the left shoulder. (Ex. C, p. 4) Dr. Paul ultimately assessed left shoulder adhesive capsulitis and injected the shoulder with Depo-Medrol. (Ex. C, p. 5) Claimant returned to Dr. Paul in September 2001 for a flare of left shoulder discomfort. At that time, Dr. Paul performed a repeat subacromial injection and imposed work restrictions. (Ex. C, p. 6) Dr. Paul’s colleague, Dale Minner, M.D., placed claimant at maximum medical improvement (MMI) and released him from care on October 10, 2001. Dr. Minner declined to impose specific work restrictions, but cautioned claimant to avoid using heavy vibrating equipment for greater than two hours at a time and indicated claimant would have some minimal limitation on reaching and lifting above shoulder level. (Ex. C, p. 7) Records indicate Dr. Paul opined claimant sustained a permanent impairment of 10 percent left upper extremity as a result of this condition. (Ex. C, pp. 7-8)

Claimant continued to have episodes of bilateral shoulder region pain, including in the years 2003 and 2007. (Ex. C, pp. 8-11; Ex. D, pp. 1-3) Radiographs taken in January 2007 revealed moderate degenerative disc disease at C6-C7. (Ex. C, p. 10)

In July 2008, claimant injured his right shoulder and neck while pouring walls or stair treads. (Claimant’s testimony) Claimant was referred for care at Mercy Hospital Occupational Health. On July 27, 2008, claimant was evaluated by Charles Buck, M.D., for complaints of right shoulder and neck pain of a six week duration which claimant attributed to work duties. Claimant reported a history of left shoulder problems and degenerative changes of the right shoulder. Dr. Buck indicated claimant demonstrated radiographic evidence of cervical disc disease as well. Dr. Buck referred claimant to Dr. Langland for evaluation and treatment. (Ex. C, p. 12)


Claimant thereafter received treatment from John Langland, M.D., including an AC joint injection. (Ex. E, p. 1) On September 18, 2008, Dr. Langland noted the AC joint injection resolved claimant’s pain in the AC joint itself, but claimant continued to suffer with pain radiating from his neck, down the arm, to his digits. Following examination, Dr. Langland noted significant improvement in right AC joint osteoarthritis, but continued cervical radicular symptoms. Dr. Langland assessed cervical radiculopathy and an aggravation of claimant’s preexisting osteoarthritis, caused by work activities. He accordingly ordered a cervical spine MRI. (Ex. E, p. 1) Dr. Langland thereafter ordered an epidural injection. (Ex. 1, pp. 2-3)

On December 18, 2008, claimant returned to Dr. Langland. Dr. Langland noted claimant responded quite well to epidural steroid injection on October 28, 2008. Claimant reported the ability to engage in activities, yet he avoided tipping or twisting his head to the right as doing so produced pain. Dr. Langland released claimant to return as needed. (Ex. E, p. 2) Claimant returned to Dr. Langland in follow-up of cervical radiculopathy on January 29, 2009, after developing increased left-sided neck pain radiating anteriorly and into the shoulder. Claimant also reported developing pain when tipping his head to the rear, albeit this complaint was improving. Dr. Langland recommended evaluation by a cervical spine specialist, Dr. MacLennan. (Ex. E, p. 3)

Medical notes from Dr. Langland’s office dated February 24, 2009 indicate claimant telephoned and requested to transfer care to Dr. Hitchon at the University of Iowa Hospitals and Clinics (UIHC). Dr. Langland agreed and indicated he would request such a referral through defendants. (Ex. E, p. 3)

On March 19, 2009, claimant presented to The Iowa Clinic Neurological and Spinal Surgery department for independent medical evaluation (IME) with neurosurgeon, Thomas Carlstrom, M.D. (Ex. 1; Ex. A, p. 1) Handwritten clinic notes indicate a history of multiple episodes of shoulder and neck complaints dating to 1996, with current symptoms present since July 2008 and related to work activities. Current complaints were listed as neck, bilateral scapular, and right arm pain, as well as numbness of the right hand and digits. (Ex. A, p. 1)

Dr. Carlstrom issued his IME report on April 1, 2009. Dr. Carlstrom indicated claimant complained of right shoulder and arm pain, with numbness and tingling radiating to fingers. Claimant reported an onset of symptoms in July 2008 with twisting, bending, and heavy exertion activities at work. Dr. Carlstrom opined claimant’s MRI of October 2008 confirmed a very large herniated disc at C5-6 and a smaller herniated disc at C6-7 on the left which did not appear to be symptomatic. Dr. Carlstrom assessed right-sided cervical radicular symptoms and some myofascial symptoms of the neck and occasionally into the left shoulder. He described the right-sided cervical radiculopathy as more significant in nature. Dr. Carlstrom related claimant’s symptoms and the herniated disc to his work activities in July 2008 and declined to attribute


claimant’s symptoms to an underlying degenerative condition of claimant’s neck. (Ex. 1, pp. 10-11)

Dr. Carlstrom opined claimant represented a good candidate for an anterior cervical fusion at C5-6 on the right and related claimant’s need for surgery to the July 2008 work injury. Dr. Carlstrom declined to place claimant at MMI due to continued symptoms and his surgical recommendation. He opined should claimant undergo surgery, claimant would sustain permanent impairment in the range of 10 percent whole person. (Ex. 1, pp. 10-11) In the event claimant “miraculously” became asymptomatic and did not require surgery, Dr. Carlstrom opined claimant would not have sustained permanent impairment. Dr. Carlstrom expressed skepticism over this scenario. (Ex. 1, pp. 11-12)

On May 13, 2009, claimant presented to Patrick Hitchon, M.D., at UIHC. Dr. Hitchon reviewed claimant’s cervical spine MRI of May 11, 2009 and opined it revealed arthritic changes in the cervical spine, most noteworthy at C5-6, and some mild bulging at C5-6 and C6-7. Dr. Hitchon noted the bulges appeared smaller than on prior MRI studies and opined the bulges to be surgically insignificant. Accordingly, Dr. Hitchon recommended a course of conservative care. Should such care not be beneficial, Dr. Hitchon raised the possibility of a cervical fusion and discectomy at C6-7 and possibly C5-6. (Ex. F, p. 1)

Claimant returned to Dr. Hitchon and Jennifer Noeller, FNP, for evaluation on July 13, 2009. At that time, claimant continued to complain of numbness and tingling of the right arm. Dr. Hitchon opined claimant’s EMG and NCV testing was suggestive of denervation of the right cervical paraspinal, but was inconclusive for cervical radiculopathy. He further opined claimant’s MRI report was suggestive of degenerative changes at C5-6 and C6-7. Dr. Hitchon recommended conservative management of claimant’s complaints, including recommending claimant be allowed to visit the pain clinic. Dr. Hitchon placed claimant at MMI. (Ex. F, pp. 2-3) Claimant returned to full duty work for defendant-employer. (Claimant’s testimony)

On August 28, 2009, claimant injured his left shoulder and neck while carrying buckets of concrete at work. (Claimant’s testimony) Claimant underwent an MRI of the left shoulder on September 21, 2009, which the radiologist interpreted as revealing a downsloping type I acromion with subacromial bursitis. (Ex. C, p. 14) On September 22, 2009, claimant presented to Theodore Koerner, M.D. Dr. Koerner reviewed claimant’s MRI and assessed left shoulder pain due to mild upper trapezius and pectoralis major insertion strain and subacromial bursitis. Dr. Koerner continued claimant’s course of conservative treatment, pending referral to orthopedic specialist Dr. Langland. (Ex. C, p. 15)

Dr. Hitchon authored a letter on October 6, 2009 regarding claimant’s work injury of July 11, 2008. Dr. Hitchon opined claimant achieved MMI on July 13, 2009 and


recommended continued conservative management, including a cervical collar, anti-inflammatories, and the option to visit a pain clinic. With regard to permanent impairment, Dr. Hitchon opined by the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition, claimant sustained a permanent impairment of 15 to 18 percent whole person as a result of the July 11, 2008 work injury. (Ex. 1, p. 13) Dr. Hitchon opined a certain numerical impairment of 15 percent whole person; however, he based such a finding upon the AMA Guides, 6th Edition. (Ex. 1, pp. 13-14)

On November 9, 2009, claimant presented for defendants’ IME with orthopedic surgeon, Jerry Jochims, M.D. Dr. Jochims noted he was asked to evaluate claimant’s left shoulder only. Dr. Jochims issued his opinions in a report dated November 23, 2009. He noted claimant presented with a history of several episodes of left shoulder sprains/strains, most recently on August 28, 2009 while working with buckets of concrete. (Ex. B, p. 2) In review of claimant’s work-related injury claims, Dr. Jochims noted claimant received conservative treatment for a herniated disc at C5-6, with complaints which resolved spontaneously. Dr. Jochims also noted prior right shoulder complaints and AC joint pain. Dr. Jochims stated claimant’s “only current complaint is that of his left shoulder.” (Ex. B, p. 3)

In interview with Dr. Jochims, claimant reported difficulty with overhead reaching and indicated he may overdo activities which caused sleep disturbance, yet his left shoulder symptoms were otherwise treated with over the counter Tylenol. Dr. Jochims indicated claimant denied any cervical or neurologic symptoms. With regard to left shoulder complaints, Dr. Jochims indicated claimant’s complaints had “subsided a great deal” and had reached a level “very close” to baseline. On examination of the upper extremities, Dr. Jochims noted findings entirely within normal limits, with the exception of each upper extremity internally rotating to 22 degrees only. Due to the symmetrical nature of this measurement, Dr. Jochims opined the limitation likely congenital in nature. (Ex. B, p. 4)

Following interview, records review, and examination, Dr. Jochims assessed a recurrent work-related AC joint sprain in the presence of significant and chronic AC degenerative arthritis. Dr. Jochims also opined given the spontaneous resolution of his symptoms, claimant had achieved the end of healing for this episode and was capable of returning to full-duty work, without restrictions. Given claimant’s heavy work and the nature of the aging process, Dr. Jochims opined claimant would continue to have episodes of strains/sprains of the shoulders, potentially bilaterally. Although he opined claimant did not require additional treatment at the time of evaluation, Dr. Jochims recommended claimant have access to an orthopedic surgeon in the future for corticosteroid injections, as needed. Dr. Jochims also raised the possibility of an AC joint surgical resection, should claimant suffer such episodes of strains/sprains more frequently than an occasional basis and should injections fail to provide relief. (Ex. B, pp. 5-6)


With regard to permanent impairment, Dr. Jochims opined claimant’s internal rotation loss to be congenital in nature and thus, not deserving of a rating. He also opined an AC joint sprain did not warrant a rating of permanent impairment. Thus, Dr. Jochims opined claimant sustained zero permanent impairment to the left shoulder as a result of the August 28, 2009 work injury. (Ex. B, p. 7)

On February 23, 2010, claimant underwent an MRI of his right shoulder. Scott Truhlar, M.D., read the results as revealing mild degenerative changes of the acromioclavicular joint with mild AC joint widening, consistent with an acute on chronic injury, and fluid in the subdeltoid bursa likely representing impingement by the downsloping lateral acromion. (Ex. C, p. 16; Ex. F, p. 4)

Claimant continued to work full duty for defendant-employer with the bilateral shoulder and neck complaints until December 2010. Immediately prior to the December 2, 2010 work-related injury, claimant described his neck and shoulder pain as interrelated. The pain in claimant’s neck averaged a level two or three on a 10-point scale, but pain varied and could reach a level seven or eight. Similarly, claimant reported level two or three pain in his shoulders on good days, but noted this pain could reach higher levels. Claimant testified although he had good and bad days with his symptoms, those symptoms did not prevent him from working except during periods when he suffered a flare. During such flares, he visited the occupational medicine doctor and was treated with injections, physical therapy, and time off. He did not use prescription medication on a regular basis; instead, claimant used Tylenol as needed. (Claimant’s testimony; Ex. H, Depo. Tr., pp. 34-36, 44-45)

On December 2, 2010, claimant injured his low back while lifting a beam weighing 100 to 120 pounds with a coworker. (Claimant’s testimony) Claimant was placed on temporary layoff December 3, 2010. (Claimant’s testimony; Ex. J, pp. 5-7) Claimant testified this layoff was the first occasion he was placed on temporary layoff for more than two weeks in his 23 years of employment with defendant-employer. Rather, defendant-employer found work for claimant to complete during otherwise slow periods. (Claimant’s testimony; Ex. H, Depo. Tr., p. 15)

At the referral of Dr. Buck, claimant underwent a course of physical therapy for low back pain during the month of December 2010. (Ex. D, pp. 4-7) On January 3, 2011, claimant presented to Thomas Dean, PA-C, in follow-up of intermittent low back pain. Mr. Dean noted a patient report of improvement, namely noticing pain “every now and then” and a catching/pinching sensation in the low back. Mr. Dean released claimant to return to work without restrictions. (Ex. C, pp. 17-18)

On April 26, 2011, defendant-employer made claimant’s temporary layoff permanent. Defendant-employer cited a lack of work in claimant’s written termination letter. (Ex. J, pp. 5-7) Claimant testified he was unaware if other employees were permanently laid off at this time. (Claimant’s testimony) Brad Kronk, safety director for


defendant-employer, testified at evidentiary hearing. Mr. Kronk testified claimant’s temporary layoff was seasonal in nature. The layoff became permanent due to a downturn in the economy. Mr. Kronk testified he believed at least 25 to 30 employees were laid off at the same times as claimant. (Mr. Kronk’s testimony)

Mr. Kronk’s testimony was clear and his demeanor gave the undersigned no reason to doubt his veracity. Mr. Kronk is found credible.

On June 23, 2011, claimant underwent an MRI of the lumbar spine. The radiologist read the results as demonstrating mild degenerative changes of the discs and facets of the lower lumbar spine, mild bilateral foraminal narrowing at L4-5, and a broad-based disc bulge extending laterally bilaterally at L4-5 to approximately the far lateral aspects of the L4 nerve roots. (Ex. C, pp. 19-20)

Claimant returned to Mr. Dean on June 29, 2011. Mr. Dean reviewed claimant’s MRI and informed claimant it revealed mild degenerative changes of the discs and facets of the lower spine. Mr. Dean also noted foraminal narrowing at L4-5 and a broad-based disc bulge extending laterally at L4-5 and impacting the L4 nerve root. Mr. Dean implemented a course of conservative care including physical therapy, an epidural steroid injection, and work restrictions. (Ex. C, p. 21)

On October 5, 2011, claimant presented to Robin Epp, M.D., for a Social Security disability determination evaluation. Dr. Epp issued a report of her opinions dated October 19, 2011. Claimant reported cervical and lumbar pain beginning in December 2010 after a work injury, with radiculopathy from the back into the right leg, and aching and spasms in the back. Claimant indicated his back pain averaged level three and, at worst, reached a level nine on a 10-point scale. Dr. Epp also noted bilateral shoulder complaints, ongoing for 10 to 12 years. Claimant reported suffering with pain and a pins and needles sensation in the shoulders, and decreased range of motion. Pain averaged a level three to four on a 10-point scale; at worst, pain reached a level 10. (Ex. 1, p. 18) Claimant also reported continued numbness and tingling of the bilateral hands post-bilateral carpal tunnel releases in 1993 and gout which flared with wearing boots. Dr. Epp noted claimant reported interrupted sleep for a total of five hours per night due to pain and becoming uncomfortable. (Ex. 1, p. 19)

Due to neck, shoulder, and low back pain, Dr. Epp identified work restrictions of a maximum lift, push, pull, or carry of 10 pounds rarely floor-to-waist, 20 pounds occasionally waist-to-shoulder, and no such activity over shoulder-level; no activity on uneven surfaces, use of ladders, travel, work in warm or cold temperatures, or use of vibratory or power tools; occasional sitting; occasional gripping, grasping, and activities involving the upper extremities, but only at or below shoulder height; and rare standing, walking, stooping, bending, crawling, kneeling, and use of stairs. (Ex. 1, pp. 21-22)


Claimant applied for Social Security disability benefits on the basis of bilateral carpal tunnel, joint complaints, and bilateral shoulder, cervical and lumbar spine injuries. (Ex. L, p. 2) On October 26, 2011, the Social Security Administration denied claimant’s claim for Social Security disability benefits. (Ex. L, p. 1)

On December 6, 2011, claimant presented to Fred Dery, M.D., in follow-up of back pain post two epidural injections. Dr. Dery described claimant’s back pain itself as minimally improved following the injections, but noted claimant no longer had radiation of pain into the right leg. Dr. Dery reviewed claimant’s lumbar spine MRI of June 2011 and opined it revealed multilevel bilateral facet changes and a broad-based disc bulge at L4-5 without impingement on the nerve roots or indentation of the thecal sac. Dr. Dery assessed lumbar spondylosis and lumbar disc degeneration; he recommended two L4-5 and L5-S1 diagnostic medial branch blocks. (Ex. E, p. 6)

On December 30, 2011, defendants transferred claimant’s low back care to Dr. Hitchon. (Ex. I, pp. 1-2)

Claimant underwent a lumbar spine MRI on January 19, 2012. The radiologist opined it revealed mild degenerative joint disease and improvement in the inflammatory changes observed in the right facet and paraspinal muscles at L4-5 in the MRI of December 20, 2011. (Ex. F, p. 6) Also on that date, claimant presented to Dr. Hitchon and reported improvement in symptoms, but continued neck and back pain. Dr. Hitchon reviewed claimant’s MRI of that date and compared results to claimant’s December 20, 2011 MRI. Dr. Hitchon opined the MRI of that date revealed resolving inflammatory changes. Dr. Hitchon recommended evaluation in the pain clinic for right shoulder complaints and potential steroid injection, as well as physical therapy for claimant’s low back complaints. (Ex. F, p. 5)

On March 9, 2012, the Social Security Administration issued a decision finding claimant entitled to Social Security disability benefits for a period of disability beginning December 3, 2010. The attorney advisor found claimant had a limited education; was unable to perform any of his past relevant work as a cement/concrete worker and wall finisher; and lacked transferrable skills. As a result of these and other factors, the attorney advisor determined jobs did not exist in significant numbers in labor market which claimant would be able to perform. (Ex. 7, pp. 5-6) Claimant thereafter began receiving Social Security disability benefits, benefits he continued to receive on the date of evidentiary hearing. (Claimant’s testimony)

Claimant returned to Dr. Hitchon and Ms. Noeller on May 31, 2012 with complaints of intermittent back and neck pain. Claimant reported continuing to have some low back pain which comes and goes, and indicated activity aggravated his back and right leg pain. Dr. Hitchon placed claimant at MMI, but indicated he would not speculate as to when claimant’s back or neck pain may recur. In the event pain recurred, Dr. Hitchon opined the condition may require further treatment, including


physical therapy and potentially pain management. (Ex. 1, p. 26) Dr. Hitchon later confirmed restrictions of a 30-pound weight limit, and no climbing or overhead work. Dr. Hitchon recommended a functional capacity evaluation to address other abilities and limitations, such as squatting, kneeling, pushing, pulling, twisting, reaching, fine manipulation, climbing, standing, walking, sitting, and gripping. (Ex. 1, p. 29)

On August 6, 2012, claimant presented to the UIHC Pain Clinic for follow-up of right shoulder pain with Elahi Foad, M.D. Claimant reported significant pain relief for one to two months following the third set of trigger point/glenohumeral joint injections, yet indicated pain then returned to baseline and had not changed. Claimant described the pain as located in the shoulder and constant in nature, but waxing and waning in severity. He also reported resultant decreased range of motion of the shoulder. (Ex. F, pp. 13-15)

Following examination, Dr. Foad assessed chronic shoulder pain secondary to arthritis and myofascial pain. (Ex. F, pp. 13-15) He recommended continued use of medications including baclofen/Flexeril and Tylenol, resumption of physical therapy, referral to an orthopedist for continued right shoulder pain, and a TENS unit trial. Interestingly, staff also recommended cessation of smoking, although by the undersigned’s review of the record, there is no other evidence claimant used tobacco. (Ex. F, pp. 15-16) Dr. Foad also noted:

On history taking and physical examination we couldn’t find exact cause and effect relationship between his complaining and totally benign and normal physical findings. On examination we observed occasional Waddell signs.

(Ex. F, p. 15)

On November 7, 2012, claimant underwent a functional capacity evaluation (FCE) at Accelerated Rehabilitation with Marcus Seaton, M.S. Mr. Seaton opined claimant demonstrated consistent performance and consistent reliability of pain and therefore, results yielded a true and accurate representation of claimant's abilities. Following testing, Mr. Seaton opined claimant capable of functioning at the medium-heavy category of work, with specific abilities of a two-hand occasional lift or carry of 60 pounds and frequent lift of 30 pounds. (Ex. 1, p. 38)

Specifically, Mr. Seaton noted claimant demonstrated the ability to perform a two-hand lift of 60 pounds to waist level, 40 pounds to shoulder level, and 30 pounds to overhead level. Claimant also demonstrated the ability to frequently lift 30 pounds to shoulder level. Mr. Seaton noted claimant showed difficulty maintaining heavier weights in a safe manner and in the correct cadence. (Ex. 1, p. 39) Mr. Seaton also noted claimant demonstrated the ability to complete one-hand lift of 40 pounds to waist level,


25 pounds to shoulder level, and 20 pounds to overhead level. During such testing, Mr. Seaton noted claimant demonstrated a trunk lean with lifting and holding the weight. (Ex. 1, p. 40) Claimant also demonstrated the ability to push/pull a maximum of 130 pounds and 80 pounds frequently; no difficulty with sitting, standing, or walking; no deconditioning with stair or ladder climb testing; the ability to perform sustained kneeling, crouching, and crawling for the two minutes required; reach forward constantly and overhead frequently; bend occasionally; and squat frequently. (Ex. 1, pp. 40-41)

Claimant testified he gave good effort during the FCE, despite suffering with pain. Later that day, claimant testified his back began to stiffen. Claimant spent the following two days suffering with flared pain and he engaged in only very limited activity. (Claimant’s testimony)

On November 15, 2012, claimant presented to board certified orthopedic surgeon and occupational medicine physician, Ray Miller, M.D., for claimant’s IME. Claimant reported constant right shoulder pain; occasional pain in the left parascapular muscles; pain, popping, cracking, and significantly limited range of motion of the neck; pain radiating from the neck down the right arm and resulting in paresthesias of the forearm; intermittent tingling in the digits of the bilateral hands, more significant on the right; and lower lumbar pain radiating into the right buttock and thigh and occasionally the left buttock. Dr. Miller noted he observed claimant stand and move about the room on one occasion during the course of evaluation. (Ex. 1, p. 52)

Following records review and examination, Dr. Miller assessed:

1. Cervical spine: A C5-C6 right posteriolateral disc protrusion with severe stenosis of the right neural foramen and mild stenosis of the left neural foramen. A left lateral disc bulge at C6-C7 with severe stenosis of the left neural foramen. The changes at the C5-C6 and C6-C7 levels have resulted in radiculitis of the C6 nerve root on the right and the C7 nerve root on the left without signs of neurologic deficit.

2. Right shoulder glenohumeral and acromioclavicular arthritis plus rotator cuff tendinitis resulting in limited range of motion and pain in the right shoulder.

3. Left shoulder acromioclavicular arthritis and subacromial bursitis with persistent mild symptoms and limitation of range of motion.

4. Lumbar spine, degenerative disc disease with a broad-based disc bulge at L4-L5 crowding the L4 nerve root bilaterally. There is radiation of low back pain into the right leg, as well as paresthesias in the right foot without definite neurologic deficit secondary to the right-sided L4 nerve root irritation.

(Ex. 1, p. 54)

Dr. Miller causally related each of the assessed conditions to claimant’s employment with defendant-employer. Dr. Miller also opined as to the extent of


permanent impairment claimant sustained as a result of each condition and claimant’s need for future medical treatment. With regard to the right shoulder, Dr. Miller opined claimant attained MMI on May 15, 2012 and sustained a permanent impairment of 10 percent whole person due to deficits in range of motion. (Ex. 1, p. 54) Dr. Miller opined a course of future treatment would primarily involve analgesics and anti-inflammatories, but may also include a repeat course of trigger point injections. (Ex. 1, p. 55)

With regard to claimant’s left shoulder, Dr. Miller opined claimant attained MMI on November 9, 2009 and sustained a permanent impairment of eight percent whole person due to deficits in range of motion. Claimant’s potential future treatment consisted of analgesics and anti-inflammatories, with a possible need for an acromioclavicular joint injection or distal clavicle resection. (Ex. 1, pp. 55-56)

With regard to the cervical spine, Dr. Miller opined claimant achieved MMI on June 10, 2012 and by the range of motion method, claimant sustained a combined permanent impairment of 25 percent whole person. Dr. Miller again recommended use of analgesics and anti-inflammatories; in the event such measures proved unable to control claimant’s symptoms, Dr. Miller indicated treatment options included a discectomy and fusion at C5-C6 and C6-C7. (Ex. 1, p. 56)

Finally, with regard to the lumbar spine, Dr. Miller opined claimant achieved MMI on June 10, 2012 and sustained a permanent impairment of 10 percent whole person due to disc bulge, nerve root irritation, and signs of radiculitis from the L5 nerve root in the right leg. With regard to future treatment, Dr. Miller recommended claimant follow the outlined work restrictions and use analgesics and anti-inflammatories as needed. Dr. Miller also noted the remote possibility of a need for surgical decompression. (Ex. 1, p. 57)

Dr. Miller imposed the same work restrictions with regard to all claimant’s conditions. Restrictions included: sitting, standing, and driving a maximum of two hours at a time; walking a maximum of one hour at a time; occasional crawling, squatting, kneeling, crouching, stair climbing, ladder climbing, and bending; avoidance of twisting; push/pull of a maximum of 70 pounds occasionally; lifting and carrying a maximum of 40 pounds from knee to shoulder occasionally; avoidance of lifting from the floor or above shoulder level; and a maximum one-hand lift of 25 pounds knee to chest occasionally. (Ex. 1, p. 55)

Dr. Miller ultimately opined:

When looking at the whole picture of both shoulders, as well as the cervical and lumbar spine, [claimant] has significant physical limitations. He has significant limitation of motion in his cervical and lumbar spine. He is limited in the amount of time that he can sit, stand or walk. He is also limited in the amount of weight that he can lift, push or pull. It is my


professional opinion that [claimant] would not tolerate working an 8-hour day/40-hour week on a consistent basis even within the listed restrictions.

(Ex. 1, p. 57)

On November 16, 2012, claimant underwent defendants’ IME with Patrick Hartley, M.D., professor of internal medicine at UIHC. Dr. Hartley and claimant discussed each of claimant’s conditions individually. Claimant reported some pain with overexertion of the left shoulder, but limitations with regard to reaching. Claimant described his left shoulder condition as less symptomatic than the right shoulder. With regard to the right shoulder, claimant reported limitations with lifting and reaching behind his back, and some tingling of the right arm and hand. Claimant also reported continued neck pain which radiated to the bilateral shoulder blades and right shoulder, as well as occasional pain and numbness of the bilateral arms, worse on the right. Claimant indicated he is able to sleep only upon his right side due to neck pain. With regard to his low back, claimant reported continued pain; a pinching sensation with bending side to side; increased pain in the low back, as well as neck and shoulders with sitting or standing greater than one hour; and occasional pain into the right leg. (Ex. 1, p. 62)

On examination, Dr. Hartley noted significantly decreased range of motion of the cervical spine in all directions, as well as decreased range of motion in the lumbar spine and shoulders. (Ex. 1, p. 63) Following records review and examination, Dr. Hartley opined claimant achieved MMI with regard to his medical conditions. With regard to the bilateral shoulders, Dr. Harley opined claimant sustained permanent impairment due to range of motion measurements. Specifically, Dr. Hartley opined permanent impairments of 10 percent whole person for the right shoulder and 7 percent whole person for the left shoulder. Based on the range of motion method, Dr. Hartley opined claimant sustained a permanent impairment of 24 percent whole person as a result of the cervical spine injury. Finally, Dr. Hartley opined claimant fell within DRE lumbar category III, sustaining a permanent impairment of 10 percent whole person. (Ex. 1, pp. 63-64).

Relying upon the FCE results, Dr. Hartley recommended the following permanent restrictions: maximum two-hand occasional lift of 60 pounds to waist level and 40 pounds to shoulder level; frequent two-hand lift of 30 pounds to waist level and 20 pounds waist-to-shoulder; one-hand occasional lift of 40 pounds to waist level and 20 pounds to shoulder level; maximum occasional push/pull of 70 pounds; occasional reaching; no reaching above shoulder level; no lifting from the floor to a nine inch height; and occasional bending, stooping, stairs, ladder climbing, crawling, squatting, crouching, and kneeling. Due to claimant’s reports of symptoms, Dr. Hartley also recommended claimant not sit, stand, or walk for greater than two hours at a time. (Ex. 1, p. 65)


Claimant retained board certified vocational expert, Kent Jayne, to perform a vocational assessment on December 27, 2012. Mr. Jayne reviewed pertinent documents, interviewed claimant, asked claimant to complete or review several questionnaires and checklists, and conducted various vocational tests. (Ex. 2, pp. 1, 6-8) During interview, claimant reported ongoing daily neck pain ranging from level three to level seven on a 10-point scale with neck pain aggravated by turning of the head, flexion and extension of the neck, sitting greater than one hour, lifting, and cold weather. Neck pain reportedly also resulted in headaches. Claimant also reported daily bilateral shoulder pain, right greater than left, also ranging from level three to level seven on a 10-point scale. Claimant reported radiation of the right shoulder pain down the arm, which was aggravated by reaching. Claimant also reported daily low back pain at the same level as described for the neck and shoulders, with pain centered in the low back and radiating to the right hip and leg. Back pain was reported to be aggravated by bending, twisting, sitting longer than one hour, walking more than 20 minutes, and standing. Claimant described his pain levels as severe enough to result in interrupted sleep, averaging only five hours of sleep per night and resulting in increased fatigue, frustration, and irritability. (Ex. 2, p. 6)

With regard to claimant’s education and testing results, Mr. Jayne noted claimant’s high school transcript revealed below average to failing grades. (Ex. 2, p. 7) Testing performed in Mr. Jayne’s office revealed claimant functioned at the following grade levels: 10.7 in word reading (21st percentile), 5.9 in spelling (8th percentile), and 4.6 in math computation (5th percentile). (Ex. 2, p. 8) Mr. Jayne opined claimant scored in the noncompetitive range in nonverbal reasoning, spelling, and math, at the 6 th, 8th, and 5th percentiles, respectively. Claimant also scored noncompetitively in testing of clerical perception and on the Pins/Collars protocol. In testing of manual dexterity, claimant’s scores were near the noncompetitive range with the dominant right upper extremity and at the 3rd percentile with the left upper extremity. Mr. Jayne also found claimant scored below average in word reading (21st percentile), low average range of verbal reasoning (30th percentile), and low average on Screws protocol testing. Mr. Jayne opined these results precluded claimant from sedentary employment, even in entry level clerical or bench assembly positions. (Ex. 2, p. 12)

Mr. Jayne addressed claimant’s FCE results and indicated Mr. Seaton is not a vocational expert and furthermore, opined it inappropriate to extrapolate employability on a full time basis, eight hours per day, five days per week, from a three hour examination. (Ex. 2, pp. 3-4, 10) Claimant informed Mr. Jayne he suffered with pain for two days following the FCE. (Ex. 2, p. 6) Claimant quantified this pain as a level five or six on a 10-point scale. (Ex. 2, p. 10)

In performing his vocational assessment, Mr. Jayne relied upon the restrictions set forth by Dr. Hartley, as the restrictions were outlined most recently and Dr. Hartley served as provider of defendants’ IME. Mr. Jayne opined Dr. Hartley’s restriction limiting reaching to an occasional basis and never over shoulder height would preclude


claimant from “an excess of 90% of the jobs in the labor market.” (Ex. 2, p. 11) Mr. Jayne specifically found claimant’s access to the labor market further limited by his dexterity scores, the inability to lift from floor level, and need to avoid prolonged sitting, standing, or walking over two hours. Additionally, based upon Dr. Hartley’s restriction limiting claimant to occasional bending, stooping and squatting, Mr. Jayne extrapolated, from a biomechanical standpoint, claimant would be unable to perform any lifting, carrying, pushing or pulling on a frequent basis. (Ex. 2, pp. 11-12)

Mr. Jayne ultimately opined:

Based upon the restrictions issued by Dr. Hartley and the results of testing completed here, [claimant] has been precluded from competitive employment in the labor market at his current level of capacity. He is clearly unable to return to any occupations in his relevant work history, all of which were heavy or very heavy physical demand occupations in the concrete work field. He has a limited education, and had poor grades even in high school. His test scores here would not be supportive of any retraining efforts. He is clearly precluded from competitive work at any level of physical capacity. As noted above, he is particularly limited by the reduced ability to use his upper extremities, reaching, limited range of material handling, and inability to perform any frequent bending, stooping, squatting, or crouching.

These findings are further supported by the restrictions issued by Dr. Miller, as well as those issued by Dr. Epp.

At 54.2 years of age, [claimant] is an individual rapidly approaching advanced age from a vocational standpoint under Social Security guidelines, placing a severe limitation on the bandwidth of his residual transferability of skills, if any. Based upon his physical and cognitive limitations, it is eminently clear that [claimant] is precluded from competitive employability at this time.

(Ex. 2, p. 12)

Mr. Jayne identified claimant’s age and limited background, training and experience as further barriers to claimant’s reentry into the labor market. Mr. Jayne opined it unlikely that a vocational program would have a reasonable likelihood of success in returning claimant to a competitively employable state, absent significant relief of symptoms and a corresponding increase in capacity. (Ex. 2, p. 17) Mr. Jayne opined:

The confluence of [claimant’s] limited relevant work history to heavy and very heavy physically demanding occupations, his inability to be


accommodated permanently by his pre-injury employer, his standardized test scores here, and the limitations imposed by Dr. Hartley would preclude [claimant] from competitive employment in the labor market at the present time.

(Ex. 2, p. 17)

Defendants retained certified insurance rehabilitation specialist, Diane McGuire, R.N., to provide a vocational report regarding claimant’s employability. Ms. McGuire did not interview claimant during this process. Ms. McGuire issued her report on January 5, 2013. (Ex. G, pp. 1, 58) In her analysis of claimant’s employability, Ms. McGuire noted claimant worked 23 years for defendant-employer and opined this longevity to be a plus to potential employers, as demonstrative of responsibility. She also described older workers as more dependable and possessing of more maturity, with skills as good listeners, strong leaders, and good problem solvers. (Ex. G, p. 19)

Ms. McGuire acknowledged claimant’s difficulty in high school, yet noted claimant’s long work history confirmed claimant’s ability to understand and follow directions. Ms. McGuire summarily described claimant as teachable and trainable. Ms. McGuire indicated claimant developed customer service skills over the course of his employment and self-employment. Ms. McGuire listed claimant’s experience with power tools, hand tools, and a uniloader/backhoe as transferrable skills. (Ex. G, p. 19)

In performing a labor market survey, Ms. McGuire placed the most emphasis on abilities outlined in the FCE and Dr. Hartley’s restrictions, described as more closely aligned with the FCE than those restrictions outlined by other physicians. (Ex. G, p. 23) Ms. McGuire performed a labor market survey in the Iowa City/Cedar Rapids area and identified several positions, including shipping and receiving clerk, material handler, assembly, security, manufacturing, yard worker, warehouse picking and stocking, product inspector/finisher, route driver, parts counter, cleaner/custodian/janitor, customer service, laborer, production, and forklift driver. (Ex. G, pp. 23-26)

In her analysis of the labor market survey, Ms. McGuire indicated she was able to identify numerous positions for which claimant “may be qualified.” Ms. McGuire opined the number and type of positions identified, as buttressed by the FCE results, demonstrated claimant possessed “sufficient employment potential and residual capacities to return to the work place.” Additionally, Ms. McGuire indicated claimant was capable of returning to work and had done so. She stated claimant did not spend his unemployed time “just sitting around,” but rather rode his 4-wheeler, painted his home, moved snow, and worked for his own handyman business. Ms. McGuire concluded claimant’s activity and testing results demonstrated claimant capable of returning to the workforce. (Ex. G, p. 26)


The undersigned reviewed the job postings included in Ms. McGuire’s labor market survey. As an initial matter, the undersigned notes Ms. McGuire listed 19 positions in her labor market survey. Of these identified positions, two of the listings appear to be duplicated, leaving only 17 individual positions. A review of the positions listed reveal the positions carry a much lower range of pay, $8.00 to $20.00 per hour, than earned by claimant at the time of his termination, nearly $27.00 per hour. (See Ex. G, pp. 26, 28-53) Additionally, the positions list physical or educational requirements that potentially exceed claimant’s own qualifications and abilities. By way of illustration, the undersigned observed the following requirements: ability to lift up to 50 pounds; computer literacy; customer service skills; prolonged standing of 8 to 12 hours; high school diploma or GED required or preferred; bending and twisting; lift and carry up to 35 pounds; knowledge of gas and diesel machinery preferred; use of hand and power tools; fast paced work; lift up to 60 pounds; prolonged standing or sitting; ability to move large, bulky, and/or heavy merchandise; CDL licensure; lift 50 to 75 pounds; telephone skills; lift 30 pounds; bend and stoop; lift 85 pounds; operate light and heavy cleaning equipment; and move up to 75 pounds. (See Ex. G, pp. 28-53)

Claimant testified he did not meet with or speak to Ms. McGuire prior to Ms. McGuire issuing her report. Following issuance of the report, claimant reviewed Ms. McGuire’s report, specifically the job positions identified by Ms. McGuire. Claimant testified he does not believe himself capable of performing any of the positions identified. Despite this belief, claimant applied for three of the listed positions. He was declined by a home improvement store seeking an assembler. He never received a response from the two other potential employers. At evidentiary hearing, claimant addressed the specified jobs individually and identified job requirements he did not meet. Specifically, claimant identified the following requirements which he did not fulfill: high school diploma or GED; computer literacy; prolonged standing; twisting; lifting; experience in the fields of security, manufacturing, equipment or machinery maintenance, or customer service; and prolonged driving. (Claimant’s testimony) Claimant denied any work-related management, supervisory, accounting, ordering, inventory, security, sales, customer service, telephone, cash register, or computer skills. (Ex. H, Depo. Tr., pp. 63-64)

Mr. Jayne reviewed Ms. McGuire’s report and issued a critique. Initially, it should be noted Mr. Jayne highlighted Ms. McGuire’s training as a nurse, as opposed to a vocational rehabilitation counselor or board certified vocational expert. Additionally, Mr. Jayne highlighted Ms. McGuire’s performance of a records review only, as opposed to interviewing claimant. Mr. Jayne indicated the Code of Ethics, Standards of Practice and Competencies of the International Association of Rehabilitation Professionals highlights the importance of a clinical interview in the decision-making process. This lack of interview, according to Mr. Jayne, resulted in an incomplete and inaccurate evaluation. Mr. Jayne also took issue with Ms. McGuire’s failure to administer standardized vocational testing and further, if his evaluation had been provided to Ms.


McGuire, her choice to ignore the results of such tests performed by Mr. Jayne. (Ex. 12, p. 2)

Mr. Jayne also critiqued Ms. McGuire’s labor market study as invalid and not a true representation of the labor market. Mr. Jayne opined the survey to be statistically invalid due to sample size and selection, unrepresentative of the labor market, and inaccurate with regard to reporting of the actual requirements of the identified positions. Mr. Jayne opined most of the jobs identified had physical, experience, education, technical expertise, or material handling requirements beyond claimant’s abilities and capacities. Mr. Jayne indicated these jobs similarly exceeded limitations set forth by Drs. Epp and Hartley, both occupational medicine physicians with knowledge of application of FCE factors. Mr. Jayne opined such occupational physicians should be in the position to interpret the FCE and impose physical limitations. (Ex. 12, pp. 2-3) Mr. Jayne opined the occasional reaching restriction, including range of motion when lifting, as identified by Drs. Hartley, Miller, and Epp precluded claimant’s access to approximately 92 percent of occupations identified in the Dictionary of Occupational Titles. (Ex. 12, p. 3)

Following termination by defendant-employer, claimant met with a vocational rehabilitation consultant. At that time, claimant was placed on a waiting list for services. Despite claimant’s follow-up call to the counselor, he received no assistance. (Claimant’s testimony)

Claimant has proven successful in securing limited self-employment following his termination. A friend owns a mowing business and funnels work to claimant, providing claimant the opportunity to work approximately one or two days per week during the growing season, mowing various properties. The friend provides claimant a riding lawnmower to use. Claimant works only when work is available and when he feels well enough to work. On days he works, claimant works an average of six to eight hours and earns $10.00 per hour. In 2012, claimant earned $1,900.00 mowing. Despite using a riding mower, mowing causes a pinching pain in claimant’s back and bilateral shoulders. (Claimant’s testimony; Ex. 4, p. 5)

In addition to mowing, claimant secured regular employment vacuuming at an apartment complex for a property management company. Claimant vacuums common areas and hallways one time every other week. Such work takes claimant approximately two to three hours and he earns $120.00 per month. Claimant testified this vacuuming work does not require a set schedule and he is able to select the days and manner in which he works. Despite control over his schedule, vacuuming can result in problems with his bilateral shoulders, back and neck. (Claimant’s testimony)

Claimant does not believe himself capable of consistently working eight hours per day, 40 hours per week. Claimant explained his continued symptoms would make him unreliable due to pain and the resultant limits on his activities. When claimant


suffers with flared symptoms, he is required to sit still and treat those symptoms. In instances when claimant’s pain reaches a level seven or eight on a 10-point scale, claimant is forced to treat with medications, ice/heat, and potentially a back or neck brace. Such flares may last one to two days, or may stretch to one week in duration. During the course of these flares, claimant testified he would be unable to work. (Claimant’s testimony; Ex. H, Depo. Tr., p. 69)

Tax records reveal claimant earned the following amounts in the years he sustained work-related injuries: $44,520.00 in 2008 (Ex. M, p. 1); $42,200.00 in 2009 (Ex. M, p. 2); and $41, 508.00 in 2010 (Ex. M, p. 3).

Claimant is capable of performing activities around his home and yard. He mows his yard with a self-propelled lawn mower. When he does so, he mows the front yard, takes a break for one to two hours, and then mows the back yard. Claimant owns a motorcycle, but has not ridden his motorcycle in two years, as doing so requires him to sit and hold his arms in front of his body. (Claimant’s testimony)

Claimant continues to engage in hunting and fishing hobbies. Claimant has maintained multiple hunting and fishing licenses from 2008 through the date of evidentiary hearing. (Ex. N, pp. 10-16, 19-21, 23-24) Claimant testified he does not hunt as frequently as he did prior to sustaining the series of injuries with defendant-employer. Claimant testified he hunted on approximately 20 occasions since December 2010. When he does hunt, he does so in a different manner. Claimant does not enter timbered areas as frequently and uses different weapons. While he continues to use a muzzleloader, he has also acquired a permanent cross bow permit. Such a permit requires support by a medical professional. Cross bows use a hand crank and therefore, do not require the use of claimant’s shoulder to pull on the bow. Claimant no longer uses a traditional bow when hunting. Since the work injuries, claimant no longer hunts ducks. He also limits his walking and sits in a ground blind. Claimant continues to fish, yet attempts to limit the amount of casting necessary; for example, claimant fishes for catfish. Claimant acknowledged some difficulty with sitting while fishing. (Claimant’s testimony; Ex. H, Depo. Tr., pp. 58-60)

At both evidentiary hearing and claimant’s deposition, claimant testified to suffering with ongoing symptoms related to his stipulated work injuries. When questioned regarding a typical day at his deposition on December 11, 2012, claimant reported suffering with pain, pinching and pressure in his neck. Such pain averaged a level three on a 10-point scale, but could reach a level five. Claimant reported inability to sleep on his left side due to neck complaints. Claimant also reported soreness and pain of the bilateral shoulders, with numbness and tingling down arms to hands, right worse than left. These symptoms worsen with movement. Finally, claimant reported suffering with pain and pressure in his back, although a flare in his symptoms resulted in pain radiating down the right leg to the knee. On a good day, such complaints averaged


a level three, but symptoms could reach a level five or six on a bad day. (Ex. H, Depo. Tr., pp. 44-48)

Claimant also reported daily difficulty with range of motion of his neck and shoulders. Specifically, claimant reported difficulty reaching overhead or behind his back using the right shoulder. Claimant indicated he avoids extending his right arm at much distance in front of his body. Left shoulder symptoms were reported as similar to those on the right, albeit less severe in nature. Claimant testified to difficulties with his low back and neck in instances he engaged in prolonged sitting, including pressure and pinching. Claimant also reported difficulty bending and lifting from ground level. These symptoms flare with activity, although claimant occasionally suffers flares which he does not relate to activity. (Ex. H, Depo. Tr., pp. 44-48, 65-68) At the time of deposition, claimant reported use of a muscle relaxer, anti-inflammatory, and Vicodin, all on an as needed basis. He confessed to using six to eight Tylenol daily to manage his symptoms. (Ex. H, Depo. Tr., pp. 49-50)

At the time of evidentiary hearing, claimant testified he continued to suffer with problems with left shoulder, right shoulder, neck, and low back. He believes his symptoms persist at approximately the same level as when he was terminated, averaging the same level of pain and continuing to have good and bad days with his symptoms. (Claimant’s testimony)

Claimant described his low back and neck symptoms as the most bothersome. Low back symptoms included pinching, stabbing pains located at the center to right side of claimant’s low back. These pains come and go, but can be constant for several days. During a flare, pain radiates from claimant’s low back, down his right leg, to his foot. Claimant testified on good days, his low back pain ranges from a level two to three on a 10-point scale. On bad days, back pain confines claimant to a chair and he treats the pain with anti-inflammatories, Vicodin, and use of ice and heat. Claimant testifies he uses half a tablet of Vicodin an average of once per week, yet does so only to take the edge off his pain and he tries to avoid taking Vicodin if possible. He also uses anti-inflammatories on an as needed basis. Claimant testified pain has been centered at this location since he sustained the injury of December 2010. (Claimant’s testimony)

Claimant also reported continued pain and a pinching sensation in his neck. Additionally, claimant develops headaches at the base and back of his head. These headaches can last three to four hours in duration and can interfere with his activity, causing him to sit until the headache abates. Claimant testified to continued reduced range in motion of his neck, both with up and down and side to side movement. Such movement produces pain and results in claimant moving his entire body to avoid turning the neck. On days when claimant’s symptoms flare, claimant spends the day in his recliner and applies ice and heat. Occasionally, claimant makes use of a soft collar on his neck. Claimant testified he had one such day in the two weeks immediately preceding evidentiary hearing. (Claimant’s testimony)


Claimant also continues to suffer with constant right shoulder pain, stretching to his right elbow. Claimant described the pain as a pinching, burning, and aching. Additionally, claimant reported some numbness in the fingertips of his right hand. Symptoms impact claimant’s range of motion, with claimant reporting the inability to reach above shoulder height and difficulty reaching behind his back. Claimant is able to perform activities in front of his body with the right arm; however, doing so causes tingling and a charley horse sensation in the right arm. Claimant also reported decreased strength in his right arm as compared to pre-injury levels. Claimant testified his right shoulder symptoms are more severe than those present in his left shoulder. He reported a wider range of motion in the left arm, including better overhead and front reach. Claimant struggles with reaching behind his back with the left arm, just as he does with the right. (Claimant’s testimony)

Certain activities, if attempted by claimant, result in increased symptoms in multiple body parts, specifically looking down and sitting. Sitting for over two hours results in low back, neck, and bilateral shoulder pain. In the event claimant is required to sit for greater than this amount of time, whether in a chair or a vehicle, he will take a muscle relaxer to preempt symptoms. Claimant has difficulty sleeping, averaging approximately four hours of sleep per night. Claimant does not achieve a feeling of restfulness. He relates this difficulty sleeping to the inability to find comfortable positions in which to rest. Claimant has no currently scheduled medical appointments relative to his work-related injuries. (Claimant’s testimony)

Claimant’s wife, Teresa Drake, testified at evidentiary hearing. Ms. Drake testified she has observed changes in claimant’s behavior following the December 2010 injury. Specifically, Ms. Drake indicated claimant now sleeps only approximately four to five hours per night and naps during the daytime; only lies down when he is attempting to sleep; and becomes restless with sitting longer than 30 minutes to one hour and needs to stand and pace. Socially, the couple does not attend movies as frequently and the couple has not gone dancing or bowling in two years. She further testified claimant undergoes good and bad days with his symptoms. On bad days, claimant stands and holds his back with his hand, paces, alternates places in the home in which he sits, and is unable to engage in sustained activity. Ms. Drake testified claimant often suffers with two to three bad days in a row. Ms. Drake testified following the FCE, claimant suffered a “horrible” flare in his symptoms, nearly bringing claimant to tears. She described claimant’s condition during this flare as one of the worst she has observed since the December 2010 injury. (Ms. Drake’s testimony)

On the issue of claimant’s employability, Ms. Drake, a scheduling supervisor at UIHC, indicated she would not hire claimant to perform customer service. She indicated he does not possess the temperament to converse with people of different attitudes. Ms. Drake testified claimant has poor math skills, so much so claimant only uses cash and does not manage a checking account. She compared claimant’s penmanship and


reading skills to grade-school aged children. Ms. Drake indicated she writes most items for their household and often reads documents to claimant. (Ms. Drake’s testimony)

Ms. Drake’s testimony was clear, well-delivered, and consistent with that provided by claimant. Her demeanor gave the undersigned no reason to doubt her veracity. Ms. Drake is found credible.

CONCLUSIONS OF LAW

The issues raised will be addressed in chronological order by stipulated date of injury as opposed to numerically by file number.

For File No. 5038576 (Date of Injury: July 11, 2008 (Right Shoulder, Neck)):

The first issue for determination is the extent of claimant’s industrial disability.

Under the Iowa Workers’ Compensation Act, permanent partial disability is compensated either for a loss or loss of use of a scheduled member under Iowa Code section 85.34(2)(a)-(t) or for loss of earning capacity under section 85.34(2)(u). The parties have stipulated claimant’s disability shall be evaluated industrially.

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. 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 Service 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 Supreme 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).

Claimant was 54 years of age on the date of evidentiary hearing. His education consists only of completion of the 11th grade; he has not secured a high school diploma, GED, or other certification. The evidence in the record demonstrates claimant was a poor student in high school. Vocational testing performed by Mr. Jayne reveals limited competence in basic skills such as math, spelling, and nonverbal reasoning. Claimant also earned noncompetitive scores in clerical perception and manual dexterity and low average to below average scores in verbal reasoning and word reading, respectively. Claimant’s only training and professional qualifications have been earned through on the job experience. Such experience consists entirely of heavy, manual labor positions in construction fields. During the first 10 years of employment, claimant worked in general maintenance, construction, cement finishing. During the final 23 years of claimant’s working life, claimant performed cement work for defendant-employer.

Work in heavy construction, specifically cement work, is the field which best suited claimant’s aptitudes and pre-injury abilities. Claimant’s limited education and poor vocational performance make successful retraining highly unlikely. Therefore, any negative impact upon claimant’s ability to continue working in the construction field significantly impacts claimant’s earning capacity.

Following the stipulated work injury of July 11, 2008, claimant demonstrated motivation to continued work for defendant-employer. Defendant-employer promptly offered claimant work, work which claimant successfully continued to perform until his termination approximately two and one-half years later. There is no evidence in the record claimant lost earnings by way of decreased wages or hours attributable to the stipulated injury of July 11, 2008.

Despite continuing to work for defendant-employer, claimant continued to suffer with ongoing symptoms of the right shoulder and neck, viewed by claimant as intertwined. While improvement in claimant’s condition rendered Dr. Carlstrom’s surgical recommendation unnecessary, Drs. Hitchon and Miller continued to recommend conservative treatment after claimant achieved MMI, including use of a cervical collar, anti-inflammatories, and the option to visit the pain clinic. Claimant underwent ongoing conservative care, including multiple injections as recently as 2012. It is also worth noting both Drs. Hitchon and Carlstrom indicated should conservative care prove ineffectual, claimant may ultimately require a cervical fusion and discectomy at C5-C6 and C6-C7.


In addition to suffering with ongoing symptoms, claimant sustained a functional loss of use of the right shoulder and neck. Dr. Hitchon opined claimant sustained a permanent impairment to the right shoulder in the range of 15 to 18 percent whole person by AMA Guides, 5th Edition. Dr. Hitchon quantified the precise level of impairment as 15 percent whole person, but did so utilizing the AMA Guides, 6 th Edition. Evaluating physicians, Drs. Miller and Hartley, each opined claimant sustained permanent impairment of 10 percent whole person as a result of decreased range of motion of the right shoulder. With regard to claimant’s neck, Drs. Miller and Hartley both based opinions of permanent impairment on the range of motion method and opined permanent impairments of 25 percent whole person and 24 percent whole person, respectively.

No physician imposed or recommended work restrictions specifically attributable to the July 2008 right shoulder and neck injury. Rather, three physicians opined as to claimant’s need for permanent restrictions as a combined result of the July 2008 injury with two subsequent work injuries. Due to neck, shoulder, and low back pain, Dr. Epp identified work restrictions of a maximum lift, push, pull, or carry of 10 pounds rarely floor-to-waist, 20 pounds occasionally waist-to-shoulder, and no such activity over shoulder-level; no activity on uneven surfaces, use of ladders, travel, work in warm or cold temperatures, or use of vibratory or power tools; occasional sitting; occasional gripping, grasping, and activities involving the upper extremities, but only at or below shoulder height; and rare standing, walking, stooping, bending, crawling, kneeling, and use of stairs.

Relying upon the FCE results, Dr. Hartley recommended the following permanent restrictions: maximum two-hand occasional lift of 60 pounds to waist level and 40 pounds to shoulder level; frequent two-hand lift of 30 pounds to waist level and 20 pounds waist-to-shoulder; one-hand occasional lift of 40 pounds to waist level and 20 pounds to shoulder level; maximum occasional push/pull of 70 pounds; occasional reaching; no reaching above shoulder level; no lifting from the floor to a nine inch height; and occasional bending, stooping, stairs, ladder climbing, crawling, squatting, crouching, and kneeling. Due to claimant’s reports of symptoms, Dr. Hartley also recommended claimant not sit, stand, or walk for greater than two hours at a time.

Dr. Miller also imposed the work restrictions with regard to all claimant’s conditions. Restrictions included: sitting, standing, and driving a maximum of two hours at a time; walking a maximum of one hour at a time; occasional crawling, squatting, kneeling, crouching, stair climbing, ladder climbing, and bending; avoidance of twisting; push/pull of a maximum of 70 pounds occasionally; lifting and carrying a maximum of 40 pounds from knee to shoulder occasionally; avoidance of lifting from the floor or above shoulder level; and a maximum one-hand lift of 25 pounds knee to chest occasionally.

Although it cannot be precisely determined which of these restrictions are attributable to the July 2008 injury, the conditions sustained to the right shoulder and


neck are clearly factors considered by the physicians in recommending such restrictions. While it is clear physicians recommend permanent restrictions in part due to claimant’s July 2008 injury, the extent of such limitations may be slight, as claimant demonstrated the ability to return to work full duty for defendant-employer and continued to function in that capacity for over two years. During this period of continued employment, claimant credibly testified to continued symptoms, including an average pain level of two to three on a 10-point scale in neck and bilateral shoulders, with pain potentially reaching a level seven or eight. As outlined supra, claimant continued to receive conservative care of complaints and self-treat with Tylenol.

Also relevant to consideration is claimant’s preexisting left shoulder impairment, sustained as a result of a June 2001 work injury. Treating physician, Dr. Paul, opined claimant sustained a 10 percent left upper extremity impairment as a result of the injury. While no specific work restrictions were recommended as a result of the June 2001 left shoulder injury, claimant was cautioned to avoid using heavy vibrating equipment for greater than two hours at a time and Dr. Paul noted some minimal limitation on reaching and lifting above shoulder level.

Upon consideration of the above and all other relevant factors of industrial disability, it is determined claimant sustained a 40 percent industrial disability as a result of the stipulated work-related injury of July 11, 2008. Such an award entitles claimant to 200 weeks of permanent partial disability benefits (40 percent x 500 weeks = 200 weeks), commencing on the stipulated date of July 12, 2008. The parties stipulated at the time of the work injury, claimant’s gross weekly earnings were $1,006.24, and claimant was single and entitled to one exemption. The proper rate of compensation is therefore, $582.81.

The final issue for determination is whether defendants are entitled to apportionment or credit for permanent disability on prior injuries.

Iowa Code section 85.34(7)(a) makes defendants responsible for compensating all of an employee’s disability that arises out of and in the course of the employee’s employment with the employer.

Iowa Code section 85.34(7)(b)(1) states:

If an injured employee has a preexisting disability that was caused by a prior injury arising out of and in the course of employment with the same employer, and the preexisting disability was compensable under the same paragraph of subsection 2 as the employee's present injury, the employer is liable for the combined disability that is caused by the injuries, measured in relation to the employee's condition immediately prior to the first injury. In this instance, the employer's liability for the combined disability shall be considered to be already partially satisfied to the extent


of the percentage of disability for which the employee was previously compensated by the employer.

Iowa Code section 85.34(2)(u) states:

In all cases of permanent partial disability other than those hereinabove described or referred to in paragraphs “a” through “t” hereof, the compensation shall be paid during the number of weeks in relation to five hundred weeks as the reduction in the employee’s earning capacity caused by the disability bears in relation to the earning capacity that the employee possessed when the injury occurred.

After completing a course of treatment of claimant’s left shoulder, with that treatment beginning in June 2001, Dr. Paul opined claimant sustained a permanent impairment of 10 percent of the left upper extremity as a result of the injury. The existence of a prior rating of permanent disability is insufficient to warrant a credit pursuant to Iowa Code section 85.34(7). A credit is only given for the number of weeks of permanent disability benefits for which claimant was previously compensated by the same employer. While agency records reveal a prior workers’ compensation claim for claimant’s left shoulder with a date of injury of June 20, 2001, defendants failed to provide proof permanent disability benefits were paid for this injury. The evidentiary record is void of documentary proof of payment of permanent disability benefits for the June 2001 injury and the hearing report does not indicate the parties reached a stipulation with regard to the prior payment of such benefits. It is defendants’ burden to prove the number of weeks of benefits paid and defendants failed to do so in this instance. Accordingly, defendants are not entitled to a credit pursuant to Iowa Code section 85.34(7) for the June 2001 injury.

For File No. 5038577 (Date of Injury: August 28, 2009 (Left Shoulder)):

The first issue for determination is whether the stipulated injury of August 28, 2009 is a cause of permanent disability.

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).

Three physicians offered opinions in evidence regarding the extent of permanent impairment, if any, sustained by claimant as a result of the stipulated work injury of August 28, 2009. Dr. Jochims opined claimant did not sustain permanent impairment because he attributed the observed decreases in range of motion to a congenital condition. This opinion is contrary to that offered by Dr. Paul as a result of the 2001 injury and contrary to the opinions offered by claimant’s IME physician, Dr. Miller, and defendants’ IME physician, Dr. Hartley, in regard to the condition at issue in the instant matter. It is relevant that each Dr. Miller and Dr. Hartley opined claimant sustained permanent impairment due to decreased range of motion of the left shoulder and issued consistent ratings of eight percent whole person and seven percent whole person, respectively. Given the weight of the evidence and Dr. Jochim’s status as offering the only medical opinion in evidence suggesting a congenital condition, it is determined the opinions of Drs. Miller and Hartley are entitled to greater weight.

Furthermore, Drs. Miller, Hartley, and Epp each recommended permanent restrictions, attributable in part to claimant’s left shoulder injury of August 28, 2009. Additionally, Dr. Miller recommended future conservative treatment of claimant’s complaints and raised the possibility of future injections or a distal clavicle resection. Even Dr. Jochims opined claimant could potentially suffer from recurrent sprains similar to the one evaluated and require future injections and potentially an AC joint surgical resection.

The opinions of Drs. Miller and Hartley on existence and extent of permanent impairment, the work restrictions set forth by Drs. Epp, Miller, and Hartley, and the noted potential need for future treatment raised by Drs. Jochims and Miller are consistent with claimant’s ongoing reports of continued symptoms of pain and decreased range of motion. It is determined claimant sustained permanent impairment as a result of the stipulated work injury of August 28, 2009.

The next issue for determination is the extent of claimant’s industrial disability.

Under the Iowa Workers’ Compensation Act, permanent partial disability is compensated either for a loss or loss of use of a scheduled member under Iowa Code


section 85.34(2)(a)-(t) or for loss of earning capacity under section 85.34(2)(u). The parties have stipulated claimant’s disability shall be evaluated industrially.




The Iowa Supreme 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).

The elements of claimant’s age, education, qualifications, and experience are outlined supra and will not be restated in the analysis of the August 28, 2009 left shoulder injury. These factors will not be restated for the sake of brevity, but have been considered by the undersigned in analyzing the extent of claimant’s industrial disability sustained as a result of the stipulated August 28, 2009 work injury.

As a result of the work injury of August 28, 2009, claimant was diagnosed with left shoulder sprain/strain and subacromial bursitis. Three physicians have opined as to the extent of permanent impairment sustained by claimant as a result of the stipulated work injury of August 28, 2009. Dr. Jochims opined the decreased range of motion observed in claimant’s bilateral shoulders was congenital in nature and accordingly,


declined to assign permanent impairment as a result of the August 2009 left shoulder injury. However, Dr. Jochims’ opinion is contrary to Dr. Paul’s rating on left shoulder impairment related to the June 2011 injury and contrary to findings of the Drs. Miller and Hartley related to the August 2009 injury. Based upon the observed decreased range of motion, Dr. Miller opined claimant sustained a permanent impairment of eight percent whole person and Dr. Hartley opined claimant sustained a permanent impairment of seven percent whole person. For the reasons outlined supra, Dr. Jochims’ opinion is entitled to lesser weight than the opinions offered by Drs. Miller and Hartley.

As was true for the analysis of work restrictions in regard to the July 2008 right shoulder and neck injury, no physician specifically attributed outlined work restrictions to the August 2009 left shoulder injury. It still remains true that these restrictions are attributable, at least in part, to the left shoulder injury. As was also the case following the July 2008 injury, any restrictions imposed as a result of the August 2009 left shoulder injury did not prevent claimant from successfully engaging in full duty work for defendant-employer. Claimant demonstrated motivation to continued employment with defendant-employer following the August 2009 work injury, returning to work full duty and continuing in that capacity for over one year. There is no evidence in the record claimant’s earnings were decreased as a result of the August 2009 work injury.

Despite returning to work full duty, claimant credibly testified he continued to suffer with left shoulder complaints. Claimant testified his bilateral shoulder pain averaged a level two to three, but could reach a level seven or eight on a 10-point scale. Claimant self-treated with use of Tylenol. These reports of continued complaints are consistent with Dr. Miller’s recommendation for further conservative treatment, including the possibility of injections or distal clavicle resection. Dr. Jochims acknowledged the possibility for claimant’s left shoulder sprain/strain to recur and accordingly, recommended claimant have access to an orthopedic doctor for future injections, if necessary. Dr. Jochims, like Dr. Miller, also indicated claimant may potentially require a surgical resection at some future date.

It must also be restated that a proper analysis of the extent of claimant’s industrial disability as a result of the August 28, 2009 work injury also includes consideration claimant’s condition immediately prior to the work-related injury, as claimant’s condition is viewed as a whole. Specifically, in consideration of the extent of industrial disability sustained as a result of the August 2009 left shoulder injury, the undersigned also considers the impact of claimant’s June 2001 left shoulder injury and the right shoulder and neck injuries of July 11, 2008.

Upon consideration of the above and all other relevant factors of industrial disability, it is determined claimant sustained a 50 percent industrial disability as a result of the stipulated work-related injury of August 28, 2009. Such an award entitles claimant to 250 weeks of permanent partial disability benefits (50 percent x 500 weeks = 250 weeks), commencing on the stipulated date of August 29, 2009. The parties


stipulated at the time of the work injury, claimant’s gross weekly earnings were $1,039.17, and claimant was single and entitled to one exemption. The proper rate of compensation is therefore, $609.21.

The final issue for determination is whether defendants are entitled to apportionment or credit for permanent disability on prior injuries.

Iowa Code section 85.34(7)(a) makes defendants responsible for compensating all of an employee’s disability that arises out of and in the course of the employee’s employment with the employer.

Iowa Code section 85.34(7)(b)(1) states:

If an injured employee has a preexisting disability that was caused by a prior injury arising out of and in the course of employment with the same employer, and the preexisting disability was compensable under the same paragraph of subsection 2 as the employee's present injury, the employer is liable for the combined disability that is caused by the injuries, measured in relation to the employee's condition immediately prior to the first injury. In this instance, the employer's liability for the combined disability shall be considered to be already partially satisfied to the extent of the percentage of disability for which the employee was previously compensated by the employer.

Iowa Code section 85.34(2)(u) states:

In all cases of permanent partial disability other than those hereinabove described or referred to in paragraphs “a” through “t” hereof, the compensation shall be paid during the number of weeks in relation to five hundred weeks as the reduction in the employee’s earning capacity caused by the disability bears in relation to the earning capacity that the employee possessed when the injury occurred.

The undersigned found claimant sustained a 40 percent industrial disability as a result of the July 11, 2008 work-related injury (File No. 5038576 (Right Shoulder, Neck)). That award entitled claimant to 200 weeks of permanent partial disability benefits. Pursuant to Iowa Code section 85.34(7), defendants are therefore entitled to a credit of 200 weeks against the award of 250 weeks (50 percent industrial disability) ordered in File No. 5038577 (Date of Injury: August 28, 2009 (Left Shoulder)).

For File No. 5038575 (Date of Injury: December 2, 2010 (Low Back)):


The first issue for determination is the extent of claimant’s industrial disability, including whether claimant is permanently and totally disabled under the industrial disability principles or as an odd-lot employee.

Under the Iowa Workers’ Compensation Act, permanent partial disability is compensated either for a loss or loss of use of a scheduled member under Iowa Code section 85.34(2)(a)-(t) or for loss of earning capacity under section 85.34(2)(u). The parties have stipulated claimant’s disability shall be evaluated industrially.




Total disability does not mean a state of absolute helplessness. Permanent total disability occurs where the injury wholly disables the employee from performing work that the employee's experience, training, education, intelligence, and physical capacities would otherwise permit the employee to perform. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 (1935).

A finding that claimant could perform some work despite claimant's physical and educational limitations does not foreclose a finding of permanent total disability, however. See Chamberlin v. Ralston Purina, File No. 661698 (App. October 1987); Eastman v. Westway Trading Corp., II Iowa Industrial Commissioner Report 134 (App. May 1982).

The Iowa Supreme 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).

In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), the Iowa court formally adopted the “odd-lot doctrine.” Under that doctrine a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are “so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.” Id., at 105.

Under the odd-lot doctrine, the burden of persuasion on the issue of industrial disability always remains with the worker. Nevertheless, when a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence showing availability of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of facts finds the worker does fall in the odd-lot category, the worker is entitled to a finding of total disability. Guyton, 373 N.W.2d at 106. Factors to be considered in determining whether a worker is an odd-lot employee include the worker’s reasonable but unsuccessful effort to find steady employment, vocational or other expert evidence demonstrating suitable work is not available for the worker, the extent of the worker’s physical impairment, intelligence, education, age, training, and potential for retraining. No factor is necessarily dispositive on the issue. Second Injury Fund of Iowa v. Nelson, 544 N.W.2d 258 (Iowa 1995). Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of evidence in determining whether the worker’s burden of persuasion has been carried, and only in an exceptional case would evidence be sufficiently strong as to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106.

Analysis of claimant’s age, education, qualifications, and experience was identified supra. For sake of brevity, this analysis will not be restated in the instant analysis; however, such factors remain highly relevant to consideration of the extent of industrial disability sustained by claimant as a result of the stipulated injury of December 2, 2010. Accordingly, the undersigned has considered such factors in determining the extent of industrial disability claimant sustained as a result of the December 2010 low back injury.

Claimant sustained a bulge at L4-5 as a result of the work injury of December 2, 2010. He received conservative treatment of his complaints, including physical therapy, activity restrictions, and multiple injections. Furthermore, Dr. Miller raised the remote


possibility of a surgical decompression. Two physicians, Drs. Miller and Hartley, opined as to the extent of permanent functional impairment claimant sustained as a result of the low back injury. Both physicians opined the injury resulted in a permanent impairment of 10 percent whole person.

As a result of the low back injury, Dr. Hitchon imposed a 30-pound weight limit and restrictions of no climbing or overhead work. He ordered an FCE to address claimant’s other functional abilities. Mr. Seaton performed the ordered FCE and opined claimant capable of functioning at the medium-heavy physical demand level of occupations with an ability to perform a two-hand occasional lift and carry of 60 pounds and frequently lift 30 pounds. Despite finding claimant capable of performing such tasks, review of the text of Mr. Seaton’s report reveals claimant demonstrated difficulty maintaining proper body mechanics when functioning at these levels, even during the relatively short duration of the FCE. Mr. Seaton’s finding is also clearly less stringent then the weight restriction imposed by Dr. Hitchon. Also troublesome is Mr. Seaton’s denotation allowing frequent overhead work and climbing. Such allowances are clearly contrary to the restrictions imposed by Dr. Hitchon.

Dr. Hitchon is a physician, charged with patient care. It is he who is in the best position to opine as to the work restrictions properly imposed upon claimant. The FCE was ordered not to contradict the restrictions imposed by Dr. Hitchon, but to evaluate claimant’s other abilities. The FCE results may then be interpreted to determine work restrictions, if appropriate. The FCE results, interpreted by a physical therapist, are not properly used to supplant the opinions of a treating physician. Therefore, it is determined the FCE results, when contrary to those opinions offered by Dr. Hitchon, are entitled to no weight.

Three physicians opined as to claimant’s need for permanent restrictions as a result of claimant’s three work injuries of July 2008, August 2009, and December 2010. Due to neck, shoulder, and low back pain, Dr. Epp identified work restrictions of a maximum lift, push, pull, or carry of 10 pounds rarely floor-to-waist, 20 pounds occasionally waist-to-shoulder, and no such activity over shoulder-level; no activity on uneven surfaces, use of ladders, travel, work in warm or cold temperatures, or use of vibratory or power tools; occasional sitting; occasional gripping, grasping, and activities involving the upper extremities, but only at or below shoulder height; and rare standing, walking, stooping, bending, crawling, kneeling, and use of stairs.

Relying upon the FCE results, Dr. Hartley recommended the following permanent restrictions: maximum two-hand occasional lift of 60 pounds to waist level and 40 pounds to shoulder level; frequent two-hand lift of 30 pounds to waist level and 20 pounds waist-to-shoulder; one-hand occasional lift of 40 pounds to waist level and 20 pounds to shoulder level; maximum occasional push/pull of 70 pounds; occasional reaching; no reaching above shoulder level; no lifting from the floor to a nine inch height; and occasional bending, stooping, stairs, ladder climbing, crawling, squatting,


crouching, and kneeling. Due to claimant’s reports of symptoms, Dr. Hartley also recommended claimant not sit, stand, or walk for greater than two hours at a time.

Dr. Miller also imposed the same work restrictions with regard to all claimant’s conditions. Restrictions included: sitting, standing, and driving a maximum of two hours at a time; walking a maximum of one hour at a time; occasional crawling, squatting, kneeling, crouching, stair climbing, ladder climbing, and bending; avoidance of twisting; push/pull of a maximum of 70 pounds occasionally; lifting and carrying a maximum of 40 pounds from knee to shoulder occasionally; avoidance of lifting from the floor or above shoulder level; and a maximum one-hand lift of 25 pounds knee to chest occasionally. Even with these restrictions, Dr. Miller also opined claimant would not tolerate working a full-time position, 8 hours per day, 40 hours per week.

The restrictions imposed by Dr. Hitchon are consistent, to the extent addressed, with those recommended by Dr. Miller. These restrictions are clearly at odds with the physical requirements of claimant’s pre-injury position with defendant-employer. This conclusion is buttressed by defendant-employer’s failure to provide claimant work which met his permanent restrictions. Although defendant-employer maintains claimant was permanently laid off due to economic reasons, the fact remains claimant would be unable to perform the essential functions of his cement carpenter position, absent significant accommodations by defendant-employer.

Even with significant accommodation, the restrictions imposed and recommendations outlined by treating and evaluating physicians render it highly unlikely claimant would have been physically capable of continued employment on a long-term basis. This determination is supported by the vocational assessment of Mr. Jayne. Mr. Jayne performed a vocational assessment, including labor market survey, interview of claimant, and testing of claimant’s abilities. Following a thorough analysis, Mr. Jayne opined claimant incapable of returning to any job in his work history.

Due to claimant’s past grades and vocational testing, Mr. Jayne opined such measures rendered claimant an unlikely candidate for retraining and further opined a vocational assistance program was unlikely to be successful in returning claimant to competitive employment. Ultimately, Mr. Jayne opined claimant was precluded from competitive employment. Defendants’ expert, Ms. McGuire, reached a contrary conclusion following a records review and labor market survey. Without meeting claimant, she opined claimant was teachable, trainable, and capable of returning to work.

In comparing the assessments completed by Mr. Jayne and Ms. McGuire, it is noted Mr. Jayne is a professional in vocational rehabilitation, with superior training in this field than that of nurse, Ms. McGuire. Furthermore, the report created by Mr. Jayne and entered into evidence is thorough and much more extensive in its discussion of claimant’s overall vocational status. Ms. McGuire failed to interview claimant and


perform, or consider, vocational testing. Ms. McGuire did not offer claimant vocational services, but rather, simply provided a list of positions available in the labor market for which she opined claimant may qualify. In performing this analysis, Ms. McGuire relied upon the FCE results as opposed to those restrictions opined by physicians.

By a cursory review of the position postings provided by Ms. McGuire, the undersigned observed several inconsistencies between the job requirements and claimant’s abilities. Contrary to Ms. McGuire’s apparent belief, the undersigned believes speculation as to whether a prospective employer would waive such requirements or preferences to be inappropriate in a vocational evaluation. Such required speculation severely reduces the weight properly provided to Ms. McGuire’s report. The inappropriate nature of such speculation is supported by claimant applying unsuccessfully for three of the 17 identified positions.

Even should the undersigned adopt Ms. McGuire’s listed positions as ones available to claimant within the labor market, it is relevant these positions carried wage ranges far below that earned by claimant at the time of his termination by defendant-employer. The proposed available positions carried hourly wages ranging from $8.00 to $20.00 per hour. Such wages represent earnings at approximately 30 to 75 percent of claimant’s earnings at defendant-employer.

As a result of claimant’s termination, claimant sustained an obvious loss of earnings. Claimant has not engaged in full-time employment since his layoff by defendant-employer in December 2010. During his final year of employment at defendant-employer, claimant earned over $41,000.00. In the years following his permanent layoff, claimant has demonstrated motivation to continued employment, securing work consistent with his own abilities and limitations. Claimant’s continued employment is limited in nature, and accordingly, earns claimant wages incomparable to those he earned at defendant-employer. In the year 2012, claimant earned $1,900.00 mowing and $120.00 per month vacuuming.

Claimant testified he continues to suffer with pain and corresponding decreased range of motion of the bilateral shoulders, neck, and low back. Claimant credibly testified these continued symptoms may also flare to levels severe enough to prevent him from working for up to one week at a time. The evidentiary records supports a finding these flares occur on more than rare occasions and the resultant unreliability in claimant’s attendance is unlikely to be tolerated by many employers.

When claimant’s condition is viewed as a whole, claimant has sustained work injuries resulting in significant permanent functional impairment. In 2001, claimant sustained a 10 percent left upper extremity impairment as a result of a left shoulder injury; this rating converts to 6 percent whole person. As a result of the July 2008 work injury, claimant sustained permanent impairment ratings of 15 percent whole person from treating physician, Dr. Hitchon, and 10 percent whole person from claimant’s IME


physician, Dr. Miller, and defendants’ IME physician, Dr. Hartley. Also as a result of the July 2008 work injury, claimant sustained permanent impairments of 25 percent whole person and 24 percent whole person for his neck condition, as opined by Drs. Miller and Hartley, respectively. As a result of the August 2009 left shoulder injury, Dr. Miller opined claimant sustained an eight percent whole person impairment and Dr. Hartley opined claimant sustained a seven percent whole person impairment. For the reasons outlined supra, Dr. Jochims’ opinion on the extent of claimant’s left shoulder impairment is rejected. Finally, as a result of the December 2010 low back injury, Drs. Miller and Hartley each opined claimant sustained a permanent impairment of 10 percent whole person.

It must be noted the opinions of claimant’s IME physician, Dr. Miller, and defendants’ IME physician, Dr. Hartley, are highly consistent across the spectrum of each of claimant’s injuries. Such consistency is not often seen in evidence presented for consideration, especially given each physician was retained by opposing parties. This consistency and the thorough and well-reasoned reports provided by each physician leads the undersigned to provide these consistent reports significant weight in the analysis of claimant’s permanent impairment.

Upon consideration of the above and all other relevant factors of industrial disability, it is determined claimant is currently permanently and totally disabled as a result of the injury of December 2, 2010. Such an award entitles claimant to permanent total disability benefits, commencing December 3, 2010, the day after claimant sustained the work-related injury, and continuing during the period claimant remains permanently and totally disabled. The parties stipulated at the time of the work injury, claimant’s gross weekly earnings were $1,020.38, and claimant was single and entitled to one exemption. The proper rate of compensation is therefore, $598.03.

The final issue for determination is whether defendants are entitled to apportionment or credit for permanent disability on prior injuries pursuant to Iowa Code section 85.34(7).

The undersigned found claimant entitled to permanent total disability benefits as a result of the December 2, 2010 work-related injury (File No. 5038575 (Low Back)). The Iowa Supreme Court has held permanent total disability benefits are not subject to apportionment under section 85.34(7). Drake University v. Davis, 769 N.W.2d 176, 185 (Iowa 2009). As claimant has been awarded permanent total disability benefits, defendant is not entitled to credit for benefits previously paid resultant from prior injuries.

For all files:

The first issue for determination is whether claimant is entitled to reimbursement for an independent medical evaluation under Iowa Code section 85.39.


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. See Schintgen v. Economy Fire & Casualty Co., File No. 855298 (App. April 26, 1991). Claimant need not ultimately prove the injury arose out of and in the course of employment to qualify for reimbursement under section 85.39. See Dodd v. Fleetguard, Inc., 759 N.W.2d 133, 140 (Iowa App. 2008).

Claimant seeks reimbursement for the IME performed by Dr. Miller in the amount of $5,390.00. (Ex. 10, p. 1) It is not necessary to evaluate whether claimant’s evaluation qualifies as a subsequent evaluation, as defendants preauthorized claimant to undergo an Iowa Code section 85.39 evaluation. The fee charged by Dr. Miller is found reasonable, as Dr. Miller’s evaluation and report addressed three separate work-related injuries, representing three separate litigated files. As such, claimant is entitled to reimbursement of Dr. Miller’s IME fee. Defendants are therefore ordered to reimburse claimant in the amount of $5,390.00.

The next issue for determination is whether claimant is entitled to reimbursement of medical mileage.

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-Reopening October 1975).

Claimant seeks reimbursement for mileage costs incurred in treatment of his various work-related medical conditions. Defendants do not specifically contest payment of these costs. There is no evidence the mileage requested was unreasonable or unnecessary. Therefore, claimant is entitled to reimbursement for medical mileage costs as detailed in Exhibit 9. Defendants are ordered to reimburse claimant for medical mileage in the amount of $628.99.


The final issue for determination is a specific taxation of costs pursuant to Iowa Code section 86.40 and rule 876 IAC 4.33. Claimant requests taxation of the costs of: $100.00 filing fee; $2,573.90 vocational fee of Mr. Jayne; $100.00 for service of process of subpoena on Diane McGuire; and $5,390.00 for the IME performed by Dr. Miller.

Iowa Code section 86.40 states:

Costs. All costs incurred in the hearing before the commissioner shall be taxed in the discretion of the commissioner.

Iowa Administrative Code rule 876—4.33(86) states:

Costs. Costs taxed by the workers’ compensation commissioner or a deputy commissioner shall be (1) attendance of a certified shorthand reporter or presence of mechanical means at hearings and evidential depositions, (2) transcription costs when appropriate, (3) costs of service of the original notice and subpoenas, (4) witness fees and expenses as provided by Iowa Code sections 622.69 and 622.72, (5) the costs of doctors’ and practitioners’ deposition testimony, provided that said costs do not exceed the amounts provided by Iowa Code sections 622.69 and 622.72, (6) the reasonable costs of obtaining no more than two doctors’ or practitioners’ reports, (7) filing fees when appropriate, (8) costs of persons reviewing health service disputes. Costs of service of notice and subpoenas shall be paid initially to the serving person or agency by the party utilizing the service. Expenses and fees of witnesses or of obtaining doctors’ or practitioners’ reports initially shall be paid to the witnesses, doctors or practitioners by the party on whose behalf the witness is called or by whom the report is requested. Witness fees shall be paid in accordance with Iowa Code section 622.74. Proof of payment of any cost shall be filed with the workers’ compensation commissioner before it is taxed. The party initially paying the expense shall be reimbursed by the party taxed with the cost. If the expense is unpaid, it shall be paid by the party taxed with the cost. Costs are to be assessed at the discretion of the deputy commissioner or workers’ compensation commissioner hearing the case unless otherwise required by the rules of civil procedure governing discovery. This rule is intended to implement Iowa Code section 86.40.

Rule 876 IAC 4.17 includes as a practitioner, “persons engaged in physical or vocational rehabilitation or evaluation for rehabilitation.” A report or evaluation from a vocational rehabilitation expert constitutes a practitioner report under our administrative rules. Bohr v. Donaldson Company, File No. 5028959 (Arb. Dec. November 23, 2010); Muller v. Crouse Transportation, File No. 5026809 (Arb. Dec. December 8, 2010) The entire reasonable costs of doctors’ and practitioners’ reports may be taxed as costs


pursuant to 876 IAC 4.33. Caven v. John Deere Dubuque Works, File Nos. 5023051, 5023052 (App. Dec. July 21, 2009).

The costs of filing fee, vocational report, and service fee are allowable costs and are taxed to defendants. The undersigned previously awarded claimant reimbursement for the cost of claimant’s IME with Dr. Miller under Iowa Code section 85.39. The issue of taxation of this cost is therefore, moot. Defendants are ordered to reimburse claimant for costs in the amount of $2,773.90.

ORDER

THEREFORE, IT IS ORDERED:

For File No. 5038576 (Date of Injury: July 11, 2008 (Right Shoulder, Neck)):

Defendants shall pay unto claimant two hundred (200) weeks of permanent partial disability benefits, commencing on the stipulated date of July 12, 2008, at the weekly rate of five hundred eighty-two and 81/100 dollars ($582.81).

Defendants are entitled to no credit pursuant to Iowa Code section 85.34(7).

Defendants shall pay accrued weekly benefits in a lump sum.

Defendants shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30.

Defendants shall receive credit for benefits paid.

For File No. 5038577 (Date of Injury: August 28, 2009 (Left Shoulder)):

Defendants shall pay unto claimant two hundred fifty (250) weeks of permanent partial disability benefits, commencing on the stipulated date of August 29, 2009, at the weekly rate of six hundred nine and 21/100 dollars ($609.21).

Defendants are entitled to a credit of two hundred (200) weeks of permanent partial disability benefits for benefits awarded in File No. 5038576 (Date of Injury: July 11, 2008 (Right Shoulder, Neck)) pursuant to Iowa Code section 85.34(7).





For File No. 5038575 (Date of Injury: December 2, 2010):

Defendants shall pay unto claimant permanent total disability benefits at the weekly rate of five hundred ninety-eight and 03/100 dollars ($598.03), commencing December 3, 2010 and continuing during the period claimant remains permanently and totally disabled.

Defendants are entitled to no credit pursuant to Iowa Code section 85.34(7).




For All Files:

Defendants shall reimburse claimant for medical mileage in the amount of six hundred twenty-eight and 99/100 dollars ($628.99).

Defendants shall reimbursement claimant for the independent medical evaluation performed by Dr. Miller in the amount of five thousand three hundred ninety and 00/100 dollars ($5,390.00).

Defendants shall file subsequent reports of injury as required by this agency pursuant to rule 876 IAC 3.1(2).

Costs are taxed to defendants pursuant to rule 876 IAC 4.33 as set forth in this decision.

Signed and filed this _____12 th _ _______ day of March, 2014.

______________________________ ERICA J. FITCH (ELLIOTT) DEPUTY WORKERS’

COMPENSATION COMMISSIONER


Copies to:

Mr. Thomas M. WertzAttorney at LawPO Box 849Cedar Rapids, IA [email protected]

Mr. Nathan R. McConkeyAttorney at Law2700 Westown Pkwy., Ste. 170West Des Moines, IA [email protected]

EJF/sko

mailto:[email protected]

mailto:[email protected]

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