Download King v. Quaker Oats - Iowa Workforce Development Decisions

BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______________________________________________________________________
:
ROBERT C. KING,
:
:
Claimant,
:
:
vs.
:
:
File No. 5036289
QUAKER OATS COMPANY,
:
:
ARBITRATION
Employer,
:
:
DECISION
and
:
:
USF & G,
:
:
Insurance Carrier,
:
Head Note Nos.: 1803.1; 1803;
Defendants.
:
2401; 4000
______________________________________________________________________
STATEMENT OF THE CASE
Robert C. King, claimant, filed a petition in arbitration seeking workers’
compensation benefits against Quaker Oats Company, employer, and USF & G,
insurer, both as defendants, as well as Second Injury Fund of Iowa, arising out of work
injuries which occurred on March 12, 2003. The case was heard on May 8, 2012, in
Waterloo, Iowa, and considered fully submitted on the same. Prior to the hearing, the
claimant settled with the Second Injury Fund of Iowa.
The evidence in this case consists of the testimony of claimant; claimant’s
exhibits 1 through 22, and defendants’ exhibits A through O.
ISSUES
Whether claimant’s claim is barred for failure to give timely notice under Iowa
Code section 85.23 or as an untimely claim under Iowa Code section 85.26;
Whether the alleged injury is a cause of permanent disability and, if so;
Whether the alleged disability is a scheduled member disability or an
unscheduled disability;
The extent of claimant’s scheduled member/industrial disability; and,
Whether claimant is entitled to penalty benefits under Iowa Code section 86.13
and, if so, how much.
KING V. QUAKER OATS COMPANY
Page 2
STIPULATIONS
The stipulations of the hearing report are adopted herein.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The party who would suffer loss if an issue were not established has the burden
of proving that issue by a preponderance of the evidence. Iowa R. App. P. 6.14(6).
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).
Robert Charles King was a 62-year-old person at the time of hearing. Claimant
served in the U.S. Navy, active duty for three and a half years working radar. He
returned to Iowa after discharge and studied programming at Kirkwood for two quarters.
In 1972 he began working at Quaker Oats and retired in June 2011.
He worked in elevators and the ready to eat cereal departments. On March 12,
2003, when claimant was injured, he was working in the ready to eat cereal
departments. His job required physical exertion. He would take the machines apart,
clean them, perform some light maintenance, empty the dough. (Exhibit 21)
On March 12, 2003, claimant was bringing a coarse sugar tote weighing 2,000
pounds to the freight elevator when his leg was crushed between a pipe and the back of
a forklift. The claimant underwent 20 surgeries, with the final surgery being a belowthe-knee amputation of the left leg. (See Ex. 3; Ex. 4, pages 15-16) Defendants accept
this injury but dispute the extent.
Claimant also asserts exposure to occupational noise resulting in hearing loss
and tinnitus. The defendants have asserted two time related bars to recovery of this
claim.
Section 85.23 provides:
Unless the employer or the employer's representative shall have
actual knowledge of the occurrence of an injury received within ninety
days from the date of the occurrence of the injury, or unless the employee
or someone on the employee's behalf or a dependent or someone on the
dependent's behalf shall give notice thereof to the employer within ninety
days from the date of the occurrence of the injury, no compensation shall
be allowed.
KING V. QUAKER OATS COMPANY
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John Deere Dubuque Works v. Caven, 804 N.W.2d 297 (Iowa App. 2011) is the
most recent appellate case in which time bars and tinnitus was addressed. Tinnitus is a
cumulative injury. The question to be answered is at what point in time did the claimant
knew or should have known of the nature, seriousness and probable compensability of
his injury. There was evidence in the record that Caven knew that tinnitus was caused
by his work environment and that he knew it affected his ability to do good work for the
employer at least ten years prior to filing the claim. Based on this, the appellate court
affirmed the agency’s finding that the claimant was time barred from bringing a claim for
tinnitus.
Claimant reported to Richard S. Tyler, Ph.D., that claimant first started having
problematic tinnitus in 2005. The only documentation of tinnitus in the work records, per
Dr. Tyler, is in 1997. The first noticeable hearing issue was recorded on October 30,
1987, when claimant was advised to check the fit of his ear protection due to a
threshold shift in the right ear. (Ex. 15, p. 6) In 1992, there was an adverse shift in
claimant’s hearing in both ears. (Ex. 15, p. 9) In 1999, it was noted that claimant had
mild hearing loss in the left ear, but normal hearing in the right. (Ex. 15, p. 11) In 2001,
claimant exhibited mild hearing loss bilaterally. (Ex. 15, p. 14) In 2003, claimant’s last
hearing test, he had no change in baseline from previous tests.
On November 5, 2011, Dr. Tyler issued opinions regarding claimant’s tinnitus.
(Ex. 11) Dr. Tyler believed that the defendant employer’s premises contained noise
events that would cause noise induced hearing loss and tinnitus, including continuous
noise and impulsive noise and possibly chemicals that enhance hearing loss. (Ex. 11,
p. 2) Dr. Tyler also pointed to the 2004 tests of co-workers which evidenced prohibited
impulsive noise measurements. (Ex. 11, p. 2) Claimant had not returned to work in
2004 and instead had remained off work since August 2003. (Ex. A, p. 8)
Claimant reported to Dr. Tyler that claimant first started having problematic
tinnitus in 2005. Dr. Tyler, however, believes that the defendant employer engaged in
regular and illegal destruction of documents pertaining to hearing tests. (Ex. 11, p. 4)
Based on Dr. Tyler’s tests and measurements, claimant sustained a 6.8 percent whole
body impairment as a result of the hearing loss and tinnitus, but claimant’s functional
impairment is zero. (Ex. 11, pp. 9, 11)
Claimant testified that he has had tinnitus for some time, at least five to six years;
that it affects his ability to concentrate; and that he has to listen to his grandkids out of
the right ear. (Ex. A, p. 9) He further testified that there are no activities that he is
prevented from undertaking as a result of tinnitus (or hearing loss as he claims he has
no issues with that). (Ex. A, p. 9)
Claimant did report some hearing loss and ringing in his left ear in 2004 but
James M. Pape, M.D., attributed that to vancomycin. (Ex. D, p. 5)
KING V. QUAKER OATS COMPANY
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A notice or statute of limitations defense is affirmative in nature and thus the
party asserting the defense must prove the elements of the defense. IBP, Inc. v.
Burress, 779 N.W.2d 210 (Iowa 2010).
Claimant maintains he has had tinnitus for the past five to six years. Tinnitus is a
cumulative injury. His last day of actual exposure to the noise would have been some
time in 2003 after his injury. He was initially returned to work and placed in the office.
There is no record claimant reported any tinnitus or hearing loss to the employer.
Further, the claimant reported that the tinnitus occurred five to six years previously, but
claimant was not working in the plant five or six years previous. There is no evidence
that claimant reported tinnitus to his employer within the proscribed time period. There
were a few tests showing hearing loss, but none that inhibited claimant from working.
Assuming arguendo that claimant’s claim for tinnitus is not time barred, there is
not sufficient evidence upon which to find a permanent disability based on claimant’s
own testimony about the development of his tinnitus and the lack of impact it has on his
ability to do work.
Claimant’s claim for tinnitus is denied.
The next question is whether claimant sustained an injury solely to his left leg or
whether it extended into his buttocks and low back to transform the claim into one that is
industrial in nature.
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).
KING V. QUAKER OATS COMPANY
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Claimant’s initial surgery was performed by Daniel Fabiano, M.D., on March 12,
2003. (Ex. 3, p. 1) Dr. Pape took over in October 2003 and continued to perform
multiple surgeries throughout the years. Claimant continually would contract infections
necessitating debridements. In 2005, Dr. Pape recommended claimant consult with
John L. Marsh, M.D. (Ex. 4, p. 2)
Dr. Marsh gave claimant various options. One was to attempt to save claimant’s
limb through bone transport, but that claimant would need to cease smoking. Claimant
was not able to quit smoking. Another would be amputation. (Ex. 4, p. 3) On February
6, 2006, claimant underwent a repair of the non union in his tibia with the understanding
that if an infection set in, claimant would need to undergo an amputation. (Ex. 4, p. 4)
On October 24, 2007, claimant underwent a functional capacity evaluation. (Ex.
7) The results were deemed valid due to a maximum effort. (Ex. 7, p. 1) The evaluator
concluded claimant could perform the tasks of medium to medium-heavy duty
categories “which is indicative of a 2-hand occasional lift of 55# from floor-waist level
and a 2-hand frequent lift of 33# from floor-to-waist level.” (Ex. 7, p. 2) However,
claimant also exhibited significant weakness in the walking tests. (Ex. 7, p. 3) For most
of the tasks, claimant would only be able to perform occasionally. (Ex. 7, pp. 6-7)
On November 25, 2008, Dr. Marsh wrote to Dr. Pape that claimant was able to
“function and perform his activities of daily living.” (Ex. 4, p. 12) However, Dr. Marsh
noted that claimant was ready to undergo the amputation and would be doing so the
following year. On July 23, 2009, claimant underwent a below-the-knee amputation.
(Ex. 4, pp. 15-16)
Past injuries and medical issues include several injuries to the eyes and chronic
low back pain. (Ex. 1, Ex. 8) Claimant was diagnosed with acute low back strain in
1981 and 1985. (Ex. J) On September 21, 1996, claimant was recorded as having
“chronic difficulties” with the low back after being treated for a slip and fall on oil. (Ex. 2,
p. 2; Ex. D, p. 1) Claimant sought regular treatment from a chiropractor.
Expert opinions:
On November 7, 2007, claimant was seen by Joseph J. Chen, M.D., at the
request of Dr. Marsh for a Physical Medicine and Rehabilitation consultation and
impairment rating. (Ex. G, p. 9) Claimant reported to Dr. Chen that his main limitation
was the inability to walk for a prolonged period of time. (Ex. G, p. 9) Based on the
functional capacity evaluation and Dr. Chen’s own evaluation, Dr. Chen assessed a 51
percent lower extremity impairment rating or 20 percent of the whole person based
upon his “gait derangement and use of a cane nearly full-time.” (Ex. G, p. 11)
On August 16, 2011, claimant was seen by William Boulden, M.D., for an
independent medical evaluation. (Ex. H) Claimant reported low back pain on the right
side in the proximolateral girdle region of the buttock/pelvic region. The amputation,
KING V. QUAKER OATS COMPANY
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according to Dr. Boulden’s notes, decreased the pain in the back and left lower
extremity. (Ex. H, p. 2)
Dr. Boulden reported that because claimant’s back problems lessened since the
amputation, any current restrictions due to claimant’s back were not related to the work
injury. (Ex. H, p. 4)
Dr. Boulden’s work restrictions were similar to those of the work restrictions
assigned by Dr. Marsh. (Ex. G, p. 20) Dr. Marsh cleared claimant to do sedentary
work, no lifting greater than 25 pounds and no standing and/or walking for long periods
of time. Claimant would need frequent breaks to sit and take the weight off his
prosthetic. (Ex. G, p. 20) Dr. Boulden, however, declared the work restrictions to be
limited to claimant’s pre-existing back problems and not to any gait derangement or left
leg problems due to the amputation. (Ex. H, p. 4) In sum, Dr. Boulden would have the
agency believe that the claimant would be able to do his exact same job, or indeed any
job, but for claimant’s pre-existing back problems. Claimant was working full time prior
to his leg injury, which is evidence in contravention to Dr. Boulden’s conclusions.
On November 28, 2011, claimant was seen by Farid Manshadi, M.D., for an
independent medical evaluation and impairment rating. (Ex. 9) Claimant reported
phantom pains in his left leg, ankle, and toes; low back pain; right sided ankle pain; and
right eye blurriness as well as depression and tinnitus. (Ex. 9, p. 3) On examination,
claimant exhibited normal range of motion in the left knee and right lower extremity,
including the foot, but had tenderness to palpation over the right upper buttock as well
as along the right sacroiliac joint. (Ex 9, p. 4)
Based on the phantom pain and the amputation, Dr. Manshadi assessed a 31
percent impairment of the whole person. (Ex. 9, p. 4) Dr. Manshadi writes:
Mr. Robert King does have partial permanent impairment and that is to
his whole body. The reason that the impairment is to the whole body is
that this amputation has affected Mr. King significantly and in addition has
caused him to have phantom pain and discomfort, loss of activity, inability
to return to any gainful employment, as well as affecting his right hip and
right low back.
(Ex. 9, p. 4)
The only two symptoms that would transform the lower extremity injuries into a
whole body injury are the right hip and right low back pain evidenced by the tenderness
to palpation on the right buttock and along the right SI joint. Dr. Manshadi attributes the
right sided low back pain to overcompensation for the left leg injury. (Ex. 9, p. 5)
Dr. Manshadi recommended claimant refrain from standing or walking more than
20-30 minutes and avoid repetitious bending, stooping, crawling, or climbing. (Ex. 9, p.
KING V. QUAKER OATS COMPANY
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5) Dr. Manshadi also recommended claimant not lift more than five to ten pounds. (Ex.
9, p. 5)
Claimant was evaluated by Barbara Laughlin, M.A., for employability. (Ex. 19)
Based on the restrictions, Ms. Laughlin determined claimant was able to work only
sedentary occupations but even those would be limited due to claimant’s inability to
sustain prolonged standing and needing to take frequent breaks when standing and/or
walking. According to Ms. Laughlin, claimant did not demonstrate the skills necessary
for most sedentary work positions such as computer proficiency. (Ex. 19, p. 11) She
found him able to work only unskilled sedentary jobs with limited walking and/or
standing which would reduce claimant’s job market to about two percent. (Ex. 19, p. 10)
Shortly after the injury, claimant received clearance to return to work. His duties
were make work. He would sit in the corner and read Tom Clancy books. He
administered two or three hearing tests. He assisted an office worker in the personnel
department go through a list of people for service awards. After about 7.5 days of this,
claimant was sent home and he did not return to work.
There is no job at defendant employer that claimant could perform today. These
positions would all be outside his restrictions.
Claimant still suffers from phantom pains and itches which are natural according
to Dr. Marsh. He also experiences pains in his lower back, hips, and thighs brought on
mostly by standing and walking. There is an open area on claimant’s leg that drains
regularly.
He can ambulate around his condominium. He can get the mail. He uses a
wheelchair at night to get around his house. He can watch his grandson from time to
time and does small housework tasks such as loading the dishwasher or cooking some
meals.
Prior to his injury, he would camp, fish, bowl, mushroom hunt. He still attempts
to fish by sitting on a bank.
Based on Dr. Chen’s pre-amputation report and Dr. Marsh’s post-amputation
determinations regarding claimant’s condition, it is determined that claimant sustained a
whole body injury due to claimant’s back problems and obvious gait derangement.
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."
KING V. QUAKER OATS COMPANY
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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.
While a claimant is not entitled to compensation for the results of a preexisting
injury or disease, its mere existence at the time of a subsequent injury is not a defense.
Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the
claimant had a preexisting condition or disability that is materially aggravated,
accelerated, worsened or lighted up so that it results in disability, claimant is entitled to
recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962);
Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961).
Apportionment of disability between a preexisting condition and an injury is
proper only when some ascertainable portion of the ultimate industrial disability existed
independently before an employment-related aggravation of disability occurred.
Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. Sumner,
353 N.W.2d 407 (Iowa 1984). Hence, where employment is maintained and earnings
are not reduced on account of a preexisting condition, that condition may not have
produced any apportionable loss of earning capacity. Bearce, 465 N.W.2d at 531.
Likewise, to be apportionable, the preexisting disability must not be the result of another
injury with the same employer for which compensation was not paid. Tussing v.
George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990).
The burden of showing that disability is attributable to a preexisting condition is
placed upon the defendant. Where evidence to establish a proper apportionment is
absent, the defendant is responsible for the entire disability that exists. Bearce,
465 N.W.2d at 536-537; Sumner, 353 N.W.2d at 410-411.
Claimant’s current condition is consistent with the findings of Dr. Marsh and Dr.
Manshadi. Little weight is given to Dr. Boulden’s findings because his opinion lacks
credibility. Claimant clearly has difficulties with his left leg and finding that claimant’s
entire restrictions are due to low back pain is in direct contradiction to claimant’s treating
provider, Dr. Marsh, as well as simply straining the common sense.
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).
KING V. QUAKER OATS COMPANY
Page 9
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 29, 1987);
Eastman v. Westway Trading Corp., II Iowa Industrial Commissioner Report 134 (App.
1982).
Claimant has been designated as one who can work in sedentary occupations
but his experience in the past has been primarily in manual labor. He lacks the
necessary education or training that would allow him to work sedentary positions. Even
sedentary positions would be limited because of claimant’s need to frequently relieve
the weight on claimant’s prosthetic. Based on Ms. Laughlin’s report, only approximately
two percent of the market would be open to the claimant in the unskilled sedentary
labor. Given claimant’s age, the low likelihood claimant would undergo job retraining,
his work experience, and his current medical condition, it is found that claimant
sustained a total disability.
ORDER
THEREFORE IT IS ORDERED.
That defendants are to pay unto claimant permanent total disability benefits at a
rate of six hundred sixty-seven and 82/100 dollars ($667.82) commencing January 28,
2010 and continuing during the period of permanent total disability.
That defendants shall pay accrued weekly benefits in a lump sum.
That defendants shall pay interest on unpaid weekly benefits awarded herein as
set forth in Iowa Code section 85.30.
That defendants are to be given credit for benefits previously paid.
That defendants shall file subsequent reports of injury as required by this agency
pursuant to rule 876 IAC 3.1(2).
That defendant shall pay the costs of this matter pursuant to rule 876 IAC 4.33.
Signed and filed this ____11th_____ day of September, 2012.
________________________
JENNIFER S. GERRISH-LAMPE
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
KING V. QUAKER OATS COMPANY
Page 10
Copies to:
Robert R. Rush
Attorney at Law
PO Box 637
Cedar Rapids, IA 52406-0637
[email protected]
Mark A. Woollums
Attorney at Law
111 E. 3rd St., Ste. 600
Davenport, IA 52801-1524
[email protected]
JGL/srs
Right to Appeal: This decision shall become final unless you or another interested party appeals within 20 days
from the date above, pursuant to rule 876-4.27 (17A, 86) of the Iowa Administrative Code. The notice of appeal must
be in writing and received by the commissioner’s office within 20 days from the date of the decision. The appeal
period will be extended to the next business day if the last day to appeal falls on a weekend or a legal holiday. The
notice of appeal must be filed at the following address: Workers’ Compensation Commissioner, Iowa Division of
Workers’ Compensation, 1000 E. Grand Avenue, Des Moines, Iowa 50319-0209.