Download BEFORE THE IOWA WORKERS` COMPENSATION COMMISSIONER

BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______________________________________________________________________
:
SUSAN PEYTON,
:
:
Claimant,
:
:
vs.
:
:
File No. 5018230
PEPSIAMERICAS,
:
:
ARBITRATION
Employer,
:
:
DECISION
and
:
:
OLD REPUBLIC INSURANCE,
:
:
Insurance Carrier,
:
Defendants.
:
Head Note No.: 1803
______________________________________________________________________
STATEMENT OF THE CASE
Susan Peyton, the claimant, seeks workers’ compensation benefits from
defendants, PepsiAmericas, Inc., her former employer, and its insurer, Old Republic
Insurance, as a result of a work injury on October 4, 2002. Presiding in this matter is
Larry P. Walshire, a deputy Iowa Workers’ Compensation Commissioner. An oral
evidentiary hearing commenced on February 16, 2011 and this matter was fully
submitted at the close of that hearing. Oral testimonies and written exhibits received
into evidence at hearing are set forth in the hearing transcript.
Claimant’s exhibits were marked numerically. Defendants’ exhibits were marked
alphabetically. References in this decision to page numbers of an exhibit shall be made
by citing the exhibit number or letter followed by a dash and then the page number(s).
For example, a citation to claimant’s exhibit 1, pages 2 through 4 will be cited as,
“Exhibit 1-2:4”
The parties agreed to the following matters in a written hearing report submitted
at hearing:
1.
On October 4, 2002, claimant received an injury arising out of and in the
course of employment with PepsiAmericas.
2.
Claimant is not seeking additional healing period benefits.
PEYTON V. PEPSIAMERICAS
Page 2
3.
The work injury is a cause of permanent, industrial disability, the extent to
which remains in dispute.
4.
Permanent partial disability benefits commence on August 20, 2007
5.
At the time of the alleged injury, claimant's gross rate of weekly
compensation was $549.71. Also, at that time, she was single and
entitled to 3 exemptions for income tax purposes. Therefore, claimant’s
weekly rate of compensation is $354.96 according to the workers’
compensation commissioner’s published rate booklet for this injury.
6.
Medical benefits are not in dispute.
7.
Prior to hearing, defendants voluntarily paid 111 weeks of permanent
disability benefits for this work injury.
ISSUES
The only issue submitted for determination the extent of claimant's entitlement to
permanent disability benefits.
FINDINGS OF FACT
In these findings, I will refer to the claimant by her first name, Susan, and to the
defendant employer as PepsiAmericas.
From my observation of her demeanor at hearing including body movements,
vocal characteristics, eye contact and facial mannerisms while testifying in addition to
consideration of the other evidence, I found Susan credible.
Susan worked for PepsiAmericas, a vending machine operator, and its
predecessor, Venders Unlimited, as a route driver from 2000 until she was terminated in
February, 2003 for failing to report for work. (Ex. I-82) Her absences from work began
soon after her arrest for driving while intoxicated and a positive drug test for marijuana,
cocaine, and meth. Susan explained that she failed to report for work because she was
embarrassed by her alcohol and drug problems and could not face her co-workers.
As a route driver at PepsiAmericas, she loaded her box van in the morning with
food items and drove to various locations on her route re-filling vending machines with
pop and food at each stop. She then would return from her route and load her van with
cases of sodas for the next day. The job was very physical as the cases of sodas would
weigh up to 50 pounds. Initially, she made about 15 stops during her work shift, but
later on this increased to 25 stops. She usually worked 10-11 hours shifts during her
five day work week. Despite a prior back injury in 1999, Susan testified that she had no
problems doing her job before the work injury of October 4, 2002. She said she quickly
PEYTON V. PEPSIAMERICAS
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recovered from the 1999 injury and there is nothing in the record to suggest otherwise.
There is no indication in this record of any work performance issues, except for being
warned on one occasion to pay closer attention to expiration dates on the foods she
placed into the vending machines.
The stipulated work injury of October 4, 2002 occurred when she was loading her
truck with cases of sodas and she felt a popping sensation in her low back and began to
experience excruciating pain in her low back extending down into her left leg. Susan
was initially treated conservatively, but when her symptoms did not improve and an MRI
revealed a herniated disc in the low back, Susan was referred to Chad Abernathy, M.D.,
a neurosurgeon. Dr. Abernathy performed a surgical hemi laminectomy at the L5-S1
level of Susan’s lower spine. (Ex. 5-24) Following the surgery, she was allowed to
return to light duty and eventually, she was released to full duty on March 7, 2003. (Ex.
5-25) Dr. Abernathy opined that Susan suffered a 7 percent permanent partial
impairment to the whole body as a result of her work injury. (Ex. 5-23) Mark Werner,
M.D., retained by Susan’s lawyer, evaluated her in December 2003 and opines that she
suffered a 10 percent permanent partial impairment to the whole person from her injury
and should have restrictions against prolonged sitting and lifting over 5 pounds. (Ex. 941:43)
As stated above, Susan had lost her job at PepsiAmericas prior to her release to
full duty. Susan stated that after she lost her job, she decided to address her alcohol
and drug problems and entered a rehabilitation program. After completing this program,
she had a relapse with drugs. She then moved to Florida in July 2003 to be closer to
her family and to obtain their support during a second attempt at rehabilitation. She
states that this second attempt was successful and she hasn’t abused drugs or alcohol
since moving to Florida, although she admits to continued use of alcohol.
Susan testified that Dr. Abernathy’s surgery eliminated the shooting pain, but that
her back remained very sore and painful. In March 2003, she began receiving
treatment for these ongoing symptoms with physicians in Florida. (Ex. 10 & 11) At the
request of defendants, she was then examined by Charles Wingo, M.D., an orthopedist.
After his review of the most recent MRI, Dr. Wingo concluded that she required further
surgery in her low back due to the original work injury on October 4, 2002. On January
6, 2007, Dr. Wingo performed a laminectomy and fusion at both L4-5 and L5-S1
vertebral levels of Susan’s lower spine. (Ex. 12-60) Dr. Wingo issued two conflicting
reports concerning when Susan reached maximum medical improvement (MMI) and the
extent of her impairment. (Ex. 12-72) The most recent one on January 28, 2008 states
that she achieved MMI on January 28, 2008 and suffered a 15 percent permanent
partial impairment to the whole person. Susan was also to permanently avoid lifting
over 30 pounds more than occasionally. (Ex. 12-73) Susan states that Dr. Wingo’s
surgery greatly improved her low back pain, she continues to have issues with her left
leg and continues to follow-up with Dr. Wingo. She currently takes medication for pain,
depression and to sleep.
PEYTON V. PEPSIAMERICAS
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Since January 2004, Susan has held several jobs in Florida and one in South
Carolina. Her first job at a Dollar General warehouse, involved filling orders and
apparently only required light lifting. She then worked at a gun powder plant moving
kegs of gun powder, but left after one year because the work was too physical. She
subsequently held several jobs as a leasing agent and/or property manager for several
apartment complexes in Florida and one in South Carolina. Her income from the most
recent jobs in this line of work were significantly higher ($36,000-$40,000 annually) than
her past work, including her route job at PepsiAmericas ($28,000 annually). However,
at the time of hearing she had recently been fired for failing to follow rules and was
unemployed.
Susan started a retraining program in April 2010 and is taking business courses
at an on-line university seeking an associate’s degree in business and health
administration in August 2011. She is hoping to secure a management job in the health
industry.
I find that the work injury of October 4, 2002 is a cause of the impairment and
physical limitations imposed by her most recent treating physician, Dr. Wingo. Susan's
medical condition before the work injury was excellent and she had no functional
impairments or ascertainable disabilities. She was able to perform her physically
demanding work as a route driver at PepsiAmericas. Due to her current physical
limitations caused by her work injury, she is not able to return to the type of work she
was doing at the time of her injury.
Susan is 46 years of age and has a high school education. Prior to her work
injury, Susan has held a variety of jobs. She stocked shelves for a number of retails
outlets such as Wal-Mart and K-Mart. She was a part-time janitor at one retail store.
She was a tow-truck driver when she suffered her first back injury in 1999. Much of this
past physical work would be difficult for her today given her work restrictions.
On the other hand, she now has considerable experience in the field of
apartment leasing and property management which pays much more than her job at the
time of her work injury. I do not expect her to be out of work for much longer.
From examination of all of the factors of industrial disability, I find that the work
injury of October 4, 2002 is a cause of a 25 percent loss of earning capacity due to the
loss of her ability to return to medium or heavy work.
CONCLUSIONS OF LAW
I.
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,
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Page 5
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).
A treating physician’s opinions are not to be given more weight than a physician
who examines the claimant in anticipation of litigation as a matter of law. Gilleland v.
Armstrong Rubber Co., 524 N.W.2d 404.408 (Iowa 1994); Rockwell Graphic Systems,
Inc. v. Prince, 366 N.W.2d 187, 192.
The extent of claimant’s entitlement to permanent disability benefits is
determined by one of two methods. If it is found that the permanent physical
impairment or loss of use is limited to a body member specifically listed in schedules set
forth in one of the subsections of Iowa Code section 85.34(2)(a-t), the disability is
considered a scheduled member disability and measured functionally. If it is found that
the permanent physical impairment or loss of use is to the body as a whole, the
disability is unscheduled and measured industrially under Code subsection 85.34(2)(u).
Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. Delong's
Sportswear, 332 N.W.2d 886, 887 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128,
133, 106 N.W.2d 95, 98 (1960).
A showing that claimant had no loss of his job or actual earnings does not
preclude a finding of industrial disability. Loss of access to the labor market is often of
paramount importance in determining loss of earning capacity, although income from
continued employment should not be overlooked in assessing overall disability.
Ellingson v. Fleetguard, Inc., 599 N.W.2d 440 (Iowa 1999); Bearce v. FMC Corp., 465
N.W.2d 531 (Iowa 1991); Collier v. Sioux City Comm. Sch. Dist., File No. 953453 (App.
February 25, 1994); Michael v. Harrison County, Thirty-fourth Biennial Rep. of the
Industrial Comm’r, 218, 220 (App. January 30, 1979).
Although claimant is closer to a normal retirement age than younger workers,
proximity to retirement cannot be considered in assessing the extent of industrial
disability. Second Injury Fund v. Nelson, 544 N.W.2d 258 (Iowa 1995). However, this
PEYTON V. PEPSIAMERICAS
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agency does consider voluntary retirement or withdrawal from the work force unrelated
to the injury. Copeland v. Boone’s Book and Bible Store, File No. 1059319 (App.
November 6, 1997). Loss of earning capacity due to voluntary choice or lack of
motivation is not compensable. Id.
A change or expected change in employee’s actual earnings is strong evidence
of the extent of the change in earning capacity. The factor should be considered and
discussed in cases where the extent of industrial disability is adjudicated. Webber v.
West Side Transport, Inc., File No. 1278549 (App. December 20, 2002)
In the case sub judice, I found that claimant suffered a 25 percent loss of her
earning capacity as a result of the work injury. Such a finding entitles claimant to 125
weeks of permanent partial disability benefits as a matter of law under Iowa Code
section 85.34(2)(u), which is 25 percent of 500 weeks, the maximum allowable number
of weeks for an injury to the body as a whole in that subsection.
ORDER
THEREFORE, IT IS ORDERED:
1.
Defendants shall pay to claimant one hundred twenty-five (125) weeks of
permanent partial disability benefits at a rate of three hundred fifty-four and 96/100
($354.96) per week from August 20, 2007. Defendants shall pay accrued weekly
benefits in a lump sum and shall receive credit against this award for one hundred
eleven (111) weeks of permanency benefits previously paid.
2.
Defendants shall pay interest on unpaid weekly benefits awarded herein
pursuant to Iowa Code section 85.30.
3.
Defendants shall pay the costs of this action pursuant to administrative
rule 876 IAC 4.33, including reimbursement to claimant for any filing fee paid in this
matter.
Signed and filed this ___21st____ day of March, 2011.
PEYTON V. PEPSIAMERICAS
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Copies to:
Jason D. Neifert
Attorney at Law
1441 29th Street, Suite 310
West Des Moines, IA 50266
[email protected]
Joseph A. Quinn
Attorney at Law
700 Walnut Suite 1600
Des Moines, IA 50309-3899
[email protected]
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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.