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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 Page 3 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 Page 4 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, PEYTON V. PEPSIAMERICAS 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 Page 6 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 Page 7 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] LPW/dll 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.