EGLESTON V. KIOWA CORPORATION
Page 1
BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______
:
CHRIS EGLESTON, :
:
Claimant, :
:
vs. :
: File No. 5007721
KIOWA CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
WAUSAU INSURANCE CO., :
:
Insurance Carrier, : HEAD NOTE NO.: 1803
Defendants. :
______
STATEMENT OF THE CASE
This is a contested case proceeding in arbitration under Iowa Code chapters 85 and 17A. Claimant, Chris Egleston, sustained a stipulated work injury in the employ of defendant Kiowa Corporation on June 7, 1999. He accordingly now seeks benefits under the Iowa Workers’ Compensation Act from that employer and its insurance carrier, defendant Wausau Insurance Co.
The claim was heard and fully submitted in Fort Dodge, Iowa, on May 13, 2004. The record consists of Egleston’s testimony and joint exhibits 1-15. A post-hearing motion filed by attorney William Grell seeks permission to withdraw his appearance on behalf of defendants. The motion is granted.
ISSUES
STIPULATIONS:
- Egleston sustained injury arising out of and in the course of employment on June 7, 1999.
- The injury caused both temporary and permanent disability.
- Healing period entitlement is not in dispute.
- Permanent disability should be compensated by the industrial method (loss of earning capacity) commencing April 12, 2001.
- The correct rate of weekly compensation is $380.45.
- Entitlement to medical benefits is not in dispute.
- Defendants have paid 56 weeks of permanency benefits at the rate of $352.24.
ISSUE FOR RESOLUTION:
- Extent of industrial disability.
FINDINGS OF FACT
Chris Egleston, age 35, is a right-handed 1987 high school graduate who has taken a number of college-level classes in maintenance. Egleston does not claim to be a good student.
Egleston served very briefly in the US Navy before receiving a medical discharge due to varicose veins. He briefly worked for a discount department store in the shipping and receiving dock and as a department manager and briefly as a restaurant waiter. Otherwise, his only employment history is with Kiowa Corporation (now successor employer “Ace”), with whom he started in 1988. Egleston served as a machine operator from 1988 to 1992, but since then has worked in the maintenance and programming of various production machinery. He averages 50 to 60 hour workweeks, and is still so employed with the successor company. Egleston is classified as a journeyman electrician by the United Auto Workers.
Egleston has a history of left shoulder injuries, including three surgical repairs. However, treating orthopedic surgeon Kyle S. Galles, M.D., found him with good abduction, internal and external rotation power, and feeling well on March 29, 1999. Dr.Galles released his patient to full duty without restriction at that time. (Exhibit 8, page 20)
Egleston sustained a new injury to his left shoulder on June 7, 1999 when his arm went numb and he redeveloped shoulder pain while using a heavy steel rod to break up aluminum residue in a furnace. Egleston was taken to a local hospital emergency room, where x-rays proved negative and he was released to work with no over-the-shoulder duties. (Ex. 9)
Egleston next returned to Dr. Galles, who treated the injury conservatively and eventually referred his patient to a neurosurgeon, Douglas R. Koontz, M.D. Dr. Koontz ordered a cervical MRI scan and EMG studies, but these also proved negative. Dr.Koontz’s impression was of questionable left C6 radiculitis and radiculopathy versus brachial plexus neuritis. (Ex. 10, p. 32)
In June 2000, Dr. Galles referred Egleston to a neurologist, Michael R.K. Jacoby, M.D., who prescribed medication with some positive effect. Dr. Jacoby reported the following impression in a letter to Dr. Galles dated September 6, 2000:
IMPRESSION: Left shoulder pain with numbness, tingling, and weakness of the hand. No neuroanatomically definable lesion is discovered, nonetheless, he has found significant improvement on [prescribed medications]. He continues, however, to have tingling sensation which is no longer painful in the hand.
(Ex. 12, p. 41)
Egleston saw other practitioners and was worked up at the Mayo Clinic, but no surgical repair has ever been recommended. In a report dated June 5, 2001, Dr. Galles found Egleston at maximum medical improvement with sensory deficit and lost range of motion resulting in impairment of the upper extremity totaling 18 percent. (Ex. 5, p. 14) Dr.Galles also concluded the entire impairment was due to Egleston’s 1999 injury. Dr.Galles concluded by recommending a functional capacity evaluation to determine applicable work restrictions. (Id, at 15)
The evaluation was accomplished by physical therapist Joan Jorpeland on August 14, 2001. (Ex. 3) The study was valid and showed Egleston capable of performing medium exertional level work as defined by the U.S. Department of Labor. Limitations included lifting over 25 pounds and working with arm overhead, either standing or supine. Jorpeland wrote:
Based on this evaluation, the factors underlying the client’s limitations appear to be: Left upper extremity strength, c/o pain above shoulder level, and with unilateral carrying, body mechanics with heavier lifts/carrier (leans to left), low back flexibility, compensatory posturing with tasks over shoulder level. Left hand is basically used as an assist for most bilateral tasks. Left grip strength is 60% less than right (R 167#, L 66#).
(Ex. 3, p. 4)
Egleston testified that he now lacks sensation in the thumb and adjoining two fingers, with greatly reduced grip strength and dexterity and chronic pain. He tends to accidentally drop held items and needs occasional help with work duties. He experiences interrupted sleep and has reduced participation in various activities of daily living, such as golf and softball.
Egleston is still working the same job, but is concerned with the stability of the business since some unidentified criminal charges appear to be pending. He continues to seek other employment and was actually offered work by nationally-known appliance company Maytag, but the offer was withdrawn after Maytag learned of the restrictions identified by the functional capacity evaluation.
CONCLUSIONS OF LAW
The parties agree that Egleston’s injury has impaired the body as a whole, and must therefore be compensated by the industrial method. In determining the extent of industrial disability, factors to be considered include: 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. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Geographically, earning capacity is determined on the basis of the worker’s community of residence. Guyton v. Irving Jenson Co., 373 N.W.2d 101 (Iowa 1985). It is properly viewed in terms of the worker’s present ability to earn in the competitive job market without regard to accommodations provided by the present employer. Thilges v. SnapOn Tools Corp., 528 N.W.2d 614 (Iowa 1995).
Permanent partial disability is determined according to the employee’s status at the end of healing period. Subsequent events unrelated to the injury that increase or decrease earning capacity do not change the amount to be awarded. Barry v. Delavan Corporation Colt Ind., File no. 1231038 (App. Dec. 2003).
Egleston is a 35-year-old high school graduate who has worked most of his career as a machine operator and factory electrician for Kiowa and its corporate successor, Ace. His only other experience is as loading dock worker and a waiter. The functional capacity evaluation ordered by Dr. Galles identified significant limitations in lifting and working overhead and described his left hand as useful mostly to “assist” his right hand. Egleston is limited to medium exertional level employment.
These limitations can reasonably be expected to have significant impact on Egleston’s ability to find and hold employment suitable to his training and experience. He is at a significant disadvantage in the competitive labor market as a result. Considering all the factors of industrial disability as set forth above, it is found that, by reason of the stipulated work injury sustained June 7, 1999, Chris Egleston has suffered diminution of earning capacity on the order of 35 percent of the body as a whole, or the equivalent of 175 weeks of permanent partial disability.
ORDER
THEREFORE, IT IS ORDERED:
Defendants shall pay one hundred seventy-five (175) weeks of permanent partial disability benefits at the rate of three hundred eighty and 45/100 dollars ($380.45) commencing April 12, 2001.
Defendants shall have credit for benefits paid.
Accrued weekly benefits shall be paid in a lump sum together with statutory interest.
Defendants shall file subsequent reports of injury as required by this agency.
Costs are taxed to defendants.
Signed and filed this _____30TH______day of June, 2004.
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DAVID RASEY
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies to:
Mr. Chad R. Freese
Ms. Joanie L. Grife
Attorneys at Law
34 S 1st Ave.
Marshalltown, IA 50158-5014
Mr. Phillip L. Powell
Ms. Linda Bowers
Attorneys at Law
12120 Shamrock Plz., Ste. 200
Omaha, NE 68154-3539
Mr. William Grell
Attorney at Law
317 Sixth Avenue, Ste. 200
Des Moines, IA 50309-4127
DRR/smc