BAUMAN V. BRIDGESTONE/FIRESTONE
Page 6
BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______
:
JOSEPH BAUMAN, :
:
Claimant, :
:
vs. : File No. 5038543
:
BRIDGESTONE/FIRESTONE, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
OLD REPUBLIC INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. : Head Note No.: 1803
______
STATEMENT OF THE CASE
This is a proceeding in arbitration. The contested case was initiated when claimant, Joseph Bauman, filed his original notice and petition with the Iowa Division of Workers’ Compensation. He alleged he sustained a work-related injury to his right shoulder on August 13, 2008. (Original notice and petition) A single petition was filed on October 6, 2011.
Defendant-employer is insured for purposes of workers’ compensation by Old Republic Insurance Company. Defendants filed their answer on October 25, 2011. They admitted the occurrence of the work injury. A first report of injury was filed on September 17, 2008.
The hearing administrator scheduled the hearing for September 20, 2012 in DesMoines, Iowa at the Iowa Department of Workforce Development. The undersigned appointed Ms. Johannah F. Schewe as the certified shorthand reporter. She is the official custodian of the records and notes.
Claimant was the sole witness to testify. He offered exhibits 1 through 8. Defendants offered exhibits A through L. All proffered exhibits were admitted as evidence as in the contested case proceeding.
The parties were ordered to file post-hearing briefs. An extension was granted. The briefs were filed. The case was deemed fully submitted on October 17, 2012.
STIPULATIONS
The parties completed the requisite hearing report for the alleged injury date of August 13, 2008. The parties entered into the following stipulations:
- There was the existence of an employer-employee relationship at the time of the alleged injury;
- Claimant sustained a right shoulder injury on August 13, 2008;
- The alleged injury is a cause of temporary disability during a period of recovery;
- The alleged injury is a cause of permanent disability;
- Temporary or healing period benefits are no longer at issue;
- The commencement date for permanent partial disability benefits is April 29, 2011;
- Rate is not an issue at this time; the parties agree the weekly benefit rate is $733.12 per week;
- All affirmative defenses have been withdrawn by defendants;
- Medical benefits are not in dispute;
- Prior to the hearing, defendants paid unto claimant, 70 weeks of permanent partial disability benefits at the weekly benefit rate of $747.12 per week for a total paid in permanency benefits of $52,298.40, and defendants shall take a credit for the same; and
- The parties are able to agree to the costs paid by claimant.
ISSUE
The parties agree the issue for resolution is: The extent of claimant’s industrial disability, if any.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This deputy, after listening to the testimony of claimant at the arbitration hearing, after judging his testimony to be credible, and after reading all of the evidence and the post-hearing briefs, makes the following 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).
Claimant is 56 years old and right-hand dominant. He is divorced; lives with a female friend and claimant’s adult son. They live in Norwalk, Iowa. Claimant graduated from high school in 1975. Then he attended Simpson College for one and one half years.
He is morbidly obese and has been counseled by several health care providers to exercise, stop drinking alcohol and to diet for weight control. He has other health issues such as low back pain, sleep apnea, vertigo, anxiety, depression, and hypertension. Those health issues do not appear to be the result of his work injury on August 13, 2008.
Claimant held a variety of manufacturing and laboring jobs from the time he dropped out of college until he commenced his employment with defendant in February 1988. Claimant started work as a heavy duty tire builder. He worked in that capacity until he sustained the stipulated work injury in question.
Initially, Todd C. Troll, M.D., the company physician, examined claimant for right shoulder complaints. Dr. Troll referred claimant to Kary R. Schulte, M.D., an orthopedic surgeon. On October 10, 2008, Dr. Schulte performed a right shoulder arthroscopy, subacromial decompression and a right shoulder biceps tenodesis. (Exhibit 2, page 1) The surgery was necessary to correct a right shoulder impingement syndrome and a right shoulder long head of biceps tendinitis. (Ex. 2, p. 1)
On January 8, 2009, Dr. Schulte opined claimant had reached maximum medical improvement. The orthopedic surgeon released claimant to return to full duty work. (Ex. 1, p. 9) Dr. Schulte determined claimant had no permanent impairment pursuant to the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, because claimant had full range of motion and normal motor strength. (Ex. 1, p. 10)
Subsequent to his release to return to work, claimant experienced the same symptoms he had pre-surgery. Claimant testified his symptoms never improved despite the surgery Dr. Schulte performed. As a result, Dr. Troll referred claimant to another orthopedic surgeon, William C. Jacobson, M.D.
Dr. Jacobson commenced treatment of claimant’s right shoulder on May 1, 2009. (Ex. 7, p. 1) A CT arthrogram was ordered. (Ex. 3, p. 3) The arthrogram indicated “a fairly significant SLAP tear.” (Ex. 3, p. 4) Claimant elected to proceed with a second surgical procedure. Dr. Jacobson performed a right shoulder arthroscopy with debridement of labral tear, chondroplasty of the humeral head, and partial synovectomy. The surgery occurred on August 31, 2009. (Ex. 3, p. 6)
Claimant engaged in physical therapy following the second surgery. Claimant continued to complain of pain. (Ex. 3, p. 7) He testified the therapy was ineffective in reducing the level of his pain.
Claimant underwent a third surgery. On January 21, 2010, Dr. Jacobson performed a right shoulder hemiarthroplasty with arthrosurface of humeral head. The procedure was an open one and consisted of a partial shoulder replacement and resurfacing of the radial bone. (Ex. 3, p. 11) Physical therapy commenced once again. (Ex. 3, p. 11)
On April 20, 2011, Dr. Jacobson ordered a functional capacity evaluation. The orthopedic surgeon opined claimant should have restrictions consistent with his functional capacity evaluation. (Ex. 3, p. 25) The work restrictions included: occasionally lift 72.5 pounds from floor to waist; occasionally lift 20 pounds from waist to crown, occasionally front carry 45 pounds; occasionally right carry 22.5 pounds; grip no more than 70 pounds; and perform elevated work on an occasional basis only. (Ex. 4, p. 5)
On April 29, 2011, claimant was deemed to be at maximum medical improvement, although Dr. Jacobson maintained claimant would need pain medication and occasional cortisone injections as future medical care. (Ex. 3, p. 25) The orthopedic surgeon also indicated a total shoulder replacement was a possible medical alternative in the future. (Ex. 3, p. 27)
On May 24, 2011, Dr. Jacobson opined claimant had a 24 percent permanent impairment to the right upper extremity and a 14 percent permanent impairment to the body as whole, according to the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition.
Pursuant to a request from defendants, claimant was sent to Charles Mooney, M.D. for an independent medical examination. (Ex. 6) The examination occurred on June 15, 2012. Dr. Mooney concurred with Dr. Jacobson with respect to the work restrictions. (Ex. 6, p. 9) Dr. Mooney rated claimant as having a 35 percent impairment to the right upper extremity or a 21 percent permanent impairment to the body as a whole, according to the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, Table 16-3, page 439. (Ex. 6, pp. 8-9) Dr. Mooney did not recommend additional surgery for claimant. (Ex. 6, p. 9) The evaluating physician opined only conservative modalities would be required as future medical treatment. (Ex. 6, p. 9)
When disability is found in the shoulder, a body as a whole situation may exist. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 (App. 1982), a torn rotator cuff was found to cause disability to the body as a whole.
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.
Claimant returned to work. He attempted to continue his work as a heavy tire builder. He enjoyed the work. Unfortunately, claimant could not physically perform the essential duties of the job, with the work restrictions imposed on him by his doctor. As a result, members of management placed claimant in a new position for medical reasons. Claimant was assigned to driving a Jeep or a fork lift truck.
Claimant testified the only position management will allow him to hold is fork lift driving. He has successfully held the position for nearly two years. Claimant indicated he intends to remain employed at Bridgestone/Firestone and he has not sought employment outside the plant.
There is some discrepancy as to claimant’s actual hourly wage rate at the time of his right shoulder injury, since he was paid a base pay plus piece work. However, the parties agreed claimant’s gross earnings were $1,252.94 per week. Currently, claimant earns $15.40 per hour. The current gross earnings are approximately $650.00 to $670.00 per week. Claimant has experienced a substantial actual loss of wages.
Claimant is currently 56 years old. He has worked for Bridgestone/Firestone for 25 years. Claimant’s employment is covered by a collective bargaining agreement between the company and the United Steelworkers. With claimant’s years of service, he has a great deal of seniority. He has the protections offered under the collective bargaining agreement.
Since claimant is an older worker, retraining is an unlikely option for him. It is doubtful claimant is capable of returning to such former occupations as concrete work, welding, or grounds keeping.
After reviewing all of the factors involved with an award for industrial disability, it is the determination of the undersigned deputy workers’ compensation commissioner; claimant has a permanent partial disability in the amount of 50 percent. Defendants shall pay unto claimant 250 weeks of permanent partial disability benefits at the stipulated benefit rate of $733.12 per week and commencing from the stipulated date of April 29, 2011.
Defendants shall take credit for the 70 weeks previously paid to claimant at the rate of $747.12 for a total of $52,298.40.
In arbitration proceedings, interest accrues on unpaid permanent disability benefits from the onset of permanent disability. Farmers Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979); Benson v. Good Samaritan Ctr., File No.765734 (Ruling on Rehearing, October 18, 1989).
ORDER
THEREFORE, IT IS ORDERED:
Defendants shall pay unto claimant two hundred fifty (250) weeks of permanent partial disability benefits commencing from April 29, 2011 and paid at the stipulated benefit rate of $733.12 per week.
Defendants shall take credit for benefits previously paid and as discussed in the body of the decision.
Accrued benefits shall be paid in a lump sum, together with interest, as allowed by law.
Costs as allowed by law, are assessed to defendants.
Defendants shall file all requisite reports.
Signed and filed this ____24th______day of June, 2013.
Copies To:
David D. Drake
Attorney at Law
1415 Grand Avenue
West Des Moines, IA 50265
Kent M. Smith
Attorney at Law
1225 Jordan Creek Parkway, Ste. 108
West Des Moines, IA 50266
MAM/sam