BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______________________________________________________________________
OLIN CLAYTON,
:
: vs.
Claimant,
:
:
:
:
BRIDGESTONE AMERICAS TIRE
OPERATION, and
Employer,
: File No. 5043018
:
:
: A R B I T R A T I O N
:
: D E C I S I O N
:
:
OLD REPUBLIC INSURANCE
COMPANY,
Insurance Carrier,
:
:
:
:
Defendants. : Head Note Nos.: 1803; 3001
______________________________________________________________________
STATEMENT OF THE CASE
Claimant, Olin Clayton, has filed a petition in arbitration and seeks workers’ compensation benefits from the Bridgestone Americas Tire Operation, employer, and
Old Republic Insurance Company, insurance carrier defendants.
This matter was heard by Deputy Workers’ Compensation Commissioner James
Elliott on January 29, 2014 at Des Moines, Iowa. The case was fully submitted
March 3, 2014. The record in the case consists of claimant’s exhibits 1-12; defendants’ exhibits A through D, as well as the testimony of the claimant.
The stipulations of the parties as set forth in the Hearing Report and Order form are accepted and incorporated into this decision by reference as if fully set out.
ISSUES
The parties submitted the following issues for determination:
1.
The extent of claimant’s permanent partial disability pursuant to Iowa Code section 85.34(2)(u).
2. The commencement date of permanent partial disability benefits.
3. The claimant’s gross wages used to calculate the claimant’s weekly rate.
4.
The claimant’s weekly rate for healing period benefits.

CLAYTON V. BRIDGESTONE AMERICAS TIRE OPERATION
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5. Whether claimant has been underpaid healing period benefits and is entitled to a corrective payment.
6. Assessment of costs.
FINDINGS OF FACT
The undersigned, having considered all of the testimony and evidence in the record finds:
The claimant, at the time of the hearing, was 62 years old. He is a high school graduate. Claimant has taken classes at college and a junior college. He has obtained college certificates in welding and electricity. Claimant is right hand dominant. Since
1977, claimant has worked in factories. He worked for Hillsboro Glass from 1977 through 1997 and has worked for the defendant Bridgestone/Firestone (Bridgestone) at two locations from 1997 until the present. Claimant’s full employment history is set forth in Exhibit 7, pages 62 and 63.
At the time of claimant’s injury on March 12, 2011, claimant’s job at Bridgestone was a 7 Banner Operator. (Exhibit 8, pages 65 -66) On March 12, 2011, claimant was moving a roll of rubber with a co-employee when he felt burning and pain in his right arm. (Transcript, page 20) Claimant reported his injury and attempted to work for a while and then went to the company nurse. Claimant said he was examined by Todd
Troll, M.D., at the plant on the same day and Troll returned him to work without restrictions. (Ex. 1, p. 2) Claimant went to work after that, but continued to have problems. Claimant had an MRI which showed a large thickness rotator cuff tear involving the supraspinatus as well as part of the infraspinatus tendon. (Ex. 2, p. 4)
Claimant was seen by William Jacobson, M.D., on June 10, 2011. (Ex. 3, p.5) Dr.
Jacobson recommended surgery which he performed on July 7, 2011. (Ex. 3. p. 7)
Claimant testified he was off work for a short time, but was brought into the plant to perform light work. (Tr. p. 23)
On April 4, 2012, Dr. Jacobson found claimant to be at maximum medical improvement (MMI) and ordered a functional capacity examination (FCE). (Ex. 3, p. 15)
On June 6 2012, Dr. Jacobson stated,
Mr. Olin Clayton was released from our care on April 4, 2012, in regards to his right shoulder. At that time, Mr. Clayton was released back to his job with restrictions. He subsequently underwent a functional capacity evaluation which was completed on April 20, 2012. This was completed by E3 Work Therapy Services. I have had the chance to review the functional capacity evaluation. This was considered a valid test. I would recommend permanent restrictions based on the functional capacity evaluation.

CLAYTON V. BRIDGESTONE AMERICAS TIRE OPERATION
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I do believe Mr. Olin Clayton has sustained a permanent partial impairment in regards to his right shoulder and his work-related injury. . . .
Using Table 16-3 converting upper extremity to whole person, this would result in a 2% whole person impairment in regards to his right shoulder.
(Ex. 3, p. 16)
Claimant went back to Dr. Jacobson on March 12, 2013 due to right shoulder pain. Claimant received a cortisone shot in his shoulder. (Ex. 3, p. 17)
A FCE was performed on April 20, 2012. (Ex. 4, pp. 20 – 32) The FCE recommended limitations of waist to crown lifting
– 45 pounds, front carry-- 55 pounds and crouching to be completed on an occasional basis. Climbing is limited to not climbing a step at 22 inches and climbing a 17 inch step on an occasional basis. (Ex. 4, pp. 24, 25) The FCE provided no restrictions on overhead work.
On June 20, 2012, John Kuhnlein, D.O., performed an independent medical examination (IME). (Ex. 5, pp. 35 – 52) The IME evaluated some body parts, both legs and left bicep, that are not part of this claim file. Dr. Kuhnlein found claimant had a 2 percent whole person impairment for his right shoulder injury. (Ex. 5, p. 49)
Dr. Kuhnlein recommended restrictions of 30-pound occasionally, occasionally lifting 40pounds waist to shoulder, and 30-pound occasional lift over the shoulder. (Ex. 5, pp.
49, 50)
On December 6, 2013, Dr. Jacobson provided a report at the request of c laimant’s counsel. (Ex. 3, p. 19) Dr. Jacobson answered questions about the
March 12, 2011 injury and an April 25, 2010 left elbow, right knee and ankle injury.
Dr. Jacobson noted that he adopted the FCE restrictions and that the 22 inch step restriction was related to the claimant pulling himself onto a forklift. (Ex. 3, p. 19)
Claimant said that after he was assigned medical restrictions, he was required to accept a “medical placement”, which required him to take a job in Department 412. (Tr. pp. 28, 29: Ex. 10, p. 75) Claimant was qualified to return to any work at Bridgestone for his left arm and right knee on January 14, 2011. (Ex. 1, p. 1) Claimant was placed into a rubber truck operator position, which is within the restrictions of Dr. Jacobson.
Claimant said he has taken an $8.00 per hour pay cut due to this transfer. (Tr. p. 30)
Claimant said that the 7 Banner Operator job was currently paying $24.80 per hour and his current position pays $16.45 per hour. He said he has had an approximately 30 percent reduction in his pay. (Tr. p.31) Claimant is working 42 hours a week in his current job at Bridgestone. (Tr. p. 37) Claimant said he has numbness in his shoulder, the temperature in the plant affects his shoulder and he no longer bowls or shoots a shotgun. (Tr. pp. 29-37)
Claimant testified that the weeks of February 18, 2011 and February 25, 2011 gross pay was a reduced pay due to a plant shutdown. (Tr. p. 39, Ex. 12, p. 79) The week of January 7, 2011 claimant testified that his pay was reduced due to a carryover

CLAYTON V. BRIDGESTONE AMERICAS TIRE OPERATION
Page 4 of the holiday plant shutdown. (Tr. p. 40) He testified the week of November 26, 2010 was a reduced pay due to holiday occurring during this period. (Tr. p. 40) Defendants wage calculation is found in Exhibit C. Defendants did not offer any testimony or convincing documentation to refute claimant’s testimony that the weeks of February 25,
2011, February 18, 2011, January 7, 2011 and November 26, 2010 were not representative of claimant’s wages. I find that the claimant’s average weekly wage to be $1,071.49. Using the rate book in effect at the time of the injury the claimant’s weekly benefit amount for married with two exemptions is $677.95.
Claimant testified that when he accepted the medical placement job he was paid his full wage at the 7 Banner Operator job rate for one year due to the union contract.
He is receiving the lower rate now. (Tr. p. 62) Claimant received temporary partial disability after he returned to work after his surgery. (Tr. p. 63; Ex. D, p. 1)
Claimant has requested payment of a $500.00 bill for a December 6, 2013 medical report. One half of the report did not relate to the claimant’s right shoulder injury.
CONCLUSIONS OF LAW
It is stipulated that on March 12, 2011 the claimant sustained an injury arising out of and in the course of his employment. This injury was to the claimant’s right shoulder.
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 Comm’r Report 281 (App. February 24,1982), 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

CLAYTON V. BRIDGESTONE AMERICAS TIRE OPERATION
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Claimant was 62 years old at the time of the hearing. He has the limitations as set forth in the FCE as well as Dr. Kuhnlein’s restrictions concerning overhead lifting
30-pound occasionally overhead. Claimant is not receiving active treatment for his shoulder injury at this time. Claimant has been assigned a job within his restrictions by
Bridgestone. There is a limited number of jobs that claimant can perform at Bridgestone due to his restrictions. He is earning substantially less per hour of work now due to this reassignment of work. He appears to be motivated to work and is intelligent. He does not have a college degree.
Considering all of the above factors, I find that claimant has a 30 percent loss of earning capacity. Claimant has a 30 percent industrial disability.
The next issue is the commencement date for these benefits. Iowa Code section
85.34 provides in part:
Compensation for permanent disabilities and during a healing period for permanent partial disabilities shall be payable to an employee as provided in this section. In the event weekly compensation under section 85.33 had been paid to any person for the same injury producing a permanent partial disability, any such amounts so paid shall be deducted from the amount of compensation payable for the healing period.
1. Healing period. If an employee has suffered a personal injury causing permanent partial disability for which compensation is payable as provided in subsection 2 of this section, the employer shall pay to the employee compensation for a healing period, as provided in section 85.37, beginning on the first day of disability after the injury, and until the employee has returned to work or it is medically indicated that significant improvement from the injury is not anticipated or until the employee is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first.
2. Permanent partial disabilities. Compensation for permanent partial disability shall begin at the termination of the healing period provided in subsection 1. The compensation shall be in addition to the benefits provided by sections 85.27 and 85.28.
Claimant has argued that July 21, 2011 as the commencement date of permanent partial disability benefits. Defendants argue that April 5, 2012 is the commencement date of permanent partial disability benefits.
Claimant returned to work about a week after his surgery. Claimant testified he was given modified duties. He was paid temporary benefits until October 17, 2011. (Ex.
D, p. 1) At that time, claimant returned to substantially similar work. November 17, 2011 is the commencement date for permanent partial disability benefits.

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Claimant has argued that his gross earnings were $1,079.41 per week.
Defendants argue claimant’s gross earnings were $961.00 per week.
Section 85.36 states the basis of compensation is the weekly earnings of the employee at the time of the injury. The section defines weekly earnings as the gross salary, wages, or earnings to which an employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured as the employer regularly required for the work or employment. The various subsections of section 85.36 set forth methods of computing weekly earnings depending upon the type of earnings and employment.
If the employee is paid on a daily or hourly basis or by output, weekly earnings are computed by dividing by 13 the earnings over the 13-week period immediately preceding the injury.
Any week that does not fairly reflect the employee’s customary earnings is excluded, however. Section 85.36(6)
I previously found the defendants have used weeks that were not represented in their calculation of his average weekly rate. Claimant properly excluded unrepresentative weeks.
The claimant’s average weekly wage is $1,071.49 and weekly benefit amount is $677.95.
Defendants made payment of benefits at the rate of $615.81 for 10 weeks. This is an underpayment of $62.14 for each week. Defendants shall make a corrective payment of this underpayment to claimant along with interest.
C laimant has requested $500.00 for costs of Dr. Jacobson’s December 6, 2013 report. The costs of up to two doctors reports are allowable under 876 IAC 4.33(6). I have found that only one half of the report was related to this case. I award $250.00 as costs for this report. Claimant is also awarded the filing fee of $100.00 for this case under 876 IAC 4.33(7). Defendants shall reimburse claimant a total of $350.00 in costs
ORDER
THEREFORE IT IS ORDERED:
Defendants shall pay claimant one hundred fifty (150) weeks of permanent partial disability benefits at the rate of six hundred seventy-seven and 95/100 dollars ($677.95) per week commencing on November 17, 2011.
Defendants shall have a credit of ten (10) weeks of compensation paid at the rate of six hundred fifteen and 81/100 dollars ($615.81) per week.
Defendants shall make a corrective payment of the underpayment as set forth in this decision.
Defendants shall pay claimant costs of three hundred fifty and no/100 dollars
($350.00).

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Defendants shall pay any past due amounts in a lump sum with interest as provided by law.
Defendants shall file subsequent reports of injury (SROI) as required by this agency pursuant to rules 876 IAC 3.1(2) and 876 IAC 11.7.
Signed and filed this ___10 th ___ day of October, 2014.
__________________________
JAMES F. ELLIOTT
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies to:
Erik Bair
Attorney at Law
2545 E Euclid Ave, Ste 120
Des Moines, IA 50317
Erik@WalkLaw.com
Timothy W. Wegman
Attorney at Law
6800 Lake Drive, Suite 125
West Des Moines, IA 50266 tim.wegman@peddicord-law.com
JFE/kjw