BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______________________________________________________________________
:
RAY A. LUNDY,
:
:
Claimant,
:
:
vs.
:
File No. 5033107
:
VITRAN EXPRESS, INC.,
:
:
APPEAL
Employer,
:
:
DECISION
and
:
:
LIBERTY MUTUAL GROUP,
:
:
Insurance Carrier,
:
Defendants.
: Head Note Nos.: 1802; 1803; 2501; 4000.2
______________________________________________________________________
Upon written delegation of authority by the workers’ compensation commissioner
pursuant to Iowa Code section 86.3, I render this decision as a final agency decision on
behalf of the Iowa workers’ compensation commissioner.
Claimant appeals from the arbitration decision filed September 16, 2011.
Claimant asserts the presiding deputy’s award of ten percent permanent partial
disability was premised on a finding that claimant had no work injury related restrictions
and contends the deputy did not consider claimant’s ability to earn in the general labor
market in assessing loss of earning capacity. Claimant also avers the deputy erred by
not assessing claimant’s vocational report as a cost and erred in not awarding claimant
costs for medical care he received on July 6, 2008.
FINDINGS OF FACT
Claimant was 62 years old at the time of hearing. He has an eleventh grade
education but does not have a GED. Claimant has worked as a driller and a long-haul
trucker. From 1988 to 2000, he was employed by a Sioux City trucking firm as a truck
driver, driver/trainer, equipment buyer, and safety manager.
Claimant began driving with Vitran in 2000. Claimant was driving a Sioux Falls to
Des Moines route when injured. He had to load and unload trailers and worked a
loading dock in Des Moines in addition to driving. He testified he worked between 12
and 14 hours a day five days per week and stated that he has continued that work
schedule from his injury onward.
LUNDY V. VITRAN EXPRESS, INC.
Page 2
Claimant injured his back pulling rebar mesh on May 19, 2008. Claimant testified
that while he did not complete an actual accident report until July 8, 2008, he told his
supervisor on the night of the date of injury, he had pulled a muscle in his back and
advised that he would file a formal injury report if his pain did not resolve. Claimant then
received chiropractic treatment for low back pain on his own from May 20, 2008 through
June 6, 2008. (Exhibit 3) That care apparently did not resolve claimant’s symptoms, as
he testified that to dramatic back pain while off work for personal reasons in June 2008
and further testified that, on July 6, 2008, while off work for the Independence Day
holiday and vacation through July 18, 2008, he was “walking like a monkey”, such that
his daughter insisted he seek medical care at the McKennan Hospital emergency room
where apparently she works. (Ex. 7, page1)
At McKennan, Garrett R. Taylor, M.D., evaluated claimant’s complaint of back
pain that occasionally radiated down either or both legs. The doctor assessed subacute
low back pain and ordered a lumbar spine MRI, which revealed a L4-5 herniated disc.
(Ex. 6, pp. 1-6) Dr. Taylor referred claimant to neurosurgeon Daniel G. Tynan, M.D.,
who evaluated claimant on July 8, 2008, and recorded the following in his treatment
notes:
I reviewed the history, physical findings and MRI scan with Mr.
Lundy and his daughter. His symptoms are consistent with L5 distribution
and the MRI scan is also consistent with this showing L4-5 disc herniation.
I discussed his options of treatment including conservative
treatment and surgery. Presently, he has no neurologic deficit. I
explained how he can continue to check himself for this by walking on his
heels. I told them that if he starts developing any weakness or he simply
can't stand the pain anymore and he doesn't feel like he is improving, and
he is tired of the conservative treatment, then I recommend Right-Sided
L4-5 Hemilaminectomy Surgery. I discussed the surgical procedure,
alternatives, goals, limitations, and benefits, likelihood of success and
potential risks and complications. We reviewed the usual postoperative
activity restrictions and so forth.
He will contact me if he is interested in surgery, or if he would like
to try some epidural steroid injections. Otherwise I don't think that any of
the physical therapy or chiropractic treatment are going to have a major
impact on this, but he might as well continue to do some home stretching
exercises. Also, I explained the radiologist’s report about the small
abnormality in the right iliac wing, and the recommendation that the MRI
scan be repeated in 3-months to confirm that there is no change. He and
his daughter say that they understand [;] he will think about things and
contact me if he has any questions.
(Ex. 7, pp. 2-3)
LUNDY V. VITRAN EXPRESS, INC.
Page 3
Neither Dr. Taylor nor Dr. Tynan had taken claimant off work. Claimant also on
July 8, 2008, while still on vacation, completed a written incident report advising his
employer of the May 19, 2008 injury.
On July 15, 2008 claimant elected to have epidural steroid injections (ESI’s).
(Ex. 7, p. 4) One was performed on July 18, 2008; another on and July 28, 2008; after
each claimant was advised that he could not return to work on that day. (Ex. 6, pp. 9-15)
Claimant testified the first ESI was 70 percent effective and the second gave him
approximately 15 percent pain relief. Claimant has no interest in pursuing further
epidural injections. (Ex. 8, p. 5) He has not actively treated for his low back complaints
since July 28, 2008.
On October 6, 2008, occupational medicine specialist, Douglas Martin, M.D.,
independently evaluated claimant at defendant's request. Claimant advised Dr. Martin
that claimant could continue working by using a back brace and by seeking co-workers’
help and did not wish to have surgery or further ESI’s. Dr. Martin assessed L4-5 disc
herniation with symptoms that resulted in minor residual discomfort while expressing the
belief that claimant's prognosis was excellent and his condition did not warrant further
treatment or diagnostic procedures. Dr. Martin assigned claimant ten percent whole
person permanent impairment under the AMA Guides to the Evaluation of Permanent
Impairment, 4th Edition, DRE Category III. Dr. Martin opined claimant was at maximum
medical improvement and strongly encouraged claimant to resume normal work
activities, as current evidence-based medical literature suggests that individuals will do
better without placement of permanent or temporary restrictions. (Ex. 8, pp.8-9)
On March 27, 2009, Dr. Martin stated that under the AMA Guides to the
Evaluation of Permanent Impairment, Fifth Edition, claimant had seven percent whole
person impairment under lumbar DRE category II.
Timothy Saulsbury, P.T., performed claimant's May 2010 functional capacity
evaluation (FCE). The physical therapist stated that claimant made a consistent valid
effort in testing. The therapist place claimant in the medium work category with the
specific acceptable leg lift of 40 pounds and back lift of 25 pounds, while also stating:
Mr. Lundy demonstrated an organic pain response at 55.7 lb which
is consistent with his subjective reports. This is felt to represent his safe
Occasional to Frequent work ability [;] today with his maximum safe
tolerable force at 77.4 lb [that is] his safe Infrequent work ability.
(Ex. 9, p.1)
Orthopedic surgeon, Michael O’Neill, M.D., independently evaluated claimant at
his counsel’s request on December 13, 2010, and issued a report on January 6, 2011.
Like Dr. Martin, Dr. O’Neil assigned claimant seven percent whole person impairment
under the Guides, Fifth Edition, and stated claimant should continue his normal work
LUNDY V. VITRAN EXPRESS, INC.
Page 4
activities. Claimant was no longer loading and unloading trucks; nevertheless, Dr.
O'Neil opined claimant should lift no more than 50 pounds repetitively if his job duties
once again required that activity. Dr. O'Neil noted that the straight classification for
immediate work category is 36-50 pounds occasional material handling. (Ex. 10, pp.
33-34)
At claimant's attorneys request, Rick Ostrander, L.P.C., C.R.C., vocationally
evaluated claimant and reported that representatives of four Sioux City area trucking
companies had stated those companies would not hire claimant with a 40 to 50 pound
lifting restriction. Mr. Ostrander expressed his belief that, under the FCE limitations,
claimant had an 86 percent reduction in employability and a 94 percent reduction in
labor market access, with the resulting 70 to 80 percent loss of earning capacity (Ex. 15,
pp. 9-10)
At hearing, Mr. Ostrander testified that claimant’s lack of a GED substantially
limits claimant’s ability to find work outside the trucking industry. Mr. Ostrander also
testified claimant probably would have no vocational loss if he had no job restrictions.
Defendants asked Connie Oppedal, M.S., C.D.M.S., to assess claimant’s
vocational opportunities. In a March 15, 2011 report, Ms. Oppedal noted that Mr.
Ostrander’s considered bending, squatting, and kneeling limitations in its vocational
assessment of claimant while no physician had given claimant these limitations. She
also noted Mr. Ostrander limited his labor market research to the South Dakota
Department of Labor, whereas the overall trucking industry labor market is much
broader. Ms. Oppedal opined claimant had no loss of earning capacity under Dr.
Martin’s recommendation of no permanent restrictions but ten percent to twelve percent
loss of the labor market access under the FCE material handling limitations. (Ex. D, pp.
14-16)
At hearing, Ms. Oppedal testified that she is very familiar with the trucking
industry, as she had owned a trucking company for 13 years. She expressed her belief
that “drop and hook” truck driving jobs that require no loading are not difficult to find.
Ms. Oppedal testified that claimant’s prior work as a driver, trainer, manager, and safety
trainer enhanced his resume.
Ms. Oppedal and Mr. Ostrander agreed the trucking industry had suffered a
slowdown as a result of the economic downturn and the increase in fuel cost.
After his injury, claimant transferred from Sioux City to Sioux Falls, South Dakota
when Vitran closed its Sioux City operations for economic reasons. His pay had been
frozen for the last three years because of a downturn in his employer’s business.
Claimant agreed he has had no actual loss of income due to his injury and does very
little loading and unloading on his current driving route, which he chose because it pays
better than had a previous route that required some loading and unloading.
LUNDY V. VITRAN EXPRESS, INC.
Page 5
Tim Chelgren, claimant’s supervisor, is familiar with claimant’s work, his
schedule, and his May 2008 work injury. Mr. Chelgren testified Vitran would have had
work for claimant from July 7, 2008 through July 18, 2008 if he had not been on
vacation. Claimant is working without restriction, driving a regular company route.
Claimant’s tax records reflect wages of $76,673.18 in 2007; $77,627.11 in 2008;
wages of $75,920.68 in 2009; and wages of $77,158.56 in 2010. (Ex. E, pp. 27-28)
CONCLUSIONS OF LAW
The extent of claimant’s entitlement to permanent partial disability benefit
entitlement is addressed.
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).
Permanent disability that is not limited to a scheduled member is compensated
industrially or for loss of earning capacity under Iowa Code section 85.34(2)(u) when it
is partial and under Iowa Code section 85.34(3) when it is total. Industrial disability
compensates loss of earning capacity as determined by an evaluation of the injured
employee’s functional impairment, age, intelligence, education, qualifications,
experience, and ability to engage in employment for which the employee is suited.
Second Injury Fund of Iowa v. Shank, 516 N.W.2d 808, 813 (Iowa 1994); Guyton v.
Irving Jensen Co., 373 N.W.2d 101, 104 (Iowa 1985); Diederich v. Tri-City R. Co., 219
Iowa 587, 258 N.W. 899 (1935). The focus is on the ability of the worker to be gainfully
employed and rests on comparison of what the injured worker could earn before the
injury with what the same person can earn after the injury. Second Injury Fund of Iowa
v. Nelson, 544 N.W.2d 258, 266 (Iowa 1995); Anthes v. Anthes, 258 Iowa 260, 270,
139 N.W.2d 201, 208 (1965). Impairment of physical capacity creates an inference of
lessened earning capacity. Changes in actual earnings are a factor to be considered
but actual earnings are not synonymous with earning capacity. Bergquist v. MacKay
Engines, Inc., 538 N.W.2d 655, 659 (Iowa App. 1995); Holmquist v. Volkswagen of
America, Inc., 261 N.W.2d 516, 525, (Iowa App. 1977); 4-81 Larson’s Workers’
Compensation Law, §81.01[1] and §81.04[1]. The loss is not measured in a vacuum.
The worker’s personal characteristics that affect the worker’s employability are
considered. Ehlinger v. State, 237 N.W.2d 784, 792 (Iowa 1976). Earning capacity is
measured by the employee's own ability to compete in the labor market. An award is
not to be reduced as a result of the employer’s largess or accommodations. An injured
employee’s post-injury earnings and experience with the employer is evidence that is
considered when assessing loss of earning capacity. Compensation is based on the
employee’s ability to earn and compete in the general labor market and is not limited to
the experience with the employer. U.S. West v. Overholser, 566 N.W.2d 873, 876 (Iowa
1997); Thilges, 528 N.W.2d 614, 617.
LUNDY V. VITRAN EXPRESS, INC.
Page 6
All factors affecting the degree of industrial disability are considered. No single
factor is necessarily controlling. Compensation is awarded for permanent disability
because its adverse impact on the employee’s ability to work and earn will continue
indefinitely into the future. It is not limited to the point in time when the degree of
disability is assessed.
Industrial disability can be equal to, less than, or greater than functional
impairment. Taylor v. Hummel Insurance Agency, Inc., 2-2, Iowa Industrial Comm’r
Dec. 736 (1985); Kroll v. Iowa Utilities, 1-4, Iowa Industrial Comm’r Dec. 937 (App.
1985); Birmingham v. Firestone Tire & Rubber Company, II, Iowa Industrial Comm’r
Rep., 39 (App. 1981). On the other hand, impairment of physical capacity creates an
inference of lessened earning ability in the future. Holmquist v. Volkswagen of America,
Inc., 261 N.W.2d 516, 525 (Iowa App. 1977). A change in actual earnings is material
when determining the degree of permanent partial disability. Wichers v. Mix-Rite, Inc.,
File No.1241564 (App. November 13, 2003)
Claimant is an older worker with neither a GED nor a high school diploma.
Nevertheless, he has had a successful long-term career as a long haul truck driver and
continues to work for his pre-injury employer. Fortunately, he successfully sought and
received his current route, which does not require the loading and unloading required in
the routes he held when injured and immediately after time of his injury.
At the time of hearing, claimant had not treated for his nonsurgical back condition
for over two years. His seven percent permanent partial whole person impairment is
modest. Both the examining occupational physician and the examining orthopedic
surgeon have encouraged him to continue with normal work activities.
Nevertheless, a valid functional capacity evaluation placed claimant in the
medium work category and, the examining orthopedic surgeon opined that, if again
required to load and unload materials as part of his driving duties, claimant should not
repetitively lift more than 50 pounds. That material handling limitation is consistent with
the FCE finding of capacity for medium work. It is also consistent with claimant having
some loss of labor market access and loss of earning capacity as a result of his work
injury that restricts his trucking employment to jobs that do not require loading and
unloading and also limits his access to jobs in heavy and very heavy jobs within the
broader economy. Claimant's loss of earning capacity, however, neither is as great as
Mr. Ostrander has opined nor as limited as Ms. Oppedal has opined. It is expressly
found to be 30 percent.
Wherefore, it is concluded that claimant has established 30 percent permanent
partial disability, which entitles him to 150 weeks of permanent partial disability benefits,
payable at the applicable rate of eight hundred seventy-three and 10/100 dollars
($873.10) per week and commencing on October 7, 2008.
LUNDY V. VITRAN EXPRESS, INC.
Page 7
The next issue to be determined is whether defendants are liable for care
claimant sought and received on and before July 6, 2008, that is, prior to formally
reporting his May 19, 2008 injury to the employer and prior to advising the employer that
he needed medical care for that work incident.
The employer shall furnish reasonable medical care for all conditions
compensable under the workers' compensation law. The employer has the right to
choose the provider of care, except where the employer has denied liability for the
injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial
Report of the Industrial Commissioner 78 (Review-Reopening October 16, 1975).
Likewise, when it has accepted liability for the injury, an employer is not responsible for
the cost of medical care that it did not authorize. R.R. Donnelly & Sons v. Barnett, 670
N.W.2d 190 (Iowa 2003).
Nevertheless, the right to choose care is a qualified right with accompanying
responsibilities. The employer has the right to choose medical care so long as care is
offered promptly, is reasonably suited to treat the injury, and without undue
inconvenience to the employee. Similarly, if the employer cannot be contacted in an
emergency, the employee may choose the care at the employer’s expense. Franco v.
Concrete Pipe Mach., I-3 Iowa Industrial Comm’r 591 (1985).
Also, a claimant can seek payment of unauthorized medical care if a
preponderance of the evidence demonstrates the care was reasonable and beneficial.
Bell Bros. Heating v. Gwinn, 779 N.W.2d 193 (Iowa 2010). To be beneficial, the
medical care must provide a more favorable medical outcome than the care the
employer authorized likely would have been achieved. Bell Bros at 206.
Claimant seeks payment of medical expenses and mileage for treatment he
received on his own before informing defendants that his May 19, 2008 work incident
had resulted in more than a muscle strain but after his own testimony of his pain
presentation demonstrates he reasonably would have known he would require medical
care for the work incident. As such the care received from May 20, 2008 through July 6,
2008 was unauthorized and received at a time when claimant was depriving defendants
of any opportunity to provide authorized care.
Neither the chiropractic care nor the emergency department care was sought in
an emergency. Claimant continued to work while receiving the chiropractic care. While
he testified he was walking like a monkey on July 6, 2008, the emergency department
medical impression was subacute low back pain. That description is not consistent with
claimant’s pain arising as “an unexpected situation or sudden occurrence of a serious
and urgent nature that demands immediate action”, which is the plain language
definition of the word “emergency”. See The American Heritage Dictionary, Second
College Edition, at page 448.
LUNDY V. VITRAN EXPRESS, INC.
Page 8
The burden then shifts to claimant to prove the chiropractic care and the July 6,
2008 treatment were reasonable and beneficial by demonstrating that the unauthorized
care he sought provided a more favorable medical outcome than the care the employer
authorized likely would have been achieved. Claimant cannot carry his burden of proof
on this issue. For, in the absence of claimant having timely informed defendants of his
need for medical care related to the injury, the care the employer might have authorized
is unknown.
Wherefore, it is concluded that claimant has not established that defendants are
liable for medical care and related mileage that occurred on or before July 6, 2008.
Claimant has established that defendants are liable for payment of other medical costs
and mileage set forth on Exhibit 12.
Claimant seeks reimbursement of $1,740.50 for the costs of Mr. Ostrander’s
vocational report.
Defendants dispute the reasonableness of the vocational report cost. Claimant
offered little evidence tending to establish the cost was reasonable. Nevertheless, a
report or evaluation from a vocational rehabilitation expert constitutes a practitioner
report under our administrative rules 876 IAC 4.17, and, in Craven v. John Deere
Dubuque Works, File Nos. 5023051 and 5023052 (Appeal July 21, 2009), prior holdings
imposing a limit on doctor and practitioner reports were reversed. Therefore, as the
prevailing party, claimant is entitled to reasonable costs associated with obtaining a
vocational expert’s report. Nothing in the record suggests that assessment of claimant’s
vocational situation would have required greater that typical expertise or effort from a
vocational professional. In that light, the charged amount is unreasonable. In the
undersigned’s experience a reasonable charge in similar claims is $1000.00.
Defendants are assessed that amount.
Wherefore, the decision of the deputy is affirmed and modified.
ORDER
THEREFORE, IT IS ORDERED THAT:
Defendants shall pay claimant one hundred and fifty (150) weeks of permanent
partial disability benefits at the rate of eight hundred seventy-three and 10/100 dollars
($873.10) per week commencing on October 7, 2008.
Defendants shall pay accrued weekly benefits in lump sum.
Defendants shall pay interest on unpaid weekly benefits awarded above, as set
forth in Iowa Code section 85.30.
LUNDY V. VITRAN EXPRESS, INC.
Page 9
Defendants shall receive credit for benefits previously paid.
Defendants shall reimburse claimant for medical costs, including medical
mileage, incurred after July 6, 2008 as set forth in Exhibit 12.
Defendants shall file subsequent reports of injury as required by this agency
under rule 876 IAC 3.1(2).
Defendants shall pay the costs of this matter including transcription of the
hearing and $1000.00 as reasonable cost for the vocational report of Rick Ostrander.
Signed and filed this 12th day of February, 2013.
________________________
HELENJEAN WALLESER
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies to:
Dennis J. Mahr
Attorney at Law
334 Commerce Bldg, Box B8
520 Nebraska St.
Sioux City, IA 51101-1316
mahrlaw@cableone.net
Jeffrey W. Lanz
Attorney at Law
2700 Westown Pkwy., Ste. 170
West Des Moines, IA 50266-1411
jlanz@desmoineslaw.com
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