BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______________________________________________________________________
:
ROBERT FREEMAN,
:
:
Claimant,
:
:
vs.
:
:
File No. 5022135
APPA FINE FOODS, LLC,
:
:
APPEAL
Employer,
:
:
DECISION
and
:
:
FIRST COMP,
:
:
Insurance Carrier,
:
Defendants.
:
Head Note No.: 1803
______________________________________________________________________
STATEMENT OF THE CASE
Defendants appealed an arbitration decision filed on September 28, 2009 in
which the presiding deputy commissioner found that claimant was permanently and
totally disabled as a result of the January 28, 2007 work injury.
The record, including the transcript of the hearing before the deputy and all
exhibits admitted into the record, has been reviewed de novo on appeal.
ISSUE
Defendants state the issue on appeal as the extent of claimant's entitlement to
permanent disability benefits and the related issue of whether claimant is permanently
and totally disabled.
FINDINGS OF FACT
Claimant at the time of the hearing was 38 years old. Claimant completed the 9th
grade and does not have a GED. He attended an occupational school and took a
business computer class but believes that whatever skills he acquired in this program
are stale. Nevertheless, claimant acknowledged that he is a good reader and his ability
to obtain computer training in the past demonstrates that he has sufficient intellectual
ability to be retrained either within an educational setting or on-the-job.
FREEMAN V. APPA FINE FOODS, LLC
Page 2
Claimant attended a truck driving school. He testified that he finished the school
but does not have any certificate. He attributed his failure to obtain a certificate to a
financial dispute with the school. Claimant has worked as a convenience store clerk, a
convenience store manager, a lube technician, a warehouse laborer, and roofer.
Claimant's most steady job was as a roofer. In that capacity, he apparently supervised
twelve other workers. Claimant's ability to manage a convenience store and serve as
supervisor to other construction workers are other indicators that claimant has the
intelligence needed to learn new skills and apply them for income earning purposes.
Claimant began working at APPA Fine Foods, LLC, in October 2006 as a forklift
operator. He was earning $8.50 per hour for full-time work and subsequently received a
raise to $9.50 per hour. His job duties included putting pallets in freezers, loading and
unloading trucks and stacking pallets.
Claimant sustained his injury on January 18, 2007, when he tried to catch a box
of product weighing approximately 40 pounds that was falling. He started to experience
pain in his neck and back. The day following the injury claimant went to see his family
physician who then referred him to Ric Jensen, M.D., a neurosurgeon, in Omaha,
Nebraska. Dr. Jensen saw claimant on January 22, 2007. Dr. Jensen offered claimant
conservative care or surgery consisting of a cervical discectomy/arthrodesis procedure
at C5-6. Claimant elected to have surgery that was performed on February 2, 2007.
Claimant underwent a fusion at the C5/6 level on that date. Claimant obtained
significant improvement in radicular right arm pain as well as paracervical pain.
Claimant was released for full duty on July 17, 2007 until August 6, 2007. On
that date claimant injured his neck once again when he attempted to stop a falling box.
He returned to Dr. Jensen on August 10, 2007, and eventually underwent surgery on
September 4, 2007. Dr. Jensen opined on November 28, 2007:
I recently evaluated Robert Freeman in my office on November 23,
2007 in routine post-operative follow up. As you may recall, this patient
recently underwent an adjunctive surgical procedure under my auspices
on September 4, 2007. Said surgical procedure was directed at treating a
pseudoarthrosis within Robert’s cervical spine. Said pseudoarthrosis
developed at the site of Robert’s prior cervical fusion performed in St.
Louis, Missouri. While the development of his pseudoarthrosis was rather
strange in onset and character, it required treatment, nonetheless.
Robert’s use of tobacco products hindered his overall recovery from a
secondary surgical procedure performed under my auspices
approximately 6 months ago. This procedure also entailed a cervical
arthrodesis but it was determined, at that time, that a pseudoarthrosis did
not clearly exist at the site of his prior operative, as performed in Missouri.
Nonetheless, revision fusion became mandatory after the clear and
obvious development of a pseudoarthrosis at the site of his old operative
therapy. As such, Robert has now achieved complete addressment of his
cervical pathology. Fortunately, Robert has experienced a dramatic,
FREEMAN V. APPA FINE FOODS, LLC
Page 3
positive response to both surgical procedure. Plain film x-rays obtained
today demonstrate excellent appearance of his fusion construct with no
complicating features identified. Robert’s voice and swallow are well
intact. He is otherwise doing well. As such, I could not be happier with his
current status.
(Exhibit 5, page 61)
In March 2008 Dr. Jensen prescribed an orthofix bone growth stimulator in an
attempt to foster a fusion in claimant’s cervical spine. This was ineffective.
Claimant underwent a functional capacity evaluation on July 15, 2008. The
evaluator opined that the test results are valid representation of claimant's functional
abilities. Claimant demonstrated the ability to lift and carry 40 pounds occasionally and
20 pounds frequently near waist level and below. He was more restricted as to
shoulder level and above lifting. The evaluator opined that claimant could lift 20 pounds
occasionally and 10 pounds frequently to shoulder level, only occasionally lift 15 pounds
or less overhead, and do no prolonged or repetitive overhead work. Claimant had
displayed no significant limitations in other nonmaterial handing handling activities,
including sitting, standing, walking, climbing, and upper extremity function.
On April 15, 2009, Dr. Jensen opined claimant was at maximum medical
improvement and had sustained an 18 percent whole person permanent impairment.
The doctor recommended work restrictions of no significant lifting greater than 50
pounds on an occasional basis, no lifting greater than 20 pounds on a frequent basis
and no constant lifting greater than 5 to 10 pounds. Further, Dr. Jensen has
recommended that claimant may wish to consider revision surgical decompression and
arthrodesis in the future. Finally, Dr. Jensen opined that further physical therapy efforts
or activity restrictions though in order, would not likely produce significant or lasting
benefit for claimant.
Claimant has looked for work at three businesses in the Denison, Iowa, area,
where he resides. He testified that the employers were not interested in hiring him after
he advised the employers of his restrictions. Claimant has not otherwise searched for
work. Claimant has not returned to work in the employer's facility. The record is
unclear as to whether either the employer contacted claimant or claimant contacted the
employer after Dr. Jensen found claimant at maximum medical improvement in April
2008.
Claimant had sustained a prior neck injury in 2001 when he was working as a
roofer. As a result of that injury claimant underwent a cervical discectomy on November
15, 2001. Claimant was placed at maximum medical improvement on May 9, 2002, and
given permanent restrictions of no overhead lifting or lifting more than 40 pounds.
Claimant had additional complaints of neck pain and numbness in his arm in February
2005 and sought treatment at the emergency room. An MRI was performed which
showed moderate protruding disc at the C5/6 level and mild bulging of the C4/5 disc.
FREEMAN V. APPA FINE FOODS, LLC
Page 4
Claimant subsequently was treated with physical therapy and was released on March
29, 2005, to work as tolerated.
Claimant did return to work after this work release when the employer hired him
in October 2006 to operate a forklift and do material handling labor loading freight train
cars. Claimant apparently did not work outside the home from 2001 until he applied for
work with the employer in October 2006.
After the 2007 injury, claimant applied for but was not granted Social Security
disability benefits.
Claimant testified that has been a smoker for the past 30 years. He smokes 1
and 1/2 packs per day. He has been advised since the time of his first surgery in 2001
that he needs to stop smoking but has not done so. His failure to stop smoking is
preventing him from having the third surgery that had been recommended. He was
taking medication prescribed to help him quit smoking but as soon as the prescription
was terminated he returned to smoking.
Claimant believes that there is work that is available for him within his restrictions
though he has been unsuccessful in finding some. He has applied for Social Security
Disability but this has been denied.
REASONINGS AND CONCLUSIONS OF LAW
The only issues presented are whether claimant is permanently and totally
disabled and, if not, the extent of his permanent partial disability under Iowa Code
section 85.34 (2) (u).
Since claimant has 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.2d 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 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).
FREEMAN V. APPA FINE FOODS, LLC
Page 5
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.
Total disability does not mean a state of absolute helplessness. Permanent total
disability occurs where the injury wholly disables the employee from performing work
that the employee's experience, training, education, intelligence, and physical capacities
would otherwise permit the employee to perform. See McSpadden v. Big Ben Coal Co.,
288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899
(1935).
A finding that claimant could perform some work despite claimant's physical and
educational limitations does not foreclose a finding of permanent total disability,
however. See Chamberlin v. Ralston Purina, File No. 661698 (App. October 1987);
Eastman v. Westway Trading Corp., II Iowa Industrial Comm’r. Report 134 (App. May
1982).
Claimant and the employer apparently have parted company and neither has
made any effort to renew their contractual employment relationship. The employer's
failure to provide work for an individual after an injury does suggest significant loss of
earning capacity but does not of itself evidence that an individual is unemployable.
Claimant has 18 percent whole person permanent impairment related to his 2007
injury. He has physical residuals including ongoing pain that are not likely to improve
significantly unless he has an additional surgery. Any further surgery is contraindicated
while claimant continues to smoke 1 1/2 packs per day. Nevertheless, claimant's
restrictions relate to his current condition and are not reflective of what he might be able
to do should additional surgery improve his conditions and complaints. Those
restrictions placed claimant in the medium physical demand level. Medium work is not
sedentary labor. Many jobs exist in the general labor market that are at the medium
work level. Many of those jobs pay wages at or greater than the $ 9.50 per hour
claimant last earned with this employer. Many of these jobs are unskilled or require
only on-the-job training.
In that regard, Claimant has past demonstrated success in obtaining education
and training despite his limited formal education. By his own admission, he progressed
from being a store clerk to a store manager and progressed from being a roofer to being
a working supervisor for a roofing crew. Furthermore, claimant is a relatively young
worker. It is not unreasonable to expect him to use his innate talent and intelligence to
seek and progress in employment within his residual capacities. He has made little
effort to do so and given his de minimus effort his not yet having succeeded in finding
employment is understandable. Claimant certainly has not made a prima facie showing
that the only services he can perform are “so limited in quality, dependability, or quantity
that a reasonably stable market for them does not exist” He is not an odd lot worker.
See Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985) Neither is claimant
permanently and totally disabled under traditional principles. He has work experience,
FREEMAN V. APPA FINE FOODS, LLC
Page 6
intelligence, capacity for training, and residual physical abilities that permit him to
perform work, albeit not at the same functional level as he may have been able to do
immediately prior to his January 2007 work incident. His loss of earning capacity is
found to be 50 percent, which results in entitlement to 250 weeks of permanent partial
disability benefits, payable at the applicable rate of $301.20, and pursuant to the party’s
stipulation in the hearing report commencing on August 28, 2008.
ORDER
THEREFORE, IT IS ORDERED:
The arbitration decision dated September 28, 2009 is reversed and the following
is ordered:
Defendants shall pay claimant 250 weeks of permanent partial disability benefits
at the weekly rate of three hundred one and 20/100 dollars ($301.20) and commencing
August 28, 2008.
Accrued benefits shall be paid in lump sum together with interest pursuant to
Iowa Code section 85.30 with subsequent reports of injury filed pursuant to rule 876 IAC
3.1.
Defendants shall receive credit for thirty-nine (39) weeks of benefits paid at the
rate of two hundred seventy-seven and 38/100 dollars ($277.38).
Defendants shall pay the costs of this matter, including the transcription of
hearing.
Signed and filed this 8th day of September, 2010.
____________________________
HELENJEAN M. WALLESER
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies to:
Richard D. Crotty
Attorney at Law
421 W. Broadway, Ste. 311
Council Bluffs, IA 51503-9046
regisrick@aol.com
FREEMAN V. APPA FINE FOODS, LLC
Page 7
Kent M. Smith
Attorney at Law
PO Box 36
Cedar Rapids, IA 52406-0036
ksmith@scheldruplaw.com
HJW/blr