BEFORE THE IOWA WORKERS’ COMPENSATION …



before the iowa WORKERS’ COMPENSATION commissioner

______________________________________________________________________

:

MARGARET SCHEMMEL, :

:

Claimant, :

: File No. 5015707

vs. :

: ARBITRATION

CITY OF DUBUQUE, :

: DECISION

Employer, :

Self-Insured, :

Defendant. : HEAD NOTE NOS: 1803; 4100;

: 2505; 4000.2

______________________________________________________________________

STATEMENT OF THE CASE

Margaret Schemmel filed a petition in arbitration seeking workers’ compensation benefits from the City of Dubuque, defendant, self-insured employer, on account of an injury which arose out of and in the course of her employment on November 6, 2003. This matter was heard by and fully submitted to deputy workers’ compensation commissioner, Vicki L. Seeck, on April 5, 2006, in Dubuque, Iowa. The record consists of claimant’s exhibits 1-15; defendant’s exhibits A-C; the testimony of Margaret Schemmel; and the testimony of Ken TeKippe.

ISSUES

The parties have submitted the following issues for determination:

1. The nature and extent of the claimant’s permanent partial disability, if any;

2. The commencement date for the payment of permanent partial disability benefits, if any;

3. Whether the claimant is entitled to any section 85.27 medical expenses, to include the issue of whether the medical care obtained by the claimant was authorized by the employer;

4. Whether the claimant is an odd-lot employee;

5. Whether the claimant is entitled to any penalty benefits pursuant to Iowa Code section 86.13.

The parties stipulated that the claimant’s gross earnings were $1,013.04 per week and that the claimant was married and entitled to two exemptions. The claimant’s rate is $627.10.

FINDINGS OF FACT

The deputy workers’ compensation commissioner, having heard the testimony of the witnesses and having considered all the evidence in the record, makes the following findings of fact:

The claimant is 62 years old and was born on April 22, 1943. She resides in Durango, Iowa. She lives with her husband and they are both retired. She completed the 12th grade and has obtained some computer training as a result of her employment with the city of Dubuque.

The majority of the claimant’s working life was spent with the City of Dubuque. After she graduated from high school she worked as a sales clerk with Montgomery Ward. She ran the cash register and assisted customers. Since she worked in the clothing department, she would fold and unfold clothing.

She then went to work for Adams Company. She did general office work, to include using a typewriter and a calculator. From 1969 to 1972 she worked for Ralph’s Distributing, a boat and camper dealer. She worked in the office and also did sales work.

From 1972 until her retirement on December 29, 2004, she worked for the City of Dubuque. Her initial position was in the water department and then she transferred first to the auditor’s office and then the police department. She then returned to the water department as a supervisor. The water department either was or became part of the finance department. For 28 years she served as Utility Bills Supervisor.

The claimant had many duties and supervised nine people as of the time she retired in 2004. Over the years, as the city grew in population, the number of duties and volume of work increased. She was responsible for seeing that all phases of the workload were done. The department served plumbers, contractors and customers of the city. She was responsible for ensuring that billing these customers was done on a timely basis. The bills sent out by this department included water; sewage; storm water; and refuse. Her job required her to sit, stand, walk to the counter and use the telephone.

The claimant also had a desk with a computer and particularly in the last few years before she retired, most tasks were done on a computer. She had to look up and input information on the computer. The lifting requirements of the job were minimal. She did have to occasionally lift boxes of receipts in order to get them ready for storage and she estimated that these boxes would weigh between 10 and 15 pounds. She would also lift water meters and the weight of these meters would depend on the size. She was not able to give exact weights of these meters, but estimated them to weigh around ten pounds or a little more. She testified that handling water meters was not something that she did on a daily basis.

She usually began work between 7:30 or 7:45 a.m. and quit around 5:00 p.m. or perhaps a little later. Her “typical day” varied a lot. In general, she would get her computer ready to do whatever needed to be done and did tasks such as customer service; preparing final bills or helping other employees. She also might have to figure new water rates. She worked at the counter and dealt with the public as well as plumbers. She loved her job.

She could not recall exactly how much she earned per hour, but she was paid biweekly and said that the sum of $1,929.60 per week “could be right.” She also had health insurance; dental insurance; life insurance; and IPERS benefits with her city employment.

The claimant’s injury occurred on November 6, 2003. She was leaving work at the Iowa Street entrance and was preparing to step off the curb. The city had recently done some landscaping around that entrance and had used lava rock on some flower plantings. Some of the lava rock had gotten onto the sidewalk. The claimant stepped with her right foot and stepped on a lava rock and fell, landing on her left side.

According to the claimant, the fall knocked the wind out of her. She tried to put her hands out to get up, but she could not use her left arm at all. Her fall was witnessed by several co-workers and one of those employees took her to the emergency room at Mercy Health Center. Her left elbow was dislocated and the claimant’s left elbow was set under general anesthesia. A partial cast was put on and the claimant was released. The next day was a Friday and the claimant did go to work for part of the day, even though she said the pain “was very bad.”

The claimant’s initial treating physician was Terence Alexander, M.D., who saw the claimant for a number of months. He ordered physical therapy, which did not help improve her condition. At some point in time it was decided that it was her neck that might be the problem and she then saw Michael Stenberg, M.D. At this time she had pain from the left side of her neck, into her shoulder and down her left arm all the way to her fingers. She was still able to do her work, but the pain was especially bad at night when she was home. She did not take time off from work unless it was for a doctor’s appointment or to get physical therapy.

Dr. Stenberg agreed that the pain was coming from her neck and he ordered an MRI and referred her on to Timothy Miller, M.D. According to the claimant, he gave her some cortisone shots, which helped with some of the tingling. She was then sent to Peggy Mulderig, M.D. who ordered additional tests, including an EMG. Dr. Mulderig then referred her to Edwin Castenada, M.D. who the claimant saw after she retired from her employment at the City of Dubuque. Dr. Castenada told the claimant she needed a surgeon. At this time, which was January 20, 2005, the claimant said she was in terrible pain and her daughter suggested that she see a chiropractor. The claimant testified that at that juncture she was willing to try anything.

The claimant’s daughter took her to her own chiropractor’s office, but that chiropractor was unable to see the claimant. Instead she was seen by Injun Chong, D.C., who was in the same office. His treatment, given that same day, provided some relief and she has been seeing him ever since. She has also been doing some exercises that he has given her to do.

The claimant did see a surgeon, Michael Chapman, M.D. on February 10, 2005. According to the claimant, he did not feel that she needed surgery. She understood her problem to be “dislocated discs.”

As indicated previously, the claimant retired on December 29, 2004. From the period of July through December 2004, the claimant said the pain was bothering her a lot and that she was terrible to live with. She was able to go to work and do her job, but she “just suffered afterwards” and could not sleep at night. She got to the point where she did not think she could handle it anymore. She said that her work injury was a component in her decision to retire. She could do the work, but then she would have to come home and apply ice to her left arm. She had planned to work until she was 65 years old, but instead she retired at age 61.

Since her retirement, the claimant has not been employed. She likes to sew, but she has pain, mostly in her elbow area, when she tried to do this activity. Before her injury, she could sew all day, but now she takes frequent breaks. She said that it is difficult to feed the fabric into the sewing machine. She also likes to crochet, but it takes her longer to do this than before. Sweeping a floor is “terrible.” She has pain constantly although most of the time it is a dull, throbbing ache. She still gardens and she cans about 150 quarts of tomato juice. She has trouble driving and since her husband is disabled, she must rely on family members to do the driving if the trip is long distance.

She testified that it has “benefited” her neck and arm to leave the city. She has not worked for any other employer since she left the city and has no plans to look for work.

On cross-examination, the claimant was asked about the independent medical examination she had with Nate Brady, M.D., an examination that was arranged by her attorney. In his report, which is claimant’s exhibit 1, Dr. Brady states that the claimant’s “pain is mild and her activities only mildly restricted.” (Claimant’s Exhibit 1, page 9) When asked about that language and whether Dr. Brady’s statement was correct, the claimant said that she did not agree with his observation.

She was asked whether she ever asked the city for any accommodations following her injury and she said that she was given a better chair. She did not ask for any other accommodations except help from other employees. She did not ask for voice activated computer software as she did not know there was such a thing. She agreed that she would be able to ask for help with lifting tasks from other employees in the finance department, but sometimes the department was short-handed and she could not get help.

She was asked about her gardening activities and she said that her mother, who is 84 years old, does most of the gardening. Her husband is disabled as a result of several small strokes and his left arm is impaired, but he now does the majority of the yard work.

The claimant agreed that she knew who her authorized treating physicians were and that none of them ever referred her to a chiropractor or even recommended chiropractic treatment. Her last visit with an authorized treating physician was on February 10, 2005, when she saw Dr. Chapman.

The claimant was able to retire with full retirement benefits under IPERS and gets a pension of $2,300.00 plus per month. She was also shown her IPERS application for retirement and she agrees that she did not indicate disability was a reason for her retirement. She said that she “didn’t term it as a disability because I could do my job.” She testified that no doctor recommended that she stop working and that she could have continued working “if I didn’t have pain.” She admitted that no one at the city tried to make her retire and that, in fact, the city was surprised when she decided to retire.

The claimant’s cross-examination ended at 4:07 p.m. Just prior to ending his cross-examination, defense counsel asked the claimant why the vocational rehabilitation report had indicated that she could sit for only 30 minutes and she had sat for her testimony in excess of that time. The deputy did carefully observe the claimant during her testimony and at no time did she manifest any behavior that might indicate that she was in pain or discomfort.

As indicated previously, the claimant’s first medical treatment was in the emergency room and thereafter she was referred to Terence Alexander, M.D. for further treatment. Dr. Alexander initially saw the claimant on November 11, 2003. Dr. Alexander wrote as follows:

The patient is a 60-year-old right-hand dominant woman who works as the supervisor of the water department for the City of Dubuque. She dislocated her left elbow on November 6, 2003, when she lost her balance and tried to put her left hand out to break her fall. Following the injury, she did experience numbness in the fingers of her left hand. She also noticed a deformity of the left elbow with the lateral aspect of the elbow being located laterally relative to the upper arm. She initially presented to the Mercy Emergency Room where she was treated by Dr. Zeman and the elbow was relocated. Postreduction films did not demonstrate any definite fractures. The patient was placed in a half-cast and was subsequently referred here for further evaluation. She was also prescribed FLURBIPROFEN and 5 mg HYDROCODOE for relief of her elbow discomfort. She presents at this time complaining of discomfort in the anterolateral aspect of the elbow which is made worse by extension of the elbow and supination of the forearm.

(Cl. Ex. 2, p. 1)

After an examination, Dr. Alexander diagnosed a probable dislocation of the left elbow, which was probably associated with at least a partial if not complete tear of the ulnar collateral ligament. (Cl. Ex. 2, p. 1) He placed the claimant in a posterior elbow splint and continued her medication. (Cl. Ex. 2, p. 2)

Dr. Alexander next saw the claimant on November 18, 2003. He reported that there was still some soreness in the elbow and that there was an expected lack of full extension. (Cl. Ex. 2, p. 3) The claimant denied any tingling or numbness in the fingers of her left hand and that she was able to crochet and work the computer. (CL. Ex. 2, p. 3) Dr. Alexander’s impression was a clinically healing left elbow dislocation and at this point, the claimant was referred to physical therapy. (CL. Ex. 2, p. 3)

On December 16, 2003, the claimant told Dr. Alexander that while her elbow felt better, she was having numbness when her forearm supinated. (Cl. Ex. 2, p. 4) Physical therapy was continued. (Cl. Ex. 2, p. 4) The claimant still lacked full elbow extension on January 15, 2004, and so the physical therapy was continued yet again. (Cl. Ex. 2, p. 5) The claimant continued to voice complaints of pain and lack of strength on February 17, 2004, and Dr. Alexander indicated that the upper arm discomfort might be coming from the rotator cuff of the left shoulder. (Cl. Ex. 2, p. 6) More physical therapy was ordered. (Cl. Ex. 2, p. 6)

The claimant next saw Dr. Alexander on March 16, 2004 and on that date she reported that her left shoulder was feeling better although she continued to have discomfort when she supinated her left forearm. (Cl. Ex. 2, p. 7) Dr. Alexander found no sign of shoulder impingement or loss of strength in the rotator cuff muscles although there was discomfort with resisted external rotation of the left shoulder. (Cl. Ex. 2, p. 7) The claimant was advised to continue doing her home exercises for both the left elbow and left shoulder. (Cl. Ex. 2, p. 7)

On June 28, 2004, the claimant returned to Dr. Alexander. The following history was taken:

The patient is a 61-year-old woman who was treated for a left elbow dislocation which occurred when she feel on her back on November 6, 2003. She was last seen in mid March 2004. At chi time, she was complaining of both shoulder and elbow discomfort. She reports that since Tuesday of last week (June 22, 2004), she has been having difficulty sleeping due to discomfort in the left forearm which radiates proximally into the shoulder and left posterior cervical areas. The pain in her forearm seems to be located in the dorsoradial aspect of the forearm. She says that occasionally, her left hand “falls asleep” when she lies on her left side; however, she says that her other upper extremity does that as well.

(Cl. Ex. 2, p. 8)

On examination, Dr. Alexander found that he was able to reproduce the claimant’s symptoms with active extension of the cervical spine. He questioned whether the claimant’s symptoms were cervical in origin. (Cl. Ex. 2, p. 8) The claimant was referred to physical therapy.

X-rays taken showed that the claimant had degenerative changes in the lower cervical spine as well as some foraminal encroachment. (Cl. Ex. 2, p. 9) Dr. Alexander indicated that the claimant’s symptoms were likely cervical in origin and recommended conservative care. (Cl. Ex. 2, p. 9)

The claimant was next seen by Michael Stenberg, M.D. on July 8, 2004. He took the following history:

The patient is here today for evaluation of an injury at work. In November of 2003, she slipped and fell, dislocated her left elbow. Since that time, she was treated for that but has noted progressive increase in pain in the left upper extremity. The pain is in the area of the shoulder and the area of the elbow, but she has no tenderness to palpation. She was evaluated by Dr. Terry Alexander at Medical Associates Musculoskeletal Department whose impression was that she had a cervical radiculopathy. The patient at first did not want to consider this.

Cl. Ex. 5, p. 1)

Dr. Stenberg diagnosed left upper extremity radiculopathy and ordered an MRI. (Cl. Ex. 5, p. 1) He added: “I told the patient that it was my opinion with a reasonable degree of medical certainty that a fall like this could have aggravated a previously existing degenerative cervical spinal disease.” (Cl. Ex. 5, p. 1)

The claimant saw both Dr. Stenberg and Dr. Alexander on July 22, 2004. Dr. Stenberg told the claimant that her MRI showed a herniated cervical disc with impingement on neural tissue, which he believed explained her current symptoms. (Cl. Ex. 5, p. 2) He referred her to Timothy Miller, M.D., at the Finley Pain Clinic for cervical epidural steroid injections. (Cl. Ex. 5, p. 2) Dr. Alexander agreed that some or possibly most of the claimant’s symptoms were due to cervical disc disease, although he could not rule out some of the upper arm pain emanating from the rotator cuff. (Cl. Ex. 2, p. 10) He agreed that she should undergo a trial of cervical epidural steroid injections. (Cl. Ex. 2, p. 10). He added that: “Clinically, I do not think her symptoms are related to her previous elbow injury, although this cannot completely be ruled out.” (Cl. Ex. 2, p. 10)

The claimant had three epidural steroid injections. (Cl. Ex. 3, pp. 1, 2, and 3) Initially the city denied payment for these three injections, but based on a report from Dr. Miller dated December 20, 2004, the bills were paid according to a handwritten notation. (Cl. Ex. 3, p. 5) Dr. Miller also indicated that the claimant had done well with the epidural injections and that she was left “with minor paresthesias” which he anticipated “would resolve over time.” (Cl. Ex. 3, p. 5)

The next medical record concerning the claimant is from Edwin T. Castenada, M.D., who saw the claimant on January 20, 2005, at the request of Peggy Mulderig, M.D. Dr. Castenada reviewed the claimant’s history and indicated that the claimant had had EMG studies to evaluate left upper extremity pain and discomfort. (Cl. Ex. 6, p. 1) The EMG, by Dr. Castenada’s report, was normal. (Cl. Ex. 6, p. 1) He conducted a physical exam and noted that the claimant had full range of motion of her cervical spine, shoulders, elbows, wrists and hands. (CL. Ex. 6, pp. 1-2) He offered the following conclusion:

At this time, there does not appear to be any evidence of peripheral nerve entrapment. It does appear that the patient does have a full recovery from her left elbow injury with full flexion, extension, pronation and supination at the elbow. Her major concern is the pain coming out of her neck down into her left upper extremity. It should be emphasized that the patient had no problems with her neck or her upper extremity prior to the fall sustained in November of 2003. Consequently, it is the opinion of this medical examiner that the present complaints are directly related to her fall sustained in November of 2003.

(Cl. Ex. 6, p. 2)

He referred the claimant to Michael Chapman, M.D. for a spinal surgery evaluation. (Cl. Ex. 6, p. 2)

Dr. Chapman saw the claimant on February 10, 2005. He took the following history:

The patient is a 61-year-old woman whom Dr. Castaneda sent for my opinion regarding her upper extremity symptoms. She is right-hand dominant. She has very minimal neck pain. It is primarily arm pain; it is all on the left. She had a neck fracture in the 1960s but no prior problems until November of 2003, when there was a fall at work and she has had some degree of symptoms ever since. Her pain has been constant and severe, however of late, she has noticed some improvement and it is not as bothersome. It tends to wax and wane in severity but was at its most severe through most of January 2005. In the pain diagrams, she has described an aching pain from the base of the neck through the left shoulder, down the arm, into the radial side of the hand. She would periodically get numbness into the hand. It involved primarily the thumb and index finger. She would also periodically get pins and needles in a similar distribution. She never had significant weakness.

(Cl. Ex. 4, p. 1)

Dr. Chapman conducted an exam and concluded that the claimant suffered from diffuse cervical spondylosis with intermittent left arm symptoms. (Cl. Ex. 4, p. 2) He did not feel that the claimant would benefit from surgery and that she should be as active as she could, letting “her pain be her guide.” (Cl. Ex. 4, p. 2)

The claimant testified that she started receiving chiropractic care for her injury on January 20, 2005, and that she has continued with that care to the present. The record shows that the claimant did start receiving chiropractic care on January 20, 2004, when she presented with left shoulder and arm pain that was described as constant and aching in nature. (Cl. Ex. 9, p. 1) A careful review of these chiropractic records shows, however, that the claimant was also treated for low back pain on April 21, 2004. (Cl. Ex.  9, p. 1) She complained of right-sided neck stiffness on April 29, 2004. (Cl. Ex. 9, p. 2) On June 15, 2004, she reported no left shoulder discomfort. (Cl. Ex. 9, p. 2) On September 28, 2005, she was being treated for right quad discomfort as well as some left humerus discomfort. (Cl. Ex. 9, p. 2) Right-sided neck discomfort was treated on November 10, 2005. (Cl. Ex. 9, p. 3) This pain was still present on December 19, 2005. (Cl. Ex. 9, p. 3) On January 7, 2006, she reported less irritation of her left arm and that tingling was occasionally present. (Cl. Ex. 9, p. 4) The complaint on January 17, 2006, was tightness and stiffness between the shoulder blades and lower part of the neck. (Cl. Ex. 9, p. 4) On February 2006, the claimant reported that her left arm had occasional tingling but there was no pain with it. (Cl. Ex. 9, p. 5)

The claimant underwent an independent medical examination by Nate Brady, M.D. on February 13, 2006. Dr. Brady is employed by Work Well Clinic in Cedar Rapids, Iowa, and is board eligible in preventive and occupational medicine. (Cl. Ex. 1, p. 10) Dr. Brady reviewed the claimant’s medical records and recorded the following symptoms:

Her current symptoms consist of left arm soreness, which she feels from the deltoid area down to her forearm. She has occasional tingling, which is diffuse, in the forearm and hand. She is also complaining of some amount of neck pain. Most of her pains are made worse with activities. Current aggravators include sweeping floors and sewing. She has difficulty sewing for longer than 15 minutes. She had been having considerable worsening of her symptoms performing her administrative duties for the City of Dubuque. She retired 12/29/2004. The pain has only improved slightly since that time.

(Cl. Ex. 1, p. 7)

Dr. Brady reported that the claimant had recently been seeing a chiropractor and that as a result of that treatment her symptoms had improved “up to 80% of what they were a year ago.” (Cl. Ex. 1, p. 8) She also indicated that the epidural injection was the most helpful medical care she had received. (Cl. Ex. 1, p. 8)

Dr. Brady’s diagnoses were: radial head dislocation status post reduction; loss of full elbow extension; and herniated C5-6 disk with left radiculopathy. (Cl. Ex. 1, p. 9) He then offered the following opinion concerning her impairment:

Dr. Mulderig previously described a 5% impairment rating due to her injury. That would be consistent with the AMA Guides to the Evaluation of Permanent Impairment – 5th Edition. Using the DRE classification of cervical injuries, an MRI showing clinically significant disk altcration [sic] that would create a radiculopathy that subsequently improves following nonoperative treatment, is a DRE cervical category II injury. I would agree at placing her at the 5% end of the spectrum due to the fact that her pain is mild and her activities only mildly limited.

In addition, with regard to her elbow injury, a loss of extension at the elbow of 10 degrees correlates to a 1% impairment of the upper extremity due to loss of extension.

(Cl. Ex. 1, p. 9)

Concerning her permanent restrictions, Dr. Brady opined that “[r]easonable restrictions for the elbow and the neck would be of establishing a pound limit for lifting,” which he indicated should be 10 pounds with the left arm. (Cl. Ex. 1, p. 9) He also recommended no forceful pushing or pulling with that arm, and no work with prolonged exposure to positions that required neck deviation away from neutral for prolonged periods of time. (Cl. Ex. 1, p. 9)

Dr. Brady’s report references a rating done by Dr. Mulderig. There are no medical records from Dr. Mulderig that indicate she ever examined or treated the claimant. There is a report dated April 25, 2005, from Dr. Mulderig where she opines that the claimant has a five percent impairment of the whole person. (Cl. Ex. 7, p. 2)

The record also contains a report from Barbara Laughlin, who identifies herself as a vocational consultant/ case manager. According to her curriculum vitae, she is the president of Laughlin Management, doing medical and vocational case management of workers’ compensation and personal injury files. (Cl. Ex. 10, p. 12) Laughlin’s opinion is that the claimant is limited to less than the full and wide range of sedentary work and that her restrictions “preclude her from much of her past work.” (Cl. Ex. 10, p. 9) She indicated that the claimant has a number of barriers in the labor market to include her age; job experience in relevant years limited to one field; restrictions; and her pain. (Cl. Ex. 10, p. 10) She then stated that the claimant has sustained a loss to the labor market of 85-100 percent as there are no positions in any quantity, quality or dependability available in her job market. (Cl. Ex. 10, p. 10)

On May 19, 2005, the city sent a letter to claimant’s counsel concerning the claimant’s permanent partial disability. In that letter, the city explained that, based on Dr. Mulderig’s report, it was paying to the claimant 25 weeks of permanent partial disability benefits at a rate of $627.10, in a lump sum. (Cl. Ex. 14, p. 2) Claimant’s counsel replied on May 23, 2005, that interest was due and owing since the claimant’s commencement date for permanency benefits was November 6, 2003 and then went on to demand the sum of $2,019.97 in interest. (Cl. Ex. 14, p. 3) A copy of the check to the claimant and her attorney for the interest of $2,019.98 is dated June 21, 2005. (Cl. Ex. 14, p. 8) There is no definitive evidence on when this check was sent or received except a stamp, which says “delivered June 27 2005.” (Cl. Ex. 14, p. 8)

The claimant submitted a medical expense summary for chiropractic charges that total $916.00. The actual bills are not included.

The claimant applied for retirement benefits from IPERS and her application is part of the record as defendant’s exhibit B-2. She checked “no” in response to a question about whether she was retiring because of disability. (Defendant’s Ex. B, p. 2)

The claimant’s deposition was taken on January 11, 2006, and is included in the record as defendant’s exhibit C. In that deposition, the claimant testified that she worked up until the day she retired and that she could have continued working if she had wanted to. (Def. Ex. C, p. 2) She stated that she decided to retire because working on the computer was hard on her neck and arm and that she just felt it was time to “get out of there after 32 years.” (Def. Ex. C, p. 3) She said that she consulted a chiropractor on her own and that she has not seen any doctor for her injuries since seeing Dr. Chapman in February 2005. (Def. Ex. C, pp. 6 and 7)

Ken TeKippe testified on behalf of the defendant. He is the Finance Director for the City of Dubuque. He has been the claimant’s supervisor since June 26 or 27, 2000. He said that following her injury, the claimant did not have extended periods of missed work. He did not encourage her to retire. She did not ever ask for any kind of accommodation because of her injury. She could still be working for the city today had she not retired.

CONCLUSIONS OF LAW

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 Serv. 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.

The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance, and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. 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-reopen 1975).

If weekly compensation benefits are not fully paid when due, section 86.13 requires that additional benefits be awarded unless the employer shows reasonable cause or excuse for the delay or denial. Robbennolt v. Snap-on Tools Corp., 555 N.W.2d 229 (Iowa 1996).

Delay attributable to the time required to perform a reasonable investigation is not unreasonable. Kiesecker v. Webster City Meats, Inc., 528 N.W.2d 109 (Iowa 1995).

It also is not unreasonable to deny a claim when a good faith issue of law or fact makes the employer’s liability fairly debatable. An issue of law is fairly debatable if viable arguments exist in favor of each party. Covia v. Robinson, 507 N.W.2d 411 (Iowa 1993). An issue of fact is fairly debatable if substantial evidence exists which would support a finding favorable to the employer. Gilbert v. USF Holland, Inc., 637 N.W.2d 194 (Iowa 2001).

An employer’s bare assertion that a claim is fairly debatable is insufficient to avoid imposition of a penalty. The employer must assert facts upon which the commissioner could reasonably find that the claim was “fairly debatable.” Meyers v. Holiday Express Corp., 557 N.W.2d 502 (Iowa 1996).

If the employer fails to show reasonable cause or excuse for the delay or denial, the commissioner shall impose a penalty in an amount up to fifty percent of the amount unreasonably delayed or denied. Christensen v. Snap-on Tools Corp., 554 N.W.2d 254 (Iowa 1996). The factors to be considered in determining the amount of the penalty include the length of the delay, the number of delays, the information available to the employer and the employer’s past record of penalties. Robbennolt, 555 N.W.2d at 238.

For purposes of determining whether an employer has delayed in making payments, payments are “made” either when (a) the check addressed to a claimant is mailed (Robbennolt, 555 N.W.2d at 236; Kiesecker, 528 N.W.2d at 112), or when (b) the check is delivered personally to the claimant by the employer or its workers’ compensation insurer. Robbennolt, 555 N.W.2d at 235. Weekly compensation payments are due at the end of the compensation week. Robbennolt, 555 N.W.2d 229, 235.

In arbitration proceedings, interest accrues on unpaid permanent disability benefits from the onset of permanent disability. Farmer's Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979); Benson v. Good Samaritan Ctr., Ruling on Rehearing, October 18, 1989.

The first issue to be determined is the nature and extent of the claimant’s permanent partial disability. In this case, the medical evidence is overwhelming that the claimant suffered both a dislocation of her left elbow and an aggravation of degenerative cervical disc disease as a result of her fall on November 6, 2003. As the claimant had an injury to her left arm and her neck, her injury is non-scheduled and therefore her permanent disability is industrial disability. Iowa Code section 85.34(2)(u); Dailey v. Pooley Lbr. Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Industrial disability is impairment of earning capacity and therefore a number of factors need to be considered in determining the extent of industrial disability.

Although the claimant testified that she has ongoing pain that radiates from the left side of her neck down to her shoulder and through her left arm down to her fingers, her description of that pain as constant and severe does not square with the medical and chiropractic records in this case. A careful review of the chiropractic records shows that the claimant has not had significant ongoing treatment for pain in her left upper extremity, to include her neck and shoulder. In fact, the treatment records show that other complaints were being made that are clearly not related to the injury in this case, to include right neck pain; lower back pain; and mid back pain. The claimant has not had any treatment from any medical doctors since February 2005. There was no testimony that she is taking any medication at the present time. She indicated to Dr. Brady an 80 percent improvement in her symptoms since she started chiropractic care.

Dr. Brady opined that the claimant’s pain was mild and her activities only mildly limited. Although the claimant disagrees with that opinion, it was obviously based on the claimant’s self-reporting of her symptoms; Dr. Brady’s physical examination and his review of her medical records. In February 2005, Dr. Chapman indicated that the claimant was improving. The claimant testified that she is able to do her housework even though it takes her longer than before. She was able to can 150 quarts of tomato juice. She can still crochet and sew, although she does it for shorter periods of time. The claimant has a disabled husband and an elderly mother and provides some amount of support to them in the form of housework.

A very significant factor in this case is that the claimant was able to work from the date of her injury to her voluntary retirement. She did not miss any work except to attend physical therapy and doctor appointments. She never had any restriction from her treating physicians during the time of her employment from the city. She applied for regular retirement from IPERS and candidly testified that she did not indicate that she was retiring for reasons of disability since she was not disabled. She said that she was not disabled as she was able to do her regular job up until the time she retired. Although she testified at the hearing that she retired because of her suffering, she indicated in her deposition that she also felt that she needed to leave having been with the city for 32 years. She is receiving full retirement benefits from IPERS and Social Security retirement.

The claimant has not looked for work and has no intention of looking for work. She appears to be content with her retirement.

As indicated previously, the claimant has no permanent restrictions from any of her treating physicians. Dr. Brady suggested a ten-pound lifting restriction for the claimant’s left arm and avoidance of pushing/pulling with the left arm and holding her head in an other than neutral position. Even assuming that Dr. Brady’s restrictions are in place, the claimant’s job was within these restrictions, with the possible exception of lifting the occasional water meter. She is right-handed, not left-handed. She frequently changed position during the day. She did not describe any situation where she was required to hold her head in a fixed position other than neutral for any significant time.

Barbara Laughlin’s opinions are rejected in their entirety and are not credible. The claimant was physically capable of doing her regular job and retired voluntarily. Even though she was with the city for 32 years, this lengthy employment is an asset, not a liability. She acquired computer skills; personnel management skills; and mathematical and reasoning skills. She held a job that required mental acumen and by all accounts was an excellent employee. She is an intelligent and well-spoken person who can deal with the public in a competent way. Whatever restrictions she may have would not prevent her from competing in the open labor market in any significant way and did not prevent her doing her job with the city. Laughlin made no effort to find the claimant a job and since the claimant has not voluntarily looked for work, her actual ability or inability to get a job is unknown.

The claimant does have permanent impairment of five percent of the body as a whole and she does have complaints of pain. These complaints of pain, however, based on the medical records, are not significant and do not require constant ongoing treatment.

The claimant is 62 years old and while she is an older worker, she was gainfully employed until her retirement and by her own testimony could have continued working despite her age. The claimant’s prior work as an office worker and salesperson for a camper dealership is also work for which she would be physically capable. The claimant might have difficulties doing a store clerk job, if that job required significant lifting and use of the left arm, something she did not testify to while describing this job.

Based, then, on a consideration of all the factors of industrial disability, it is determined that the claimant’s industrial disability is 15 percent. Claimant also contends that she is an odd-lot employee. An employee is an odd-lot employee when an injury prevents obtaining employment in any well-known branch of the labor market. Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985). The claimant is not an odd-lot employee as she is fully capable of being employed in the labor market and was so employed until she voluntarily retired.

The next issue to be determined is the commencement date for the award of permanent partial disability benefits. In this case, the claimant did not miss any time from work other than for medical treatment. As the claimant had no period of temporary total disability, the commencement date for the award of permanent partial disability benefits is November 6, 2003 the date of the injury.

The next issue to be determined is whether the claimant is entitled to any section 85.27 medical expenses. Specifically the claimant is seeking reimbursement of chiropractic expenses in the amount of $916.00. The defendant claims that chiropractic care was not authorized.

The claimant concedes that she has sought chiropractic care on her own. No physician authorized by the city has ever referred her for chiropractic treatment or even recommended or suggested chiropractic treatment. The employer had accepted liability for “the neck” claim and paid medical bills to treat this condition after receiving a report from Dr. Miller in December 2004. The claimant never asked that chiropractic care be authorized. In view of these facts, it is determined that the defendant did not authorize chiropractic care and thus the defendant is not liable for claimant’s chiropractic bills.

The final issue to be determined is whether the claimant is entitled to any penalty benefits pursuant to Iowa Code section 86.13 for failure to pay permanent partial disability benefits. The facts of this case show that the nature and extent of the claimant’s permanent partial disability was a fairly debatable issue in view of the claimant’s return to work without restrictions and her voluntary retirement. Although permanent partial disability benefits have been awarded in this case and some permanent partial disability benefits were voluntarily paid by the city, the facts do not support any award of penalty benefits.

ORDER

IT IS THEREFORE ORDERED:

That the City of Dubuque pay to the claimant, Margaret Schemmel, twenty-five (25) weeks of permanent partial disability benefits at a rate of six hundred twenty-seven and 10/100 dollars ($627.10) commencing November 6, 2003;

That the defendant shall receive credit for any weekly benefits that have been previously paid to the claimant;

That the defendant shall pay interest as provided in Iowa Code section 85.30;

That all accrued benefits shall be paid to the claimant in a lump sum plus interest;

That costs are taxed to the defendant; and

That the defendant shall file subsequent reports of injury as required by this agency.

Signed and filed this _____27th______ day of April, 2006.

________________________

VICKI L. SEECK DEPUTY WORKERS’

COMPENSATION COMMISSIONER

Copies to:

Mr. Thomas M. Wertz

Attorney at Law

PO Box 849

Cedar Rapids, IA 52406-0849

Mr. William G. Blum

Attorney at Law

300 Main ST STE 330

Dubuque, IA 52001-6946

VLS/pjs

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