BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER



BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER

_____________________________________________________________________

:

MICHAEL A. DITTMAR, :

:

Claimant, :

:

vs. :

: File No. 5014333

MENARD, INC., :

: A R B I T R A T I O N

Employer, :

: D E C I S I O N

and :

:

ZURICH NORTH AMERICAN, :

:

Insurance Carrier, :

Defendants. : HEAD NOTE NO.: 1803

______________________________________________________________________

STATEMENT OF THE CASE

Michael Dittmar filed a petition in arbitration seeking workers’ compensation benefits from Menard, Inc., defendant employer, and Zurich Insurance, defendant insurance carrier, on account of an injury which arose out of and in the course of his employment on January 13, 2003. This case was heard by deputy workers’ compensation commissioner, Vicki L. Seeck, on October 4, 2006, in Cedar Rapids, Iowa. Both parties filed briefs in this case. The case was considered fully submitted on October 16, 2006. The record consists of claimant’s exhibits 1-12; defendants’ exhibits A-G; the testimony of Michael Dittmar; and the testimony of Althea Dittmar.

ISSUE

The only issue for determination is the extent of the claimant’s industrial disability, if any, as a result of his injury of January 13, 2003. The parties stipulated that the claimant’s gross earnings were $619.00 and that the claimant was married and entitled to four exemptions. The claimant’s rate is $413.62. The commencement date for the payment of permanent partial disability benefits is January 13, 2003.

FINDINGS OF FACT

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

The claimant is 39 years old and was born on March 29, 1967. He graduated from Cedar Rapids Marion High School in 1985. He had a B average and described himself as a decent student. After graduating from high school he went to work for Jack’s Discount, which he described as a discount retail store similar to Walmart. He started as a part-time stock clerk and obtained a full-time job in the fall of 1985. He did a number of different jobs during his 13 year tenure with Jack’s Discount. He worked in maintenance and was a receiving supervisor. He was also in charge of the seasonal department. He attended an OSHA class to learn to drive a forklift.

He left his employment with Jack’s Discount in May of 1998. Shopko had just bought out Jack’s Discount and there were across-the-board demotions. He started looking around to see what was available and in May of 1998 he started with Menards. His first job was as a store clerk in the hardware department. He earned $9.10 per hour. He then moved up to the building material counter, which he described as more of a sales position. He was later promoted to assistant building material manager, which is the position he held at the time of his injury on January 13, 2003. Before his injury he was in excellent health and had never had a workers’ compensation claim.

On the morning of January 13, 2003, he came into work and was on the sales floor taking care of stock. Shelving had been stacked on a four wheel cart and the claimant was unloading the shipment. As he went to push the cart, the shelving went off the cart, propelling the cart into the claimant and the claimant then hit the forklift. He hit his head right behind his left ear on the tine of the fork lift. He was knocked out and went to the floor, hitting the floor on the back right side of his head. There were two separate head traumas. The floor he hit was made of concrete. He believes that he was knocked out for one to two minutes, based on the records he has reviewed, as he has no independent recollection of the events.

When he came to, he was lying on the floor. The hardware manager was standing over him. He was bleeding from a cut on his head and a rag had been placed on that cut. He was told to stay down and paramedics took him to St. Luke’s Hospital. Once at the hospital, he had a number of tests and remained there for approximately six hours. He was then released and he went home and lay down on the couch. The day of the accident was a Monday and the claimant had a scheduled day off on Tuesday. He returned to work on Wednesday. He said he felt a little dizzy and drugged up as he was taking several medications at the time.

The claimant testified he has a number of persistent symptoms as a result of the accident. These include what he called “balance issues” as well as headaches and a neck ache. He also has a continuous ringing in his left ear. None of his physicians were able to figure out the exact problem, as he put it. After his return to work, he was still the assistant building materials manager, but he did not work stock. He does not believe he was or is capable of working stock.

He did get physical therapy in an effort to improve his balance system. He felt that his balance did improve over the six to eight months following the accident, but by December 2003 his balance still was not normal. In 2004, he continued to have issues with balance and still suffered from headaches and a neck ache. He treated his neck pain with a TENS unit. Activity will usually cause a headache to begin and he will get dizzy if he gets up too quickly. He takes medication on a continuous basis. He is depressed because he is no longer able to do some of the things he used to be able to do such as bowling and jogging. He used to be very physically active and has had a 40 pound weight gain following the accident.

He must use a handrail to go up stairs and he cannot climb a ladder. Based on information from a physical therapist, he estimates that he cannot do 40 to 50 percent of what he did prior to the accident. He did not miss any time from work as a result of the accident. He explained that he was the sole wage earner for his family as his wife was a student at Kirkwood Community College at that time.

His employment with Menards ended on January 31, 2005. At the time, the claimant said he was performing his job duties “okay” but probably not like he did prior to his injury. He was not going out on the floor, helping customers, like he used to do. After he terminated, he looked for a number of jobs, but was told he was either over qualified or under qualified. He finally decided to enroll at Kirkwood in the fall of 2005. He has been a full-time student since then. At the present time he is taking general courses, but hopes to study business management with the goal of becoming some kind of manager. He plans to obtain his associate’s degree and then move on to a four year college to get a bachelor’s degree. He also has a part-time job at Ace Hardware. He works 20 to 24 hours per week and earns $9.00 per hour.

The reason he decided to return to college is that he did not feel he could do what he called “a physical job” and so obtaining the necessary education to be in management was “a way to stay away from that.” His balance continues to be a big problem for him. He has a handicap parking permit.

On cross-examination, the claimant admitted that he is doing well academically at Kirkwood and presently has a 3.21 GPA. He did think about going back to college even before his injury. He had also applied to be a department manager at Menards before his injury. He was asked if he would earn more if he was to obtain a BA degree and in response the claimant replied that it would be “speculative.”

The claimant agreed that he has no permanent work restrictions. He can still use a computer. He has the skills to help customers and to train and supervise employees.

The claimant was also questioned concerning his medical treatment and he was unable to specifically recall when he saw a particular physician. He has been seeing a psychologist once every 2 to 3 weeks and he agrees that he has improved from a mental health standpoint. He finds the sessions with his psychologist to be helpful.

He also testified that he plays in a band and that he is able to do this even with his balance problems. He does not move around very much while on stage and tends to stay in one place.

On re-direct examination the claimant said that he did not recall what restrictions he was given by Richard Neiman, M.D., who did an independent medical evaluation of the claimant.

His yearly income from Menards included a manager bonus that was paid at the end of the year and a profit sharing bonus. That profit sharing bonus did increase every year while the claimant was employed at Menards.

Althea Dittmar testified on behalf of the claimant. She has known her husband for 14 or 15 years. According to Mrs. Dittmar, her husband cannot walk as well as he used to be able to walk before the accident. He cannot play football. They went to an IMAX theater and he got dizzy and needed assistance in order to leave the theater. He cannot go bowling. He has changed emotionally. He is short tempered and not the same man that she married. He cannot climb a ladder or change a light bulb. He cannot fix holes in the roof.

The claimant’s initial medical care was at St. Luke’s Hospital Emergency and Trauma Center in Cedar Rapids, Iowa. He had a laceration over the left mastoid area, which was irrigated and stitched. (Claimant Exhibit 11, pages 1-2) The impression was closed head injury; laceration; and cervical strain. (Cl. Ex. 11, p. 2) He was taken off work and asked to see Nancy M. Angenend, M.D., the following day. (Cl. Ex. 11, p. 2)

He was seen the next day by Carla Schulz, M.D. Among his complaints were a little bit of ringing in the left ear and muffled hearing. (Cl. Ex. 12, p. 1) He also had pain that was not totally relieved by medication. (Cl. Ex. 12, p. 1) Dr. Schulz’ impression was status post head trauma and laceration “but seemingly doing quite well.” (Cl. Ex. 12, p. 1) She changed his medication and allowed him to return to light duty the following day. (Cl. Ex. 12, p. 1) On January 24, 2003, the claimant saw Dr. Angenend, still complaining of pain and mild hearing loss. (Cl. Ex. 12, p. 1) A skull x-ray was negative and the medication was again changed. (Cl. Ex. 12, p. 1)

When the claimant next saw Dr. Angenend on February 7, 2003, he had significant headache and worsening vertigo. (Cl. Ex. 12, p. 2) He was referred to Kevin Carpenter, M.D., who saw the claimant on February 17, 2003. He took the following history:

This is a gentleman, patient of Dr. Nancy Angenend, who is here following a forklift accident to his left mastoid tip. It happened mid January. He had loss of consciousness for several minutes. He was seen in the ER. Laceration in the mastoid area was repaired. He started having spells where he was vertiginous, lasting 2-3 minutes. It worsened by movement, worse if he bends over. He also has some pressure in his left ear. Some ear congestion. He denies any ear operations. He does have tinnitus, on the left, greater than right side. When these spells come on, it is worse with movement and he has to grab something to stabilize himself. He can have anywhere from 1-2 per day to more than that, depending on his activity.

(Cl. Ex. 5, p. 1)

Dr. Carpenter’s impression was a sensorineural hearing loss, left greater than right. (Cl. Ex. 5, p. 1) He did not definitively diagnose the claimant’s vertigo, but suggested some additional studies for further diagnosis. (Cl. Ex. 5, p. 1) An ENG was obtained as well as an MRI, which was normal. (Cl. Ex. 5, p. 3) Dr. Carpenter had previously referred the claimant to physical therapy and in his note of April 1, 2003, there is a statement that he should continue with “vestibular rehab.” (Cl. Ex. 5, p. 3) Dr. Carpenter’s impression at that time was cochlear concussion with vestibular dysfunction, appearing to be peripheral. (Cl. Ex. 5, p. 3) Dr. Carpenter continued to follow the claimant. On June 25, 2003, he indicated that the claimant’s hearing had improved but he was still having problems with balance and headaches. (Cl. Ex. 5, p. 4) He thought the claimant’s prognosis was good although he would not reach maximum medical improvement for at least a year. (Cl. Ex. 5, p. 4) Dr. Carpenter was unsure about the claimant’s tinnitus as that condition was hard to evaluate. (Cl. Ex. 5, p. 4) The claimant’s last visit with Dr. Carpenter was on January 1, 2004. The claimant still had problems with balance and headaches. (Cl. Ex. 5, p. 5) He also complained about tinnitus and that sounds from his left ear were distorted. (Cl. Ex. 5, p. 5) Dr. Carpenter did an audiogram and found a sensorineural hearing loss of about 20 decibels. (Cl. Ex. 5, p. 5)

As indicated above, Dr. Carpenter referred the claimant for physical therapy and he was first evaluated by Rene D. Crumley, PT, on March 18, 2003. (Cl. Ex. 4, p. 1) The claimant reported problems with balance and headaches, as well as dizziness, and difficulty of hearing in his left ear. (Cl. Ex. 4, pp. 1-2) The initial assessment was that the claimant was at high risk for falls with significant complaints of dizziness, unsteadiness and positive left benign paroxysmal positional vertigo. (Cl. Ex. 4, p. 5) The claimant had a total of 100 visits with the physical therapist and was discharged on December 29, 2003. (Cl. Ex. 4, p. 20) Her final assessment was as follows:

This patient continues to have difficulty moving in his environment especially if it is not a static environment such as with snow and ice or if he has to pick up and move any kind of object. Anytime he has to move his head out of his center or anytime he is required to bend down or pick up he tends to have a loss of balance and increase in his headache. He has not made any significant improvement over the last 2 months at least. At this time it was recommended that he wear snow boots outside and

also pick up some of the clip-on extra traction devices that clip on the bottom of his shoes for extra traction. He continues to have significant impairments.

(Cl. Ex. 4, p. 22)

The defendants referred the claimant to Robert Keller, M.D., for an evaluation of his vision. No problem was found and the claimant was returned to work on June 19, 2003. (Defendant Exhibit A, page 2) In a report dated June 24, 2003, Dr. Keller said that he could not find any explanation for the claimant seeing white spots in front of either eye or both eyes that seemed to disappear. (Def. Ex. A, p. 3)

Dr. Angenend also arranged for the claimant to be seen by the Department of Neurology at University of Iowa Hospitals and Clinics. In a letter dated May 15, 2003, the claimant’s physician, E. Torage Shivapour, M.D., gave the following history:

Mr. Dittmar is a 36-year-old right-handed man who suffered a head injury January of 2003. He lost consciousness for one minute and then was confused for five minutes afterwards. He spent the afternoon in the emergency room and was sent home. Since then, he has noted headaches occurring on a daily basis that vary from 3/10 in severity to 8/10 in severity. These headaches are in a band-like distribution from the frontal to occipital area. They are partially relieved by medication such as hydrocodone with acetaminophen and ibuprofen. He is taking these medications on a daily basis. He notes worsening of these headaches while reading. He has also noted blurred vision, which is in both eyes, and worse in the distance. Finally, he has noted a distortion of his hearing in the left ear and vertigo. He was evaluated by Dr. Carpenter with ENT and has undergone electronystagmogram, which revealed hypersensitive response bilateral. He has been treated with physical therapy and has had some improvement. His headache has not improved over the last several months. He is also noting irritable mood.

(Cl. Ex. 6, p. 7)

Dr. Shivapour conducted a neurologic exam, which was essentially normal, except for significant difficulty with tandem walking. (Cl. Ex. 6, p. 7) His impression was posttraumatic headache and vertigo. (Cl. Ex. 6, p. 8) Further testing and a medication change were recommended. (Cl. Ex. 6, p. 8)

One of the additional consultations requested by Dr. Shivapour was a neuropsychologic assessment. This assessment was done by Robert D. Jones. His impression was as follows:

Based on the available information, our impression is that our findings are consistent with a mild post-traumatic brain injury syndrome. He has significant somatic concerns and affective symptoms, but these psychological factors are not likely to be the sole cause of his cognitive impairments.

His neuropsychological profile reflects verb mild inefficiencies in attention, speed of visual information processing, and verbal memory. Most cognitive abilities remain preserved, including orientation, arithmetic skills, fund of information, visual construction, spatial reasoning, constructional praxis, speech and language, and visual perception. Responses to the Beck Depression Inventory and the Beck Anxiety Inventory reflected moderate depression and anxiety, and responses to the MMPHI reflected somatic concern, symptoms of depression, and social isolation.

(Cl. Ex. 6, p. 9)

Jones recommended that the claimant be referred for neuropsychological rehabilitation and counseling. (Cl. Ex. 6, p. 9)

The claimant continued to be followed by Dr. Shivapour. In a January 13, 2004, report, Dr. Shivapour noted that the claimant had noticed improvement in the frequency and severity of his headaches, as well as difficulties with memory and concentration. (Cl. Ex. 6, p. 13) A neuropsychological assessment was done on March 30, 2004. The claimant told his evaluator, Daniel Tranel, Ph.D., that he had continued problems, with memory, divided attention, distractibility, slowed speed of information processing, and depressed mood. (Cl. Ex. 6, p. 20) Dr. Tranel administered a variety of tests and then concluded as follows:

The medical records indicate that Mr. Dittmar sustained a mild concussion and head injury in the 1/13/03 accident (LOC < 1 minute, brief PTA, negative neuroimaging findings). It is not unreasonable to surmise that he suffered from a postconcussive syndrome during the peri-acute epoch, and in fact, he was diagnosed with such a condition in our laboratory on 6/10/03, some five months after the accident. We would expect his symptoms to improve over time, and given the magnitude of the injury (mild), we would expect him to be at or near baseline by around one year status-post injury. Contrary to these expectations, the current evaluation indicated that he had declines in anterograde verbal memory and variable changes in psychomotor speed, compared to our previous evaluation. This trajectory is not expected of recovery from mild head injury, all things being equal. We have questions about the validity of the findings in the domains of memory and psychomotor speed, due to his having failed some of the validity indicators in the test battery.

With the exception of a decline in memory functioning and speeded information processing (in the aforementioned context), Mr. Dittmar performed within the expected limits of average to high average in virtually all other cognitive domains. It appears that Mr. Dittmar is experiencing a high level of emotional distress. The emotional distress, in conjunction with the reported pain, may account for some of the problems he experiences in his daily functioning. It is not, however, our impression that the dysfunction he experiences is secondary to any brain injury sustained on 1/13/03, per se. In fact, there is no clear evidence for cognitive impairment. Furthermore, Mr. Dittmar does not have any factors that would preclude him from gainful, full-time employment. From what his employer says, his job performance has been the same after the accident, as it was before. He apparently does not feel the same way about his job performance, however.

(Cl. Ex. 6, p. 23)

Dr. Tranel concluded that the claimant was at maximum medical improvement, from a cognitive perspective, in the sense that he did not have any lingering cognitive deficits that could be related unequivocally to his head injury. (Cl. Ex. 6, p. 24) The claimant did not have any permanent disability as a result of the January 13, 2003 accident, in terms of his cognitive functioning and behavior. (Cl. Ex. 6, p. 24)

The claimant was also evaluated in the balance disorder clinic at the University of Iowa. This evaluation was done on June 15, 2004. According to Deema Fattal, M.D., the claimant had a traumatic brain injury and traumatic benign paroxysmal positional vertigo, from which he had essentially recovered. (Cl. Ex. 6, p. 27) He still had symptoms, however, and needed to continue to see vestibular rehabilitation and do Brandt-Daroff exercises. (Cl. Ex. 6, p. 27) She also attributed some of his symptoms to anxiety and depression and that this needed to be monitored and treated. (Cl. Ex. 6, p. 27) Testing showed that the claimant had a “variable performance of balance,” which suggested to Dr. Fattal that being deconditioned and anxious was playing a role. (Cl. Ex. 6, p. 28) In a letter to the claimant dated July 1, 2004, Dr. Fattal told the claimant that his balance testing was normal except for some variation in performance due to anxiety. (Cl. Ex. 6, p. 30)

Dr. Shivapour next saw the claimant on November 24, 2004. At that time, the claimant said his symptoms had remained unchanged since last being seen by Dr. Shivapour in January 2004. He continued to have balance difficulties; decreased hearing in his left ear; tinnitus in his left ear and post-traumatic headaches. (Cl. Ex. 6, p. 33) Dr. Shivapour’s impression was traumatic brain injury, resulting in imbalance and post-traumatic headaches; anxiety and carpal tunnel syndrome. (Cl. Ex. 6, p. 34)

On January 3, 2006, the claimant returned to see Dr. Shivapour. By this time the claimant had been fired from his job at Menards and had enrolled in college. (Cl. Ex. 6, p. 41) Dr. Shivapour described his condition as traumatic brain injury with post-traumatic headaches, stable. (CL. Ex. 6, p. 41) He continued the claimant’s medication. (Cl. Ex. 6, p. 41) In a letter dated January 6, 2006, Dr. Shivapour opined that the claimant had reached maximum medical improvement regarding any neurological deficit related to the accident on January 13, 2003. (Cl. Ex. 6, p. 43) He further stated that he did not do impairment ratings and suggested that any impairment rating be done by Richard Neiman, M.D., a neurologist at Mercy Hospital in Iowa City. (Cl. Ex. 6, p. 43)

The claimant has also received extensive mental health treatment following his injury. This treatment has been provided by Michael C. March, Ph.D., who is affiliated with Cedar Centre Psychiatric Group, L.L.P. in Cedar Rapids, Iowa. Dr. March initially saw the claimant on June 7, 2004. The claimant told Dr. March that he was having difficulties with balance, coordination and memory and with constant headaches. (Cl. Ex. 7, p. 1) In addition, he said that he was having difficulty coping with stress, in general, in terms of the impact that his limitation had had on himself, his family and children. (Cl. Ex. 7, p. 1) Dr. March’s initial AXIS I diagnosis was adjustment disorder with depressed mood and he recommended psychological services to help the claimant learn behavioral interventions to manage the sequelae of his injury. (Cl. Ex. 7, pp. 2-3)

Dr. March saw the claimant regularly thereafter. On February 10, 2005, the claimant and his wife saw Dr. March for the first time following his termination from Menards. (Cl. Ex. 7, p. 14) The claimant was described as “quite anxious and discouraged.” (Cl. Ex. 7, p. 14) That session was devoted to helping the claimant with expression of emotion over his termination. (Cl. Ex. 7, p. 14) Dr. March also noted that the claimant historically had difficulties with managing his anger, tending to restrict his expression of this emotion thereby experiencing problems with indirect expression of frustration and anger. (Cl. Ex. 7, p. 14)

On September 6, 2006, the claimant was still having difficulties with balance and headaches and cognitive ability. (Cl. Ex. 7, p. 49) Dr. March did think that the claimant showed some improved stability in terms of mood and functioning overall. (Cl. Ex. 7, p. 49) His depression was in the mild to moderate range and he “continues on antidepressant medication.” (Cl. Ex. 7, p. 49)

The claimant had three independent medical evaluations. One of these evaluations was done by Dr. Neiman at the request of the claimant’s attorney. This evaluation was done on July 21, 2005. (Cl. Ex. 1, p. 1) Dr. Neiman reviewed the claimant’s medical history and conducted an examination. Dr. Neiman offered the following opinion:

At the present time he appears to have residual problems from the closed head injury. He has had some abnormal studies as far as the audiometric, initially was neuron-sensory hearing loss about 20 bb’s left. Distortion as afar as the hearing, but again, this has improved to some degree. The left ear is now the better hearing ear. The diagnosis of Dr. Kevin Carpenter was that of cochlear contusion, vestibular dysfunction. The Epley maneuver has healed. The headaches are on going since the head injury. I believe he would qualify of 13/13, class I, impairment of the whole person. Minimal equilibrium impairment. Limitation required of activities and hazardous surroundings. He certainly demonstrates a fair amount of instability, almost a class II. In addition, he has headaches on a daily basis. The level of impairment would be, in my opinion, of 9% of the whole person. . . .

As far as functional restrictions, he will have difficulty being around objects such as heavy machinery, high places or situation where balance would be a harm to his health. He will require treatment as far as the headaches. Although he talks about cognitive dysfunction, I am not impressed that this is an on going issue. I am not giving any rating for cognitive impairment. The symptoms I believe are related to a post concussion syndrome, contusion of the vestibular apparatus. This may not be only peripheral, but end organ process. There is [sic] no structural abnormalities that I can see, but it certainly does not preclude this diagnosis. He is capable of returning to work, but would certainly benefit from a less vigorous type work as far as lifting, bending which can aggravate his headaches.

(Cl. Ex. 1, p. 3)

The other two independent evaluations were done at the request of the defendants. David Durand, D.O., evaluated the claimant on August 24, 2004. (Def. Ex. E, p. 15) According to Dr. Durand’s note, the claimant complained of balance problems; headaches; and loss of hearing in his left ear. (Def. Ex. E, p. 15) Dr. Durand conducted a physical exam and also reviewed some of the claimant’s medical restrictions. Dr. Durand opined that the claimant was at maximum medical improvement. (Def. Ex. E, p. 16) He was assessed as having zero percent impairment and no restrictions were placed on his activities. (Def. Ex. E, p. 16)

On January 13, 2005, the claimant was evaluated by Henri A. Cuddihy, M.D., an associate clinical professor of internal medicine at the University of Iowa and medical director of UI Healthworks, North Liberty. He is a certified independent medical examiner. (Def. Ex. D, p. 14) Dr. Cuddihy obtained the following complaints from the claimant: balance; hearing distortion in the left ear; sensitive scar behind the left ear; cervical pain; headache; mood changes; and spotty vision. (Def. Ex. D, p. 11) Dr. Cuddihy reviewed the claimant’s medical records and also conducted a physical examination. In particular he noted that the claimant had a full range of motion of the cervical spine. (Def. Ex. D, p. 13) Dr. Cuddihy also conducted a neurologic exam. He observed that the claimant, when performing heel and toe walk, staggered significantly from side to side and forward to back, but recovered exceptionally well. (Def. Ex. D, p. 13) This behavior, in Dr. Cuddihy’s view, represented nonphysiologic behavior. (Def. Ex. D, p. 13)

Dr. Cuddihy’s assessment was closed head trauma with secondary vestibular symptoms and resolved post concussive syndrome; subjective sense of vestibular dysfunction; and subjective sense of altered quality of hearing in left ear. (Def. Ex. D, p. 13) Dr. Cuddihy would not address the claimant’s psychiatric issues, but did say that the claimant was at maximum medical improvement for his cervical complaints; vestibular complaints; laceration over the left mastoid; post concussion syndrome; and hearing complaints. (Def. Ex. D, p. 13) He concluded that the claimant did not have any ratable impairment. (Def. Ex. D, p. 14) He added:

Because of the nature of his complaints, he might be eligible to be rated on the basis of pain, however, due to his non physiologic responses to several tests, his history is not sufficiently reliable. On this basis he does not have a ratable pain condition and cannot be rated under that section of the Guides.

(Def. Ex. D, p. 14)

Dr. Angenend also offered an opinion concerning the claimant’s impairment. In a brief report dated March 3, 2005, she wrote as follows:

This note is in regards to my patient Michael Dittmar who suffered a closed head injury in January, 2003. At this point, he continues to have some symptoms related to his head injury. The symptoms include some balance difficulty, especially when he moves quickly. He continues to have intermittent difficulties with headaches and occasionally will feel some vertigo. He has some hearing loss in his left ear compared to the right. He has seen multiple specialists including neurologists, ear, nose and throat specialists as well as physical therapists. He has reached his maximal resolution of his symptoms, and I am suspicious that he will be left with these particular symptoms for the rest of his life.

(Cl. Ex. 12, p. 4)

The claimant made an application to the Division of Vocational Rehabilitation Services. In that application, it was indicated that the claimant was interested in opening up a bar/restaurant, but that he needed “something more sedentary.” (Cl. Ex. 8, p. 2) There was also a notation that the claimant enjoyed computer work. (Cl. Ex. 8, p. 2) He preferred not to work retail and did not want “physical type work.” (Cl. Ex. 8, p. 3) In a questionnaire, physical difficulties were identified to include balance, lifting and anything with climbing. (Cl. Ex. 8, p. 8) He said he has difficulties with concentration, coordination and memory. (Cl. Ex. 8, p. 8) He did not have a problem working with people but rather a difficulty controlling his emotion. (Cl. Ex. 8, p. 8)

As part of the evaluation by the Division of Vocation Services, the claimant had a psychological evaluation done by Dallas H. Bryant, Ed.D., a licensed psychologist. Dr. Bryant identified a number of assets the claimant possessed, to include a perceptual organization strength and multiple intellectual strengths, to include an ability to read and comprehend and to master specific math processes. (Cl. Ex. 8, p. 22)

A resume of the claimant is part of the record as defendants’ exhibit F. In that resume, the claimant indicates that he had a cumulative GPA of 3.85 while in high school and that he is presently attending Kirkwood Community College for an AA in Business and Finance. (Def. Ex. F, p. 17) He intends to transfer to Mount Mercy College in the spring of 2007 to receive a BA in Business with minors in Finance, Accounting, and Marketing. (Def. Ex. F, p. 17)

The record also contains a number of documents from the claimant’s personnel file at Menards. There are quite a few warnings concerning attendance and job performance. On January 31, 2005, according to a note prepared by the HR coordinator, Tracey Schatz, the claimant asked to adjust his “punch in” time as there had been too many people at the time clock when he arrived. (Def. Ex. F, p. 50) The claimant filled out the punch verification form to say that he arrived at 7:00 a.m. (Def. Ex. F, p. 50) The claimant’s supervisor reviewed a video tape and saw that the claimant walked into the store at 7:09 a.m. (Def. Ex. F, p. 50) He was terminated for falsifying company documents. (Def. Ex. F, p. 51)

Neither party requested taxation of costs.

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, 593 258 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. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 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 only issue in this case is the extent of the claimant’s industrial disability as a result of his injury on January 13, 2003. In his brief, the claimant asserts that there is overwhelming evidence in the record to establish that the claimant sustained a significant permanent injury, which in turn has resulted in significant industrial disability. In response, the defendants argue that the evidence overwhelmingly dictates that the claimant sustained no industrial disability due to his mild head injury of January 2003.

These widely divergent views on what the evidence shows in this case underscores the need to look at all of the factors of industrial disability. In a recent appeal decision, the interim workers’ compensation commissioner stated as follows:

The concept of an industrial disability loss in Iowa workers’ compensation law is quite similar to the element of tort damage known as loss of future earning capacity, even though the outcome in tort is expressed in dollars rather than as a percentage of loss. The focus is on the ability of the worker to be gainfully employed and rests on a comparison of what the injured worker could earn before the injury with what the same person can earn after the injury. Second Injury Fund 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. Berquist 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, Section 81.01[1] and Section 81.04[1]. The loss is not measured in a vacuum. The workers’ personal characteristics which affect the workers’ employability are considered. Ehlinger v. State, 237 N.W.2d 784, 792 (Iowa 1976).

Current earnings are merely one factor amongst many to consider in assessing industrial disability. An award of industrial disability benefits requires consideration of all the facts that bear on the injured worker’s actual employability. Guyton v. Irving Jensen Co., 373 N.W.2d 101, 104 (Iowa 1985). The focus is on the ability of the worker to be gainfully employed and rests on a comparison of what the injured worker could earn before the injury with what the same person can earn after the injury. Nelson, at 266; Anthes, at 270. Earnings of an employee are often fluid and change with little reason based upon the condition of the economy, business necessity, or other cause. Permanent work restrictions and other more enduring factors that stay with the injured worker deserve equal, if not greater consideration in awarding industrial disability benefits than present earnings. Draman v. Marla Conley, File No. 5010994 (App. May 9, 2006).

This guidance is particularly appropriate in this case. The focus is on the ability of this claimant to be gainfully employed and rests on a comparison of what he could earn before the injury with what he can earn after the injury. In answering that question, the following is significant:

1. The claimant suffered a trauma to his head that led to a myriad of symptoms such as lack of balance; headaches; left ear difficulties; and depression/anxiety.

2. There is no evidence that he had any of these symptoms prior to the injury of January 13, 2003.

3. These symptoms have persisted to some degree to the time of the hearing.

4. The medical records show that the claimant has consistently reported the same symptoms and has acknowledged improvement in some of those symptoms.

5. He has been prescribed and continues to take prescription medication to control his headaches and depression/anxiety.

6. The physical therapist who saw the claimant 100 times over a nine month period opined that he was significantly impaired with balance problems.

7. Although he did return to work at Menards following his injury and did not miss any time from work, his duties did change.

8. Dr. Neiman, a neurologist, has opined that he has permanent impairment and permanent restrictions.

The record does contain evidence that the claimant does not have impairment, notably the opinions of Dr. Durand and Dr. Cuddihy. All of the physicians, including Dr. Neiman, who evaluated the claimant on a one time basis have not had the ability to see the claimant over a long period of time. In reviewing Dr. Shivapour’s record, there is nothing to indicate that Dr. Shivapour thought the claimant was exaggerating or making up his symptoms. Dr. Angenend, the claimant’s personal physician, also saw the claimant on multiple occasions and offered her opinion that the claimant’s symptoms were likely permanent.

Although the claimant is in college and doing well, his future earnings are speculative. He earned an excellent salary while working at Menards. The evidence does establish that he likely did not lose his job at Menards because of his injury. However, the evidence also establishes that the claimant has permanent impairment and cannot return to work he has done in the past, such as stocking shelves, due to ongoing problems with balance. He is a middle aged worker at age 39 and is obviously well motivated to return to work.

After considering all of the factors of industrial disability, it is determined that the claimant has a 15 percent industrial disability as a result of his accident of January 13, 2003.

ORDER

IT IS THEREFORE ORDERED:

That defendants, Menard Inc. and Zurich Insurance, shall pay to the claimant, Michael A. Dittmar, 75 weeks of permanent partial disability benefits commencing on January 13, 2003;

That defendants 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; and

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

Signed and filed this _____30th____ day of October, 2006.

________________________

VICKI L. SEECK

DEPUTY WORKERS’

COMPENSATION COMMISSIONER

Copies to:

Matthew J. Petrzelka

Attorney at Law

Ste. A, 1000 – 42nd St. SE

Cedar Rapids, IA 52403-3902

Patrick J. McNulty

Attorney at Law

PO Box 10434

Des Moines, IA 50306-0434

VLS/tjr

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