BEFORE THE IOWA WORKERS’ COMPENSATION …



BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER

______________________________________________________________________

:

RICKEY METZ, :

:

Claimant, :

:

vs. : File Nos.: 5037288; 5037289

:

QUARRY SERVICES, INC., : A R B I T R A T I O N

:

Employer, : D E C I S I O N

:

and :

:

GENERAL CASUALTY COMPANY OF :

WISCONSIN, :

:

Insurance Carrier, :

Defendants. : Head Note No.: 1803 ____________________________________________________________________

STATEMENT OF THE CASE

Rickey Metz, claimant, has filed a petition in arbitration and seeks workers’ compensation benefits from Quarry Services, Inc., employer, and General Casualty Company of Wisconsin, insurance carrier, defendants.

This matter came on for hearing before deputy workers’ compensation commissioner, Jon E. Heitland, on June 14, 2012, in Iowa Falls, Iowa. The record in the case consists of claimant’s exhibits 1 through 15; defense exhibits A through E; as well as the testimony of the claimant. Claimant’s Exhibit 16, a report by Lewis Vierling, dated June 26, 2012, was received after hearing by order of the undersigned.

ISSUES

The parties presented the following issues for determination in File No. 5037288 and File No. 5037289:

The extent of the claimant’s entitlement to permanent partial disability benefits.

The credits to which defendants are entitled.

The costs to which claimant is entitled.

FINDINGS OF FACT

The undersigned, having considered all of the testimony and evidence in the record, finds:

The claimant, Ricky Metz, testified that he was 57 years old at the time of the hearing. He was born in Fort Dodge and grew up there. He has spent some time in Texas where a sister lived, and had some employment there.

His education consists of attending school through the eighth grade, but dropping out in the ninth grade. He attributes his dropping out to his parents. He then entered the U.S. Marines for four years, from 1973 to 1977, serving at Camp Pendleton, California; the East Coast; Vietnam; Okinawa; etc. He received three months of training in the Marines as a construction draftsman, where he learned how to draw and read blueprints. He also learned how to interpret charts and graphs. He thinks most of this work is now computerized, but claimant does not own or know how to use a computer. He was able to use his training in the military in various construction jobs where he worked later.

Claimant has worked mostly in construction since his military service. After several years he began to feel the effects of this work on his body and looked for other jobs. He drove trucks for a time after leaving construction. He went to school to get a commercial driver’s license, and worked for Decker, CRST and other companies before working for Quarry Services, defendant employer, beginning in 2003.

For Quarry Services, claimant drove a “belly dump” truck, along with other vehicles. The business delivers rock to customers, mainly the cement plants in Mason City, Iowa, often making several trips per day. Claimant worked long hours. He also delivered crushed rock to farmers, and to highway construction sites. Delivery to the cement plants was over paved highways, whereas deliveries to job sites were on rougher roads which resulted in a bouncy ride.

In September of 2009, claimant was working with a mechanic on his truck. The mechanic asked claimant to put the truck into gear. Upon exiting the cab claimant slipped and fell. He tried to grab for the door to stop himself, but instead fell and hit upon the concrete. He fell about four or five feet from the high cab.

He immediately felt great pain in his left arm. He continued working, but was unable to use his left arm at all to put the tools away. He eventually reported the injury to his boss, Wayne Krug, who sent him to a doctor. He was first seen on October 13, 2009, and then was referred to Emile Li, M.D., an orthopedic surgeon in Fort Dodge, Iowa, who first saw him in November 2009. (Exhibit 2) The records of Trimark, Exhibit 1, show claimant was seen on four or five occasions before an MRI was done and claimant was referred to Dr. Li. Dr. Li told claimant the MRI showed a “massive” rotator cuff tear. Claimant underwent surgery on January 28, 2010, about four months after the injury.

Claimant also underwent physical therapy at Trinity Regional Medical Center at various times. (Ex. 4) After the first surgery in January 2010, claimant’s arm felt “great.” He thought he had completely recovered. Dr. Li released claimant on May 28, 2010, after his first surgery, with restrictions of not lifting over 25 pounds.

Claimant returned to work at his regular duties of driving a belly dump truck. He had talked to Lisa Zimmerman of General Casualty about modifying his duties when he returned so he could ease back into his regular duties. However, the employer did not honor his work restrictions or put him on modified duties, but instead made him perform his regular work.

Exhibit 7, page 10, is claimant’s time card for June 2010. It shows claimant worked more hours than were recommended by Dr. Li, who had restricted him to eight hours per day. Exhibit 2, page 32, is the work-related injury report from May 28, 2010, which shows a release back to modified duty and the lifting restriction. It does not show a restriction against working more than eight hours per day, but claimant testified he has a slip at home that shows that. When he returned to work, he commonly worked 10 to 12 hours per day.

In addition to driving the trucks, claimant was occasionally also called upon to do maintenance on the vehicles, or to deliver things besides rock. The employer had a mechanic, but claimant also did some of the maintenance. He drove the same truck pretty much every day.

On September 3, 2010, claimant was delivering rock to a farmer. He was helping to shovel out a fellow driver’s truck which had become stuck in gravel, and claimant reinjured his left shoulder. The left shoulder had been giving him problems throughout the summer, and on this date he injured it again.

Another surgery was set for October 22, 2010. Claimant continued to work until then, and had to drive one-handed to compensate for the pain in his left shoulder. When he would drive his truck over a ditch or over rough ground, he would feel pain in his left shoulder.

Claimant did not receive any payments from the insurer after he went back to work in 2010, and the reason was never communicated to claimant. Between his January 2010 surgery and being released back to work in May 2010, he received only sporadic payments. Claimant was compelled to sell his car and his guns to meet his bills. He had to pay someone to come to his house to change his bandages because he could not do it alone. He had to pay someone to do the housekeeping, snow removal, etc. as well because he was unable to do it himself due to his injury. He likes to ride motorcycles and owns one, but he has been unable to ride it because of his injury. He tried a month before the hearing, but found his arm pain would not let him ride. He had waited a couple of years after his injury to try to ride his motorcycle.

In June 2010, claimant went back to work full-time. He was taken off work again in October 2010, and had a second surgery in November 2010. He stated his left shoulder has never been right since the second surgery, in contrast to the first surgery. The second surgery did not improve the pain, but instead made everything worse. Before he felt like his arm was fixed, but now every movement is painful. It has been a year and a half since the second surgery, and there has been no improvement.

Claimant was taken off work in October 2010, about four months after returning to work. Exhibit 2, page 35, is the note from Dr. Li which says claimant should not operate company vehicles. This was due to the discovery of the re-tear of claimant’s left shoulder rotator cuff.

Claimant stated he would deliver these notes from Dr. Li to the employer, but Mr. Krug angrily told claimant if he could not drive, he was not needed there anymore. He was sent home and did not work for the employer after that day. Claimant testified the employer hired someone to replace him.

Claimant demonstrated he can lift his left arm only slightly above shoulder level. He has trouble doing things like reaching up to remove food items from a shelf. He is unable to reach behind his back very far, and has difficulty washing his back. If he holds his left arm up any higher than shoulder level, he can only hold it there a short time and it begins shaking. During physical therapy after his second surgery, he could tell his arm was not improving as it had before.

Following the second surgery, in November 2010, Dr. Li took claimant off work for over six months. He was concerned claimant might re-tear the shoulder again. On May 27, 2011, a year after the first surgery, Dr. Li released claimant back to work without restrictions to regular duty. (Ex. 2, page 41) Claimant testified Dr. Li was not able to understand claimant’s actual job duties. He felt Dr. Li was satisfied that claimant could move his arm at all, and was not concerned claimant was still limited in how much he could move his arm. Dr. Li told claimant he tore his arm even worse the second time.

Claimant does not feel he could return to work for the employer. He had trouble just driving his own truck to the hearing, and feels he could not drive a dump truck. He does not feel he could drive a semi or any large truck for any distance. He described trying to drive a semi with a damaged rotator cuff as requiring moving the steering wheel with one arm, with the other on the gear shift; with his left arm unable to make the large circular motion required to steer the large steering wheel. Claimant feels he is much more limited now after his second surgery than he was after his first surgery.

Claimant was earlier this year awarded Social Security disability benefits. Claimant has not looked for work since being released in 2011. He hoped to be rehired by the employer.

In June 2011, claimant hurt his right arm while mowing, when he tried to throw a tree branch into the river next to his yard. This resulted in surgery to claimant’s right shoulder. That injury is not part of these workers’ compensation claims. Claimant has not been released by Dr. Li for his right shoulder. Exhibit 2, page 46, shows claimant did a massive rotator cuff repair for the right shoulder.

Since his release by Dr. Li in May 2011, claimant has wanted to find a job. He “does not do poverty well,” and worked hard for the employer. He does not feel he could do construction draftsman work again, as he could not go out to job sites in hazardous areas, climbing ladders, lifting and carrying ,etc., which was part of that work. He has not used his draftsman skills for over 15 years.

In the past, he enjoyed riding motorcycles, and shooting pistols and rifles. He cannot hold a rifle steadily, and he cannot lift a pistol to aim it. The injuries have affected him in the sense he no longer has any spirit or drive. He can no longer enjoy things. At home, he is unable to do repairs or cleaning without difficulty. His sleep has been disrupted, saying “I haven’t had a night’s sleep since ’09; I flop like a fish all night long.” He estimates he gets up four or five times per night. He has to be in a recliner to be comfortable.

He has not tried to climb any ladders since the second surgery. He feels he could climb up a ladder but could not do anything once he was up there, as he could not use his arms. He has constant pain in his left shoulder. Claimant could not think of any job he has done in the past he could do today; including carpentry, oil field work, construction work, etc. He does not feel he can even hold a cordless drill.

On cross-examination, claimant agreed Dr. Li noted claimant felt 100 percent better after his first surgery, found him to be at maximum medical improvement, and returned him to full duty work without restrictions. Claimant also agreed he worked long hours between the two surgeries without complaint. Claimant reported discomfort to fellow workers, but did not ask for any special accommodation. He was not on any prescription pain medication during that period of time. He was released by Dr. Li, and was not treated by any other doctor up until his second injury.

On September 8, 2010, claimant saw Dr. Li’s assistant, and claimant declined work restrictions because he wanted to continue working. After the MRI, claimant saw Dr. Li again; then underwent his second surgery in November 2010. He reached maximum medical improvement (MMI) for that injury in May 2011; and between the injury and reaching MMI, claimant was not on any prescription pain medications. He agreed he was released to full duty work with no restrictions on May 27, 2011, effective May 31, 2011; and he has not seen a doctor for his left shoulder since then. He also agreed he did his functional capacity evaluation (FCE) while he was recovering from his right shoulder injury from throwing the tree branch. He agreed he had no mental disabilities, and can read and write. He does not feel he could lean over a table to do drafting work, but no doctor has told him that.

Claimant acknowledged he has not applied for any jobs since his release, but he did sign up with Job Service for unemployment benefits. Claimant stated he applied for some jobs, but he was only able to say he asked friends about any jobs available. He filled out no job applications. He has not applied for any jobs since his right shoulder injury because he is still under Dr. Li’s care.

He agreed he was physically capable of physical activity like throwing the tree branches into the river at the time of his right shoulder injury. Claimant was mowing that day but also hired others to mow on several occasions, and paid others to shovel snow as well. He paid them in cash and has no receipts. When he tries to ride a motorcycle, he is unable to hold his hands up to the handlebars. He rides with one hand in his lap to rest while keeping the other on the throttle.

Claimant was asked about Dr. Li’s records, which showed claimant’s range of motion in terms of degrees of movement. Claimant stated Dr. Li took those numbers off the physical therapy reports. Claimant stated he was right-hand dominant before his right arm injury. He is only on blood pressure medication today.

He receives $700.00 per month for his Social Security disability benefits. He plans to apply for jobs once he is released by Dr. Li, but he does not know what kind of jobs he might be able to do. He is willing to try various jobs. He acknowledges Dr. Li has not given him any left shoulder restrictions. He only has restrictions for his right shoulder.

On re-direct examination, he stated the Social Security examination recommended restrictions for his left shoulder as well. Claimant testified he tried to return to work for the employer and was willing to try to do his job, but was told he could not work with a CDL with a workers’ compensation injury.

He also stated his right shoulder, again not part of this claim, had been giving him pain even before the tree branch incident. He did not report this to his doctors because he thought the MRI had been for both shoulders; and since it only showed a left shoulder problem, he felt he was just overcompensating for the left shoulder. He would have to rest his right arm on top of his head while sitting in a recliner to relieve the pain in his right arm. Claimant was eventually diagnosed with a right rotator cuff tear, and he is still under Dr. Li’s care for that condition. Today, his right shoulder still gives him pain, and he has no strength or mobility in it. During treatment for his left shoulder, claimant asked Dr. Li for medication to help him sleep better.

On re-cross examination, claimant stated he did not remember his Social Security disability FCE and could not recall who conducted it.

In March 2012, the insurer made past-due payments to claimant and has continued to make voluntary payments.

Claimant underwent an FCE in January 2012, as part of his Social Security disability application, which established restrictions for his left shoulder of no ladder climbing, no crawling, and no lifting over 20 pounds occasionally. (Ex. 12, p. 37) The FCE concluded claimant was disabled.

Claimant met with vocational consultant, Lewis Vierling, in March or April 2012. He concluded claimant had an 87 percent loss of access to specific occupational categories for which claimant was previously qualified.

Scott Mailey conducted a vocational assessment of claimant in June 2012, shortly before the hearing. He concluded claimant had no loss of access and no loss of earning potential. (Ex. B, p. 5) Mr. Mailey relied on Dr. Li’s release of claimant without restrictions. Mailey also criticized the vocational report of Lewis Vierling as using an improper database, and for relying too heavily on claimant’s subjective complaints. (Ex. B, p. 4)

A rebuttal report was submitted where Mr. Vierling responded to Mr. Mailey’s report. Mr. Vierling explained the vocational evaluation field no longer relies on the Dictionary of Occupational Titles, which was used by Mr. Mailey, but now relies more on the O*NET system as a more realistic analysis of the modern job market. He criticized Mailey’s failure to personally interview claimant, as well as his failure to complete a transferable skills analysis. He also noted Mr. Mailey did not explain how he arrived at his conclusions.

Claimant was also seen by Jacqueline Stoken, D.O., for an independent medical evaluation. Dr. Stoken assigned a rating of permanent partial impairment of 19 percent of the left upper extremity. (Ex. 6, p. 13) Dr. Stoken also assigned work restrictions similar to those recommended by the Social Security disability evaluation.

Claimant was seen in September 2011, by Steven Ash, M.D. Claimant has no respect for Dr. Ash’s conclusions, which were that there was no relationship between claimant’s right and left shoulder injuries.

CONCLUSIONS OF LAW

The first issue in this case is the extent of the claimant’s entitlement to permanent partial disability benefits.

Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man."

Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).

Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34.

It is again noted that claimant’s right shoulder injury is not part of this action. Claimant’s industrial disability is to be assessed without regard to his right shoulder injury. Nevertheless, claimant has two significant left shoulder injuries.

He has had to undergo two surgeries. The first injury, on September 23, 2009, occurred when claimant fell while exiting his truck. Claimant landed on hard pavement, experiencing left shoulder pain. He later underwent surgery, and was returned to modified duty work, but the employer did not honor his restrictions, even after claimant made a request to do so through Lisa Zimmerman.

The physical demands of claimant’s work eventually resulted in a re-tear of his left shoulder rotator cuff, which had been successfully treated with the prior surgery. On September 3, 2010, while shoveling rock to help another driver free his truck from some mud, claimant re-injured his shoulder and had to undergo another surgery. This surgery did not provide long-term relief from his pain.

When claimant was restricted from driving trucks by his doctor, the employer abruptly terminated claimant’s employment because of his injury.

Claimant was eventually released to return to work without restrictions by Dr. Li, in spite of claimant’s complaints that the physical demands of the job caused pain. Claimant attempted to return to work for defendant employer, stating he wanted to try to drive a truck even with his left shoulder pain; but was told by Mr. Krug, defendant employer, his position had been filled and claimant could not be hired because he had a disability. When asked if claimant could ever return to work after his two left surgeries, Krug in his deposition responded, “If he checks yes on the box that he has a disability, there’s no chance he would come back to work.” (Ex. 15, p. 16)

Claimant testified he cannot return to truck driving as he would not be able to turn the steering wheel with his left arm while shifting with his right arm. The fact claimant’s injury has resulted in the loss of his job because of his inability to perform the work is a strong indication of disability. The fact claimant is not able to return to the field of truck driving, where most of his work experience lies, is also a strong indication of disability.

Claimant’s military experience, as a practical matter, does not offer any skills he can use to apply for jobs today. His training as a draftsman was many years ago, he has not used those skills for over 15 years; and much of that work is now computerized, and claimant does not possess computer skills.

Claimant has not sought other employment. However, it is noted he injured his right shoulder in July 2011, about two months after his release from treatment for his left shoulder. He underwent surgery on the right shoulder in September 2011. He remains under medical treatment for that injury, and offers that as the reason he has not yet looked for a substitute job.

Claimant worked long hours and showed a good work ethic when he was employed. He now is unemployed, and this harms him both financially and emotionally. He is also restricted in his daily life, and cannot do things around the house as he used to. He has had to forego hobbies, and his sleep is severely disrupted by his pain.

Although he has been released to return to work with no restrictions by Dr. Li, he has a functional capacity evaluation (FCE) restriction of not lifting over 20 pounds, along with no crawling, etc. Dr. Stoken has also imposed similar restrictions.

Mr. Vierling found claimant to have lost access to 87 percent of the job market formerly available to him. The Social Security disability evaluation found claimant to be totally disabled. Scott Mailey found claimant to have incurred no loss of access to the job market. However, Exhibit 16 shows that the DOT analysis used by Mr. Mailey is not as current as the O*NET analysis used by Mr. Vierling. In addition, Mr. Mailey relied heavily on Dr. Li’s conclusion, as well as that of Dr. Ash, that claimant did not need any work restrictions. It is found that conclusion flies in the face of the rest of the medical records, which show two serious shoulder surgeries as well as claimant’s credible description of ongoing pain, loss of motion, and impairment. To say claimant has no restrictions and no disability, in spite of the rest of the record, casts serious doubts on Dr.Li’s conclusions.

Greater weight will be given to the medical opinion of Dr. Stoken over Dr. Li. Greater weight will be given to the vocational opinion of Mr. Vierling over Mr. Mailey.

Claimant’s education is limited to the eighth grade, a severe handicap in today’s job market. His age of 57 also works against him in competing with younger, non-disabled workers when applying for jobs.

Based on these and all other appropriate factors of industrial disability; it is found claimant, as a result of his two left shoulder injuries, is permanently and totally disabled.

The next issue is the credits to which defendants are entitled.

Defendants asserted claimant was not owed any benefits after reaching MMI on May 28, 2011, and argued he has already been fully compensated. However, this decision finds claimant is permanently and totally disabled. Defendants will be given credit for any benefits previously paid, as with any award of industrial disability. Defendants have not made an overpayment.

The next issue is the costs to which claimant is entitled.

Claimant submitted a list of costs at hearing, totaling $2,426.84. Costs were designated as a disputed issue on the hearing report. Defendants did not address this issue in their post-hearing brief. Claimant’s costs will be paid by defendants.

In his post-hearing brief, claimant argues for penalty benefits. However, penalty benefits under Iowa Code section 86.13 were not designated as a disputed issue on the hearing report.

ORDER

THEREFORE, IT IS ORDERED THAT:

Defendants shall pay unto the claimant permanent total disability benefits at the rate of five hundred eighty-eight and 57/100 dollars ($588.57) per week commencing June 1, 2011, and during the time claimant remains permanently and totally disabled.

Defendants shall pay accrued weekly benefits in a lump sum.

Defendants shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30.

Defendants shall be given credit for benefits previously paid.

Defendants shall pay the claimant’s prior medical expenses submitted by claimant at the hearing.

Defendants shall pay the future medical expenses of the claimant necessitated by the work injury.

Defendants shall file subsequent reports of injury as required by this agency pursuant to rule 876 IAC 3.1(2).

Costs are taxed to defendants.

Signed and filed this ____26th_______ day of October, 2012.

Copies to:

Tito Trevino

Attorney at Law

1003 Central Avenue, Ste 801

Fort Dodge, IA 50501

trevino@

Jeffrey A. Baker

Attorney at Law

215 10th St, Ste 1300

Des Moines, IA  50309

jeffreybaker@

JEH/kjo

-----------------------

JON E. HEITLAND

DEPUTY WORKERS’

COMPENSATION COMMISSIONER

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