BEFORE THE IOWA WORKERS' COMPENSATION COMMISSIONER

BEFORE THE IOWA WORKERS' COMPENSATION COMMISSIONER
______________________________________________________________________
:
RICHARD NEILL, :
: File No. 5022699
Claimant, :
:
vs. :
: A R B I T R A T I O N
LEAR CORPORATION, :
: D E C I S I O N
Employer, :
Self-Insured, :
:
SECOND INJURY FUND OF IOWA, :
: Head Note No.: 1402.40; 1802; 1803
Defendants. : 1803.1; 3202
______________________________________________________________________ STATEMENT OF THE CASE Richard Neill, claimant, filed a petition in arbitration seeking
workers' compensation benefits from Lear Corporation, self-insured
employer, and the Second Injury Fund of Iowa, as a result of an injury he
allegedly sustained on June 11, 2003, that allegedly arose out of and in
the course of his employment. This case was heard and fully submitted in
Des Moines, Iowa, on May 22, 2009. The evidence in this case consists of
the testimony of claimant, Donna Neill, claimant's wife, and Rick Innis,
formerly human resource manager for Lear Corporation, and claimant's
exhibits 1 through 24, 26 through 27, 29 through 30, 32 through 36 and 39
through 44, defendant's exhibits A through I and defendant, Second Injury
Fund of Iowa's exhibits AA, CC, and EE through JJ.
ISSUES Whether the alleged injury is a cause of temporary disability for the
periods August 29, 2003 through January 18, 2004 and May 1, 2005 through
August 21, 2005;
Whether the alleged disability is a scheduled member disability or an
unscheduled disability;
The extent of claimant's disability;
Whether claimant is entitled to Second Injury Fund benefits and, if
so, the amount of benefits.
FINDINGS OF FACT The deputy workers' compensation commissioner having heard the
testimony and considered the evidence in the record finds that:
Richard Neill, claimant, was born in 1950 making him 58 years old at
the time of the evidentiary hearing. (Claimant's testimony) He is a high
school graduate and has taken several technical courses. (Exhibit 19; Ex.
8; Ex. 22; Ex. 24, page 1;Ex. 32; Ex. 6; Exhibit E, page 36; Exhibit CC,
page 2) He was in the U.S. Navy September 1969 through December 1971 where
he was trained as an electrician's mate. (Claimant's testimony; Ex. 22;
Ex. E, p. 36; Ex. 24, p. 1) Claimant's work history includes working from
1974 to 2001 as tool superintendent, machinist, inspector, trainer, truck
driver, and building maintenance supervisor at Gardner Denver Company
(hereinafter Gardner Denver). (Ex. 19, pp. 3-4; Ex. 22; Ex. 32, p. 7; Ex.
E, p. 36) He last earned $70,000.00 at that job. (Ex. 19, p. 4; Ex. D, p.
30; Ex. CC, p. 4) He left that job when the business closed. (Ex. 19, p.
4) Prior to 2002 claimant also worked at customizing and repairing
motorcycles, as a supervisor at tool and die companies, as a semi truck
driver and as a charter coach driver. (Ex. E, pp. 34-36)
Claimant began working for Lear Corporation, defendant-employer,
(hereinafter Lear Corporation) effective June 7, 2002 as a finish operator
earning $12.51 per hour. (Ex. 27, pp. 2-4) The job of finish operator
required, among other things that claimant stand 8-12 hours a day on
cement, tolerate repetitive gripping of hand tools and lifting a maximum of
20-30 pounds frequently. (Ex. 26) Claimant took a physical on June 12,
2002, that indicated he was able to work without restrictions. (Ex. 23,
pp. 1-2) He bid into the full-time job of service person and effective
September 9, 2002, began doing that job at a pay of $13.10 per hour. (Ex.
27, p. 4) Effective December 10, 2002, claimant's rate of pay was
increased to $13.52 per hour. (Ex. 27, p. 5) On January 6, 2003, claimant
began the job of maintenance supervisor, "Band 2" at Lear Corporation with
an annual salary of $41,000.00. (Ex. 27, p. 1; Ex. A, p. 1)
On March 18, 2003, claimant was seen by Mark Giovanelli, D.O., with a
complaint of an abrupt onset of pain in the right knee two days prior
noting no prior injury and the doctor sent him to the hospital for a DVT
(understood to be a deep venous thrombosis) check. (Ex. GG, p. 1) A DVT
check on March 18, 2003, showed no evidence of deep venous thrombosis.
(Ex. 2, p. 1) On March 19, 2003, Dr. Giovanelli made an assessment of
chronic knee sprain and strain and knee pain and ordered x-rays. (Ex. GG,
p. 1) X-rays taken on March 19, 2003, of the right knee were negative.
(Ex. 2, p. 2) Dr. Giovanelli made an assessment of chronic knee pain on
April 4, 2003, and ordered an MRI. (Ex. 2, p. 3; Ex. GG, p. 2) The MRI
was done on April 7, 2003, and was interpreted as showing a complex tear of
the posterior horn and body of the medial meniscus and on April 9, 2003,
Dr. Giovanelli referred claimant to Mark Mysnk, M.D. at The Steindler
Orthopedic Clinic. (Ex. 2, p. 3; Ex. GG, pp. 2-3)
Dr. Mysnk saw claimant on April 16, 2003, made a diagnosis of right
knee medial meniscal tear and discussed options of medication or surgery
and they decided on surgery. (Ex. 3, p. 1) On April 24, 2003, Dr. Mysnk
performed surgery consisting of right knee arthroscopy, partial medial and
lateral meniscectomies, and shaving the patella. (Ex. 2, p. 5) Dr.
Mysnk's post-operative diagnosis was right knee medial and lateral meniscal
tear and chondromalacia of the patella. (Ex. 2, p. 5)
Claimant's annual salary at Lear Corporation was increased to
$41,800.00 effective May 1, 2003. (Ex. A, p. 2) Claimant returned to
light duty accommodation work at Lear Corporation for about one month.
(Claimant's testimony)
On or about June 11, 2003, claimant sustained a stipulated injury when
he attempted to bend meshing by pushing on it with his left foot and
experienced pain in the left ankle and calf. (Ex. 1, p. 1; Ex. 20; Ex. 21)
He was seen by a doctor and then at a hospital emergency room on June 11,
2003, diagnosed as having a ruptured Achilles tendon on the left and
referred to Brent Overton, M.D., board certified orthopedic surgeon at
Steindler Orthopedic Clinic. (Ex. 1, p. 1; Ex. 2, p. 6; Ex. 13, p. 1)
On June 12, 2003, Dr. Overton saw claimant and took him off work.
(Ex. 3, pp. 2-3) Dr. Overton performed surgery on June 13, 2003,
consisting of open repair of the left Achilles tendon. (Ex. 2, p. 9; Ex.
F, p. 41) Dr. Overton's postoperative diagnosis was left Achilles tendon
rupture. (Ex. 2, p. 9; Ex. F, p. 41) Claimant's wife called The Steindler
Orthopedic Clinic on June 16, 2003, and reported claimant had a slight
fever and was slightly dizzy with headache in the morning and was told to
watch him and call back Thursday. (Ex. 3, p. 4) Jim Carter at Lear
Corporation called claimant on June 17, 2003, and sent him an email that
day providing claimant with email addresses of other persons at Lear
Corporation. (Ex. 29, p. 1)
In a letter dated June 18, 2003, to Don Taylor at Game Masters
claimant wrote that a job there selling guns, archery equipment and
sporting goods at Game Masters would be a "perfect job" reflecting his
first love. (Ex. 19, p. 4; Ex. E, pp. 32-33; Ex. AA, pp. 3-4; Ex. CC, p.
4)
Dr. Mysnk saw claimant on June 20, 2003, for follow-up of the right
knee "scope" and weight bearing that started to bother his right leg. (Ex.
3, p. 5) Dr. Overton saw claimant on June 23, 2003, for follow-up for the
left Achilles tendon repair, noted he had had "incredible difficulty with
ambulation," placed him in short-leg walking cast, instructed him to use
crutches and took him off work. (Ex. 3, p. 6) In emails on June 24, 2003,
and June 25, 2003, claimant gave individuals at Lear Corporation updates of
his treatment. (Ex. 29, pp. 2-4) On June 27, 2003, claimant had an
initial evaluation for physical therapy for the right knee. (Ex. 30, p. 1)
Claimant sent an email to Barb Pottorf dated June 29, 2003, regarding
sending medical records. (Ex. 29, p. 5) On July 1, 2003 claimant's salary
was stopped because he was on workers' compensation. (Ex. 27, p. 7) When
Dr. Overton saw claimant on July 21, 2003, for follow-up for the left
Achilles tendon repair on July 21, 2003, he removed the cast, placed him in
a Bledsoe boot and kept him off work because he was also having difficulty
with the right knee. (Ex. 3, p. 7) Claimant sent an email to Lear
Corporation dated July 22, 2003, giving an update on his condition. (Ex.
27, p. 8; Ex. 29, p. 6) In an email dated July 25, 2003 from Lori DeCoster
at Lear Corporation to claimant she wrote that she had received
notification from Dr. Overton and Dr. Mysnk regarding current work
restrictions and that he should report for light duty on July 28, 2007.
(Ex. 27, p. 9; Ex. 29, pp. 7-8)
Claimant had eight physical therapy sessions from June 27, 2003
through July 28, 2003. (Ex. 30, pp. 1-6) When Dr. Overton saw claimant on
July 28, 2003, for follow-up of the left Achilles tendon repair he reported
he was having a significant amount of pain and discomfort and the doctor
thought he might have CRPS, recommended he be seen by a pain specialist for
evaluation; and took him off work until the next appointment scheduled in
four weeks. (Ex. 3, pp. 7-9; Ex. 29, p. 9) Claimant was seen by Timothy
Miller, M.D. on July 29, 2003, who examined him, recommended medications,
discussed a lumbar sympathetic blockade which claimant and his wife were to
discuss and get back to the doctor and felt claimant could work at a desk
job with his leg elevated as described by Dr. Overton. (Ex. 4, pp. 1-2)
An email from Ms. DeCoster to claimant dated July 29, 2003, informed him
Lear Corporation could comply with the work restrictions by Dr. Mysnk