BEFORE THE IOWA WORKERS' COMPENSATION COMMISSIONER

BEFORE THE IOWA WORKERS' COMPENSATION COMMISSIONER
______________________________________________________________________
:
ROBERT BRIDGE, JR. : File Nos. 5010244
: 5010892
Claimant, : 5010246
: 5010247
vs. : 5012806
:
KARR TUCKPOINTING CO., :
:
Employer, :
:
and :
:
TRAVELERS INSURANCE CO. and : A R B I T R A T I
O N
COMMERCE & INDUSTRY :
INSURANCE COMPANY, : D E C I S I O N
:
Insurance Carrier, :
:
and : Head Note Nos.: 1100; 1402.30
: 1402.40;1402.50;
SECOND INJURY FUND OF IOWA, : 1403.30; 1803; 2206
: 2208;2209; 2803;
Defendants. : 3203; 4000.2; 4206
______________________________________________________________________ STATEMENT OF THE CASE Robert Bridge, Jr., claimant, filed petitions in arbitration seeking
workers' compensation benefits from Karr Tuckpointing Company and its
insurers Travelers Insurance Company and Commerce and Industry Insurance
Company and the Second Injury Fund of Iowa as a result of injuries he
allegedly sustained on June 17, 1999; May 17, 2002; July 18, 2002;
September 4, 2002; June 4, 2003; July 2, 2003; September 3, 2003; and
December 6, 2003, that allegedly arose out of and in the course of his
employment. This case was heard and fully submitted in Cedar Rapids, Iowa,
on November 29, 2005. The evidence in this case consists of the testimony
of claimant, William Karr, and Jack Geiger, and defendants' exhibits A
through C and joint exhibits 1 through 21. Unless otherwise indicated in this decision Travelers Insurance
Company will be referred to as Travelers and Commerce and Industry
Insurance Company and/or AIG will be referred to as Commerce and Industry. At the hearing, claimant's oral motion to dismiss File No. 5010245,
alleged injury date of September 4, 2002, was not resisted and was orally
granted. Evidence was taken and a hearing held on File Nos. 5010244;
5010892; 5010246; 5010247; and 5012806. ISSUES File No. 5010244 (injury date June 17, 1999, right shoulder): The extent of claimant's industrial disability; Whether claimant is entitled to penalty benefits under Iowa Code
section 86.13 and, if so, how much. File No. 5010892 (injury dates May 17, 2002 and July 18, 2002, left
leg): Whether claimant sustained an injury to the left leg on May 17,
2002, or July 18, 2002, which arose out of and in the course of
employment; Whether claimant's claim is barred for failure to give timely
notice under Iowa Code section 85.23, and if not barred; Whether the alleged injury is a cause of permanent disability
and, if so; The extent of claimant's scheduled member disability; Whether claimant is entitled to penalty benefits under Iowa Code
section 86.13 for failure to pay weekly benefits and, if so, how
much; Whether claimant is entitled to Second Injury Fund benefits and,
if so, the amount of benefits. File No. 5010246 (injury dates June 4, 2003; July 2, 2003; and
September, 3, 2003, bilateral carpal tunnel syndrome) Whether claimant sustained an injury on June 4, 2003; July 2,
2003; or September 3, 2003, which arose out of and in the course
of employment; Whether the alleged injury is a cause or permanent disability to
the right arm and, if so; The extent of claimant's scheduled member disability; Whether claimant is entitled to penalty benefits under Iowa Code
section 86.13 for delay in payment of benefits, failure to pay
more than 24.143 weeks of permanent partial disability benefits,
and failure to investigate the claim, and, if so, how much; and Whether claimant is entitled to Second Injury Fund benefits and,
if so, the amount of benefits. File No. 5010247 (injury date December 6, 2003, hearing loss and
tinnitus) Whether claimant sustained an injury on December 6, 2003, which
arose out of and in the course of employment; Whether the alleged injury is a cause of permanent disability
and, if so; The extent of claimant's disability; and Whether claimant is entitled to penalty benefits under Iowa Code
section 86.13 for failure to timely investigate the claim, to
timely pay permanent partial disability benefits, and to pay
more than 25.43 weeks of permanent partial disability benefits. File No. 5012806 (injury date September 3, 2003, Iowa Code section
85.21) Whether defendant Commerce and Industry is entitled to be
reimbursed by Travelers for payment of weekly and medical
benefits and independent medical examination costs paid for
injury date September 3, 2003 (carpal tunnel syndrome). FINDINGS OF FACT The deputy workers' compensation commissioner, having heard the
testimony and considered the evidence in the record, finds that: Robert Bridge, Jr., claimant, was born in 1959 making him 46 years old
at the time of the evidentiary hearing. He had a ninth grade education and
obtained his GED in April or May 2005. (Claimant's Testimony) Claimant's
work experience includes labor in construction work such as roofing,
building concrete walks, and building grain bins. (Claimant's Testimony) On May 25, 1983, claimant sustained an injury to his right knee when
he stepped in a hole while working for his employer at the time. (Exhibit
3, page 1) On June 1, 1983, W.J. Robb, M.D., diagnosed claimant as having
a partial tear of the medial meniscus of the right knee, took claimant off
work, and directed claimant to do seven to ten days of exercises. (Ex. 3,
p. 1) The tear was surgically repaired in arthroscopic surgery. (Ex. 1,
p. 2) Claimant was initially hired by Karr Tuckpointing Company (hereinafter
Karr) on July 8, 1984. (Ex. 5, p. 3) He began a second period of
employment beginning July 3, 1985. (Ex. 17, pp. 5, 65) Karr is in the
business of doing exterior masonry repair, primarily for commercial
properties. (Claimant's Testimony) Claimant started work at Karr as a
laborer, earning $5.50 per hour. (Claimant's Testimony) Claimant
eventually became a member of the bricklayers union. (Claimant's
Testimony) Claimant held several positions with Karr, including being a
working supervisor/foreman, teaching tuckpointing and stone repair, and
making sales. (Claimant's Testimony and Ex. 17, p. 65) The work of
tuckpointing requires the use of grinding tools, sand blasters, air
compressors, and masonry tools on a repetitive basis, and working on
scaffolding or in mechanical lift equipment. (Claimant's Testimony and Ex.
21) Claimant testified that he did not initially use hearing protection
devices but he later did. An updated "Personal Safety Procedures" states
all employees will wear a hearing protector when they are engaged in
grinding or sandblasting operations or in other situations where there was
a possibility of hearing damage. (Ex. 14, p. 6) On February 13, 1990, and
February 15, 1990, claimant had a physical examination that found no
evidence of disease and injury. (Ex. 13, p. 1) The results of a physical
examination on February 16, 1996, also found no evidence of disease or
injury. (Ex. 13, p. 2) On January 3, 1997, claimant passed a baseline
hearing test. (Ex. 5, p. 4) Claimant indicated at the January 3, 1997,
test that he had used firearms/guns in his lifetime. (Ex. 17, pp. 18, 21)
On June 17, 1999, claimant sustained a stipulated work injury to his
right shoulder. (Ex. 17, p. 58) Claimant continued to try to work and saw
a doctor in South Dakota and chiropractors but when he saw Brian Meeker, D.
O., on October 4, 1999, Dr. Meeker took him off work for an assessment of a
right shoulder rotator cuff tear. (Ex. 6, p. 1) Claimant was paid weekly
workers' compensation benefits for the period commencing October 4, 1999.
(Ex. 17, p. 64) Dr. Meeker scheduled claimant to have an MRI. (Ex. 6, p.
1) The MRI on October 7, 1999, showed a full thickness tear. (Ex. 5, p.
5) On October 8, 1999, Daniel Fabiano, M.D., recommended the right
shoulder be surgically repaired. (Ex. 3, p. 2) On October 21, 1999, Dr.
Fabiano performed surgery consisting of right shoulder arthroscopy with
extensive debridement, open acromioplasty and rotator cuff repair. (Ex. 3,
p. 2; Ex. 5, p. 6; and Ex. 17, p. 60) Dr. Fabiano's postoperative
diagnosis was right shoulder rotator cuff tear. (Ex. 5, p. 6) Dr. Fabiano
saw claimant for follow-up on October 18, 1999, and November 4, 1999. (Ex.
3, p. 24) On November 18, 1999, claimant was seen by Albert Coates, M.D., for
evaluation of his knees. (Ex. 3, p. 4) Dr. Coates found claimant had
degenerative changes, specifically on the right side, but changes on the
left as well. (Ex. 3, p. 4) Dr. Coates encouraged claimant to use
medication but offered no further treatment. (Ex. 3, p. 4) Dr. Fabiano saw claimant in follow-up for the right shoulder surgery
on December 3, 1999. (Ex. 3, p. 5) Claimant had physical therapy for the
right shoulder on December 6, 1999, and December 8, 1999. (Ex. 4, p. 1)
On December 8, 1999, claimant "took lay-off from work over [light] duty."
(Ex. 4, p. 1) Claimant was paid permanent partial disability benefits for
the period commencing December 9, 1999. (Ex. 17, p. 64) Claimant had
occupa