File Number: 1059074
Decision Type: Miscellaneous
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:

TOBY BROWN, :

:

Claimant, :

:

vs. :

: File No. 1059074

QUIK TRIP CORPORATION, :

: R E M A N D

Employer, :

: D E C I S I O N

and :

:

CNA INSURANCE, :

:

Insurance Carrier, :

Defendants. :

______________________________________________________________________

This matter was remanded by the Iowa Supreme Court with a directive to determine the extent of Toby Brown’s permanent disability that resulted from the January 24, 1994 injury. The only issue is to determine the extent of permanent disability proximately caused by the injury.

FINDINGS OF FACT

Toby Brown is a 33-year-old high school graduate who took an additional one-year course at Hamilton Business College, obtaining a diploma in business administration. He served in the marines and also went to a six-month truck-driving course at Kirkwood College. He drove a truck coast-to-coast for approximately six months, but left this type of employment because of the need to drive in bad weather and the problems the large trucks had when there was a black ice problem. Toby described other employment he had up to the time he began working for the defendant employer on January 29, 1990, as a night assistant at Quik Trip. Quik Trip is a gas and grocery convenience store operating in several states. He worked primarily at the checkout register. He eventually was promoted to second assistant, a position he had held for over seven years at the time of hearing.


The events that led to this case are not seriously disputed. On January 18, 1994, while he was working the overnight shift, a shooting occurred in which a customer was shot in the upper thigh. Toby called the police and eventually had to go to the police station to identify pictures. Eventually he had to testify in a court proceeding on behalf of one of the people involved. The woman who was shot eventually sued Quik Trip. Toby acknowledged that the offense bothered him. There was blood everywhere – on the floor and merchandise - and he had to clean it up. He was worried about AIDS, but did wear gloves.


A second event occurred at a different Quik Trip store on January 24, 1994. While Toby was working with products, he was grabbed by the arm by a person and an object was stuck in his back. The robber requested Toby to turn over all the money. Toby thought it was a gun in his back, but never saw the object. The robber ordered Toby to get down before he blew his head off. Toby described how the robbery affected him. At the time of the robbery he was worried about his kids and about getting shot. He did not finish his shift.


Approximately a year passed before Toby sought care. In April he saw Wayne A. Alberts, M.D., because of having sores in his mouth which he had never had before the 1994 events.


On June 8, 1995, Toby went to John Heaton, a family counselor and therapist, for help. He said he still sees Mr. Heaton approximately one time a month. He originally was going once a week. He said this service benefits him and he desires to continue seeing Mr. Heaton.


In August 1995 Toby began seeing Alan F. Whitters, M.D., a psychiatrist, to whom Toby was referred by Dr. Alberts. The diagnosis was posttraumatic stress disorder. Toby continued to see Dr. Whitters, the last appointment was January 5, 1997, and Toby planned to continue seeing him. Toby indicated he saw the doctor monthly. The doctor prescribed medicine that Toby felt was beneficial.


Dr. Whitters causally related the treatment he gave Toby, in addition to treatment by Mr. Heaton, to the traumas while in the employment of Quik Trip and indicated that Toby is going to require ongoing future treatment. He opined that Toby will have a permanent impairment as a result of his condition, although it is anticipated that in a different career choice he may be very functional. Toby’s impairment exists in his ability to relate to others, especially customers in a competitive employment setting. Impairments by posttraumatic stress disorder are very difficult to quantify. Dr. Whitters explained that Toby has permanent restrictions to not work at night and that many of the exacerbations of his posttraumatic stress disorder are associated especially with African-American individuals who come into the store or even in social settings. He indicated Toby has been able, however, to continue working in present settings with certain handicaps which necessitate his having easy access to exits, etc. He explained that Toby will need ongoing medical treatment presumably for the rest of his life and will continue to require treatment with prescription medication such as his present regimen.


Toby will work any shift but an overnight shift. He gets jitters. He is afraid and his chest tightens especially when certain types of individuals come to the store. He particularly reacts to African-Americans, as one was involved in each of the incidents in January 1994.


Toby’s father passed away June 20, 1996, in an auto accident and Toby and his girlfriend came upon the accident. He was already in treatment before his father’s death and the death does not appear to have changed the course of Toby’s injury.


Toby had been in line to be promoted to a first assistant and had been a second assistant for over seven years. Shortly before the hearing Toby was told he is promotable but Quik Trip cannot do anything concerning that until they see what goes on with the workers' compensation hearing. The restrictions clearly make Toby less employable in the convenience store industry.


At the time of the hearing Toby was working the night shift, which is 1:00 p.m. to 9:00 p.m. Usually someone else was also in the store working at the same time. It is easier for him to work if he is not alone.


On cross-examination Toby acknowledged that he has looked for other jobs since the robbery. He described the efforts he has made. Toby was going to school at American Institute of Commerce, a business school. He had been there a little over one year and was working toward a computer programmer degree which takes two years. He had one and one-half years left, but can only take classes in the morning.


Defendants’ exhibit C is a report of John C. Brooke, Ph.D., a psychologist who performed a psychological evaluation of Toby on September 19, 1997, and wrote a report dated October 3, 1997. The report is six pages long. He concluded that he did not believe the work incidences of January 1994 caused Toby's current condition. He further indicated that although the altercation and robbery were undoubtedly stressful, Toby's personality style caused him to overreact to stress and his prolonged reaction to these incidences are reflecting his personality style more than the incidents. He disagreed with Dr. Whitters and indicated that he felt no further treatment was necessary for Toby's stress from the incidents of 1994; but that he thought any ongoing treatment seemed related to Toby's personality difficulties. He further believed that Toby has progressed as much as he is able from treatment, but he would expect Toby to have similar difficulties with feelings of insecurity and interpersonal problems in the future.


It is noted that the psychologist does not address the fact that there was apparently no prior treatment for Toby for any psychological disorder or condition and that everything seemed to occur after these incidences in January 1994. He does not address whether there is a material and substantial aggravation of any preexisting condition if such preexisting condition did exist, as the doctor seems to indicate, even though nothing was active.


Medical causation was not contested by Quik Trip on the issue of compensability. To the extent that there is a question of causation for disability, this analysis follows: Dr. Whitters, who worked with Toby over a period of time and is a psychiatrist, is the best qualified to determine causation. He has very good credentials. He causally related Toby's condition to incidents in 1994. The question arises as to whether the January 18 or January 24 incidences are the cause of Toby's condition or whether one or the other is the sole cause. The greater weight of evidence shows that the incident on January 18, 1994, was a stressful event to the Toby, but that as Dr. Whitters indicated, if that had only stood by itself it is very probable Toby would not have the condition he presently has. The event on January 24, 1994, was the event that pulled things together and was a very major and most substantial cause of Toby having the condition from which he currently suffers – a posttraumatic stress disorder, delayed. Dr. Whitters made the best analysis and the undersigned accepts his opinion as to Toby's condition and the causation of his condition to the events of 1994, the majority of which is to the event of January 24, 1994. The opinion of the psychiatrist, Dr. Whitters, carries substantially more weight than that from the psychologist, Dr. Brooke, Ph.D. I find that the injury of January 24, 1994, is a substantial factor in producing Toby’s current state of disability.


The next question is the extent of Toby's permanent disability. Dr. Whitters was unable to quantify impairment under the AMA Guides to the Evaluation of Permanent Impairment. There need not be a quantified impairment for industrial disability to exist. Toby had not advanced in his job since the January 24, 1994, incident. He had been told he is promotable. He held the second assistant job for seven plus years after moving from beginning employment to second assistant in a few months. Nothing in his personnel records would prevent him from having the opportunity to be first assistant. There is evidence that his refusing overnight work is a problem. Toby has a restriction not to work that shift because of the events and circumstances herein.


The evidence reflects that prior to the January 1994 events Toby was working either the overnight shift most of the time, or a night shift. There seemed to be no problem with his career progression until these events occurred. Toby indicated that a first assistant’s position would pay $6000 more per year. There is no contrary evidence to this from the defendants. Toby was making $8.31 per hour working 46 hours per week. If Toby had the first assistant position he would be making approximately $2.50 per hour more, an increase of 30 percent.


Toby’s disability is permanent and requires ongoing medical care. It has disrupted his career progression with Quik Trip due to his restriction against working all the shifts where Quik Trip needs employees and assistant managers of all levels to be on the job. He is not as flexible for scheduling as other employees. If promoted to first assistant, his earnings would increase by approximately 30 percent. There are no blemishes on Toby’s record with Quik Trip. With his course in business administration and his mature age, he would seem to be a prime candidate for promotion to first assistant manager and then on to manager. He is at the age when people typically lay or have laid the foundation for the remainder of their working lives. Toby’s career at Quik Trip has been stymied because of the restrictions from the injury. There is no indication that he is likely to advance further in the Quik Trip organization. He is intelligent and retrainable, however, as evidenced by the computer course he is successfully pursuing. The record is silent on what his prospects for employment and earnings may be outside the convenience store industry and his prior employments. I find that Toby has a 25 percent permanent loss of earning capacity as a result of the injury of January 24, 1994.

The »claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974).


The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).


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 Ry. Co., 219 Iowa 587, 258 N.W.2d 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 Serv. 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. Iowa Code section 85.34.


Dr Whitters established that the current disability was proximately caused by the January 24, 1994 injury. The evidence shows that Toby’s actual earnings are likely thirty percent less than they would be if the injury had not occurred and the restrictions had not been imposed. He can likely recover part of that loss through retraining into a different industry, the computer field. It will require an investment on Toby’s part of effort and money to retrain. The retraining process consumes considerable time. When all material factors of industrial disability are considered it is concluded that Toby sustained a twenty-five percent permanent industrial disability that entitles him under section 85.34 (2)(u) to one hundred twenty-five weeks of compensation payable at the stipulate rate of $233.51 commencing July 17, 1997.

ORDER

THEREFORE, it is ordered:


That defendants shall pay unto Toby one hundred twenty-five (125) weeks of permanent partial disability benefits at the rate of two hundred thirty-three and 51/100 dollars ($233.51) per week commencing July 17, 1997.


That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid.


That defendants pay interest pursuant to section 85.30 on all unpaid amounts of weekly compensation at the rate of ten percent per annum computed from the date each payment came due until it is actually paid. All payments are to be applied first to satisfying accrued interest.


That defendants shall pay the costs of this action, pursuant to rule 876 IAC 4.33.


That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 876 IAC 3.1.


Signed and filed this 29th day of August, 2002.

________________________

Mr. Thomas M. Wertz

Attorney at Law

PO Box 849

Cedar Rapids IA 52406

Ms. Deborah A. Dubik

Attorney at Law

111 E Third Street STE 600

Davenport IA 52801-1596