before the iowa workers’ compensation commissionerdecisions.iowaworkforce.org/2006/june/moore,...

BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER______________________________________________________________________

:ANTHONY MOORE, :

:Claimant, :

:vs. :

: File No. 5015543WILLIAMSBURG MANUFACTURING, :

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

: D E C I S I O Nand :

:CNA INSURANCE CO., :

: Head Note Nos.: 1108.50; 1402.20;Insurance Carrier, : 1402.30; 1402.40Defendants. :

______________________________________________________________________

STATEMENT OF THE CASE

Anthony Moore filed a petition in arbitration seeking workers’ compensation benefits from Williamsburg Manufacturing, defendant employer and CNA Insurance Co., defendant insurance carrier, on account of an injury, which he alleges to have arisen out of and in the course of his employment on October 15, 2003. This matter was heard by and fully submitted to deputy workers’ compensation commissioner Vicki L. Seeck on May 2, 2006, in Cedar Rapids, Iowa. The record consists of claimant’s exhibits 1-16 and 18; defendants’ exhibits A-N; the testimony of Anthony Moore; the testimony of Bryan Johnson; the testimony of Tarren Kopp; the testimony of Jeanette Bare-Moore; the testimony of Roger Richie; and the testimony of Lisa Paterno.

ISSUES

The parties submitted the following issues for determination:

1. Whether the claimant sustained an injury arising out of and in the course of his employment on October 15, 2003;

2. Whether the claimant is entitled to temporary total disability or healing period benefits from October 15, 2003 through February 26, 2006;

3. Whether the claimant is entitled to permanent partial disability benefits and if so, the extent of that entitlement;

MOORE V. WILLIAMSBURG MANUFACTURING

4. The commencement date for the payment of permanent partial disability benefits;

5. Claimant’s rate of compensation;

6. Whether the claimant’s claim is barred for failure to give notice pursuant to Iowa Code section 85.23;

7. Whether the claimant’s claim is barred by the statute of limitations in Iowa Code section 85.26;

8. Whether the claimant is entitled to any Iowa Code section 85.27 medical expenses; and

9. Whether the defendants are entitled to a credit for payments made pursuant to Iowa Code section 85.38(2)

The parties did stipulate that if the claimant is entitled to permanent partial disability benefits, those benefits are for industrial disability. Concerning rate, the parties agree that at the time of his alleged injury, the claimant was married and had five exemptions. The dispute is over the amount of the claimant’s gross earnings.

FINDINGS OF FACT

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

The claimant is 40 years old and was born on June 16, 1965. From 1980 through 1984 he lived at Boys Town in Omaha, Nebraska. He obtained a high school diploma and a vocational welding degree. He also took architectural drawing classes. He then enrolled at West Texas State, where he had a football scholarship. He left after one semester because he did not want to play football any longer. He denied ever having had a football injury.

After leaving college, the claimant worked for IBP in Amarillo, Texas, loading boxes of meat into semi-trailer. He then moved to Iowa City and worked for George’s Gyro Cart, making gyro sandwiches for sale. In 1991, the claimant moved to Des Moines and worked for a company called 3E, which was an electrical wholesale warehouse. The claimant worked in the warehouse, drove delivery trucks and worked at the sales counter. He moved back to Iowa City in 1997 and worked for Fareway at the meat counter in the Tama, Iowa store.

According to his answer to interrogatories, the claimant obtained work with the employer in this case through Cambridge Temp Agency in the summer of 2000. (Claimant’s Exhibit 1, page 9) Sometime in 2001, again according to his answers to interrogatories, the claimant was hired directly by the employer.


On July 7, 2002, the claimant testified that he had pain in the front part of his shoulder. There was no pain in the back of shoulder and no numbness. The claimant went to back to normal workdays and returned to full duties and had no symptoms or problems until August of 2003. He said that he was working on Station Eleven and that “we were behind.” He felt a pinch or something or a tingle in his shoulder. He testified that after the shift ended, he told his supervisor, Roger Richie, that he felt a strange pain in his shoulder. Richie then told the claimant that if it continued to bother him, to let Richie know.

The claimant then testified concerning some of the jobs that he was required to perform. The various jobs are identified by number preceded by the word “station.” On station 11, parts are inspected to determine if the welds were done properly. If not, the parts are pulled off the line so that the weld can be repaired. Every two hours an employee rotates on station 11 to actually do the welds that need to be repaired. The welding table is fully adjustable, but there is also an overhead rack that can be utilized to place the part for welding. The claimant testified that it was faster for him to use the overhead rack for welding as this allowed him to have 360 degree access to the part. Because the rack was overhead, the claimant worked overhead.

The claimant also briefly described station 5. Robot welding takes place at station five, but the claimant said he had to lift bins containing parts. There was a quota on station 5 and according to the claimant, the highest number he was ever able to do was 1500. The quota will be explained in more detail later in this decision.

The date of the claimant’s alleged injury was October 15, 2003. The claimant’s shift on that day started at 3:00 p.m. A shift is divided into four quarters, each of which is two hours long. For the first quarter, the claimant was assigned to the inspection job and was on the side of the line that takes a defective part off the line and gives it to a welder to repair. He went to take a part off the line and his arm gave out and he dropped the part. He grabbed his arm and the line stopped. He then asked his associate to get a lead hand. A call was radioed that someone got hurt. Richie came down and the claimant said “I hurt my arm.” Richie just stood there. The claimant then said he was calling a doctor and that he needed to see a doctor.

According to the claimant, Richie took him to his (Richie’s) office and the claimant called his doctor. The claimant said that Richie “didn’t offer not one thing.” The claimant did not ask to see the company doctor. He decided he would go straight to the doctor and deal with the paperwork later. The claimant said he called Dr. Burns, who was his physician and then the claimant called his wife. He then sought medical attention that day, but he does not know where.

When he finally saw Dr. Burns, he said the physician gave him “a bunch of choices” but he did not know exactly what was going on. The claimant was given a light-duty slip, which the claimant took to his employer. He talked with Lisa Paterno and was told that there was no work available with those restrictions. He then asked Paterno what to do next and she made a sarcastic comment about whether it was a


boxing injury. The claimant thought he told Paterno that it was a work injury. Paterno said she would check into the matter. The claimant insisted he never told Roger Richie he had an old football injury and that he never said he declined to fill out an accident report.

The claimant said he was referred to John Langland, M.D. According to the claimant, he told Dr. Langland that he had felt a strange pain he had not felt before. Dr. Langland told the claimant he had an overuse syndrome. The claimant had physical therapy. He went to see Dr. Burns on October 21, 2003, because he was still having trouble with his shoulder and he wanted more advice.

An MRI was done on November 26, 2003, and the claimant was informed that he had a torn labrum. His first surgery was on January 5, 2004. It was not successful. Two more surgeries followed and these too were not successful. The claimant received short-term and long-term disability. He was terminated by the employer because he was not able to perform his job and his FMLA and short-term disability had been exhausted.

Claimant’s Exhibit 15 is a fax that was sent to the employer on October 22, 2003, with a copy of Dr. Langland’s restriction for right arm work only. The claimant said his wife sent the fax. She also prepared his disability forms and he instructed her to put down that he had been hurt on the job.

The claimant insisted that the pain he felt on October 15, 2003, was different than anything he had previously experienced. This pain was in his back, behind his spine, and underneath his shoulder blade.

He received long-term disability benefits from the employer until sometime in 2006. He has applied for unemployment benefits.

On cross-examination, the claimant was first asked about some of the benefits he has applied for and in some cases received. He did not get unemployment benefits. He has not applied for Social Security Disability. He does not know who paid the premium for the short-term disability benefits he received. He claimed to not know what a premium was. He had family health insurance coverage through the employer until sometime in 2006 and his medical bills were paid by this health insurance.

He is presently in school studying criminal justice. He is getting good grades. He has not applied for any jobs and said he is a Mr. Mom, assisting his wife with childcare.

The claimant admitted that he has played both basketball and football and that his position in football was middle linebacker. He again denied that he ever had an injury while playing football. The claimant conceded that he had two workers’ compensation injuries while working for 3E and that he was also employed at one time by Des Moines Tent & Awning. He also attended college in Marshalltown while he lived


in Tama. He said that he did not work when he was attending school. He can use a computer and do all kinds of welding.

He was then asked about what his physicians told him about the ganglion cyst that was found in his shoulder. He admitted that the November 2003 MRI of his shoulder showed a ganglion cyst but he denied that he was told by Brian Wolf, M.D., his surgeon, that the cyst was present before October 15, 2003.

The questioning then turned to the way this injury was reported to the employer. The claimant insisted that he followed the proper procedures for reporting a work related injury and that the employer failed to do so for some reasons. He admitted that he did not fill out an accident report and that the employer did not provide any medical care. He did not call the employee hot line or contact an employee advocate about concerns over the handling of his injury. He does not recall filling out a form for long-term disability and he cannot remember any provision in that form that called for repayment of these benefits in the event he was paid workers’ compensation. He said that a fellow worker turned in his claim for short-term benefits to the human resources department. He was paid short-term disability benefits immediately. All the information he had from Dr. Burns indicated that his injury was work related.

One of the factual disputes in this case is when and where the claimant first received medical care for his alleged injury of October 15, 2003. He insisted that he saw a medical provider that day, perhaps he went to emergency room, but he is not sure where he went. He had no choice to but to drive to this unknown medical provider. He said he is “still tracking it down” but that he has been busy.

The medical records show that the claimant went to the emergency room at Mercy Hospital in Iowa City after he slipped on some grass and fell on his left shoulder while playing with his children. (Defendants’ Exhibit D, p. 35) He admitted that he did not tell Dr. Burns, Dr. Langland or Dr. Wolfe about this fall.

He was also questioned about a letter that his attorney wrote to Dr. Wolfe dated February 21, 2006, and in particular some of the representations that his attorney made about his job. (Cl. Ex. 9c, p. 1) He admitted that he would not have done repetitive work in completing up to 1700 parts a shift as he never did 1700 parts a night.

The record includes a report from Scott Neff, D.O, who did an independent medical evaluation of the claimant at the request of the defendants. On re-direct examination, the claimant testified that the examination did not even last five minutes and that Dr. Neff did not touch him.

Several witnesses testified on behalf of the claimant, but before their testimony is summarized, the medical records in this case will be reviewed in order to further detail the claimant’s alleged injury and his subsequent treatment.


On October 28, 2001, the claimant was seen by Curtis Steyers, M.D. at University of Iowa Hospitals and Clinics for what was diagnosed as a probable tendon sheath ganglion right dorsal hand. (Cl. Ex. 3b, p. 5) The history taken by Dr. Steyers indicated that the claimant had had the mass since at least October of 2001 and that there had been antecedent injuries to the area or penetrating trauma. (CL. Ex. 3b, p. 5) The ganglion was excised on January 10, 2002. (Cl. Ex. 3b, p. 6) A recurrent ganglion of the right wrist was excised on April 16, 2002. (Cl. Ex. 3b, p. 8) Dr. Steyers followed the claimant’s post surgical process and on June 3, 2004, he released the claimant for light duty on June 7, 2002 and full duty on June 21, 2002. (CL. Ex. 3b, p. 18)

As indicated previously, the claimant had a fall on his left shoulder on July 6, 2002. The following history was taken at the emergency room at Mercy Hospital in Iowa City:

Mr. Moore is a 37-year-old who presents to the emergency room complaining of pain in his left shoulder after falling earlier in the day at approximately 1700 on 07/06/2002. He said he suffered a direct blow to the tip of the shoulder when he slipped on some grass while running and engaged in play with younger kids. He is concerned that he didn’t break anything as he is taking off for Chicago later this morning to go to a funeral. He has no history of other injury to the shoulder. He denies any paresthesias extending down the arm.

(Cl. Ex. 3c, p. 1)

X-rays did not show any bony injury and the diagnosis was “contusion of the left shoulder involving the coracoid process and to a lesser extend [sic] the AC joint, and perhaps a first degree AC sprain may be present although this is minimal.” (Cl. Ex. 3c, p. 1) The claimant was given ibuprofen and was offered a work release, which he declined. (Cl. Ex. 3c, p. 1)

The claimant’s personal physician, Michael Burns, M.D., saw the claimant on October 16, 2003. According to Dr. Burns’ noted, the claimant had left shoulder pain. (Cl. Ex. 4, p. 1) Dr. Burns added: “hurt yest worse today no known injury crackles and pops.” (Cl. Ex. 4, p. 1) The diagnosis was shoulder impingement syndrome and biceps tendonitis and “probably 2° to rotator cuff injury.” (Cl. Ex. 4, p. 1)

Dr. Burns gave the claimant a work restriction but according to his note of October 21, 2003, his patient had been sent home as his employer was unable to meet the restrictions. (CL. Ex. 4, p. 3) The claimant still had aching in his shoulder and the diagnosis was shoulder impingement syndrome. (Cl. Ex. 4, p. 3) On October 31, 2003, the claimant was given an injection and it appears as if an orthopaedic and physical therapy referral would be made. (Cl. Ex. 4, p. 4)


The claimant did see John C. Langland, an orthopaedic surgeon with Steindler Orthopedic Clinic in Iowa City on October 22, 2003. Dr. Langland took the following history:

Tony is a 38-year-old gentleman who works for Williamsburg Manufacturing. He is here for evaluation of left posterior shoulder pain. He did not have any specific injury but while working one day he started developing posterior shoulder pain a few weeks ago. He got to the point where he really had a hard time continuing his job. It is mostly over the posterior aspect of the shoulder. He is also starting to feel some cracking and popping over the superior aspect of his shoulder. He did not have any specific event that happened. It just kind of crept up on him. His pain now is up to a 9 on a scale of 1-10. He got in to see Dr. Burns on October 16 and he’s been off work since that time. He’s been on some Celebrex. He also takes intermittent aspirin. He has not had any therapy, injections, surgery or bracing of the left shoulder. He denies any numbness and tingling in his hand.

(Cl. Ex. 5, p. 1)

Dr. Langland reviewed the claimant’s radiographic studies and thought the glenohumeral joint had the appearance of earth some inferior osteophytes or probably an old Bankart injury although the claimant had no history of dislocations. (Cl. Ex. 5, p. 2) The diagnosis was posterior shoulder pain that was most likely an overuse disorder from his activities at work. (Cl. Ex. 5, p. 2)

The claimant returned to Dr. Langland on November 28, 2003. Dr. Langland reviewed his MRI, which he thought might suggest a tear. (Cl. Ex. 5, p. 3) He also saw some small paralabral cysts and a 2 cm ganglion cyst in the spinal glenoid notch. (Cl. Ex. 5, p. 3) His impression was as follows:

Persistent left shoulder pain. I think he has a couple issues going on. He may have a labral tear. He definitely has a large spinal glenoid cyst. This might be compressing the suprascapular nerve as he has a little weakness on exam. If the suprascapular nerve is not working well he may be compensating by utilizing more persicapular muscle and that may be causing his inferior and medial scapular pain. I think it would be worthwhile to get some electrodiagnostic studies to see how well the suprascapular nerve is working. . . .

(Cl. Ex. 5, p. 3)

The EMG’s showed evidence of the suprascapular nerve. (Cl. Ex. 5, p. 4) Dr. Langland discussed either aspirating the ganglion cyst or surgery. (Cl. Ex. 5, p. 4) The claimant told Dr. Langland that he had been through this problem in the past with


ganglions in other sites and that they had not responded well to aspirations. (Cl. Ex. 5, p. 4)

The surgery was done on January 2, 2004. (Cl. Ex. 5, p. 4) On April 6, 2004, the claimant reported that his direct posterior shoulder pain and anterior pain had improved tremendously but that he was still having a lot of pain over the medial rhomboid area. (Cl. Ex. 5, p. 5) The claimant was reported doing well on February 17, 2004. (Def. Ex. F, p. 41) On April 30, 2004, the claimant’s pain was located in the supraspinatus fossa area and Dr. Langland called the pain “a little bit more migratory.” (Cl. Ex. 5, p. 6) A repeat MRI was scheduled. (Cl. Ex. 6, p. 6)

The MRI showed that the large supraglenoid cyst had resolved but there were still some small paralabral cysts and a question about the position of his anchors. (Cl. Ex. 5, p. 6) The claimant had a second surgery on May 11, 2004 to revise the previous SLAP repair. (Cl. Ex. 5, p. 9) On June 24, 2004, the claimant returned to see Dr. Langland with an exacerbation of left shoulder pain. (Cl. Ex. 5, p. 10). Dr. Langland wrote as follows:

Recurrent posterior left shoulder pain. There are some changes on his nerve conduction studies which are old and suggest a neck issue. We did find some abnormalities in his spinal cord. It is difficult to tell exactly what this is at [sic] it is extremely small. It was suggested by the radiologist that this may be a previous trauma, a syrinx or even the possibility something unusual such as MS. We are going to go ahead and have him see Dr. Garrett.

(Cl. Ex. 5, p. 10)

Dr. Langland saw the claimant on June 29, 2004 and reported that the claimant had “turned the corner” since he last been seen. (Def. Ex. F, p. 42) Most of his pain was activity related only. (Def. Ex. F, p. 42) More improvement was reported on August 10, 2004 and claimant had essentially full range of motion. (Def. Ex. F, p. 43)

On November 3, 2004, the claimant was seen by Edward G. Law, M.D., who is also affiliated with the Steindler Clinic. Dr. Law noted that the claimant’s post-operative course had been what he called “waxing and waning.” (Cl. Ex. 5, p. 13) Dr. Law’s impression was as follows:

The patient’s symptoms in my opinion could be coming from one of three things. One would be intraarticular degenerative changes becoming more symptomatic as noted on arthroscopy. A second could be some scarring around the bursa or even some low-grade chronic synovitis in the joint. The third possibility is that he has residual pain from his suprascapular nerve compression from the cyst and though the cyst has been decompressed that pain continues. EMGS do not show any evidence of nerve entrapment.


(Cl. Ex. 5, pp. 13, 14)

He recommended a diagnostic interaarticular injection. (Cl Ex. 5, p. 16)

Dr. Langland saw the claimant again on November 19, 2004. The claimant had had no relief of his pain in his shoulder although his shoulder was a little bit more mobile and looser. (Cl. Ex. 5, p. 15) Dr. Langland said that given the lack of significant pain relief with the shoulder injection, most likely the pain was external to the shoulder and may be nerve related or soft tissue related posteriorly. (Cl. Ex. 5, p. 15) He then added the following:

Currently Tony is working on a work-related connection. He stated today that he did have an episode of sudden onset of pain in his shoulder and was seen shortly thereafter in the ER. I reviewed a note from Dr. Burns who feels that this is work related as well. When I initially saw him that was my thoughts too. However, I felt it was more of probably a cumulative trauma as at the time that we discussed it it sounded like it came on over a period of several weeks.

(Cl. Ex. 5, p. 15)

In Dr. Langland’s notes, there is reference to the claimant seeing Tyson Garrett, M.D., who is a neurologist in Iowa City. He did see the claimant and authored a report to Dr. Langland dated October 6, 2004. Dr. Garrett reported that the claimant had played football as a young man and so he had a lot of neck flexion/extension but there was no severe neck injury with a stinger. (Cl. Ex 7, p. 2) Dr. Garret opined that the MRI findings were consistent with possibly an old spinal cord trauma from flexion/extension injury. (Cl. Ex. 7, p. 4) He found nothing to suggest a proximal radiculopathy and did not recommend further work-up on the claimant’s neck. (Cl. Ex. 7, p. 4)

The claimant was seen by Brian Wolf, M.D., an orthopaedic surgeon at University of Iowa Hospitals and Clinics on December 9, 2004. He took the following history:

Anthony Moore is a 39yo male who comes in for evaluation of left shoulder pain. This has been present for approximately 1 yr. He has previously been under the care of Dr. John Langland at Family Clinic who refers him today for an evaluation. Pt. was found to have shoulder pain on the left that was vague in nature starting in December 2003. He felt this was maybe aggravated with a lifting incident at work. His initial care and injury were not considered Workman’s Compensation although he now does have an attorney who is attempting to obtain Workman’s Comp. for his shoulder problems.

(Cl. Ex. 8, p. 1)

Dr. Wolf decided to have a repeat MR arthrogram of the left shoulder. (Cl. Ex. 8, p. 3) On February 14, 2005, the claimant had surgery for SLAP repair and labral


advancement for anterior glenoid full thickness cartilage loss consistent with a GLAD lesion. (Cl. Ex. 8, pp. 7-9) In a follow-up visit on April 7, 2005, the claimant still reported left shoulder pain. (Cl. Ex. 8, p. 9) He had good range of motion. (Cl. Ex. 8, p. 9)

The record then contains a series of letters between the claimant’s attorney and Dr. Wolf regarding some of the issues in this case. In a letter to Dr. Wolf dated June 22, 2005, the claimant’s attorney described the claimant’s job as follows:

Anthony’s job involved completing work on up to 1700 parts a night, six nights a week. His job consisted of building radiator supports from an assembly line, working at various stations, alternating positions with another worker as an inspector/checker who would inspect a part and then pull a defective part off the line, mark the areas that were defective and then stack the parts. As a Tig Welder, he would then take the stacked parts and put them on a table to be spot-welded. Sometimes the parts could be welded laying down and some of the time you have to lift the parts from the stack and stand them up and reach up to spot weld them and then put the parts back on the conveyor. He would have to stand during the entire shift.

(Cl. Ex. 9a, p. 1)

The claimant’s attorney then asked Dr. Wolf a series of questions, but he did not ask Dr. Wolf for his opinion concerning the medical cause of the claimant’s shoulder problems. Dr. Wolf then responded to that letter on July 12, 2005, but was not able to definitively assign restrictions or an impairment rating as the claimant was only three to four months after surgery. (Cl. Ex. 9b, p. 1)

A second letter was sent to Dr. Wolf on February 21, 2006, and he was again asked a number of questions, including the following question:

Assuming the history provided by Anthony is true – that he began to gradually develop symptoms in his left shoulder over a period of weeks in performing his job as a tig welder at Williamsburg Manufacturing, which job involved repetitive work in completing up to 1700 parts a shift, which symptoms gradually worsened over several weeks culminating in his experiencing very strong symptoms while working in his job on October 15, 2003, for which he thereafter sought medical treatment from you, and Dr. Langland and other medical providers –it is your opinion that the left shoulder injury which was diagnosed and treated by Dr. Langland, you and other medical providers, was a cumulative injury trauma caused by repetitive work activities at Williamsburg Manufacturing, or were the repetitive work condition a substantial contributing factor to the left shoulder injury?


(Cl. Ex. 9c, p. 1)

In response, Dr. Wolf stated: “With regards to the cause of his left shoulder problems, it would be my opinion that his repetitive work would aggravate and be a contributing factor for his left shoulder injury.” (Cl. Ex. 9d, p. 1) He then stated that the claimant had an impairment of 23 percent of the left upper extremity, which he converted to a 14 percent whole body impairment. (Cl. Ex. 9d, p. 1) He recommended that the claimant do no lifting with his left arm greater than 25 pounds and that he should not do any pushing or pulling activities with left and no overhead work. (Cl. Ex. 9d, p. 1)

A third letter was sent to Dr. Wolf on March 20, 2006, enclosing more records and a copy of the report of Scott Neff, D.O., who had recently done an independent medical evaluation. In response, Dr. Wolf wrote the following:

The SLAP injury that Anthony was treated for by Dr. Langland and the cyst that was present potentially was related to a fall in 2002, or due to repetitive work, as these can sometimes be degenerative-type tears in nature as opposed to traumatic tears in nature. The exact etiology of the SLAP is unknown and will be impossible to decipher. It is my understanding that Anthony improved after his fall in 2002 and did not have symptoms until the noted time of approximately October of 2003.

In our conversation, I did indicate that I felt that I felt that Anthony likely had a SLAP tear that developed prior to October of 2003 with an associated cyst. His work requirement potentially aggravated this pathologic situation in his shoulder causing him his pain and symptoms. This can be a gradual onset of symptoms over time.

(Cl. Ex. 9f, p. 1)

In a follow-up report dated April 13, 2006, Dr. Wolf stated: “Given Anthony Moore’s left shoulder problems, it would be my opinion that his repetitive work would aggravate his shoulder and be a contributing factor for his left shoulder symptoms.” (Cl. Ex. 9g, p. 1)

As indicated previously, the claimant was seen by Scott Neff, D.O., for an independent medical evaluation which was done on February 20, 2006. Dr. Neff reviewed the claimant’s medical records and in particular noted a fall that the claimant took on July 6, 2002. He made the following observation:

It should be noted that a fall on the shoulder, whether in a sports circumstance, in a personal injury circumstance, in a motor vehicle accident, or other circumstance, can result in significant soft tissue injuries, which are not diagnosable by plain x-ray. One of these is called a SLAP lesion whereby the biceps anchor, or biceps root is torn from its


attachment of the glenoid. Another soft tissue injury that can occur as the direct result of a fall on the shoulder is an injury to the anterior glenoid labrum, or the so-called Bankart lesion. A Bankart lesion usually occurs with shoulder dislocation, but it can occur without formal dislocation of the joint.

(Def. Ex. I, p. 48)

Dr. Neff was also under the impression that the claimant had told co-workers that his shoulder had been bothering him and that it started a few days ago at home. (Def. Ex. I, p. 48) Dr. Neff also believed that the claimant told these co-workers that his shoulder would give him problems once in a while and that he had an old football injury. (Def. Ex. I, p. 48)

According to Dr. Neff’s report, he personally examined the claimant and that he did in fact “touch” the claimant, contrary to the claimant’s testimony. (Def. Ex. I, p. 52) Dr. Neff opined that the claimant had osteoarthritis of the left glenohumeral joint. He stated:

[I]n my opinion, Mr. Moore’s condition is not causally related to his work activities that he performed at Williamsburg Manufacturing. The lesions in his shoulder were not caused by, nor were they substantially aggravated by these work activities. This patient’s symptoms may have been made more aware to him by this activity, but that does not mean that the underlying condition was aggravated, accelerated, or lightened up. The findings on MRI workup, in October 2003, spinogelnoid ganglion cyst and the Bankart, were not caused by work, aggravated by work, or accelerated or lightened up by work.

If, indeed, his job involved lifting of parts and repetitive activity involving both arms, it might be reasonable to assume that the alleged circumstance if, indeed, due to “cumulative trauma” would be bilateral.

(Def. Ex. I, p. 53)

The record also contains a handwritten letter from Dr. Burns dated November 17, 2004. He states:

Based on my knowledge of this patient’s history, the timing of his complaints of left shoulder pain, and the potential precipitating events, I believe it is most likely that his repetative [sic] overhead work was a significant factor (probably the most significant factor) in his symptoms over the past 13 months.

(Cl. Ex. 4, p. 9)


Now that the medical records have been reviewed, the testimony of the witnesses will be summarized. Bryan Johnson testified on behalf of the claimant. He is a student at Kirkwood Community College and is presently employed by McDonalds. He was previously employed by Williamsburg Manufacturing. His job was to watch over the “drill line.” He knows the claimant and appeared as the result of being issued a subpoena.

According to Johnson, workers on Station 11 inspect and re-work welds and then send the parts to the drill line. The process involves flipping the parts to check the welds and then take any parts off the line if the welds need to be fixed. On the day of the claimant’s alleged injury he saw the claimant at the beginning of the shift. He did not see the claimant get hurt. He heard about it after the fact. He asked Roger Richie about it and Richie said that Anthony hurt his arm and left. On cross-examination, Johnson said that Richie never told him how the claimant hurt his arm.

Tarren Kopp testified on behalf of the claimant. He is a quality technician for the employer. He was asked about the job at station 5, which is where there is a quota. According to Kopp, the quota on station 5 is 1000 parts per shift. He could personally put out 1200 to 1300 hours per shift. He said that the person he rides to work with could put about 1700 parts per shift.

Kopp never heard the claimant complain about physical problems before his alleged injury. On October 6, 2003, he was working with the claimant on the line at station 11, which is where the parts are inspected. He said that the claimant let go of or dropped a part and said: “I think I hurt my shoulder.” Kopp told the claimant to call the lead hand and that the claimant did so.

Kopp indicated that some of the repair welds that need to be made are “head high.” He described the jobs as constant and repetitive and that at station 5, an individual would be standing and constantly moving back and forth.

On cross-examination, Kopp conceded that he could not remember exactly what the claimant said when he dropped the part. On re-direct he testified again concerning what the claimant told him and this is his testimony: “I think I hurt my shoulder or something along them lines.” He said that the claimant was holding his left shoulder up and was not moving it.

Jeanette Bare-Moore testified on behalf of the claimant. She is the claimant’s wife and has known him since 1988.

She remembers that the claimant did fall on his left shoulder on July 7, 2002. He came home and said he fell and that he went to the emergency room as a precaution. He never had any further complaints following that fall and that he did go to the funeral in Chicago. She did not go with him.


On October 15, 2003, Jeanette left home to pick up their children. She got home between 5:00 p.m. and 6:00 p.m. There was a message on the phone that the claimant had hurt his arm and was leaving to go see the doctor. She said that Dr. Burns is their family doctor and the claimant saw him the next day.

She knew that the claimant made an application for disability benefits and she is the person who actually filled out the form to file for those benefits. She read the questions to the claimant and he told her what the answers were. She in turn wrote out the answers on the disability benefits form. On cross-examination, she said that once she filled out the form, it was her husband’s responsibility to turn the forms in.

Roger Richie testified on behalf of the defendants. He is a shift leader and has worked for the employer for eight years. He was the claimant’s supervisor in 2003. He has personally performed all of the jobs that the claimant did during his tenure with the employer.

If an employee has an injury, the employer’s policy is that the injury must be reported immediately to the shift leader. The shift leader in turn does an accident investigation and fills out a report. At the time of the claimant’s alleged injury Richie was supervising 30 employees. He said that he sees all of these employees and speaks to them on a daily basis. He also testified that if an employee is dissatisfied with him that the employee can go above his head to human resources or the production manager or the general manager as well as health and safety. There is also an employee advocate and a toll free number that is an employee hot line.

He was then asked about the quotas for second shift in 2003 and on station 5, the quota was 1000 pieces per shift. If the claimant worked alone, he would generally be below this standard. At no time did the claimant ever do 1700 or 1300 pieces per shift. He keeps statistics that measure worker productivity and he had conversation with the claimant about concerns over productivity and quality. He was then shown claimant’s exhibit 10B, which is the job description for a welder in the radiator support department. He said that this job description contains a requirement that the worker be able to lift repetitively up to 50 pounds. This does not apply to Tig welding, which is what the claimant did. The maximum weight of the welded part that the claimant would handle is 14 pounds.

Richie then described the various jobs done in his department. Station 5, which is also called outer-post, is a welding station, although the actual welding is done by robots. The worker positions the parts to be welded and then closes a curtain. The welding is done and the part is removed. The heaviest component is 21 pounds. The claimant would have performed that job. Station 11 is the check and weld repair station. Here the parts are inspected for the welds. The part is not actually lifted during the inspection process. The welding repair is also done here and Richie agreed that there is an upper shelf on the welding bench that a worker might elect to use when repairing a weld. Three people work on station 11 and are rotated every two hours.


There is also an embosser position. This requires a worker to stack and slide bundles into a machine to be stamped. The bundles weigh 30 pounds maximum. The claimant only worked this job once a month. There are also two other jobs that were robot operated cells known as cross brace and upper tie bar.

One of the factual issues in this case raised by the claimant is the accuracy of defendants’ exhibit K, which purports to show how the job at station 5 is performed. Richie testified that even though the individual shown on the tape actually doing the job was a new employee, it only takes two hours to become fairly proficient at the job and that the tape is an accurate presentation of the job.

Richie denied that the claimant ever complained about his shoulder before October 15, 2003. On that date, the claimant and Richie were working second shift. He said that he was doing his routine “sweep” and saw that a basket of parts was low. He stopped to talk to the claimant and the claimant told him that “his shoulder was bothering him” and that this problem had started at home. Richie moved the claimant to station 11 and instructed him that all he was to do was inspect and only to use his right arm. He also told the other workers that he did not want the claimant to rotate into the welding part of the station 11 job.

A few hours later, the claimant waved Richie down and said that his shoulder was bothering him and that he did not think he could continue. Richie asked the claimant what he wanted to do and the claimant said that he wanted to call his doctor, which he did. There was no indication from the claimant that this was a work related injury. Richie said that if he had had any information that the injury was work related, he would have filled out and accident report and sent the claimant to the emergency room in Marengo, Iowa, if necessary, or performed first aid and sent the claimant home. He denied that any lead hand ever contacted him about the claimant being injured.

On cross-examination, Richie denied that he had had conversations with the claimant prior to October 15, 2003, about his shoulder. He never moved the claimant to an easier or different job before October 15, 2003. He said that the claimant left at 7:30 p.m., which was about 4 and ½ hours after the shift started. He said that he and the claimant did joke with each other about the injury being from tennis or football, but that neither of them took that seriously.

On re-direct examination Richie said that the only thing that the claimant told him was that he was sore. He did not ask to see the company doctor.

Lisa Paterno testified both in person and by deposition on behalf of the defendants. She is the Human Resources Coordinator. Among her job duties are handling benefits, FMLA, disability and workers’ compensation claims. As far as workers’ compensation claims are concerned, she arranges the doctors’ appointments and provides information to the workers compensation insurance carrier.


The employer has a policy that requires all work injuries are to be reported immediately. If an employee is dissatisfied with human resources personnel, he or she can contact an employee advocate for assistance. The employer has an open door policy and the employee advocate can help an employee determine what steps need to be taken to get a given problem resolved.

According to Paterno, all employees are given an employee handbook at the time of their orientation which is designed to educate them on the employer’s policies. The employer has a long-term disability and short-term disability plan. The short-term disability plan is 100 percent funded by the employer and the employer pays 100 percent of the premiums for the long-term disability plan. A short-term disability claim form is provided by Human Resources (HR) personnel and has three parts. One part is filled out by the employee; one part is prepared by the employer; and the third part is for HR to complete. The employee is given the employee section and doctor section and is told to have the doctor fax his or her form to UNUM. The employee is told to mail his or her part of the form directly to UNUM. HR would prefer that neither the doctor form nor the employee form be brought back to the employer. HR does not review either the doctor or employee part of the form. Short-term disability benefits would not be paid if there was a workers’ compensation claim for the same disability.

Paterno identified Defendants’ Exhibit M as a portion of the associate handbook. On page 2 of Exhibit M, it states that short-term disability is 100 percent funded by Williamsburg Manufacturing. On that same page is a statement that 100 percent of the premiums for long-term disability are paid by Williamsburg Manufacturing. Defendants’ Exhibit N is pages 2, 3 and 9 from the UNUM Provident Summary Plan Description for short-term disability. According to Exhibit N, short-term disability is funded 100 percent by the employer and does not cover occupational illness or injury.

On cross-examination, Paterno testified that HR had received no indication from Roger Richie that the claimant had a work-related injury. The employer’s first knowledge that the claimant was making a workers’ compensation claim was when the employer was contacted by the claimant’s counsel in October 2004. When Paterno spoke to claimant’s counsel on October 28, 2004, she told him that no workers’ compensation claim had been opened up and that the employer was not aware that the claimant was making a workers’ compensation claim.

Paterno then testified that UNUM does not pay short-term disability or long-term disability if there is a workers’ compensation claim and that should disability benefits be paid on a claim that is later determined to be work related, the employee would be obligated to repay those disability benefits.

Paterno was asked about claimant’s exhibit 3, which is a copy of the claimant’s application for short-term disability benefits. This form was brought to Annette Strasser, another HR employee. Paterno agreed that the form indicates that the claim is work related.


The deposition of Lisa Paterno was taken on April 19, 2006 and is part of the record as claimant’s exhibit 18. Paterno testified that if something is work-related, that the employee is sent to University of Iowa HealthWorks. (Cl. Ex. 18, int. p. 7) This procedure was followed when the claimant had a prior problem with his hand. (Cl. Ex. 18, int. pp. 10-19)

Concerning the October 15, 2003, incident, Paterno said that the disability claim form – the employee’s part and the doctor’s part—were dropped off at the HR office by Rudy Hyde. (Cl. Ex. 18, int. p. 24) Annette Strasser took the forms from Hyde. (Cl. Ex. 18, int. p. 24) Paterno said that she did not see any doctor’s reports indicating that the claimant’s condition was work related until after the petition was filed. (Cl. Ex. 18, int. p. 30) Strasser never told Paterno about the contents of the claimant’s disability application. (Cl. Ex. 18, int. p. 36)

Paterno said she did have a conversation with Richie about whether the claimant being off work was work related. (Cl. Ex. 18, int. p. 42) Richie told her “no” in response to her question about whether the claimant turned this in as work-related. (Cl. Ex. 18, int. p. 41)

On cross-examination by defense counsel, Paterno indicated that UNUM did not contest the short-term disability claim as being work related. (Cl. Ex. 18, int. p. 47) The following exchange then occurred:

Q. Okay. Let me ask you that. Do you know if anybody reviewed this information – and that’s Exhibit 6 – regarding the UnumProvident disability claim that Mr. Hyde would have dropped off on behalf of Mr. Moore?

A. Yeah. I know that no one did review that information. Annette Strasser received it, faxed it, and put it in the file, and did not read it. I know that because I talked to her about it.

(Cl. Ex. 18, int. p. 49)

Paterno reiterated that neither she nor Strasser read this form until after the “case” had been started. (Cl. Ex. 18, int. p. 50)

There was another question concerning the submission of the short-term disability form. The witness answered as follows:

A. She faxed the form as a favor to Mr. Moore. It was dropped off by his coworker and friend, Mr. Hyde. And we typically do not receive these forms in our office. It’s very rare for them to come back to us. They’re usually submitted by the employee and the physician and it’s not our job to review these forms because we don’t determine eligibility for short-term disability. And it’s not Ms. Strasser’s job or mine to review these forms because we don’t usually even see these.


So she faxed the form to UnumProvident because that’s what she was supposed to do. She could have given it back to Mr. Hyde and said “Take this back to Anthony. He needs to fax it in.” She faxed it in as a favor, and she filed it in the file, and neither one of us looked at the form. We don’t review these. We don’t even want the health information that’s in there, because that’s for UnumProvident’s eyes.

(Cl. Ex. 18, int. pp. 52, 53)

Claimant’s exhibit 10(e) is a copy of the UNUM disability claim form. On the employer’s statement, Annette Strasser signed and dated the form on October 23, 2003. (Cl. Ex. 10f, p. 1) She checks “no” to the question of whether the claim is the result of a work-related injury or sickness. (Cl. Ex. 10f, p. 1) Dr. Burns signed the physician’s statement on October 25, 2003, and checked “unknown” to the question of whether the accident or sickness was related to the patient’s employment. (Cl. Ex. 10f, p. 2) The claimant’s form shows that the claimant checked “yes” to the question of whether the disability is related to employment and added this description of how the injury occurred: “left backside of shoulder –painful when lifting—noticed pain about 2 months ago, continued to get worse until it needed medical attention.” (Cl. Ex. 10f, p. 3)

The claimant’s employment was terminated on October 25, 2004. (CL. Ex. 10j, p. 1) The reason was that his FMLA and short-term disability were exhausted and there was no prognosis for his return to work. (CL. Ex. 10j, p. 1)

The deposition of Rudolph V. Hyde was taken on April 19, 2006, and is part of the record as defendants’ exhibit L. He is presently employed by Williamsburg Manufacturing as a TIG welder. (Def. Ex. L, int. p. 3) On the day of the claimant’s alleged injury, Hyde observed the claimant walking out with Roger Richie and “he had his shoulder limped over.” (Def. Ex. L, int. p. 7) Hyde later asked Richie what happened and Richie said that, “Tony had hurt his shoulder.” (Def. Ex. L, int. p. 16)

CONCLUSIONS OF LAW

The party who would suffer loss if an issue were not established ordinarily has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 6.14(6)(e).

The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it both arose out of and in the course of the employment. Quaker Oats Co. v. Ciha, 552 N.W.2d 143 (Iowa 1996); Miedema v. Dial Corp., 551 N.W.2d 309 (Iowa 1996). The words “arising out of” referred to the cause or source of the injury. The words “in the course of” refer to the time, place, and circumstances of the injury. 2800 Corp. v. Fernandez, 528 N.W.2d 124 (Iowa 1995). An injury arises out of the employment when a causal relationship exists between the injury and the employment. Miedema, 551 N.W.2d 309. The injury must be a rational consequence of a hazard connected with the employment and not merely incidental to


the employment. Koehler Electric v. Wills, 608 N.W.2d 1 (Iowa 2000); Miedema, 551 N.W.2d 309. An injury occurs “in the course of” employment when it happens within a period of employment at a place where the employee reasonably may be when performing employment duties and while the employee is fulfilling those duties or doing an activity incidental to them. Ciha, 552 N.W.2d 143.

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. George A. Hormel & Co. v. Jordan, 569 N.W.2d 148 (Iowa 1997); Frye v. Smith-Doyle Contractors, 569 N.W.2d 154 (Iowa App. 1997); Sanchez v. Blue Bird Midwest, 554 N.W.2d 283 (Iowa App. 1996).

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. Supportive lay testimony may be used to buttress the expert testimony and, therefore, is also relevant and material to the causation question. The weight to be given to an expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts the expert relied upon as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000); IBP, Inc. v. Harpole, 621 N.W.2d 410 (Iowa 2001); Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845 (Iowa 1995). Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417 (Iowa 1994). Unrebutted expert medical testimony cannot be summarily rejected. Poula v. Siouxland Wall & Ceiling, Inc., 516 N.W.2d 910 (Iowa App. 1994).

A personal injury contemplated by the workers’ compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something that acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. Increased disability from a prior injury, even if brought about by further work, does not constitute a new injury, however. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000); Ellingson v. Fleetguard, Inc., 599 N.W.2d 440 (Iowa 1999); Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845 (Iowa 1995); McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). An occupational disease covered by chapter 85A is specifically excluded from the definition of personal injury. Iowa Code section 85.61(4) (b); Iowa Code section 85A.8; Iowa Code section 85A.14.

When the injury develops gradually over time, the cumulative injury rule applies. The date of injury for cumulative injury purposes is the date on which the disability


manifests. Manifestation is best characterized as that date on which both the fact of injury and the causal relationship of the injury to the claimant’s employment would be plainly apparent to a reasonable person. The date of manifestation inherently is a fact based determination. The fact-finder is entitled to substantial latitude in making this determination and may consider a variety of factors, none of which is necessarily dispositive in establishing a manifestation date. Among others, the factors may include missing work when the condition prevents performing the job, or receiving significant medical care for the condition. For time limitation purposes, the discovery rule then becomes pertinent so the statute of limitations does not begin to run until the employee, as a reasonable person, knows or should know, that the cumulative injury condition is serious enough to have a permanent, adverse impact on his or her employment. Herrera v. IBP, Inc., 633 N.W.2d 284 (Iowa 2001); Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824 (Iowa 1992); McKeever Custom Cabinets v. Smith, 379 N.W. 2d 368 (Iowa 1985).

While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961).

The first issue to be determined in this case is whether the claimant sustained an injury arising out of and in the course of his employment. It is the claimant who has the burden of proof on this issue. In his brief, the claimant argues that the repetitive work that the claimant did for the employer “substantially aggravated” a pre-existing asymptomatic condition in the claimant’s left shoulder. (Claimant’s Brief, p. 21)

In a recent decision, the Iowa Supreme Court commented extensively on what is required to prove that a worker sustained an injury arising out of and in the course of the employment pursuant to Iowa Code section 85.3(1). Four basic requirements must be proved: (1) the claimant suffered a “personal injury”; (2) claimant and the respondent had an employer-employee relationship; (3) the injury arose out of the employment; and (4) the injury arose in the course of the employment. Meyer v. IBP, Inc., 710 N.W.2d 213 (Iowa 2006). If one of these requirements is not met, then there can be no award of benefits. Id. Yet, all four of these requirements are woven together by what the Court called “common threads of injury and employment.” Id.

The requirement that is at issue in this case is whether the claimant’s injury arose out of his employment. The Court conceded in Meyer that the “causation label” has been applied to this element. Id. However, the causation that is required to show that an injury arose out of the employment is not the same as proximate cause in tort law. Rather the element requires that the injury must be a rational consequence of the hazard connected with the employment. Id. The Court cited Miedema, where the Court held that the injury must not have coincidentally occurred but must in some way be


caused by or related to the working environment or conditions of employment. Id. In a footnote, the Court added that while it is accurate to say that an injury must proximately cause disability, the more onerous proximate cause standard does not apply when considering whether an injury arises out of the employment.

It is not entirely clear whether the claimant is alleging that his injury was a specific incident that occurred on October 15, 2003, or whether the claimant is alleging a cumulative trauma, that is, that the work he did over a period of time led to an injury on October 15, 2003. Not only is it difficult to discern how the claimant’s injury arose out of his employment, but the claimant’s testimony at hearing and the representations he made to his physicians is fraught with inconsistencies. There is little agreement between the witnesses on what was said before or on October 15, 2003. The claimant’s own actions after the alleged injury are at odds with his professed belief that he had a workers’ compensation claim.

As a way of beginning the analysis, the medical evidence shows that the claimant had a ganglion cyst in his left shoulder and what the claimant’s physicians have called a SLAP lesion. Dr. Langland, the claimant’s first surgeon, thought the claimant’s radiographic studies showed inferior osteophytes or probably an old Bankart injury. Dr. Wolf, who did the claimant’s third left shoulder surgery, opined that the SLAP tear developed prior to October of 2003, with an associated cyst. There is no credible medical evidence that these conditions were caused by the claimant’s employment in general or as the result of a specific incident at work.

Dr. Wolf did, indicate, however, that the claimant’s repetitive work “would aggravate and be a contributing factor for his left shoulder injury.” (Cl. Ex. 9d, p. 1) Dr. Langland initially opined that the claimant’s left shoulder condition was the result of an overuse syndrome, but he was puzzled by the claimant’s later claim that there was a specific incident at work. Dr. Burns opined that the claimant’s work was a major contributing factor to his left shoulder problems. Dr. Neff stated that in his opinion the claimant’s condition was not causally related to his work activities and that the lesions in his shoulder were not caused by, nor were they substantially aggravated by these work activities. (Def. Ex. I, p. 52)

Just how repetitive the claimant’s work was and how much he was required to work overhead is hotly contested by the parties. The pace of the claimant’s work was not accurately represented to Dr. Wolf by claimant’s counsel in his letter on February 21, 2006. The claimant never did repetitive work completing 1700 parts a shift. Even the claimant did not testify that he completed 1700 parts a shift. In general, he performed at or below the standard of 1000 parts a shift and certainly he did not weld overhead for extended periods of time. Even when Dr. Wolf was given a description of the claimant’s job doing up to 1700 parts a shift, the most he could say was that this repetitive work “would aggravate and be a contributing factor for his left shoulder injury.” After he saw the videotape, Dr. Wolf’s opinion remained the same.


The record does not contain any evidence on what Dr. Burns and Dr. Langland were told about the claimant’s work activity and given the fact that the claimant is not a very credible witness, their opinions are therefore suspect since they seem to have accepted at face value what the claimant must have told them about the onset of his symptoms. The claimant was not credible when he testified that he had symptoms over a period of time preceding October 15, 2003. No witness corroborated this testimony and Richie denied ever being told about left shoulder problems prior to October 15, 2003, or moving the claimant to a different job before October 15, 2003.

The record is clear that the claimant did report that his left shoulder was hurting on October 15, 2003, and that something happened to his left shoulder that day to cause him to seek out medical treatment. What is puzzling is that although the claimant testified he felt a twinge when he was inspecting parts and then dropped the part due to pain in his left shoulder, he apparently never gave Richie enough information to cause Richie to believe this was a workers’ compensation claim. He testified that he just wanted to get to the doctor and that he would take care of the paperwork later. Although he had his wife fill out the disability form and that form does say the condition was work related, the claimant did not take any other action consistent with his claim being work related. He did not share his physician’s reports with the employer. He was content to accept short-term disability payments. He had workers’ compensation claims in the past, according to his testimony, and would have been familiar with the process. He never asked to see the company doctor and knew from past experience with this employer, that a claim for workers’ compensation benefits would have caused the employer to send him to a doctor of its choice. None of the actions of the employer in the days and weeks after October 15, 2003, is consistent with the claimant having made a workers’ compensation claim. Short-term benefits were paid, which are not payable if the condition is work related, according to Lisa Paterno. She personally had no knowledge that the claimant was making a workers’ compensation claim.

Again, the issue is whether the claimant has sustained his burden of proof that he had an injury, which arose out of his employment, which only requires him to show that his injury is in some way caused by or related to the working environment or conditions of employment. The claimant, as noted previously, alleges that the repetitive nature of his employment caused a previously asymptomatic condition in his left shoulder to become symptomatic. The consensus of the medical opinion is that the claimant’s work played a role in his left shoulder condition and thus the claimant can meet the less onerous “arising out of” requirement.

Where the claimant’s case fails is on the requirement that he prove by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. In other words, the claimant is required to show that the work injury was a substantial factor in causing his disability, both temporary and permanent. This he cannot do. The conditions that led to the claimant’s surgery were a large ganglion cyst and a SLAP lesion. There is no evidence that these conditions were caused by the claimant’s employment. All Dr. Wolf could say was that the claimant’s repetitive work would aggravate and be a contributing factor for his left shoulder injury.


In a later opinion, he said that his work requirement “potentially aggravated this pathologic situation in his shoulder causing him his pain and symptoms.” (Cl. Ex. 9f, p. 1) There is nothing in this opinion on which to base a legal conclusion that the work injury materially aggravated, accelerated, worsened or lighted up any preexisting injury or disease. The opinions of Dr. Langland and Dr. Burns are rejected given the incomplete or inaccurate history they possessed and on which their opinions were based.

As claimant has failed to show that any injury, which arose out of and in the course of his employment on October 15, 2003, was a proximate cause of the disability on which his claim is based, claimant is not entitled to any workers’ compensation benefits from the employer.

ORDER

IT IS THEREFORE ORDERED:

That claimant shall take nothing from this proceeding.

Each party shall pay their own costs.

Signed and filed this _13 th __ day of June, 2006.

________________________ VICKI L. SEECK DEPUTY WORKERS’

COMPENSATION COMMISSIONERCopies to:

Mr. James E. BennettAttorney at LawPO Box 998Cedar Rapids, IA 52406-0998

Ms. Dorothy L. KelleyAttorney at Law505 5th Ave., Ste. 808Des Moines, IA 50309-2317

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