File Number: 1199657
Decision Type: Arbitration
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THOMAS PASCHAL, :

:

Claimant, :

:

vs. :

: File No. 1199657

WILSON FOODS/CONTINENTAL :

DELI FOOD BRANDS AMERICA, :

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

Self-Insured, :

Employer, : D E C I S I O N

Defendant. :

______________________________________________________________________________

Claimant, Thomas Paschal, has filed a petition in arbitration and seeks workers' compensation benefits from Wilson Foods/Continental Deli Food Brands America (Continental Deli), self-insured, defendant employer. The case was heard before another deputy workers' compensation commissioner on April 11, 2000, in Storm Lake, Iowa. Due to the deputy's departure from the agency, the proposed decision was assigned to Deputy Workers' Compensation Commissioner, Dévon M. Lewis, pursuant to an order filed May 5, 2000, by Commissioner Post. The evidence in this case consists of joint exhibits 1-31 (including Exhibit 17a), and the testimony of Thomas Paschal and Lisa Hillman. The case involving file number 1215303, injury date of May 31, 1997, was dismissed at hearing. The case involving file number 1199657 and alleged injury date of March 30, 1997, was considered fully submitted at the close of the hearing.

1.                 An employment relationship existed between claimant and employer.

2.                 If the injury is found to be a cause of permanent disability, the disability is an industrial disability.

3.                 The commencement date for permanency benefits, if allowed, is October 6, 1999.

4.                 The correct rate of weekly compensation is $326.36.

1.                 Whether claimant sustained an injury on March 30, 1997, which arose out of and in the course of employment.

2.                 Whether claimant gave notice of the injury pursuant to Iowa Code section 85.23.

3.                 Whether the injury is the cause of permanent disability.

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

The undersigned, having considered the evidence received at the hearing, makes the following findings of fact:

Thomas Paschal was 66 years of age on the date of hearing. He completed the ninth grade and did not obtain a graduate equivalency diploma (GED).

Claimant worked packing eggs and in a shoe repair shop until he enlisted in the Navy and served as a firefighter for about three years. After an honorable discharge from the Navy in 1955, claimant worked as a laborer in hospital wards until the mid-1960s. He then worked as a factory worker in a trailer manufacturing plant for approximately seven years.

In 1974, claimant began working in packing plants for about four months before moving to Continental Deli f/k/a Wilson Foods in October 1974. He performed various packing plant duties until the early 1980s when claimant began working on the night sanitation crew. During his eight or nine-hour shift with breaks every two and one-half hours, he would spray chemicals and run a high-pressure hose with hot water. The hose was braced against his right shoulder and he held the nozzle in his dominant right hand. Claimant performed these duties until his last day of work on March 30, 1997, at age 63. Accumulated vacation extended the employment period until the retirement date of May 1, 1997. Claimant retired two years early with reduced pension benefits due, in part, to his shoulder pain and weakness. His pain had gradually worsened until the time of retirement.

At the time of hearing, claimant was working approximately two hours per day performing light cleaning duties at an apartment complex. He also mows grass with a riding mower and pushes snow with a small tractor at his personal business. Claimant has sought no other work and intends to work no more than part-time.

The employer’s physician, a Dr. Garner, treated or referred claimant for work-related bilateral carpal tunnel syndrome, surgery on both knees and back injuries at various times during the employment relationship. The first record of shoulder pain was an accident report filed November 6, 1985. (Joint Exhibit 22) The report notes that the right shoulder was sore and that claimant lifts heavy equipment and a pressure hose repetitively. Dr. Garner examined claimant and ordered x-rays. (Jt. Ex. 1-1) Claimant had no history of a shoulder condition prior to this date. The next report of shoulder pain and weakness was October 21, 1991, and referred to the use of the high-pressure hose. (Jt. Ex. 23) An additional report of right shoulder pain was completed on October 4, 1993. (Jt. Ex. 25) A final report of right shoulder pain for approximately one year was filed with the employer on April 11, 1994, and claimant was referred to Dr. Garner after having bumped his right forearm. Dr. Garner also noted pain after sleeping on the shoulder. (Jt. Ex. 1-2, 24) After each complaint, claimant was treated conservatively and returned to regular duty after a short time. No formal report was filed in 1997.

On April 4, 1997, at the plant nurse’s station, claimant last noted shoulder pain to Jan Woodall, PAC, who was supervised by a Dr. Walston, then company physician. Ms. Woodall is a contract medical service provider for defendant employer and is at the plant for the sole purpose of handling work-related injuries. On that date, good range of motion in the shoulder and crepitus were noted. (Jt. Ex. 1-4) Dr. Walston ordered a MRI, which was performed on October 20, 1997, and revealed a tear of the rotator cuff and mild degenerative changes in the acromioclavicular (AC) joint. (Jt. Ex. 8)

Ms. Woodall referred Mr. Paschal to David A. Dalsimer, D.O., on November 19, 1997. (Jt. Ex. 12-1) Dr. Dalsimer began a series of intra-articular injections and released claimant to regular duties through May 29, 1998, when surgery was recommended to repair the rotator cuff tear. The surgery was performed on June 23, 1998. (Jt. Ex. 12-4, 19, 21)

Steven J. Meyer, M.D., assumed the care of claimant post-operatively, opined that the rotator cuff tear was the result of repetitive work. (Jt. Ex. 15) Claimant reached maximum medical improvement (MMI) in June 1999 and on October 6, 1999, Dr. Meyer assigned, according to the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, a 16 percent upper extremity or 10 percent whole person impairment rating. Dr. Meyer also noted weakness or a loss of strength in the shoulder but noted no work restrictions. (Jt. Ex. 16, 17, 17a) Dr. Meyer revised his rating to 12 percent of the upper extremity or a 7 percent whole person impairment on March 28, 2000. (Jt. Ex. 17a)

The first issue to be addressed is whether claimant sustained an injury on March 30, 1997, which arose out of and in the course of employment. That date was also claimant’s last day of work.

The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f).

The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).

When the disability develops gradually over a period of time, the "cumulative injury rule" applies. For time limitation purposes, the compensable injury is held to occur when because of pain or physical inability, the claimant can no longer work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).

The retirement date was the date claimant was compelled to leave work due to her work injury when the carpal tunnel syndrome was a substantial factor in the decision to retire. Koehler v. Morrison, Lloyd & McConnell, File No. 874140 (App. October 28, 1991).

Claimant’s retirement due to the shoulder pain sets the injury date as March 30, 1997. His history of complaints to the company physician or physician’s assistant about the shoulder pain is consistent with his use of the high-pressure hose and the method by which he braced it. Furthermore, the shoulder complaints did not arise until a few years after he started working on the sanitation crew and 11 years into his employment with defendant. While Dr. Meyer did not treat the claimant until after the rotator cuff tear repair, his opinion was that the injury was the result of work at the packinghouse and is consistent with chronic repetitive use without a specific antecedent traumatic event. (Jt. Ex. 15) While Dr. Dalsimer is silent with respect to a work connection, neither does he discount the relationship. The record is vacant of opinions that the injury was not related to claimant’s chronic use of the high-pressure hose. Accordingly, claimant has met his burden of proof to establish that he sustained a cumulative injury arising out of and in the course of employment on March 30, 1997.

The next issue in dispute is whether claimant provided sufficient notice to the employer of that injury.

Failure to give notice is an affirmative defense which the employer must prove by a preponderance of the evidence. DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940).

Iowa Code section 85.23 requires an employee to give notice of the occurrence of an injury to the employer within 90 days from the date of the occurrence, unless the employer has actual knowledge of the occurrence of the injury.

The purpose of the 90-day notice or actual knowledge requirement is to give the employer an opportunity to timely investigate the facts surrounding the injury. The actual knowledge alternative to notice is met when the employer, as a reasonably conscientious manager, is alerted to the possibility of a potential compensation claim through information which makes the employer aware that the injury occurred and that it may be work related. Dillinger v. City of Sioux City, 368 N.W.2d 176 (Iowa 1985); Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980). The time period for giving notice does not begin to run until the claimant as a reasonable person, should recognize the nature, seriousness and probable compensable character of the injury. The reasonableness of claimant's conduct is to be judged in light of claimant's education and intelligence. Claimant must know enough about the condition or incident to realize that it is both serious and work connected. Positive medical information is unnecessary if information from any source gives notice of the condition's probable compensability. Robinson, 296 N.W.2d at 812.

While claimant had filed accident reports regarding his shoulder prior to 1997, the company physician had also examined him for shoulder pain complaints without a report being filed. Defendant argues that if the medical service provider believes the injury to be work-related, they contact Ms. Hillman, and this was not done during 1997. Iowa Code section 85.24 requires no particular form of notice, however, if the employer has actual knowledge, claimant is not required to give notice. Claimant's history of treatment with the company physician for shoulder complaints assigns actual knowledge to the defendant employer. Specifically, on April 4, 1997, Ms. Woodall, a contract medical service provider, specifically relates the shoulder pain to an obvious work aggravation and hoped that his retirement would alleviate some of the problems. (Jt. Ex. 1-4) Inasmuch as Ms. Woodall had seen claimant at the plant nurse’s station where she normally examined those with work-related injuries, she was acting on behalf of the defendant employer. The workers’ compensation coordinator’s failure to adequately communicate with the contract medical service provider does not diminish claimant’s notice of his injury to an individual whom he reasonably believed to be associated with the employer and acting on his behalf in providing medical care. See, Hensley v. Swift, I-4 Iowa Indus. Comm’r Dec. 881 (1985). Therefore, adequate and timely notice of the injury is imputed to the defendant employer via Ms. Woodall. The defendant employer has failed to sustain its burden of proof of the claimant's alleged failure to give notice because the defendant had actual knowledge of the cumulative injury.

The third issue to be determined is whether the injury is a cause of permanent disability. 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).

Dr. Meyer’s opinion as to the 7 percent permanent impairment rating is not contradicted by medical evidence from the defendant. Dr. Meyer was the treating physician at the time claimant reached maximum medical improvement and his opinion is supported by the evidence in the record and the AMA Guides. There is no history of shoulder problems before claimant’s employment with defendant. Therefore, the cumulative injury to the rotator cuff and required surgery caused the permanent impairment.

The final issue involves the extent of claimant’s entitlement to permanent partial disability. Defendant has stipulated that if the injury is found to be a cause of permanent disability, the disability is an industrial disability. Factors to be considered in determining industrial dis:ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability.

There are no weighting guidelines that indicate how each of the factors is to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985).

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.

After claimant reached maximum medical improvement in June 1999, Dr. Meyer noted some moderate weakness and loss of internal and external rotation that led to the permanent impairment rating. (Jt. Ex. 16, 17a) Although Dr. Meyer was silent on the issue of permanent work restrictions, the notation of weakness and loss of rotation would indicate less than full use of the shoulder. Claimant acknowledged he is not interested in working more than part-time and he did not have difficulty in obtaining his current part-time employment. His voluntary retirement may have decreased his actual earnings, but it was the injury and resulting permanent impairment that reduced the earning capacity as it was at the time of retirement.

Accordingly, after considering all of the factors, it is determined that claimant has sustained a 10 percent industrial disability. The stipulated commencement date for permanency benefits is October 6, 1999, at the stipulated rate of compensation of $326.36.

THEREFORE, IT IS ORDERED:

That defendant pay fifty (50) weeks of permanent partial disability benefits at the rate of three hundred twenty-six and 36/100 dollars ($326.36) commencing October 6, 1999.

That defendant be given credit for benefits previously paid and pay accrued benefits in a lump sum.

That defendant pay interest on the award as provided by Iowa Code section 85.30.

That defendant pay the costs of this action pursuant to rule 876 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter.

That defendant file claim activity reports as required by the agency pursuant to rule 876 IAC 3.1.

Signed and filed this __________ day of June, 2000.

DÉVON M. LEWIS
DEPUTY WORKERS' COMPENSATION

COMMISSIONER

Mr. Steve Hamilton

Attorney at Law

PO Box 188

606 Ontario Street

Storm Lake IA 50588

Ms. Judith Ann Higgs

Attorney at Law

PO Box 3086

Sioux City IA 51102-3086