GLOVER V. GRIFFIN PIPE PRODUCTS CO.
Page 1
before the iowa WORKERS’ COMPENSATION commissioner
______
:
DOUGLAS J. GLOVER,:
:
Claimant,:
: File No. 5007237
vs.:
: ARBITRATION
GRIFFIN PIPE PRODUCTS CO.,:
: DECISION
Employer,:
Self-Insured,:
Defendant.: Head Note No.: 1400
______
STATEMENT OF THE CASE
This is a contested case proceeding in arbitration under Iowa Code chapters 85 and 17A. Claimant, Douglas J. Glover, claims to have sustained a work injury in the employ of self-insured defendant Griffin Pipe Products Co. on May 22, 2001. He accordingly now seeks benefits under the Iowa Workers’ Compensation Act.
The claim was heard and fully submitted in Council Bluffs, Iowa, on May 27, 2004. The record consists of Glover’s exhibits 1-13, Griffin Pipe’s exhibits A-I, and the testimony of Glover and Neil Horwedel. Glover’s exhibits are not paginated.
ISSUES
STIPULATIONS:
- An employment relationship existed between Douglas Glover and Griffin Pipe Products on May 22, 2001.
- Glover was off work during the time he claims as temporary disability: May22September 30, 2001.
- The correct rate of weekly compensation is $484.98.
- Griffin Pipe is entitled to credit totaling $4,158.37 under Iowa Code section 85.38(2).
ISSUES FOR RESOLUTION:
- Whether Glover sustained injury arising out of and in the course of employment on May 22, 2001.
- Whether the alleged injury caused temporary or permanent disability.
- Extent of temporary disability.
- Nature, extent and commencement date of permanent disability.
- Entitlement to medical benefits.
- Whether the claim is barred for lack of timely notice under Iowa Code section 85.23.
FINDINGS OF FACT
Douglas Glover, age 39, accepted employment with Griffin Pipe Products on August 1, 2000. Griffin Pipe is a manufacturer of iron pipes, especially water pipes. Many of these are very heavy. In May 2001, Glover was a “bander.” This job required him to manipulate and band together stacks of pipe. Strenuous physical effort was a necessary requirement of the job.
Glover claims to have sustained a right shoulder injury through the mechanism of cumulative trauma. He testified that in approximately December 2000 he began to develop some shoulder stiffness or aching before and after work, although he had no problems at work after he “warmed up.”
This was not the first time Glover experienced problems with his right shoulder. On August 26, 1997, Glover presented to a hospital emergency room with the following complaint:
He has had right shoulder pain for approximately one month. This started one month ago and he started a new job as a manual laborer. He does lifting and other manual labor jobs. He denies any history of shoulder problems in the past. He tells me that why he came in today is because he woke up this morning and his right shoulder was asleep. He states that this is the first time this has ever happened. What was unusual was that he states that it was asleep for about an hour. It took an hour before the tingling in his right anterior shoulder went away. The pain has been constant in his right shoulder for one month, but it is made worse by abducting his right shoulder. He has continued to work and hasn’t missed any work. He denies any trauma to the shoulder.
(Exhibit B)
X-rays were normal and the treating physician, Charles S. Tomek, M.D., diagnosed right shoulder strain with possible rotator cuff injury. (Id)
On August 28, 1997, orthopedic surgeon Bryan D. Bredthauer, M.D., recorded a similar one-month history and accomplished a subacromial injection. (Ex. C, p. 1) Chart notes of September 3, 1997 record continued complaints of “considerable discomfort in his shoulder with raising his arm overhead.” Dr. Bredthauer instructed Glover to stay off work and return for another evaluation, but Glover failed to appear for scheduled appointments on September 10 and September 12. (Ex. C, p. 2) No further records are in evidence.
Notwithstanding that history, Glover testified on December 4, 2003 that he had never been sore in the right shoulder prior to 2000. (Glover deposition, Ex. A, p. 22) This is clearly not true.
In any event, Glover presented to orthopedic surgeon George J. Emodi, M.D., on April 5, 2001, with the following history:
The patient is a 36 y/o ambidextrous laborer for Griffin Pipe who came to clinic today for evaluation of his right shoulder. The patient injured his right shoulder playing basketball in May of 1997. He has had trouble ever since. He’s rested his arm and given it adequate time to heal. However, his symptoms have never completely resolved. . . . He has recently experienced a progression of his symptoms. He is now having pain on a regular basis. Sometimes he can’t sleep at night because of his pain. . . . Recently he’s noticed some numbness in his hand when he wakes up first thing in the morning. He also has crunching in his shoulder whenever he attempts to use it outstretched or overhead.
(Ex. 5)
An arthrogram on April 18, 3001 disclosed a full thickness tear of the rotator cuff, which Dr. Emodi repaired via a diagnostic arthroscopy and an open right rotator cuff repair/distal clavicle excision on May 22, 2001. (Ex. 5) Glover was eventually returned to full duty without restriction and is currently employed in the same job.
In a report to defense counsel dated February 6, 2004, Dr. Emodi offered the following opinion as to the cause of Glover’s rotator cuff tear:
It is my opinion that Mr. Glover’s rotator cuff tear first became symptomatic when he tried to play basketball in May of 1997. However, it is unlikely, that without a distinct traumatic event, the tear occurred at that time. It could very well have resulted from an episode of previous trauma or from an attritional process the [sic] evolved slowly over the years while he performed activities that require prolonged or heavy use of his arms outstretched and overhead.
Based on review of Mr. Glover’s record, it is impossible for me to say with any medical certainty what the exact cause of Mr. Glover’s tear was or when it occurred. It is possible that Mr. Glover’s tear occurred slowly over a period of time during his course of employment and that it became symptomatic during his recreational activities. However, there are numerous other possible explanations including an unrecognized or remote traumatic event (such as a fall) during a sporting event or repetitive use of his arms outstretched and overhead at home.
(Ex. 9)
In response to inquiries from Glover’s counsel, Dr. Emodi offered the following clarification in a letter dated April 1, 2004:
4. No. [Dr. Emodi cannot allocate “what portion of his injuries” is attributable to work versus preexisting condition] The fact that he had symptoms prior to being hired by Griffin Pipe suggests strongly that the condition preexisted his current employment. I cannot comment with any degree of medical certainty on the severity of his symptoms prior his hiring [sic] because I did not see him then. However, from the record it is clear that his symptoms were severe enough at one point in time to prompt him to seek medical treatment by Dr. Bredthauer. It is likely that the activities of employment at Griffin Pipe flared this underlying condition to the point where he sought medical treatment again when he came to see me. However, his symptoms may have persisted/progressed over time regardless of his employment activities.
Therefore, I cannot say with any degree of medical certainty that his shoulder condition is compensable.
(Ex. 9)
The record is barren of any other expert opinion as to the etiology of Glover’s rotator cuff tear.
CONCLUSIONS OF LAW
It is and remains claimant’s burden to establish entitlement to such relief as is sought. That burden is on the party asserting the affirmative in an administrative proceeding; that is, “on the party who would suffer loss if the issue were not established.” Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973); Norland v. IDFS, 412 N.W.2d 904 (Iowa 1987).
Claimant has the burden of proving by a preponderance of the evidence that the alleged injury 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. Central Telephone 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 injury, Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971). The requirement is satisfied by proof of a causal relationship between the employment and the injury, Sheerin.
Where claimant has a preexisting condition or disability, aggravated accelerated, worsened or “lighted up” by an injury, which arose out of and in the course of employment resulting in disability found to exist, the injury is compensable. See,Nicks v. Davenport Produce Co., 254 Iowa, 130, 134-135, 115 N.W.2d 812, and citations. However, a disease which under any rational work is likely to progress so as to finally disable an employee does not become a “personal injury” under the Workers’ Compensation Act merely because it reaches a point of disablement while work for an employer is pursued. It is only when there is a direct causal connection between the exertion of the employment and the injury that a compensation award can be made. The question is whether the diseased condition was the cause, or whether the employment was a proximate contributing cause. Musselman v. Central Telephone Company, 154 N.W.2d 128, 132 (Iowa 1967) citing, Little v. Lagomarcino Grape Co., 235 Iowa 523, 529, 17 N.W.2d 120. The court has held that whether an injury or disease has a direct causal connection with the employment, or arose independently thereof, is essentially within the domain of expert testimony, and the weight to be given such an opinion is for the finder of facts. When an expert’s opinion is based upon an incomplete history it is not necessarily binding on the commissioner or the court. It is then to be weighed, together with the other facts and circumstances, the ultimate conclusion being for the finder of the fact. Musselman, Supra; Bodish v. Fischer, Inc., 257 Iowa 521, 522, 133 N.W.2d 867.
Taken out of context, Dr. Emodi’s statement that Glover’s work likely “flared” his underlying condition is supportive. However, a fair reading of Dr. Emodi’s complete set of opinions indicates that he is ambivalent and really cannot point to the cause. Dr.Emodi thinks that the rotator cuff tear predated Glover’s need for treatment in 1997, when he was diagnosed with a possible tear, treated with injections, and taken off work. From 1997 to 2000, Glover continued to have problems (despite his denial at deposition), and did not experience any particular traumatic incident at Griffin Pipe. Considering the record as a whole, it cannot be said that Glover has satisfied his burden of proof on the issue. Defendant accordingly prevails.
ORDER
THEREFORE, IT IS ORDERED:
Glover takes nothing.
Costs are taxed to Glover.
Signed and filed this ____23rd______day of July, 2004.
______
DAVID RASEY
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies to:
Mr. John Kocourek
Attorney at Law
223 S Main St.
Council Bluffs, IA 51503-6504
Mr. James W. Nubel
Attorney at Law
222 S 72nd St., Ste. 302
Omaha, NE 68114-4668
DRR/smc