Bowser v. Nestle USA, Inc., 020720 IAWC, 5066232

• Case Date: February 07, 2020
• Court: Iowa

MICHAEL BOWSER, Claimant v. NESTLE USA, INC., Employer,, and, INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Insurance Carrier, Defendants. No. 5066232 Iowa Workers Compensation Before the Iowa Workers' Compensation Commissioner February 7, 2020          Head Notes: 1108.50, 1402.50, 1403.30 1801, 2803, 2907, 4000.2           ARBITRATION DECISION           ERIN Q. PALS DEPUTY WORKERS’ COMPENSATION COMMISSIONER          STATEMENT OF THE CASE          Michael Bowser, claimant, filed a petition in arbitration seeking workers’ compensation benefits from Nestle USA, Inc., employer and Indemnity Insurance Company of North America, insurance carrier as defendants. Hearing was held on September 17, 2019 in Waterloo, Iowa.          It should be noted that on September 4, 2019, the undersigned issued a ruling on claimant’s motion to bifurcate. The ruling stated that issue of permanent partial disability and the extent of claimant’s permanent disabilities would not be ripe for determination at the September 17, 2019 hearing and therefore were bifurcated and would be heard at a later date.          The parties filed a hearing report at the commencement of the arbitration hearing. On the hearing report, the parties entered into various stipulations. All of those stipulations were accepted and are hereby incorporated into this arbitration decision and no factual or legal issues relative to the parties’ stipulations will be raised or discussed in this decision. The parties are now bound by their stipulations.          Michael Bowser and James Payne were the only witnesses to testify live at trial. The evidentiary record also includes joint exhibits 1-5, claimant’s exhibits 1-11, and defendants’ exhibits A-E. Because exhibit A is a First Report of Injury it is admitted for the limited purposes allowed under section 86.11, Code of Iowa. All exhibits were received without objection. However, it should be noted that claimant’s exhibit 6, a report from Dr. Naylor, was served late. Prior to the hearing, the parties reached an agreement that if claimant’s exhibit 6 was entered into evidence then the defendants would be allowed to have a reasonable amount of time to obtain an independent medical examination (IME). The undersigned accepted the parties’ agreement. The evidentiary record was left open for the defendants to obtain the IME report. The report was filed on October 15, 2019 and marked as Exhibit E; this exhibit was also accepted into the record.          The parties submitted post-hearing briefs on November 18, 2019, at which time the case was fully submitted to the undersigned.          ISSUES          The parties submitted the following issues for resolution:

1. Whether claimant sustained an injury which arose out of and in the course of employment on July 28, 2017.

2. Whether claimant’s claim is barred by operation of section 85.23, Code of Iowa for failure to provide timely notice of his injury.

3. Whether claimant is entitled to temporary disability benefits as a result of the alleged July 28, 2017 work injury.

4. Whether claimant is entitled to payment of past medical expenses under section 85.27, Code of Iowa.

5. Whether claimant is entitled to payment of alternate medical care under section 85.27, Code of Iowa.

6. Whether penalty benefits are appropriate.

7. Assessment of costs.

         FINDINGS OF FACT          The undersigned, having considered all of the evidence and testimony in the record, finds:

Claimant, Michael Bowser (“Bowser”), was 60 years old at the time of hearing. He asserts that he sustained a work injury to his right shoulder on Friday, July 28, 2017 while working for Nestle, USA, Inc. (“Nestle”). At the time of the alleged injury Bowser was working as a bag filling operator. Bowser typically worked the third shift; however, on the date of the alleged injury Bowser was working the day shift. During the second part of Bowser’s shift, he needed to perform a major cleanup on the line. He needed to clean the sifter, which is a large steel bowl. While he was cleaning the sifter, Bowser’s brush caught on something in the sifter which caused his right arm to turn in the opposite direction. He heard a pop and instantly felt a paralyzing pain in his right arm and shoulder. He was eventually able to free his shoulder and continue working. He saw the supervisor Jim Payne (“Payne”) before he went home and told him about the injury and that he felt something pop in his shoulder. Payne advised him to tell Jim Wilson (“Wilson”), the third shift supervisor about the injury the following week. (Testimony)

         Bowser returned to work, on the third shift, the following week and reported the injury to Wilson right away. Bowser notified Wilson that his shoulder was still bothering him and that he could not do things like he did before. Wilson said he would discuss the matter with Chris Martin, the safety director at Nestle, and get back to Bowser. When Bowser did not hear back from Wilson, he kept periodically reminding Wilson of his injury because he wanted treatment. Wilson finally got back to Bowser and told him there was a physical therapy appointment for him; his first therapy appointment was on September 19, 2017. (Testimony)          On September 19, 2017, Bowser went to therapy at Rock Valley. He reported he injured his right shoulder at Nestle while cleaning a machine with a brush. He was unable to remember the exact date, but knew it occurred on a Friday. (Joint Exhibit 4, pp. 1-7)          Bowser believes that Nestle paid for the physical therapy because he never received any type of bill for the therapy. There are also copies of payments from Nestle to Rock Valley Physical Therapy Center in evidence. (Testimony; JE4, pp. 1-7; Claimant’s Exhibit 11)          At the hearing, Payne testified on behalf of Nestle. Payne is a packaging supervisor for the day shift. According to Payne, if an employee is hurt on the job, the employee is required to report the injury in a timely fashion. The supervisor then records any injuries in an injury log that is kept in the supervisor’s office. Payne does not recall Bowser reporting a right shoulder injury to him on July 28, 2017. However, he concedes that just because he does not remember Bowser reporting the injury, that does not mean that Bowser did not report the injury. According to Bowser, Nestle does not pay for someone’s medical treat if it is not for a work-related injury. (Testimony)          Bowser’s testimony that Nestle arranged for and paid for his physical therapy in September of 2019 is unrebutted. Payne testified that Nestle does not pay for someone’s medical treatment if it is not for a work-related injury. I find that Nestle arranged for and paid for his physical therapy in September of 2019. Thus, I find that by at least September 19, 2017, Nestle had notice of Bowser’s July 29, 2017 work injury.          Bowser continued physical therapy with Rock Valley. On September 27, 2017 Bowser reported that he felt a little better. The note stated: “I remembered just today when this happened. It was July 28, 2017. I set camper up for this coming weekend.” (JE4, p. 10) At hearing, Bowser explained that the week before this September 27 appointment, he went into Nestle Human Resources and had them look up the last week that he worked days. He knew his injury had occurred on a Friday, so that is how he surmised that the date of injury was July 28, 2017. (JE4) In their post-hearing brief defendants refer to a camper incident in September of 2017. However, I do not interpret the September 2017 therapy note to demonstrate that there was any sort of an injury or incident surrounding a camper in 2017.          Bowser continued with his therapy until January...