Chavez v. MS Technology, LLC, 020520 IAWC, 5066270

• Case Date: February 05, 2020
• Court: Iowa

ROSA CHAVEZ, Claimant v. MS TECHNOLOGY, LLC, Employer, and WESTFIELD INSURANCE COMPANY, Insurance Carrier, Defendants. No. 5066270 Iowa Workers Compensation Before the Iowa Workers' Compensation Commissioner February 5, 2020          Head Note Nos. 1108, 1803, 1803.1           ARBITRATION DECISION           MICHELLE A. MCGOVERN, DEPUTY WORKERS’ COMPENSATION COMMISSIONER          STATEMENT OF THE CASE          This is a petition in arbitration. The contested case was initiated when claimant, Rosa Chavez, filed her original notice and petition with the Iowa Division of Workers’ Compensation. The petition was filed on September 28, 2018. Claimant alleged she sustained a work-related injury on February 5, 2018. Claimant alleged the work injury affected her right shoulder, neck and right upper extremity. (Original notice and petition, amended original notice and petition)          For purposes of workers’ compensation, MS Technology, LLC, is insured by Westfield Insurance Company. Defendants filed their answer on October 15, 2018. They also filed several subsequent amended answers. (As a point of reference, the company was previously known as Stine Seed Company.)          The hearing administrator scheduled the case for hearing on October 1, 2019. The hearing took place at Iowa Workforce Development in Des Moines, Iowa. The undersigned appointed Ms. Janice Doud as the certified shorthand reporter. She is the official custodian of the records and notes. Ms. Melyna Mosher was sworn to translate the proceedings from English to Spanish.          Claimant testified on her own behalf. Ms. Angie Umthun also testified. She is the quality control director for the lab. The parties offered joint exhibits1 through 5. Claimant offered exhibits 1 through 7. Defendants offered exhibits A through E. The proffered exhibits were admitted as evidence in the case. The original transcript was filed with the Division of Workers’ Compensation on October 18, 2019.          Post-hearing briefs were filed on November 15, 2019. The case was deemed fully submitted on that date.          STIPULATIONS          The parties completed the designated hearing report. The various stipulations are:

1. There was the existence of an employer-employee relationship at the time of the injury;

2. Claimant sustained an injury on February 5, 2018 which arose out of and in the course of her employment;

3. The parties agree the injury resulted in both temporary and permanent disability to the left lower extremity;

4. Temporary or healing period benefits are no longer in dispute;

5. The parties agree the weekly benefit rate is $459.33 per week;

6. The parties agree the commencement date for the payment of permanent disability benefits is April 16, 2019;

7. Defendants have waived any affirmative defenses;

8. Medical benefits are no longer in dispute;

9. Defendants will pay the independent medical examination pursuant to Iowa Code section 85.39;

10. Prior to the hearing date, defendants have paid twenty-four (24) weeks of permanent partial disability benefits in the amount of $459.33 per week for a total of $11,023.92 paid in permanency benefits; and

11. Claimant has paid certain costs and defendants do not dispute those costs have been paid.

         ISSUES          The issues presented are:          1. Whether claimant sustained an injury to her shoulder only;          2. Whether claimant sustained any injuries beyond the shoulder;          3. Whether claimant sustained a scheduled member injury or an injury to the body as a whole;          4. The extent of permanency to which claimant is entitled.          FINDINGS OF FACT          This deputy, after listening to the testimonies of claimant and Ms. Umthun at hearing, after judging the credibility of the two people who testified, and after reading the transcript, the evidence, and the post-hearing briefs, makes the following findings of fact and conclusions of law:          The party who would suffer loss if an issue were not established has the burden of proving the issue by a preponderance of the evidence. Iowa Rule of Appellate Procedure 6.14(6).          Claimant is a 61-year-old married mother of five adult children. She is right-hand dominant. Claimant was born and educated in Mexico. Her highest level of education was the third grade. Claimant does not speak, read or write English. She has never attended any schooling in the United States. In the early 1990’s, claimant worked at a pork processing plant performing assembly line work with a knife. She worked as a homemaker.          In 2010, claimant commenced employment with the present employer. She was hired as a “grinding lab technician”. (Claimant’s exhibit 3) The duties are varied and detailed in claimant’s exhibit three. Each day, claimant is involved with cleaning activities in the lab.          On February 4, 2018, claimant was mopping the lab. The bucket had its own wringer system but the wringer was broken. Claimant had to exert extreme force when squeezing the water out of the mop. As she was squeezing, she heard a pop in her right shoulder. She felt immediate pain.          Claimant reported the work injury to Ms. Angie Umthun, the director of quality control for the lab. Ms. Umthun directed claimant to see a medical provider of her own choosing. On March 8, 2018, claimant presented to Mercy Family Care in Perry, Iowa. Claimant described the mopping incident to the medical provider. (Joint Exhibit 1, page 16) Jason Noble, PA-C, examined claimant’s right shoulder. The physician assistant referred claimant to Todd Peterson, D.O., an orthopedic surgeon at Capital Orthopedics. (Jt. Ex. 2, p. 37)          Dr. Peterson examined claimant on April 12, 2018 because of her right shoulder complaints. (Jt. Ex. 2, p. 37) Claimant reported pain on both the anterior and posterior aspects of her right shoulder with the pain radiating down her right arm. (Jt. Ex. 2, p. 37) Dr. Peterson noted:

…Active range of motion. 140° of flexion. 90° of abduction. 30° of external rotation. Internal rotation to the sacrum. Pain over the biceps tendon. Mild pain over the AC joint. Pain over the lateral epicondyle of the humerus. Pain with speed’s test. Good strength, but pain with empty can test. Pain with Hawkin’s test. Significant pain with cross body test.

(Jt. Ex. 2, p. 38)          Dr. Peterson diagnosed claimant with:

Impression:

RIGHT Pain in right shoulder

RIGHT Impingement syndrome of right shoulder

RIGHT Secondary osteoarthritis, right shoulder

RIGHT Unspecified rotator cuff tear or rupture of right shoulder, not specified as traumatic

RIGHT Pain in right elbow

(Jt. Ex. 2, p. 38)          Dr. Peterson recommended magnetic resonance imaging (MRI). (Jt. Ex. 2, p. 39) He reviewed the results of the MRI. The results demonstrated why surgery was the best modality to approach:

The MRI indicates a full thickness rotator cuff tear that has retracted to the level of the glenoid, severe AC arthrosis, tendonitis and tearing of the biceps tendon. There was mild atrophy of the supraspinatus. We could try to manage symptoms with corticosteroid injections and physical therapy. However, conservative treatment would not heal the tear, and the severity of the tear could potentially advance. The only definitive treatment would be a shoulder arthroscopy with rotator cuff repair, biceps tenotomy, subacromial decompression, and distal claviculectomy…

(Jt. Ex. 2, p. 42)          Initially, defendants denied the surgery. However, they later approved it. Dr. Peterson performed the surgery on July 11, 2018 at West Lakes Surgery Center. (Jt. Ex. 5, p. 69) The procedures performed were:          PROCEDURES PERFORMED:

Right shoulder arthroscopy with arthroscopic repair of the rotator cuff tendon of the supraspinatus, infraspinatus, and subscapularis tendons; extension debridement of the labrum, biceps tendon, and subacromial space with biceps tenotomy, subacromial decompression.

(Jt. Ex. 5, p. 69)          Dr. Peterson noted during the surgery:

…A subacromial bursectomy was then done which showed some subacromial scar tissue present. A subacromial bursectomy and subacromial decompression was done with a shaver on the underside to remove the areas of scar tissue and fraying that was seen between the anterior aspect of the supraspinatus and the undersurface

...