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[T] Thompson v. Brown Brothers Inc.11/17/2003
held to occur when the employee,"because of pain or physical inability," can no longer work. Id. In fixing a date of occurrence of the cumulative injury, the commissioner is "entitled to consider a multitude of factors such as absence from work because of inability to perform, the point at which medical care is received, or others, none of which is necessarily dispositive." Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 829 (Iowa 1992). The date when an employee realizes his injury will have an impact on employment has also been considered relevant to the identification of the date of injury. See Venenga v. John Deere Component Works, 498 N.W.2d 422, 425 (Iowa Ct. App. 1993).
As noted, our previous remand was for a "redetermination" of Brown Brothers' liability, and in particular a redetermination of whether there was a causal connection between Thompson's injury and his work for Brown Brothers. On remand, the agency concluded Thompson "failed to prove... there is a causal connection between his employment with" Brown Brothers. This finding, of course, was made despite the commissioner's previous determination Thompson had "carried his burden of proof to show that his current shoulder condition is caused by his work activity." In analyzing Thompson's cumulative injury claim, the chief deputy's Remand Decision focused upon the date on which Thompson's rotator cuff tore. Specifically, he parsed the medical testimony to determine the actual date the tear most likely occurred and concluded it must have occurred prior to Thompson's May 15, 1995 return to employment with Brown Brothers. Having concluded the tear occurred before May 15 1995, the agency concluded Thompson had failed to carry his burden of establishing a causal connection between his employment with Brown Brothers and the alleged disability.
We conclude the agency's focus on the date when the rotator cuff tear occurred evidenced a misapprehension of the nature of a cumulative injury, and resulted in an error of law. A cumulative injury is an injury which by its nature occurs over some extended period of time rather than as a result of a single traumatic event. See McKeever, 379 N.W.2d at 374. Under the cumulative injury rule, the "date of injury" in a case alleging a rotator cuff injury is not, as the agency presumed, confined to the date when a tear first appears.
Dr. Neff, Thompson's treating physician, testified the tear had gradually developed over a period of time "much longer" than a six to seven week period. He further noted "many times a rotator cuff literally wears through over time ... t's a gradual failure of a tendon, a rubbing-through kind of like the kid's jeans do at the knee." Likewise, Dr. Bashara described a rotator cuff tear as a "repetitive or cumulative event as opposed to a one-time traumatic event, which means that it happened over a period of time rather than from one single event." In further explaining the process, Dr. Bashara noted
hat happens is that the rotator cuff... over a period of time, becomes frayed and thin. And as that process continues, it eventually can rupture or completely tear in two. It's a very common condition. As far as time that it takes to do that, I'd say that's almost an individual thing. It usually takes at least weeks, sometimes months and sometimes years. It depends on every individual and the type of activity they're doing. So, you can't generalize about how long it would take to occur.
Moreover, the uncontroverted expert testimony in this case would support a fact finding that Thompson's injury was not complete when a tear first appeared. Dr. Bashara explained that the injury was of a progressive nature even after the tear began and that
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