Opinion
I.C. NO. 871713
Filed 10 December 2002.
On July 30, 2002, the Full Commission reviewed this case on plaintiff's appeal from an Opinion and Award filed by Mary Moore Hoag, Deputy Commissioner, on December 21, 2001.
Plaintiff: Robert L. White, Attorney at Law, Greenville, North Carolina, counsel of record.
Defendant: Cranfill, Sumner Hartzog, Attorneys, Raleigh, North Carolina, Robin H. Terry, counsel of record.
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The Full Commission has reviewed the Deputy Commissioner's Opinion and Award based on the record of the proceedings before the Deputy Commissioner. The appealing party has not shown good grounds to reconsider the evidence, receive further evidence, rehear the parties or their representatives, and having reviewed the competent evidence of record, the Full Commission affirms the Opinion and Award, with some modification.
The undersigned finds as fact and concludes as matter of law the following which were entered by the parties at the hearing as:
STIPULATIONS
The parties are subject to and bound by the provisions of The North Carolina Workers' Compensation Act.
An employer-employee relationship existed between the parties at all relevant times.
The carrier on the risk is Wausau Insurance Company.
Plaintiff's average weekly wage at all relevant times was $368.37, yielding a compensation rate of $245.70.
The date of plaintiff's alleged occupational injury was 22 January 1998. The following were stipulated in evidence:
a) Medical Records.
The issues to be considered are:
Did plaintiff sustain an injury by accident arising out of and in the course of her employment with defendant-employer?
Did plaintiff develop an occupational disease?
Does plaintiff suffer from any disability?
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Based upon all of the competent evidence of record and reasonable inferences drawn therefore, the Full Commission makes the following:
FINDINGS OF FACT
Plaintiff was born on 2 October 1953 and was 46 years old on the date of the evidentiary hearing.
Plaintiff began working for defendant-employer in March 1995. Prior to her employment with defendant-employer, plaintiff worked for Dixie Yarn for several months. Prior to Dixie Yarn, plaintiff worked for Perdue for 14 years as a chicken "shoulder cutter."
Plaintiff worked approximately six days per week with defendant-employer as a seamer. A robotic arm brought plaintiff a piece of glass at her workstation. Plaintiff would then push a button to release the suction of the robotic arm, seam the glass and, then push the glass with her right hand into a washer. Plaintiff demonstrated at the hearing the motion used in her position as a seamer, but did not state how often she used her arms or how often she flexed her elbow. No testimony was elicited as to the number of pieces of glass plaintiff worked with each day.
Plaintiff was occasionally rotated to other positions with defendant-employer. She would unload glass at the end of the machine where she typically worked as a seamer. She was rotated to this job every several days. Plaintiff did not indicate how many pieces of glass she typically unloaded per day or hour while rotated into this position.
On 22 January 1998, plaintiff had been assigned to unload glass for two hours. At the end of her shift, plaintiff's left arm was hurting. That night according to plaintiff it began to swell.
Nothing unusual was reported by plaintiff in her work duties on 22 January 1998.
Plaintiff sought care with numerous doctors after 22 January 1998. None of the doctors plaintiff presented to wrote her out of work, until she had an appointment with Dr. Robert C. Martin on 8 October 1998. Dr. Martin wrote the plaintiff out of work on 8 October 1998.
Dr. Martin performed surgery on plaintiff on 19 November 1998 and she was released to light-duty in February 1999. After being released to light-duty work, plaintiff had a nervous breakdown. She has been treated for depression, alcohol withdrawal, hallucinations, and hearing voices.
Plaintiff alleged that she was unable to return to work at defendant-employer after her mental problems had resolved, because no work was available. She testified that she made attempts to find other employment. In her answers to interrogatories from defendants, plaintiff denied an ability to work. She admitted filling out three or four job applications during the last seven months preceding the deputy commissioner hearing. She has applied for Social Security disability benefits.
Plaintiff alleged that, for months at a time, her right arm was locked in a completely flexed position and she was unable to move it. Plaintiff was able, however, to press the button to release the suction from the robotic arm and grab the glass in her job as a seamer even if her arm was locked up. Plaintiff maintained that she could not straighten her arm while working either as seamer or unloading glass. In demonstrating the motion used in her employment at the evidentiary hearing, the Deputy Commissioner noted that plaintiff straightened her arm repeatedly. Dr. Martin who examined plaintiff found her right arm and left arm to be the same size and adequately muscled. If an arm is not moved for a length of time, it atrophies and shrinks. Plaintiff's testimony on this issue is not accepted as credible.
Dr. Robert C. Martin, an orthopaedic surgeon, began treating plaintiff on 8 October 1998.
Plaintiff was referred to Dr. Martin by Dr. Chester at the Tarboro Clinic. When plaintiff originally presented, Dr. Martin took a medical history from her and performed a physical examination. Dr. Martin placed plaintiff on a corticosteroid medication and told her to follow up with him.
On his initial consultation, it was difficult for Dr. Martin to form an opinion as to the exact nature of plaintiff's problem or its etiology. Plaintiff related to him that she was employed on a manufacturing line; however, plaintiff only gave him a "rough description" of her job.
When Dr. Martin next saw the plaintiff on 20 October 1998, plaintiff told Dr. Martin that her elbow condition had improved. Plaintiff also informed him that she had had an MRI taken by a different orthopaedic surgeon and the MRI was normal. Dr. Martin diagnosed plaintiff with lateral epicondylitis or possibly an intra-articular process. He continued to keep plaintiff out of work.
Plaintiff next presented to Dr. Martin on 3 November 1998. Dr. Martin sent plaintiff to have a bone scan of her left elbow joint. The bone scan showed an increased uptake in the area of the lateral elbow joint.
Dr. Martin performed arthroscopic surgery on plaintiff's left elbow and performed a partial synovectomy and removal of a small loose body on 19 November 1998. According to Dr. Martin, the condition is usually precipitated by some injury to the joint.
Plaintiff's attorney sent Dr. Martin a repetitive motion medical questionnaire on 18 May 1999. Dr. Martin answered this questionnaire based on the information he obtained through the history supplied by plaintiff regarding her job, job requirements, and functions. At his deposition, Dr. Martin was shown a job description prepared by the defendant-employer. It was Dr. Martin's opinion that it was "possible" that plaintiff's job had contributed to the condition in her elbow.
Dr. Martin reiterated at the hearing that his understanding of plaintiff's job was based solely on the information provided by her. Based on the plaintiff's information, Dr. Martin thought at the time that her job was "repetitive." Dr. Martin, however, was not aware of the number of repetitions plaintiff may have been involved in on a typical day. He could not recall (if he ever knew) how long plaintiff held her job with defendant-employer or the specific physical movements plaintiff performed in her job. Dr. Martin was also unaware of plaintiff's previous employment.
Dr. Martin never noticed that plaintiff's arm was locked in an upright position, or locked in a flexed position with her palm facing her shoulder.
Dr. Martin released plaintiff to light-duty work on 16 February 1999 with restrictions. She was not to lift over 15 pounds using her left arm. When Dr. Martin received the questionnaire from plaintiff's attorney, there were no other documents with it. Dr. Martin answered questions numbers 2 and 3 of the questionnaire based solely on plaintiff's report to him. Dr. Martin did not use available responses on the questionnaire, but wrote in new categories. In response to the question of whether plaintiff's job significantly contributed to the development of the condition, he wrote, "may have." This "may have" is equivocal.
The loose body or cartilage in plaintiff's elbow could have been from an injury or part of the breakdown of the joint as well as due to the onset of an occupational disease. Orthopaedic doctors "estimate" where loose bodies may have come from, but it is not always possible to make an exact determination.
Plaintiff has presented to a variety of doctors over the past several years. There is no evidence of record that convincingly connects the etiology of plaintiff's pain or alleged occupational injury to her work duties with defendant-employer. Dr. Andrew E. Chester's medical notes from 22 June 1998 through 22 September 1998 mention left arm/left elbow pain, but do not give any etiology. Dr. Frances M. McCarthy's notes from 19 July 1998 state that plaintiff's left elbow condition has an unknown etiology. Dr. Robert L. Wortmann's letter dated 7 January 1999 notes that plaintiff's elbow pain is consistent with a myofacial pain syndrome, but he does not give any indication of its etiology.
Dr. Martin stated in his deposition that "it is possible that the job that Ms. Jones did could have contributed to the condition in her elbow." Dr. Martin based this opinion solely on what the plaintiff told him about her job when he took her medical history. Dr. Martin characterizes the job description given by plaintiff as a "rough description." Dr. Martin's notes, his testimony, and his response to the questionnaire are equivocal, and the Full Commission does not find that they prove plaintiff's claim by the greater weight. There is insufficient evidence that plaintiff's employment was a significant cause of her alleged occupational disease. The greater weight of the competent evidence does not establish that plaintiff's work was sufficiently repetitive to cause her condition.
Plaintiff has not shown an inability to work since her release to light-duty work on 16 February 1999.
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The forgoing findings of fact and conclusions of law engender the following additional:
CONCLUSIONS OF LAW
1. Plaintiff failed to prove that she sustained an occupational disease arising out of and in the course of her employment with defendant-employer. G.S. § 97-53(13); Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E.2d 101 (1981); Booker v Duke Medical Center, 297 N.C. 458, 256 S.E.2d 189 (1979).
2. Plaintiff failed to prove that she sustained an injury by accident on 22 January 1998. G.S. § 97-2(6).
*********** AWARD
Plaintiff's claim is denied.
The parties shall pay their respective costs.
S/______________ RENE C. RIGGSBEE COMMISSIONER
CONCURRING:
S/_______________ DIANNE C. SELLERS COMMISSIONER
DISSENTING:
S/_____________ THOMAS J. BOLCH COMMISSIONER
"The evidence tending to support plaintiffs claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence." Doggett v. South Atl. Warehouse Co., 212 N.C. 599, 194 S.E. 111 (1937), cited with approval in Adams v. A VX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998).
The majority finds, "Dr. Martin's notes, his testimony, and his response to the questionnaire are equivocal, and the Full Commission does not find that they prove plaintiff's claim by the greater weight." The majority is mistaken. A fair reading of those items shows he is not equivocal in his finding that plaintiff's work with defendant Safelite Glass Corporation at least "proximately augmented the disease to any extent, however slight." Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501, affd, 318 N.C. 410, 348 S.E.2d 595 (1986). Plaintiff is entitled to recover because she has proven last injurious exposure.
The majority finds that plaintiff's left arm was hurting at the end of her shift on January 22, 1998, after she had been assigned to unload glass for two hours. That night plaintiff's arm began to swell. She was treated by several physicians over the course of the next several months. Dr. Robert C. Martin, MD, an orthopedic surgeon, performed arthroscopic surgery on her left elbow on November 19, 1998 as well as a partial synovectomy and a removal of a small loose body in her joint.
Dr. Martin testified that it is not always completely clear when you find loose bodies in joints where they came from, but it generally implies that there has been some injury to the joint. Occasionally, sometimes, joints that have been injured may spontaneously form loose bodies, which are basically fiber cartilaginous fragments. This type of injury can result from overuse of the joint, as frequently occurs in workers on production lines.
Prior to her employment with Safelite Glass, plaintiff worked for Dixie Yarn for several months. Prior to Dixie Yarn, plaintiff worked for Perdue for 14 years as a chicken "shoulder cutter." While her elbow injury may well have occurred during former employment over a period of time and as an occupational disease rather than injury by accident, the fact that the disease had its etiology in earlier employment is not determinative under our Workers' Compensation Act. If her present employment augmented her disease to any extent, however, slight, she is entitled to recover any resulting disability and medical expense from her present employer where she suffered her last injurious exposure.
Plaintiff first saw Dr. Martin on October 8, 1998, presenting elbow pain in, her left elbow. The pain was primarily in the lateral aspect of the elbow. She had had the pain for about six weeks. He performed arthroscopic surgery on her left elbow on November 19, 1998, where he found that she had an area of wear on the cartilage surface of her capitellum (a portion of the elbow joint), and she had inflammation of the joint lining in the lateral aspect of her elbow.
Dr. Martin was asked whether the job requirements of the plaintiff's job significantly contributed to the development of her condition. His answer, "May have" might have seemed equivocal to the majority but the next question to him was: "What exactly do you mean by that?" His response showed that he was not equivocal at all with respect to whether the job significantly contributed to the development of plaintiff's condition but answered "may have" because he was relying entirely on patient history and had no first-hand knowledge with respect to plaintiff's job. It is almost universally the case that physicians do not make plant studies but rely instead on job descriptions given them by their patient or by the patient's employer. He, in effect, testified that if plaintiff's history was essentially correct, the job most likely did significantly contribute to the development of the condition for which he treated plaintiff.
"Significantly contributed to the development of her condition" is a far higher standard than "proximately augmented the disease to any extent, however slight" and since the only medical testimony in this case was to the effect that plaintiff's job with Safelite more likely than not significantly contributed to the development of her condition, it may reasonably be inferred that her job proximately augmented the disease to any extent, however slight.
The majority's findings that plaintiff did not state how often she used her arms or how often she flexed her elbow and that no testimony was elicited as to the number of pieces of glass plaintiff worked with each day is not relevant when the issue is last injurious exposure instead of initial causation. Nor is the finding that "Nothing unusual was reported by plaintiff in her work duties on 22 January 1998" relevant to the issue of last injurious exposure. It may be relevant to cases of injury by accident. However, this is an occupational disease case, in which "accident" is not relevant.
Taken in the light most favorable to all parties, the evidence would support findings that plaintiff's elbow condition began while she was working on the chicken line at Perdue, was asymptomatic then, and was augmented while working for Safelite to such an extent that it became symptomatic.
The job history given by plaintiff to Dr. Martin was essentially the same as plaintiff's job description provided by Safelite. Based upon an accurate job description, Dr. Martin testified to a reasonable degree of medical certainty that is it is possible that the job that Ms. Jones did could have contributed to the condition in her elbow.
"Exposure to a substance which can cause an occupational disease can be a last injurious exposure to the hazards of such disease under this section even if the exposure in question is so slight quantitatively that it could not in itself have produced the disease." Caulder v. Mills, 314 N.C. 70, 331 S.E.2d 646 (1985).
"If the occupational exposure in question is such that it augments the disease process to any degree, however slight, the employer is liable." Gay v. J.P. Stevens Co., 79 N.C. App. 324, 339 S.E.2d 490 (1986).
"Last injuriously exposed" means an exposure which proximately augmented the disease to any extent, however slight. Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501, affd, 318 N.C. 410, 348 S.E.2d 595 (1986).
Plaintiff proved a case of last injurious exposure and is entitled to recover disability benefits and medical compensation.
This 21st day of November 2002.
S/_____________ THOMAS J. BOLCH COMMISSIONER