Opinion
C.A. No. 00A-11-006-FSS
Submitted: April 3, 2001
Decided: July 31, 2001
Upon Employer's Appeal from the Industrial Accident Board — AFFIRMED.
Robert W. Ralston, Esquire, 10 E. 13th Street, P.O. Box 1396, Wilmington, Delaware, 19899. Attorney for Appellant.
William R. Baker, Esquire, Kimmel Carter Roman, P.A., 913 Market Street, 12th Floor, P.O. Box 272, Wilmington, Delaware, 19899. Attorney for Appellee.
OPINION AND ORDER
This is an appeal by Appellant-employer, Don Lee Margin, Inc. On February 8, 1999, Appellee-employee, Lisa Adkins injured her right shoulder while at home. On April 27, 2000, she filed with the Industrial Accident Board, a Petition to Determine Compensation. She claimed that the injury was precipitated by the "cumulative detrimental effect" of employment with Margin. On November 14, 2000, the Board granted Adkins' petition. Margin asserts that Adkins should not be compensated for an injury that Margin says happened at its employee's home.
I.
Adkins hurt her right shoulder at home, as she removed her shirt before showering. She testified that she felt "a sharp pain strike in my right shoulder." At work the next day, she reported the injury and then she went to the emergency room. Adkins further stated that before the injury, she had minor aches and pains that she treated with ibuprofen.
Adkins is right-handed and she is in her mid-thirties. Up to February 1999, she had been employed with Margin for almost two years. Adkins' work required her to lift and load tubes of spun nylon, each "weighing eighteen to twenty pounds." She loaded the tubes on to a three-shelf cart with heights from her hips to above her shoulder. During a typical eight hour workday, she lifted" 28 tubes every twenty minutes, 84 tubes an hour, or 588 tubes" total. She then had to push the loaded cart 100 feet to a conveyor belt. She moved left to right when lifting and loading the tubes. She averaged 40-50 hours per seven-day shift.
At the Board's hearing, both parties offered expert testimony by deposition. Dr. Axe testified on Adkins' behalf. Dr. Speiker testified for Margin. Dr. Axe testified regarding his treatment and surgical history with Adkins. He opined that the February 8, 1999, incident was not enough, itself, to cause her condition. He stated that the demanding nature of her job with Margin, specifically, "repetitive overuse" and the "extended period of time, seven days a week, doing this type of activity for eight hours a day," is what "led to her being at risk for having another event cause the problem."
Dr. Speiker, examined and evaluated Adkins. He testified that Adkins was "asymptomatic before the episode" and "the onset of the shoulder pain, which led to everything, started February 8, 1999." He also testified, however, that he was "not sure exactly what she did to herself on that date." But, he agreed with Dr. Axe that the "event, in itself, is not generally enough to cause a rotator cuff tendonitis."
II.
On appeal, the Court's review is limited by 29 Del. C. § 10142 and 10161(a)(8). The Court does not reexamine evidence nor make its own factual findings. If there is no legal error, and substantial evidence supports the factual findings, the Board's decision stands. Substantial evidence, to a reasonable mind, is adequate to support a conclusion. In granting Adkins' Petition to Determine Compensation, the Board relied on Adkins' medical expert's testimony.
General Motors Corp. v. Jarrell, Del. Supr., 493 A.2d 978 (1985).
Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., Del. Supr., 636 A.2d 892, 899 (1994).
It is well-settled that medical expert testimony constitutes "substantial evidence to support the Board's finding" and it is within the Board's discretion to decide between experts. See Lohr v. ACME Mkts., Del. Super., C.A. No. 98A-05-020, Cooch, J. (Feb. 29, 1999) Order at *2 (citing DiSabatino v. Wortman, Del. Super., 453 A.2d 102, 106 (1982)), aff'd, Del. Supr., 734 A.2d 641 (1999).
Specifically:
[t]he Board accepts the testimony of Dr. Axe, Claimant's treating physician, who opined that Claimant's demanding physical work requiring repetitive overuse of her shoulder weakened the area and put her at risk for a further problem that manifested itself when she performed a normal activity of daily living by undressing on February 8, 1999. The diagnostic studies support Dr. Axe's diagnosis for chronic impingement syndrome of the rotator cuff and inflammation of the rotator cuff tendons.
The Court sees no reason to disturb the Board's factual findings, supported as they are by competent, expert medical testimony. It is established, therefore, that Adkins' work for Margin weakened her shoulder and put her at risk for the injury that happened at home. Based on its factual findings, the Board concluded correctly that Adkins' work was a proximate cause of her injury. In other words, Adkins proved that but for her having lifted tubes for Margin, day-in, day-out for almost two years, she would not have seriously damaged her shoulder simply by taking off her shirt. Adkins' shoulder injury was caused by the cumulative detrimental effect of her work.
III.
Margin's appeal centers on its contention that:
[t]he Accident Board erred, as a matter of law, in concluding that an incident that occurs at home, on the second day while Ms. Adkins was off work, and that results in immediate and sudden pain, satisfies the legal and statutory requirement that an injury must occur in the course and scope of employee's duties before it is compensable.
Margin relies entirely on Delaware's Workers' Compensation Statute, citing 19 Del. C. § 2304 and 19 Del. C. § 2301(12) and (15). Section 2304 provides for compensation as the exclusive remedy and states that:
Every employer and employee . . . shall be bound by this chapter respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of employment.
Section 2301(12) defines personal injury as "violence to the physical structure of the body . . . arising out of and in the course of employment." Section 2301(15) states:
"Personal injury sustained by accident arising out of and in the course of employment": Shall not cover an employee except while the employee is engaged in, on or about the premises where the employee's services are being performed, which are occupied by, or under the control of the employer . . . or while the employee is engaged elsewhere in or about the employer's business where the employee's services require the employee's presence as a part of such service at the time of injury. . . .
Using an overly narrow and literal reading of the statute, Margin argues that because Adkins' shoulder did not act-up while she was at work or "in the course of employment," Margin is not liable. Margin's contention clashes with the courts' construction of the statute. In fact, Margin's literal reading of the statute defeats Workers' Compensation's very purpose. And Margin's claim that Adkins did not hurt her shoulder while in the course of employment is not supported by the facts.
See New Castle County v. Goodman, Del. Supr., 461 A.2d 1012, 1014 (1983).
Delaware Courts have consistently held that the Workers' Compensation Statute's purpose is to ensure prompt compensation for work related injuries without subjecting the employee to the uncertainties of civil litigation. See Champlain Cable Corp. v. Employers Mut. Liab. Ins. Co., Del Supr., 479 A.2d 835, 840 (1984); New Castle County, 461 A.2d at 1014; Kofron v. Amoco Chems. Corp., Del. Supr., 441 A.2d 226, 231 (1982).
IV.
It is well-established in Delaware that an on the job injury is compensable if it was proximately caused by the "cumulative detrimental effects" of the employment. As yet, no court has definitively addressed the case of a worker who suffers an injury caused by the "cumulative detrimental effects" of employment, when the injury manifests itself while the worker is off-duty and off the employer's premises. So, this case must decide if it makes a difference where the worker actually is, when a "cumulative detrimental effects" injury manifests. The Court concludes, here, that as long as the injury was caused by the "cumulative detrimental effects" of employment, it makes no difference where the employee actually is when the injury manifests.
General Motors Corp. v. McNemar, Del. Supr. 202 A.2d 803, 806 (1964).
Arthur Larson's authoritative treatise on workers' compensation specifically addresses the "origin versus manifestation of injury" issue. Larson concludes that adhering strictly to the "course of employment" test is disfavored because it leads to unjust results.
2 Arthur Larson and Lex K. Larson, Larson's Workers' Compensation Law § 29.03, at 29-19 to 29-25 (2001).
Reading the "course of employment" test literally requires the employee to be on the employer's premises or performing an employment service off the premises. According to Larson, literal interpretations are disfavored. Larson observes that the "course of employment" test has been merged with the "arising out of employment" test to create a more equitable balancing test.
Larson, § 29.03 at 29-18 to 29-20 (citing American Motorists Ins. Co. v. Steel, Tex. Ct. App., 229 S.W.2d 836 (1950); Gill v. Belmar Constr. Co., N.Y. App. Div., 236 N.Y.S. 379 (1929)).
For the "modern — and correct — rule," Larson cites Daniello v. Machise Express Co. The claimant in Daniello was splashed with jet fuel at work. Later, at home, he lit a match and burst into flames. The court granted benefits stating that New Jersey courts appeared to have adopted Larson's "`origin' thesis." Specifically, "that the injurious incident `from origin to ending must be taken to be one.'" Larson also cites Houston General Ins. Co. v. Lujan. There, a painter had been covered with paint at work. He used gasoline to remove the paint. At home after work, he went to take a bath. While he was in the bathroom, "the pilot light in the water heater ignited the fumes on his body and caused a flash fire." Citing Larson and noting that the Texas workers' compensation statute should be liberally construed, the court found for the statutory beneficiaries. The court stated that, "[o]ften, the manifestation of an injury occurs later than the precipitating event."
N.J. County Ct., 289 A.2d 558 (1972), aff'd, 122 N.J. Super. 144 (1973).
Id. at 559.
Id.
Id. at 562.
Id. at 561 (citing Field v. Charmette Knitted Fabric Co., N Y Ct. App., 156 N.E. 642 (1927).
Tex. Supr., 756 S.W.2d 295 (1988).
Id.
Id. at 296.
Id.
Id.
Id. at 297.
Further, the court stated that:
[a]n employee is not deprived of the benefits of workers' compensation merely because he [or she] was not actually working when the accident occurred.
Id. at 298.
Larson summarizes:
The common element is the fact that originating cause of the injury is something that occurs entirely within the time and place limits of the employment. The time bomb, so to speak, is constructed and started ticking during work hours; but it happens to go off at a time and place remote from the employment. The hazards of the employment. . . follow the claimant beyond the time and space limits of his work, and there injure [claimant].
Larson, § 29.03 at 29-20 (citing Smiling Jack's Mkts. v. Sheffield, Fla. Dist.Ct.App., 481 So.2d 85 (1986)).
Although the Delaware Supreme Court has not decided a case like this one or like the cases discussed by Larson, it has touched on similar issues. Duvall v. Charles Connell Roofing, cited by the Board, adopted the "usual exertion" rule. Duvall, a roofer, experienced back pain when lifting a bundle of shingles while on the job. He was diagnosed with "a congenital weakness in the bones of the back which [had] no symptoms until triggered by stress on the back." Consistent with Delaware's workers' compensation law's purposes and the favored, liberal construction of the statute, Duvall held:
See Diamond Fuel Oil v. O'Neal, Del. Supr., 734 A.2d 1060 (1999) (kidney disease compensable); State v. Cephas, Del. Supr., 637 A.2d 20 (1994) (mental injury resulting from gradual stimuli and job-related stress was compensable despite no prior physical trauma); Alloy Surfaces Co. v. Cicamore, Del Supr., 221 A.2d 480 (1966) (employee's teeth loss due to occupational disease was compensable); Globe Union Inc. v. Baker, Del. Super., 310 A.2d 883 (1973), aff'd. Del. Supr., 317 A.2d 26 (1974) (lead poisoning compensable). But see Barnes v. Panaro, Del. Supr., 238 A.2d 608 (1968) (Compensation denied where off-duty, off-premises injury caused by intervening superceding intentional tort.).
Del. Supr., 564 A.2d 1132 (1989).
Id. at 1133.
Id.
In the absence of contrary legislation, therefore, we adopt the "usual exertion" rule. Under this principle, an injury is compensable if the ordinary stress and strain of employment is a substantial cause of the injury.Page v. Hercules, also relied on by the Board, is even closer to the point. In Page, claimant alleged that repeatedly lifting heavy cylinders at work had a "cumulative detrimental effect," which caused chronic inflammatory chest injury. The Supreme Court concluded that the "[claimant's] usual duties and work habits contributed to the injury. . . . [and] . . . they were a direct cause without which her injuries would not have occurred." The Supreme Court's choice of words in Page is pointed. They echo Delaware's "but for" proximate cause standard. That artful phrase is a subtle reminder that the Workers' Compensation statute is a substitute for tort law. Were it not for the statute's preemption of common law tort claims, Adkins could have sued Margin in tort and recovered for any injuries that she proved were proximately caused by Margin. That is a backdrop against which the court views this case.
Id. at 1133.
Del. Supr., 637 A.2d 29 (1994).
Id. at 30.
Id. at 33.
In mentioning Duvall and Page, the court is not ignoring Margin's position. Margin correctly points out that the claimants' injuries in Duvall and Page manifested themselves while the workers were on the job. Thus, Duvall and Page do not refute Margin's statutory argument directly. Nevertheless, they are a foundation that supports the Board's legal conclusions.
Margin's overall contentions are contrary to the weight of authority on worker's compensation law and the law's spirit. To rule as Margin suggests allows an employer to debilitate a worker over time, but avoid liability if the worker is unlucky enough to discover the injury at home. Moreover, as presented above, Delaware law specifically recognizes the "cumulative detrimental effects" theory. This case's facts are barely distinguishable from those situations.
General Motors Corp., 202 A.2d at 806. Despite a great deal of honing workers' compensation legal concepts through overruling, what has been termed the "cumulative detrimental effects" proposition under McNemar (as summarized in Chicago Bridge Iron Co. v. Walker, Del. Supr., 372 A.2d 185 (1977)) — that a worker's injuries "when caused by the physical strain or emotional stress attendant upon the usual duties of employment, are compensable under the statute is entitled to compensation under the Workmen's Compensation Law" — remains good law in Delaware.
Although the Page and Duvall injuries manifested at work and Adkins' injury manifested during the course of daily living, the cases' reasoning applies here. The "premises" aspect, where Adkins' injury actually manifested itself, is negated by the direct causal link between her injury and the "cumulative detrimental effects" from her job's demanding physical requirements. As mentioned, both experts testified to the strenuous and repetitive nature of Adkins' employment with Margin and its causal connection to `er injury.
V.
The Board's decision is supported by the evidence. Adkins was injured while engaged in Margins' work. Based on persuasive expert medical testimony, it was appropriate for the Board to conclude that over the years she worked for Margin, Adkins' developed a chronic nerve impingement and tendonitis, making her rotator cuff susceptible to injury during a routine activity, such as undressing. For legal purposes, it makes no difference where she was and what she was doing when the proven effects of her long-term, work-related injury manifested themselves. The Board's decision stands.
For the foregoing reasons, the Board's November 14, 2000 decision awarding compensation is AFFIRMED.
IT IS SO ORDERED.