Steve Biondo v. Dial Corporation

Employee is a forty-seven-year-old male with diabetes. Employee has been insulindependent since the age of six. On September 16, 1999, employee's personal doctor, Dr. Abraham Phillips, treated employee for diabetes and related conditions. The treatment notes from that visit reveal that Dr. Phillips found mild background retinopathy in both of employee's eyes. Dr. Phillips also noted that employee needed close followup treatment and that employee needed retinal care soon. Employee was to return to Dr. Phillips in six to eight weeks; Dr. Phillips would refer employee to a retinal care doctor.

Employee did not return to see Dr. Phillips to seek a referral for retinal care or to followup on the September 1999 visit until approximately five years later, on September 1, 2004.

Before employee began working for employer, he underwent a physical on December 19, 2002. Employee's uncorrected visual acuity was 20/40 in both eyes and 20/30 corrected. Employee's blood pressure ranged from 150/106 to 160/100. Employee was instructed to see a physician for his high blood pressure, for blood sugar testing, and to follow-up on findings of abnormal vision.

Employee worked as a raw material unloader for employer. Employee's job duties included unloading and transferring raw materials from railcars and semi trucks into silos using a vacuum system. Part of the process required the placement of a "salt pan" underneath the railcars to catch stray raw materials lost during transfer. Employee used the vacuum system to empty the salt pan. In order to empty all of the material from the pan, it was necessary to squat down and pull and drag the salt pan out from underneath the railcar. An empty salt pan weighed between 20 and 30 pounds. A full salt pan weighed between 200 and 300 pounds.

At the hearing before the administrative law judge, employee testified that on August 27, 2004, he felt something go in his left eye when pulling a salt pan from underneath a railcar at work. Employee testified that the pan wasn't hooked up properly, which made the task of pulling it out more difficult. Employee testified that he washed out his left eye at an employee wash station, that his left eye became bloodshot, and that he experienced a little pain.

The medical records reveal that on August 28, 2004, employee sought treatment at the Christian Hospital Northeast emergency room, with complaints of pain and decreased vision in his left eye. Employee reported experiencing pain in his left eye for two and a half weeks. Employee also told treating physicians that he believed he got dust in his eye at work ten days prior, and that he had experienced pain in his left eye for two days. Employee's blood pressure was 214/131. Employee's condition was diagnosed as retinal hemorrhage and high blood pressure.

Employee next sought treatment with Dr. Phillips on September 1, 2004. Dr. Phillips referred employee to Dr. Thomas Krummenacher for treatment of his eye condition. On September 3, 2004, Dr. Krummenacher diagnosed proliferative diabetic retinopathy. In

addition to employee's left eye condition, Dr. Krummenacher was concerned about the immediate threat to vision in the right eye. On September 7, 2004, Dr. Krummenacher found no change in the vitreous hemorrhage which overlaid a tractional retinal detachment in employee's left eye. Dr. Krummenacher believed the situation in employee's left eye was dire and potentially inoperable, and referred employee back to Dr. Phillips to get employee's diabetes under control in anticipation of surgery. On October 4, 2004, Dr. Krummenacher performed a lensectomy, vitrectomy, membranectomy, fluid-gas exchange, endophotocoagulation, and indirect laser photocoagulation of the left eye, and laser surgery on the progressive retinopathy in the right eye. Dr. Krummenacher's post-operative diagnosis was proliferative diabetic retinopathy of both eyes. Employee's vision continued to deteriorate over the course of several subsequent visits with Dr. Krummenacher. On December 13, 2004, Dr. Krummenacher again performed surgery on both eyes; his post-operative diagnoses were proliferative diabetic retinopathy of both eyes, with tractional retinal detachment and vitreous hemorrhage in the left eye.

Dr. Phillips examined employee again on March 30, 2005. During the exam, employee discussed disability benefits with the doctor and whether employee's condition was job related. At this visit, employee reported that he felt something pop in his eye in late August 2004.

Dr. Krummenacher saw employee again on April 28, 2005. Employee's right eye was improving, but the left eye was irreparable with no light perception due to poor retinal circulation. Dr. Krummenacher saw no evidence that an injury in August 2004 affected employee's long term vision. Dr. Krummenacher opined that employee has a classic case of advanced proliferative diabetic retinopathy, and this, and only this, is the cause of employee's permanent disability. Dr. Krummenacher believed employee was at serious risk of further vision loss from poor circulation, and noted that employee was urged to do his utmost to control his underlying diabetes as aggressively as possible.

Employee sought treatment for left eye pain, headaches, dizziness, and facial pressure and pain from September 2005 through February 2007. Treating doctors consistently diagnosed high blood pressure and diabetes.

Dr. Joan Pernoud examined employee on June 7, 2005. Dr. Pernoud found employee's visual acuity to be 20/100 in the right eye and only peripheral light perception in the left eye. Dr. Pernoud found that employee had severe loss of vision in his left eye and that the left optic nerve was essentially dead. Employee also had definite signs of diabetic retinopathy in his right eye. Dr. Pernoud opined that employee suffered from severe ischemia, or lack of proper blood supply, to his eyes with the left being more severe. Dr. Pernoud opined that employee's acute left eye condition was caused by employee's performance of a Valsalva maneuver when he pulled a salt pan from under a railcar at work on August 28, 2004. Dr. Pernoud explained that a Valsalva maneuver occurs when someone takes a deep breath and holds it forcefully in preparation for heavy lifting or pulling a heavy object. Dr. Pernoud explained further that a Valsalva maneuver results in increased pressure to the veins coming from the head, so that blood does not drain properly from the head.

Dr. Pernoud outlined four different possibilities that could have occurred as a result of employee's performance of the Valsalva maneuver. First, pressure from engorged retinal veins could have compressed the adjacent arteries, which, being narrow and weakened from thirty-seven years of diabetes, could have occluded, causing permanent vision loss; this could have happened absent any trauma or Valsalva maneuver. Second, if employee had carotid artery disease, ischemic ocular syndrome could have occurred, causing the symptoms of a red painful eye, with a fixed dilated pupil, and a cataract. Third, abnormal vessels in the iris could have bled into the anterior chamber of the eye, causing glaucoma, corneal edema, and a longstanding increase in intraocular pressure to the point of destroying the optic nerve fibers; this also could have occurred spontaneously. Fourth, Valsalva retinopathy could have resulted from intraocular vitreous bleeding, as employee's fragile venous system ruptured from vascular engorgement. Dr. Pernoud believed that the fourth possibility was more consistent with employee's history, and probably best reflects what occurred.

In Dr. Pernoud's opinion, employee's performance of the Valsalva maneuver while engaged in his work duties was the precipitating or triggering event, and was the substantial factor in causing employee's left eye condition. Dr. Pernoud opined that diabetic retinopathy was the cause of employee's right eye condition. Dr. Pernoud acknowledged that employee had diabetic retinopathy before any reported injury based on the notes from employee's September 1999 examination by Dr. Phillips. Dr. Pernoud also acknowledged that employee's underlying condition is diabetic retinopathy in both eyes, and that this condition is fairly severe because employee has had diabetes for such a long period of time, and because employee did not follow up as he probably should have regarding care and treatment of his diabetes. Dr. Pernoud acknowledged that employee's underlying diabetic condition was so severe that his left eye complaints could have occurred spontaneously, absent any traumatic event or Valsalva maneuver.

Dr. Elliot Korn examined employee on January 5, 2006, and October 4, 2007. On January 5, 2006, Dr. Korn found employee's right eye visual acuity to be 20/50 minus three. There was no light perception in the left eye. Pathology in employee's left eye included a swollen cornea, scarring, and new blood vessel formation of the iris secondary to a period of severe ischemia. Dr. Korn diagnosed a blind left eye, severe ischemic and proliferative diabetic retinopathy of the left eye, and iris revascularization of the left eye. Dr. Korn opined that neither employee's action of pulling the salt pan on August 28, 2004, nor the performance of a Va