Glenda Buchanan v. SRG Global

suffered an occupational disease that was the prevailing factor in causing her bilateral upper extremity problems and resulting disability; (3) there is insufficient evidence to find that the proceedings were brought, prosecuted, or defended without reasonable grounds, and the request of each party for fees and costs is denied; and (4) the remaining issues are moot.

Employee filed an Application for Review alleging the administrative law judge erred in finding employee failed to prove she sustained an occupational disease and in finding employee failed to prove a medical causal connection between work and her bilateral upper extremities.

Employee was 60 years of age at the time of the hearing before the administrative law judge. Employee worked for employer for a total of 32 years. Employee worked variously as a "racker" and as a "lead person." The "racker" job involved lifting plastic car parts, such as grilles, that weighed from several ounces up to 5 pounds, and attaching the parts to racks which moved through the workspace; this task required overhead work about 33 % of the time. The "lead person" job, on the other hand, involved paperwork and administrative duties, such as counting the number of racks that were filled.

Employee is generally a poor historian with respect to when and for how long she performed the lead person versus the racking job, but her personnel file shows she was working as a racker as of May 2009. Employee also credibly testified (and we so find) that she performed exclusively racking duties from 2010 to 2012.

Employee's normal work schedule was 40 hours per week/8 hours per day, but employee's paystubs reflect that she worked numerous overtime hours in 2012, and sometimes worked as many as 60 hours per week. Employees were permitted two 15 minute breaks, but no lunch break. During the entire course of her employment with employer, employee did not have any hobbies or other non-work activities that involved repetitive use of the upper extremities.

On December 3, 2012, employee was 1 or 2 minutes late for work because she was caught by a train. Employer discharged employee on December 5, 2012, because she purportedly accumulated too many attendance points. Employer did not present any testimony to prove up the requirements of its policy or the specific circumstances of employee's accumulation of attendance points.

Employee's personnel file contains her termination slip and some written warnings for attendance, but it is unclear to us from these documents whether employer's policy was a strict "no fault" attendance policy under which employees received points for attendance incidents which were beyond their control, or whether employer took the circumstances of each attendance incident into consideration when assessing points. Also, employee is alleging a gradual onset occupational disease sustained each day in the course of her employment through December 2012, so we cannot say that each of the attendance incidents leading up to her discharge from employment occurred "after" employee sustained the injuries she claims herein. In light of these considerations, we find that employer did not terminate employee from employment for post-injury misconduct.

In 2009, employee started experiencing pain in her left shoulder when reaching overhead. The pain progressed and employee began experiencing similar symptoms in her right shoulder as well. The pain was so intense that it prevented employee from sleeping at night. Employee tried taking over the counter pain pills, but these were ineffective in treating her bilateral shoulder pain. Employee reported her bilateral shoulder pain to employer's safety officer, Connie Holt, but Ms. Holt told employee that her problems were the effect of aging and arthritis, and refused to authorize medical treatment. So employee sought medical treatment on her own.

On January 23, 2009, employee saw Dr. Michael Critchlow for her bilateral shoulder pain. Dr. Critchlow noted that employee's pain was associated with her racking duties, and that employee was taking 800 mg of over the counter ibuprofen 5 times per day, but that this was ineffective in controlling employee's pain complaints. Dr. Critchlow ordered diagnostic studies, recommended shoulder injections, and referred employee to a specialist, Dr. Patrick Knight. Employee saw Dr. Knight periodically from March 2009 to November 2012 for shoulder injections and to refill her prescriptions for pain medications. On March 16, 2009, Dr. Knight opined that an MRI of employee's left shoulder showed a severe partial cuff tear. A later MRI of March 1, 2010, revealed that employee had supraspinatus tendinosis with a large full-thickness rotator cuff tear in her left shoulder. On November 2, 2011, Dr. Knight diagnosed a rotator cuff tear in employee's right shoulder.

Dr. Knight addressed the issue of surgical intervention with employee, but employee declined because she could not afford the surgeries and could not afford to take time off work. Drs. Knight and Critchlow did not take employee off work at any time in connection with her bilateral rotator cuff tears, and employee continued working the racking job until employer terminated her employment on December 5, 2012. The shoulder injections provided employee with short-term relief, but her pain consistently returned.

Employer's expert, Dr. James Emanuel, initially found employee's work to be the prevailing factor causing her shoulder problems, but changed his mind after watching a video supplied by employer that he characterized as showing employees working at a "very leisurely pace." Transcript, page 372. We have carefully reviewed the video evidence, and we must disagree with Dr. Emanuel's characterization of the work. While employees are not depicted as rushing around in the video, they are in near-constant motion, and the work shown involves frequent reaching and twisting with the arms. More importantly, employee and a coworker, Sarah Yancy, credibly testified (and we so find) that employer could run the line at various speeds, so it's not clear that the video is representative of the typical pace of the work.

Notably, Dr. Emanuel opined that an employee would need to lift 25 pounds over shoulder height for 66 % of the work day in order for him to deem a rotator cuff tear related to work. Dr. Emanuel did not refer to any medical literature or scientific study to support this hypothesis; it thus appears that it is of Dr. Emanuel's own creation. But Dr. Emanuel did not describe the origin of his hypothesis, or provide any testimony to specifically link it to his own clinical experience.

On the other hand, employee's expert Dr. Dwight Woiteshek (who also reviewed the video evidence) noted that there is a vast difference between lifting near the body and with the arms extended, as employee was required to do, and stressed the repetitiveness of the lifting tasks in rendering his opinion that employee's work was the prevailing factor causing her to suffer bilateral overuse syndrome with rotator cuff tears. Especially when we consider that employee was working exclusively as a racker for two full years during the time that her problems manifested and progressed, Dr. Woiteshek's opinions regarding occupational disease and medical causation ultimately strike us as more persuasive. Accordingly, we adopt the opinions and findings from Dr. Woiteshek as our own as to the issues of occupational disease and medical causation.

Dr. Woiteshek opined that employee is not at maximum medical improvement with regard to her bilateral shoulder injuries, and recommended that she undergo additional medical treatment including, but not limited to, surgical repair of her bilateral rotator cuff tears. We find persuasive this opinion from Dr. Woiteshek.

Dr. Woiteshek also opined, in his report, that employee has been unable to work as a result of her bilateral shoulder conditions from December 2012 into the foreseeable future. Employee testified she has been out of work since December 2012, and that she is requesting an award of temporary total disability benefits from that time period, but she did not specifically testify whether she felt she was unable to work after December 2012. Employee applied for, but did not receive, unemployment insurance benefits.

We have noted that employee was working full-time (with a lot of overtime) for employer up until December 2012, and that Drs. Knight and Critchlow did not, at any time, take employee off work. Nor did either of these treating doctors render an opinion that employee was unable to work owing to her bilateral shoulder conditions. In fact, Dr. Knight frequently indicated that employee had surprisingly good range of motion, and that she was highly functional even with her bilateral rotator cuff tears. It thus appears to us that employee could have continued wo