Van Riper v. Interstate Packaging Inc., Case No: WC14-5767 (June 26, 2015)
The employee in this case worked for the employer as a manufacturer of corrugated board. During her employment with employer, she had previously sustained specific injuries to her ankle, thoracic spine, and right thumb. She testified that she had notified her employer each time she had a specific injury. From January through June 2012, she noticed an extremely sharp burning pain in her left and right shoulders while performing her job and the pain got worse throughout the day while she was working and over time until she finally sought treatment on June 29, 2010. She underwent surgery to repair a right shoulder tear on August 25, 2010 and eventually was released to return to work, at which time she sought treatment for left shoulder. She underwent left shoulder surgery.
On May 15, 2012, the employee injured her right thumb at work and reported her injury to her supervisor who drove her to an urgent care. She was given light duty restrictions including no use of her right hand, which her employer accommodated, but on July 18, 2012, the employee was washing a window with her left hand and felt a sharp pain in her left shoulder. She told her supervisor that her shoulder hurt and she needed to go home.The employee eventually underwent another surgery to repair a full thickness tear to her left shoulder which alleviated her loss of motion issues. However, prior to surgery, Dr. Wengler issued a narrative report wherein he opined the employee did sustain a Gillette type injury to both shoulders and gave 25% PPD for the left and right shoulder tears and loss of motion. After surgery, Dr. Friedland performed an IME and gave a 6% PPD rating for the right shoulder and 2% for the left shoulder.
The compensation judge found that the employee did suffer a Gillette injury to both shoulders on June 29, 2010 and sustained a right thumb injury on May 15, 2012. The judge also found that the May 15, 2012 injury was a substantial contributing cause of the aggravation to the employee’s left shoulder Gillette injury. The judge adopted Dr. Wengler’s 25% PPD rating. The employer and insurer appealed.
The WCCA on appeal found that there was substantial evidence to support the compensation judge’s determination that a Gillette injury had occurred to both shoulders and thus the trier of fact’s determination must be upheld. On the issue of notice, the WCCA found that, although the employee had previously reported specific injuries and was aware of the requirement to do so, the employee testified that she was unaware that a gradual onset injury was compensable and that it needed to be reported. The WCCA found that more than one opinion may be drawn from the evidence regarding whether or not it was reasonably apparent to the employee that her work activities were causing the aggravation, and thus the credibility determination and decision of the compensation judge must be upheld since there was substantial evidence leading to that conclusion.
Finally, the WCCA did overturn the compensation judge’s adoption of Dr. Wengler’s PPD rating stating that it was premature and an error to award PPD benefits for loss of range of motion of the shoulder when that loss was completely alleviated by surgery prior to the hearing.