Kinney v. Tupperware Co.

• Decision Date: 17 May 1990
• Docket Number: No. 17954,17954
• Citation: 117 Idaho 765,792 P.2d 330
• Parties: Marilyn KINNEY, Claimant-Respondent, v. TUPPERWARE COMPANY, Employer, and Standard Fire Insurance Company, Surety, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 330

792 P.2d 330

117 Idaho 765

Marilyn KINNEY, Claimant-Respondent, v. TUPPERWARE COMPANY, Employer, and Standard Fire Insurance Company, Surety, Defendants-Appellants.

No. 17954.

Supreme Court of Idaho.

May 17, 1990.

Imhoff & Lynch, Boise, for defendants-appellants. Thomas P. Baskin, III, argued.

Goicoechea Law Office, Twin Falls, for claimant-respondent. James C. Arnold, argued.

McDEVITT, Justice.

Claimant Kinney was initially employed by Tupperware, in Jerome, Idaho, where she worked as a molding machine operator from July 29, 1985, until April 10, 1986. During this time she experienced no hand or wrist problems whatsoever. On or about April 10, 1986, Kinney left her employment with Tupperware and moved to the state of Missouri. Approximately one year later, she returned to Jerome, where on July 27, 1987, she was once again employed as a molding machine operator at Tupperware. She worked full-time for a total of fifty-six days at the Tupperware facility during her second period of employment.

Kinney alleges that as a result of repetitious work tasks which she performed at Tupperware during her second period of employment, she developed Carpal Tunnel Syndrome. She initially discussed the numbness in her fingers and pain in her lower arm with her coordinator at Tupperware. As a result, the coordinator moved her to a different molding machine to see if this would alleviate the problem. It did not. On October 12, 1987, Kinney sought medical assistance. She initially saw one Dr. Slickers. He suspected Carpal Tunnel Syndrome, or tenosynovitis, and prescribed splinting for at least one week. This did not seem to help, so he prescribed continued splinting and referred Kinney to an orthopedic surgeon, Dr. Howar, for evaluation. Dr. Howar saw Kinney for the first time on October 29, 1987. By letter of the same date, he conveyed the findings of his examination to Dr. Slickers. The letter stated in significant part:

As you know, she [Kinney] is a right-handed machine operator at Tupperware who has been having pain and paresthesia in her hand since July, this has gotten worse over the last month. There has been no injury that she can recall. She is not diabetic or hypothyroid and believe she is not pregnant....

Dr. Howar referred Kinney to Dr. Allen Schaffert for nerve conduction studies. Those studies demonstrated prolonged sensory latencies in both hands, but more so in the left hand. On November 10, 1987, Dr. Howar recommended that Kinney undergo bilateral carpal tunnel release.

By letter to defense counsel dated January 14, 1988, Dr. Howar stated that Kinney's Carpal Tunnel Syndrome had developed as one would normally expect, i.e., gradually and without any history of sudden onset. One sentence in this letter is of particular import. It states: "It would appear that this patient's symptoms began in mild form in July of 1987, and worsened rather suddenly in October." This description of the "sudden onset" of the incident is significant.

By a letter dated March 9, 1988, addressed to Kinney's attorney, Dr. Howar once again reiterated the history taken from Kinney on October 29, 1987. Significantly, he stated:

When I examined Mrs. Kinney on October 29, her Carpal Tunnel Syndrome was acute. Her symptoms began during the course of her employment with Tupperware, and it appears probable that a Carpal Tunnel Syndrome is work related.

Kinney filed an application for a hearing before the Industrial Commission on or about December 23, 1987. On June 14, 1988, the matter was heard by Robert Youngstrom, referee for the Industrial Commission. At the time of the hearing, Kinney testified that she did not think that her wrist problems were caused by a specific accident or traumatic event. But, Kinney did testify that she thought that her wrist problems were caused by the constant repetitive hand movement encountered in her job as a molding machine operator. In addition to Kinney's testimony, the record before the Commission contained copies of Dr. Howar's letters and numerous treatises on Carpal Tunnel Syndrome.

Following the conclusion of the hearing, Judy Davis Trotter testified for the defense by way of post-hearing deposition. Trotter was an occupational therapist registered through the American Occupational Therapy Association and licensed as an occupational therapist in Idaho. She had seven years of experience in the Twin Falls area. She specialized in upper extremity rehabilitation. She testified that in the industrial setting, Carpal Tunnel Syndrome may be caused by inflammation of the structures of the carpal space by repetitive work activities or trauma.

Tupperware provided Trotter with data concerning Kinney's tasks in 1987. With this information, Trotter concluded that Kinney performed her job tasks at a low repetitive cycle, albeit at the high end of the low repetitive cycle. Trotter stated that in her opinion, Kinney's employment at Tupperware in 1987 was nothing more than a possible cause of her Carpal Tunnel Syndrome. She also found that Kinney's first period of employment did not assist in causing Kinney's Carpal Tunnel Syndrome. It should be noted that Trotter completed a full analysis of only two of the six or more job tasks Kinney was required to perform while working at Tupperware.

The Commission entered its Findings of Fact and Conclusions of Law and Order on January 9, 1989. It determined that Kinney had met her burden of proving, by substantial and competent evidence, that her Carpal Tunnel Syndrome was caused by her work at Tupperware. Thus, the Commission determined that Kinney was entitled to compensation for an occupational disease.

The defendants Tupperware and Standard Fire Insurance Company appeal arguing that the Commission erred in finding that: 1) Carpal Tunnel Syndrome constitutes an occupational disease; 2) there was substantial and competent evidence to support the finding that Kinney suffered from an acute occupational disease; 3) regardless of whether she suffered an acute occupational disease Kinney still had a valid claim; and, 4) there was substantial and competent evidence that the ailment was caused by conditions at Tupperware.

I.

Appellants initially argue that in ruling that Carpal Tunnel Syndrome constitutes an occupational disease, the Industrial Commission has misconstrued I.C. § 72-438, and in particular, subsection 12 of that statute. We disagree.

Carpal Tunnel Syndrome does constitute an occupational disease under I.C. § 72-102(17), and the mere fact that it is not listed in I.C. § 72-438 does not preclude the Industrial Commission from finding and concluding that it is an occupational disease in the instant case.

The introductory phrase and subparagraph 18(a) of I.C. § 72-102 state:

Words and terms used in the workmen's compensation law, unless the context otherwise requires, are defined in the subsections which follow.

(17) "Occupational diseases."

(a) "Occupational disease" means a disease due to the nature of an employment in which the hazards of such disease actually exist, are characteristic of, and peculiar to the trade, occupation, process, or employment.

The introductory phrase and subparagraph 12 of I.C. § 72-438(12) state:

Compensation shall be payable for disability or death of an employee resulting from the following occupational diseases:

(12) Cardiovascular or pulmonary or respiratory diseases of a paid fireman, employed by a municipality, village or fire district as a regular member of a lawfully established fire department, caused by overexertion in times of stress or danger or by proximate exposure or by cumulative exposure over a period of four (4) years or more to heat, smoke, chemical fumes or other toxic gases arising directly out of, and in the course of, his employment.

Recognizing that additional toxic or harmful substances or matter are continually being discovered and used or misused, the above enumerated occupational diseases are not intended to be exclusive, but such additional diseases shall not include hazards which are common to the public in general and which are not within the meaning of section 72-102(178)(a) [sic] ¹, Idaho Code, and the diseases enumerated in subsection (12) pertaining to paid firemen shall not be subject to the limitations prescribed in section 72-439, Idaho Code. (Emphasis added.)

Appellants note that the italicized portions of the statute were added by a 1981 amendment and that prior to this amendment, subsection (12) where "intended" now appears read: "the above enumerated occupational diseases are not to be taken as exclusive, ..." Appellants urge that the 1981 amendment serves to tighten the scope of subsection (12) by making it applicable only to unnamed diseases caused by hazardous biotics or toxins, and that this renders prior case law obsolete.

We agree with appellants' argument that the legislature is presumed to have a reason, or reasons, for its statutory amendments. We do not agree that the reason for the 1981 amendment of I.C. § 72-438(12) was to limit the enumerated diseases that would qualify as occupational diseases to those caused by harmful biotics or toxins. This opinion is supported by the pertinent Idaho Code provisions. The above quoted passage from I.C. § 72-438(12) reads in part: "such additional disease shall not include hazards ... which are not within the meaning of section 72-102(178)(a)[sic]." In other words, such additional diseases shall include hazards which are within the meaning of I.C. § 72-102(17)(a). The text of I.C. § 72-102(17)(a) has not changed since prior to Kinney's action. ² Accordingly, there is no reason to believe that the amendment to I.C. § 72-438(12) altered the "hazards ... within the meaning of section 72-102(178)(a)[sic], Idaho Code...." I.C. § 72-438(12).

The record in this case, as well as the appellants' own expert witness Judy Trotter, supports the Industrial Commission's finding that job risk factors (hazards) for the...