McKeever Custom Cabinets v. Smith, 84-1317

• Decision Date: 18 December 1985
• Docket Number: No. 84-1317,84-1317
• Citation: 379 N.W.2d 368
• Parties: McKEEVER CUSTOM CABINETS and Lumberman's Mutual Casualty Company, Appellants, v. Keith Allen SMITH and Hartford Insurance Group, Appellees.
• Court: Iowa Supreme Court

Page 368

379 N.W.2d 368

McKEEVER CUSTOM CABINETS and Lumberman's Mutual Casualty Company, Appellants, v. Keith Allen SMITH and Hartford Insurance Group, Appellees.

No. 84-1317.

Supreme Court of Iowa.

Dec. 18, 1985.

John M. Peters of Peters Law Firm, P.C., Council Bluffs, for appellants.

Sheldon M. Gallner and Susan M. Conroy of Gallner & Gallner, P.C., Council Bluffs, for appellee Smith.

James E. Thorn, John M. French, and Kevin D. Van Dyke of Stuart, Tinley, Peters, Thorn, Smits & Sens, Council Bluffs, for appellee Hartford.

Considered by UHLENHOPP, P.J., and HARRIS, LARSON, CARTER, and WOLLE, JJ.

UHLENHOPP, Justice.

The principal question in this appeal is whether a workers' compensation claim by employee Keith Allen Smith is barred by time limitations.

Smith worked as a cabinet maker and installer for employer McKeever Custom Cabinets from April 1978 to August 1980 and from March to May 1981. The work involved considerable hammering as well as vibrations from pneumatic and electrical tools such as sanders. Between Smith's two periods of employment by McKeever, Smith worked on a farm in Minnesota and for a cabinet maker in Oklahoma.

In November 1978 a falling sheet of wood in McKeever's shop struck Smith on the right wrist. Smith lost no time from work as a result of this incident. He obtained an X-ray of the wrist, which was negative. In April 1979, while helping to carry a cabinet, Smith fell into a six-foot hole and struck his right arm. This time he lost about a half-day's work, but he did not have an examination. He made no workers' compensation claims on these occasions.

Smith continued with his duties for McKeever, but from about the time of these two incidents he experienced some discomfort in his right wrist upon continued use of it at work. He did not obtain further medical attention or take time off, but performed his duties believing the discomfort to be a normal result of the pounding and vibrating which his job entailed. As months went on, however, the wrist pain grew worse, and he was obliged to favor his right wrist by the use of his left hand in such tasks as extended use of a vibrating sander.

Ultimately the wrist pain grew to the point that Smith concluded he should have his wrist examined. His father had undergone recent surgery by an orthopedic surgeon who was reputed to be outstanding, and Smith obtained an examination by that expert in April 1981. The surgeon diagnosed aseptic necrosis of the lunate bone--the death of the large bone in the wrist from lack of blood supply. This condition is irreversible, and fusion of the wrist is the only treatment. The treatment ends the pain (from a kind of arthritis) but also ends the wrist movement.

As of about May 1, 1981, Smith notified McKeever about the wrist condition and quit his job on account of it. On May 11, 1981, McKeever filed a first report of injury with the Iowa Industrial Commissioner, setting forth the details. On August 27, 1981, Smith instituted the present workers' compensation claim. He subsequently underwent surgery for fusion of the wrist.

Substantial evidence in the case, introduced before the deputy commissioner and then brought before the commissioner on review, established the facts we have recited. The pivotal question related to the cause of the aseptic necrosis. Was the cause of the wrist trouble the 1978 and 1979 incidents, or the continual hammering and vibrating involved in the job, or a combination of those factors? The following excerpts give the gist of the testimony of Smith's surgeon:

Q. Doctor, what is the difference between aseptic necrosis and osteonecrosis? A. The difference between aseptic necrosis and osteonecrosis, aseptic necrosis follows interruption of blood supply to the bony area, through various means or methods.

Q. And osteonecrosis? A. Osteonecrosis is a long-term degenerative change, based on normal wear and tear.

Q. So your diagnosis of aseptic necrosis would be consistent with a traumatic event, as opposed to a degenerative change in the bone; is that correct? A. Right. Moreover, a traumatic event or a series of such.

................................................................................

* * *

Q. And in Mr. Smith's case, do you have an opinion, Doctor, as to the cause of the necrosis of the lunate bone? A. I do. I feel very strongly that his wrist, lunate necrosis and ultimate surgery directly related to his occupation and the type of work he does. This is the characteristic type pattern we see in this type of condition.

Q. Okay. I'm a little unclear, Doctor. Are you referring to something then other than the single event that Mr. Smith related to you in his history as having occurred in November of '78? A. Okay. Wrist--lunate necrosis can come from a single event and we frequently do see it come from a single event. But again it is most common in people that use their wrists for hammering and pounding, carpenters, shinglers, people who shingle roofs, this sort of conditions.

Q. And from--and is this opinion, Doctor, based on the history that Mr. Smith gave you of the nature of his work? A. It's based upon that, yes, and the fact that almost all of these that we see are such related, yes.

Q. And Mr. Smith, I gather from your testimony, related to you that he was involved heavily in hammering; is that correct? A. Yes, heavy use.

Q. And I gather then you are basing your conclusions upon the nature of hammering and how you know that to affect the lunate; is that correct? A. Yes. It affects the lunate by constant trauma or it could be an acute episode to the wrist area causes the blood vessels to clot that supply the lunate bone.

Q. Such activities as operating a pneumatic air tool would not affect--A. It could very well get lunate necrosis--

Q. It could? And how does that result? A. It's a strong repeated trauma to the wrist area.

Q. Other than the hammering, what else did Mr. Smith tell you--describe to you as activity that caused aggravation or pain to his wrist? A. He said he had to do some lifting. I think he did sawing and he did use his hand and wrist frequently in work for pounding and this, of course, is a classic type of history we see in people with this condition.

Q. We come back to pounding, as in hammering; is that correct? A. Yes.

................................................................................

* * *

Q. Doctor, I would ask you to assume that prior to 1978, and early 1979, that Mr. Smith had a total absence of pain in his right wrist and that during the period, in late '78, '79, he suffered a single traumatic event to his right wrist, either by being struck by an external force or incidental to a fall, and that thereafter, immediately thereafter and continually and frequently thereafter, he experienced pain in that wrist, especially when actively using his right hand at work, up until the time he was first seen by you; would this change your opinion as to the cause of the necrosis? A. Change it from what?

Q. Being a result of his occupation to being as a result of a single traumatic event? A. I think what we've got to establish here is the fact, this condition obviously can come about from a single traumatic incident, such as falling or a hard blow to the wrist where it creates swelling within the joint, certainly this can happen also. And the other condition it can come from is repetitive hammering and use of the wrist and hand to do manual labor. Now, his history, of course, is that he, in November of '78 did have some traumatic incidents to his wrist and, of course, he continued to work, while hammering. And it could come from either one, most likely, or historically speaking, it was set off by the fact that he did have acute trauma to the wrist. In his history.

Q. Is it your opinion, then, Doctor, that the acute trauma in November of '78 was the cause of the necrosis? A. I would say that probably, historically speaking, even since he began having it at that time, it was most likely.

Q. And from what you've testified, Doctor, I understand it to be that once the interruption of the blood supply occurs, that it is irreversible? A. It's irreversible.

Q. So that then any continuing work activity would be irrelevant as far as the inevitable course of the injury and the condition; isn't that correct? A. It would just speed up the course of it. The ultimate result is going to occur no matter what, over a period of time. If he was working with it while it's injured to any degree, he's just going to make the end result come about quicker.

Following is the substance of Smith's testimony:

Q. So it was after this incident when the board came out and hit your wrist that the pain started? A. Well, see, it's--that was hard for me to distinguish because we use sanders and hand tools a lot and a lot of times you would experience strain. It was just like if you hold something at an angle a lot or the drills or the sanders a lot, you'd get like a fatigue and a strain. So then I just assumed it was natural.

................................................................................

* * *

Q. Would you describe for us the manner in which the discomfort in your right wrist progressed from July [sic--April] of 1979 until you saw Dr. Bush in April of 1981? A. It would just--at first it was just, like I say, it would only occur if I used a hand tool for a long period of time.

Q. What is a long period of time? A. Two hours. A lot of time we'd be working on one certain project which would--I'd have to sand or something for that period of time. Then it would just start to--I don't know what arthritis is like, but I just kind of compare it to that. Because it was just a discomfort and it was easy for me to take up with my left hand or just do another project until it wasn't bothering me. But as it progressed along, I would just notice it more often. It wasn't like if--in a certain period of time, cause it took a long time.

Q. And...