Spivey v. Novartis Seed Inc.

• Decision Date: 19 March 2002
• Docket Number: No. 26657.,26657.
• Citation: 137 Idaho 29,43 P.3d 788
• Parties: Geneda SPIVEY, Claimant-Respondent, v. NOVARTIS SEED INC., Employer, and Travelers Indemnity Company of Illinois, Defendants-Appellants.
• Court: Idaho Supreme Court

43 P.3d 788

137 Idaho 29

Geneda SPIVEY, Claimant-Respondent, v. NOVARTIS SEED INC., Employer, and Travelers Indemnity Company of Illinois, Defendants-Appellants.

No. 26657.

Supreme Court of Idaho, Boise, December 2001 Term.

March 19, 2002.

Bowen & Bailey, Boise, for defendants-appellants. David V. Nielsen argued.

Richard S. Owen, Nampa, for claimant-respondent. Richard S. Owen argued.

KIDWELL, Justice.

Novartis Seed Company and Travelers Indemnity Company of Illinois appeal the Industrial Commission's award of benefits to Geneda Spivey for an injury caused by an accident arising out of and in the course of her employment.

I. FACTS AND PROCEDURAL BACKGROUND

Since 1989, Geneda Spivey (Spivey) was employed by Novartis Seed Company (Novartis) as a seed sorter. Her job entailed removing defective seeds off a conveyor belt for approximately eight hours, while sitting or standing. According to the Industrial Commission Rehabilitation Division Job Site Evaluation, the usual type of arm movement for a seed sorter was below shoulder level; a small amount of time the movement was at shoulder level. The evaluation did not comment on the time spent lifting above the shoulder.

No evidence in the record contradicted Spivey's testimony that she had not experienced any shoulder pain prior to October of 1997. She testified that on October 28, 1997, while sorting seed, she moved "sort of sideways" to pick out bad seeds and "felt a pop and burning in the top of her right shoulder." Spivey was the only seed sorter at her end of the conveyor belt. She reported the incident to her supervisor the next day, October 29, 1997, and was told that if the pain persisted to an unbearable point, Novartis would send her to a doctor.

Spivey continued to work, testifying that her shoulder hurt continuously and got worse as the months passed. She met with administration personnel at Novartis on or about January 21, 1998, and requested medical care. Novartis sent her to Dr. Douglas Hill, who diagnosed Spivey with a frozen right shoulder, with abduction limited to 40 degrees and internal rotation limited to 10 degrees. An MRI taken on February 6, 1998, showed an incomplete rotator cuff tear with moderate degenerative arthritis of the AC joint. Dr. Hill referred Spivey to Dr. Gary Botimer, an orthopedic surgeon. On February 16, 1998, he gave a rendition of the cause of the accident very similar to that given by Dr. Hill, and scheduled surgery for February 26, 1998.

On February 13, 1998, Spivey filed a first report of injury with the Industrial Commission (Commission). Ms. Glenda Barrett, Novartis' administrative manager, prepared the document, but it was not signed by the claimant. On February 19, 1998, according to Dr. Hill's records, he spoke with the surety's adjuster, GAB, and after the conversation noted that the forward-reaching motion described by Spivey was inconsistent with the usual cause of rotator cuff tears. He concluded that her injury was not related to her work accident, and GAB denied Spivey's claim on February 27, 1998. Because of the denial of benefits, Spivey's surgery was postponed.

On March 9, 1998, Dr. Botimer wrote to GAB and stated that he believed her injury was the result of her work accident, contrary to Dr. Hill's opinion. At the request of defendants, Dr. George Nicola examined Spivey on April 4, 1998. He determined that her employment was not the cause of her shoulder injury. However, the referee found that Dr. Nicola based his opinion almost exclusively upon a video of the job site, as opposed to his examination of Spivey.

On May 7, 1998, Dr. Botimer performed an acromioplasty with rotator cuff repair. In a letter to GAB on May 18, 1998, he stated that if the job site video was an accurate portrayal of Spivey's job, then he agreed with Dr. Nicola's opinion. However, he noted that Spivey took "significant exception" to whether the video accurately represented what she did at Novartis. Dr. Botimer stated that if Spivey's account were accurate, then a person would get a different impression. Spivey's frozen shoulder condition returned after the surgery, and manipulation under anesthesia was performed on July 9, 1998; this occurred again on December 28, 1998. On or about December 28, 1998, Novartis terminated Spivey's employment.

A hearing was held on August 3, 1999. During the hearing, the referee found Spivey to be a credible witness, but on the other hand, found the testimony of the Novartis employees to be inconsistent and not credible. Spivey took the post-hearing deposition of Dr. Botimer. He indicated that her description of her daily work activity could lead to a rotator cuff tear. He further stated that Spivey's degenerative arthritis and the presence of osteophytes might have weakened and compromised the rotator cuff until a minor trauma could cause a tear. The defendants took the post-hearing deposition of Dr. Nicola. He stated that the act of reaching across the conveyor belt and removing very light weight objects would not be enough to cause a pop or rotator cuff tear. He did concede, however, that with the condition of Spivey's shoulder and AC joint coupled with the reaching motion, there was a greater chance she would damage her rotator cuff. He also admitted that the accident described by Spivey at least aggravated her condition and resulted in the need for treatment. Both sides submitted their post-hearing depositions, and the case came under advisement on January 21, 2000.

The referee found that Spivey had suffered an injury to her right shoulder caused by an accident arising out of and in the course of her employment on October 28, 1997. The referee's findings were based on Spivey's testimony, Dr. Botimer's opinion that her work caused her injury, and the concession by Dr. Nicola that the accident at work would have at least aggravated any preexisting rotator cuff tear Spivey may have had, thus requiring medical care. The referee further found that the treatment for Spivey's right shoulder was reasonable. As such, Spivey was entitled to reimbursement of all medical expenses incurred in treating her injured shoulder under I.C. § 72-432.

On May 8, 2000, the defendants filed a motion for reconsideration, arguing that the referee's decision did not adequately explain how Spivey's job placed her at a greater risk of developing a rotator cuff tear than would the same movements done by any member of the general public. The Commission denied the motion on May 26, 2000. The Commission determined that the record supported the decision and declined the defendants' "invitation to introduce risk analysis from the occupational disease legal theory into the accident and injury legal theory."

Appellants filed their timely notice of appeal on June 28, 2000.

II. STANDARD OF REVIEW

In Jensen v. City of Pocatello, 135 Idaho 406, 409, 18 P.3d 211, 214 (2000), this Court set forth the following standard of review:

When this Court reviews a decision from the Industrial Commission, it exercises free review over questions of law but reviews questions of fact only to determine whether substantial and competent evidence supports the Commission's findings. Ogden v. Thompson, 128 Idaho 87, 88, 910 P.2d 759, 760 (1996). Substantial and competent evidence is "relevant evidence which a reasonable mind might accept to support a conclusion." Boise Orthopedic Clinic v. Idaho State Ins. Fund (In re Wilson), 128 Idaho 161, 164, 911 P.2d 754, 757 (1996).

Whether an injury arose out of the course of employment is a question of fact to be determined by the Commission. Kessler ex. Rel. Kessler v. Payette County, 129 Idaho 855, 859, 934 P.2d 28, 32 (1997)

. The Commission's conclusions on the credibility and weight of evidence will not be disturbed unless the conclusions are clearly erroneous. Zapata v. J.R. Simplot Co., 132 Idaho 513, 515, 975 P.2d 1178, 1180 (1999). On appeal, this Court is not to re-weigh the evidence or consider whether it would have reached a different conclusion from the evidence presented.

See Warden v. Idaho Timber Corp., 132 Idaho 454, 457, 974 P.2d 506, 509 (1999).

Jensen, 135 Idaho at 409, 18 P.3d at 214.

III. ANALYSIS

A. The Commission's Finding That Spivey Sustained An Injury Caused By An Accident Arising Out Of And In The Course Of Her Employment Was Supported By Substantial And Competent Evidence.

The appellants urge that Spivey failed to show that her injury was the result of a work-related accident. Spivey had degenerative arthritis and did not establish conclusively that the act of reaching across a conveyor belt at work was an accident from which her injury arose. They argue that the act of reaching across a conveyor belt does not meet the definition of an accident, because the motion is not an unexpected or untoward event. Appellants contend that Spivey's muscle mass had degenerated to the point where reaching for anything could have caused the tear. They suggest that because Spivey likely reaches for many items throughout her daily routine, her employment did not increase the potential for an accident resulting in an injury.

Further, appellants contend that the Commission erred by not requiring the respondent to establish that her job placed her at a greater risk of incurring an injury than did her regular activities.

An analysis of whether the accident requirement has been met must begin with a review of the relevant statutory language. Idaho Code section 72-102(17)(b) defines accident as "an unexpected, undesigned, and unlooked for mishap, or untoward event, connected with the industry in which it occurs, and which can be reasonably located as to time when and place where it occurred, causing an injury." An injury is defined as "a personal injury caused by an accident arising out of and in the course of any employment covered by the worker's compensation law." I.C. § 72-102(17)(a). Whether an employee is entitled to compensation under the Worker's Compensation Act requires...