Trosper v. Armstrong Wood Products, Inc., E2007-00816-SC-WCM-WC.

• Decision Date: 30 December 2008
• Docket Number: No. E2007-00816-SC-WCM-WC.,E2007-00816-SC-WCM-WC.
• Citation: 273 S.W.3d 598
• Parties: Clarence TROSPER v. ARMSTRONG WOOD PRODUCTS, INC.
• Court: Tennessee Supreme Court

273 S.W.3d 598

Clarence TROSPER v. ARMSTRONG WOOD PRODUCTS, INC.

No. E2007-00816-SC-WCM-WC.

Supreme Court of Tennessee, at Knoxville.

December 30, 2008.

Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellee, Armstrong Wood Products.

C. Patrick Sexton, Oneida, Tennessee, for the appellant, Clarence Trosper.

OPINION

GARY R. WADE, J., delivered the opinion of the court, in which JANICE M. HOLDER, C.J., CORNELIA A. CLARK, J., and FRANK F. DROWOTA, III, Sp.J., joined. WILLIAM C. KOCH, JR., J., dissenting.

Following surgeries on both of his hands, the employee filed suit seeking workers' compensation benefits on the theory that the repetitive nature of his work in the employer's flooring business exacerbated a pre-existing, but dormant, arthritic condition. The trial court found that the employee's work duties had worsened his osteoarthritis and awarded 40% permanent partial disability to each hand. The trial court also awarded temporary total disability benefits for the time during which the employee was recuperating from the surgeries and unable to work. The Special Workers' Compensation Appeals Panel reversed the trial court, holding that the employee's condition was neither caused nor aggravated by the work he performed for the employer. Because the evidence does not preponderate against the trial court's finding of causation and the award of benefits, we reverse the decision of the Appeals Panel and affirm the judgment of the trial court.

Facts and Procedural History

Clarence Trosper ("Employee"), age sixty-four at the time of trial, holds a Graduate Equivalence Diploma and earned a welding certificate from a trade school. His work history includes three years of military service, nine years employment as a press operator making springs for mattresses, and twenty years as a welder for a coal mining business.

In 1993, the Employee accepted employment with Armstrong Wood Products ("Employer"), a manufacturer of flooring products. For the first four years of his tenure there, the Employee operated sanding and sawing equipment inside the plant. In 1997, he was assigned to work outdoors, removing heavy boards by hand rapidly and continuously from a conveyor, sorting them, and then stacking them by grade. The boards ranged in size from sixteen to twenty feet in length and six to fourteen inches wide. In his new assignment, the Employee, who had never before experienced any problems with either hand, developed intense pain in both of his hands, particularly at the base of his thumbs near his wrist. He reported the occurrence to his supervisor and received medical treatment for the pain, including an injection near the base of one of his thumbs. The symptoms worsened after the injection.

When the Employee asked to return to a position inside the plant which involved less stress on his hands, the Employer agreed, transferring him to a job which entailed moving and stacking veneer. The Employee performed his new assignments capably and did not experience any further difficulty until 2000 or 2001, when he was transferred to a position which required him to lift forty-five to seventy pound buckets to shoulder level and then pour the chemical contents into a hopper. As he used his thumbs to grasp the wire handles on the buckets, he experienced a "real sharp pain" during each lift. His new responsibilities also required filling approximately 100 empty tubes an hour with wood filler and then labeling and packaging the tubes.

In 2004, after returning to work from a knee operation unrelated to this claim, the Employee again experienced pain in his hands from lifting the buckets of chemicals. He reported this problem to his supervisor and asked if the buckets could be made lighter. The weight of the buckets was not reduced, and the Employer instructed the Employee to consult with Dr. Cletus McMahon, the physician who had performed the knee surgery. Dr. McMahon diagnosed the Employee with bilateral carpometacarpal osteoarthritis, a joint disease characterized by the degeneration of cartilage in the joints of the hands, specifically at the base of the thumb near the wrist.¹ Dr. McMahon performed a surgical fusion of the joint at the base of the Employee's thumb in his right hand on October 29, 2004. When the Employee returned to the same position, however, he experienced pain in his left hand, necessitating a surgical fusion of the affected joint in June of 2005. Afterward, the Employee retired, having completed twelve years of service to the Employer.

At trial, the Employee testified that he could no longer fully extend his thumbs, had trouble making a pinching motion, had diminished grip strength, and had continuous pain in his hands. He also stated that his condition required that he forego some of his hobbies, such as hunting, fishing, and gardening. He could not use a weed eater or a chain saw as he had done in the past.

After the Employee's second surgery, Dr. William Kennedy, an orthopedic surgeon, performed an independent medical evaluation on the Employee. The Employee informed Dr. Kennedy that he began to experience pain, numbness, and tingling in both of his hands for the first time in 1997 and 1998 while sorting and stacking lumber for the Employer. He reported that since his 2004 and 2005 surgeries he has continued to have pain in both thumbs and complained that he had not regained normal strength or range of motion in either hand. Furthermore, the Employee experienced difficulty gripping and maneuvering small objects while doing ordinary tasks, such as brushing his teeth, combing his hair, bathing, or preparing food.

Based upon the examination, which included a review of x-rays taken before and after the surgeries, Dr. Kennedy concluded in his deposition that the Employee had severe osteoarthritis in both of his thumbs. According to Dr. Kennedy, the Employee's arthritic condition "more likely than not ... existed as a disease process" prior to his 1997 work stacking lumber, although the condition was "dormant" until he undertook those job responsibilities. While conceding that repetitive activity is not a cause of osteoarthritis itself, it was his opinion that the "cumulative trauma" of the Employee's work duties aroused the condition "from dormancy into a regularly painful reality." Dr. Kennedy further opined that the nature of the Employee's job "permanently aggravated and advanced [the] pre-existing, underlying carpometacarpal osteoarthritis in both of his thumbs and caused the painful instability of those joints which ultimately necessitated" the surgeries in 2004 and 2005. It was also his opinion that the "cumulative trauma" of the Employee's work made the surgeries necessary and the osteoarthritis "would not have been advanced or aggravated to the extent that it was" but for his work activities. When asked what he meant by "aggravated," Dr. Kennedy responded that the Employee's duties "caused a ... change in the biomechanics of the thumb by gradually stretching and loosening the ligaments that hold the base of the thumb in proper position, and by gradually and increasingly damaging, disrupting, and thinning" the cartilage between the bones.

Dr. Kennedy, whose testimony was extensive relative to the other doctors who testified, specifically attributed the Employee's diminished ability to spread his thumbs apart from his hands "to the injuries that he had suffered to the bases of both of his thumbs." It was his assessment that the stacking of lumber had "continued to aggravate and advance the subluxation or partial dislocation and osteoarthritis of both of his thumbs." When asked to state the effect of repetitively lifting the buckets of chemicals during the last several years of his employment, Dr. Kennedy responded that such activity "would have increased the forces conducted through the bases of his thumbs and would reasonably have been expected to aggravate and advance the osteoarthritis." Dr. Kennedy also believed that the surgical fusion of the joints in the Employee's thumbs "increased the normal biomechanical forces" in his thumbs, making him more vulnerable to injury. Finally, Dr. Kennedy assigned anatomical impairments of 8% to each hand, and recommended that the Employee permanently avoid "vigorous pushing or pulling, or rapid, repeated motions with either of his hands." It was his opinion that the Employee could not "carry out maximum gripping or pinching with either hand," or, with the use of two hands, lift or carry twenty pounds occasionally or ten pounds frequently, or lift or carry five pounds with one hand.

Dr. Brantley Burns, also an orthopedic surgeon, likewise conducted an independent medical examination of the Employee. He concurred in the diagnosis of osteoarthritis, and testified by deposition that causation was "probably a combination of things. [While i]t certainly has a large genetic component to it ... any activity that you do can ... worsen [the] problem to the point of needing some treatment." He explained that "all and any" activity, including work, would cause the condition to worsen.

Dr. Ronald Fadel, an orthopedic physician who no longer performs surgery, reviewed the Employee's medical records on behalf of the Employer. Unlike the other two physicians, Dr. Fadel did not actually examine the Employee. He testified by deposition that the cause of osteoarthritis, which he described as common for those in "the sixth and seventh decades of life, regardless of work activity," is unknown. It was his opinion that there was "no known relationship" between repetitive use of the hands and the development of the disease. Dr. Fadel testified that "activities of daily living [are] as likely to produce this disease in one person as it is in another." In this regard, he disagreed with Dr. Kennedy's conclusion that the Employee's work aggravated his pre-existing arthritic condition. Dr. Fadel conceded, however, that had he actually treated the Employee, he ...