Meyers v. Electro-Static Finishing, Inc. , 303 Minn. 508 ( 1975 )

Scott, Justice.

Employee-relator seeks review of a decision of the Workmen's Compensation Commission denying her compensation on the basis that she did not sustain a personal injury which aggravated a preexisting condition. The commission found that employee “suffered a manifestation of continuing symptoms” of an injury occurring 4 years earlier in an automobile accident completely unrelated to her employment. We reverse.

In May of 1968, employee was involved in an automobile accident which resulted in loss of work for 1 week. She was able to return to her employment, but was forced to leave in September 1968, for medical reasons unrelated to the accident. Settlement of the personal injury claim arising out of the accident occurred in March 1972.

On August 17, 1972, employee commenced employment with respondent, working the second shift. Her job essentially involved the packing of finished products to be sent to companies ordering them. Specifically, she would take a finished product off a conveyor belt, wrap it and box it, and put it on a skid which was taken to the back room from which the products were shipped. The articles varied in volume and weight up to a maximum of approximately 20 pounds. Employee stated that the work was basically light and that she was able to complete it without any trouble or “bother.”

A special order came in for doors which employee described as awkward and weighing about 20 pounds. Initially, she was not required to do any pushing, pulling, or lifting, but rather was required to guide the finished doors through an opening near the conveyor. Later on the same day she did lift various doors into packing crates. The entire procedure involved twisting, turning, lifting, pushing, and pulling. The next day, employee apparently experienced headaches and pain in her neck and back. Despite this, she did report to work that day and did other packing which was not as strenuous. She has not reported to work since then. Her claimed work-related injury manifested itself initially in her upper back, through the right shoulder, and down to the finger tips. This incident took place approximately 2 weeks after she commenced employment with respondent.

The issue presented is whether the commission was correct in finding: “That the employee did not sustain a personal injury on said date nor at any other time pertinent hereto, which can be said to have aggravated a pre-existing condition into continuing difficulty.”

This case presents a very novel factual situation. A portion of the medical testimony of several of the physicians related back to the time of the automobile accident in 1968. Dr. Lumir C. Proshek indicated that he consulted with employee on January 4, 1971, December 6, 1971, and on March 6, 1972. During those examinations, employee’s symptoms were basically similar, with concentrated pain in the thoracic lumbar area and the posterior neck, and complaints of rather constant occipital headaches. The doctor testified that as late as March 6, 1972, the employee had complained of the same problems, which allegedly were aggravated by her employment in August.of 1972. Dr. Proshek concluded that Mrs. Meyers suffered from a “ [p] rimarily extension flexion injury with subsequent development of cervical disc disease with radiculitis and headaches.” The employee’s testimony was that the pain1 and numbness disappeared in March 1972, shortly after her settlement of the automobile accident case, and then returned a mere 2 weeks after commencing employment with respondent.

Dr. Meyer Z. Goldner who examined employee on December 20,1971, after viewing and hearing of similar symptoms as those recorded by Dr. Proshek, concluded: “Her symptoms have persisted now in varying degrees of intensity for over three and a half years and I believe are of a permanent nature.”

Dr. Kobert A. Wengler, an associate of Dr. Goldner, had occasion to examine employee at Mt. Sinai Hospital on September 27, 1972. At that time she told the doctor that she had thrown “her neck and back out” on August 30, 1972, at respondent’s plant. Dr. Wengler also noted the presence of symptoms similar to those exhibited on other occasions, as stated above, including neck pain radiating into her right arm. Based upon a hypothetical question, Dr. Wengler concluded that “the event of August 30, 1972 precipitated acute recurring disc syndrome and necessitated the hospitalization and current lay-off of her work activity.” When questioned as to whether this event would have been a substantial factor in her present condition, Dr. Wengler responded that it was a “significant aggravation of the underlying problem that she had prior to this.”

Dr. Thomas H. Comfort, an orthopedic surgeon, examined employee at the request of the employer on November 30, 1972. He testified that it was medically reasonable to assume that there might have been an aggravation of her condition as a result of her work activities in August. However, he held the opinion to a reasonable degree of medical certainty that she had a 20-percent permanent partial disability, but that “none of that permanency was a result of the work activity at Electro-Static.”

Therefore, both the factual and medical evidence evolve only into a question of temporary total disability and not permanent partial disability. Without doubt, the medical evidence supports, and employee concedes, that the permanent partial disability exhibited at the present time was present before her employment with respondent. The only question then to resolve is whether there was an aggravation of the preexisting condition.

The compensation judge found that the employee “sustained a personal injury to the cervical neck, consisting of an aggravation of a pre-existing cervical spine condition arising out of and in the course of her employment.” Apart from the distinctly opposite memoranda accompanying the findings of the judge and the commission, the only difference in their findings is in the area of causation of aggravation of the preexisting condition.

Respondent challenges employee’s credibility by stressing the fact that she did not report any injury until September 19, but rather called twice between August 31 and September 19 to explain her absence, the first time because she had car trouble and the second time because she was ill. Respondent also questions employee’s testimony concerning the fact that her previous physical difficulties completely vanished after the settlement of her automobile accident claim in March. These matters were explored during cross-examination, and employee explained that she feared that because of her preexisting condition respondent would dismiss her if she gave the true reason for being absent and that she believed that her condition would rectify itself. Respondent further asserts that employee’s statement to Dr. Wengler that she “threw her neck and back out” lacks specific factual support to establish that any injury occurred at work. Concerning this statement, employee insists that she did incur these injuries at work. The nature of this evidence dwindles in importance because the record discloses no evidence of incidents other than her employment which could cause this aggravation.

The parties are therefore in basic agreement as to the facts. The evidence indicates that when the employee commenced work on August 17,1972, she had no physical problems. When she was first examined by Dr. Wengler on September 27, 1972, she had “acute neck tenderness with a marked spasm of the neck muscles and limited motion.” She was immediately hospitalized and remained at Mt. Sinai Hospital from September 27 through October 12. We therefore must conclude that some event precipitated her changed condition. From the evidence before us, it appears only logical to conclude that her work was the aggravation. To support the commission’s findings, we would have to conclude that her physical condition, present in March 1972, had never changed. This is directly contrary to her testimony which is supported by the testimony of a fellow employee, and commonsense itself. Any other finding would raise serious doubts as to her ability to perform her employment obligations during the 2-week period prior to her sustaining the injury producing the condition diagnosed by Dr. Wengler on September 27.

We agree very strongly here that no permanent partial disability can in any way be attributable to respondent. This does not prevent this court from arriving at the only logical conclusion, that is, that the employee’s work caused an aggravation of a preexisting condition and the employer is therefore liable for the temporary total disability involved. We therefore conclude that the commission’s finding that the employee “suffered a manifestation of continuing symptoms” is contrary to the evidence. The commission admits this is a close question, and may have been swayed by the equity involved in holding in favor of an employer for an aggravation of a preexisting condition when the permanent partial disability is the same now as before her employment, and when her total employment with this employer lasted less than 2 weeks. We could not accept such reasoning, nor are we persuaded by what may have happened. Our decision must be based upon the evidence contained in the record before us, which is contrary to the conclusion that this aggravation came on spontaneously.

It is a well-accepted rule that an employer must take the employee as he finds him, with any existing infirmities. Gillette v. Harold, Inc. 257 Minn. 313, 101 N. W. 2d 200 (1960); Larson v. Davidson-Boutell Co. 258 Minn. 64, 102 N. W. 2d 712 (1960). The record fails to exhibit any effort on the part of respondent herein to make any inquiry to determine the physical condition of employee prior to the commencement of the employment period.

This court stated in Gillette (257 Minn. 321, 101 N. W. 2d 206):

“It is well established by the authorities that when the inevitable effects of an underlying condition are hastened by an injury that is sudden and violent or the result of unusual strain or exertion, the injury and its disabling consequences are compensable. It should further be conceded, however, that injuries may arise out of and in the course of the employment which do not occur suddenly or violently. In the course of one’s ordinary duties injuries may occur daily which cause minimal damage, the cumulative effect of which in the course of time may be as injurious as a single traumatic occurrence which is completely disabling. We have been presented with no good reason why compensation should be paid in one instance and not in the other.”

Further, in the case of Forseen v. Tire Retread Co. Inc. 271 Minn. 399, 403, 136 N. W. 2d 75, 77 (1965), this court said:

“* * * It is thus clear that an employee may receive benefits upon disablement if his work activities aggravated his infirmity, even if they did not do so because of some unusual or violent strain or exertion. But, as we said in the Gillette case, ‘ [t] he important question is whether the employment is a proximate contributing cause of the disability.’ ”

We therefore hold, under the principles espoused in these decisions, that employee did sustain a personal injury to the cervical neck consisting of an aggravation of a preexisting condition arising out of and in the course of her employment. The case is therefore reversed and remanded to the commission for the determination of the termination date of the temporary total disability.

Attorneys fees of $400 are allowed.

Reversed and remanded.