Workers’ Compensation – Occupational Disease – Disc Degeneration – Neck Flexion & Twisting – Termination

Smith v. Preformed Line Products Co. (Lawyers Weekly No. 11-08-1067, 17 pp.) (Christopher Scott, Commissioner) Appealed from Opinion & Award of Deputy Commissioner Brad Donovan. I.C. No. W13590.

Holding: Every job plaintiff performed for the defendant-employer for 11 years involved hand/arm movement with her neck in a downward flexed position, and she constantly turned her head from left to right to watch her work, as she looked down. Through her medical providers, plaintiff showed that her work subjected her to unusual conditions, which caused or aggravated the degeneration of the discs in her neck.

Plaintiff is entitled to temporary total disability benefits for her occupational disease.

Dr. Brian Rose opined that, biomechanically, flexing one’s neck puts pressure on the discs in the cervical spine. If this action is done repetitively a significant amount of times, this action will increase the rate of deterioration of the discs in the cervical spine. He further noted that repeated rotation of the neck from left to right with flexion would further increase the stress on the disc. Dr. Rose also noted that while individuals’ discs tend to dry out as they get older, not everybody eventually requires fusion surgery such as he recommended for plaintiff.

Dr. Rose opined that plaintiff’s work activity exposed her to a greater risk than the general public to developing a symptomatic disc condition. The mechanism of twisting the head from side to side while in a flexed position exposes a normal individual to a greater risk of having the onset of disc desiccation and its progression as compared to the general public. Plaintiff’s work activity was a significant contributing factor to plaintiff’s disc condition requiring surgery. The major cause of plaintiff’s neck injury was repetitive motion. Dr. Rose also opined that it would be unlikely for plaintiff to have a herniated disc at such a young age (41), and he has noted as an expert that there is a direct relation between the frequency of repetitive motion and disc degeneration.

Dr. Pilakel also opined that the work materially contributed to plaintiff’s development of the problems that he saw in her when he first evaluated her on March 9, 2009. He noted that the type of job plaintiff was doing, with the constant flexion of her neck, is what caused her problems in the neck. Lastly, Dr. Pilakel opined that plaintiff was not ready to be in a job for eight hours per day when he released her from his care on Sept. 30, 2009.

The defendant-employer fired plaintiff on March 19, 2009, ostensibly for being late to work. Plaintiff had a history of absenteeism and tardiness, for which she had been counseled and warned.

Nevertheless, because of the circumstances surrounding plaintiff’s return to work with restrictions and her subsequent termination while she was under work restrictions as well as undergoing physical therapy, it has not been established that plaintiff’s termination was for a reason unrelated to her neck and left shoulder conditions, for which a non-injured employee would have been terminated.

Plaintiff applied for unemployment benefits in April 2009 and began receiving benefits three weeks after she was terminated from employment. She began drawing $352 per week on July 7, 2009, and continues to receive these benefits.

As part of the requirements for unemployment benefits, plaintiff kept a job search log. This log indicates that she has been unable to find work suitable to her capacity.

Given plaintiff’s continued complaints of pain, sleep disruption, anxiety, work restrictions, and the need for surgery, plaintiff’s inability to obtain work is due at least in part to her physical limitations and the restrictions consequent to her work-related conditions. Plaintiff has made significant, reasonable efforts to obtain suitable employment. These efforts have been unsuccessful.

Plaintiff has proven that she is disabled and that her disability is due to her work-related conditions. She is entitled to temporary total disability benefits and the payment of related medical expenses, including the surgery recommended by Dr. Rose.