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Spivey v. Novartis Seed Inc.3/19/2002
2002 Opinion No. 35
Appeal from the Industrial Commission of the State of Idaho.
Order of the Industrial Commission is affirmed.
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
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