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Thomas v. Verizon New England9/9/2005
nd deposition of Dr. Kenneth J. Morrissey, the affidavit, reports and deposition of Dr. Edward Akelman, and the reports and deposition of Dr. Gregory J. Austin. Dr. Morrissey evaluated the employee for the first time on July 15, 2003. The employee informed him that her complaints began about one (1) year ago and were gradually getting worse. His diagnosis was medial and lateral epicondylitis of the elbow, worse on the right than the left, and early bilateral carpal tunnel syndrome. He also could not rule out bilateral ulnar nerve neuritis of the elbows as well. In his report of that visit, Dr. Morrissey stated that the probable cause of the employee's condition was her repetitive work activities at Verizon. He recommended that she stop working.
Ms. Thomas underwent EMG and nerve conduction studies on November 25, 2003 which revealed abnormalities at the ulnar nerve across the elbow bilaterally and abnormalities at the median nerve across the carpal tunnel bilaterally. There was also a mild distal ulnar neuropathic conduction loss. Dr. Morrissey stated that he did not initiate any active treatment because he was waiting to see if the court approved the employee's workers' compensation claim.
Dr. Austin evaluated the employee on November 17, 2003 at the request of the court. His diagnosis was right elbow lateral and medial epicondylitis, mild ulnar neuritis and left lateral epicondylitis. He indicated that he did not find any evidence of carpal tunnel syndrome during his examination. The doctor stated in his report that the employee was still working at the time of his evaluation, although she had stopped working in July 2003. He noted that the condition was not severe and recommended conservative treatment with anti-inflammatories and possibly a cortisone injection and/or physical therapy. He did not expect that the employee would require surgical intervention.
Dr. Akelman, an orthopedic surgeon specializing in hand surgery, saw the employee for the first time on March 3, 2004. His diagnosis was bilateral medial greater than lateral epicondylitis, bilateral ulnar nerve compression at the elbow, and bilateral carpal and ulnar tunnel syndrome. He recommended surgical releases of the carpal and ulnar tunnels bilaterally. During the surgery, he would also inject both elbows with cortisone in an effort to address the elbow problems without surgery. In his report, he stated that the employee's condition was directly and causally related to her work activities.
The primary focus of the employer's defense in this matter was whether the work activities at Verizon were the sole cause of the employee's condition. The trial judge concluded that because there was no history of any trauma to the affected areas, the employee suffered from an occupational disease as defined in R.I.G.L. ยง 28-34-1(3). Despite the employer's arguments that other factors and activities contributed to the employee's disability, the trial judge, relying upon the testimony and opinions of Dr. Akelman in particular, found that the repetitive activities at work were the cause of the employee's condition and there would be no apportionment of liability. It was further found that the surgery proposed by Dr. Akelman was necessary.
The scope of the review of a trial judge's findings and orders by the Appellate Division is very limited. Section 28-35-28(b) of the Rhode Island General Laws states that the findings of fact made by a trial judge are final unless the appellate panel determines that they are clearly erroneous. The Appellate Division may not undertake a de novo review of the evidence absent an initial finding that the trial judge was clearly wrong. Applying this deferential standard of review
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