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Thomas v. Verizon New England9/9/2005
to the cases before us, we find that the trial judge's conclusions are not clearly erroneous and we, therefore, deny the employer's appeal.
The employer has filed nine (9) reasons of appeal which can be reduced to two (2) basic issues. In the first seven (7) reasons, the employer basically argues that the trial judge erred in not reducing the amount owed by the employer pursuant to R.I.G.L. § 28-34-7 because other factors contributed to the development of the employee's occupational disease. In particular, the employer contends that the trial judge failed to consider the testimony of Dr. Austin, the impartial medical examiner. We have reviewed the entire record and find sufficient basis for the trial judge's decision that apportionment was not appropriate.
The pertinent portion of R.I.G.L. § 28-34-7 reads as follows:
"Where an occupational disease is aggravated by any other disease or infirmity, not itself compensable, or where disability or death from any other cause, not itself compensable, is aggravated, prolonged, accelerated, or in any way contributed to by an occupational disease, the compensation payable shall be the proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as that occupational disease, as a causative factor, bears to all the causes of that disability or death, the reduction in compensation to be effected by reducing the number of weekly payments or the amounts of the payments, as under the circumstances of the particular case may be for the best interests of the claimant or claimants."
During cross-examination of both Dr. Morrissey and Dr. Akelman, the employer attempted to establish that factors outside of work such as her gender, household chores, and activities such as food shopping contributed to the development of the employee's condition. Dr. Akelman acknowledged that all of these factors can contribute to the development of carpal tunnel syndrome and cubital tunnel syndrome. However, he explained that based upon the particular facts of the employee's case, her condition was caused by the repetitive work activities at Verizon and not by any activities outside of work or her genetic profile. Dr. Morrissey also agreed in general terms that a number of factors can contribute to the development of the conditions the employee suffers from, but he also testified that based upon the facts of the employee's specific case, it was his opinion that her condition was directly related to her work activities.
The employer also attempted to attack the foundation of the doctors' opinions by pointing out that they had a limited description of the employee's job . Both of the doctors were aware that Ms. Thomas's job involved repetitive data entry work for the majority of her work day. Although they did not know exactly how many hours she spent doing data entry, it was clear that the data entry work was the most repetitive activity she performed on a daily basis. The employee's testimony was that she did data entry work for seven (7) hours a day. The physicians' understanding of the employee's job duties was sufficient to form a basis for their medical opinions regarding the cause of the employee's condition.
In his bench decision, the trial judge thoroughly reviewed the deposition testimony of the three (3) doctors -- Dr. Morrissey, Dr. Akelman, and Dr. Austin. He acknowledged the discussions regarding other possible causative factors. He then explained that he found the testimony of Dr. Akelman to be particularly persuasive in explaining his opinion that the condition is related solely to work in this case and the other potential causes are not involved.
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