Black & Decker Corp. v. Humbert

SALMON, J. • Norman Humbert (“Humbert”), a licensed electrician, worked for Black and Decker Corporation (“Black and Decker”) since 1993. He filed a claim with the Maryland Workers’ Compensation Commission (“Commission”), alleging that he sustained an occupational disease of impingement syndrome of the right shoulder arising out of and in the course of employment with Black and Decker. A hearing was held before the Commission in March of 2005. The Commission disallowed Humbert’s claim.

After Humbert’s request for a rehearing was denied, he filed a petition for judicial review in the Circuit Court for Baltimore County on May 26, 2005. A jury trial was held on January 10, 2008. Black and Decker introduced into evidence the decision of the Commis ¹⁷⁵ sion but called no witnesses. Humbert was the sole live witness.

He also introduced into evidence the video deposition of Dr. Raymond Wittstadt, a Board Certified Orthopaedic Surgeon. At the conclusion of the evidentiary phase of the case, Black and Decker moved for judgment in its favor. The trial judge denied the motion. The jury, after twenty minutes of deliberation, answered “yes” to the following question: 1) Did Norman L. Humbert sustain an occupational disease of impingement syndrome of the right shoulder arising out of and in the course of his employment with Black and Decker Corporation?

Black and Decker filed a motion for judgment notwithstanding the verdict and/or, a motion for new trial. Both motions were denied. Black and Decker filed a timely appeal to this Court in which it contends that the trial judge erred: 1) in denying its motion for judgment and 2) in declining to give three instructions proposed by it. I. A. Humbert’s Trial Testimony As an employee of Black and Decker, Humbert’s primary job was that of a senior electrician.

It was his responsibility “to take care of facilities” such as electric lighting. His work was performed at the corporate headquarters in Towson. At his work site, there was constant remodeling in progress and many of the tasks in which he engaged caused him to work in the vicinity of the ceilings. More specifically, while standing on a ladder and reaching up to the ceiling, he frequently would replace lights, take ceilings down, put ceilings up, and pull wires down and then install new wires in the ceiling.

In addition to his job as an electrician, Humbert did vehicle maintenance work and, after snowfalls, operated a front-end loader to remove snow. He also sometimes worked for Black and Decker as a plumber and carpenter. Additionally, he ¹⁷⁶ sometimes maintained vehicles. He testified: “Lots of that is laying on the ground reaching up into the ... engine compartment.” When he operated a front-end loader to remove snow, he used his right arm to push and pull levers.

Humbert first saw Dr. Wittstadt for a problem with his right shoulder in November of 2003. At the time of his initial visit, he did not relate his shoulder problem to any activities at work but, after subsequent visits, and after talking to Dr. Wittstadt, he discovered that his problem was “possibly work related.” In December of 2003, Humbert’s shoulder was “already fatigued and sore” and the more he operated the front-end loader, the more it hurt. In his words, “I just couldn’t do it anymore.” According to Humbert, operating the front-end loader was “the straw that broke the camel’s back.” He was treated by Dr. Wittstadt up until June of 2004, when Dr. Wittstadt operated on Humbert’s right shoulder to remove a bone spur. Once the bone spur was removed, Humbert was asymptomatic.

He has had no shoulder problems, and has not seen Dr. Wittstadt as a patient, since June of 2004. Humbert further testified that he has been an electrician for twenty-five years and that the “overhead activities, working the ceilings, etc.” were job duties typical of those performed by all electricians. Moreover, he first noted “shoulder impingement syndrome” symptoms “after so many times of working the ceiling----” In his words, after “working the ceiling” he “started to get fatigued and then it just gradually got worse and worse ... [due to] constant use.” His first symptoms were “burning, stinging, fatigue” of the right shoulder and “[u]sually the higher [he] reached the worse it would get.” B. Dr. Wittstadt’s Testimony Since 1998 Dr. Wittstadt has specialized in the treatment of the shoulder. Ultimately he diagnosed Humbert with having “impingement syndrome” of the right shoulder.

The impingement occurred when the acromion (the front edge of the ¹⁷⁷ shoulder blade) rubs, or impinges, upon a tendon as the arm is lifted. The impingement (or rubbing) is caused by a bone spur. Impingement syndrome is also called tendonitis. Dr. Wittstadt first saw Humbert on November 5, 2003.

The patient said that he was an electrician and that for several months he had been having pain in his right shoulder. The pain bothered him most at night when he attempted to sleep. Dr. Wittstadt gave Humbert a cortisone injection and saw him in his office in December 2003, and again in January 2004. On January 21, 2004, an MRI was performed.

That diagnostic procedure showed that Humbert had “moderate tendonitis in the lateral supraspinatus tendon.” In February of 2004, Humbert gave Dr. Wittstadt further details as to his job duties as an electrician. Humbert reported that as an electrician he did a “lot of overhead work” and, in addition, did other types of work, including driving “a type of tractor” that involved “a lot of forward motions with his arm.” Dr. Wittstadt testified that Humbert’s diagnostic studies demonstrated that he had a bone spur on the underside of the acromion in his right shoulder, which contributed to the development of the shoulder impingement syndrome from which he suffered. In Dr. Wittstadt’s words “it takes two things to develop a problem.” The two things were: 1) activities such as continuous reaching overhead that results in inflammation and 2) the presence of a spur. He explained that the mere presence of a spur, which is often a congenital condition, does not mean that a person will develop impingement syndrome.

But with the spur present, people often develop impingement syndrome by years of repetitive activities such as reaching overhead. That reaching motion causes the tendon to rub against the bone spur. He further testified that, based on the job description provided to him by Humbert, the claimant seemed to be engaged in “the type of occupation that would ... cause these problems to develop.” On cross-examination Dr. Wittstadt reiterated that the claimant’s job did not, alone, cause the bone spur to develop. ¹⁷⁸ Instead, it was both the bone spur, which was not work related, in combination with the overhead activities that Humbert engaged in due to his occupation as an electrician, that caused the syndrome.

II

A. Black and Decker’s Motion For Judgment Maryland Code (2008 Repl.Vol.), § 9-502 of the Labor and Employment Article reads, in pertinent part, as follows: (c) Liability of employer and insurer.—Subject to subsection (d) of this section and except as otherwise provided, an employer and insurer to whom this subsection applies shall provide compensation in accordance with this title to: (1) a covered employee of the employer for disability of the covered employee resulting from an occupational disease; or (2) the dependents of the covered employee for death of the covered employee resulting from an occupational disease. (d) Limitations on liability.—An employer and insurer are liable to provide compensation under subsection (c) of this section only if: (1) the occupational disease that caused the death or disability: (1) is due to the nature of an employment in which hazards of the occupational disease exist and the covered employee was employed before the date of disablement; or (ii) has manifestations that are consistent with those known to result from exposure to a biological, chemical, or physical agent that is attributable to the type of employment in which the covered employee was employed before the date of disablement; and (2) on the weight of the evidence, it reasonably may be concluded that the occupational disease was incurred as a result of the employment of the covered employee. ¹⁷⁹ In its motion for judgment, 1 Black and Decker first asserted that Dr. Wittstadt made it clear in his testimony that developing a “bone spur is not occupational in character.” The movant’s argument continued: “the cause of the impingement is an aggravation of that bone spur” and that in order to have impingement syndrome Humbert “had to have the bone spur to get there.” Relying on Blake v. Bethlehem Steel Co., 225 Md. 196 , 170 A.2d 204 (1961), Black and Decker argued that “mere aggravation of a disease not occupational in character is insufficient to establish an occupational disease.” See Blake, supra, 225 Md. at 200-201 , 170 A.2d 204 . In opposition to this first argument, Humbert’s attorney contended that the disease at issue was not the preexisting bone spur; instead, the occupational disease was “impingement syndrome.” Humbert’s attorney relied on the facts as set forth in Blake along with a decision by this Court in Allied-Signal, Inc. v. Bobbitt, 96 Md.App. 157 , 628 A.2d 1311 (1993). On appeal, both parties rely, at least in part, on Blake and both parties make essentially the same arguments as they did below in regard to the first ground Black and Decker raised in support of its motion for judgment.

Medford Blake commenced employment with Bethlehem Steel in 1939. Blake, 225 Md. at 198 , 170 A.2d 204 . At that point he already suffered from, inter alia, chronic bronchitis. Id. at 197 , 170 A.2d 204 .

At trial Blake’s doctor testified: I think his working conditions aggravated an underlying bronchitis and led to his total permanent disability.... I don’t know the etiology of this condition, I am not claiming that his occupation was [the] etiological agent in producing his condition. All I am claiming even as [to] the chronic bronchitis, [is that] repeated exposure in the type [of] work ¹⁸⁰ he did in my opinion aggravated his condition and led to worsening and perhaps premature development of total disability. Id. at 198 , 170 A.2d 204 .

At issue in Blake was the construction of Maryland Code (1957), Article 101, section 22(c), which provided: Occupational disease aggravating other infirmity or contributing to disability or death from other cause.—-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 anywise contributed to by an occupational disease, the percentage of such contribution to be determined by the medical board * * * shall be * * * limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as such occupational disease, as a causative factor, bears to all the causes of such disability or death * * *. Id. at 199 , 170 A.2d 204 . The Blake Court said: The appellant argues that an ordinary disease may become occupational where it is aggravated by occupational environment. We think, however, that such a construction would virtually read out of the statute the requirement that in order to support a claim under the language quoted, there must be a finding that, in part at least, the disability is due to an occupational disease, and the claim can be allowed only for that part.

If the statute is to be broadened in the manner contended for, it should be done by the legislature and not by the courts. The statutes in a few states so provide. See 3 Schneider, Workmen’s Compensation, § 924. Some authors argue for a broad coverage or a broad interpretation.

See 1 Larson, Workmen’s Compensation Law, § 41.61. In its first decision the Medical Board made the precise findings that the claimant’s condition was “nonoccupational in character” and not “characteristic of the ¹⁸¹ claimant’s occupation.” Even though Dr. Shiling thought the working conditions aggravated the nonoccupational bronchial condition, we think the end result can not properly be attributed, in whole or in part, to an occupational disease. Id. at 200, 170 A.2d 204 (emphasis added). In its brief, Black and Decker makes the following argument: The argument of the injured worker in Blake “that an ordinary disease may become occupational where it is aggravated by the occupational environment” is mirrored by the argument that was advanced by [ajppellee.

Both argued that some combination of the underlying pre-existing condition and the work joined to create a compensable occupational disease. If the combination of the two disparate causes could form a compensable situation, then the Court in Blake had sufficient evidence to so find. That analysis, however, was rejected by the Court, noting, “[e]ven though [the medical expert] thought the working conditions aggravated the nonoccupational bronchial condition, we think the end result cannot properly be attributed, in whole or in part, to an occupational disease.” Blake, 225 Md. at 200 , 170 A.2d 204 . As can be seen by comparing the statements of the experts in Blake and the instant case, the medical facts are quite similar.

In both, the injured worker has an underlying condition (here a subacromial bone spur). In both, the work did not cause the development of the underlying condition (note the testimony of Dr. Wittstadt that the cause of the bone spur was not work-related). In both, the medical expert opined that work aggravated the underlying condition. In both, the alleged occupational disease would not have existed but for the underlying condition (again, note the testimony of Dr. Wittstadt that both the subacromial bone spur, or as sometimes noted an anatomical variation, and the alleged repetitive activity were necessary to cause the shoulder impingement syndrome). ¹⁸² The above argument is not persuasive.

The disease here at issue is shoulder impingement syndrome or tendonitis. Black and Decker explicitly admits this in its brief at page 17. Unlike the situation in Blake , where the claimant suffered from pre-existing chronic bronchitis prior to working for the defendant, here Humbert never had shoulder impingement syndrome prior to working for appellant and, but for the work-related activities (frequent necessity to reach overhead as part of his employment as an electrician), the shoulder impingement syndrome would not have developed—according to Dr. Wittstadt. Our analysis in the case of Allied-Signal, Inc. v. Bobbitt, supra, illustrates the invalidity of appellant’s argument.

Levon Bobbitt worked for Allied-Signal as an “assembly repair person.” 96 Md.App. at 160 , 623 A.2d 1311 . Her job involved repairing electric units that weighed between fifteen and twenty pounds. Id. Her job required her to pick up a unit from a shelf and bring it to her work station.

Id. When she finished making the repair, she would return the unit to one of four shelves for inspection. Id. Two of those shelves were at chest level or higher.

Id. Ms. Bobbit repaired between three to twenty units per day. Id. After Ms. Bobbitt had worked for her employer for several years, she developed a problem -with her left shoulder that her doctor diagnosed as “shoulder impingement syndrome.” Id.

Dr. Ronald Byank, Ms. Bobbitt’s expert, testified that the shoulder impingement syndrome was caused by repetitive activities involving working with the arms, either in front of or in a raised up or overhead type of position. And every time you bring your arm forward, you are pinching the bursa and the rotator cuff between two bony prominences, one being the head of the humerus and the other being the acromion. And someone who is doing this type of activity in a—on a daily basis frequently is at least predisposed to develop this condition. Not everybody who does this work obviously ¹⁸³ gets the condition, but someone who does this type of work is at least a setup to get it.

And somebody who is just doing work sitting at a desk and not doing any work in front of them or over their head generally would not be ... predisposed or disposed to this. Id. at 161 , 623 A.2d 1311 . Dr. Byank also testified that the shoulder impingement syndrome was inherent in the work activities of the claimant. Id.

He further testified that “with or without the [bone] spur she would have developed the problem anyway.” Id. Allied-Signal argued in Bobbitt that the trial judge erred in denying its motion for judgment “because there was insufficient evidence to establish that appellee suffered an occupational disease.” Id. at 164, 623 A.2d 1311 . Ms. Bobbitt’s employer also argued, as Black and Decker does in the case sub judice, that Blake v. Bethlehem Steel Co., supra, was controlling. Id. at 166, 623 A.2d 1311 .

In Bobbitt, after reviewing the relevant facts and the decision in Blake, we said: In the case sub judice, appellants assert that appellee’s pre-existing condition, arthritis, is not characteristic of the industry and was not caused by her occupation. We note that under the Blake analysis the focus is not whether the pre-existing condition is occupational in character but whether the resulting condition is due, in part at least, to the occupation. Appellants believe that the existence of the arthritis precludes a finding of an occupational disease because the resulting condition, shoulder impingement syndrome, was due to the aggravation of the arthritic condition. Although there is evidence that supports this argument, we must view the evidence in the light most favorable to appellee.

Dr. Byank testified that the working conditions of appellee possibly contributed to her arthritis; however, he specifically stated that with or without the arthritis, appellee would have developed this condition. He further stated that the shoulder impingement syndrome resulted from the re ¹⁸⁴ petitive activities inherent in her work; “you can not separate the condition from the work.... ” This testimony establishes that even if the arthritis effected [sic] the development of the shoulder condition, the condition was due in part to the characteristics of appellee’s employment. Because this testimony contradicts the testimony of Dr. Cohen, a jury question was raised concerning whether this shoulder impingement syndrome was occupation in character. Thus, the lower court did not err in submitting this case to the jury.

Id. at 167-68, 623 A.2d 1311 (emphasis added). As can be seen from the portion of the Bobbitt opinion that we have emphasized, the focus that the court should apply is to the issue of whether the resulting condition (shoulder impingement syndrome) is due, in part, to the occupation. With that focus in mind, it is clear, based on Dr. Wittstadt’s testimony, that Humbert’s shoulder impingement syndrome resulted, in part, from the repetitive overhead activities inherent in his work as an electrician. Black and Decker argues that the “salient fact in Bobbitt was that the occupational disease would have happened whether the underlying condition existed or not,” whereas in the case at hand, the facts “differ[ ] dramatically” because Dr. Wittstadt testified that the occupational disease (shoulder impingement syndrome) would not have existed but for the pre-existing bone spur.

Appellant’s “salient fact” argument is in no way persuasive in light of the fact that the Bobbitt Court clearly stated that even if the arthritis did contribute to Bobbitt’s condition it still would have been compensable so long as the resulting condition (impingement syndrome) “is due, in part at least, to the occupation.” Id. at 167, 623 A.2d 1311 . After attempting to distinguish Bobbitt, Black & Decker argues, in the alternative, that the language from Bobbitt that is quoted above is not binding because it amounted to mere dicta. In Bobbitt, the issues presented were: ¹⁸⁵ I. Did the court err in excluding the designated representative of the employer/insurer pursuant to its sequestration order?

II

Did the court err in submitting the case to the jury when there was legally insufficient evidence to establish a claim for an occupational disease? Id. at 159, 623 A.2d 1311 . The Bobbitt Court answered the second question in the negative and the first in the affirmative. The excerpts from Bobbitt relied upon by Humbert were all part of the court’s discussion necessary to the resolution of the second question.

And, if the second question had been answered in the affirmative it would not have been necessary to answer the first question. Thus, no part of the Bobbitt discussion relevant to this case was dicta. A second reason that appellant gave in the trial court in support of its motion for judgment was that Humbert failed “to present competent evidence that it’s the nature of an electrician that he’s going to get shoulder impingement syndrome.” Black and Decker’s argument at trial continued “regardless of whether Humbert got it because of his job, it’s not due to the inherent nature of the general class of occupation.” Black and Decker cited below, and cites in this Court, three eases in support of its position, viz.: King v. Bd. of Educ., 354