Bryant v. Masters MacHine Co.

I.

The employee appeals from a pro forma judgment of the Superior Court which affirmed a decision of the Workers’ Compensation Commission denying the Petition for Award of Comjjensation.

The facts of the case are largely undisputed. Until August 14, 1979, the date assertedly commencing the period of total disability, the employee worked as a machinist for Masters Machine Co. On February 28,1978, the employee was in the course of his employment activities operating a drill-press. He was sitting on a stool, described to be twenty-five or twenty-six inches in height, which another employee accidentally kicked out from under him. Because his knees were “frozen” due to a pre-existing condition, the employee was unable to break his fall, and he fell from the stool directly onto the floor. He testified that he immediately experienced pain in his lower back, and that he sought medical assistance at a local hospital the next day when he developed substantial pain in his right hip. Medication provided by his physician, Dr. Belnap, was ineffective in relieving the pain which persisted and occasionally intensified. The employee nonetheless returned to work three days after his fall. He testified that the pain forced him to lose a week of work in November 1978, and that it ultimately compelled him to leave his employment on August 14, 1979. 1

Other testimony revealed the debilitating effects of the fall. The employee stated that he was able to work, climb stairs, lift heavy items, dance, swim, and drive pain *332 lessly until the incident of February 28. After the fall, however, he was unable to stoop, dance, swim, or climb stairs.. He also claims to have difficulty sleeping, and he now consumes forty aspirin a day. The sole issue presented develops from the employee’s medical condition preceding his fall from the stool on February 28, 1978. 2

By stipulation of the parties, the deposition of George Morton, a rheumatologist, was admitted in evidence before the Commissioner. Dr. Morton had examined the employee at the request of defendant-insurer. He diagnosed the employee as suffering from rheumatoid arthritis of the right hip, osteoarthritis at L4-5 and L5-S1, spon-dylolisthesis at L5-S1 (“a subluxation or partial dislocation of the fifth vertebra, fifth lumbar vertebra or the first sacral vertebra”), and spina bifida occulta at L5. The record shows that spina bifida occulta is a congenital disorder. The osteoarthritis is a condition which predated the February 1978 fall. The symptomatology of the os-teoarthritic condition was stated to have been “caused” by the employee’s fall from the stool. However, absent x-rays which would demonstrate the extent of this condition as it existed before February 1978, Dr. Morton was unable to determine whether the fall affected any underlying pathology.

Similarly, while spondylolisthesis can be caused by trauma, Dr. Morton was unable to identify a causal relation between that condition and the employee’s accident because of the absence of records made before the accident. He also testified that, as with osteoarthritis, quiescent spondylolisthesis may become symptomatic upon trauma. In fact, Dr. Morton testified that if the employee had been affected with asymptomatic spondylolisthesis before February 1978, the accident might well have revealed symptomatic manifestations of the condition.

Finally, the medical report prepared by Dr. Thomas Martin, a specialist in orthopedic surgery, was admitted into evidence, in which Martin diagnosed the employee as suffering from noncongenital degenerative disc disease in L5-S1.

The Commissioner’s decree made several pertinent findings. 3 He found that the employee is totally disabled. He found that “the employee did fall off a stoll [s/c] at work under circumstances making that injury compensable as against Masters Machine.” Presumably, this means that the injury arose out of and in the course of employment. See 39 M.R.S.A, § 51. The Commissioner then considered the employee’s back condition and found that the os *333 teoarthritis, degenerative disc disease, spon-dylolisthesis, 4 and spina bifida occulta were asymptomatic prior to February 28, 1978. He found that the accident rendered these conditions symptomatic. The Commissioner then concluded that falling from the stool effected no change in the underlying pathology of the employee’s back. 5 Construing Hamm v. University of Maine, Me., 423 A.2d 548 (1980) to hold that “the mere creation of pain and swelling is not sufficient for a work-related incident to be an injury within the meaning of the Act,” he concluded “that the employee has failed in its burden of demonstrating that the incident in question resulted in an injury to the employee’s lumbo-sacral spine.” The petition was denied.

Pursuant to the employee’s subsequent motion for findings of fact and conclusions of law, the Commissioner made clear that the employee’s congenital and degenerative conditions were not caused by the fall, but that they were rendered symptomatic by it. The employee obtained a pro forma decree in a timely manner from which he now seasonably appeals.

We conclude that the Commissioner committed an error of law in construing Hamm to preclude, as a general proposition, the compensability of a disability resulting from “the mere creation of pain and swelling.” He further erred in concluding on the basis of the application of that erroneous principle of law that the employee here had failed, on this record, to carry his burden of demonstrating that the fall from the stool resulted in an injury to the employee’s lumbo-sacral spine which “arose out of” his employment.

II.

The issue of causal connection between employment activity and disability is one of fact. Bruton v. City of Bath, Me., 432 A.2d 390, 392 (1981); Rowe v. Bath Iron Works Corp., Me., 428 A.2d 71, 73 (1981); Parent v. Great Northern Paper Co., Me., 424 A.2d 1099, 1101 (1981); Baker’s Case, 143 Me. 103, 107, 55 A.2d 780, 782 (1947). The employee bears the burden, in proceedings on his Petition for Award of Compensation, of showing by a preponderance of competent and probative evidence that a causal relationship existed between the work-related incident and his disability. Brough v. Bell Pike Northeast, Me., 440 A.2d 365, 366 (1982); Rowe, 428 A.2d at 73 (1981).

It must be borne in mind that the original purpose of the Workers’ Compensation Act was “to compensate employees for injuries suffered while and because they were at work.” (Emphasis added.) Canning v. State Department of Transportation, Me., 347 A.2d 605, 608 (1975). From 1915 (P.L.1915, ch. 295) to October 3, 1973 (P.L.1973, ch. 389), the generality of that concept was limited in application by the statutory requirement that an injury, to be compensable, arise out of the employment “by accident.” 6 For purposes of satisfying *334 the requirement of “accidental” injury, this Court has held that a weakness in the bodily structure which is gradually worsened and ultimately breaks down as a result of the stress caused by usual work activity may be an injury by accident. Bernier v. Coca-Cola Bottling Plants, Inc., Me., 250 A.2d 820 (1969); but see Towle v. Department of Transportation, Me., 318 A.2d 71 (1974). We have also held that if the stress of work activity activates a pre-existing infirmity, or aggravates the development of it so as to cause an internal breakdown of the affected part of the bodily structure, a personal injury by accident occurs. Patrick v. J. B. Ham, Co., 119 Me. 510, 111 A. 912 (1921). These decisions are clearly consistent with the broad purpose of the Act to provide compensation for work-related disability. It was the Legislature’s intent to sharpen and re-emphasize this original, general purpose of the Act by the elimination of the “by accident” requirement. Canning, 347 A.2d at 607-08. ,

It would be anomalous to construe the causation requirement of the Act, after the restrictive element of accidental injury has been eliminated, in its application to the so-called “aggravation” cases so as to make the overall impact of the amended causation requirement more stringent than it was in its original form, absent a clearly discernible legislative intent compelling such a construction.

It must, however, be borne constantly in mind that the purpose of the “arising out of” language, as used in the Act, is to establish a requirement of causation between the employee’s work activity and his ultimate disability. See Bruton v. City of Bath, Me., 432 A.2d 390 (1981). Even after the legislative elimination of the accidental component of the causation requirement, it was not intended that compensation should issue for every disability resulting from an injury sustained while the employee was at work, but only for a disability as to which the precipitating injury was additionally sustained because of the employee’s work. Canning, 347 A.2d at 609.

In a series of cases dating back to 1919, this Court has followed what has become a well-settled rule of compensation law that when a work-related incident or exertion “lights up” or activates disabling effects of a pre-existing disease condition which was previously asymptomatic, the disability resulting from such activation of symptoms is compensable. See, e.g., Wood v. Cives Construction Corp., Me., 438 A.2d 905, 910 (1981); Goldthwaite v. Sheraton Restaurant, 154 Me. 214, 218, 145 A.2d 362, 364 (1958); Gagnon’s Case, 144 Me. 131, 132, 65 A.2d 6, 6 (1949); Martriciano v. Profenno, 127 Me. 549, 550, 143 A. 270, 271-72 (1928); Mailman v. Record Foundry & Machine Co., 118 Me. 172, 180-83, 106 A. 606, 610-11 (1919). The criteria for analyzing the causation requirement in a case involving aggravation of a pre-existing condition were set out in synthesis over a decade ago in Soucy v. Fraser Paper, Ltd., Me., 267 A.2d 919 (1970). 7 There, the employee had slipped while running to assist a fellow employee, had fallen and sustained pain in his shoulders, neck and the occipital area of the head. He continued to work with pain for a period of approximately two months, during which time his condition worsened. He ultimately left work due to the pain. He received compensation under an approved agreement. It was eventually concluded, as a matter of medical diagnosis, that he suffered from amyotrophic lateral sclerosis or “motor neuron disease.” That condition was, as a matter of medical knowledge, of unknown etiology. On the employer’s petition, it was contended that the employee’s disability as of the date of the filing of the petition was due to the continuing effect of the underlying motor neuron disease and not to the symptomatol-ogy activated by the work-related fall. The Commissioner so found and terminated compensation.

*335 On appeal, we noted that because of the effect of the approved agreement, the employee’s existing disability was to be treated as adjudicated to result from the work-related fall and therefore to be compensable until the employer demonstrated by a preponderance of the evidence “that the effect of the accident has ended.” Id. at 921. We stated that the disability “would continue to be compensable:

(1) If the fall is the sole cause of the present incapacity.

(2) If the fall caused or precipitated the neurological disorder or if the neurological disorder existed before the fall and was aggravated by the fall... .

(3) If effects of the fall and of the neurological disorder combine to produce the incapacity. ...”

Id. at 921-22. We said the employer’s burden required it to negative all three of these propositions in order to achieve a termination of compensation. In the absence of any medical knowledge as to the physiological cause of motor neuron disease and with evidence in the record that the employee’s symptoms could be the result of pre-existing cervical arthritis “lighted up” by the fall, we concluded that the evidence was insufficient to show a termination of the effects of the fall in producing the existing disability. Soucy, 267 A.2d at 922.

We applied these substantive principles of law in the context of the burden of proof requirements of an employee’s petition for award in Canning, 347 A.2d 605. There, the Commissioner awarded total disability compensation, for the period of the employee’s hospitalization, to an employee who was the victim of an angina attack while shoveling dirt in the course of his work-related duties. On appeal, the employee claimed that the Commissioner should have made a finding of permanent disability entitling him to continuing disability benefits after the hospitalization ceased. The employer claimed on appeal that the angina attack was not a compensable injury under the Act on the theory that the attack arose out of the employer’s preexisting heart condition and was not caused by the work-related activity. We there stated that:

An employee is, of course, entitled to compensation for a disability proximately caused by his employment regardless of whether his condition at the time of injury was average or subnormal. Thus, a work injury that aggravates a pre-exist-.ing condition is compensable even though a physically normal employee would have been unaffected, provided the injury occurs under conditions that would otherwise entitle the employee to compensation.

347 A.2d at 609. (Emphasis added.) Citing Soucy, 267 A.2d 919, we said that the fact that “a pre-existing condition was in part responsible for the claimant’s period of disability does not in itself render the injury noncompensable.” Canning, 347 A.2d at 609. We there affirmed the award of compensation for the limited period set by the Commissioner. See also McLaren v. Webber Hospital Ass’n, Me., 386 A.2d 734 (1978).

These cases reiterate the previously established law that an employee is entitled to disability compensation for any period of disability that is shown to result from the combined effects of work-related activity and a pre-existing condition of the employee. Canning, 347 A.2d at 609; Soucy, 267 A.2d at 922. That entitlement exists, in appropriate circumstances, whether or not the employee’s pre-existing condition is completely asymptomatic prior to the impact upon it of the work-related activity or incident, Canning, 347 A.2d at 609, at least for the period during which the impact and the condition combine to produce some disability. Canning, 347 A.2d at 609; Soucy, 267 A.2d at 921.

What those cases do not directly address is the content of the proper test of causation and the method of its application in cases where the disability for which compensation is sought results from the “combined effects” of a work-related risk and a “personal risk” of the employee created by a pre-existing condition (or susceptibility to disability) which is not work-related. Those cases and previous cases spoke only to the general issue, which was all that was before *336 the Court in those cases, of whether a disability caused by such combined effects was a compensable “injury” for purposes of the application of the “arising out of” language of the Act. We have not addressed the particular concept of causation, or its content, which is to be applied to distinguish those cases in which the “injury” is sustained by an employee only while at work but not because of his work activity, from those cases where the injury is sustained both while and because the employee is engaged in the work activity. In the former, the injury does not result in compensa-bility while in the latter it does.

Some of our subsequent cases have turned on considerations of the content of the causation requirement, but they have been few in number and have not presented an occasion for the comprehensive articulation of the nature and content of the causation requirement in the so-called “combined effects” case. This case does present an occasion wherein such articulation is necessary to a reasoned decision of the issues before us as they are so nicely and deliberately postured by the Commissioner. The Commissioner’s erroneous interpretation of our recent cases on the point, here manifested, provides further impetus to set out in greater detail the underlying concept of the causation requirement.

That requirement is intended to result in the implementation of the general legislative intent under section 51 and section 52 of the Act that an employee who incurs a disability while and because he is at work receive compensation for it. See Canning, 347 A.2d at 608; Bartley v. Couture, 143 Me. 69, 55 A.2d 438 (1947). To serve that purpose, the requirement must be so shaped as to permit, in a “combined effects” case, a balanced consideration of the employee’s pre-injury condition and the extent to which the injury results from a work activity. This can only be accomplished by the application of a standard which recognizes the factual progression from the actual physical activity done in the course of work-related tasks to the medically determinable mechanism of disability resulting therefrom. But the standard must also involve a comparison of: (1) the extent to which the employee’s condition, including pre-existing levels of disability, apart from the work-related activity, contributes to bringing about the resultant disability and (2) the extent to which the onset of disability is a function of the risks created by the requirements of the employment. As Professor Larson points out, the causation requirement is made up of two components. Professor Larson denominates these as “legal cause” and “medical cause” and separates them as follows: “Under the legal test the law must define what kind of exertion satisfies the test of ‘arising out of the employment’ .. . [then] the doctors must say whether the exertion (having been held legally sufficient to support compensation) in fact caused this . . . [injury].” 1B Larson, The Law of Workmen’s Compensation, § 38.83, at 7-235 (1980). 8 Accord Newman Brothers, Inc. v. McDowell, 354 So.2d 1138, 1140 (Ala.App.), cert. denied sub nom. Ex parte Newman Brothers, Inc., 354 So.2d 1142 (1978); Strickland v. National Gypsum Co., 348 So.2d 497, 499 (Ala.App., 1977); Market Food Distributors, Inc. v. Levenson, 383 So.2d 726, 727 (Fla.Dist.Ct.App.1980) (back injury case); Sellens v. Allen Products Co., Inc., 206 Neb. 506, 508, 293 N.W.2d 415, 417 (1980); Foley v. State Accident Insurance Fund, 29 Or.App. 151, 155, 562 P.2d 593, 595 (1977); Pitsch v. Department of Industry, Labor & Human Relations, 47 Wis.2d 55, 60, 176 N.W.2d 390, 392 (1970).

Absent the content provided by “legal cause,” the causation requirement of the statute would allow compensation for any disability that could be shown as a matter of medical or physical fact to have occurred because of the effect of ordinary *337 activity upon a pre-existing condition during the course of employment. Such was clearly not the intent of the Legislature in using the “arising out of” language. It was intended that compensation should be available only where disability results from some sufficient causal relationship to the conditions under which the employee works. See Canning, 347 A.2d at 609; Gooch’s Case, 128 Me. 86, 145 A.2d 737 (1929). This legal element of the causation requirement is the mechanism by which it becomes possible to distinguish between two types of disabilities: (1) that such happens to occur at work as a result of the employee’s existent condition but without any enhancement of his susceptibility to its occurrence arising out of any conditions or requirements of the work activity or environment, and (2) that disability which occurs only because some condition of his employment increases the risk that he will sustain a disability above that level of risk which, because of his condition, he faces in his normal everyday life. Only by that mechanism can we distinguish the disability that is more likely than not produced, at least in part, by a risk related to the employment from one that is not produced in any way by such a risk. Thus, to meet the test of legal cause where the employee bears with him some “personal” element of risk because of a pre-existing condition, the employment must be shown to contribute some substantial element to increase the risk, thus offsetting the personal risk which the employee brings to the employment environment. See McLaren v. Webber Hospital Association, Me., 386 A.2d 734, 736 (1978); 3B Larson, supra, § 38.83, at 7-236. 9 A comparison of contributing risks is required between that risk which arises out of the conditions of employment and that risk “present in the normal non-employment life of the workman or any other person.” Sellens, 206 Neb. at 510, 293 N.W.2d at 418. With the test so framed, the comparison of the employment risk is made as against the non-employment risk defined by an objective standard. “Note that the comparison is not with this employee's usual exertion in his employment but with the exertions of normal nonemployment life of this or any other person.” (Emphasis in original.) 1B Larson, supra, § 38.83, at 7-237. See also Johns-Manville Products v. Industrial Commission, 78 Ill.2d 171, 178, 399 N.E.2d 606, 610 (1979) (compensation denied where the risk of the employment activity “is no greater than that to which he would have been exposed had he not been so employed”); Strickland, 348 So.2d at 499 (employment risk must be “... a danger or risk materially in excess of that to which people not so employed are exposed. ...” (emphasis in original)) quoting from City of Tuscaloosa v. Howard, 55 Ala. App. 701, 705-06, 318 So.2d 729, 732 (1975); Newman Brothers, Inc., 354 So.2d at 1140. But see Market Food Distributors, Inc., 383 So.2d at 727 (subjective test: “the employment must involve an exertion greater than that normally performed by the employee during his non-employment life.” (Emphasis added)); Foley, 29 Or.App. at 155, 562 P.2d at 595.

In Barrett v. Herbert Engineering, Inc., Me., 371 A.2d 633 (1977), we upheld the *338 denial of compensation to an employee who had a long history of chronic back-strain who sustained, while at work, the onset of back symptomatology while merely walking at a normal gait. We said there:

It is true that the employer takes the employee as he finds him, but, even so, where the employee already suffers from a preexisting infirmity in dormant stage its activation or exacerbation from an asymptomatic condition to a symptomatic one during the course of the employment is not compensable under our Workers’ Compensation Act unless the flare up arises out of the employment, meaning that it must be traced to the employment as a contributing proximate cause and not be solely due to a hazard to which the workman would have been equally exposed to apart from the employment.

The statutory words ‘arising out of’ mean that there must be some causal connection between the conditions under which the employee worked and the injury which arose, or that the injury, in some proximate way, had its origin, its source, its cause in the employment.

371 A.2d at 636. (Emphasis added.) We said that the causation requirement in that case was not satisfied because the symptoms did not “spring into activity by reason of any work that he was doing. . : Id. This recognized the absence of any evidence to satisfy the element of “legal cause.” No particular activity of the employment increased the employee’s exposure to disability beyond the risk encountered by everyday life. There, the activity (e.g., walking) did produce, as a matter of medical fact, the onset of symptoms. However, the disability occasioned by that activity was not one that came into being because of any work-related enhancement of the employee’s “personal risk.”

In McLaren, 386 A.2d 734, the employee sustained a disabling acute schizophrenic episode during the course of a week-long sensitivity group training seminar for executive development. Medical opinion testimony in that case indicated that the “special stress of the group sensitivity session” in combination with a pre-existing disposition or susceptibility to schizophrenia was the precipitating event of the employee’s disabling psychiatric condition. Id. at 735. The Commissioner awarded compensation for a disability period of about five months duration. Adverting to the “personal risk” to which the employee was exposed because of his pre-existing susceptibility to schizophrenia, id. at 736, we found that, nevertheless, “the medical testimony justified the Commissioner’s finding that the emotionally tense atmosphere and the special type of stress involved in the group sensitivity session was a precipitating factor proximately causing [employee’s] injury....” Id. That finding satisfied both the requirement of “medical cause” and of “legal cause.” It satisfied the former because it established that the disability was precipitated, as a matter of fact, by the stress of the sensitivity session. It satisfied the latter because the evidence justified the conclusion by the Commissioner that the employee was exposed to the risk of that stress because of attendance at the sensitivity session. Since such attendance was required by his employment, it represented an employment-related risk additional to the “personal risk” of disability represented by the employee’s pre-existing condition.

A similar analysis to that used in Barrett and McLaren was employed in Parent v. Great Northern Paper Co., Me., 424 A.2d 1099 (1981). Its application to the facts of that case produced a different result for a different analytical reason. In that case, the employee sustained pain in his groin on attempting to lift a very heavy valve. The medical evidence before the Commissioner disclosed a diagnosis of epididymitis, an inflammation of the testicle cord and testicle. It further appeared that the condition preexisted the lifting, which simply brought the condition to the employee’s attention. Id. at 1100. The lifting incident did not cause the condition. Id.

We there concluded that the Commissioner was justified, on the evidence, in concluding that the disability resulted solely from the condition and not from the lifting activity. The Parent case thus represents an *339 application of the “medical cause” requirement. There, as opposed to the situations in Barrett and McLaren, there was an absence of proof that the inflammation resulted in pain, in a medical-factual sense, because of any effect of the work-related, lifting activity. Hence, the work activity was not shown to be a sufficient medical cause of the symptomatology resulting in an increased level of disability.

III.

The cases in Hamm v. University of Maine, Me., 423 A.2d 548 (1980) and Parlin v. G. H. Bass & Co., Me., 423 A.2d 948 (1980) do not represent any modification of, or retreat from, that now well-established general proposition of law set out in Soucy and Canning. Rather, they represent the resolution of problems adjunct to its application. We have previously recognized that “[t]he existence of a pre-existing condition or weakness, or a ‘personal risk’ (see 1A Larson, The Law of Workman’s Compensation, § 38.83), does not change the basic rules as to proximate causation; rather it only makes application of those rules a somewhat more complex task.” McLaren, 386 A.2d at 736. The Hamm and Parlin cases likewise do not represent a change of any of the “basic rules” of causation but only illustrate the application of those rules within the confines of the complex factual structure of the “combined effects” case.

In Hamm, the work activity prompting the “flare up” of symptoms from the employee’s underlying non-work-related condition necessarily took place in the period from late September 1977 to November 4, 1977 when she stopped work. She returned to work nearly two years later as a telephone operator for a different employer, the Maine Air National Guard, on November 1, 1979. Two months after that, she left the new employment because of pain allegedly experienced as a result of the activity required of her in the new employment. She then sought compensation from the prior employer (University of Maine) on the factual premise that the work activity occurring between late September and November 4 of 1977 activated the symptoms of the underlying condition and disabled her after November 4,1977. The Commissioner so found, awarding compensation for total disability from November 5, 1977 to May 1, 1978 and at 50% disability from May 2,1978 to the date of the decree. 10 Hamm, 423 A.2d at 550.

On appeal, the employer contended that the award was improper because there was no evidence to show that any disability Mrs. Hamm suffered after Novemb