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[T] Thompson v. Brown Brothers Inc.11/17/2003
"had surgery not been done, a year later it would have been a worse tear. You see, it's something that develops over time." There is evidence in the record which would support a fact finding (1) that Thompson continued his typical work activities for Brown Brothers between May 15 and July 8 of 1995; and (2) that Thompson's work activities during that period for Brown Brothers caused an increase in his shoulder symptoms and were a substantial factor in the causation of his shoulder disability.
Although a reasonable fact-finder could find, as the agency did in this case, that Thompson's rotator cuff tore perhaps as early as 1993, well before he returned to Brown Brothers' employment on May 15, 1995, this finding is not dispositive on the causation issue in this cumulative injury case. The question the agency should have addressed on remand is whether Thompson's repeated use of the shoulder in the course of his employment with Brown Brothers between May 15 and July 8, 1995 - even if such work activity occurred after the tear first appeared - was a substantial factor in causing the shoulder condition treated in the August 1995 surgery and Thompson's related disability. The agency thus committed an error of law in this cumulative injury case by (1) viewing the date when Thompson's rotator cuff tear occurred as the dispositive fact on the causation question, and (2) failing to consider whether Thompson's work for Brown Brothers during his last term of employment from May 15 to July 8, 1995 was a substantial factor in causing the shoulder disability diagnosed in this case.
Conclusion
In summary, we conclude the agency erred as a matter of law in the remand decision when it viewed the date of Thompson's rotator cuff tear as the dispositive fact on the causation question in this cumulative injury case. Accordingly, we conclude this case must again be remanded to the agency for a redetermination of the causation question after application of the established legal principles pertaining to cumulative injuries.
REVERSED AND REMANDED.
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