Preview:

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0512 September Term, 2008

______________________________________

BLACK AND DECKER CORPORATION, et al.

V. NORMAN L. HUMBERT ______________________________________

Davis, Salmon, Eyler, Deborah, S.

JJ. ______________________________________ Opinion by Salmon, J. ______________________________________

Filed: November 25, 2009

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 Commission but called no witnesses. Humbert was the sole live witness. He also introduced into evidence the video deposition of Dr. Raymond W ittstadt, 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 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 2

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 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

3

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 M RI 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 inflamation 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."

4

On cross-examination Dr. Wittstadt reiterated that the claimant's job did not, alone, cause the bone spur to develop. Instead, it was both the bone spur, which was not workrelated, 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.),

Download Black and Decker v. Humbert.pdf

Maryland Law