DOROTHY F. GOSSELIN
v.
VISHAY SPRAGUE, INC.
W.C.C. No. 2016-00041
Rhode Island Worker Compensation
State of Rhode Island and Providence Plantations Providence
March 30, 2021
FINAL
DECREE OF THE APPELLATE DIVISION
This
matter came on to be heard by the Appellate Division upon the
claim of appeal of the petitioner/employee and upon
consideration thereof, the employee's claim of appeal is
denied and dismissed, and it is
ORDERED,
ADJUDGED, AND DECREED:
That
the findings of fact and the orders contained in a decree of
this Court entered on April 18, 2017 be, and they hereby are,
affirmed.
PER
ORDER
Nicholas
DiFilippo, Administrator
DECISION
OF THE APPELLATE DIVISION
OLSSON, J.
This
matter is before the Appellate Division on the employee's
appeal from the trial judge's decision and decree denying
her original petition for compensation benefits in which she
alleged she sustained an injury to her right upper extremity
on May 27, 2015 due to repetitive use of the extremity in
performing computer work. The employee claimed that due to
the alleged injury, she was totally disabled from May 27,
2015 to June 7, 2015 and partially disabled thereafter. After
a comprehensive review of the record and consideration of the
parties' respective arguments, we deny and dismiss the
employee's appeal and affirm the trial judge's
decision and decree.
In
October 2014, Dorothy Gosselin (the employee) began working
for Vishay Sprague, Inc. (the employer) as a Senior Quality
Technician 3 which required processing customers'
complaints, inspecting returned products for defects, logging
framing activities of other employees, updating an Excel
spreadsheet monthly, and handling documentation for
suppliers. The employee testified that she worked forty (40)
hours per week and primarily spent her day performing tasks
that required her to use her computer keyboard and mouse to
do basic data entry tasks. She explained that her computer
was set up on a desk that did not contain a lower tray that
would slide out to hold her keyboard. The computer mouse was
also placed on top of her desk in a position that required
her to reach with her dominant right arm "thousands of
times" a day. Trial Tr. 20:21-23. The employee asserted
that her work necessitated the uninterrupted use of the
computer and mouse for up to four (4) hours at a tirhe. She
acknowledged that her job also entailed some non-computer
duties, such as the inspection of returned products, but
explained that she performed this specific task only once or
twice a month.
In
February 2015, the employee began to experience pain and
discomfort in her right shoulder that bothered her while
working and at night after a full day at work. She continued
to perform her regular job duties and did not report any
problem until April 2015 when, for the first time, she
alerted her supervisor, Michael Phelan, and the company's
human resource representative of her shoulder complaints.
Coincidentally, this occurred the day after representatives
from Liberty Mutual Insurance Company were at the workplace
providing ergonomic Iraining for the employees. An
injury/illness incident report documenting the employee's
complaint was marked as an exhibit by the trial court. When
questioned about the setup of her workstation, the employee
agreed that she had the ability to position her keyboard and
mouse in different locations on her desk. After an ergonomic
assessment of her workstation, the employee received an
adjustable chair, and a keyboard and mouse rest for her
wrists. She was also shown how to adjust her seat so that she
was comfortable, how to move her monitor up and down, and how
to move her mouse and keyboard closer to her, should she
wish. The employee testified that these changes did not help
her shoulder difficulties because the keyboard and mouse were
still located at desk level rather than underneath the desk.
The
employee stated that she initially sought medical treatment
for her shoulder pain on March 12, 2015 with her primary care
physician, Dr. John M. Corsi. Dr. Corsi referred her to Dr.
Vincent Yakavonis, an orthopedic surgeon, who saw the
employee on April 15, 2015. At this consultation, she advised
Dr. Yakavonis that she preferred to seek treatment with Dr.
Leonard Hubbard, an orthopedic surgeon who had treated her in
the past for right shoulder pain, cervical pain, and carpal
tunnel syndrome. The employee explained that in 1997, Dr.
Hubbard had treated her for a right shoulder strain caused by
repetitive activity that resolved after six (6) months. She
had also received treatment for right shoulder complaints in
2009 that lasted one (1) to two (2) months. The employee
underwent an MRI of her shoulder at Dr. Hubbard's request
on May 12, 2009. She denied further right shoulder problems
from that time period until February 2015.
The
employee testified that on May 4, 2015 she was examined by
Dr. Hubbard who recommended a new MRI of her right shoulder
and limited her keyboard and mouse work to one (1) hour a
day. The employee stopped working on May 21, 2015. On May 27,
2015, due to her complaints of increased pain, Dr. Hubbard
wrote a note retroactively excusing the employee from work
from May 21, 2015 through May 27, 2015.
The
employee never returned to work for the employer. Instead, on
June 8, 2015, only a week and a half later, she began working
at a company named Pfizer performing computer data entry
work. She explained that her resume had been posted online
with a temporary agency, Artech, two (2) years earlier and it
had never been removed. The employee stated that Artech
reached out to her regarding employment at Pfizer some time
in 2015. After some email correspondence, she had an
interview, was offered the position, and was allowed to
select her starting date of June 8, 2015. Despite persistent
questioning, she remained extremely vague regarding the
timing of this hiring process.1
The
employee acknowledged that the position at Pfizer paid more
than her position with Vishay Sprague. She agreed that her
new job required her to use the computer keyboard and mouse
for more than the one (1) hour daily restriction that Dr.
Hubbard had placed upon her data entry work activity. She
stated that Pfizer provided an ergonomic work setup that
permitted her to perform her job either standing or sitting.
In addition, she asserted that she spent about half the time
using her computer at Pfizer as she did at Vishay Sprague on
a daily basis, and she was able to adjust her mouse and
keyboard to different heights. Despite the improved computer
workstation at Pfizer, the employee continued to have daily
pain in her shoulder, difficulty sleeping at night, and pain
when lifting objects. Notwithstanding these physical
problems, she never reported any shoulder complaints to
Pfizer and she was able to remain employed there until she
was laid off on September 30, 2016. At the time of her
testimony, she was actively seeking new employment.
On
cross-examination, the employee testified that her
non-computer tasks for the employer included reviewing and
producing some paperwork, opening boxes of returned parts,
inspecting the parts for defects using a microscope, faking
pictures of the defects, and recording the information on the
computer. She maintained that she would need to inspect parts
only once or twice a month and only occasionally examine the
items under a microscope in the laboratory. Initially, she
asserted that this process could take anywhere from fifteen
(15) minutes to an hour. Upon further questioning, the
employee agreed that if she had numerous parts to inspect,
she could be away from her desk for a few hours at a time.
The
employee asserted that her supervisor, Mr. Phelan, would have
contact with her only a couple of times a week and that there
were some weeks when they would not meet at all. She admitted
that her four-week performance review did not go well. Mr.
Phelan advised her that she was not meeting expectations in
the performance of her job duties. She did not agree with
this assessment, as she felt that she was not provided
sufficient training in the field, which was new to her. Her
second performance review, held after approximately fourteen
(14) weeks of employment, was also negative. Again, the
employee was told that her performance was not meeting
expectations. The...
