Brenda Otey v. Verizon

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers’ Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated October 5, 2004. The award and decision of Administrative Law Judge Kevin Dinwiddie is attached and incorporated by this reference.

The Commission finds that the ALJ correctly weighed and evaluated the lay and medical testimony in reaching his conclusions as to disability and causation. Reese v. Gary \& Roger Link, Inc., 5 S.W.3d 522 (Mo. App. E.D. 2002), Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879 (Mo. App. S.D. 2001), Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240 (Mo. banc 2003).

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

This award is temporary or partial in nature, is subject to further order and shall be kept open until a final award can be made. All parties should be aware of the provisions of section 287.510 R.S.Mo.

Any past due compensation shall bear interest as provided by law. Given at Jefferson City, State of Missouri, this $21^{\text {st }}$ day of April 2005. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman Alice A. Bartlett, Member John J. Hickey, Member

Dependents:

Employer: Verizon

Additional Party:State Treasurer, as custodian of the Second Injury Fund (Open)

Insurer: American Home Assurance c/o Sedgwick Claims Management

Hearing Date: July 22, 2004; finally submitted 9/10/04 Checked by: KD/bb

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law?Yes
4. Date of accident or onset of occupational disease: 9/10/02
5. State location where accident occurred or occupational disease contracted: St. Charles County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident happened or occupational disease contracted: Repetitive use of the upper extremities while working as a telephone operator.
12. Did accident or occupational disease cause death? No Date of death? ----
13. Parts of body injured by accident or occupational disease: right and left upper extremities
14. Compensation paid to-date for temporary disability: None
15. Value necessary medical aid paid to date by employer/insurer? None
16. Value necessary medical aid not furnished by employer/insurer? N/A

Employee: Brenda Otey

Injury No. 02-152023

1. Employee's average weekly wages: $\ 427.84
2. Weekly compensation rate: $\$ 285.23 / \ 285.23
3. Method wages computation: by agreement of the parties

1. Amount of compensation payable: Employer and insurer to provide medical care for compensable injury, as per Award.

TOTAL: SEE AWARD

Each of said payments to begin as of the date of this Award and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

Employee: Brenda Otey

Injury No: 02-152023

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents:

Employer: Verizon

Additional Party State Treasurer, as custodian of the Second Injury Fund (Open)

Insurer: American Home Assurance c/o Sedgwick Claims Management

Checked by: KD/bb

The claimant, Ms. Brenda Otey, and the employer, Verizon, appeared at hearing by and through their attorneys and entered into certain agreements and stipulations as to the issues and evidence to be presented in two respective claims for compensation. The parties agreed to hold a joint hearing in Injury Numbers 02-041682 and 02-152023. There is not a complete identity among the parties in these two injury numbers, inasmuch as different insurers were on the risk for the dates of injury plead in these two claims. Attorney Jay C. Lory appeared on behalf of the employer and its insurer, AIG Claim Services, Inc, in Injury Number 02-041682; Attorney Richard A. Day appeared on behalf of the employer and its insurer, American Home Assurance Company, in Injury Number 02-152023. In both of these claims for compensation, Ms. Otey is seeking a temporary or partial award, providing for medical care. The employer and insurer in Injury Number 02-041682 acknowledge that the claimant suffered an injury by occupational disease on or about April 23 of 2002, but argues that all necessary medical care has been previously provided. In Injury Number 02-152023, the employer and its insurer deny that the claimant suffered a compensable injury by occupational disease in September of 2002, and has provided no benefits for such claim of injury to date.

With respect to Injury Number 02-152023, the parties agree that the three issues to be resolved at hearing are injury by occupational disease, medical causation, and need for future medical care.

The parties further agreed and notice was taken that the claim for compensation in Injury Number 02041682 was filed with the Division of Workers' Compensation and date stamped on 10/15/02; and that the claim for compensation in Injury Number 02-152023 was filed and date stamped on 6/09/03.

Ms. Otey appeared at hearing and testified on her own behalf. The claimant further submitted the deposition testimony of Bruce Schlafly, M.D. The employer and AIG Claim Services, Inc. submitted the deposition testimony of David M. Brown, M.D. The employer and American Home Assurance Company submitted the deposition testimony of Dr. Robert E. Tucker.

The following exhibits are in evidence:

A. Compilation of medical records, with index

B. Deposition of Bruce Schlafly, M.D., taken on March 10, 2004

C. Report of Injury

Employer and AIG Claim Services, Inc. Exhibit

1. Deposition of David M. Brown, M.D., taken on March 8, 2004

Employer and American Home Assurance Company Exhibit

AA. Deposition of Robert E. Tucker, M.D., taken on 4/7/04

Ms. Otey is a 38-year-old mother of three children, and a high school graduate who has been employed by this employer as a telephone operator since April of 1988.

On 4/23/02 Ms. Otey was working at the employer's office located in Wentzville, Missouri, and her workstation consisted of a chair and armrest; a desk that could be lowered or raised; a computer and keyboard; and a headset that could be plugged into a board under the desk.

Ms. Otey relates that she was constantly using the keyboard to retrieve information per request received by telephone from the customers, noting that on or about 4/23/02 a call would come in and go out on a frequency of every 23 seconds. Claimant has witnessed a tremendous increase in call volume from when she first began in

1988 to the present, and attributes that increase to changes in technology, the advent of mobile phones, and the increase in services provided.

On 4/23/02, while working at her workstation, Ms. Otey began to suffer unbearable pain in her wrists to her mid arm, tingling in her fingertips, and swelling in her hands. Ms. Otey immediately reported her complaints to her supervisor, Ms. Debbie Williford. Claimant had experienced similar but less intense pain complaints beginning in May of 2001, and the pain complaints continued to worsen from 5/01 up to 4/23/02. Claimant is right hand dominant, and her complaints were worse as to numbness in her right upper extremity as opposed to the left.

Claimant had her wrist complaints evaluated at Unity Health Care Center on 4/24/02. Nerve conduction study was scheduled to determine a diagnosis and course of treatment (See Index 1 to Claimant's Exhibit A). Claimant was prescribed pain medication and was advised to work light duty. Dr. Peeples performed electrodiagnostic testing, and his report dated 5/6/02 indicates that the testing provided no evidence of a right or left median or ulnar neuropathy (Index 3 to Claimant's Exhibit A). Dr. Peeples also performed a physical examination as to the wrists, and noted no positive or otherwise remarkable findings. Claimant also met with Dr. Doumit on 5/6/02. Dr. Doumit took a history from the claimant; performed an examination; prescribed the use of wrist splints; and suggested a referral to a hand specialist, Dr. Brown

The employer had no light duty available for Ms. Otey, who received temporary total disability benefits from the employer from 4/28/02 through 5/17/02.

Ms. Otey then met with Dr. David M. Brown at Missouri Bone \& Joint Center on 5/17/02. Dr. Brown took a history, took x-rays, and performed an examination of the hands. Dr. Brown noted that there was no visible swelling in the hands; clinical testing was all noted to be negative as to the cubital and carpal tunnels; no intrinsic muscle atrophy was noted in either hand; and the x-rays were noted to be negative for significant bone or joint abnormality. Dr. Brown further noted the nerve conduction study to be unremarkable, and concluded that claimant should remain under observation after his examination revealed that claimant was "negative for peripheral compression neuropathy or specific tendinitis" (See Index 2 to Claimant's Exhibit A). Dr. Brown released Ms. Otey to return to work without restrictions.

Ms. Otey returned to her employment, but continued to suffer the same pain complaints as to her hands. Ms. Otey performed the same duties from 4/23/02 until her termination from employment with Verizon on 9/10/02. Ms. Otey relates that in September of 2002 she had pain and swelling in her wrists; numbness in her fingertips; and was having difficulty with such activities as driving, using small items, and maintaining her grip on things.

On 3/12/03 Ms. Otey met with Dr. Bruce Schlafly for an evaluation of her hand complaints. Dr. Schlafly took a history, performed an examination, and noted that his findings were positive as to Tinel's sign over the median nerve of each wrist; positive Phalen's test bilaterally for carpal tunnel syndrome; and decreased sensation to the pinwheel in the right index finger. Claimant was noted to have some trouble with two-point discrimination, and to have pressure at the median nerve producing tingling radiating into her fingers. Dr. Schlafly concludes that Ms. Otey suffers from a bilateral carpal tunnel syndrome, and recommends surgery on the right wrist, holding in abeyance a left carpal tunnel surgery until after the right has been performed.

On November 21, 2003, the claimant participated in an independent medical examination performed by Dr. Robert E. Tucker. Dr. Tucker took a history from Ms. Otey, reviewed certain records, elicited comp