Audrey Taylor v. Bi-State Development Agency

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-127557

Employee: Audrey Taylor

Employer: Bi-State Development Agency

Insurer: Self-Insured

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

Date of Accident: November 7, 2002

Place and County of Accident: City of St. Louis, Missouri

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 September 2, 2004. The award and decision of Administrative Law Judge Edwin J. Kohner, 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.

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

N O T S ITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest:

John J. Hickey, Member

Secretary

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: November 7, 2002
5. State location where accident occurred or occupational disease was contracted: City of St. Louis, 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? Self-insured
11. Describe work employee was doing and how accident occurred or occupational disease contracted:

The employee, a commercial bus operator, developed bilateral carpal tunnel syndrome. 12. Did accident or occupational disease cause death? No Date of death? N/A 13. Part(s) of body injured by accident or occupational disease: Both wrists 14. Nature and extent of any permanent disability: 20 % permanent partial disability to each wrist, plus an additional 20 % for multiplicity and two weeks for disfigurement 15. Compensation paid to-date for temporary disability: $\ 7,434.09 16. Value necessary medical aid paid to date by employer/insurer? $\ 11,091.77

Employee: Audrey Taylor Injury No.: 02-127557 17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: $\ 736.39 19. Weekly compensation rate: $\$ 490.93 / \ 340.12 20. Method wages computation: By agreement

1. Amount of compensation payable:

This workers' compensation case raises several issues arising out of a work related injury in which the claimant, a commercial bus operator, developed bilateral carpal tunnel syndrome. The sole issue for determination is permanent disability. The Second Injury Fund claim remains open pursuant to an agreement among the attorneys. The evidence compels an award for the claimant.

At the hearing, the claimant testified in person and offered a deposition of Shawn L. Berkin, D.O., and medical records from the Orthopedic Center of St. Louis, Hand and Physical Therapy of Ferguson Florissant, Barnes Jewish West County Hospital, and Cynthia D. Byler, D.O. The defense offered a deposition of David M. Brown, M.D., and medical records from Hand and Physical Therapy of Ferguson Florissant.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the occupational disease was contracted in Missouri.

This fifty-four old claimant, a commercial bus operator for eighteen years, performs a variety of arm movements at work, including issuing transfers, pagers, changing the sign, using the radio and turning the wheel. She also opens and closes the door at every stop and uses a lever, which she pushes with her left wrist. Taking a transfer involves taking a piece of paper and tearing it a hundred times a day. She issues passes, which are normally swiped at the fare box. She grasps and turns the steering wheel for all the time she was driving the bus.

She testified that her usual shift required her to work the morning rush hour with a heavy customer load. She sometimes cancels hundreds of transfers per day. She normally works eight-hour shifts, five days per week, and overtime whenever offered. The buses have power steering.

The claimant developed bilateral carpal tunnel syndrome with numbness and tingling in her fingers, and swelling in her hands. The claimant noticed pain, numbness, and tingling in both her hands after driving the bus and mentioned it to her family physician, who ordered a nerve conduction test. The nerve conduction test revealed that she had Carpal Tunnel Syndrome and needed surgery. On November 7, 2002, she was unable to hold on to the steering wheel sufficiently to maintain control of the bus. Her employer sent her to Dr. Byler who took her off work and referred the claimant to a hand surgeon, Dr. Brown who performed a right Carpal Tunnel Release on February 11, 2003, and a left carpal tunnel release on February 25, 2003. See Exhibits B, E.

After surgery, she went to Hand Therapy Network through March 2003. On April 4, 2003, she reported soreness in both palms, cramping in the thumbs and numbness of the distal tip of the right thumb. See Exhibit B. Dr. Brown recommended that she continue with her own physical therapy program and one more week of supervised physical therapy. See Exhibit B. Dr. Brown released her to return to work without restrictions as of April 14, 2003, and she returned to her regular assignment as a bus driver without restrictions. See Exhibit B. On April 15, 2003, the physical therapy records noted that she had no complaints of bilateral pain but had hand cramping in her right hand. Physical therapy was discontinued, and the claimant received instructions to continue home exercises. See Exhibit 2. On June 6, 2003, Dr. Brown reported that her symptoms were much improved than what they were prior to surgery. See Exhibit B. She had good active range of motion of both wrists at all digits of both hands. See Exhibit B. She had good sensation to all digits of both hands. See Exhibit B. His impression was that she had done well enough and no further treatment was necessary. She was at full duty without restriction. See Exhibit B. Dr. Brown examined the claimant again on June 28, 2004, and reviewed an additional nerve conduction study from June 22, 2004, which revealed findings consistent with residual carpal tunnel syndrome but no ongoing compression neuropathy. See Exhibit G. His examination was negative for ongoing peripheral compression neuropathy. She was at full duty with no restrictions. See Exhibit G. The claimant testified that shortly after she started working her symptoms increased and caused considerable difficulty.

The claimant testified her hands are still sore after returning to work, although she performs her same job duties as before the surgery. The claimant testified she still experiences numbness and swelling after returning to work. The claimant testified that while driving the bus she frequently has to remove one of her hands and shake it to get the tingling and numbness to go away. She testified that her hands frequently become fatigued with very little work. She testified that she had difficulty holding the steering wheel at times and fears that she may not be able to continue in her profession. While driving the bus, she frequently has to alternate hands on the wheel and shake the free hand to restore feeling and use. The claimant testified that her hands swell after driving. The claimant wore the wrist braces from her physical therapy at work until they became so worn that she could not grasp the steering wheel while wearing them. She still wears them at night.

The claimant testified that she has difficulty sleeping at night and in order to alleviate some of the pain in her wrists, she sleeps with both hands above her head on pillows. The claimant still uses splints nightly, provided by Dr. Brown. She testified that she, in her private life, tries to avoid driving completely and relies upon her husband and friends to drive her places because of the premature fatigue, numbness, tingling, and pain caused by gripping a steering wheel. The claimant stated she had difficulty picking up a half a gallon jug of milk from the weakness in her wrists and hands. She reports that she frequently drops things making such everyday tasks such as cooking impossible without the help of her husband. She also has had to curtail her leisure activities such as shopping and going to the casinos because of her wrist fatigue and pain. The claimant testified she has trouble picking up her grandchildren and that she takes Ibuprofen and Advil.The claimant testified that she has been a diabetic since 1987. The claimant testified that she has reduced her cooking and laundry around the house since she developed this condition. The claimant testified that when she attempts to pinch things or grab things with her thumb and fore finger, the muscles in her hands begin to tremble.

The claimant's spouse testified that on the day before the hearing, when the couple went out to dinner for their anniversary, he had to cut the claimant's steak and salad for her to eat. He testified that she cannot do cleaning and cooking like she did before this condition.

Dr. Peeples

Because of the post surgery symptomology, the claimant went to Dr. Peeples,