Marietta Speakes v. St. Louis University Hospital

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-070561

Employee: Marietta Speakes

Employer: St. Louis University Hospital

Insurer: American Home Assurance c/o SRS

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

Date of Accident: July 2, 2002

Place and County of Accident: St. Louis City, 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 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 (ALJ) dated December 7, 2004. The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, as issued December 7, 2004, is attached and incorporated by this reference.

The Commission finds that the ALJ correctly weighed and evaluated the lay and medical testimony in reaching her 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 204 (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 $\qquad 17^{\text {th }} day of May 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

\qquad NOT SITTING \qquad

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest: \qquad$ 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: July 2, 2002
5. State location where accident occurred or occupational disease was contracted:St. Louis
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 occurred or occupational disease contracted: Claimant engaged in repetitive data entry with her left hand while working as a switchboard operator.
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: Left hand
14. Nature and extent of any permanent disability: 171 / 2 % PPD of the left upper extremity at the wrist.
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 0

Employee: Marietta Speaks Injury No.: 02-070561 17. Value necessary medical aid not furnished by employer/insurer? Not determined. 18. Employee's average weekly wages: $\ 489.70 19. Weekly compensation rate: $\$ 326.47 / \ 326.47 20. Method wages computation: By stipulation.

1. Amount of compensation payable: 3 weeks of temporary total disability: $\ 979.41 30.625 weeks of permanent partial disability from Employer: $\ 9,998.14

1. Second Injury Fund liability: Open

TOTAL:

1. Future requirements awarded: None.

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Robert Keefe.

The matter of Marietta Speaks ("Claimant") proceeded to hearing to determine whether Claimant suffers from a compensable left carpal tunnel syndrome. Attorney Robert Keefe represented Claimant. Attorney Carl Kessinger represented St. Louis University Hospital ("Employer") and its insurer, American Home Assurance Company c/o SRS. The Second Injury Fund is a party, but did not participate at hearing pursuant to an agreement to leave the Second Injury Fund claim open.

The parties agreed that on or about July 2, 2002, Claimant was an employee of Employer earning an average weekly wage of $\ 489.70. The applicable rates of compensation are $\ 326.47 for both total disability benefits and permanent partial disability benefits. Venue, notice, and timeliness of the claim are not at issue. Employer has denied the claim for benefits and has not paid any benefits to date. The parties stipulated that Claimant suffers from permanent partial disability equivalent to 171 / 2 % of the left wrist. However, Employer asserts the claim is not compensable.

The issues to be determined are:

1. Is Claimant's carpal tunnel syndrome an occupational disease that is medically caused by her employment; and
2. Is Claimant entitled to recover three weeks of temporary total disability benefits $\underline{[1]}$ ?

Claimant is a 48-year-old woman who is approximately 5 feet, 4 inches tall and weighs 263 pounds. She is a high school graduate and has taken some college level courses. She has never filed a workers' compensation claim other than for

her bilateral carpal tunnel syndrome and does not have thyroid disease, diabetes, or a recent pregnancy.

In May 1984, Claimant became a hospital switchboard operator for Employer. Claimant worked a day shift from 7:00 to 3:30 with four to seven other switchboard operators. Claimant answered and processed incoming calls, including calls for patients, doctors, and administrative staff. Claimant took anywhere from 40 to 110 calls per hour and worked eight hour shifts. For each call Claimant made six to more than ten key strokes for each call. In addition she made hand written entries into a log.

Claimant detailed description of her specific job duties was supported by the videotape Employer submitted (Exhibit 3). Using a headset, Claimant answered incoming calls seated in front of one or two computers, a switchboard and a multiline phone,. If the department or name requested by the call was unknown to her, Claimant typed the name into a computer to call up the appropriate number on screen. She then manually keyed the number into the switchboard. If Claimant beeped a doctor, she also made a log entry indicating the specifics of the call.

In the late 1990s, the layout of Claimant's workstation was different than the layout depicted in the video, which reflected the current layout. Prior to a change in equipment, Claimant's workspace was a cubicle with an L-shaped layout, with computers located to her center and left.

In 1998, Claimant began to develop problems with her right hand and began authorized treatment with Dr. Strege, who determined the right hand symptoms were related to work. In May 2000, Claimant's right hand symptoms got so bad that she was kept awake at night, and the pain, tingling and numbness limited her activities. Injections, a splint, and medication were tried but did not benefit Claimant. On August 28, 2000, Claimant underwent surgery to correct what Dr. Strege diagnosed as carpal tunnel syndrome. At various times during this treatment for the right hand, Claimant immobilized her right hand in one way or another.

With the development of symptoms in her right hand, Claimant began to favor her right hand and use her left hand more. Claimant altered her workstation by moving the multi-line phone from her right side to her left side so she could operate it with what was then her "good" hand. Although Claimant continued to do computer entry bilaterally, she eventually used her left hand for all other job tasks with the exception of writing in the log, because she is right handed.

In August 2000, Claimant complained to the doctor about her left hand for the first time, but the symptoms were mild and intermittent. Claimant followed with Dr. Strege for one year after her right hand surgery and received several types of treatment post-operatively. During her recovery, Claimant still favored her right hand and was using her left hand disproportionately. The problems with her left hand got progressively worse and in April 2002, Claimant received an injection in her left hand from Dr. Strege. In May 2002, Claimant went to see Dr. Volarich for her right hand and told him about her left hand. When Claimant told Employer about her left hand she was sent to see Dr. Rottman who determined Claimant's left hand was not work related. In September 2002, Claimant settled her right-handed carpal tunnel case against Employer for 20 % of the right wrist. Claimant continued to treat on her own with Dr. Strege, and under went left carpal tunnel surgery on April 21, 2003. She was off work for three weeks.

In September and October 2001, Claimant went to see Dr. Cantrell for the right-handed carpal tunnel syndrome as directed by Employer, but never returned for any further evaluation. Dr. Cantrell, whose report is in evidence, assumed that nearly all Claimant's duties were performed with the right hand. Claimant testified this was a misconception. Claimant also went to see Dr. Howard at the request of Employer. Dr. Howard testified that no amount of keyboarding could cause carpal tunnel syndrome.

Claimant testified that she broke her left wrist twice as a child but had no ongoing problems or subsequent injuries to her left wrist. She is currently back at work full time with no problems. She does have a hobby of tole painting but only engages in that one to two hours per week. Claimant's right hand improved, but it was at least one year before she regained full use of her right hand after surgery, sometime in late 2001. Claimant's left hand also improved after surgery. She does not require a splint and takes no medication.

Employer presented the testimony of Ernest Orlando Berringer, Claimant's supervisor. He has been a communications manager for Employer since August 2002. He testified he was familiar with the job duties and workstation of Claimant, both before and after the equipment and location change that occurred in June 2003. According to Mr. Berringer, the old station was smaller and had different equipment. He said that the duties were comparable both before and after the equipment change. He has been trained on the board but has not done the job extensively. Claimant testified that the supervisor was incorrect as to the number of computers in the workstation and his description of the workstation before and after the change.

Employer also submitted a video showing Claimant and a few coworkers performing their jobs at the newer workstations. The activity depicted in the video is consistent with Claimant's testimony. Although none