Leetta Reddin v. Bi-State Development Agency

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 dated November 4, 2004, as supplemented herein, and awards no compensation in the above-captioned case.

In the instant case, the employee seeks workers’ compensation benefits principally for right upper extremity complaints, alleging her medical condition is attributable to an occupational disease arising out of and in the course of her employment. The applicable statutes are section 287.063 RSMo 1994 and section 287.067 RSMo 1994.

An informative legal analysis of occupational diseases pursuant to these Missouri statutes is found in Kelley v. Banta and Stude Const. Co., Inc., 1 S.W. 3d 43 (Mo. App. E.D. 1999), from which the following legal principles are cited: [1,2] In order to support a finding of occupational disease, employee must provide substantial and competent evidence that he/she has contracted an occupationally induced disease rather than an ordinary disease of life. Hayes v. Hudson Foods, Inc., 818 S.W. 2d 296, 299-300 (Mo. App. 1991). The inquiry involves two considerations: (1) whether there was an exposure to the disease which was greater than or different from that which affects the public generally, and (2) whether there was a recognizable link between the disease and some distinctive feature of the employee’s job which is common to all jobs of that sort. Polavarapu v. General Motors Corp., 897 S.W. 2d 63, 65 (Mo. App. E.D.1995); Dawson v. Associated Electric, 885 S.W. 2d 712, 716 (Mo. App. W.D. 1994); Hayes, 818 S.W. 2d at 300; Sellers v. Trans World Airlines, Inc., 752 S.W. 2d 413, 415 (Mo. App. 1988); Jackson v. Risby Pallet and Lumber Co., 736 S.W. 2d 575, 578 (Mo. App. 1987). [3-6] Claimant must also establish, generally through expert testimony, the probability that the claimed occupational disease was caused by conditions in the work place. Dawson 885 S.W. 2d at 716; Selby v. Trans World Airlines, Inc., 831 S.W. 2d 221, 223 (Mo. App. W.D.1992); Brundige v. Boehringer Ingelheim, 812 S.W. 2d 200, 202 (Mo. App. 1991). Claimant must prove “a direct causal connection between the conditions under which the work is performed and the occupational disease.” Webber v. Chrysler Corp., 826 S.W. 2d 51, 54 (Mo. App. 1992); Sellers, 752 S.W. 2d at 416; Estes v. Noranda Aluminum, Inc., 574 S.W. 2d 34, 38 (Mo. App. 1978). However, such conditions need not be the sole cause of the occupational disease, so long as they are a major contributing factor to the disease. Hayes, 818 S.W. 2d at 299; Sheehan v. Springfield Seed & Floral, 733 S.W. 2d 795, 797-8 (Mo. App. 1987). A single medical opinion will support a finding of compensability even where the causes of the disease are indeterminate. Dawson, 885 S.W. 2d at 716; Sellers, 776 S.W. 2d at 504; Sheehan, 733 S.W. 2d at 797. The opinion may be based on a doctor’s written report alone. Prater v. Thorngate, Ltd., 761 S.W. 2d 226, 230 (Mo. App. 1988). Where the opinions of medical experts are in conflict, the fact-finding body determines whose opinion is the most credible. Hawkins v. Emerson Electric Co., 676 S.W. 2d 872, 877 (Mo. App. 1984). Where there are conflicting medical opinions, the fact finder may reject all or part of one party’s expert

testimony which it does not consider credible and accept as true the contrary testimony given by the other litigant's expert. George v. Shop 'N Save Warehouse Foods, Inc., 855 S.W. 2d 460, 462 (Mo. App. E.D.1993); Webber, 826 S.W. 2d at 54; Hutchinson v. Tri-State Motor Transit Co., 721 S.W. 2d 158, 163 (Mo. App. 1986).

Also, as particularly applicable to the instant case, and as stated in Maxon v. Leggett and Platt, 9 S.W. 3d 725 (Mo. App. S.D. 2000), "[M]ere exposure is not enough to shift liability to a subsequent employer. Instead, the subsequent employer must expose the employee to repetitive motion capable of producing [claimant's ailment]."

In the instant claim claimant failed to establish by her testimony as well as expert testimony the probability that her claimed occupational disease was caused by conditions in her work place. The employer did not expose the employee to repetitive motion capable of producing claimant's alleged medical condition. Claimant's testimony as to her job activities was deficient in convincing both the Commission and administrative law judge that such activities were a substantial factor resulting in her complained medical condition. Her description of her job activities alone does not convince the Commission that there exists a probability that her claimed occupational disease was caused by conditions in her work place.

Furthermore, both the Commission and the administrative law judge who heard the case are of the opinion that the more credible medical expert opinion concerning this issue was the opinion rendered by Dr. Randolph. Dr. Randolph opined that "a clear causal relationship between Ms. Reddin's mild to moderate carpal tunnel syndrome and tendonitis and work activities is not established. That is, based on the information regarding the job related activities, significant exposures to activities which involve forceful or repetitive movements is not established which might lead to the development of carpal tunnel syndrome or other musculoskeletal problems with the hand."

In addition, Dr. Randolph took the opportunity to review an ergonomic job analysis concerning claimant's occupation and discussed its findings with an employer representative. Dr. Randolph's additional opinion was: "Based on my review of the information in her report, it is my opinion that sufficient repetition and force is not present in the job duties of a bus operator to explain the development of carpal tunnel syndrome. Therefore, in my opinion work activities are not a substantial factor in the development of this condition in Ms. Reddin's case."

In contrast, the opinions rendered by employee's medical expert, Dr. Schlafly, are of no credible value. In layman's terms, his medical opinion is tantamount to the following: employee's occupation was that of a bus driver; she presently has right carpal tunnel syndrome and flexor tendonitis of her right thumb; and accordingly, her work as a bus driver is the substantial factor in the cause of her condition.

His conclusory opinion, without any in-depth analysis of her occupation, work activities and the lack of any recognizable link between her resultant medical condition and some distinctive feature of her job, is not persuasive, credible or worthy of belief.

Consequently, claimant did not sustain an injury due to an occupational disease arising out of and in the course of her employment.

The award and decision of Administrative Law Judge Joseph Denigan, issued November 4, 2004, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 24^{\text {th }} \qquad$ day of May 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

The employee is claiming injury to her right hand as the result of cumulative trauma sustained in her 26 years as a bus operator.

There is no question but that employee has the condition of carpal tunnel. The question before us is whether there is a causal link between employment and the condition of ill being.

The administrative law judge (ALJ) and the majority were of the opinion that employee did not establish the work relatedness of her condition. However, I find the opinion of the ALJ deeply flawed and based on other than the statutory requirements of proof.

In the recitation of pertinent facts the ALJ recites certain elements making up employee's job duties. However, he omits the most important and significant task. Employee testified that she would be required to punch stacks of six or seven transfers up to one hundred times each work shift. This was done with a punch held in her right hand. The cumulative stress is significant. Significant too, is the omission of this chore from the ALJ's list.

The ALJ cited with approval the reliance of Dr. Randolph on an ergonomic study in reaching his conclusion. (Employer did not begin to introduce this study into evidence). If Dr. Randolph's reliance on the opinion of some third party is acceptable, how much more acceptable should be the opinion of Dr. Schlafly which relies on his own professional, expert, experience over the years in treating similarly situated workers. Yet, Dr. Schlafly's opinion is discounted.

In his rulings of law, the ALJ provides us with a bold medical conclusion involving the medical condition resulting from repetitive trauma. (Emphasis added). The source of this conclusion is not indicated and is nowhere to be found in the record. Obviously, then, the ALJ is taking the opportunity of this award to share his own views and conclusions. I consider this to be improper.

The ALJ makes mention of the "three month rule." This rule has no bearing on this case and allusions to the rule have no place in this decision.

The ALJ enlightens us further with a definition of ergonomics. It is one thing to interject material which is not in the case but quite another to interject material which is incorrect.

Mr. Webster's dictionary advises that ergonomics is the "applied science of equipment design intended to reduce operator fatigue and discomfort." The ALJ, however, seems to equate exposure with ergonomics. A conclusion without foundation.

The ALJ discounts the conclusion of job relatedness advanced by Dr. Lucas because the doctor did not have an ergonomic study. I know of no requirement for such a study before a medical expert may offer an opinion. No such requirement exists.

The ALJ goes on to attack the conclusion of Dr. Lucas because the doctor did not premise the "statutory requirement of a precipitating repetitive motion." What is the basis for this conclusion? The report of Dr. Lucas was admitted into evidence without

objection. The defense did not seek to inquire as to the basis for the medical opinion. How then, can the ALJ assume with absolutely no support, that this factor was not considered by the doctor in formulating his opinion?

The ALJ advises us that "it is axiomatic" that a cause and effect relationship be identified. In my opinion, a reading of the record, without the impediment of pre-conceived notions of causation, establishes the cause and effect link. The ALJ has set his own criteria for causation. Criteria unsupported by the record. This is an improper interjection of the ALJ's own opinions into the case before him.

The ALJ advises us that repetitive or cumulative trauma can not be. Apparently, one can not endure twenty odd years of wear and tear before a problem begins. Life experiences and common sense indicate the fallacy of this assertion.

Again, where does the record support this dicta. It is axiomatic that the ALJ should decide the case before him as it is presented without providing the help or hindrance of his own views and opinions.

The ALJ would have employee’s expert, Dr. Schlafly, predicate causation “to the exclusion of other possible causes.” A new and groundbreaking requirement. The statute requires that the employment be a substantial cause. There is no standar