Mark Lee v. Anheuser Busch Companies Inc.

Injury No.: 00-173668

Employee: Mark Lee

Employer: Anheuser Busch Companies Inc.

Insurer: Self Insured c/o ACE USA/ESIS

Date of Accident: January 1, 2000

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. We have reviewed the evidence, read the briefs of the parties, heard oral argument, and considered the whole record. Pursuant to section 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge dated December 22, 2004. The award and decision of Administrative Law Judge Joseph E. Denigan is attached hereto solely for reference.

I. The condition of employee's bilateral upper extremities, i.e., bilateral carpal tunnel syndrome, right wrist ganglion cyst and left ulnar nerve irritation at the elbow is an occupational disease arising out of and in the course of employment.

In the instant case, the employee seeks workers' compensation benefits for bilateral upper extremity complaints, alleging his medical condition is attributable to an occupational disease arising out of and in the course of his employment. The applicable statutes are section 287.063 RSMo 2000 and section 287.067 RSMo 2000.

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).

In conformity with the above-cited case law, the instant case is controlled by the "last exposure rule", sometimes referred to as the "rule of convenience" which has been the law in Missouri for many years. In a workers' compensation case in Missouri, based upon occupational disease, liability accrues and attaches to the employer as of the date of the disability. The test for determining when compensation accrues, is the time when incapacity from occupational disease occurs, and not when the exposure commences or the disease begins and continues to develop. It is disability after exposure in the employer's business that creates the obligation to compensation. Because the development of occupational diseases is characteristically gradual, but variable in different diseases and with different persons, the earlier stages being frequently undetectable, the only rule which ensures the benevolent legislative objective of recovery in every meritorious case is one which fixes liability at the single and easily determinable point when there is inability to work.

The great preponderance of judicial opinions supports the rule that in workers' compensation cases, based upon occupational disease, liability accrues and attaches to the employer as of the date of the employee's disability.

In the instant case the employee testified in significant detail as to his employment history with the employer, which has been continuous in nature since October 9, 1978, through the present date. Employee thoroughly described his job activities and job duties while employed with employer since 1978, which were repetitive in nature, convincing the Commission that employee contracted an occupationally induced disease rather than an ordinary disease of life as there was an exposure to the disease which was greater than or different from that which affects the public generally, and 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. Furthermore the medical expert evidence extracted from both the opinions of Dr. Haueisen and Dr. Schlafly, convinces the Commission of the greater probability than not that employee's resultant occupational disease was caused by conditions in the work place at Anheuser Busch.

The Commission determines that the employee has met his burden of proof that he has contracted an occupationally induced disease due to repetitive trauma to which he was exposed to at the workplace as thoroughly described in his testimony. The Commission also finds the medical opinions of Dr. Haueisen and Dr. Schlafly more credible and persuasive of belief than the medical expert testimony proffered in behalf of the employer. Both Dr. Haueisen and Dr. Schlafly testified that employee's exposure to the occupational disease was greater than and different from that which affects the public generally, and both described a necessary link between the disease and employee's work activities. Both physicians associated employee's repetitive motions with the contraction of the resultant medical condition or disease. The Commission finds extremely persuasive the testimony of Dr. Haueisen the initial treating medical expert and operating physician, who clearly was of the opinion that more likely than not there was a casual relationship of employee's work activities to the development of his bilateral upper extremity conditions which he treated.

Employee credibly testified as to the insidious and gradual onset of his disease, i.e., beginning in the mid 1990's, employee experienced pain in his bilateral wrists, fingers and elbows, as well as tingling and numbness, etc. He testified his right arm would go to sleep; he had difficulty sleeping at nights; and he did not report these problems to his supervisors or employer because as with most occupational diseases, and their insidious nature, he did not know what was causing his problems and the problems were not preventing him from continuing to work.

Eventually by January 2001, employee's problems were at a stage that medical care and treatment became a necessity. Employee's medical problems culminated with the following surgical procedures: (1) on August 13, 2001, employee underwent a right carpal tunnel syndrome release performed by Dr. Haueisen; (2) on November 11, 2002, employee underwent a left carpal tunnel syndrome release and left elbow surgery also performed by Dr. Haueisen. The medical diagnosis were bilateral carpal tunnel syndrome, left ulnar nerve irritation at the elbow and right wrist ganglion cyst. The right wrist ganglion cyst was treated conservatively.

Based on the foregoing the Commission concludes that the above-described medical conditions are attributable to an occupational disease arising out of and in the course of employee's employment pursuant to the Workers' Compensation Act.

**Alice A. Bartlett, Member**

**Attest:**

John J. Hickey, Member

**Secretary**

**Employee:** Mark Lee Injury No.: 00-173668

**Dependents:** N/A Before the Division of Workers' Employer: Anheuser-Busch, Inc. Compensation Department of Labor and Industrial

**Additional Party:** N/A Relations of Missouri, Jefferson City, Missouri

**Insurer:** Self-Insured

**Hearing Date:** September 28, 2004 Checked by: JED:tr

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? No

1. Was there an accident or incident of occupational disease under the Law? No

1. Date of accident or onset of occupational disease: N/A

1. State location where accident occurred or occupational disease was contracted: N/A

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? No

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: N/A

1. Did accident or occupational disease cause death? No Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: N/A

1. Nature and extent of any permanent disability: None

1. Compensation paid to-date for temporary disability: None

1. Value necessary medical aid paid to date by employer/insurer? None

Employee: Mark Lee Injury No.: 00-173668

1. Value necessary medical aid not furnished by employer/insurer? None

1. Employee's average weekly wages: 906.80

1. Weekly compensation rate: 599.96/$314.26

1. Method wages computation: As per Act

COMPENSATION PAYABLE

1. Amount of compensation payable: None

1. Second Injury Fund liability: No

TOTAL: -0-

1. Future requirements awarded: None

Said payments to begin N/A 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

N/A


A hearing was held in this matter on September 28, 2004. The employee, Mark Lee, was represented by attorney Donna Frayne. The employer, Anheuser Busch, was represented by attorney Todd D. Hilliker.

The parties stipulated to the following:

1. The claimant's average weekly wage was $\ 906.80 resulting in compensation rates of $\ 599.96 for temporary total disability and $\ 314.26 for permanent partial disability.
2. The employer has not provided any benefits under workers' compensation.

The following issues were identified:

1. Whether the employee sustained an occupational disease arising out of and in the course and scope of employment.
2. Medical causation.
3. Whether the employer is liable for past medical expenses.
4. Whether the employer is liable for future medical expenses.
5. Whether the employee is entitled to past due temporary total disability benefits.
6. The nature and extent of permanent partial disability.

The following exhibits were offered by the employee and admitted into evidence:

A. Original Claim for Compensation.

B. An Amended Claim for Compensation.

C. Deposition of Bruce Schlafly, M.D. dated April 21, 2004.

D. Anheuser Busch plant records of June 19, 2001 to July 10, 2001.

E. HealthSouth Physical Therapy records dated November 25, 2002 to January 15, 2003 and bill in the amount of $\ 2,939.00.

F. Premier Care Records/Dr. Haueisen and Dr. Kumar dated August 28, 2001 to January 16, 2003 with medical bill in the amount of $\ 34,529.00.

The following exhibits were offered by the employer and admitted into evidence:

1. Deposition of Dr. Mitchell Rotman dated April 13, 2004.
2. Complete medical records of Dr. Robert Oertli.

1. Claimant is 47 years old and has worked at Anheuser Busch since October 9, 1978. He is right handed. The claimant has held various jobs through out his tenure of employment with Anheuser Busch primarily in the brewery department.
2. He initially started in the labor gang and in 1998 became a brewer. He started as a pump man where he was responsible for filling and pumping tanks. As part of this, he would hook up hoses, remove caps and connect hoses to tanks. The claimant testified this work involved twisting caps and valves.
3. In 2000, the claimant took a "straight day floor job" where he was responsible for cleaning floors with the use of a water broom. He described the water broom as being similar to a pressure washer. He did the water brooming for five hours a day but interspersed this activity with the application of "oakite" which was used to prevent the development of mold and bacteria. He would also use a hose to rinse the floors. He used the water broom approximately 40 to 45 minutes before taking a break or switching to another job task.
4. The claimant was driving home from work in January of 2001 when he noticed a cyst on a vein in his right wrist. The claimant went to his personal physician, Dr. Oertli who suspected the claimant had a ganglion cyst. Dr. Oertli's records of January 8, 2001 do not indicate that the claimant made any other complaints referable to his hands, wrists or upper extremities. Dr. Oertli's records document that he saw the claimant on various dates in 2000 and 2001 and no complaints were raised referable to his hands, wrists or upper extremities. The records document that the claimant complained of numbness in his left hip and left leg on and off since 1994 when he was in an auto accident. The records document that he injured his right wrist in the accident which still hurts on and off. Dr. Oertli suspected a strain of the right wrist. The records document that the claimant saw Dr. Oertli on April 17, 1995 indicating that he had been in another auto accident the day before. He stated that he had hurt his right shoulder and neck and was still having pain in those areas. Dr. Oertli noted mild right sided spasm in the neck and diagnosed him with a cervical strain and radiculopathy. The claimant saw Dr. Oertli throughout April, May and June of 1995 with continued complaints in his right shoulder and neck. Dr. Oertli indicated that the claimant needed a CT scan of the cervical spine. He was referred to physical therapy.
5. The claimant saw Dr. David Haueisen on June 7, 2001. He was referred to Dr. Haueisen by Dr. Oertli. Dr. Haueisen noted the swelling over the volar radio aspect of the right wrist and noted the claimant's complaints of numbness and tingling in his fingers. The claimant reported pain in the wrist going up toward the elbow and a tingling sensation throughout the arm. Dr. Haueisen suspected the volar wrist mass could represent either a shallow ganglion cyst or an FCR tendinitis. He suspected the claimant may have carpal tunnel syndrome. He speculated the claimant may have ongoing medial epicondylitis and possibly mild cubital tunnel syndrome.
6. The employee saw Dr. Puricelli, the Anheuser Busch company doctor on June 25, 2001. Dr. Puricelli took a history of the claimant stating that over the last six months he had been using a pressure hose two to four hours a day and noted swelling in his hands and knuckle and numbness and tingling on occasion. Dr. Puricelli diagnosed the claimant as having a ganglion cyst and carpal tunnel syndrome bilaterally but after viewing the high powered hose offered the opinion that the conditions would not be work related.
7. The employee returned to Dr. Haueisen who performed a right carpal tunnel release on August 13, 2001. Dr. Haueisen performed a left carpal tunnel release and left elbow arthroscopy with removal of loose bodies and a left elbow arthrotomy on November 11, 2002. As of January 16, 2003 Dr. Haueisen noted that the claimant

was functioning well. His prior complaint of finger pain was spontaneously resolving. His grip strength had improved from what it was pre-operatively. Overall he was functionally well.

1. After seeing Dr. Puricelli in June of 2001, the claimant did not ask Anheuser Busch to provide medical treatment. All of his medical bills were submitted to and paid by his group medical insurance.
2. The claimant introduced the deposition of Bruce Schlafly, M.D. Dr. Schlafly reviewed the medical treatment records but did not review the claimant's deposition. Dr. Schlafly took a history of the claimant using jackhammers. The claimant did not testify that he ever used a jackhammer while working at Anheuser Busch. Dr. Schlafly took a history of the claimant cleaning tanks and working with hoses. He took a history of the claimant using a high pressure water broom to clean floors. Dr. Schlafly diagnosed the claimant with bilateral carpal tunnel syndrome and that the claimant's work at the brewery was the substantial factor in the cause of the bilateral carpal tunnel syndrome. Dr. Schlafly believed the claimant had been treated appropriately by Dr. Haueisen with bilateral carpal tunnel releases and that the claimant had a 25 % permanent disability of each hand as a result of those conditions.
3. Dr. Schlafly also offered the opinion that the claimant had left cubital tunnel syndrome and may require a ulnar nerve transposition. He offered the opinion that the claimant's work at the brewery would be the substantial factor in the cause of that condition and that the claimant would have a 20 % permanent disability of the left elbow due to that condition.
4. Dr. Schlafly testified that the claimant had degenerative osteoarthritis of the left elbow and that that had been treated appropriately with surgery by Dr. Haueisen. Dr. Schlafly offered the opinion that the claimant's work at the brewery was a substantial factor in the cause of that condition and that the claimant would have a 20 % permanent disability of the left elbow from that condition.
5. Dr. Schlafly testified that the claimant had an additional diagnosis of a ganglion cyst of the right wrist and that he would need to have it excised. He offered the opinion that the work at the brewery was the substantial factor in the cause of the ganglion cyst and that the claimant would have a 15 % permanent disability of the right wrist due to that condition. Dr. Schlafly testified that with regard to his opinion on the ulnar nerve transposition that it was a "possibility." Dr. Schlafly disagreed with Dr. Rotman that it would be too dangerous to excise the ganglion cyst. He did not think it was unusually risky to do that but that if the cyst was asymptomatic the potential benefits from excision would not exceed the potential risks.
6. Dr. Schlafly admitted that his opinion on causation was based solely on the description of activities presented by the claimant. He did not review any written job description or actually view the claimant performing the jobs he described. He did not review a videotape of the jobs the claimant described. He did not review the claimant's deposition testimony. Dr. Schlafly admitted that claimant was not constantly doing one particular job. He admitted that the claimant did not perform the same job repeatedly over and over and that the force used would not necessarily be constant. He admitted the claimant did not have to constantly grip or hold with the same force, tools or instruments. He admitted there could be non-occupational factors associated with the development of the arthritis. He admitted the ganglion cyst could develop spontaneously outside the work place.
7. The employer introduced the deposition of Mitchell Rotman, M.D. Dr. Rotman is a board certified orthopedic surgeon who actively treats patients with upper extremity complaints and problems. He did a hand surgery fellowship at the Washington University School of Medicine and also received a certificate for added qualifications in hand surgery from the American Board of Orthopedic Surgeons. He has been an active member of the American Society for Surgery of the Hand since 1996.
8. Dr. Rotman examined the claimant on September 22, 2003. Dr. Rotman took a detailed history from the claimant of the various jobs that he performed for Anheuser Busch. Dr. Rotman also reviewed the deposition taken from the claimant on May 22, 2002.
9. Dr. Rotman agreed that the claimant had advanced carpal tunnel syndrome on the right and

moderately advanced carpal tunnel syndrome on the left based on the nerve conduction studies that were performed in June of 2001. He did not see any evidence of cubital tunnel syndrome at the time of the nerve studies. After his physical examination and review of the medical records, Dr. Rotman also found the claimant to have left elbow arthritis, arthritis of his right long finger, arthritis of other joints and possible left ulnar irritation at the elbow. He also had a small ganglion cyst on the volar radial aspect of the right wrist.

1. Dr. Rotman noted that the claimant did not seek any medical attention for his hand and wrist complaints until January of 2001 when he was in the job cleaning the cellars with the use of a water broom. Dr. Rotman stated that the prior job would not be considered repetitive with regard to the turning of valves and connecting of hoses. Dr. Rotman believed the claimant had idiopathic degenerative arthritis which was most likely genetic and that he has idiopathic bilateral carpal tunnel which was successfully released. Dr. Rotman stated that it is well known that individuals with arthritis have higher incidents of carpal tunnel. Dr. Rotman testified that none of the claimant's work activities would be a substantial factor in the development of any of the conditions or diagnoses reached referable to the claimant's upper extremities.

The claimant has the burden of proving all essential elements of a claim, including causation. Grime v. Altech Industries, 83 S.W.3d 581, 583 (Mo. App. 2002). The question of causation is one for medical testimony, without which a finding for the claimant would be based on mere conjecture and speculation, not on substantial evidence. Id. The claimant bears the burden of proving a direct causal relationship between the conditions of his employment and the occupational disease. Id.

Medical causation, which is not within the common knowledge or experience of lay understanding, must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the inserted cause. McGrath v. Satellite Sprinkler's Sys., 877 S.W.2d 704, 708 (Mo. App. 1994). The claimant in the instant case offers the testimony of Dr. Bruce Schlafly to support the proposition that his upper extremity conditions are related to his employment. Dr. Schlafly admitted that the claimant was not constantly doing one particular job. He admitted the claimant did not perform the same job repeatedly over and over. He stated that the force the claimant used with his hands and arms would not be considered constant force. While Dr. Schlafly believed there were frequent stresses on his hands and elbows he would not state that there were constant stresses. He admitted that there could be non-occupational factors associated with the development of arthritis and the ganglion cyst. Dr. Schlafly did not view any of the job tasks and did not review the claimant's deposition testimony. Interestingly, Dr. Schlafly was perfectly willing to operate on the ganglion cyst even though both Dr. Haueisen and Dr. Rotman considered the procedure too risky.

The claimant testified to multiple jobs and tasks that he performed for the employer over the last ten years. Clearly these jobs involved the use of his hands and wrists, but none of the tasks described involved the constant repetitive use of his hands over and over throughout the work day. The claimant performed a variety of tasks throughout the work day and there was interruption in the tasks performed.

Dr. Rotman took a detailed history of the claimant's job duties and also reviewed the deposition of the claimant in which he testified to his various job duties and tasks. Dr. Rotman offered the opinion that none of the claimant's work activities would be considered a substantial factor in the onset of his upper extremity conditions.

I find Dr. Rotman's testimony to be more credible than that of Dr. Schlafly. Given Dr. Rotman's testimony coupled with the claimant's own testimony as to the variety of the tasks performed, the claimant has failed to make a prima facie case for compensability and the claim must be denied. All other issues are moot.

Even if one were to conclude that the conditions were work related, the claim for payment of medical bills would be denied. Claimant testified that after seeing Dr. Puricelli, he

did not ask Anheuser Busch to provide medical treatment under workers' compensation. He had already seen Dr. Haueisen on his own and submitted all bills for treatment to his group medical carrier.

Date: $\qquad Made by: \qquad$

Joseph E. Denigan

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Gary J. Estenson

Acting Director

Division of Workers' Compensation