Joann Cenatiempo v. William Rice Designs

TEMPORARY AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-179572

Employee: Joann Cenatiempo

Employer: William Rice Designs

Insurer: American Family Mutual Ins. Co.

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

Date of Accident: January 26, 2000

Place and County of Accident: St. Louis County, 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 temporary or partial 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 temporary or partial award and decision of the administrative law judge (ALJ) dated March 31, 2005. The award and decision of Administrative Law Judge Edwin J. Kohner, as issued March 31, 2005, 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, including the issues of arising out of and in the scope of employment, notice, medical causation, future medical care, temporary total and permanent partial disabilities and the statute of limitations. Reese v. Gary \& Roger Link, Inc., 5 S.W.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 $22^{\text {nd }}$ day of July 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Secretary

TEMPORARY OR PARTIAL AWARD

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. Alleged date of accident or onset of occupational disease: January 26, 2000
5. State location where alleged accident occurred or occupational disease contracted: St. Louis 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 alleged accident happened or occupational disease contracted: Employee alleges occupational disease in her hands/wrists from inputting data on a computers.
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: Hands/wrists
14. Nature and extent of any permanent disability: 15\% Permanent partial disability of the claimant's right wrist
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

Employee: Joann Cenatiempo

Injury No. 00-179572

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee=s average weekly wages: $\ 596.54
3. Weekly compensation rate: $\$ 397.69 / \ 314.26
4. Method wages computation: By agreement

This workers' compensation case raises several issues arising out of an alleged work related injury in which the claimant, a bookkeeper, suffers from carpal tunnel syndrome. The issues for determination are (1) Occupational disease arising out of and in the course of employment, (2) Notice, (3) Medical causation, (4) Future medical care, (5) Temporary Disability, (6) Permanent disability, and (7) Statute of Limitations. 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 St. John’s Mercy Medical Center and David W. Strege, M.D. The defense offered a deposition of Henry G. Ollinger, M.D., an extract of the claimant’s deposition, and a copy of the pleadings.

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 claimant began working for this employer on February 14, 1986, as a bookkeeper in charge of accounts payable and receivable, payroll, invoices, inventory, supplies, and sales taxes. The position also involved filing, general clerical work, and answering phones. In 1987, sweeping, mopping, and cleaning were added to her responsibilities. She began working only four to five hours per day or twenty hours per week. Until 1998, she tracked the accounts payable and receivable, and the sales tax by journal entries done by hand. She also used a typewriter and calculator for the taxes, and a typewriter for the invoices. She performed these activities on an irregular basis and in varying amounts of time per shift. However, she testified that she typed constantly during this time on these various tasks.

In 1992, she began to notice her right hand tingle, fall asleep, and swell. She would awaken with numbness and pain in her hand. See Exhibit A. She began to drop objects. On September 29, 1993, the claimant complained about numbness to Dr. Wendt and reported that she did a lot of typing, bowling, video game playing, all of which seemed to aggravate her symptoms. See Exhibit A. She wore a brace at night, which had helped her until that date. See Exhibit A. The Phalen's sign was positive. See Exhibit A. Dr. Wendt's treatment recommendations were rest, ice, elevation, Ibuprofen, and the use of splints at night. See Exhibit A. In 1994 or 1995, she began working thirty to thirty-five hours per week. Her title changed to office manager. Her hands continued to have the same symptoms and she continued to wear the splints every night, and during the day if she awoke with pain in her hands. In 1998, she began working eight hours per day, forty hours per week and performed bookkeeping 75 % of her time. The activities she did by hand (filing, cleaning, clerical/secretarial, scanning, printing, receptionist) continued. She began to use the computer for invoices. She would input numbers off documents but not transcribe from dictation. She does not sit at a computer and type throughout her entire shift. She continued to do the variety of duties throughout her shift.

In 2000, the splints (which had been working) were not as effective. She had continuing pain in her hands, even while using the telephone and hair dryer at home. On January 26, 2000, she saw Dr. Ryan with similar symptoms, especially awakening with hand numbness after wearing the wrist splints. See Exhibit A. Dr. Ryan also described her as obese. See Exhibit A. The Phalen's sign was positive on the right. See Exhibit A. Dr. Ryan suspected carpal tunnel syndrome, ordered a nerve conduction study, and recommended continued use of the splints. See Exhibit A. The nerve conduction study revealed minimal findings.

On October 3, 2000, Dr. Strege examined the claimant, and the claimant reported that she told him she was an office manager/bookkeeper who did keyboarding during her workday, that she had pain in her hands since 1988 with numbness and pain that awoke her at night. See Exhibit C. She also reported that she had an eight to ten year use of splints and that activities, such as using the telephone and hair dryer, caused increasing symptoms. See Exhibit C. The Phalen's test elicited paresthesias in the fingers of both hands. See Exhibit C. Dr. Strege noted the January 28, 2000, EMG/nerve conduction study revealed bilateral carpal tunnel syndrome. He opined that there was progression since an EMG study in April 1997. See Exhibit C. Dr. Strege noted carpal tunnel syndrome and recommended surgery. See Exhibit C.

Dr. Strege surgically released the right carpal tunnel on November 14, 2000. See Exhibit D. She no longer has pain, tingling, or swelling in her right hand. She was off work for two and one-half weeks after the surgery and received vacation pay. None of the physicians gave the claimant any off work slips. The claimant's personal health insurance paid for the surgery. See Exhibits C, D. As of December 1, 2000, her pre-operative numbness in the right hand resolved. Dr. Strege scheduled surgery for her left hand in December 2000, but the surgery has not yet occurred. She still has symptoms in her left hand and wants the surgery on her left hand. On January 14, 2003, Dr. Strege examined the claimant's symptomatic left hand and noted surgery for the left hand would be scheduled. See Exhibit C. On February 4, 2003, he noted the procedure scheduled for February 21, 2003, was canceled. He continued to note that surgery would be scheduled. See Exhibit C.

The claimant never asked her supervisor, Mr. Rice, or anyone else considered a supervisor, for medical treatment and never demanded treatment from her employer after she thought the symptoms in her hands were related to her work. She told her employer about the surgery but never asked him to pay for it. The claimant

testified that she thought the condition was related to her work in January 2000, when the nerve conduction tests was run, even though she did not