Winfred Collier v. Ameren UE

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 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 December 15, 2004, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Joseph E. Denigan. as issued, is attached and incorporated by this reference.

The Commission finds that the administrative law judge correctly weighed and evaluated the lay and medical testimony in reaching his conclusions as to the issues presented. 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).

An important point for consideration is the commencement of employee's hand and wrist complaints. The records in evidence from employee's personal physician, Dr. Chaowaratana, show a course of treatment since 1991 for various medical conditions. Not until October 2002 does employee indicate complaints of numbness and tingling in both arms. This complaint is followed the next month, November 2002, with complaints of waking up with numbness of both arms and pain and tingling of both hands. Studies were done at that time and showed moderately severe sensory motor carpal tunnel syndrome.

Dr. Ollinger notes the wide variance in employee's history of the onset of her hand symptoms. He notes that employee told Dr. Lionelli, in December 2002, that she had a seven to eight year history of complaints; the reference to the records of the personal physician; employee's deposition testimony referencing onset in 1999; and employee's history to him of the onset in 1995.

Employee's attempts to strike the proper timeline between the development of her complaints and her weight and hormonal changes are severely undermined by her own admission on cross examination that she "may not be exactly sure when the symptoms started."

Employer's expert, Dr. Ollinger, identifies employee's risk factors for the development of the condition of carpal tunnel syndrome. Dr. Ollinger's opinion is that the development of carpal tunnel syndrome in this employee is attributable to the risk factors of age, gender hormonal fluxes, perimenopausal status and several year history of morbid obesity. Dr. Ollinger points to the personal physician's records which disclose irregular periods in 1999 and employee's weight which is described as morbidly obese before 1999 for a period of three years and obese in 1999.

Employee's expert makes mention of certain metabolic conditions which are known to cause the development of

carpal tunnel syndrome and rules out their involvement in this case. However, he does not comment on the inherent factors such as weight, age and gender.

We find Dr. Ollinger to be the more credible as he understands the sequential nexus between employee's metabolic and body habitus changes, the stresses of the workplace and the development of employee's hand complaints. Pulitzer Publishing Co. v. Labor \& Ind. Rel. Comm'n, 596 S.W.2d 413,417 (Mo. banc 1980).

Dr. Ollinger also notes the development of additional new complaints since the carpal tunnel surgery. This bespeaks the continuing manifestation of maladies unrelated to the workplace.

We are further persuaded by Dr. Ollinger's opinion that employee's work did not entail significant repetitions, significant force, contact stresses or vibrations and not requiring extremes of flexion or extension of the wrist. We find these expert conclusions to be credible. Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 884-885 (Mo. App. S.D. 2001).

Given at Jefferson City, State of Missouri, this $\qquad$ day of August 2005.

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I must respectfully disagree with the majority of the Commission. I would reverse the decision of the administrative law judge and award compensation.

The majority determines that a critical question in this case is the beginning of employee's hand complaints. We need look no further than the "Undisputed Facts" portion of the Award of the administrative law judge. There the administrative law judge recites employee's testimony that her symptoms began in the late 1990s.

Since this is an "Undisputed Fact" and adopted by the majority all else must flow from that timeline. The case is compensable.

In his "Rulings of Law" the administrative law judge provides us with a bold medical conclusion that "the medical condition resulting from repetitive trauma is called tenosynovitis, not carpal tunnel syndrome." The source of this conclusion is not indicated and is nowhere to be found in the record. Obviously, then, the administrative law judge is taking the opportunity of this Award to share his own views and conclusions. I consider this improper.

The administrative law judge 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 administrative law judge 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

AWARD

Employee: Winfred Collier Injury No.: 02-145138

Dependents: N/A Before the Division of Workers' Employer: Ameren UE Compensation Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Additional Party: N/A Self-Insured

Insurer: N/A Self-Insured

Hearing Date: September 10, 2004 Checked by: JED:tr

FINDINGS OF FACT AND RULINGS OF LAW 1. Are any benefits awarded herein? No 2. Was the injury or occupational disease compensable under Chapter 287? No 3. Was there an accident or incident of occupational disease under the Law? No 4. Date of accident or onset of occupational disease: N/A 5. State location where accident occurred or occupational disease was contracted: N/A 6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes
2. Did accident or occupational disease arise out of and in the course of the employment? No
3. Was claim for compensation filed within time required by Law? Yes
4. Was employer insured by above insurer? Yes
5. Describe work employee was doing and how accident occurred or occupational disease contracted: N/A
6. Did accident or occupational disease cause death? No Date of death? N/A
7. Part(s) of body injured by accident or occupational disease: N/A
8. Nature and extent of any permanent disability: N/A
9. Compensation paid to-date for temporary disability: -0 -
10. Value necessary medical aid paid to date by employer/insurer? -0 -

Employee: Winfred Collier Injury No.: 02-145138

1. Value necessary medical aid not furnished by employer/insurer? \16,595.16
2. Employee's average weekly wages: \ 1,000.00
3. Weekly compensation rate: $\$ 649.32 / \ 340.12
4. Method wages computation: Stipulation

1. Amount of compensation payable: None
2. Second Injury Fund liability: No

TOTAL: $\quad-0-$

1. Future requirements awarded: N/A

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:

$\mathrm{N} / \mathrm{A}$

This case involves a disputed claim of bilateral carpal tunnel syndrome alleged occupational disease claim involving alleged injuries to the claimant's right and left hands. The employer admits that claimant was employed on said date and any liability is fully insured. Both parties are represented by counsel. The case does not proceed under a Hardship petition.

1. Incidence of occupational disease including exposure and causation;
2. Unpaid medical expenses including authorization;
3. Temporary total disability; and
4. Nature and extent of permanent partial disability.

The claimant is a 55-year-old female who worked for Union Electric and Ameren UE for 33 years. After 1976 she worked as a customer service representative. During the last two years of her employment she worked as a credit advisor.

The claimant testified that she is currently 5 feet $11 / 2$ inches tall and weighs 165 pounds. The claimant retired from Ameren UE effective January 1, 2003. This was a voluntary retirement. Claimant's retirement coincided with the early retirement of other individuals at Ameren UE.

Claimant testified that her job at Ameren UE involved using a headset and keyboard as well as a mouse to retrieve and enter information into a computer. The headset was used to talk on the phone while retrieving and entering information into the computer. She worked 8 hours a day and on some occasions worked up to