Gary McCurter v. Cassens Transport Company

The administrative law judge and the majority rely on the opinions of Dr. Coin in determining that employee's employment did not involve sufficient repetitive actions to be causative of the condition of carpal tunnel syndrome. Dr. Coin, in fact, agreed with that diagnosis and recommended surgery to cure and relieve. Dr. Coin testified that employee did have continuous, heavy repetitive use of his hands. Dr. Coin maintained his opinion that employee's job was not hand intensive enough to be causative even as he testified that he did not measure the vibration to which employee was exposed. Dr. Coin did no research into the question of truck driving as a cause of carpal tunnel. Employee presented publications from Rehabilitation Medicine, the May Clinic health letter, the National Institute of Medicine and the Carpal Tunnel Syndrome Newsletter all containing articles linking truck driving to the development of carpal tunnel syndrome.

I would not accept the conclusions of Dr. Coin. To me, the opinions of Dr. Shaefer and Dr. Swango are the more persuasive. These physicians testified that Employee's job, which was hand intensive and exposed him to the vibration risk of truck driving, was a significant factor in the development of his carpal tunnel syndrome. Accordingly, the condition would be compensable under Sec. 287.067.7 RSMo.

In his rulings of law, the administrative law judge provides us with a bold medical conclusion involving the medical condition resulting from repetitive trauma. We are informed that that condition is tenosynovitis, not carpal tunnel syndrome. The source of this conclusion is not indicated and is nowhere to be found in the record. Obviously, the administrative law judge is taking the opportunity of this award to share his own views and conclusions. I consider this to be 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 discomfort." The administrative law judge, however, seems to equate exposure with ergonomics. A conclusion without foundation.

The administrative law judge advises that because employee "endured the exposures" of repetitive trauma for years before the manifestation of symptoms the condition does not meet the statutory requirement. What statute requires sudden onset of repetitive motion injury?

The administrative law judge advised that no expert has identified the period of "latency", during which employee is exposed to repetitive trauma and before the development of symptoms, as being medically recognized. Apparently, the administrative law judge did not notice the testimony of his adopted expert, Dr. Coin. Dr. Coin testified that a reasonable medical assessment of repetitive trauma, viewed on a gross basis, would be a "small insult or trauma to the hands on a daily basis over a lengthy period of time until the patient becomes symptomatic." To the extent that the administrative law judge's denial is based on his contrary conclusion, it is plainly wrong.

John J. Hickey, Member

Employee: Gary McCurter Injury No.: 03-107640

Dependents:N/A Before the

Division of Workers'

Employer: Cassens Transport Company

Additional Party: $\quad \mathrm{N} / \mathrm{A}$

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

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
7. Did employer receive proper notice? N/A
8. Did accident or occupational disease arise out of and in the course of the employment? No
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: N/A
12. Did accident or occupational disease cause death? N/A Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

Employee: Gary McCurter Injury No.: 03-107640 17. Value necessary medical aid not furnished by employer/insurer? N/A 18. Employee's average weekly wages: $\ 1,221.45 19. Weekly compensation rate: $\$ 662.55 / \ 347.05 20. Method wages computation: Stipulation.

COMPENSATION PAYABLE 21.Amount of compensation payable: None

1. Second Injury Fund liability: No

TOTAL: $\quad-0-$

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 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 Claimant:

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

Employee: Gary McCurter Injury No.: 03-107640

Dependents: N/A Before the

$\begin{array}{lr}\text { Employee: } & \text { Cassens Transport Company } \\ \text { Additional Party: } & \text { N/A }\end{array}$<br>Division of Workers' Compensation<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

Insurer: Self-Insured

Checked by: JED:tr

years on the job. Employer admits Claimant was employed at all times relevant and that any liability was fully selfinsured. The Second Injury Fund ("SIF") is a party to this claim. Both parties are represented by counsel.

1. Incidence of Occupational Disease; (exposure \& medical causation);
2. Costs under Section 287.560 RSMo (2000).

Claimant has been a car hauler for the Employer since 1992. He loads cars out of the Fenton, Missouri terminal and delivers them to car dealerships. To load the cars on the truck, he will use four chains to secure the cars to the truck. His auto transport holds seven trucks, nine vans or eleven cars which are secured by four chains. He usually hauls trucks or vans. For trucks, he will use 28 chains, 38 chains for vans, and 44 chains for cars.

Once the load is secured, he then drives to dealerships within a 300 to 500 mile radius delivering one to two cars per dealer. There is a quick release ratchet which is used to release the chains when he delivers the cars. While driving the car hauler, he claimed a felt a lot of vibration while driving. The truck he uses has power steering.

In the unloading process, he uses the quick release ratchet to release the chains, and then backs the cars off of the car hauler for delivery at the dealership. If the vehicles are loaded in the proper sequence, then he is able to deliver the cars in reverse order as they were loaded.

Sometime more than two years ago, Claimant felt tingling and numbness in his arms and hands although he could not recall the year or the month this began. He believed he saw a Dr. Ginsberg who referred him to Dr. Brown. The medical records indicate that he was actually referred to Dr. Brown for a right elbow injury in 2002. On May 21, 2002, the new patient questionnaire completed by Claimant for Dr. Brown listed only complaints to the right hand and left elbow. There were no complaints regarding the left hand or wrist, contrary to Claimant's trial testimony (Exhibit D, patient questionnaire page 3).

The employee came under the care of Dr. Shaeffer for a left elbow injury occurring on January 2, 2003. During the course of his treatment for his elbow injury, Dr. Shaeffer testified that Claimant complained to him of numbness and tingling in his hands.

Dr. Shaeffer noted that he had taken a history from Claimant that he drove a car hauler for eight to ten hours a day. In his opinion Claimant's holding of the steering wheel during driving while the truck was vibrating and the shifting of the gears of the truck were factors that supported his opinion that Claimant's bilateral carpal tunnel syndrome was related to his work for the Employer. Dr. Shaeffer's understanding of the job duties was contradicted by Claimant's driving logs and analysis of the job (Exhibit 6 and 10). Employer was not provided a written request per Dr. Schaeffer to provide treatment for the bilateral carpal tunnel conditions.

No ergonomics were defined.

The Employee also was examined on August 23, 2004 at the Employee's counsel's request although Dr. Swango is of the same medical specialty as Dr. Shaeffer. Dr. Swango was of the opinion that Claimant sustained bilateral carpal tunnel syndrome from his work for Employer. Dr. Swango admitted to idiopathic carpal tunnel cases in 30 % of the cases he has treated. Dr. Swango had a limited understanding of Claimant's work and the history of driving eight to ten hours on a daily basis is contradicted by Claimant's driving logs and his own trial testimony (Exhibit 10). No ergonomics were defined.

Mr. Tim Knox performed an ergonomics study of the car hauler pos