Kathleen Gibson-Knox v. Classic Printing

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 April 4, 2005. The award and decision of Administrative Law Judge Robert J. Dierkes is attached hereto solely for reference.

1. The condition of employee's bilateral upper extremities, i.e., bilateral carpal tunnel syndrome, is not attributable to an occupational disease arising out of and in the course of her employment.

In the instant case, the employee seeks workers' compensation benefits due to bilateral upper extremity complaints, i.e., bilateral carpal tunnel syndrome, 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 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 the instant case the employee testified as to her employment history with the employer. Employee described her job activities and job duties in summary fashion as follows: she was a bookkeeper; at the time she was hired the employer was converting to what is referenced as a QuickBooks computer process; the employee entered customers into a database; invoices into a database; she also entered bills, checks, checkbooks, bounced checks, etc.; she answered the phone as necessary; she assisted in copying as well as collating; employee indicated on the average she spent seven hours per day typing out of a normal eight hour day; and she also performed log book activity for some of the employer's appraisers.

In approximately October 2003, the employee noticed physical problems, i.e., both hands were going numb. Employee testified that this condition had been occurring for approximately the preceding six months, and the condition was gradually worsening.

Employee testified that she consulted her family doctor, Dr. Osborn, on her own, approximately two months before reporting a possible work related medical condition and/or a work related injury to her employer.

Her employer authorized two evaluations in her behalf, one performed by Dr. Woodward and one performed by Dr. Koo.

On cross-examination, employee's job duties were thoroughly discussed, especially the work entailed by the use of QuickBooks. The Commission finds this cross-examination and the corresponding answers enlightening and probative as to whether or not there was a possible exposure leading to the contraction of the alleged occupational disease, carpal tunnel syndrome, vis-à-vis the condition being resultant of a non-occupational cause.

In addition to the cross-examination of employee concerning what her job duties actually entailed, the Commission also finds extremely enlightening and probative the testimony of the president of the company. The president's description of employee's job duties differed remarkably from the employee's; and indicated little if any type of sustained repetitive activities performed by employee. We accept his testimony as being more credible than the testimony of employee.

In summary, based on the employer's cross-examination of the employee and the testimony of the president of the company, which the Commission finds more believable, trustworthy and credible than the testimony of the employee and her witnesses, there was an absence of sustained keying activities being performed by the employee during her workday. The evidence offered by the employer as to the issue of sustained keying activities indicates there was very little if any type of repetitive motion activity to which the employee was exposed while employed with this employer.

Accordingly, the employee has failed to convince the Commission or establish by her testimony that there was exposure in the workplace sufficient to conclude that her alleged repetitive motion was capable of producing the resultant medical condition, bilateral carpal tunnel syndrome.

Furthermore, employee has also failed to establish by her testimony in conjunction with any expert testimony of the probability that her claimed occupational disease, bilateral carpal tunnel syndrome, was caused by conditions

in her work place. As stated above, the Commission finds the employer did not expose the employee to repetitive motion capable of producing employee's alleged medical condition. Employee's testimony as to her job activities was deficient in convincing the Commission that such activities were a substantial factor resulting in her complained of medical condition. Her description of her job activities is not deemed trustworthy and believable when compared with the description of her job activities rendered by the president of the company. Her testimony alone does not convince the Commission that there exists a probability that her claimed occupational disease arose out of and in the course of her workplace or was caused by the conditions of her workplace.

The Commission also finds that the medical expert opinion rendered by Dr. Koo, is believable, trustworthy, credible and persuasive concerning the issue of medical causation. Dr. Koo is a board certified plastic surgeon who is well familiar with treatment of carpal tunnel syndrome.

Dr. Koo had an opportunity to examine the employee. Dr. Koo rendered several opinions concerning her medical condition, and the medical causation of her condition.

Significantly, Dr. Koo testified that employee has diabetes (diagnosed a few months prior to her complaints), and it is "way out of control". Dr. Koo also suspicions that employee has hypothyroidism. According to Dr. Koo, it is medically accepted that people with either of these conditions are known to have peripheral neuropathies.

As stated by Dr. Koo, this particular employee has peripheral neuropathy to a significant degree. It is so irritating that she needs to take Neurontin. Dr. Koo further states that she takes the Neurontin due to the peripheral neuropathy in her bilateral lower extremities, and Dr. Koo is sure that the peripheral neuropathy due to her diabetic condition significantly affects her upper extremities.

Dr. Koo clearly is of the medical opinion that employee's peripheral neuropathies of both her bilateral upper extremities and bilateral lower extremities are related to her diabetic condition and are clearly not work related conditions. In addition, Dr. Koo testified that she was familiar with the computer program referenced QuickBooks, as she personally uses it at home and at work. Dr. Koo opined that if employee's activity for her eight-hour day entailed the use of QuickBooks, Dr. Koo is definitely of the opinion that employee's work had no contributing factor or is associated with her development of her carpal tunnel syndrome. As stated by Dr. Koo, the employee has two very significant factors that create, cause or contribute to the development of her peripheral neuropathies; and that is possible hypothyroidism and definitely diabetes. Dr. Koo further states that employee's diabetes is way out of control; it is even affecting her feet and legs; and she is bound to also have carpal tunnel syndrome due to her diabetic condition. Any treatment including surgery would in no way be related to the employee's employment activities in the opinion of Dr. Koo.

Dr. Koo stated that the employee would have to have been involved in sustained keying activities at least 30 minutes out of each hour of the workday, in order to possibly establish a medical causal link between carpal tunnel syndrome and her employment. The Commission specifically finds there was no such sustained keying activities or any exposure at work to repetitive motion capable of producing her complained of condition.

In conclusion, based on the more believable testimony proffered by the employer regarding the employee's actual job related activities, and the credible and persuasive medical opinions of Dr. Koo concerning causation, there was not significant exposures to activities which involved forceful or repetitive movements which might lead to the development of bilateral carpal tunnel syndrome. Consequently employee did not sustain an injury due to an occupatio