Penny Austin v. Air Products & Chemicals, Inc. d/b/a PG Walker

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 98-077476

Employee: Penny Austin

Employer: Air Products \& Chemicals, Inc.

d/b/a PG Walker

Insurer: National Union Fire Insurance Company

Date of Accident: June 18, 1998

Place and County of Accident: Greene 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 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 May 6, 2005. The award and decision of Associate Administrative Law Judge L. Timothy Wilson, issued May 6, 2005, is attached and incorporated by this reference.

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 $\qquad 29 ^{\text {th }} \qquad$ day of November 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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. Date of accident or onset of occupational disease: June 18, 1998
5. State location where accident occurred or occupational disease was contracted: Greene 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 accident occurred or occupational disease contracted: While performing repetitive work duties, Claimant sustained injury to her hands, arms, shoulders, arms, and neck.
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: hands, arms, shoulders, and neck
14. Nature and extent of any permanent disability: 25% permanent partial disability body as a whole
15. Compensation paid to-date for temporary disability:
16. Value necessary medical aid paid to date by employer/insurer?
17. Value necessary medical aid not furnished by employer/insurer?
18. Employee’s average weekly wages:
19. Weekly compensation rate: $257.78
20. Method wages computation: stipulation

1. Amount of compensation payable:

An award for future medical care is denied

An award for additional temporary total disability compensation is denied.

1. Second Injury Fund liability: No

TOTAL:

1. Future requirements awarded: none

Said payments to begin immediately 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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Alexander W. Staab

Employee: Penny Austin

Injury No: 98-077476

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: N/A

Employer: Air Products \& Chemicals, Inc., d/b/a PG Walker

Additional Party N/A

Insurer: National Union Fire Insurance Co.

Checked by: LTW/mp

The above-referenced workers' compensation claim was heard before the undersigned Associate Administrative Law Judge on August 18, 2003. The record was left open for the submission of additional evidence and/or briefs, resulting in the

record being completed and submitted to the undersigned on or about April 18, 2005.[1]

The parties entered into a stipulation of facts. The stipulation is as follows:

1. On or about June 18, 1998, Air Products & Chemicals Inc., d/b/a PG Walker, was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by National Union Fire Insurance Co.
2. On the alleged injury date of June 18, 1998, Penny Austin was an employee of the employer and was working under and subject to The Missouri Workers' Compensation Law.
3. On or about June 18, 1998, the employee sustained an incident of occupational disease which arose out of and in the course and scope of her employment with Air Products & Chemicals Inc., d/b/a PG Walker.
4. The above-referenced employment and incident of occupational disease occurred in Greene County, Missouri. The parties agree to venue lying in Springfield, Missouri. Venue is proper.
5. The employee notified the employer of her injury as required by Section 287.420, RSMo.
6. The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.
7. At the time of the alleged accident, and at all times relevant to this case, for purposes of this hearing, the employee's average weekly wage was sufficient to allow a compensation rate of $253.33 for temporary total disability compensation and permanent disability compensation.
8. Temporary disability benefits have been provided to the employee in the amount of $2,135.91, representing 8 2/7 weeks in disability benefits, payable at the compensation rate of $253.33.
9. The employer and insurer have provided medical treatment to the employee, having paid $12,472.63 in medical expenses.

The sole issues to be resolved by hearing include:

1. Whether the occupational incident of June 18, 1998, caused the injuries and disabilities for which the employee is now claiming benefits? (The employer and insurer stipulate to the June 18, 1998, incident as being the cause of the employee suffering a ganglion cyst bilaterally to her wrists and bilateral carpal tunnel syndrome; but they dispute that this incident caused her to suffer fibromyalgia or such pain syndrome.)
2. Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve her of the effects of the injuries?
3. Whether the employee is entitled to temporary total disability benefits, insofar as the employee is claiming permanent total disability?
4. Whether the employee sustained any permanent disability as a consequence of the alleged incident; and, if so, the nature and extent of the disability?

The employee, Penny Austin, testified at the hearing in support of her claim. Also, the claimant offered for admission the following exhibits:

- Exhibit A .... Complete Medical Report of Andrew I. Myers, M.D. (with attached Medical Records)

- Exhibit B .................................. Deposition of Michael Dreiling

Exhibit C Medical Record / Surgeon's Report of Ronald Weller, D.O. \& Dr. Gil's Immediate Care \& Occupational Health Center (2 pages)

Exhibit D Deposition of Neil Nathan, M.D.

Exhibits A, B, and C were received and admitted into evidence at the hearing. Exhibit D was received and admitted into evidence subsequent to the hearing by agreement of the parties.

The employer and insurer did not present any witnesses at the hearing of this case. The employer and insurer, however, offered for admission the following exhibits:

Exhibit 1 Deposition of David G. Paff, M.D.

Exhibit 2 Deposition of Ted Lennard, M.D.

Exhibit 3 Deposition of Andrew I. Myers, M.D.

Exhibit 4 Deposition of P. Brent Koprivica, M.D.

Exhibits 1, 2, and 3 were received and admitted into evidence at the hearing. Exhibit 4 wasreceived and admitted into evidence subsequent to the hearing by agreement of the parties.

In addition, the parties identified several documents filed with the Division of Workers' Compensation which were made part of a single exhibit identified as the Legal File. The undersigned took official notice of the documents contained in the Legal File which include: Notice of Hearing; Letter Dated August 13, 2003; Entry of Appearance by Alexander Staab, Esq.; Request for Leave of Court to Withdraw as Employee's Counsel; Answer of Employer \& Insurer to Claim for Compensation; Claim for Compensation; and Report of Injury.

The employee, Penny Austin, is 46 years of age, having been born on December 4, 1958. She residein the metropolitan area of Springfield, Missouri.

Ms. Austin is a high-school graduate. However, with the exception of three months of vocational training in accounting and three months of excel training, she enjoys limited additional education or vocational training. Also, Ms. Austin's work history is varied, involving a combination of administrative or clerical employment and physical labor oriented work. This employment includes working as a clerk for AAA Auto Club and Hartford Insurance, and cleaning houses as a domestic aid. Additionally, this employment required Ms. Austin to engage in typing, perform paper work tasks, and to perform the tasks of a receptionist.

In or around 1991, Ms. Austin secured employment with P.G. Walker, working as a data entry operator. In this employment Ms. Austin engaged primarily in data entry and ten-key typing, together with telephone work. According to Ms. Austin, this work required her to use intensively her upper extremities. Notably, she used both hands to type; and she used her right hand to operate the adding machine. Additionally, according to Ms. Austin, she would type tickets and sales requests into P.G. Walker's computer data system; and she would use the telephone to perform customer service responsibilities.

Eventually, in or around June 1996, Ms. Austin received a promotion to the position of sales assistant, which had the effect of tripling her workload. Although she continued to perform the same type of duties, the promotion required her to use the telephone, perform data entry and ten-key operation a lot more, with 80 percent of her time being devoted to data entry or ten-key typing. Also, Ms. Austin states, in using the telephone, she did not have the benefit of a hand- free telephone and had to rest the telephone on her shoulder while she worked with her hands doing data entry and ten-key operation. Further, Ms. Austin notes she worked 4 to 5 hours straight without stopping for a rest or getting up from her desk.

In June 1998 Ms. Austin began to experience pain in her arms and noticed lumps and a cyst on her right hand / wrist. In light of these concerns, she notified the human resource officer with P.G. Walker of her concerns, and subsequently received a referral to Dr. Gil's for an evaluation. Following this evaluation and a tentative diagnosis of carpal tunnel syndrome, Dr. Gil fitted Ms. Austin for a right wrist splint and referred her to Scott Swango, M.D., who is an orthopedic surgeon, for a surgical consultation.

On July 9, 1998, Ms. Austin presented to Dr. Swango with complaints of "throbbing type pain with numbness." Additionally, Ms. Austin noted that the pain and numbness radiated from the hands into the shoulders, with her right hand being more symptomatic than the left hand. In light of his examination and findings of Ms. Austin, Dr. Swango diagnosed Ms. Aus