Traci Townser v. First Data Corporation

and trustworthy than the evidence presented by employee. I disagree.

The employee is claiming injury to her right hand as the result of cumulative trauma sustained in her 7 years as a customer service representative. Dr. Phillips, Dr. Crandall, and Dr. Cohen all diagnosed employee with carpal tunnel syndrome. The question before us is whether there is a causal link between employment and the condition of ill being.

The ALJ and the majority were of the opinion that employee did not establish the work-relatedness of her condition. However, I find the opinion of the ALJ deeply flawed and based upon factors other than the statutory requirements of proof.

In the preamble to his rulings of law, the ALJ provides a unique reading of the statutory provisions governing occupational disease. I quote the entire flawed paragraph:

The Missouri Workers' Compensation law permits recovery for chronic hand symptoms that result from the workplace under the category of occupational disease if the symptoms are the result of "repetitive motion." Section 287.067.7 RSMo (2000). Thus, the legislature limits employer liability for hand symptoms which do not result from a single accident to those cases only in which the symptoms result from "repetitive motion." Id. The exposure to repetitive motion must be proven like any other element of Claimant's case.

Section 287.067.7 RSMo does not state that recovery can be had for chronic hand symptoms only if the symptoms are the result of "repetitive motion." Section 287.067 .7 is the "three-month" rule describing how to determine which of two or more exposing employers is liable if an occupational disease was caused by repetitive motion, and the most recent exposure was for less than three months. That rule has no bearing on this case because the hazardous exposure with this employer was for much longer than three months. In addition, the subsection applies to any occupational disease caused by repetitive motion, not just diseases of the hand. The ALJ's interpretation that this section is a legislative expression limiting employer liability for hand injuries is inexplicable.

The ALJ enlightens us 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 ALJ, however, seems to equate exposure with ergonomics. This is a conclusion without foundation.

The ALJ discounts the conclusion of job relatedness advanced by Dr. Cohen because the doctor did not have an ergonomic study. I know of no requirement for such a study before a medical expert may offer an opinion. Of course, that is because no such requirement exists. In any event, the ergonomic studies offered in this matter were conducted on different customer service jobs than the job performed by employee. Dr. Crandall's causation opinion, based entirely on an analysis of job duties that are not performed by this employee, is devoid of value and is entirely unreliable.

The ALJ goes on to attack the conclusion of Dr. Cohen because the doctor did not premise the "statutory requirement of a precipitating repetitive motion." What is the basis for this conclusion? The report of Dr. Cohen was admitted into evidence without objection. Dr. Cohen diagnosed an "overuse disorder," suggesting repetitive motion. How then, can the ALJ conclude that this factor was not considered by the doctor in formulating his opinion?

The following paragraph from the award is also troubling:

More important is the question of why, after five or more years, Claimant begins to have symptoms. It is axiomatic that a cause and effect relationship be identified. This cannot be done after many years of exposure with no symptoms. The onset of symptoms is too remote from the commencement of exposure to the alleged repetitive motion.

The errors in this paragraph are numerous. Dr. Crandall's records reflect that employee reported having problems with her right hand off and on since 1998 -- three years after the exposure began. I think it is a stretch to characterize five years as "many years." Certainly, three years does not qualify as "many years."

Most troubling with the final sentence of the above paragraph is that no medical expert offered an opinion that the onset of employee's symptoms was too remote from the commencement of exposure. The ALJ supplies his lay opinion as medical fact to defeat causation. "[A]ny administrative decisionmaker who has made an unalterable prejudgment of operative adjudicative facts is considered biased." Fitzgerald v. Maryland Heights, 796 S.W.2d 52, 59 (Mo. App. 1990).

The ALJ advises us that it is "axiomatic" that a cause and effect relationship be identified. This statement is a drastic oversimplification of a complex legal concept. Proof of causation is not a matter of common sense, it is a statutory requirement. See $\S \S 287.067$ and 287.020 RSMo. The legislature would not have described the causal relationship several different ways, if it's meaning was self-evident. Nor would courts have published countless decisions telling us what causation means. This type of empty rhetoric serves no purpose in a workers' compensation decision.

The ALJ concludes that a cause and effect relationship cannot be shown "after many years of exposure without symptoms." Nowhere in the expert medical evidence, consisting of the reports of Dr. Cohen and Dr. Crandall, does either physician offer an opinion remotely similar to the ALJ's blanket assertion.

The ALJ's causation criteria are not set forth in the Workers' Compensation Law. The ALJ's causation criteria are not supported by expert medical evidence in the record. This is an improper interjection of the ALJ's own opinions into the case before him without evidentiary support. It is axiomatic that the ALJ should decide the case before him as it is presented without providing the help or hindrance of his own views and opinions.

The ALJ would have employee's expert, Dr. Cohen predicate causation "to the exclusion of other possible causes." This is a new and groundbreaking requirement found nowhere in the Workers' Compensation Law. The statute requires that the employment be a substantial factor in causing the injury. Missouri case law establishes that causation be proven within a reasonable degree of medical certainty. There is no legal standard such as that espoused by the ALJ. The ALJ's imposition of this evidentiary requirement is a clear indication of the impossible, unreasonable and improper burden of proof this ALJ would have employee establish. The standard of proof employed by this ALJ is unique to him and at odds with the statutory requirements.

I find that employee has established that her work exposed her to the hazards of repetitive motion, specifically keyboarding and mouse use, hazards to which she was not exposed outside the workplace. I find the opinion of Dr. Cohen to be the most persuasive and credible evidence regarding causation. Dr. Cohen believes that employee's workplace exposure caused her upper right extremity condition.

I would reverse the award of the administrative law judge denying compensation. I would award compensation including past medical expenses, temporary total disability benefits, and permanent partial disability benefits. For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

John J. Hickey, Member

Claimant: Traci Townser

Injury No.: 02-047405

Dependents: N/A

Before the

Employer: First Data Corporation

Division of Workers'

Compensation

1. 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 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:

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

Insurer: Pacific Employers Insurance Company Checked by: JED

This case involves a disputed repetitive motion claim alleged by Claimant with a filing date of May 21, 2002 and an exposure date of May 20, 2002. Employer admits Claimant was employed on said date and that any liability was fully insured. The Second Injury Fund is not a party to this claim. All parties are represented by counsel.

1. Incidence of occupational disease (exposure and medical causation);
2. Unpaid medical expenses;
3. Unpaid temporary total disability benefits; and
4. Nature and extent of permanent disability.

1. The ave