Cherie Knapp v. MERS Goodwill Industries

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-141125

Employee: Cherie Knapp

Employer: MERS Goodwill Industries

Insurer: SWIM/Self-Insured

Date of Accident: Alleged October 31, 2003

Place and County of Accident: Alleged St. Louis City

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 October 3, 2005, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued October 3, 2005, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 12^{\text {th }} \qquad$ day of April 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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? Self-Insured
11. Describe work employee was doing and how accident occurred or occupational disease contracted: N/A
12. Did accident or occupational disease cause death? No 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: Cherie Knapp Injury No.: 03-141125 17. Value necessary medical aid not furnished by employer/insurer? -0- 18. Employee's average weekly wages: $\ 600.00 19. Weekly compensation rate: $\$ 400.00 / \ 347.05 20. Method wages computation: Stipulation

1. Amount of compensation payable:

None 22. Second Injury Fund liability: No

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 repetitive trauma injury alleged by Claimant with the reported onset date of April 2004. Employer admits Claimant was employed on said date and that any liability was fully self-insured. The Second Injury Fund is not a party to this claim. Both parties are represented by counsel. This matter proceeds pursuant to Hardship Petition.

1. notice
2. incidence of occupational disease
3. future medical treatment; and,
4. nature and extent permanent partial disability.

The parties stipulate that Claimant's average weekly wage was $\ 600.00 and applicable compensation rates of $\ 400.00 for temporary total disability benefits and $\ 347.05 for permanent partial disability benefits.

Claimant testified that she was hired at Employer on 10/28/98 and was terminated on 10/31/03. Since leaving Employer she has been employed as a substitute teacher for approximately two months. Her first job at Employer was an instructor for computer products that she did for almost one year. She would lecture students on how to use software such as Power Point, Excel, etc. She had to use a computer keyboard about two hours per day on this job and she had no complaints to her hands when she did this job.

She then moved into a data base administrator position that she performed about two and a half years. She also gave instruction on visual basics which entailed lecture for six weeks for two-hour classes, three to four times per week. She installed cable maybe once every three months in this job. She would also fix computers by installing hardware, pulling off covers or replacing parts. She performed some data entry work. She estimated keyboarding 35 hours per week. She also had to carry computers two to three times a week and they weighed approximately 50 pounds.

She last worked for Employer in the contracts department as division manager. She ran the document imaging. She would have to go to the work sites and scan documents into the computer or she would collect document boxes for scanning. She had employees helping her scan. At times, she would work from home. As division manager, she would attend meetings and provide technical support where she visits customers. She worked here until her employment terminated.

Claimant says she developed complaints to her hands approximately two years after she began her employment. At the beginning she would get occasional numbness but her complaints progressed. At the end of her employment, she would start typing and have to shake her hands because they would go numb. She would drop her hands down to her side and that seemed to alleviate her complaints.

She testified that she told Kathy McCarney and John Gilliland, her supervisors during the time that she worked at Employer, that her hands would go numb. Claimant indicated they both merely responded, "that's weird." Claimant admitted that it was not until after she was terminated with the company that she reported to Cheryl Wicks her belief that her symptoms were work related.

Claimant's family doctor, Dr. Noguera, ordered nerve conduction studies and diagnosed bilateral carpal tunnel syndrome. Previously, she thought she simply had arthritis. She never asked for medical treatment from Employer and none was offered. Dr. Nester recommended that she wear a brace on her hands and told her she needed bilateral carpal tunnel surgery.

She acknowledged that she uses her hands playing video games as well as answering e-mails, going into chat rooms and paying bills on her computer at home. She estimates that she checked e-mails three to five times per week and paid bills on the computer for a couple of hours per week.

Cheryl Wicks has been employed at Employer for six and a half years as Health and Safety Coordinator and the company nurse. She handles workers' compensation claims and indicated Cherie Knapp would have known to whom workers' compensation injuries were reported. Neither Cherie Knapp nor John Gilliland ever reported a work related injury on behalf of Claimant.

Ms. Wicks testified that she was suspicious of this claim since it was reported after Claimant was terminated. Claimant was alleging bilateral carpal tunnel from typing eight hours per day and lifting heavy

objects (Exhibit B). She investigated the alleged injury.

handling workers' compensation claims, she had no knowledge of other employees who did the same job as Claimant that reported work related hand symptoms.

Juanita Blockton has been working for Employer for approximately four years. She is an administrative assistant and worked with Cherie Knapp in the same department. She testified that John Gilliland told her to pull the contract invoices for 2002 and 2003 which she did (Exhibit 2). She testified Claimant had other employees working for her. Ms. Blockton disagreed that Claimant performed much typing. She estimated Claimant typed an hour and a half per day. Claimant took several breaks a day and took lunch.

Claimant offered the deposition of Dr. Steven Nester, family practitioner, who examined Claimant on 11/16/04. Dr. Nester stated that Claimant had bilateral carpal tunnel syndrome and it resulted from repetitive use and trauma in association with her employment at Employer. Dr. Nester stated Claimant would likely benefit from further medical management including surgical correction of her carpal tunnel syndrome. Nevertheless, he assigned permanent disability ratings of 30 % to the right wrist and 10 % to the left wrist. He also gave the opinion that Claimant's body mass index of 30 was not a risk factor for developing carpal tunnel syndrome.

Dr. Nester admitted on cross-examination to a limited practice of family medicine. He acknowledged the existence of causes of carpal tunnel syndrome that are not work related. Dr. Nester was not familiar with details of hand tasks underlying Claimant's job duties:

Q. Okay. Let's start with typing. Do you know how long she typed in a day?

A. I think she qualified that as extensive, whether, you know, more than half the day or something along those lines.

Q. Do you know exactly how long she typed in a day?

A. In a given day? Exactly how many minutes? No.

Q. Do you know what percentage of her day was spent typing?

A. Over 50 percent.

Q. Where do you get that?

A. I think I remember her saying that it was on that level of involvement with her typing.

Q. It's not in your report, is it?

A. No.

Q. And that's not on the employee questionnaire, is it, the 50 percent?

A. I don't see it on there.

Q. So you're going by memory?

A. I'm making it up, probably.

Q. Do you know if there are days that she didn't type at all?

A. No.

Q. Do you know how many breaks or rest periods she had between typing?

A. No.

Q. Okay. Going on to lifting, do you know what she lifted?

A. No.

Q. Do you know how much the objects that she lifted weighed?

A. No.

Q. Do you know how often she lifted - - whether it was once a day, once a week, once a month?

A. No.

Q. Do you know the percentage of her time of her work that comprised lifting?

A. No.

Q. You also mentioned programming. Do you know exactly what she did with programming?

A. (No response.)

Q. Do you know what that involved?

A. I know what programming is, but I - -

Q. Do you know what her job as programming involved?

A. No.

Q. And you talked about computer troubleshooting issues and that she may have used tools. Do you know what tools she used?

A. No.

Q. Do you know how often she did this?

A. No.

Q. Do you know the percentage of her workday that would have been spent troubleshooting computer issues?

A. No.

Q. Do you know if she used the telephone to handle these troubleshooting computer issues?

A. No.

Q. And then again on network repair, again, do you know what her specific job tasks were with network repair?

A. No.

Q. Do you know what percentage of her day was spent in network repair?

A. No.

Q. Do you know what tools she would have used in network repair?

A. No.

Q. Do you know how often she did the network repair?

A. No.

(Exhibit C, p. 13 - 16).

Dr. Nester admitted that if Claimant's j