Kay Koeller v. Western Union Financial Services

I must respectfully dissent from the majority's decision to modify the award and decision of the administrative law judge. I have reviewed and considered all of the competent and substantial evidence on the whole record. The award of the administrative law judge is well written, well reasoned, and well supported. As such, I believe the award and decision of the administrative law judge should be affirmed.

Because the majority of the Commission has decided to modify the award and decision of the administrative law judge, I must respectfully dissent.

John J. Hickey, Member

Employee: Kay Koeller

Injury No.: 02-058377

Dependents: N/A

Employer: Western Union Financial Services

Additional Party:

Insurer: Pacific Employers Insurance Company

Hearing Date:June 14, 2005

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Second Injury Fund (Open)Relations of Missouri

Jefferson City, Missouri

Checked by: MDV:tr

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes

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:

Jagadeesh Mandava

Employee: Kay Koeller

Injury No.: 02-058377

Dependents: N/A

Before the

Employment of Labor and Industrial

Additional Party: Second Injury Fund (Open)

Reations of Missouri

Jefferson City, Missouri

Insurer: Pacific Employers Insurance Company Checked by: MDV:tr

These two claims were tried together pursuant to 8 C.S.R. 20-3.050(1), (2) and (3). One transcript will be generated. The evidence has been admitted under both claim numbers and two separate awards will issue. The Second Injury Fund is an additional party to each claim, however, the Second Injury Fund portion of the claim was left open pending resolution of the compensability of the primary injury.

In Injury Number 02-086791, the issues presented for resolution are: occupational disease; medical benefits; temporary total disability from April 12, 2002 to May 20, 2002; and, the nature and extent of any permanent partial disability to include disfigurement.

In Injury Number 02-058377, the issues presented for resolution are: occupational disease; medical benefits; temporary total disability from April 21, 2003 to May 15, 2003; and, the nature and extent of any permanent partial disability to include disfigurement.

The earlier claim is referred to in the transcript as claim number 1 with an injury date of 4-3-02 carrying an Injury Number of 02-086791. The next claim will be referred to as claim number 2 with an injury date of 5-29-02 and Injury Number 02-058377.

In the second claim there is no specific dollar amount alleged for medical benefits but Claimant requests indemnification against the group health insurer should they seek reimbursement or subrogation. The first claim is for a right ulnar tunnel syndrome and the second claim is for a left ulnar tunnel syndrome.

1. The Claimant was born October 10, 1960. She is 6' tall, weighs 175 pounds. She has a twelfth grade education and works at Western Union. She has worked there for 23 years, 40-44 hours a week on the day shift. Sometimes she works Saturday's as overtime, but she always works Monday through Friday.
2. Claimant originally began working as a customer service representative at Western Union and then more recently as a customer service representative at the Help Desk. She began this Help Desk work in February of 2005. Her good attendance and work ethic got her the job on the help desk.
3. The Claimant performs off-line work or paperwork setting up money transfers, refunds and a few telegrams. She is continually typing.
4. Now Western Union mostly handles money transfers whereas when she began working there 23 years ago she spent most of the time typing telegrams, press trains, oversees money transfers or night letters. The Claimant spends 100 % of her time performing customer service which involves keyboarding. She handles roughly 100 phone calls a day and each phone call takes from 30 seconds to 2 minutes. Now she performs mostly money transfers.
5. The business is slow from January to April and very busy from August to January.
6. A manager, using what's known as a "soft phone", directs calls and determines how many calls that a particular customer service representative will handle. The number of calls is monitored by time to complete and with regard to performance with the customers.
7. The Claimant used to be able to type 90 words per minute but is now only able to type 40 words per minute. She now has an ergonomically correct keyboard whereas for most of her career she used an older phase 4 keyboard and monitor that sat 3 inches off the desk and was not adjustable. The chairs had no armrests and were not able to be adjusted. In approximately 1991, a consulting company, Crawford \& Company addressed some employee ergonomic concerns and recommendations were made but not implemented.
8. In 1990, Claimant noticed that she was becoming weak and had pain in her fingertips, which would go numb. She was referred to Dr. Coin for treatment and underwent bilateral carpal tunnel surgery. She made a claim for Workers' Compensation benefits and settled her claim for those injuries.
9. In the mid-1990s she started developing some elbow pain and was sent to Dr. Crandall who told her the pain was not work related and suggested therapy. He thought it was related to sleeping. The Claimant's joint in the elbows hurt. She described it as the funny bone, that it was weak and there was pain all through the elbow joint.
10. In 2002, she began getting more severe pain in what she terms her right funny bone/elbow and was unable to use her computer mouse or type. She had to hang her arms at her side after each telephone call at work.
11. The Claimant sought treatment with Dr. Tucker and he performed some tests and determined that she needed immediate surgery lest further damage be incurred.

1. The Claimant did not tell anyone at work that the condition was work related prior to the surgery with Dr. Tucker.
2. It was only after Claimant underwent right ulnar nerve surgery with Dr. Tucker that Dr. Tucker first told Claimant that the right elbow condition was work related. Claimant returned to work in April of 2002 and told her supervisor then that the condition was work related according to Dr. Tucker.
3. Two weeks after she returned to work, the left elbow became problematic. She told Employer and was sent to Dr. Ollinger. Dr. Ollinger didn't think that she had a work-related problem.
4. The Claimant was sent again to Dr. Crandall regarding her left elbow and requested treatment from Employer which was denied.
5. United Healthcare, the group carrier, paid for the medical treatment, anesthesia and Claimant used sick pay to replace her wages.
6. Claimant returned to Dr. Tucker who performed surgery on April 21, 2003.
7. Claimant experienced immediate relief although the joints are weak and the more she uses them the more pain she experiences.
8. It's difficult for her to lift her arms above her head. She drops things and when she sleeps on either extremity she has pain.
9. The Claimant has had no other upper extremity complaints other than the carpal tunnel syndrome mentioned previously and she fractured her right wrist and ring finger when she was 15 years old and those injuries were treated by way of casting.
10. In the past Claimant has worked at Lindenwood College as an administrative assistant for four professors and an admission's officer. There she would coordinate research papers and handle files.
11. The Claimant likes to garden, she has a dog, she collects miniature horses and likes to ride horses.
12. T