Pamela Grammer v. Meridian Medical Technology

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-136898

Employee: Pamela Grammer

Employer: Meridian Medical Technology

Insurer: Hartford Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: December 18, 2002

Place and County of Accident: St. Louis 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 February 28, 2006. The award and decision of Administrative Law Judge Suzette Carlisle, issued February 28, 2006, 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 $\qquad 27^{\text {th }} \qquad$ day of June 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? 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: December 18, 2002.
5. State location where accident occurred or occupational disease was contracted: St. Louis 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:

Employee alleges she sustained injury to her hands and wrists from repetitive motions related to assembly of injectors. 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: Both wrists and hands. 14. Nature and extent of any permanent disability: 17.5 % of the left hand, 17.5 % of the right hand, 3 weeks disfigurement and 12.5 % for multiciplicity. 15. Compensation paid to-date for temporary disability: $\ 2,517.27 16. Value necessary medical aid paid to date by employer/insurer? $\ 11,865.78

Employee: Pamela Grammer Injury No.: 02-136898 17. Value necessary medical aid not furnished by employer/insurer? N/A 18. Employee's average weekly wages: $\ 518.20 19. Weekly compensation rate: $\$ 345.47 / \ 340.12 20. Method wages computation: Stipulated

1. Amount of compensation payable:

Unpaid medical expenses: None

The above referenced workers’ compensation claim was heard before the undersigned Administrative Law Judge on January 10, 2006. The record was closed after the hearing. Parties submitted post hearing briefs. Claimant was represented by attorney Ray A. Gerritzen. Employer and Insurer were represented by attorney John P. Palombi and the Second Injury Fund (SIF) was represented by attorney Jennifer Sommers. Briefs were submitted from all parties for consideration by February 14, 2006. Hearing venue is correct, and jurisdiction properly lies with the Missouri Division of Workers’ Compensation.

The parties stipulated to the following facts: (1) On December 18, 2002, Meridian Medical Technology, (Employer) was operating under and subject to The Missouri Workers’ Compensation Law, and during this time was fully insured by Hartford Fire Insurance Company.(2) On the alleged date of injury, December 18, 2002, Pamela Grammer (Claimant) was an employee of the Employer, and was working under and subject to The Missouri Workers’ Compensation Law.(3) On December 18, 2002, Claimant sustained an occupational disease which arose out of, and in the course and scope of her employment with Employer.(4) The above-referenced employment and incident of occupational disease occurred in St. Louis County, Missouri.

The issues in dispute are: (1) Whether Claimant sustained any permanent disability as a consequence of the alleged occupational disease; and if

so, what is the nature and extent of the disability?

(2) What is the nature and extent of disfigurement, if any?

(3) Whether Claimant sustained pre-existing disability, and if so, what is the nature and extent of the disability?

(4) Whether SIF is entitled to recover costs for an alleged frivolous SIF claim?

(5) Whether Claimant is entitled to recover costs from SIF due to an alleged baseless charge by SIF?

Only testimony necessary to support this award will be reviewed and summarized.

Claimant offered Exhibits A-B and D-F, which were admitted into evidence. Employer offered Exhibits 1-3, which were admitted.

Any objections not expressly ruled on in this award are overruled.

Claimant, Pamela Grammer, is a thirty-five year old with no formal education beyond 10th grade. She testified she has had problems with weight since she was seven or eight years old. In high school, she recalled weighing 200 lbs and standing $5^{\prime} 6^{1 / 2}$ " tall. Most of her weight gain occurred after her last two children were born. Claimant stated her exact weight is unknown because the scales in the doctor's office only record up to 350 pounds. She estimated her weight to currently be about 400 pounds, and she still stands about $5^{\prime} 6^{1 / 2}$ " tall. Claimant has tried unsuccessfully to lose weight by dieting on various programs, including The Atkins and South Beach diets. While constant exercise worked the best, sometimes she just gives up exercising. She has not tried medication to control her weight.

Claimant has worked as a fast food cashier, in housekeeping, pizza delivery and store manager. Following a one year absence from the workforce, Claimant began working for Employer in March 2000, assembling auto injectors where she continues to be employed.

When Claimant began employment with Employer, she had no problems with her hands or wrists. Nor did she have pre-existing injury or surgery to either wrist or hand. Claimant assembled units for Employer using repetitive motions to screw on power caps.

She described auto injectors as being medicine inside of an injector that shoots into your system, similar to a shot. She estimated she assembled 2,500 injectors per day in an eight hour shift. Employer permitted thirty minutes for lunch and two fifteen minute breaks during the day. She worked mandatory overtime each week. Her work occurred on an assembly line, and she described the movement as "press down and screw on".

Claimant began to experience numbness that woke her during the night, and pain in her arms. She reported this to Employer's safety representative in 2002. She was referred to BJC for treatment. After seeing several doctors, Dr. Richard Coin examined her and ordered a repeat nerve conduction study. Surgery was performed on both hands in January of 2005, approximately two weeks apart.

Claimant testified she was off work from January 7, 2005 to March 1, 2005, when she returned to work. At her request, Employer moved her to the moisture team. The moisture team inspected more injectors than they assembled, which allowed her to work at her own pace. She applied for this job to decrease her work load.

Claimant reports constant swelling in her left hand since the surgery, aching in the forearm and elbow of both upper extremities, decreased grip strength, occasional finger locking when washing dishes, and tenderness along the scar lines. The scars appear to be 1 " to $1 \frac{1}{2}$ " long on each hand.

These limitations required her to change the way she picks up heavy pans at work. In the past, she lifted the pans and carried them to her work station. Now she places the pan on a cart and rolls it to her work station to avoid dropping it. She uses her free arm underneath the pans for added support. On cross examination she testified a pan weighs approximately twenty-five pounds.

She no longer has the strength to hold her nieces and nephews. She can not grip a five pound bowling ball. She is right handed and has more strength in her dominant right hand than the left. She does not wear shoes with laces because she does not want to struggle to tie them.

Claimant's ankles swell and her back hurts if she stands too long at work. She works sit down positions whenever

available. A stand up position should be rotated every two hours, but she cannot do this as she begins having pain after fifteen minutes. She can tolerate standing for about an hour before her ankles swell.

Because of her weight, she cannot go to a restaurant with booths, a baseball game, or sit on amusement park rides. She avoids places that have arms on the chair. She bought a larger car because she could not fit behind the wheel of her old one. She could not fit behind some equipment at work in the old building, but she is able to do so in the new location. If a metal detector has "rolly bars" she has to go through the handicap entrance.

Claimant stated she had strength in her hands before working for Employer. Now she believes that an employer looking at her weight may not want to hire her because she no longer has speed and strength with her hands.

On cross examination by the Employer and SIF, Claimant acknowledged the bi-lateral hand surgery relieved the numbness in her hands. Initially, Claimant was hired as a temporary employee, and based upon her performance Employer offered her a full time position three months later. At the time of injury, she had not been disciplined for inability to perform her job duties, nor was she was ever told that she was not performing satisfactorily. Claimant reported working mandatory overtime the entire time she has worked for Employer. Clamant denied seeing any other family doctors outside of Family Care Center before 2002. She wore a size 3X uniform shirt when she started working for Employer. Now she wears a 7X uniform shirt. She estimates that she has gained about fifty to sixty pounds since being employed by Employer.

Claimantadmitted that she has not missed time from work due to her hands since being released by Dr. Coin in March 2005. However, Claimant testified she has missed some overtime because of her weight.

Timothy G. Lalk, a vocational counselor, testified on behalf of Claimant at hearing.

Mr. Lalk testified he has evaluated hundreds of cases involving, among other things, morbid obesity and the challenges faced by the obese when competing in the open labor market for jobs with people who do not have morbid obesity. He testified the State of Missouri and the Social Security Administration have determined morbid obesity may cause a hindrance or obstacle to employment. Based on his personal experiences, Mr. Lalk agrees with that conclusion. Mr. Lalk has found employers are reluctant to consider hiring an individual with morbid obesity.

Mr. Lalk acknowledged he is not a medical doctor, osteopath, chiropractor or any type of medical professional. He relies on a doctor to determine when weight is a disability. When a medical obesity diagnosis is made, he relies on his observations and discussions with an individual to determine if they will have a vocational handicap to employment. He looks at the total person; their size and body build to determine if most human resource officers, business owners, supervisors or managers would see this person as having a weight problem that could possibly be a detriment to employment.

He does not try to second guess people who are over-weight or obese. He only looks at persons whose medical records he reviews after they have been diagnosed to be morbidly obesity by a doctor. He is unable to express an opinion about the cause of disability.

Mr. Lalk acknowledged that he met Claimant for the first time several minutes before the hearing and he observed her appearance. Based upon his observations, he believes Claimant to be formally diagnosed as morbidly obese, resulting in an obstacle or hindrance to future employment.

He also noted a statement showing Claimant's weight to be 350+ pounds. He observed that most doctors scales may not go above 350 pounds. He estimated 99 out of 100 employers would not offer Claimant a job, although he has no statistics to support this.

On cross-examination, Mr. Lalk acknowledged morbid obesity is not a hindrance to Claimant's current employment. However, he opined Claimant does have a hindrance or obstacle to potential employment, even with her current Employer despite the fact that she is currently working. He cannot say this would apply to all employers nor does he rate disability.

Claimant provided medical records from Family Care Center listing treatment to her for a variety of medical conditions from October 1987 through September 2000 (Exhibit E). The record contains a page entitled "Chronic/Major Problems" which contains the handwritten notation "morbid obesity" in the problem column. Under the column "Date of Onset" is the handwritten date 7/98. No entry was made in the "Date Resolved" column. No information was found in Exhibit E to identify the writer. There were no other references in the record to morbid obesity or treatment provided to Claimant for the alleged condition. The medical records contain a note dated 2-3-00, showing Claimant's weight to be 350+

pounds (Exhibit E). No diagnosis or treatment regarding Claimant's hands was referenced in the Family Care Center records. Claimant reported a history to SSM of receiving conservative treatment for her hands from BJC from January to about June 2002 (Exhibit E). At that time, Claimant complained of numbness to her left hand, index, middle and ring fingers. She stated she was diagnosed with carpal tunnel syndrome, but no nerve conduction study was performed. She received conservative treatment and her complaints subsided after about four months.(Exhibit E)

When Claimant presented for treatment at SSM on 12-18-02, she complained of aching pain in the wrist and hand and minimal numbness. Symptoms were worse when working. The symptoms disturbed her sleep at times. Claimant denied any problems with gripping, opening doors or jar lids (Exhibit 1). She had worked for Employer for about $21 / 2$ years at the time of the visit (Exhibit 1).

SSM ordered a nerve conduction study on the left side, from the neck to the fingertips. The results showed mild carpal tunnel syndrome. Conservative treatment consisted of Advil three times a day, and a wrist splint to be worn when working or sleeping. Claimant was discharged from care at SSM and referred to a plastic surgeon for further evaluation and treatment in January 2003 (Exhibit 1).

Dr. Coin examined Claimant in June 2003. She complained of left greater than right hand numbness with pain into her hands and fingers, and locking and stiffness in her right index and middle fingers. Symptoms continued although she wore splints and took Ibuprofen. Dr. Coin ordered an updated nerve conduction study, however, Claimant did not show or call for the appointment. Nor did she respond to repeated attempts by his office to contact her.

Dr. Coin next examined Claimant seventeen months later, November 11, 2004, with complaints of her fingers falling asleep all the time, pain radiating to her elbows, neck and shoulders, and all digits numb with symptoms greater on the right than left. No other medical treatment had been provided to Claimant since the last appointment with Dr. Coin June 10, 2003.

Dr. Daniel Phillips performed a second nerve conduction study on November 30, 2004, and found Claimant had severe right carpal tunnel syndrome, and moderate left carpal tunnel syndrome (Exhibits D and 3).

On January 7, 2005, Dr. Coin performed Claimant's right carpal tunnel release, and on January 21, 2005 he performed the left carpal tunnel release. Dr. Coin reported Claimant's past medical history included gallbladder surgery and a tonsillectomy (Exhibit 3).

Claimant reported to Dr. Coin complaints of decreased but improving strength, occasional elbow pain, hand pain at the end of a work week, and resolved numbness. Examination revealed well healed incisions of both wrists, no evidence of hypertrophic scarring or keloid formation or muscle wasting in upper arms, forearms, thenar or hypothenar groups. Flexion, extension, pronation, and supination were normal at the elbows, without evidence of popping, crepitus, clicking or tenderness over the bilateral or lateral humeral epicondyles. A negative Tinel's and Phalen's sign were revealed bilaterally at cubital and carpal tunnels without tenderness. Range of motion and circulation of all digits was good, thumb index pinch within normal limits, and good extensor function and radial sensory sensation found. Claimant's gross grip strength was slightly decreased. Dr. Coin rated Claimant with 5\% disability of each wrist from the carpal tunnel injury and treatment on March 10, 2005 and released her to regular duty without restrictions or follow-up (Exhibit 3).

Dr. Bruce Schlafly examined Claimant on August 29, 2005 and found her to be "generally pleased " with the results from her carpal tunnel treatment. She complained of decreased grip strength and aching in her hands and forearms. She was taking Ibuprofen as needed. Dr. Schlafly found her overall grip strength to be greater on the left than the right, with good range of motion and circulation with good thenar and first dorsal interossei muscle function bilaterally A positive Tinel sign and a negative Phalen's test was found over the median nerves of both wrists. Dr. Schlafly rated Claimant with 25 % of each wrist and a loading factor for multiplicity. Dr. Schlafly did not rate Claimant as having any pre-existing disability (Exhibit A).

After careful consideration of the entire record, based upon the above testimony, the competent and substantial evidence presented, and the applicable law of the State of Missouri, I find Claimant sustained 17.5\% PPD of the left wrist, 17.5\% PPD of the right wrist from carpal tunnel injury, three weeks disfigurement and a 12.5 % load. No Second Injury Fund liability or costs have been awarded. Specifically, I find the following:

A permanent partial disability award is intended to cover an Employee's permanent limitations due to a work related injury and any restrictions his limitations may impose on employment opportunities. Phelps v. Jeff Wolk Construction Co., 803 S.W.2d 641, 646 (Mo. App. 1991)

With respect to the degree of permanent partial disability, a determination of the specific amount of percentage of disability is within the special province of the finder of fact. Banner Iron Works v. Mordis, 663 S.W.2d 770,773 (Mo. App. 1983) (overruled on other grounds).

Claimant is pleased with the resolved numbness and her overall result. However, she requested an assignment change to lessen the impact on her hands. Claimant told both doctors she continued to have decreased grip strength, and elbow and wrist pain when working. Both doctors found Claimant had decreased grip strength. Dr. Coin rated Claimant's disability as 5 % of each wrist. Dr. Schlafly rated 25 % disability of each wrist. Employer is responsible for the permanent partial effects of Claimant's bilateral CTS.

Therefore, I find Claimant sustained 17.5\% PPD of the left wrist referable to the 175 week level, 17.5 % PPD of the right wrist, three weeks disfigurement, and a 12.5 % load factor for multiplicity. Section 287.190.4 RSMo., allows additional compensation, not to exceed forty weeks, to be awarded for disfigurement when an injury produces scarring to the head, neck arms and hands. A multiplicity factor is "a special or additional allowance for cumulative disabilities resulting from a multiplicity of injuries," Sharp v. New Mac Electric Cooperative, 92 S.W.3d 351, 354 (Mo. App. S.D. 2003).

Once a determination is made that an Employee has been permanently and partially disabled, the inquiry turns to what degree, if any, an individual is permanently partially disabled for purposes of SIF liability. Leutzinger v. Treasurer of the State of Missouri, 895 S.W.2d 591 (Mo.App.1995), Section 287.220.1 RSMo., provides SIF is implicated in all cases of permanent partial disability where there has been pre-existing permanent partial disability that created a hindrance or obstacle to employment or re-employment, and the primary injury along with the pre-existing disability reach a threshold of 50 weeks ( 12.5 % ) for a body as a whole injury or 15 % of a major extremity. The combination of the primary and preexisting conditions must produce additional disability greater than the last injury standing alone (emphasis added).

Claimant alleges a pre-existing morbid obesity condition which, when combined with her wrists, creates a hindrance or obstacle employment. Claimant contends her testimony and an expert witness provide substantial and competent evidence to prove SIF liability.

The testimony of the claimant, or other lay witnesses, as a fact within the realm of lay understanding can constitute substantial evidence of the nature, cause and extent of the disability, especially when taken in connection with or where supported by some medical evidence. Fischer v. Archdiocese of St. Louis, 793 S.W.2d 195, 198 (MoApp.1990).

Claimant testified to extensive work history prior to working for Employer. She was hired by Employer as a temporary employee, weighing 320 pounds. Later, she was hired permanently by Employer. Claimant satisfactorily performed regular and mandatory overtime hours before, during and after developing carpal tunnel symptoms. Claimant was never disciplined for inability to perform her job duties. Employer approved her request for a job change. Although Claimant may have concerns about future employment opportunities, she has not been denied employment.

She also acknowledged some success losing weight with physical activity. She admits giving up on exercise, therefore, Claimant has not shown the condition to be permanent. I do not find Claimant's testimony to be supported by medical opinion. Claimant's history with Dr. Coin only includes gallbladder surgery and tonsillectomy. Her medical history with Dr. Schlafly does not contain any pre-existing disability. I find these doctors' opinions more credible than the family Care Health Center notations. Therefore, I do not find a morbid obesity diagnosis has been made.

Mr. Lalk is a rehabilitation counselor, however, he admitted he is not qualified to provide a disability opinion. He relies upon a medical diagnosis before providing an opinion as to whether the condition poses a hindrance or obstacle to employment. Without a diagnosis, I find Mr. Lalk is unable to render an opinion whether or not Claimant's weight is a hindrance or obstacle to employment or reemployment..

Based upon Claimant's work history and lack of medical evidence, I find Claimant has not met her burden in establishing pre-existing permanent partial disability that created a hindrance or obstacle to employment or reemployment. Therefore, I find no SIF liability.

SIF and Claimant seek to recover attorney costs from each other for defending and pursuing the Second Injury Fund claim.

SIF requested costs for the time worked on the case asserting Claimant's SIF claim is frivolous. SIF submitted an affidavit listing the hours Assistant Attorney General Chestnut worked on the case prior to hearing (Exhibit I). SIF alleges Claimant produced no evidence of a pre-existing permanently disabling condition and seeks costs under Section 287.560.

Claimant asserts SIF's allegation is frivolous.

Section 287.560 RSMo., provides for the allowance of the whole cost of the proceeding to be assessed against a party who has brought, prosecuted or defended it without reasonable grounds.

Assessment of the costs of proceedings should not be made absent clear findings and an egregious offense. Landman v. Ice Cream Specialties, Inc. 107 S.W. 3d 253 (Mo.banc 2003) (overruled on other grounds).

A lay person may testify about first hand knowledge. Obesity may be obvious from viewing an individual. Weight in excess of three hundred pounds may provide a reasonable basis to pursue an obesity claim against the SIF. The law does not require a party guarantee success before bringing a claim. The standard is reasonableness. Although Claimant did not prevail, I do not find Claimant's SIF claim to be unreasonable or clearly egregious.

Similarly, I do not find SIF's defense of the claim to be unreasonable or egregious in light of Claimant's work history and lack of medical evidence.

I find both parties set forth reasonable grounds for pursuing and defending their positions. Therefore, I find no basis for either party paying or receiving costs. Both requests for costs are denied. Any remaining issues are moot.

In summary, Claimant sustained an occupational disease on December 18, 2002 that arose out of and in the course of her employment with Employer. Claimant is awarded $\ 24,458.03 in PPD referable to Claimant's bi-lateral upper extremities. Claimant's attorney is entitled to a 25 % lien of any payments made to Claimant.

$\qquad Made by: \qquad$

SUZETTE CARLISLE

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Patricia "Pat" Secrest

Director

Division of Workers' Compensation