James Hudson v. LaFarge Construction Corporation

(Affirming Award and Decision of Administrative Law Judge)

Place and County of Accident: St. Charles 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 September 27, 2005. The award and decision of Administrative Law Judge Leslie E. H. Brown, issued September 27, 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 August 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

SEPARATE OPINION FILED

John J. Hickey, Member

Attest:

Secretary

SEPARATE OPINION

CONCURRING IN PART AND DISSENTING IN PART

I have reviewed and considered all of the competent and substantial evidence on the whole record. I agree with the conclusion of the administrative law judge that employee has sustained compensable injuries. However, I believe the award of the administrative law judge should be modified to increase the compensation awarded to employee.

After his bilateral carpal tunnel syndrome release, employee returned to his work of shoveling all day for employer. Employee continued to complain of symptoms with his right wrist and hand, which symptoms were indicative of carpal tunnel syndrome. The administrative law judge's conclusion that employee failed to meet his burden of showing a medical causal link between his recurrent right carpal tunnel syndrome and his shoveling duties is erroneous. In the months after the April 15, 1998, bilateral carpal tunnel releases, the records of Dr. Powell indicate, "soreness in his hands" (May 14, 1998), "pain in right shoulder and right thumb" and "pain on resisted extension of the wrist and fingers" (August 3, 1998), "pain at the CMC join of both thumbs" (January 18, 1999). Employee's ongoing complaints continued after his first release and long pre-dated his separation from his shoveling duties in June 1999. That the medical professionals did not get around to referring to the ongoing complaints as carpal tunnel symptoms until September 1999 is not controlling. I believe employee has established that his recurrent right carpal tunnel syndrome was caused by his shoveling duties with employer. The administrative law judge awarded permanent partial disability of 17 % at the level of the right wrist. In light of the recurrent nature of the right carpal tunnel syndrome and limited improvement in symptoms despite two carpal tunnel releases, I believe employee suffered a 25 % permanent partial disability of his right wrist. I would award additional permanent partial disability of 8 % at the level of the right wrist.

The administrative law judge erred in failing to find employee's work duties caused his bilateral thumb conditions. In 1997, employee began performing exclusively shoveling and dragging duties. By August 1998, employee reported to Dr. Powell that he did a lot of shoveling that bothered his thumb in the metacarpal joint, where Dr. Powell noticed swelling. On January 18, 1999, employee again reported "pain at the CMC joint of both thumbs." Dr. Volarich offered his opinion within a reasonable degree of medical certainty that employee's shoveling and dragging duties were substantial contributing factors in causing and/or aggravated his bilateral thumb carpal/metacarpal degenerative arthritis. I find that employee has established that his shoveling and dragging duties caused and/or aggravated his bilateral thumb carpal/metacarpal degenerative arthritis. I would award permanent partial disability of 30 % for each wrist at the 175 -week level (CMC joint).

Because I find that employee's recurrent, right carpal tunnel syndrome and bilateral thumb conditions are compensable, I would award medical expenses for the treatment of these conditions.

Dr. Volarich credibly testified that employee would need ongoing medications for pain management. I would award such future medical care to employee.

I find credible the testimony of Dr. Volarich regarding employee's pre-existing conditions and the disability attributable to each. The employee established through competent and substantial evidence that he suffered form preexisting disability to his shoulders, right elbow and cervical spine and that such disabilities were a hindrance or obstacle to employment. The testimony of employee, Mr. England, Dr. Volarich and Dr. Cantrell make clear employee is unable to compete in the open labor market. I believe employee's work-related upper extremity overuse conditions combined with his preexisting disabilities render him unemployable. Employee is entitled to permanent total disability benefits from the Second Injury Fund.

In conclusion, in addition to the compensation awarded by the administrative law judge, I would modify the award of the administrative law judge to award additional compensation as described herein.

Employee: James A. Hudson

Injury No. 99-182494

Dependents: ---

Employer: LaFarge Construction Corporation

Add. Party: State Treasurer, as Custodian of the Second Injury Fund

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Self-Insured (c/o Reliance/bankruptcy) c/o Gallagher Bassett

Hearing Date: 3/1/05 (finally submitted 4/4/05) Checked by: LEHB:bfb (by df)

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: On and up to February 23, 1999
5. State location where accident occurred or occupational disease was contracted: St. Charles County, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? ---
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: Shoveling
12. Did accident or occupational disease cause death? No Date of death? ---
13. Part(s) of body injured by accident or occupational disease: Both wrists, and left shoulder
14. Nature and extent of any permanent disability: 17 % PPD each wrist, and 9 % PPD left shoulder
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00
17. Value necessary medical aid not furnished by employer/insurer? None, see Award
18. Employee's average weekly wages: ---
19. Weekly compensation rate: $\$ 562.67 / \ 294.73
20. Method wages computation: By agreement of the parties

COMPENSATION PAYABLE

1. Amount of compensation payable:

Unpaid medical expenses: ---

5-4/7 weeks of temporary total disability (or temporary partial disability) $\ 3,134.88

17 % each wrist and 9 % left shoulder permanent partial disability from Employer, or......\23,690.40

2 weeks of disfigurement from Employer. \ 589.46

Multiplicity $\ 2,266.47

1. Second Injury Fund liability: No

TOTAL: $\quad \ 29,681.21

1. Future requirements awarded: None

Said payments to begin as of date of this Award 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:

Keith Link, Attorney for Claimant

Employee: James A. Hudson

Injury No: 99-182494

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: ---

Employer: LaFarge Construction Corporation

Add. Party: State Treasurer, as Custodian of the

Second Injury Fund

Insurer: Self-Insured (c/o Reliance/bankruptcy) C/0 Gallagher Bassett

Checked by: LEHB:bfb (by df)

Attorney Keith E. Link. The employer/insurer, LaFarge Construction Corporation//self-insured/Reliance/Gallagher Bassett (tpa), appeared by and through counsel, Attorney Edward J. Bippen. The Second Injury Fund appeared by and through Assistant Attorney General Barbara Toepke.

The parties entered into certain stipulations, and agreements as to the complex issues and evidence to be presented in this hearing.

1. The claimant, James A. Hudson, was working for the LaFarge Construction Corporation on and up to February 23, 1999 and remained in LaFarge Construction's employment up to June 1, 1999.
2. LaFarge Construction Corporation was doing business in St. Charles County, Missouri during this time period.
3. The employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law.
4. The employer's liability was self-insured (NOTE: Reliance Insurance Company was a third-party administrator at that time but went into bankruptcy, and presently Gallagher Bassett is the third-party administrator).
5. A Claim for Compensation was filed within the time prescribed by law.
6. The rate is $\ 562.67 over $\ 294.73.
7. No temporary total disability benefits have been paid.
8. No medical aid has been provided.

1. Whether or not claimant suffered occupational disease arising out of and in course of his employment
2. Medical causation
3. Liability of past medical expenses in the amount of $\ 35,778.93
4. Future medical care
5. Nature and extent of past temporary total disability for six weeks in 1998
6. Nature and extent of permanent disability - whether partial or total
7. Liability of the Second Injury Fund
8. Date of injury

The following exhibits were admitted into evidence:

No. A: Cumulative exhibit of medical bills in the amount of $\ 35,778.93

No. B: Deposition transcript of James England, taken on April 8, 2004 on behalf of the employee (with attached deposition exhibits) (Admitted subject to the objections therein)

No. C: Deposition transcript of Dr. David T. Volarich, D.O. taken on behalf of the employee on October 22, 2003 (with attached exhibits) (Admitted subject to the objections therein)

No. D: Medical records from St. Charles Clinic, period May 8, 1995 - June 14, 1999

No. E: Medical records of St. Charles Orthopedic Surgery Associates, period March 16, 1998 - April 16, 2001

No. F: Medical records from Dr. Subbaroa Polineni, M.D., period July 26, 2001 - October 22, 2002

No. G: Medical records from Dr. Subbaroa Polineni, M.D., period November 12, 2001 - September 16, 2002

No. H: Medical records from HealthSouth, period December 18, 2001 - May 3, 2002

No. I: Medical records from Dr. Jacques Herzog, period 2/15/2000 - January 23, 2001

No. J: Medical records from Dr. Powell, period April 15, 1998 - January 11, 2001

No. K: Medical records from BJC Aid Station, period February 20, 1995 - March 3, 1995

No. L: Medical records from John Cochran Veterans Administration Medical Center, period April 2, 1997 - July 23, 2002

No. M: Medical records from Jefferson Barracks Veterans Administration Medical Center, period June 8, 1999 -

November 12, 2002

No. N: Medical records from Family Medical Group, Dr. James Farrell, D.O., period June 9, 1994 - January 17, 2002

No. O: Medical record from Neurosurgical Associates, Dr. B. Dennis Mollman, M.D., period February 12, 1999 - June 8, 1999

No. P: Medical records from Dr. William Greer, M.D., dates March 15, 2001 and October 11, 2001

No. Q: Medical records from St. Charles Clinic, Dr. Goldstein, M.D., period September 23, 1997 - June 23, 1999

No. R: Group exhibit of various St. Luke's Hospital records, including emergency room and in-patient records, period February 15, 1999 - May 26, 1999

No. 1: Deposition transcript of Dr. Russell Cantrell, M.D. taken on behalf of the employer on February 16, 2005 (with attached exhibits) (Admitted subject to the objections therein)

No. 2: NOT ADMITTED (Report prepared by Dr. Bruce Schlafly, M.D., dated July 2, 2001). (Ruling: Claimant's objection on grounds of hearsay is sustained.)

Roman Numeral I: Claims and Answers in this file; there are three Claims and Answers from the employer and the Second Injury Fund to each of the claims.

Hudson, the claimant, who was found to be a credible witness, testified that he is alleging his employment with LaFarge Construction Company caused problems in his hands, wrists, thumbs, and shoulders. Hudson testified that he first started working for LaFarge in October of 1970 and was driving a dump truck and delivering material, and working on the trucks. In 1990 was when they got rid of the last road truck and I went over to the quarry side, and I started doing some shoveling and drove a uke (phonetically) out of the old plant, the claimant said. When they put in the conveyor plant, I shoveled underneath there to keep rock out, Hudson stated. In 1997 and on until 1999 my duties at LaFarge involved only shoveling the rock, the claimant said, and I would do this eight to twelve hours a day and most time it was five and half or six days a week that I would be required to work. During the period of 1997 on when I was doing the shoveling I had to get back underneath the belts, and most of them were no more than two foot off the ground, he said, and keep the crushed rock that fell out. The claimant explained that the purpose of his shoveling when he was by the conveyor belts was to keep the crushed rock that fell from the conveyor belts out from underneath the belt so it didn't go up against the belt. 'Cause if it got up against the belt the plant would have to stop, the claimant stated. I had to shovel it and drag it and throw it out, Hudson testified, and then they would come along with a high lift or Bobcat and move it; and sometimes if the Bobcat was down you had to stand up on the rock as high as about three or four feet, and try to shovel it out. I used a shovel that was about 30 inches long with a handle on it to drag 'cause I had to reach underneath and bring out a lot that I couldn't get with the shovel. And then they had one place where they had a tunnel that trucks drove over to get in the back part of the quarry; about once a month I had to go in the tunnel and shovel the material out from underneath there because it built up, Hudson stated. I am not currently employed, Hudson said. My last employer was LaFarge Construction Materials; I guess my employment relationship ended with LaFarge in June of 1999, Hudson testified. It was agreed and stipulated to by the parties that the claimant was working at the LaFarge Construction Corporation on and up to February 23, 1999 and remained in LaFarge Construction's employment up to June 1, 1999.

I first began having problems with both of my hands in the early 1990's, Hudson said. In my hands there was numbness, an inability to grip or to hang on to stuff, they'd hurt and go to sleep easy, and they were weak, the claimant said. I am right handed, Hudson said. The duties in my job at LaFarge that I recall would make the symptoms in either of my hands worse was the shoveling and the using the drag and -- just generally working. I mentioned it to my employer when I first started noticing problems in my hands but my employer never provided me with any medical treatment for my hands, so I sought medical care on my own from Dr. Powell for the problems I was having with my hands in June of 1998, Hudson stated, and at that time I provided Dr. Powell with a history of my job duties at LaFarge. Dr. Powell operated on both hands for carpal tunnel at the same time, Hudson testified. After the surgery by Dr. Powell on my wrists, my symptoms in my hands stayed about the same and then I started having trouble with my thumbs, Hudson stated. The thumbs were bothering me probably when I first started shoveling, the claimant said, in the 1990 to mid-1990s, some place in there. I'd switch off with my hands because they would hurt, Hudson said, and I told Dr. Powell about it. When I saw Dr. Powell after the surgery on my wrists for follow-up care, I told the doctor my thumbs were still bothering me, Hudson stated. The doctor was giving me shots two to three times in both thumbs in the meaty part between the thumb and the index finger in both hands, he said. Dr. Powell then suggested that I go see Dr. Polineni, which I did. It seems like it was 2000 or 2001 when I first started seeing Dr. Polineni, Hudson testified. He agreed that he gave Dr. Polineni a

history about the symptoms he was having at that time as well as provided Dr. Polineni with a history of the types of jobs he had done in the past. Dr. Polineni worked on the right elbow, on the nerve there, Hudson testified, and then he did carpal tunnel on the right hand. The claimant agreed that Dr. Polineni performed carpal tunnel surgery again on his right wrist, and then he operated on the right thumb, and then operated on his left thumb. After the second carpal tunnel surgery on my right wrist with Dr. Polineni my symptoms stayed the same, Hudson stated. Hudson stated that he was still having similar problems in both hands. After the surgery on the right thumb with Dr. Polineni my symptoms stayed about the same, the claimant said. I noticed some improvement, but not a lot, Hudson admitted. Before the surgery with Dr. Polineni the right thumb hurt, Hudson said, whenever I would hit it, well, when I was shoveling especially, hit it the same place, both hands, it would get sharp pains. After surgery on the left thumb with Dr. Polineni my symptoms stayed about the same, Hudson said. Discussing symptoms in his left thumb prior to the surgery, Hudson stated - my left hand, just like the right hand, I was having trouble gripping, holding stuff; it would hurt if I hit it in the palm or the thumb part. With regard to my shoulders, Hudson testified, I first started having problems in them probably as far as back as in the 1980's when I was driving road trucks and laying on my back working on the truck lifting up stuff and putting springs on the bottom of the truck. The problems in each of my shoulders started both at the same time, he said. I first started noticing in my shoulders that any time I did anything, when I was fixing tires on the roadside and lifting stuff, any time I had to use my arms an extended period of time they would get tired, Hudson said. Also when I started to do a lot of the shoveling and pulling job in the early 1990's at LaFarge, that made my shoulder symptoms worse, Hudson said, they just would get tired. At that time I also had trouble sometimes with motion, limited motion in both shoulders, he said. I told my employer at LaFarge that I was having those symptoms and complaints in my shoulders but LaFarge never offered me any medical treatment for my shoulders, so I saw Dr. Powell on my own for my shoulder problems, Hudson stated. My complaints were in the entire shoulder on both sides, Hudson said. Dr. Powell gave me shots in both shoulders, and this would have been somewhere in maybe 1998 or the early part of 1999, the claimant said. Dr. Powell gave me shots once or twice, and then finally in December of 1999 he operated on the left shoulder, I think, and then in January of 2000 he operated on the right shoulder, the claimant said. After the shoulder surgeries I had quite a bit of relief for a while, I didn't have any pain, Hudson said, but the problems basically started to come back again, both of the shoulders was getting tired.

Section 287.067 RSMo 1999 defines an occupational disease and states, in part:

1. In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.
2. An occupational disease is compensable if it is clearly work related and meets the requirements of an injury which is compensable as provided in subsections 2 and 3 of section 287.020. An occupational disease is not compensable merely because work was a triggering or precipitating factor.

Section 287.067 .2 refers you to subsections 2 and 3 of Section 287.020. Section 287.020.2 states:

"The word "accident" as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen identifiable event or series of events happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor."

Section 287.020.3 RSMo 1999 states, in part:

"(1) In this chapter the term 'injury' is hereby defined to be an injury which has arisen out of and in the course of employment. The injury must be incidental to and not independent of the relation of employer and employee. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging shall not be compensable, except where the deterioration or degeneration follows as an incident of employment.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing the injury; and

(b) It can be seen to have followed as a natural incident of the work; and

(c) It can be fairly traced to the employment as a proximate cause; and

(d) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life;..."

"As a general rule, a claimant's medical expert in an occupational disease case must establish the probability that the disease was caused by conditions in the work place. (citations omitted) There must be medical evidence of a direct causal connection between the conditions under which the work is performed and the occupational disease. (citations omitted)" Hayes v. Hudson Foods, Inc., 818 S.W.2d 296 (Mo.App.S.D. 1991).

"...an injury may be of such a nature that expert opinion is essential to show that it was caused by the accident to which it is ascribed. When the condition presented is a sophisticated injury that requires surgical intervention or other highly scientific techniques for diagnosis, and particularly where there is a serious question of pre-existing disability and its extent, the proof of causation is not within the realm of lay understanding..." Knipp v. Nordyne, Inc. 969 S.W.2d 236, 240 (Mo.App. 1998)

"Medical causation not within common knowledge or experience, must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause." Selby v. Trans World Airlines, Inc., 831 S.W.2d 221, 222 (Mo.App. 1992).

"A medical expert's opinion must have in support of it reasons and facts supported by competent evidence which will give the opinion sufficient probative force to be substantial evidence." (citations omitted) Pippin v. St. Joe Minerals Corp., 799 S.W.2d 898, 904 (Mo.App. 1990)

It is found, considering the evidence, that there is no dispute as to the claimant's work duties for LaFarge Construction Corporation (hereinafter LaFarge) up to February 23, 1999. It is further found that there is no dispute as to the illnesses and physical conditions of the claimant; the issue is whether or not these illnesses or conditions are occupational diseases in that they had their origin as a result of a risk connected with the claimant's employment at LaFarge and flowed from that source as a rational consequence, that upon consideration of all the circumstances the employment is a substantial factor in causing these illnesses or conditions.

Consideration will be given to each of the alleged illnesses/physical conditions to the various parts of the claimant's body and the medical opinions:

1. Bilateral wrists/hands/thumbs. The medical evidence supports the claimant's testimony of evaluation and diagnosis of bilateral carpal tunnel in March of 1998 (Dr. Keohane's records, No. E) with surgery of bilateral endoscopic carpal tunnel release performed by Dr. Powell on April 15, 1998 (Dr. Powell's records, No. J). Dr. Volarich evaluated the claimant on the claimant's behalf, and testified:

"It's my opinion that the repetitive nature of Mr. Hudson's work, as described in the history and job activities section of my report, especially the extensive shoveling, are the substantial contributing factors causing the multiple overuse and repetitive trauma injuries to both upper extremities, including bilateral carpal tunnel syndrome.........which required extensive surgical repairs." (Volarich Dp. pg. 19)

Dr. Cantrell evaluated the claimant on behalf of the employer/insurer, and noted:

"He told me that he had worked for 20 years as an over-the-road truck driver. And for seven years prior to ceasing employment had worked on the crush end of an operation at LaFarge, which is a company that manufactured a crushed limestone. And he had also indicated that he would intermittently shovel gravel that spilled off of conveyors. He reported that his company had gone through several name changes. And in 1996, he was terminated after a confrontation with his employers but had his job reinstated in 1997. When he returned back to work, he was placed back on a job where he had to shovel gravel and limestone and did that for sometimes greater than eight hours per day, five to six days per week." (Cantrell Dp. pg. 7)

The doctor agreed it was his understanding Hudson had stopped working in February of 1999. Dr. Cantrell testified: "I felt that the occupational activities he had performed between ' 97 and ' 99 would be considered a substantial factor in causing the diagnosis of carpal tunnel syndrome." (Cantrell Dp. pg 30) The doctor agreed, during cross examination, that the bilateral carpal tunnel releases Hudson had undergone in 1998 were the two carpal tunnel surgeries he related to Hudson's occupation.

It is found that the competent and substantial evidence establishes that the claimant sustained the occupational disease of bilateral carpal tunnel syndrome diagnosed and surgically treated in 1998.

Also at issue is the claimant's allegation of being an occupational disease a second carpal tunnel release procedure with associated problems. After the April 1998 surgery by Dr. Powell on my wrists, my symptoms in the right and left hands/wrists stayed about the same and then I started having trouble with my thumbs, Hudson testified. There is no dispute that the claimant returned to his regular duties after the 1998 bilateral carpal tunnel releases. I'd switch off with my hands because they would hurt, Hudson said, and I told Dr. Powell about it. There is no dispute that the claimant stopped performing his regular work duties at LaFarge on or about February 23, 1999. Dr. Powell then suggested that I go see Dr. Polineni, which I did; it seems like it was 2000 or 2001 when I first started seeing Dr. Polineni, Hudson testified. He agreed that he gave Dr. Polineni a history about the symptoms he was having at that time as well as provided Dr. Polineni with a history of the types of jobs he had done in the past. Dr. Polineni performed another carpal tunnel surgery again on my right wrist, Hudson testified.

Considering the medical evidence, records of St. Charles Orthopedic Surgery Associates/Dr. Mark K. Keohane, M.D., (No. E) included a record from Dr. John Powell, M.D. (No. J) of the 04/15/98 operative report indicating that Dr. Powell performed the surgery of bilateral endoscopic carpal tunnel release. In an 8/03/98 post-op entry, Dr. Keohane noted that Hudson's complaints were pain in the right elbow and also the left thumb. "He does a lot of shoveling which bothers the carpal metacarpal point of his thumb", the doctor wrote. The next entry of 01/18/99 stated that Hudson was in for followup of upper extremity pain and continued to have epicondylar pain, and a chief complaint of pain at the CMC joint of both thumbs with some mild swelling and tenderness to palpation here and pain on circumduction. A 09/27/99 entry indicated Hudson was now complaining of some pain in both shoulders and both wrists. There has been no history of fall or trauma recently, he's had some pain with use, was noted. Subsequent records concerned treatment to the shoulders, then in the 05/01/00 entry it was noted that Hudson had complaints of some ill defined wrist and hand pain; it was written that an x-ray was obtained that showed some degenerative changes between the trapezium and the top of the navicular. "I think the patient is developing some osteoarthritis", the doctor wrote. It was written that if Hudson continued to have difficulty he might benefit by localized fusion. It was further noted that Hudson had had a carpal tunnel release done about a year ago and seemed to have recovered well from that. "He apparently used a shovel for many years and the shovel occupation may have contributed to his previous carpal tunnel problem", Dr. Keohane wrote. The doctor noted that Hudson was interested in filing a workers' compensation claim; Dr. Koehane wrote that he suggested to Hudson to talk to Dr. Powell about this, but it seemed reasonable that it was related causally. In the next entry of 07/17/00 it was written that Hudson was being re-evaluated with regard to his hands; it was noted that Hudson had some degenerative arthritis in his carpal bones. It was written that Hudson was principally concerned because he thought this should be involved with a workers' compensation problem. "He has been retired a couple of years", the doctor wrote. It was noted that Hudson had been using Lodine on a regular basis which he obtained through Veteran's Hospital. In the final entry of 04/16/01, it was written that Hudson had complaints of bilateral hand and wrist pain, and burning in his wrist. It was written that "an EMG and nerve conduction studies that suggest either peripheral neuropathy and/or carpal tunnel syndrome and or ulnar nerve neuritis". Dr. Keohane wrote that Hudson's symptoms suggested that most of his trouble was with the ulnar nerve. The doctor noted that Hudson was using Lodine and had a complicated medical history; it was again written that it was possible he might benefit by some operative care, but it was not clear at this point. Records of Dr. Subbaroa Polineni, M.D., hand surgeon, for the period of July 26, 2001 October 22, 2002 (No. F) reflected that Hudson was seen for the first time on 7/26/01 by referral from Dr. Powell. It was noted that Hudson's complaint was pain over both hands and thumbs. Dr. Polineni ordered x-rays of bilateral hands and

wrists, and a 08/05/01 x-ray report noted findings of:

1. Bilateral osteoarthritic changes in the scaphoid-trapezium and scaphoid-trapezoid joints with associated subchodral cysts, left greater than right. The associated nonspecific diffuse soft tissue swelling in both wrists may be related to the osteoarthritic changes.
2. Radiopacity in the soft tissue overlying the right distal phalanx which likely represents a retained splinter.

Dr. Polineni had repeat EMG nerve conduction studies performed, and wrote in a 8/20/01 entry that they revealed Hudson "has a clear cut ulnar nerve problem at the elbow with denervation changes in the ulnar nerve intervated muscles of the right hand". (sic) The doctor wrote that having the ulnar nerve released at the elbow would help Hudson. Dr. Polineni performed surgery on 09/07/01 (the name of the surgery was left blank); the post-operative diagnosis was - 1. Ulnar nerve compression, right elbow region; and 2. Median nerve compression, right wrist. Additional records from Dr. Polineni for the period November 12, 2001 to September 16, 2002 (No. G) indicated further post-op treatment. In an Attending Physician's Statement of Disability, dated 11/14/01, Dr. Polineni indicated that for the diagnosis of - Status post op scaphotrapezial joint degenerative arthritis, and Status post op ulnar and median nerve compression right hand ${ }^{[2]}$, Hudson's symptoms had first appeared in approximately 1998, that he had ceased work because of disability on 09/06/01; it was indicated that the condition was not a condition of Hudson's employment; the doctor indicated that he was aware of Hudson's main duties in his usual work, and that Hudson was disabled from performing his work from 09/06/01 indefinitely, and the doctor further indicated that Hudson was disabled from performing all other types of work indefinitely. Records from HealthSouth concerned evaluation and treatment on December 18, 2001 and on May 3, 2002 (No. H). The 12/18/01 record noted a diagnosis of right wrist/hand -- arthritis, degenerative joint disease - wrist; injury date was noted as - January 1, 2001; surgery date was noted as September 29, 2001, and performed by Dr. Polineni. It was written that Hudson reported the carpal tunnel syndrome/arthritis was the result of repetitive shoveling from 1990-98; the record noted that Hudson was retired. The 12/18/01 record indicated Hudson was seen for a one-time visit to properly fit and instruction on use of a wrist/thumb spica.

Considering the medical opinions, Dr. Volarich testified:

"I had several diagnoses. First, with reference to the injury date leading up to June of '99, my diagnoses included overuse syndrome, right upper extremity, most consistent with median nerve entrapment at the wrist, or carpal tunnel syndrome, aggravation of CMC, which is carpal/metacarpal degenerative arthritis...". (Volarich Dp. pg. 17)

The doctor testified about his opinion on the substantive causative factor that brought about these conditions he had diagnosed:

"It's my opinion that the repetitive nature of Mr. Hudson's work, as described in the history and job activities section of my report, especially the extensive shoveling, are the substantial contributing factors causing the multiple overuse and repetitive trauma injuries to both upper extremities, including bilateral carpal tunnel syndrome, bilateral shoulder impingement, and aggravation of bilateral thumb CMC degenerative arthritis, all of which required extensive surgical repairs." (Volarich Dp. pg. 19)

In his testimony as to his opinion of any disability he attributed to the conditions Hudson had, Dr. Volarich stated:

"I had several opinions regarding disabilities leading up to the 6/99 accident while in the employ of LaFarge Quarry, including:

......There is a 50\% permanent partial disability of the right upper extremity rated at the wrist due to the carpal tunnel syndrome that required two separate surgical repairs. This rating accounts for pain, paresthesias, weakness and lost motion in the dominant hand.

There is a 35\% permanent partial disability of the left upper extremity at the wrist due to the carpal tunnel syndrome that required (one) surgical repair. This rating accounts for pain, paresthesias and weakness as well as lost motion in non-dominant hand." (Volarich Dp. pp. 20-22)

On cross examination, it was noted that the doctor had indicated in his report the date of injury as "Up to June of 1999", and Dr. Volarich was queried if Hudson had relayed a specific date when he was injured. The doctor answered: "No. This is up to how long he was employed, I believe, at LaFarge Quarry. This was not a one-time incident for the upper extremity injuries." (Volarich Dp. pg. 33) Stating that he believed it was correct that the last time Hudson had actually worked was in February of 1999, Dr. Volarich further testified: "I think that's what he told me. But again, it was my understanding he was still employed until June." (Volarich Dp. pg. 33) Dr. Volarich gave more testimony in regards to the

development of Hudson's problems:

"I don't believe - well, again, there was a developmental thing for several years leading up to June of '99. So if we can phrase that to say that up to the development of symptoms referable to the 6/99 claim, all of these things are from these injuries to the upper extremities and the current claim here.

I don't believe there was anything before let's say five or ten years ago that would relate to the kind of problems he reported to me here.

"Because this is a repetitive trauma claim, the symptoms don't develop overnight. It takes a period of time. In this case I think it was several years that they were in the making, because of the severity of the problems.

......If we go back and say had it not been for the repetitive trauma to the wrists and hands would he have those symptoms from some other problem before this? No, he didn't." (Volarich Dp. pp. 34-35)

Dr. Cantrell, who noted that Hudson had had carpal tunnel releases in 1998 performed by Dr. Powell, stated that Hudson relayed "he had continued to have pain complaints in his wrists and hands despite the carpal tunnel surgery, but he had gone back to his regular duties thereafter". (Cantrell Dp. pg. 8) Dr. Powell's "records from April of 1998 indicate that Mr. Hudson was status post bilateral endoscopic carpal tunnel releases and was doing well with the numbness having nearly resolved", Dr. Cantrell noted. (Cantrell Dp. pg. 16) Records from August of 1998 indicate that Dr. Powell felt Hudson "was doing well in regard to his carpal tunnel release surgery, but he did have some pain complaints in his right elbow and in his left thumb, Dr. Cantrell stated. (Cantrell Dp. pp. 16-17) The doctor then discussed Hudson's subsequent treatment to his shoulders through March 2000. Hudson returned to Dr. Powell in May 2000 "with complaints of pain in his wrist and hand and x-rays were one revealing developing osteoarthritis in the trapezium and navicular areas of his wrist", Dr. Cantrell testified. (Cantrell Dp. pg. 22) He was seen by Dr. Keohane for follow-up in May of 2000, Dr. Cantrell said, and "I guess he had mentioned to Dr. Keohane interest in filing complaints in his wrist as being work-related, and Dr. Keohane had referred him back to Dr. Powell in that regard", Dr. Cantrell said. (Cantrell Dp. pg. 23) Dr. Cantrell agreed it was noted at that time that Hudson had recovered from his carpal tunnel surgery. In July of 2000 Hudson was seen by Dr. Keohane, Dr. Cantrell stated, and then discussed what the record revealed:

"Dr. Keohane had noted Mr. Hudson's concerns about whether these complaints were related to his prior work. He noted he had been retired for a couple of years. He noted x-rays revealed carpal arthritis between the navicular and the trapezium and mild changes at the basil joint of the thumb. He noted Mr. Hudson's functional capacity seemed reasonable, but that he may benefit from a limited intercarpal fusion. But that immediate fusion surgery was not recommended." (Cantrell Dp. pp. 23-24)

In August 2000 Hudson presented to Dr. Powell with complaints of numbness and tingling similar to those he had in the past with his carpal tunnel syndrome, Dr. Cantrell stated. "Although Dr. Powell at that time did not note any physical finding on examination but did recommend nerve conduction tests", the doctor said. (Cantrell Dp. pg. 24) Hudson was seen in September, it was noted, and Dr. Cantrell testified: "He had undergone in the interim electrodiagnostic tests which revealed evidence of a possible neuropathy in addition to a possible ulnar nerve entrapment at the elbow and bilateral carpal canal cortisone injections were provided." (Cantrell Dp. pg. 24) Dr. Cantrell commented about Dr. Schlafly's examination of Hudson in July of 2001:

"He noted that there was possible evidence of cubital tunnel syndrome, although he noted that problem apparently did not arise until after he stopped working and could not establish a causal relationship between the cubital tunnel syndrome and his employment; and therefore, could not make any definite recommendations for cubital tunnel surgery. He did feel the carpal tunnel syndrome was caused by his work requirements and provided disability rating in that regard. He further indicated that it was not clear whether he would benefit from any further carpal tunnel surgery given the mixture of what appeared to be both arthritic and nerve problems affecting his hands." (Cantrell Dp. pg. 27)

Hudson went to see Dr. Polineni in July of 2001 with pain complaints located over the dorsum with wrists movements and a burning sensation, Dr. Cantrell said. Dr. Cantrell was asked his conclusions after review of a September 2001 operative report:

"The operative note had indicated under the clinical history that Mr. Hudson had been shoveling rock six to eight hours a day and had been doing so for the last several years, which was inconsistent with the history that I was otherwise aware of that he had stopped working in February of 1999 and had not worked since then. The surgery done at that time was a carpal and a cubital tunnel release surgery performed by Dr. Polineni." (Cantrell Dp. pg. 28)

In April of 2002 Dr. Polineni made a diagnosis of degenerative arthritis involving the carpal bones at both wrists; in the interim Hudson had undergone a wrist fusion surgery, Dr. Cantrell noted. The following testimony occurred as to Dr.

Cantrell's opinions:

Q. You reached some conclusion - previously within the report, you wrote some, you summarized the history of Dr. Volarich's reports, and we don't have to go through that again, but you reached some conclusions that were in contrast to Dr. Volarich's impressions that were in his report. Can you tell me what those differences are?

A. I noted that Dr. Volarich had indicated that he felt Mr. Hudson had a poor result regarding his initial endoscopic carpal tunnel release surgery which, and upon my review of the medical records, I did not feel that was actually the case. The medical records clearly showed a very good result following his endoscopic carpal tunnel release with resolutions of his symptoms and his ability to return to his regular duty activities.

Q. And then you make some comments with regard to the diagnostic tests. Can you go through those, please?

A. Yes, he, Mr. Hudson, had undergone several different diagnostics tests and has been shown to have osteoarthritis in his neck, both wrists, his low back, as well as in both of his shoulders. I felt that the generalized nature of his osteoarthritis being in multiple joints and symmetrically present would reflect a diagnosis of general osteoarthritis.

Q. Would you say that was a result of his work?

A. I believe that some of his work activities while being performed may have served to temporarily exacerbate the symptoms in his wrists and hands, but I did not feel that his work performed between 1997 and 1999 would be considered a causative factor for the development of that condition, no.

Q. And that would include both of his wrists?

A. Yes. (Cantrell Dp. pp. 31- 33)

On cross examination, Dr. Cantrell agreed that he is not a neurologist or a surgeon. The doctor agreed that arthritis can be caused by trauma in certain circumstances. Dr. Cantrell stated that "(I)t depends on the circumstances, yes" that arthritis can be caused by repetitive trauma in certain circumstances. (Cantrell Dp. pg 39) The doctor was further queried specifically about Hudson's circumstances of shoveling rock between 1997 and 1999 sometimes greater than eight hours a day, five to six days a week, could those circumstances result in arthritis. Dr. Cantrell answered:

"In certain areas, potentially, and not in others. Again, it depends. There is a dominance factor. One person is typically right-handed or left-handed dominant. So you would expect to see a predominance or arthritic change, if it's related to repetition and trauma, being present in one side and not necessarily in the other. So when you see bilateral findings and when you see findings in the cervical spine in which there is really not any trauma associated with shoveling, there's no trauma to the cervical spine, that constellation of multiple joint involvement would suggest to me more of a diagnosis of generalized arthritis not related to the repetition of that particular job." (Cantrell Dp. pp. 39-40)

Agreeing that Hudson would have been using his bilateral upper extremities when his job was shoveling for that two-year period, Dr. Cantrell stated - "Again, in a different fashion". (Cantrell Dp. pg 40). Dr. Cantrell admitted that Hudson did not explain to him that he shoveled four hours a day using his left hand and then switched to four hours a day using his right hand, that he did not have a history of how Hudson had shoveled. The doctor agreed, during cross examination, that the bilateral carpal tunnel releases Hudson had undergone in 1998 were the two carpal tunnel surgeries he related to Hudson's occupation. Dr. Cantrell agreed that after the carpal tunnel surgery by Dr. Powell in 1998, Hudson continued to complain of symptoms in both hands and wrists. The doctor was queried wasn't it right that because of those continuing symptoms Hudson was later referred to Dr. Polineni who performed repeat right carpal tunnel release at the same time or around the same time he did a right ulnar release, and the doctor answered - "Yes". (Cantrell Dp. pg 44) The doctor agreed that Hudson actually had one carpal tunnel surgery on the left wrist and two carpal tunnel surgeries on the right wrist. (Cantrell Dp. pg 37) Dr. Cantrell was queried, from Dr. Polineni's and Dr. Powell's record wouldn't it appear that a repeat carpal tunnel surgery on the right was due to continuing problems after the 1998 surgery, and Dr. Cantrell responded:

"From my review of the records - I don't know exactly what their opinions were, but from my review of the records, there wasn't a continuation of numbness and tingling. There appeared to be at some later time a recurrence of numbness and tingling in his right arm." (Cantrell Dp. pg. 44)

It is found, considering the evidence, that Dr. Cantrell's opinions are supported by the medical records. It is found that the competent and substantial evidence indicates that subsequent to the April 1998 bilateral carpal tunnel surgery the claimant experienced improvement in complaints related to this condition, and the claimant did not experience any symptoms characterized by the doctors as possible carpal tunnel problems until 09/27/99 - 7 months after Hudson had left his employment and work activities that exposed him to the risks of this disease; it is found that Dr. Keohane diagnosed the claimant's problems on 05/01/00 as "developing some osteoarthritis", and that subsequent treatment entries and radiographic studies supported this opinion. Consequently, it is found that the substantial weight of the competent evidence does not establish a causal link to the claimant's work duties at LaFarge and the problems that

developed in the claimant's right wrist/hand culminating in surgery on 09/07/01.

Additionally at issue is whether or not fusion surgeries performed on the claimant's bilateral wrists/thumbs were a result of occupational disease from exposure to a hazard at LaFarge. The medical evidence reveals that the claimant had bilateral wrist/thumb fusions in September 2001 and February 2002. Considering the medical evidence, the records of Dr. Keohane (No. E), in a 08/03/98 post-op entry (for bilateral carpal tunnel release performed in April 1998) noted that Hudson's complaints were pain in the right elbow and also the left thumb. "He does a lot of shoveling which bothers the carpal metacarpal point of his thumb", the doctor wrote. Exam findings on 8/03/98 included: slight enlargement at the CMC joint, with some mild tenderness to palpation there and pain on grinding; negative Dequervain's; tenderness to palpation at lateral epicondyle and pain on resisted extension of the wrist and fingers. It was written that Hudson was given a tennis elbow strap and anti-inflammatory medication for his thumb and elbow. The next entry of 01/18/99 stated that Hudson was in for followup of upper extremity pain and continued to have epicondylar pain, and a chief complaint of pain at the CMC joint of both thumbs with some mild swelling and tenderness to palpation here and pain on circumduction. Subsequent entries concerned right knee complaints and treatment. In a 09/27/99 it was written that Hudson was now complaining of some pain in both shoulders and both wrists; there has been no history of fall or trauma recently, he's had some pain with use, was noted; it was written that Hudson had loss of full forward flexion with positive impingement sign. Subsequent entries reflected treatment for the shoulders (i.e. a 12/9/99 entry indicated that an x-ray revealed some subacomial spurring and degenerative arthritis at the AC joint of the left shoulder). The 05/01/00 entry noted Hudson's complaints of some ill defined wrist and hand pain; it was written that an x-ray was obtained that showed some degenerative changes between the trapezium and the top of the navicular. "I think the patient is developing some osteoarthritis", the doctor wrote. It was written that if Hudson continued to have difficulty he might benefit by localized fusion. It was further noted that Hudson had had a carpal tunnel release done about a year ago and seemed to have recovered well from that. "He apparently used a shovel for many years and the shovel occupation may have contributed to his previous carpal tunnel problem", Dr. Keohane wrote. In the next entry of 07/17/00 it was written that Hudson was being re-evaluated with regard to his hands; it was noted that a repeat x-ray of the hand revealed some carpal arthritis between the navicular and trapezium and some mild changes at the basal joint of Hudson's thumb. It was noted that Hudson was principally concerned because he thought this should be involved with a workers' compensation problem. "He has been retired a couple of years", the doctor wrote. It was noted that Hudson had been using Lodine on a regular basis which he obtained through Veteran's Hospital. In the final entry of 04/16/01, it was written that Hudson had complaints of bilateral hand and wrist pain, and burning in his wrist. It was written that "an EMG and nerve conduction studies that suggest either peripheral neuropathy and/or carpal tunnel syndrome and or ulnar nerve neuritis. Dr. Keohane wrote that Hudson's symptoms suggested that most of his trouble was with the ulnar nerve. It was noted that Hudson was using Lodine and had a complicated medical history; it was again written that it was possible he might benefit by some operative care, but it was not clear at this point. The medical records of Dr. Polineni (No. F) noted in the first entry of 7/26/01 that Hudson had been referred by Dr. Powell, and that Hudson had complaints of pain over both hands and thumbs. Dr. Polineni ordered x-rays of bilateral hands and wrists, and a 08/05/01 x-ray report noted findings of:

1. Bilateral osteoarthritic changes in the scaphoid-trapezium and scaphoid-trapezoid joints with associated subchodral cysts, left greater than right. The associated nonspecific diffuse soft tissue swelling in both wrists may be related to the osteoarthritic changes.
2. Radiopacity in the soft tissue overlying the right distal phalanx which likely represents a retained splinter.

Dr. Polineni performed surgery on 09/07/01 (the name of the surgery was left blank); the post-operative diagnosis was 1. Ulnar nerve compression, right elbow region; and 2. Median nerve compression, right wrist. The doctor performed a second surgery on 09/28/01 of a scaphoidtrapezial-trapezoid carpal joint fusion; the post-operative diagnosis was scaphotrapezial joint degenerative arthritis. In a 10/15/01 post-op entry, it was written that Hudson was doing fine, the splint was removed, and a thumb spica cast was applied; it was noted that a pin was protruding so Hudson was placed on anti-biotics. Additional records from Dr. Polineni (No. G) included an Attending Physician's Statement of Disability, dated 11/14/01, in which Dr. Polineni indicated that for the diagnosis of - Status post op scaphotrapezial joint degenerative arthritis, and Status post op ulnar and median nerve compression right hand, Hudson's symptoms had first appeared in approximately 1998, that he had ceased work because of disability on 09/06/01; it was further indicated, though, that the condition was not a condition of Hudson's employment; the doctor indicated that he was aware of Hudson's main duties in his usual work. In a 01/17/02 entry, Dr. Polineni wrote that the fusion was healing very well, and Hudson was ready to have the other hand done. A 02/13/02 operative report indicated that Dr. Polineni performed the operation of - triscapho-fusion, left wrist; the post-operative diagnosis was - scaphotrapezial and scaphotrapezoid arthritis, left wrist.

Considering the medical opinions, Dr. Volarich stated, in his discussion of his opinion of any disability he attributed to the

"I had several opinions regarding disabilities leading up to the 6/99 accident while in the employ of LaFarge Quarry, including: A 50\% permanent partial disability of the right upper extremity rated at the carpal/metacarpal joint of the thumb due to aggravation of arthritis that required fusion of the scaphoid, trapezium and trapezoid. This rating accounts for pain, weakness and lost motion in this digit.

Similarly, there is a 50\% permanent partial disability of the left upper extremity rated at the carpal/metacarpal joint of the thumb due to the aggravation of arthritis that required fusion of the scaphoid, trapezium and trapezoid. This rating accounts for ongoing pain, weakness and lost motion in this digit." (Volarich Dp. pp. 20-21)

Dr. Volarich stated that the date of injury was "...up to how long he was employed, I believe, at LaFarge Quarry. This was not a one-time incident for the upper extremity injuries." (Volarich Dp. pg. 33) Dr. Vollarich acknowledged that the last time Hudson had actually worked was in February of 1999. Dr. Volarich gave more testimony in regards to the development of Hudson's problems:

"I don't believe - well, again, there was a developmental thing for several years leading up to June of '99. So if we can phrase that to say that up to the development of symptoms referable to the 6/99 claim, all of these things are from these injuries to the upper extremities and the current claim here.......

"Because this is a repetitive trauma claim, the symptoms don't develop overnight. It takes a period of time. In this case I think it was several years that they were in the making, because of the severity of the problems.

The aggravation of the arthritis, for example, in the thumbs, the entrapments, the impingement in the shoulders and so forth all take several years to develop. So to say were they present before June of 99, yes, they were in there developmental stage for those three or four years up to that time.

If we go back and say had it not been for the repetitive trauma to the wrist and hands would he have those symptoms from some other problem before this? No, he didn't." (Volarich Dp. pp. 34-35)

Dr. Cantrell noted: "Dr. Polineni had performed a repeat carpal tunnel release surgery as well as a right ulnar nerve release surgery he believed in the year 2000. And he had later performed a fusion surgery near the wrist of both of his hands because of ongoing pain complaints in that area." (Cantrell Dp. pp. 9-10) Dr. Cantrell stated that in April of 2002 Dr. Polineni made a diagnosis of degenerative arthritis involving the carpal bones at both wrists, and in the interim Hudson had undergone wrist fusion surgery. Dr. Cantrell testified:

Q. And then you make some comments with regard to the diagnostic tests. Can you go through those, please.

A. Yes, he, Mr. Hudson, had undergone several different diagnostics tests and has been shown to have osteoarthritis in his neck, both wrists, his low back, as well as in both of his shoulders. I felt that the generalized nature of his osteoarthritis being in multiple joints and symmetrically present would reflect a diagnosis of general osteoarthritis.

Q. Would you say that was a result of his work?

A. I believe that some of his work activities while being performed may have served to temporarily exacerbate the symptoms in his wrists and hands, but I did not feel that his work performed between 1997 and 1999 would be considered a causative factor for the development of that condition, no.

Q. And that would include both of his wrists?

A. Yes. (Cantrell Dp. pp. 32- 33)

Dr. Cantrell testified: "Again, I felt in conjunction with arthritis present in his neck, arthritic findings present in one of his knees as I recall, arthritic findings in both of his wrists. The multilocation of these degenerative changes would suggest a diagnosis of a generalized osteoarthritis and not a relationship to his occupational activities. (Cantrell Dp. pg. 36) Dr. Cantrell further testified: "What I noted was that the basis of my opinion that his arthritis in his wrist was not work-related based on the fact that his symptoms progressively worsened after cessation of employment." (Cantrell Dp. pg 37)

It is found, that the medical evidence supports Dr. Volarich's and Dr. Cantrell's opinion that the claimant's work activities at LaFarge up to the last time he worked there in February 1999 aggravated a condition of arthritis in both of his hands/wrists.

It is further found, though, that Dr. Volarich offers no opinion as to how the progression of this condition in the hands/wrists - (from the medical recommendation on 08/03/98 of anti-inflammatory medication for symptoms in the thumbs, to consideration of a fusion surgery on 05/01/00 for Hudson's complaints after radiographic evaluation, to a recommendation and performance of surgery for the condition in 2001) - was caused by an exposure to a hazard in the performance of his work duties at LaFarge when the claimant was no longer being exposed to those hazards of his occupation after February 1999. It is found that the substantial evidence supports Dr. Cantrell's opinion that the fusion surgeries were the result of a worsening of Hudson's condition after cessation of employment, and thus not an occupational disease. It is found that for the same reasons, the substantial weight of

the competent evidence establishes that the symptoms in Hudson's bilateral thumbs and ultimate fusion surgeries were a progressive worsening after cessation of employment where the hazard existed.

1. Right Elbow. Dr. Volarich agreed, during direct examination, that Hudson had subsequent conditions and diagnoses that he felt were not pre-existing nor related to his employment at LaFarge: a. Ulnar neuropathy of the right elbow, and b. Cervical fusion. Dr. Cantrell testified that in August 2000 Hudson presented to Dr. Powell with complaints of numbness and tingling similar to those he had in the past with his carpal tunnel syndrome, Dr. Cantrell stated. "Although Dr. Powell at that time did not note any physical finding on examination but did recommend nerve conduction tests", the doctor said. (Cantrell Dp. pg. 24) Hudson was seen in September, it was noted, and Dr. Cantrell testified: "He had undergone in the interim electrodiagnostic tests which revealed evidence of a possible neuropathy in addition to a possible ulnar nerve entrapment at the elbow and bilateral carpal canal cortisone injections were provided." (Cantrell Dp. pg. 24) Dr. Cantrell commented about Dr. Schlafly's examination of Hudson in July of 2001:

"He noted that there was possible evidence of cubital tunnel syndrome, although he noted that problem apparently did not arise until after he stopped working and could not establish a causal relationship between the cubital tunnel syndrome and his employment; and therefore, could not make any definite recommendations for cubital tunnel surgery. He did feel the carpal tunnel syndrome was caused by his work requirements and provided disability rating in that regard. He further indicated that it was not clear whether he would benefit from any further carpal tunnel surgery given the mixture of what appeared to be both arthritic and nerve problems affecting his hands." (Cantrell Dp. pg. 27)

"I did not find evidence to support a causal connection between his diagnosis of ulnar neuropathy at the right elbow and his occupational activities.

"I base that opinion on the fact the electrodiagnostic tests performed preceding his first endoscopic carpal tunnel release did not show any evidence of ulnar neuropathy at the elbow and there were no subsequent complaints during the course of his employment reflecting ulnar neuropathy syndrome." (Cantrell Dp. pg. 31)

It is found, that the condition of the claimant's right elbow was a sophisticated injury in that it required highly scientific techniques for diagnosis and there was surgical intervention, thus requiring a medical opinion as to causation of any conditions. It is found that there is no medical opinion causally relating the claimant's right elbow condition to a hazard associated with the performance of his work duties at LaFarge, and thus no occupational disease for this condition is found.

1. Bilateral shoulders. Hudson testified I first started having problems in my shoulders probably as far as back as in the 1980's when I was driving road trucks and working on them. The problems in each of my shoulders started both at the same time, he said. Sometimes you had to lay on your back and try to lift stuff up and put springs on it, a part in the bottom of the truck. I first started noticing that any time I did anything, when I was fixing tires on the roadside and lifting stuff, any time I had to use my arms an extended period of time both shoulders would get tired, Hudson said. Also when I started to do a lot of shoveling and pulling job in the early 1990's at LaFarge, that made my shoulder symptoms worse, Hudson said, they just would get tired. At that time I also had trouble sometimes with motion, limited motion in both shoulders, he stated. I told my employer at LaFarge that I was having those symptoms and complaints in my shoulders, the claimant said, but I do not remember about when that would have been. LaFarge never offered me any medical treatment for my shoulders, Hudson said. I seen Dr. Powell and he gave me shots in both shoulders, and this would have been somewhere in the early part of 1999 or maybe 1998. I had one operated on in 1999, Hudson stated. He agreed that he saw another doctor before seeing Dr. Powell for the symptoms he was having in the shoulders, but further stated that he did not recall that doctor, he was the doctor he saw in sports medicine. But I mean he give me the same things, shots in the shoulders; Dr. Farrell, who was my primary doctor, referred me to him, the claimant said. The first doctor that I saw for my shoulder complaints took x-rays and then he gave me shots in the shoulders. My complaints were in the entire shoulder on both sides, Hudson said. The injections were given right in the meaty part of the arm, he said, not above, on the arm itself; straight in, on the outside of the shoulder area, he agreed. Agreeing that he was saying below the top of the shoulder, Hudson stated that it was down about an inch, to an inch and a half down. The injections gave me some relief for about a month, then came right back, he said. Besides this doctor that Dr. Farrell referred me to for shoulder complaints, the only other doctor I seen was Dr. Powell, Hudson said. Dr. Powell gave me shots once or twice, and then finally in December of 1999 he worked on the left shoulder, I think, and then in January of 2000 he worked on the right shoulder, the claimant said. My complaints when I saw Dr. Powell were the same, the claimant stated, in the shoulder area itself, both shoulders. The second series of injections performed by Dr. Powell were in the same place as the first, Hudson said, down about an inch and a half down into the arm (Indicating). I did not receive a lot of relief after the injections from Dr. Powell; they wouldn't last long, Hudson said. After the injections by Dr.

Powell the doctor did surgery on both of my shoulders, Hudson testified, basically he told me that all he did was go in, rotator cuff was okay, he said he cut the end of the shoulder blade off to give more room. After the shoulder surgeries I had quite a bit of relief for a while, Hudson stated, I didn't have any pain. They basically started to come back again; they come back, both of the shoulders was getting tired, he testified. The symptoms I notice in my shoulders more recently are tiredness and weakness, Hudson said. These symptoms started recurring probably a year after I was operated on, or less than that, he said. He indicated limitation on the range when he reaches up above his head in both shoulders.

Considering the medical records in regards to the shoulders, records from Family Medical Group, Dr. James Farrell, D.O., (No. N) reflected treatment of Hudson for various ailments and conditions (portions of the handwritten entries were illegible). The 02/24/97 entry was the first to note a chief complaint of pain in the left shoulder blade two to three times a day. Written was: "shovels (at) work"; "Strenuous occup since Oct 97". The diagnosis on 02/24/97 included - left scapular strain. October 1997 entries concerned treatment to the lumbar spine; the first November 1997 entries concerned treatment for a cough. The 11/28/97 entry reflected complaints of left shoulder pain; the physical examination findings included - increased tenderness with abduction, no focal point tenderness, grip strength equal bilaterally; the impression was tendonitis vs bursitis vs degenerative joint disease; medication was prescribed. Complaints of continued left shoulder blade area pain was noted in the next entry of 02/26/98; it was further written that symptoms had improved with Relafen but not completely; the diagnosis was a ??????? muscle strain; the treatment of Relafen and hot packs continued. The 0/27/98 and 03/02/98 entries noted treatment with hot packs; a 03/02/98 entry stated that a work excuse was given for 02/25/98 - 03/02/98. The medical records revealed extensive treatment and testing of Hudson for various ailments, including acoustic neuroma surgery on 02/24/99 with complications. The St. Charles Orthopedic Surgery Associates record (No. E) reflected post-op treatment of Hudson for the 04/17/98 bilateral endoscopic carpal tunnel release as well as treatment of the right elbow and also the thumbs into March 1999; for the first time in an 11/04/99 entry, it was written that Hudson had loss of full forward flexion with positive impingement sign; written was "we injected his shoulder today with some Cortisone". The 12/9/99 entry noted Hudson's comments that both shoulders continued to bother him although much worse on the left than the right; it was written - "He complains of pain primarily in the subacromial area of the left shoulder, pain does radiate down into the insertion of the deltoid, but not below the elbow". Exam findings on 12/09/99 were - some slight tenderness to palpation along the anterior to the acromium, demonstrates positive impingement sign and does have some limitation of mobility in the shoulder, forward flexion is limited to about 130 degrees and abduction to about 120 degrees; it was written that an x-ray revealed some subacomial spurring and degenerative arthritis at the AC joint of the left shoulder; the 12/27/99 entry indicated that Hudson was 1 week out from acromiplasty of the left shoulder. A 01/31/00 entry stated that Hudson was 1 week out from right shoulder acromioplasty surgery. A 03/23/00 entry included that exam showed full range of motion both shoulders and good strength.

Considering the medical opinion in regards to the shoulders, Dr. Volarich testified (No. C) as to his diagnoses after evaluation of Hudson, which included:

"I had several diagnoses. First, with reference to the injury date leading up to June of '99, my diagnoses included overuse syndrome, right upper extremity, most consistent with median nerve entrapment at the wrist, or carpal tunnel syndrome, aggravation of CMC, which is carpal/metacarpal degenerative arthritis, and impingement of the shoulder.....

The second was status was post endoscopic carpal tunnel release with poor result, followed by open carpal tunnel release, CMC fusion involving the scaphoid, trapezium, and trapezoid, and right shoulder subacromial decompression.

Next was status post endoscopic left carpal tunnel release with poor result, followed by CMC fusion involving the scaphoid, trapezium and trapezoid, and left shoulder subacromial decompression.

As far as pre-existing diagnoses, those included: Bilateral shoulder bursitis, historic right elbow dislocation, chronic cervical syndrome, including disc bulges at C5-6 and C6-7, with degenerative disc disease and degenerative joint disease diffusely throughout the cervical spine, left acoustic neuroma status post translabyrinthine resection.

(Volarich Dp. pp. 17-18)

The doctor testified about his opinion on the substantive causative factor that brought about the conditions he diagnosed:

"It's my opinion that the repetitive nature of Mr. Hudson work, as described in the history and job activities section of my report, especially the extensive shoveling, are the substantial contributing factors causing the multiple overuse and repetitive trauma injuries to both upper extremities, including bilateral carpal tunnel syndrome, bilateral shoulder impingement, and aggravation of bilateral thumb CMC degenerative arthritis, all of which required extensive surgical repairs." (Volarich Dp. pg. 19)

In his testimony of any disability he attributed to the conditions Hudson had, Dr. Volarich stated:

"I had several opinions regarding disabilities leading up to the 6/99 accident while in the employ of LaFarge Quarry, including:

.....There is a 35 % permanent partial disability of the right upper extremity rated at the shoulder due to the impingement syndrome that required open subacromial decompression. This rating accounts for pain, lost motion, weakness and crepitus in the dominant arm.

There is a 35 % permanent partial disability of the left upper extremity at the shoulder due to the impingement syndrome that required open subacromial decompression. This rating accounts for pain, lost motion and weakness, as well as crepitus in the non-dominant arm......." (Volarich Dp. pp. 20-22)

As to his assessment for pre-existing medical conditions, Dr. Volarich included the following:

"I have several opinions there, as well. Pertaining to his pre-existing medical conditions, it's my opinion that there was a 15 % permanent partial disability of each upper extremity at the shoulder due to the chronic bursitis causing ongoing pain and contributing to lost motion and weakness leading up to June of '99.

On cross examination, Dr. Volarich stated he believed it was correct that the last time Hudson had actually worked was in February of 1999. Dr. Volarich gave more testimony in regards to the development of Hudson's problems:

"Because this is a repetitive trauma claim, the symptoms don't develop overnight. It takes a period of time. In this case I think it was several years that they were in the making, because of the severity of the problems.

The aggravation of the arthritis, for example, in the thumbs, the entrapments, the impingement in the shoulders and so forth all take several years to develop. So to say were they present before June of 99, yes, they were in there developmental stage for those three or four years up to that time....." (Volarich Dp. pp. 34-35)

Dr. Volarich admitted, during cross examination, he did not review any medical records that specifically made the diagnosis of bursitis for Hudson. "There were a couple of notes referencing shoulder pain, trouble sleeping and so forth, but nothing specifically where he had injections, or that diagnosis", the doctor stated." (Volarich Dp. pg. 36) Dr. Volarich agreed that there was nothing in the medical records indicating Hudson was on any kind of restrictions relative to his shoulders prior to June of 1999. When queried wasn't it correct that before June 1999 Hudson was working full duty without any permanent restrictions, Dr. Volarich responded - "As far as I know." (Volarich Dp. pg. 40) When questioned if Hudson had any prior medical history of arthritis, the doctor answered: "There is no question he had arthritis that developed over the years just from the wear and tear of the type of work that he did." (Volarich Dp. pg. 40)

Dr. Cantrell offered his medical opinion behalf of the employer/insurer. (No. 2) Dr. Cantrell noted some treatment Hudson had received from Dr. Powell:

"Let's see, Dr. Powell was the physician who had performed his carpal tunnel release and Dr. Powell had later seen him for complaints in his shoulders and had performed cortisone shots in his shoulders and later performed bilateral subacromial decompression surgeries in his shoulders." (Cantrell Dp. pg. 10)

The doctor stated that medical records from 1997 revealed that "(A)t that time, he had a short-term history of pain in the left shoulder blade area presenting with a history that he shoveled at work. Also mentioned in that record was reference to carpal tunnel treatment provided by Dr. Farley. At that time, he was found to be tender along the medial scapula border and was diagnosed with a left scapular strain." (Cantrell Dp. pg. 14) In October of 1997 Hudson had "pain in his lower back with what was thought to be probable degenerative disk disease and SI joint syndrome", the doctor said, x-rays "revealed some small osteophytes anterior to the L3 and the L4 vertebra". (Cantrell Dp. pg. 14) February 26, 1998, the doctor testified, Hudson "again had some pain complaints in the left shoulder blade and arm pain in his arm that improved with Relafen but not completely. And the doctor at that time had indicated he remained tender along the medial left scapular area and was again diagnosed as having a muscular strain." (Cantrell Dp. pp. 16-17) Dr. Cantrell agreed it was his understanding Hudson had stopped working in February of 1999. In May 1999 Hudson had an MRI scan because of neck pain, Dr. Cantrell stated, "(A)nd that showed an annular disk bulge posteriorly with osteophytic ridging without spinal cord impingement at the C5-6 and the C6-7 levels with lateral spurring and foraminal encroachment.....Those findings could be best summed as degenerative changes at the C5-6 and C6-7 levels...". (Cantrell Dp. pg. 19) In November 1999 Hudson had some complaints in his shoulders for which he received some subacromial cortisone injections, the doctor noted. Dr. Cantrell further testified:

"He had advised his physician in December of '99 that the symptoms in his shoulders had improved short term with the cortisone injections. At that time, he was having no complaints of numbness or tingling in his arms and his symptoms were confined to the shoulders. And the x-rays then had revealed some degenerative changes within the acromioclavicular joint of the shoulder. He then in December of ' 99 had undergone what appears to have been an acromioplasty of the left shoulder." (Cantrell Dp. pp. 19-20)

The doctor explained that an acromioplasty is where "the surgeon through surgical procedure shaves away bone spurs which might be causing impingement of the rotator cuff". (Cantrell Dp. pg. 20) The doctor was asked his opinion of whether or not the bone spurs appeared to be degenerative in nature, or caused by some trauma or repetitive trauma. Dr. Cantrell answered: "They appear to be degenerative in nature. They were bilateral and there were records earlier which had indicated the onset of the shoulder pain complaints in which there was not any history of a fall or trauma." (Cantrell Dp. pg. 20) Shortly thereafter in January 2000 Hudson "had similar surgery to his right shoulder, yes", Dr. Cantrell said. (Cantrell Dp. pp. 20-21) Discussing February 2000 entries, Dr. Cantrell stated that Dr. Powell, who had done the surgeries, noted Hudson was doing very well in regards to his left shoulder and was regaining motion in his right shoulder. Dr. Cantrell noted that Hudson saw Dr. Powell in March 23, 2000, several months out from his shoulder surgeries, "(A)nd Dr. Powell had noted he was doing well without complaints, had a full range of motion, and normal strength in both of his shoulders without any further follow-up scheduled". (Cantrell Dp. pg. 21) Dr. Cantrell stated that it would appear this was the date Hudson was at maximum medical improvement for the condition to his shoulders. Dr. Cantrell stated the following during his opinion testimony:

Q. And then you make some comments with regard to the diagnostic tests. Can you go through those please?

A. Yes, he, Mr. Hudson, had undergone several different diagnostics tests and has been shown to have osteoarthritis in his neck, both wrists, his low back, as well as in both of his shoulders. I felt that the generalized nature of his osteoarthritis being in multiple joints and symmetrically present would reflect a diagnosis of general osteoarthritis.

Q. Would you say that was a result of his work?

A. I believe that some of his work activities while being performed may have served to temporarily exacerbate the symptoms in his wrists and hands, but I did not feel that his work performed between 1997 and 1999 would be considered a causative factor for the development of that condition, no.

Q. And that would include both of his wrists?

A. Yes.

Q. Did you find any causal connection between the work injury and the cervical arthritis?

A. No I did not.

Q. Did you reach some further opinions then with regard to his medical conditions?

A. Yes. I felt that due to multiple medical conditions, he was not capable of gainful employment. I felt that the proximate cause for his disability was that of the accoustic neuroma for which he suffered some complications thereafter.

Q. You can go through that.

A. I further indicated that the carpal tunnel syndrome that he was initially diagnosed with did not appear to be in and of itself a limiting factor for his work abilities due to the fact that he had returned to his regular duty activities. I indicated that I did not find supporting evidence in the records to establish a causal connection between his complaints in his shoulders and his occupational activities.

Q. Why is that?

A. The medical records had indicated that during the course of his employment, the symptoms he had described were along the medial scapular border inconsistent with a muscular strain, and latent treatment he received, which included subacromial cortisone injections and accommodates in both shoulders was really to address a diagnosis of arthritis at the AC joint itself. And those were symptoms that really manifested after he had quit working.

Q. You mentioned it is noteworthy in reviewing his medical records that he did not present with any ongoing pain complaints in his shoulders during the course of his employment, what is the significance of that?

A. If you are looking and trying to make a determination where an activity at work or outside of work is the cause of or the exacerbating factor for a person's symptoms, then what you would typically expect to see is the symptoms being present at the greatest when someone is physically active doing the purported cause of the symptoms. And then if that activity is then ceased, then you would expect at the very least the symptoms to decrease and possibly resolve if there isn't correlation between the activity and the symptoms.

Q. And that did not happen in this case.

A. No, it did not.

Q. In fact, if you would review - can you briefly review and tell us what exactly did happen after he stopped working? Was there actually an increase in pain after he stopped working in his shoulders, elbows, wrists, etc.

A. Yes. He had stopped working in February of '99. And the first indication that I see of complaints specific to the

shoulder joints themselves was in September of '99 where he presented with no history of fall or traumas. And it was after that, that apparently over the course of the next several months, his pain complaints had persisted and increased to the point he had undergone cortisone shots with only short-term relief and then ultimately the accommodates in the left and right shoulder in December of '99 and January of 2000, respectively.

Q. Going back to page 11, the last sentence of the last paragraph there, it says the degenerative changes present. Can you explain what that sentence is and what it means, please?

A. The - what I had noted was there were degenerative changes present in the acromioclavicular joints of both shoulders. Again, I felt in conjunction with arthritis present in his neck, arthritic findings present in one of his knees as I recall, arthritic findings in both of his wrists. The multilocation of these degenerative changes would suggest a diagnosis of a generalized osteoarthritis and not a relationship to his occupational activities. (Cantrell Dp. pp. 3236)

On cross examination, Dr. Cantrell agreed that he is not a neurologist or a surgeon. Dr. Cantrell stated that "(I)t depends on the circumstances, yes" that arthritis can be caused by repetitive trauma in certain circumstances. (Cantrell Dp. pg 39) The doctor was further queried specifically about Hudson's circumstances of shoveling rock between 1997 and 1999 sometimes greater than eight hours a day, five to six days a week, could those circumstances result in arthritis. Dr. Cantrell answered:

"In certain areas, potentially, and not in others. Again, it depends. There is a dominance factor. One person is typically right-handed or left-handed dominant. So you would expect to see a predominance or arthritic change, if it's related to repetition and trauma, being present in one side and not necessarily in the other. So when you see bilateral findings and when you see findings in the cervical spine in which there is really not any trauma associated with shoveling, there's no trauma to the cervical spine, that constellation of multiple joint involvement would suggest to me more of a diagnosis of generalized arthritis not related to the repetition of that particular job." (Cantrell Dp. pp. 39-40)

Agreeing that Hudson would have been using his bilateral upper extremities when his job was shoveling for that two-year period, Dr. Cantrell stated - "Again, in a different fashion". (Cantrell Dp. pg 40). Dr. Cantrell admitted that Hudson did not explain to him that he shoveled four hours a day using his left hand and then switched to four hours a day using his right hand, that he did not have a history of how Hudson had shoveled. On cross examination by the Second Injury Fund, Dr. Cantrell was queried, from his understanding of Hudson's work conditions, was it possible that Hudson suffered any work injuries after February of 1999. "Obviously, if he's not working, he doesn't suffer any either acute or repetitive work injuries after ceasing employment. (Cantrell Dp. pp. 55-56)

It is found, considering the evidence, that Dr. Cantrell's opinions are supported by the treatment records. It is found that Dr. Volarich's opinions are not controlling in that the doctor's diagnosis for the injury leading up to about February 24, 1999 (the last day Hudson worked for LaFarge) of bilateral impingement of the shoulder with bilateral subacromial decompression, and a preexisting condition of bilateral shoulder bursitis is not supported by the medical records in evidence; the treatment records reveal complaints of and treatment for only the left shoulder prior to February 1999 with a diagnosis of muscle strain, bursitis was mentioned but only as one of three possible diagnoses; the treatment records of 09/27/99 were the first to note complaints from Hudson of symptoms in both shoulders, and both shoulders were examined and treated at that time; the next treatment entry of 11/04/99 noted an increase in Hudson's problems with findings of loss of full forward flexion with positive impingement sign. It is found that there is no dispute among the medical opinions that Hudson had arthritis in several joints including his shoulders leading up to February 24, 1999; it is found that the competent and substantial evidence, with consideration of Dr. Cantrell's opinion, establishes that the claimant's work duties at LaFarge up through February of 1999 caused a muscle strain/may have served to temporarily exacerbate the arthritic condition in his left shoulder.

1. Arthritis. The medical evidence indicates a condition common to all of the body parts the claimant has put in issue, that condition being osteoarthritis. It is found that Dr. Volarich's opinion is ambiguous as to whether or not the claimant suffered an occupational disease of arthritis, or what was the cause of this condition, and thus the doctor's opinion is found not to be controlling. Dr. Volarich testified - "There is no question he had arthritis that developed over the years just from the wear and tear of the type of work that he did." (Dp. pg. 40) The evidence indicates that Dr. Volarich considered 1995 records of Dr. Farrell who had the claimant on Relafen, however Dr. Volarich did not included a diagnosis of arthritis in his list of diagnoses of injuries leading up to the claimant's last day of employment, as a preexisting diagnosis, or as a subsequent diagnosis; the doctor noted only diagnoses such as "aggravation of bilateral thumb CMC degenerative arthritis". Dr. Cantrell opined:

"Yes, he, Mr. Hudson, had undergone several different diagnostics tests and has been shown to have osteoarthritis in his neck, both wrists, his low back, as well as in both of his shoulders. I felt that the generalized nature of his osteoarthritis being in multiple joints and symmetrically present would reflect a diagnosis of general osteoarthritis.

"I believe that some of his work activities while being performed may have served to temporarily exacerbate the symptoms in his wrists and hands, but I did not feel that his work performed between 1997 and 1999 would be considered a causative factor for the development of that condition, no.

"The medical records had indicated that during the course of his employment, the symptoms he had described were along the medial scapular border inconsistent with a muscular strain, and latent treatment he received, which included subacromial cortisone injections and accommodates in both shoulders was really to address a diagnosis of arthritis at the AC joint itself. And those were symptoms that really manifested after he had quit working.

"If you are looking and trying to make a determination where an activity at work or outside of work is the cause of or the exacerbating factor for a person's symptoms, then what you would typically expect to see is the symptoms being present at the greatest when someone is physically active doing the purported cause of the symptoms. And then if that activity is then ceased, then you would expect at the very least the symptoms to decrease and possibly resolve if there isn't correlation between the activity and the symptoms." (Cantrell Dp. pp. 32-36)

It is found that the competent, substantial evidence does not establish a causal connection between the condition of osteoarthritis and any hazards associated with the claimant's work activities at LaFarge.

The claimant testified that he sought medical care on my own for the problems he was having with his hands. I seen Dr. Powell for these complaints, the claimant said, and I provided Dr. Powell with a history of my job duties at LaFarge. Dr. Powell operated on both hands for carpal tunnel, Hudson stated, he operated on both hands at the same time and I was off, I think, six or eight weeks. I was not paid any benefits by workers' compensation for that time I was off, the claimant said.

Considering the medical evidence, records from Dr. John Powell, M.D. (No. J) included a 04/15/98 operative report indicating that Dr. Powell performed the surgery of bilateral endoscopic carpal tunnel release on Hudson on that date. Followup treatment notes were included in the St. Charles Orthopedic Surgery Associates records (No. E). In the 4/17/98 treatment entry it was indicated that Hudson was 2 days out from bilateral endoscopic carpal tunnel release and was doing well. The 5/14/98 treatment entry noted that Hudson was 4 weeks post-op; the included - "He'll return to work in 10 days and see us again in a month for followup"; the next entry of 6/17/98 noted that Hudson was a "no show".

It has been determined in this Award that the competent and substantial evidence establishes that the claimant sustained the occupational disease of bilateral carpal tunnel diagnosed and surgically treated in 1998.

Section 287.020.7 RSMo defines the term "total disability" as an "inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident". "Temporary total disability" is not defined by the workers' compensation statute, but is intended to be an award to cover a healing period and is a benefit granted only for the time prior to when the employee can return to work; an award for temporary total disability is not intended to encompass disability after the condition has reached the point where further progress is not expected. See, Williams V. Pillsbury Co., 694 S.W.2d 488, 489 (Mo.App. E.D. 1985). The claimant's testimony of an inability to work during treatment for the work-related injury with corroborating medical evidence constitutes substantial evidence on which to award temporary total disability benefits. See, generally, Patterson v. Engineering Evaluations, 913 S.W.2d 344, 347 (Mo.App. E.D. 1995).

It is found that there is substantial competent evidence establishing the claimant was temporarily totally disabled due to the 1998 bilateral carpal tunnel syndrome occupational disease during the time period in issue; it is found that the substantial competent evidence establishes a temporary total disability period for the claimant from 04/15/98 through 05/23/98, or $54 / 7 weeks. This would be: 54 / 7 weeks x \$ 562.67 / week =\ 3134.88.

It has been determined in this Award that the claimant sustained the following occupational diseases as a result of exposure to a hazard associated with his employment at LaFarge up to the last day of his employment on or about

February 23, 1999: a. bilateral carpal tunnel syndrome diagnosed and surgically treated in 1998; b. muscle strain/temporary exacerbation of his left shoulder osteoarthritis condition up to the last day of his employment at LaFarge on or about February 23, 1999; c. temporary exacerbation of his bilateral thumb/hands/wrists osteoarthritis condition up to the last day of his employment at LaFarge on or about February 23, 1999. It has been determined in this Award that the following problems were not causally linked to the claimant's performance of his work duties at LaFarge that ended on or about February 23, 1999: a. right wrist/hand problems with repeat surgery, September 2001; b. right elbow problems, September 2001; c. bilateral thumb problems resulting in fusion surgeries, 2001-2002; and d. osteoarthritis. The bills admitted into evidence (No. A) pertain to treatment from June 2001 - April 2002 and for conditions found not to be causally related to the claimant's work activities at LaFarge Construction. Consequently, compensation for these bills is denied.

It has been determined in this Award that the claimant sustained the following occupational diseases as a result of exposure to a hazard associated with his employment at LaFarge up to the last day of his employment on or about February 23, 1999: a. bilateral carpal tunnel syndrome diagnosed and surgically treated in 1998; b. muscle strain/temporary exacerbation of his left shoulder osteoarthritis condition up to the last day of his employment at LaFarge on or about February 23, 1999; c. temporary exacerbation of his bilateral thumb/hands/wrists osteoarthritis condition up to the last day of his employment at LaFarge on or about February 23, 1999.

In Sullivan v. Masters Jackson Paving Co.,35 S.W. $3^{\text {rd }} 879$ (Mo.App. S.D. 2001) the Court noted:

"The right to medical aid is a component of the compensation due an injured worker under §287.140.1. Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 277 (Mo.App. S.D. 1996). That statute entitles the worker to medical treatment as may be reasonably required to cure and relieve from the effects of the injury. Id. This means treatment that gives comfort or relieves even though restoration to soundness [a cure] is beyond avail. Id.. Future medical care must, however, flow from the accident before the employer may be held responsible for it. Modlin v. Sun Mark, Inc., 699 S.W. 2d 5, 7 (Mo.App. E.D. 1985)." Sullivan, 35 S.W. $3^{\text {rd }}$ at 888 .

Records from Dr. John Powell, M.D. (No. J) included a 04/15/98 operative report indicating that Dr. Powell performed on Hudson the surgery of bilateral endoscopic carpal tunnel release. St. Charles Orthopedic Surgery records (No. E) reflected postop treatment of Hudson, and by August of 1998, the entries concerned treatment for complaints of pain in the right elbow and left thumb. A 09/27/99 entry stated Hudson was now complaining of some pain in both shoulders and both wrists. There has been no history of fall or trauma recently, he's had some pain with use, was noted. Subsequent records concerned treatment to the shoulders, then in the 05/01/00 entry it was noted that Hudson had complaints of some ill defined wrist and hand pain; it was written that an xray was obtained that showed some degenerative changes between the trapezium and the top of the navicular. "I think the patient is developing some osteoarthritis", the doctor wrote. It was written that if Hudson continued to have difficulty he might benefit by localized fusion. It was further noted that Hudson had had a carpal tunnel release done about a year ago and seemed to have recovered well from that. Dr. Cantrell, who evaluated the claimant on behalf of the employer/insurer, noted that records from August of 1998 indicate that Dr. Powell felt Hudson "was doing well in regard to his carpal tunnel release surgery, but he did have some pain complaints in his right elbow and in his left thumb". (Cantrell Dp. pp. 16-17) Dr. Cantrell noted and discussed Hudson's subsequent treatment to his shoulders through March 2000. Hudson returned to Dr. Powell in May 2000 "with complaints of pain in his wrist and hand and x-rays were done revealing developing osteoarthritis in the trapezium and navicular areas of his wrist", Dr. Cantrell testified. (Cantrell Dp. pg. 22) He was seen by Dr. Keohane for follow-up in May of 2000, Dr. Cantrell said, and "I guess he had mentioned to Dr. Keohane interest in filing complaints in his wrist as being work-related, and Dr. Keohane had referred him back to Dr. Powell in that regard", Dr. Cantrell said. (Cantrell Dp. pg. 23) Dr. Cantrell agreed it was noted at that time that Hudson had recovered from his carpal tunnel surgery. Dr. Cantrell testified:

"I noted that Dr. Volarich had indicated that he felt Mr. Hudson had a poor result regarding his initial endoscopic carpal tunnel release surgery which, and upon my review of the medical records, I did not feel that was actually the case. The medical records clearly showed a very good result following his endoscopic carpal tunnel release with resolutions of his symptoms and his ability to return to his regular duty activities.'

"I further indicated that the carpal tunnel syndrome that he was initially diagnosed with did not appear to be in and of itself a limiting factor for his work abilities due to the fact that he had returned to his regular duty activities." (Cantrell Dp. pp. 32 and 33)

Dr. Cantrell further testified: "What I noted was that the basis of my opinion that his arthritis in his wrist was not workrelated based on the fact that his symptoms progressively worsened after cessation of employments." (Cantrell Dp.

"Yes, he, Mr. Hudson, had undergone several different diagnostics tests and has been shown to have osteoarthritis in his neck, both wrists, his low back, as well as in both of his shoulders. I felt that the generalized nature of his osteoarthritis being in multiple joints and symmetrically present would reflect a diagnosis of general osteoarthritis.

"I believe that some of his work activities while being performed may have served to temporarily exacerbate the symptoms in his wrists and hands, but I did not feel that his work performed between 1997 and 1999 would be considered a causative factor for the development of that condition, no."

"If you are looking and trying to make a determination where an activity at work or outside of work is the cause of or the exacerbating factor for a person's symptoms, then what you would typically expect to see is the symptoms being present at the greatest when someone is physically active doing the purported cause of the symptoms. And then if that activity is then ceased, then you would expect at the very least the symptoms to decrease and possibly resolve if there isn't correlation between the activity and the symptoms. (And that) did not (happen in this case)." (Cantrell Dp. pp. 32, 33, 34-35)

During cross examination, Dr. Cantrell was queried, from Dr. Polineni's and Dr. Powell's record it would appear that a repeat carpal tunnel surgery on the right was due to continuing problems after the 1998 surgery, and Dr. Cantrell responded:

"From my review of the records - I don't know exactly what their opinions were, but from my review of the records, there wasn't a continuation of numbness and tingling. There appeared to be at some later time a recurrence of numbness and tingling in his right arm." (Cantrell Dp. pg. 44)

Dr. Cantrell was queried, from his understanding of Hudson's work conditions, was it possible that Hudson suffered any work injuries after February of 1999. "Obviously, if he's not working, he doesn't suffer any either acute or repetitive work injuries after ceasing employment. (Cantrell Dp. pp. 55-56)

Dr. Volarich, who evaluated the claimant on the claimant's behalf testified as to his opinion regarding any future or additional treatment for Hudson:

"I had several general considerations for treatment. In order to maintain his current state, he will require ongoing care for his pain syndrome using modalities including but not limited to narcotics and non-narcotic medications, including nonsteroidal anti-inflammatory drugs, muscle relaxants, physical therapy, and similar treatments as directed by the current standard of medical practice for the symptomatic relief of his complaints.

"When I saw (Hudson) I did not think additional surgery was indicated." (Volarich Dp. pg. 28)

Considering the evidence as well as the findings as to compensable occupational diseases, it is found that the competent and substantial medical evidence indicates that the claimant was no longer receiving treatment for the compensable 1998 bilateral carpal tunnel syndrome and releases maybe as early as August 1998 and at the latest May of 2000. Dr. Cantrell did not state an opinion that the claimant was in need of future medical care for the conditions found to be compensable occupational disease. It is found that Dr. Volarich's opinion of a need for future medical is speculative in that it is not clear that it is for those condition found to be compensable, as the doctor addressed many of the conditions the claimant has, some of which were not found to be compensable. Consequently, it is found that the competent and substantial evidence does not present a medical opinion of a need for ongoing medical care flowing from the compensable injuries, thus, future medical care is denied.

It has been determined in this Award that the claimant sustained the following occupational diseases as a result of exposure to a hazard associated with his employment at LaFarge up to the last day of his employment on or about February 23, 1999: a. bilateral carpal tunnel syndrome diagnosed and surgically treated in 1998; b. muscle strain/temporary exacerbation of his left shoulder osteoarthritis condition up to the last day of his employment at LaFarge on or about February 23, 1999; c. temporary exacerbation of his bilateral thumb/hands/wrists osteoarthritis condition up to the last day of his employment at LaFarge on or about February 23, 1999.

Reviewing the medical opinions, Dr. Cantrell agreed that he assigned percentages of disability to all of the body parts he had discussed, and testified:

"Five percent at each wrist due to the diagnosis of carpal tunnel syndrome, 10 percent due to the diagnosis of osteoarthritis at each wrist which required intercarpal fusion surgeries, 8 percent at each shoulder due to the diagnosis of AC joint osteoarthritis and secondary impingement, 7 percent in the right arm at the elbow due to the diagnosis of ulnar neuropathy." (Cantrell Dp pp. 36-37)

Dr. Volarich also offered an opinion of any disability he attributed to the conditions Hudson had:

"I had several opinions regarding disabilities leading up to the 6/99 accident while in the employ of LaFarge Quarry, including: A 50\% permanent partial disability of the right upper extremity rated at the carpal/metacarpal joint of the thumb due to aggravation of arthritis that required fusion of the scaphoid, trapezium and trapezoid. This rating accounts for pain, weakness and lost motion in this digit.

Similarly, there is a 50\% permanent partial disability of the left upper extremity rated at the carpal/metacarpal joint of the thumb due to the aggravation of arthritis that required fusion of the scaphoid, trapezium and trapezoid. This rating accounts for ongoing pain, weakness and lost motion in this digit.

There is a 50\% permanent partial disability of the right upper extremity rated at the wrist due to the carpal tunnel syndrome that required two separate surgical repairs. This rating accounts for pain, paresthesias, weakness and lost motion in the dominant hand.

There is a 35\% permanent partial disability of the left upper extremity at the wrist due to the carpal tunnel syndrome that required two separate surgical repairs. This rating accounts for pain, paresthesias and weakness as well as lost motion in non-dominant hand.

There is a 35\% permanent partial disability of the right upper extremity rated at the shoulder due to the impingement syndrome that required open subacromial decompression. This rating accounts for pain, lost motion, weakness and crepitus in the dominant arm.

There is a 35\% permanent partial disability of the left upper extremity at the shoulder due to the impingement syndrome that required open subacromial decompression. This rating accounts for pain, lost motion and weakness, as well as crepitus in the non-dominant arm.

In addition, I thought there was a 25\% permanent partial disability of the body as a whole that I offered as a multiplicity factor due to the combination of injuries to the upper extremities.

I think I misspoke a minute ago. In the left hand he did not have two carpal tunnel releases. It was just one (single release)." (Volarich Dp. pp. 20-22)

The doctor discussed the disabilities he had assessed as to pre-existing medical conditions:

"I have several opinions there, as well. Pertaining to his pre-existing medical conditions, it's my opinion that there was a 15 % permanent partial disability of each upper extremity at the shoulder due to the chronic bursitis causing ongoing pain and contributing to lost motion and weakness leading up to June of '99.

There was a 15 % permanent partial disability of the right upper extremity at the elbow due to the dislocation that caused recurrent soreness and stiffness at the elbow leading up to June of '99.

There was a 25 % permanent partial disability of the body as a whole rated at the cervical spine due to his chronic cervical syndrome, including disc bulging at C5-6 and C6-7, as well as the degenerative disc disease and degenerative joint disease, all of which contributed to pain, loss motion and headaches leading up to June of '99.

There was a 35 % permanent partial disability of the body as a whole rated at the central nervous system due to the acoustic neuroma that required extensive surgical resection, as well as the hydrocephalus that required two separate repairs and shunt placements. This rating accounts for ongoing headaches, loss of hearing, disequilibrium and tinnitus leading up to June of '99.

There is a 30 % permanent partial disability of the right lower extremity at the knee due to the septic bursitis that required open repair. This rating accounts for ongoing pain, weakness and crepitus in the right lower extremity.

Disability from his hernias was not identified since he was asymptomatic after repairs." (Volarich Dp. pp. 22-24)

The doctor gave his opinion of whether or not the primary injuries and the pre-existing injuries or conditions he had diagnosed were obstacles or hindrances to Hudson's employment or reemployment. "In my opinion they were obstacles to employment or reemployment." (Volarich Dp. pg. 46) (Ruling: Objection on grounds of - calls for a vocational opinion - is overruled. Volarich Dp. pg. 46) Dr. Volarich was asked his opinion as to the effect of the combination of the pre-existing conditions and the conditions he attributed to the primary claim against the employer: "In my opinion the combination of the disabilities creates a substantially greater disability than the simple sum or total of each separate injury or illness, and a loading factor should be added." (Volarich Dp. pg. 25)

It is found, considering the medical opinions as well as the claimant's testimony, that there is competent and substantial evidence establishing permanent partial disability as a result of the compensable occupational disease of bilateral carpal tunnel syndrome diagnosed and surgically treated in 1998. It is found that this evidence supports an award for the occupational disease of 17 % permanent partial disability at each wrist. This would be: [( $17 \% \times 175 weeks) x 2=59.5$ weeks] $x \$ 294.73 / week =\ 17,536.44.

There is evidence that the claimant suffered scarring, or disfigurement, as a result of treatment for the bilateral carpal tunnel syndrome (i.e. Dr. Volarich testified: "Over the right wrist there was a 6-centimeter scar from open carpal tunnel release, in addition to the 1-centimeter endoscopic repair. There was also a 1-centimeter endoscopic scar over the left wrist from carpal tunnel release." (Volarich Dp. pg. 15). Section 287.190.4 states, in part: "If an employee is seriously and permanently disfigured about the head, neck, hands or arms, the division or commission may allow such additional sum for the compensation on account thereof as it may deem just, but the sum shall not exceed forty weeks of compensation." Considering the evidence, it is found that it supports as additional award of 2 weeks for disfigurement. This would be: 2 weeks $x \$ 294.73 / week =\ 589.46.

It is found that Dr. Volarich's opinion of disability for the left shoulder "due to the chronic bursitis causing ongoing pain and contributing to lost motion and weakness leading up to June of '99" is probative on the extent, if any, of disability for symptoms in the claimant's left shoulder found to be compensable of - muscle strain/temporary exacerbation of the left shoulder osteoarthritis condition up to the last day of his employment at LaFarge. (Dr. Cantrell acknowledged that the claimant's work activities at LaFarge resulted in a diagnosis of muscle strain in 1997 and 1998 and "temporarily exacerbated the symptoms" of general osteoarthritis, but the doctor assessed disability to the shoulders for conditions he stated were diagnosed after the claimant left employment with LaFarge). It is found that the evidence supports an award of 9 % permanent partial disability of the left shoulder for the muscle strain/exacerbation of the left shoulder condition up to the claimant's last day of employment with LaFarge. This would be: $(9 \% \times 232 weeks =20.88 weeks; 20.88 weeks x \$ 294.73=\ 6153.96.

It is found that both opining doctor's opinions as to the thumbs includes conditions determined to be conditions that developed subsequent to the claimant's exposure to hazards at his employment at LaFarge and thus not compensable conditions. "While proof of cause of injury is sufficiently made on reasonable probability (Smith v. Terminal Transfer Company, 372 S.W.2d 659, 664(7) (Mo.App.1963)), proof of permanency of injury requires reasonable certainty. Davis v. Brezner, 380 S.W.2d 523, 588(6-- 9)." Griggs v. A. B. Chance Co., 503 S.W.2d 697, 703 (Mo.App. 1973). When there is evidence of disability for both a preexisting injury and a subsequent injury to the same part of the body and only one of which is compensable, then there must be expert opinion as to extent of each disability. See, generally, Miller v. Wefelmeyer, 890 S.w.2d 372 (Mo.App. E.D. 1994). It is found that proof of any permanent disability for the compensable condition in this case of - temporary exacerbation of his bilateral thumb/hands/wrists osteoarthritis condition up to the last day of his employment at LaFarge on or about February 23, 1999 - would be speculative, and thus cannot be determined.

It is found that in Eagle v. City of St. James, 669 S.W.2d 36, 43 (Mo. App. 1984) the Court held that the language of Section 287.190.3 RSMo -- "For permanent injuries other than those specified in the schedule of losses..." -allowed a special or additional allowance for cumulative disabilities resulting from a multiplicity of injuries. Dr. Volarich specifically noted that "the combination of the disabilities creates a substantially greater disability than the simple sum or total of each separate injury or illness, and a loading factor should be added". It is found that there is competent and substantial evidence, including the claimant's testimony, establishing a synergistic effect due to the compensable injuries; it is found that the claimant is entitled to additional compensation as follows: (bilateral carpal tunnel syndrome: 59.5 weeks) + (left shoulder injury: 17.4 weeks) x 10\% load = 7.69 weeks; 7.69 weeks x \$294.73/week = \$2,266.47.

Second Injury Fund liability is based on the effect of the combination of the disability from a subsequent, work related injury with a preexisting disability. See, Section 287.220 RSMo 1999. In its Memorandum of Law, the Second Injury Fund notes:

"The nature and extent of the preexisting disabilities are determined as of the date of the primary injury. Garcia v. St. Louis County, 916 S.W.2d 263, 276 (Mo.App.1995); Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 367 (Mo.App. 1992); Anderson v. Emerson Elec. Co., 698 S.W.2d 574, 577 (Mo.App 1985). The Second Injury Fund is not liable for any post accident worsening of an employee's preexisting disabilities that are not caused or aggravated by the last work-related injury or for any conditions that arise after the last work-related

injury. Garcia v. St. Louis County, supra; Frazier v. Treasurer of Missouri, 869 S.W.2d 152 (Mo. App. 1994); Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789 (Mo.App. 1992)."

In this case, the Claim For Compensation forms filed by the claimant were offered into evidence without objection (SIF Exh. Roman Numeral I); and the claimant, in his Memorandum of Law, notes that the Claim and Amended Claims, in succession reflect the following - a. date of occurrence as " $5 / 00$ " with no designation if an accident or occupational disease; b. date of occurrence of "through 2/24/99" and a designation of an occupational disease; and c. date of occurrence of an occupational disease of "Through June, 1999". Since the starting point for any liability against the Second Injury Fund is with the subsequent work related injury in order to then consider any preexisting disability, a date of injury for the subsequent work related injury must be determined.

It was agreed and stipulated to by the parties that the claimant, James A. Hudson, was working for the LaFarge Construction Corporation on and up to February 23, 1999 and remained in LaFarge Construction's employment up to June 1, 1999. The claimant testified that from 1997 on, his duties at LaFarge involved only shoveling the rock. From 1997 on, the number of hours a day I would do the job of shoveling was anywhere from eight to twelve, the claimant stated, just depended how much overtime there was. The claimant testified that he had stopped working at LaFarge in mid-February, 1999. Then I went on six months family leave, the claimant said, and agreed that he was not paid during that time. The claimant noted that Hudson was not terminated until June of 1999. Hudson agreed that while on family leave he had several surgeries that had to do with his ears, an acoustic neuroma and the hydrocephalus. He agreed that there were no surgeries during that time for his hands, wrists, elbows, shoulders, neck, et cetera. I did have the knee worked on, Hudson added.

It was noted during cross examination of Dr. Volarich that the doctor had indicated in his report the date of injury as "Up to June of 1999", and Dr. Volarich was queried if Hudson had relayed a specific date when he was injured. The doctor answered: "No. This is up to how long he was employed, I believe, at LaFarge Quarry. This was not a one-time incident for the upper extremity injuries." (Volarich Dp. pg. 33) Stating that he believed it was correct that the last time Hudson had actually worked was in February of 1999, Dr. Volarich further testified: "I think that's what he told me. But again, it was my understanding he was still employed until June." (Volarich Dp. pg. 33) Dr. Volarich gave more testimony in regards to the development of Hudson's problems:

"I don't believe - well, again, there was a developmental thing for several years leading up to June of '99. So if we can phrase that to say that up to the development of symptoms referable to the 6/99 claim, all of these things are from these injuries to the upper extremities and the current claim here.

I don't believe there was anything before let's say five or ten years ago that would relate to the kind of problems he reported to me here.

"Because this is a repetitive trauma claim, the symptoms don't develop overnight. It takes a period of time. In this case I think it was several years that they were in the making, because of the severity of the problems.

The aggravation of the arthritis, for example, in the thumbs, the entrapments, the impingement in the shoulders and so forth all take several years to develop. So to say were they present before June of 99, yes, they were in there developmental stage for those three or four years up to that time.

If we go back and say had it not been for the repetitive trauma to the wrist and hands would he have those symptoms from some other problem before this? No, he didn't." (Volarich Dp. pp. 34-35)

Dr. Cantrell agreed that it was his understanding Hudson had stopped working at LaFarge Construction Company in February of 1999. On cross examination by the Second Injury Fund Dr. Cantrell was queried, from his understanding of Hudson's work conditions was it possible that Hudson suffered any work injuries after February of 1999. "Obviously, if he's not working, he doesn't suffer any either acute or repetitive work injuries after ceasing employment. (Cantrell Dp. pp. 55-56)

The claimant, in his Memorandum of Law wrote the following:

"By the Employee's testimony, he last worked in his regular job for the Employer on February 23, 1999, but was employed by the Employer until sometime in June, 1999. For the period between February 24, 1999 and June, 1999, the Employee was off of work under the Family Medical Leave Act (FMLA) and his employment with the Employer was terminated in June, 1999.

In claims such as this, we look to the "period of exposure" to repetitive motion to fix the date. Bull vs. Excel Corp., 985 S.W.2d 411 (Mo.App. 1999)]. In this case, the Employee was exposed to repetitive motion in his occupation through February 23, 1999."

It is found that the substantial and competent evidence establishes, as noted by the claimant in his memorandum, that the claimant was exposed to the hazards associated with performing his work duties at LaFarge up to the last day of that exposure, or up to or on about February 23, 1999. It is found that February 23, 1999, the last day of exposure for alleged occupational disease purposes, is the date of injury.

Concerning Second Injury Fund liability, the Court in noted the following:

"In order to recover from the Fund, a claimant must first prove a pre-existing permanent partial disability whether from compensable injury or otherwise, pursuant to § 287.220.1. The permanent disability pre-dating the injury in question must "exist at the time the work-related injury was sustained and be of such seriousness as to constitute a hindrance or obstacle to employment or re-employment should the employee become unemployed." Messex v. Sachs Elec. Co., 989 S.W.2d 206, 214 (Mo.App.1999) $\qquad$

"Second, 'a preexisting disability must combine with a disability from a subsequent injury in one of two ways: (1) the two disabilities combined result in a greater overall disability than that which would have resulted from the new injury alone and of itself; or (2) the preexisting disability combined with the disability from the subsequent injury to create permanent total disability.' Reese v. Gary \& Roger Link, Inc., 5 S.W.3d 522, 526 (Mo.App.1999) (citation omitted). There are no specific requirements when the pre-existing disability and the primary injury combine to cause permanent total disability. Id." Karoutzos v. Treasurer of State, 55 S.W.3d 493, 498 (Mo.App. W.D.,2001) ${ }^{[3]}$

It has been determined in this Award that the claimant sustained the following occupational diseases as a result of exposure to a hazard associated with his employment at LaFarge up to the last day of his employment on or about February 23, 1999: a. bilateral carpal tunnel syndrome diagnosed and surgically treated in 1998; b. muscle strain/temporary exacerbation of his left shoulder osteoarthritis condition up to the last day of his employment at LaFarge on or about February 23, 1999; c. temporary exacerbation of his bilateral thumb/hands/wrists osteoarthritis condition up to the last day of his employment at LaFarge on or about February 23, 1999. The evidence reveals that the claimant suffered from additional physical and psychological problems prior to and subsequent to the compensable occupational diseases. In its Memorandum of Law, the Second Injury Fund notes:

"The Second Injury Fund is not liable for any post accident worsening of an employee's preexisting disabilities that are not caused or aggravated by the work-related injury or for any conditions that arise after the last workrelated injury. Garcia v. St. Louis County, (916 S.W.2d 263, 267 (Mo.App. 1995)); Frazier v. Treasurer of Missouri, 869 S.W.2d 152 (Mo.App 1994); Lawrence v. Joplin R-V-III School Dist., 834 S.W.2d 789 (Mo.App. 1992)."

In this case, Dr. Cantrell offered opinions on extent of permanent disability for conditions others than those found to be compensable injuries. Dr. Cantrell opined:

"Five percent at each wrist due to the diagnosis of carpal tunnel syndrome, 10 percent due to the diagnosis of osteoarthritis at each wrist which required intercarpal fusion surgeries, 8 percent at each shoulder due to the diagnosis of AC joint osteoarthritis and secondary impingement, 7 percent in the right arm at the elbow due to the diagnosis of ulnar neuropathy." (Cantrell Dp pp. 36-37)

Dr. Cantrell testified that the conditions for which he had assessed permanent disability, other than for the 1998 bilateral carpal tunnel and releases, were conditions he felt developed subsequent to Hudson's employment at LaFarge and not related to Hudson's employment at LaFarge.

Dr. Cantrell acknowledged that the claimant had preexisting conditions. Dr. Cantrell agreed that a February 15, 1999 MRI of the brain revealed a cerebellar pontine angle tumor on the left with features characteristic of an acoustic neuroma, and also ventricular dilatation consistent with communicating hydrocephalus. When queried if he would agree that these findings were present on and prior to February 15, 1999, Dr. Cantrell answered - "Yes". (Cantrell Dp. pg 51) The doctor agreed that tinnitus is sometimes a symptom of an acoustic neuroma or hydrocephalus; the doctor further agreed that vertigo and also headaches can be associated with an acoustic neuroma. Dr. Cantrell agreed that he had noted several other pre-existing problems and conditions for Hudson, including - coronary artery disease, hypertension, cardiac arrhythmia, restless leg syndrome, abnormal sleep patterns with sleep studies done in 1995, and depression. "I believe

so, yes", (Hudson had documentation of degeneration in his low back prior to February of 1999), Dr. Cantrell stated. (Cantrell Dp. pg. 53)

Dr. Cantrell testified as to his opinion on the claimant's ability to work:

"I felt that due to his complicated medical history, which included a combination of both neurologic pathology and muscloskeletal problems, that he was not capable of returning to his regular duty activities. It was my opinions that the carpal tunnel syndrome with which he was diagnosed and for which he underwent endoscopic and open carpal tunnel release surgeries was causally related to his occupational activities." (Cantrell Dp. pg. 30)

Dr. Cantrell also stated during his testimony:

"I felt that due to multiple medical conditions, he was not capable of gainful employment. I felt that the proximate cause for his disability was that of the acoustic neuroma for which he suffered some complications thereafter.

"I further indicated that the carpal tunnel syndrome that he was initially diagnosed with did not appear to be in and of itself a limiting factor for his work abilities due to the fact that he had returned to his regular duty activities." (Cantrell Dp. pg. 33)

The doctor noted that in February 1999 Hudson was ultimately diagnosed with an acoustic neuroma for which he had undergone surgery in February 1999; Dr. Cantrell testified about what Hudson had expressed to him at the exam about his feelings with regard to his being able to go back to work after the February 1999 surgery:

"He knew that he was going to lose hearing in his left ear because of the nature of the surgery. What he experienced after surgery was a loss of balance and severe headaches after the surgery. At that time, he had reported to me that he knew he was not going to go back to work." (Cantrell Dp. pg. 7)

Dr. Cantrell agreed that it was his information that Hudson has never returned to work in any capacity for any employer since he had the neuroma surgery in February of 1999. The doctor was asked if the neuroma was related to Hudson's work, and Dr. Cantrell answered - "No". (Cantrell Dp. pg. 56) During cross examination by the Second Injury Fund, Dr. Cantrell was queried about his statements in his report - based on multiple things Hudson is not capable of gainful employment, and - the proximate cause for the disability is the acoustic neuroma and the complications; the doctor was asked if he was saying the acoustic neuroma and the sequelae from the treatment in and of itself disabled Hudson. Noting that he was seeing Hudson after Hudson had also undergone a two level cervical fusion, bilateral wrist fusions and bilateral shoulder accommodates, Dr. Cantrell testified:

"Honestly, to answer that would mean to probably have him prior to having undergone all those additional surgeries have him undergo a functional evaluation where we could assess his balance and impairment of the balance over a period of time. Because again, I think from what I understand, his impairment imbalance was worse immediately after the surgery, but has improved since surgery. And so I don't know that I have enough information, honestly, to answer that question." (Cantrell Dp. pg. 59)

The doctor was asked, looking at the entire picture of Hudson's health and the various condition that he found and testified about would it be fair to say that the bilateral carpal tunnel which was originally treated in either 1997 but operated on in 1998 a fairly minor component of his current picture of disability. Dr. Cantrell answered:

"Well, you could look at tnat one of several ways. Somebody could have two diagnoses that both contribute to a disability, one minor, one major; or you can look at a person like Mr. Hudson in which he has multiple medical and orthopedic diagnoses. So if you just look at the sheer number of conditions that he has been treated for and has been operated for, it is overall a minor condition, yes. But just from the sheer number of conditions which he suffered from and is treated for." (Cantrell Dp. pg. 60)

Dr. Volarich was the only doctor to assess permanent disability for any preexisting conditions, testifying:

"I have several opinions there, as well. Pertaining to his pre-existing medical conditions, it's my opinion that there was a 15 % permanent partial disability of each upper extremity at the shoulder due to the chronic bursitis causing ongoing pain and contributing to lost motion and weakness leading up to June of '99.

There was a 15 % permanent partial disability of the right upper extremity at the elbow due to the dislocation that caused recurrent soreness and stiffness at the elbow leading up to June of '99.

There was a 25 % permanent partial disability of the body as a whole rated at the cervical spine due to his

chronic cervical syndrome, including disc bulging at C5-6 and C6-7, as well as the degenerative disc disease and degenerative joint disease, all of which contributed to pain, loss motion and headaches leading up to June of '99.

There was a 35 % permanent partial disability of the body as a whole rated at the central nervous system due to the acoustic neuroma that required extensive surgical resection, as well as the hydrocephalus that required two separate repairs and shunt placements. This rating accounts for ongoing headaches, loss of hearing, disequilibrium and tinnitus leading up to June of '99.

There is a 30 % permanent partial disability of the right lower extremity at the knee due to the septic bursitis that required open repair. This rating accounts for ongoing pain, weakness and crepitus in the right lower extremity.

Disability from his hernias was not identified since he was asymptomatic after repairs." (Volarich Dp. pp. 22-24)

The doctor gave his opinion of whether or not the primary injuries and the pre-existing injuries or conditions he had diagnosed were obstacles or hindrances to Hudson's employment or reemployment. "In my opinion they were obstacles to employment or reemployment." (Volarich Dp. pg. 46) Dr. Volarich further opined as to the effect of the combination of the pre-existing conditions and the conditions he attributed to the primary claim against the employer: "In my opinions the combination of the disabilities creates a substantially greater disability than the simple sum or total of each separate injury or illness, and a loading factor should be added." (Volarich Dp. pg. 25) It was noted that Dr. Volarich, in his report in the section entitled "Past Medical Background" he had indicated Hudson had a history for depression, high cholesterol and hypertension, but the doctor did not rate these conditions. "I did not. I don't believe that the high cholesterol or hypertension caused him any difficulties at work. I would defer to psychiatry as far as his depression." (Volarich Dp. pg. 39) Dr. Volarich agreed that Hudson had subsequent conditions and diagnoses that he felt were not pre-existing or related to his employment at LaFarge: a. Ulnar neuropathy of the right elbow, and b. Cervical fusion.

Dr. Volarich testified as to his opinion of whether or not Hudson was capable of engaging in any substantial gainful activity or employment:

"It's my opinion that he's unable to engage in any substantial gainful activity, nor could he be expected to perform in an ongoing working capacity in the future.

It's my opinion he could not be reasonably expected to perform on an ongoing basis eight hours a day, five days a week out of the work year. It's also my opinion that he is unable to continue in his line of employment that he last held as a laborer and a driver for the LaFarge Quarry, not could he be expected to perform and work on a full-time basis in a similar job.

Based on my medical assessment alone, it's my opinion that Mr. Hudson is permanently and totally disabled and unable to return to the open labor market as a direct result to of the injury leading up to 6/99 in combination with his pre-existing medical conditions. (sic)

He was totally disabled before the development of the (right) ${ }^{[4]}$ elbow ulnar neuropathy or the need for spine fusion." (Volarich Dp. pp. 26-27)

James England, rehabilitation counselor, testified by deposition on behalf of the claimant. (No. B) Medical records from 1989 through 2002 reviewed as well as the report of Dr. David Volarich were discussed by England. England noted that he had tested Hudson, and discussed the results. England testified at to his opinion on whether Hudson was capable of sustaining employment on a regular basis: "Well, I felt with the combination of the various medical problems that he had. I didn't believe that there would be any kind of work that he could sustain and perform on a consistent day-to-day basis." (England Dp. pp. 42-43) The doctor testified as to his opinion of whether Hudson is capable of even sedentary work:

"I don't believe that he is because I think sedentary employment typi - even sedentary employment which is the easiest form of work, normally involves communication. This man has a lot of problems hearing. He also has trouble using his upper extremities in repetitive fashion and I think someone who has trouble with communication and with using the upper extremities in a repetitive manner is not really going to be able to do sedentary work that I'm aware of." (England Dp. pg. 43)

England was asked if Hudson would be a viable candidate for vocational rehabilitation, and he answered: "I don't believe that somebody with - at his age, with the combination of problems that he has, would really benefit from any kind of vocational rehabilitation." (England Dp. pg. 43) England was asked his opinion as to whether Hudson is employable in the open and competitive labor market. "I don't believe that he is", England answered. (England Dp. pg. 44)

On cross examination by the employer/insurer, England noted that Hudson had last worked about the end of February 1999. England noted that based on that, he "would say certainly there were a number of problems ongoing before the - the primary injury". (England Dp. pg. 48) England agreed that the medical records revealed prior problems with such ailments as stress beginning in 1994 for which Hudson was still being treated with medication up to the time he saw Hudson, problems with his cervical spine dating back to at least 1995, problems with headaches for which he was still taking medications when he saw Hudson, first records of treatment for hearing in 1995 though Hudson had relayed that his hearing problems began in 1979.

England agreed, during cross examination by the employer/insurer, that he had testified academics would not prevent Hudson from alternative work, so it was his conclusion Hudson was not capable of competing in the open labor market based primarily on functional restrictions. England was asked if the functional restrictions were related to a combination effect and not just hand or upper extremity problems, and England answered:

"I think it's a combination of the hand and the upper extremity problems combined with the back problems combined with the communication problems that he has because of the hearing loss. I mean there are a number of different things. It's not just one condition or another." (England Dp. pg. 53)

On cross examination by the Second Injury Fund, England agreed that he is not a doctor and is not making any judgments as to the causation of Hudson's medical problems. When queried, wasn't it correct that his opinions were based on Hudson as he found him in October of 2003, England responded - "Correct". (England Dp. pg. 57) When further queried if Hudson's hearing loss and communication problems prevent sedentary type work, England stated: "Well, I mean they - they certainly combining with - with upper extremity problems, they basically knock out I think what what would otherwise be left as far as sedentary work." (England Dp. pg. 58)

On redirect, England agreed that hearing loss was an issue, but it was a combination of things when talking about other jobs (besides those that would require hearing). Agreeing that he was talking about problems in other jobs because of problems with his back, problems with vertigo and other things, England testified: "This guy's got a lot of different problems and I looked at him as a whole, not just trying to break it up into only this or only that. He's got a lot of different problems." (England Dp. pp. 63-64)

It is found, firstly, that there is on medical opinion indicating that the claimant is permanently and totally disabled as a result of the compensable occupational disease/conditions and disabilities of: a. bilateral carpal tunnel syndrome diagnosed and surgically treated in 1998; b. muscle strain/temporary exacerbation of his left shoulder osteoarthritis condition up to the last day of his employment at LaFarge on or about February 23, 1999; c. temporary exacerbation of his bilateral thumb/hands/wrists osteoarthritis condition up to the last day of his employment at LaFarge on or about February 23, 1999. It is found that Dr. Volarich's opinion that the claimant is permanently and totally disabled is not probative in that that opinion encompasses conditions found to have developed or worsen subsequent to the claimant's exposure to hazards associated with his work at LaFarge (or date of injury) up to or on February 23, 1999. It is found that the vocational opinion that the claimant is unable to compete in the open labor market is based in part on a condition (acoustic neuroma and complications such as loss of hearing in the left ear) found not to be a work related condition and that worsened subsequent to the claimant's employment, as well as based on other conditions found to have developed or worsened subsequent to the claimant's employment and exposure to hazards associated with that employment at LaFarge. As the competent and substantial evidence does not establish that the claimant is permanently and totally disabled due to the compensable injury/condition combined with preexisting disability, permanent total disability liability against the Second Injury Fund cannot be found.

It is further found that the evidence does not support Second Injury Fund liability for permanent partial disability due to a combination of the compensable occupational disease of bilateral carpal tunnel syndrome diagnosed and surgically treated in 1998 and resulting disability (which reaches the threshold requirement of Section 287.220 RSMo 1999) with any of the alleged preexisting conditions for which preexisting disability was assessed, for the following reasons:

A. Preexisting right shoulder. It is found that Dr. Volarich's opinion on preexisting disability is speculative in that there is no medical evidence of prior right shoulder problems, injury or treatment to support an opinion of preexisting disability. The first medical records indicating problems in the right shoulder were St. Charles Orthopedic Surgery Associate/Dr. Keohane records (No. E) which in a 09/27/99 entry noted - now complaining of some pain in both shoulders and both wrists; that has been no history of fall or trauma recently, he's had some pain with use. (It should be noted that it has been found in this Award that the competent evidence established the condition of the left shoulder was

a compensable injury of - muscle strain/temporary exacerbation of his left shoulder osteoarthritis condition up to the last day of his employment at LaFarge on or about February 23, 1999)

B. Preexisting right elbow. It is found that Dr. Volarich's opinion on preexisting disability is speculative in that the doctor admits that he did not see any medical records concerning a prior dislocation, and in that there are no treatment records documenting prior right elbow problems. Dr. Volarich agreed, during direct examination, that Hudson had subsequent conditions and diagnoses that he felt were not pre-existing nor related to his employment at LaFarge, and one was - ulnar neuropathy of the right elbow. Dr. Cantrell testified that in August 2000 Hudson presented to Dr. Powell with complaints of numbness and tingling similar to those he had in the past with his carpal tunnel syndrome, Dr. Cantrell stated. "Although Dr. Powell at that time did not note any physical finding on examination but did recommend nerve conduction tests", the doctor said. (Cantrell Dp. pg. 24) Hudson was seen in September 2000, it was noted, and Dr. Cantrell testified: "He had undergone in the interim electrodiagnostic tests which revealed evidence of a possible neuropathy in addition to a possible ulnar nerve entrapment at the elbow and bilateral carpal canal cortisone injections were provided." (Cantrell Dp. pg. 24) Dr. Cantrell commented about Dr. Schlafly's examination of Hudson in July of 2001:

"He noted that there was possible evidence of cubital tunnel syndrome, although he noted that problem apparently did not arise until after he stopped working and could not establish a causal relationship between the cubital tunnel syndrome and his employment; and therefore, could not make any definite recommendations for cubital tunnel surgery. He did feel the carpal tunnel syndrome was caused by his work requirements and provided disability rating in that regard. He further indicated that it was not clear whether he would benefit from any further carpal tunnel surgery given the mixture of what appeared to be both arthritic and nerve problems affecting his hands." (Cantrell Dp. pg. 27)

"I did not find evidence to support a causal connection between his diagnosis of ulnar neuropathy at the right elbow and his occupational activities.

"I base that opinion on the fact the electrodiagnostic tests performed preceding his first endoscopic carpal tunnel release did not show any evidence of ulnar neuropathy at the elbow and there were no subsequent complaints during the course of his employment reflecting ulnar neuropathy syndrome." (Cantrell Dp. pg. 31)

C. Preexisting acoustic neuroma. It is found that Dr. Volarich's opinion as to preexisting disability is not competent in that the evidence reveals that certain physical problems as a result of this condition existed prior to the date of the compensable injury and worsened subsequent to the compensable injury, and Dr. Volarich's stated opinion encompasses all; additionally, Dr. Volarich's opinion encompasses the treatment (surgery) for this condition which occurred subsequent to the compensable injury, and the evidence reveals that this condition was not caused or worsened by the compensable injury.

D. Preexisting right knee. It is found that Dr. Volarich's opinion of preexisting disability due to "septic bursitis that required open repair" is not supported by the medical evidence and thus not probative. The medical evidence reveals in the St. Charles Orthopedic Surgery Associates/Dr. Keohanerecord (No. E), entry of 03/15/99, it was noted that Hudson had developed pain and swelling in the front of the right knee. The March 18, 1999 entry stated that Hudson presented with pain and swelling in the right leg; it was recommended that Hudson be hospitalized. It was written in the 03/29/99 entry that Hudson was about 1 week post treatment of aseptic prepatellar bursa; it was noted that Hudson had a complicated problem in that he had had an acoustic neuroma and apparently needed an intercerebral shunt placed. Records from Jefferson Barracks Veterans Administration Medical Center (No. M) began with a 06/08/99 entry which noted that Hudson had had an acoustic neuroma removed, then persistent headache found to be hydrocephalis and shunt was put in, knee got bad and had surgery for that (knee bursectomy), shunt taken out then put back in, then had encephalitis, now shunt is back in and now has trouble with balance and headaches; it was noted that the shunt was working better now, and that Hudson was depressed and Prozac would be increased.

E. Preexisting cervical spine condition. It is found that the basis for Dr. Volarich's stated opinion of preexisting cervical spine disability is not supported by the medical evidence in that one basis for his opinion - disc bulging at C5-6 and C6-7 - was not diagnosed until subsequent to the compensable injury, and thus the doctor's opinion is not found to be controlling on the extent of preexisting disability. The medical evidence indicates prior treatment to cervical spine prior to the compensable injury in the records from BJC Aid Station (No. K); the BJC Aid Station record consisted of two Work Release Forms dated February 20, 1995 and March 3, 1995. The 2/20/95 form noted a diagnosis of - contusion cervical spine, cervical strain; the form indicated that Hudson was capable of regular duty as of 2/20/95, and no restrictions were noted. The 3/3/95 form noted a diagnosis of - cervical strain and degenerative joint disease cervical spine; the form

indicated that Hudson was capable of regular duty as of 3/6/95; no restrictions were noted, and it was indicated that no follow-up appointments were scheduled. Dr. Cantrell testified that in May 1999 Hudson had an MRI scan because of neck pain, "(A)nd that showed an annular disk bulge posteriorly with osteophytic ridging without spinal cord impingement at the C5-6 and the C6-7 levels with lateral spurring and foraminal encroachment.....Those findings could be best summed as degenerative changes at the C5-6 and C6-7 levels...". (Cantrell Dp. pg. 19)

The claimant testified about his preexisting neck problems. I started having problems with neck in probably 1995 or there about, Hudson stated. Testifying as to what caused these symptoms to start, Hudson testified I was walking up a walkway on the crushing plant in Defiance and I stepped up on the limestone that was piled up and I didn't see a beam above my head, and I went straight up, just like you would be climbing a step. Put all the pressure up and it brought me back down on my knees, he stated. Hudson agreed that he struck the beam with his head, with a hardhat on. After this accident I went to the Aid Station for treatment, Hudson said, and they gave me medicine, muscle relaxants. I missed four or five weeks from work, but it wasn't -- that's about the time I had the major problem with depression and Dr. Farrell put me out. Missing time from after the 1995 neck injury was all tied -- all happened together, the claimant said. I went to Aid Station, and I was gonna be off but at the same time I had trouble with depression, and Dr. Farrell put me off; and Aid Station said there was no reason, they wasn't going to put me off on workman's comp then; I collected it on disability insurance that I got with the union, Hudson stated. The symptoms I had in my neck after the 1995 accident was that my neck hurt turning it right and left, the claimant said. The treatment I received at the Aid Station did not help a lot, he said. I did not have any other treatment in that general time frame for the neck, the claimant said. I was still able to do my job at LaFarge despite the symptoms I had in my neck after the 1995 injury, Hudson stated, though he admitted that his neck would get tired doing the job after the injury, I would have to look in the mirror. It is found, based on the evidence, including the claimant's testimony, that there is substantial and competent evidence establishing permanent partial disability in the cervical spine prior to the compensable injury, and this evidence supports a finding of 7 % permanent partial disability to the cervical spine. It is found that as this preexisting disability does not meet the threshold set for Second Injury Fund permanent partial disability liability, compensation is denied.

For the above reasons, Second Injury Fund liability is denied.

James A. Hudson, the claimant, testified that he is 61 years old and was born on 10/2/43. I am married, Hudson said, and my wife's name is Mary. Other than me and my wife there are no other persons dependent upon me financially for income, he said. My highest level of education is high school, the claimant stated, and I graduated from high school. Since graduating from high school i have not had any vocational or trade school training.

I am not currently employed, Hudson said. My last employer was LaFarge Construction Materials; I guess my employment relationship ended with LaFarge in June of 1999, Hudson testified. Explaining why his employment relationship with LaFarge ended at that time, Hudson testified it was because I had several operations, and couldn't no longer perform the job.

The business LaFarge is engaged in is they provide crushed aggregate stone, and, at that time concrete for RediMix., Hudson testified. They had a quarry operation in Defiance and one at the facility where I was employed which was St. Charles County, where I last worked, he said.

I first started working for LaFarge in October of 1970, the claimant said. When I was first hired my main job duty was to drive a dump truck and deliver material, he said, and I also worked on trucks and greased them and helped do repairs on them. These were not the same types of duties I was required to do when my employment with LaFarge ended, he said, basically I was shoveling underneath the crushing plant to keep the belts cleaned so the plant would run, and occasionally drove a water truck to keep the dust down. He was asked how long would he estimate that he had been performing the duties of driving a water truck occasionally and doing the shoveling job. 1990 was when they got rid of the last road truck, Hudson answered, I went over to the quarry side in 1990 and started from then on, I did some shoveling and drove a uke (phonetically) out of the old plant, and then when we went down -- when they put in the conveyor plant I shoveled underneath there to keep rock out. The claimant was asked if at any time during his employment with LaFarge, between 1990 and 1999, was there ever a period when his duties involved only shoveling the rock? It been from 1997 on, Hudson answered. From 1997 on, the number of hours a day I would do the job of shoveling was anywhere from eight to twelve, the claimant answered, just depended how much overtime there was, how long they wanted to crush. During that period of time of 1997 on, most time it was five and half or six days a week that I

would be required to work, Hudson said.

Hudson testified about what a typical day would be like for him during the period of 1997 on when he was doing the shoveling. Well, the width of the plant was eight foot and I had to get back underneath the belts, and most of them were no more than two foot off the ground, he said, and you had to keep the material out. I had to shovel it and drag it and throw it out, Hudson testified, and then they would come a long with a high lift or Bobcat and move it; and sometimes if the Bobcat was done you had to stand up on the rock as high as about three or four feet, and try to shovel it out. Explaining further what his job duties were, Hudson testified basically I had to shovel, continually do this, and I used a deal that looked like a -- it was about 30 inches long with a handle on it to drag 'cause I had to reach underneath and bring out a lot that I couldn't get with the shovel. I did this all day long, Hudson stated. Some of the places were eight, ten inches off the ground, so I mean, that was sometimes fun, he said. And then they had one place where they had a tunnel that trucks drove over to get in the back part of the quarry; I had to go in the tunnel and shovel the material out from underneath there, he said. It built up, Hudson stated, and I'd have to do this about once a month. The purpose of my shoveling when I was by the conveyor belts was to keep the stuff out from underneath the belt so it didn't go up against the belt, Hudson said, 'cause if it got up against the belt the plant would have to stop. Basically we keep everything cleaned out so the belts were free to run and they'd be no problem, he said. The conveyer belts carry crushed rock, and that crushed rock sometimes fell through the conveyer belts and that's what I was shoveling, the claimant explained.

The claimant testified about his employment prior to working at LaFarge beginning in 1970. Indicating that he worked in a job that required special training or skills, Hudson stated I worked for McDonnell Douglas and went through a sheet metal school so for either four or eight weeks I could assemble plane parts. This was from 1963 to 1968. with about a six month break in the middle, he said. I never used my sheet metal skills again after I left employment with McDonnell Douglas, Hudson said. Agreeing that he was in the military, Hudson stated Army National Guard from June 1961 to October of 1962. None of my job duties in the military required any special training or skills, Hudson said.

Hudson noted that he suffered an injury while he was in the military. I had the right arm put out of place in basic during hand-to-hand combat training, he stated. The claimant explained when I was thrown down on the floor and his arm got underneath me and when he did the arm come out and just literally pulled it out of joint. I went to the hospital and they put it in a cast which it stayed in for quite a while, then I had some therapy,, but it bothered me for the next 10 years after I got out of the service, he said Over that time period if I didn't watch what I did - for example, if I went bowling the arm and elbow would get sore from the weight of the ball, and a lot of times it was just anything, sometimes won't take much to aggravate it. He was asked if this injury in any way ever affected the way he was able to do any of his jobs. The arm and the elbow would get sore from shoveling, Hudson answered. Agreeing that he receives benefits from the Veterans Administration for this injury, Hudson stated I got 10 percent disability on the arm. He agreed that this was by the Veterans Administration standards.

Hudson stated that he currently gets another type of disability payment. I get Social Security disability; I've got that since August of '1999, he said.

The claimant testified that he is alleging his employment with LaFarge caused problems in his hands, wrists, thumbs, and shoulders. I first began having problems with both of my hands in the early 1990's, Hudson said. In my hands there was numbness, an inability to grip or to hang on to stuff, they'd hurt and go to sleep easy, and they were weak, he said. I am right handed, Hudson said. The duties in my job at LaFarge that I recall would make the symptoms in either of my hands worse was the shoveling and the using the drag and -- just generally working. Whatever I had to do, lot of times aggravated it, the claimant said, especially in the cold and the wintertime. I mentioned it to my employer when I first started noticing problems in my hands, and my employer never provided me with any medical treatment for my hands, Hudson said. I sought medical care on my own for the problems I was having with my hands in June of 1998, Hudson stated, I was off six, eight weeks, something like that. I seen Dr. Powell for those complaints in June of 1998, the claimant said, and I provided Dr. Powell with a history of my job duties at LaFarge. Dr. Powell operated on both hands for carpal tunnel, Hudson stated, he operated on both hands at the same time and I was off, I think, six or eight weeks. I was not paid any benefits by workers' compensation for that time I was off, the claimant said.

After the surgery by Dr. Powell on my wrists, my symptoms in the right hand stayed about the same and then I started having trouble with my thumbs, Hudson stated. The thumbs were bothering me probably when I first started shoveling, the claimant said, in the 1990 to mid-1990s, some place in there. If I would hit anything, the shovel would stop. Picking up anything in either hand, he said, because I'd switch off which direction I went and they would hurt. And I told him about it, Hudson stated. With regard to my left wrist, after I had surgery by Dr. Powell the symptoms stayed about the same, Hudson said. I had symptoms in my shoulders before 1990, Hudson stated.

Agreeing that he returned to Dr. Powell after the surgery on his wrists for follow-up care, Hudson stated that he told the doctor his thumbs were still bothering him. The doctor was giving me shots two to three times in both thumbs in the meaty part between the thumb and the index finger in both hands, Hudson said. Dr. Powell did not provide any additional treatment or testing after he did these injections in both of my hands, the claimant, he suggested that I go see Dr. Polineni, which I did.

It seems like it was 2000 or 2001 when I first started seeing Dr. Polineni, Hudson testified. He agreed that he gave Dr. Polineni a history about the symptoms he was having at that time as well as provided Dr. Polineni with a history of the types of jobs he had done in the past. Dr. Polineni worked on the right elbow, on the nerve there, Hudson said, and then he did carpal tunnel on the right hand. Then when that had healed, two weeks later he come back in on the right hand and put three pins in the hand to freeze the bones, Hudson said, and I had the right hand in a cast for six months. And then at the end of that the doctor went to the left hand and put four pins in this hand, and I had it in a cast for six months so the bones could fuse, Hudson said. The claimant agreed that after he saw Dr. Polineni the doctor performed carpal tunnel surgery again on his right wrist, and then he moved to the right thumb and then operated on his left thumb. After the second carpal tunnel surgery on my right wrist with Dr. Polineni my symptoms stayed the same, Hudson stayed. But I don't have my power grip anymore; my hands are weak, the claimant said. He stated that he was still having similar problems in both hands. After the surgery on the right thumb with Dr. Polineni my symptoms stayed about the same, the claimant said. I noticed some improvement, but not a lot, Hudson admitted. Before the surgery with Dr. Polineni the right thumb hurt, Hudson said, whenever I would hit it, well, when I was shoveling especially, hit it the same place, both hands, it would get sharp pains. So you had to watch what I done, the claimant said. After surgery on the left thumb with Dr. Polineni my symptoms stayed about the same, Hudson said. Discussing symptoms in his left thumb prior to the surgery, Hudson stated my left hand, just like the right hand, I was having trouble gripping, holding stuff. It would hurt if I hit it in the palm or the thumb part, he said.

At the present time the symptoms I still have with my right wrist is that it's weak, Hudson stated. And just basically I have trouble holding on to stuff; I drop stuff without even knowing it a lot of times, he said, especially when you get down to one or two sheets of paper. There are no other symptoms or complaints that I am still having in the right wrist, Hudson said. My left wrist is basically the same as the right, he said, an inability to grip and hold stuff. I have fun with both hands trying to sometimes button a set of jeans, button on the top, stuff like that, the claimant said. I'm not having any more complaints than usual with my right thumb, Hudson said, about the pain and hurting just inability to use it. Say if I'm driving a nail, putting nails in, or doing any work like that, my hands get tired and I'm lucky enough that I'm ambidextrous, I can change from right to left hand, give the other hand a break. Other symptoms besides the pain is just tiredness, weakness, Hudson said. After the fusion surgeries involving my thumbs by Dr. Polineni I got fairly good movement on both hands, the claimant said. With regard to the left thumb, complaints I still have today is some of it's movement and ability to grip, hold stuff, do things, he said. I can tell you that I have real good fun trying to get a button up there buttoned; when you get into these smaller buttons on a shirt, Sunday it took me five, ten minutes to get it buttoned, Hudson said. Some of this difficulty is due to my shoulders, when they get tired, and my hands, the claimant said. Explaining about what it was with his hands and thumbs that makes it difficult for him to button buttons, Hudson testified that its the motion he has in, the function he's got in his fingers and thumbs, the ability to hang on to it and get it buttoned sometimes.

After my surgeries with Dr. Polineni I followed up with him for about a year, the claimant said, and agreed that the doctor eventually released him from his care. I have not seen any doctor's since Dr. Polineni for treatment on my right wrist, my left wrist, my right thumb, or my left thumb, the claimant said.

Hudson stated that he can make a fist with both of his hands without any difficulty. When it comes down to getting it down tight I do, Hudson added, but I can do it. The most amount that I would estimate I can lift and carry with either my right hand or left hand is 30,40 pounds, Hudson stated, 60 pounds but not very long. Up to 60 pounds, I mean, it's a struggle, the claimant said, trying to lift a bag or something with both hands, I don't have the strength to do it. I don't lift 30 to 60 pound objects very often, he said. Discussing the sort of things he is not able to do now with either his right or left hand that he was able to do before he started having the symptoms he described, Hudson testified that he used to like to work on cars and he has trouble doing that. I used to do odd jobs, carpentry work; I don't do much of that anymore, he said. I can do, like, go outside and do a lot of jobs on lifting and yard work., I do some of that; I have had to watch what I do there, Hudson said. My hands, wrists or thumbs do not prevent me from doing anything around the house, the claimant said, I do the laundry, I'm the house nanny as far as she's working. So I do general house -- sweep floors and start the laundry, put it in the drier and take it out and fold it.

I am currently taking Neurontin for the symptoms I described about my wrists or thumbs, the claimant said. It is

prescribed by Veterans Administration, he said. I take one for arthritis, Oxaprorn 600 milligram tablets twice a day, prescribed by the VA, he said, and stated that someone at the Veterans Administration told him he has arthritis in his wrists or thumbs. Also Dr. Piper who l've seen for my back and stuff; he says l've got arthritis in it. Dr. Polineni said I had arthritis in my hands too, Hudson said.

With regard to my shoulders and when I first started having problems in them, that has probably gone on since back as far as back as in the 1980's when I was driving road trucks and working on them, Hudson testified, sometimes you had to lay on your back and try to lift stuff up and put springs on it, a part in the bottom of the truck. The problems in each of my shoulders started both at the same time, he said. The problems I first started noticing in the right shoulder was that any time I did anything, when I was fixing tires on the roadside and lifting stuff, any time I had to use my arms an extended period of time they would get tired, Hudson said. I was having the same symptoms in the left shoulder at the same time, he said, same thing on both shoulders. Also when I started to do a lot of shoveling and pulling job in the early 1990's at LaFarge, that made my shoulder symptoms worse, Hudson said, they just would get tired. At that time I also had trouble sometimes with motion, limited motion in both shoulders, he said. I told my employer at LaFarge that I was having those symptoms and complaints in my shoulders, the claimant said, but I do not remember about when that would have been. LaFarge never offered me any medical treatment for my shoulders, Hudson said. When asked if he had ever sought any treatment on his own for his shoulder problems, Hudson responded - I seen Dr. Powell and he gave me shots in both shoulders, and this would have been somewhere in the early part of 1999 or maybe 1998. I had one operated on in 1999, Hudson stated. He agreed that he saw another doctor before seeing Dr. Powell for the symptoms he was having in the shoulders, but further stated that he did not recall that doctor, he was the doctor he saw in sports medicine. But I mean he give me the same things, shots in the shoulders; Dr. Farrell, who was my primary doctor, referred me to him, the claimant said. The records of a Dr. Mollman at Neurosurgical Associates were noted, and Hudson responded that that was the doctor that worked on the acoustic neuroma. The first doctor that I saw for my shoulders complaints took x-rays and then he gave me shots in the shoulders. My complaints were in the entire shoulder on both sides, Hudson said. The injections were given right in the meaty part of the arm, he said, not above, on the arm itself; straight in, on the outside of the shoulder area, he agreed. Agreeing that he was saying below the top of the shoulder, Hudson stated that it was down about an inch, to an inch and a half down. The injections gave me some relief for about a month, then came right back, he said. Besides this doctor that Dr. Farrell referred me to for shoulder complaints, the only other doctor I seen was Dr. Powell, Hudson said. Dr. Powell gave me shots once or twice, and then finally in December of 1999 he worked on the left shoulder, I think, and then in January of 2000 he worked on the right shoulder, the claimant said. My complaints when I saw Dr. Powell were the same, the claimant stated, in the shoulder area itself, both shoulders. The second series of injections performed by Dr. Powell were in the same place as the first, Hudson said, down about an inch and a half down into the arm (Indicating). I did not receive a lot of relief after the injections from Dr. Powell; they wouldn't last long, Hudson said. After the injections by Dr. Powell he did surgery on both of my shoulders, Hudson testified, basically he told me that all he did was go in, rotator cuff was okay, he said he cut the end of the shoulder blade off to give more room. Hudson agreed that the shoulder surgeries were done at two different times.

After the shoulder surgeries I had quite a bit of relief for a while, Hudson stated, I didn't have any pain. They basically started to come back again; they come back but both of the shoulders was getting tired, he testified.

The symptoms I have started noticing in my shoulders more recently are tiredness and weakness, Hudson said. These symptoms started recurring probably a year after I was operated on, or less than that. With the right shoulder right now, if I put any pressure on the shoulders even -- I got suspenders on this morning, or if I put a real heavy coat on, I can feel the pressure and the tiredness in the shoulders, he said, in the back and side part of the shoulders. I do not have any pain in either of my shoulders, the claimant said. He indicated limitation on the range when he reaches up above his head in both shoulders. Downward motion is pretty good, Hudson stated. If I get down on my knees I have a hard time getting up using my hands and my shoulders to pull myself up, he said.

Hudson testified about his prior problems in regards to his claim against the Second Injury Fund. I first start experiencing problems with my hearing in 1995, he said. It got to the point I had to get hearing aids, Hudson stated. In 1995, it just got to the point that a lot of words people spoke to you did not come out the same way that they would speak them; sometimes you pick them up -- a totally different word, he said, and if I'm around a lot of background noise I have an extremely hard time hearing anything. I never sought any medical attention when I first started noticing these hearing problems, Hudson said, I just went and got the hearing aids. This would have been in 1995 that I got the hearing aids; Miracle Ear, for both ears, Hudson testified. They improved my ability to understand or to hear some but not a lot, he said. When queried when was the first time he went to see a doctor about the symptoms he was having with his hearing, Hudson responded - I had an MRI done on February 15, 1999. I had seen Dr. Wellman a few times prior to this for my hearing loss symptoms, but I don't remember when this was, the claimant added. Dr. Wellman give me a hearing test and recommended hearing aids; this could have been as far back as 1995, because that's when I went and got the

hearing aids from Miracle Ear, Hudson testified. When I first started noticing the hearing problems the hearing loss was worse in the left ear, the claimant said. Besides seeing Dr. Wellman and then going to Miracle Ear, I eventually went to see Dr. Herzog because that's who Dr. Wellman referred me to when he found the acoustic neuroma. Dr. Herzog performed hearing tests because I kept complaining that the hearing aids weren't doing me any good, or I was having trouble with them; the doctor kept giving me the hearing test to see if it got any worse, the claimant stated. It was Dr. Wellman who ordered the MRI that was performed on February 15, 1999, Hudson said, that's when they found the acoustic neuroma. He agreed that he was still working at LaFarge at that time. Dr. Wellman discussed the results of the February 15, 1999 MRI and told me I had a tumor back there, probably been there a long time, Hudson testified, it was on the nerve that crosses back over from the right side to the left, and the right side it's just the opposite -- it goes from the left side to the right. After the MRI scan was done Dr. Herzog and Dr. Wellman operated; the claimant said. And he told me at the time when they started operating that I was gonna lose all my hearing in the left ear because they go in the middle part of the back of your ear, and he described it saying -- it's just like me taking a spoon, reaching in it, cleaning out part of the ear, to get to the nerve. It took eight and a half hours to get the tumor out, the claimant added. Hudson agreed that he lost complete hearing in his left ear after the surgery. The hearing in my right ear did not get any better after the surgery, he said. I've got ringing in my ears, and I -- sounds like it's coming out of the left side where I'm deaf but he said it's the right side going across, but I can hear it over here, Hudson said. This started before the surgery, the claimant said.

Hudson agreed that part of his claim against the Second Injury Fund was for problems with balance and headaches. I had some problems with balance before the surgery, the claimant said, it would bother me when I wasn't on level ground. But After the surgery I had a lot of problems with balance, the claimant said. I don't really remember when the problems with balance started, he said, probably before the hearing symptoms started. I'd been having headaches, Hudson testified. I just thought they were normal headaches; I'd take Excedrin they'd go away; but this was probably before 1995. After the surgery, the headaches became worse, the claimant said. I had been home 24 hours and I had to come back, and that's when they found I had the hydrocephalus. Describing any balance problems he had been before February 23rd of 1999, Hudson stated that the main problem was if I he got off level ground. If I'm on level ground it doesn't bother me but if I'm walking up a bank or have to twist and turn a lot then my balance really gets messed up and I have to stop sometimes, the claimant said. Agreeing that between 1995 when he first started having hearing loss symptoms and the time he stopped working for LaFarge his hearing problems interfered with his ability to do his job, Hudson testified that it was because he had a hard time hearing. The plant was noisy and I had a hard time hearing, the claimant stated, because I didn't wear the hearing aids when I worked because it didn't do me any good. And some of the bosses would yell, thinking that was gonna make a difference; yelling did not help any, the claimant said. Giving specific instance when his hearing problems interfered with his work, Hudson testified I would have to go down and start a water pump, and in order to get the pump to start you had to hold the red button down for about ten seconds, and once it was down for ten seconds the pump would start to run. I didn't pick that up from Jerry Bartledge, the claimant said, he told me that's how that had to be and he got mad when he had to come back down there and show me. I didn't get all of his instructions; I didn't hear them all, he said. Lot of times I didn't hear anybody hollering at me, I didn't hear them, Hudson said. Oh, I had a lot of fun trying to just walk up the ramp because the rock was piled up and you had to walk up on the rock; we hadn't had time to shovel it off the walkways and one time in 1995 when I walked up the ramp I hit the top of my head, which had limestone built up on it, and as I did I raised up and I hit a beam above. I had a hard hat on and it put me down on my knees, the claimant said.. The constant shoveling and turning and throwing the stuff behind me, and reaching in there and getting a shovel full and trying to throw it as far back as you could so it could stay back out of your way; the more I twisted the more it bothered me, I'd just get dizzy, Hudson said. The claimant agreed that when he was doing the shoveling and standing on limestone, his balance bothered him. He explained that most of the time it was level, but a lot of times there were spots where it wasn't level and he had to stand on an angle to shovel. Sometimes my balance problems caused difficulty with my ability to stand on that surface, Hudson said, if I had to climb up the bank or over a pile of rocks I always ended up down on my hands and knees trying to get up because of balance would -- I just had trouble; couldn't walk on it without falling.

Presently I am taking Depakote for headaches, Hudson stated. I been taking this medication probably two or three years, he said. Michele Woods prescribes it for me, he said. The Veterans they will - as long as I take down what she has done and her report they will give me the same medicine if they have got it, the claimant said.

Other current problems with my hearing loss in addition to complete loss of the hearing in my left ear, it is extremely hard when you lose your hearing to tell where sounds come from, what direction, Hudson stated. And I have a hard time hearing the wife, the claimant stated, she says I have selective hearing. It was noted that Hudson's hearing in the left ear is completely gone now since the surgery, and the claimant was asked if the hearing in his right ear stayed the same after the surgery by Dr. Herzog. It has got worse; not better, Hudson answered, I'm hearing less and less as I go down the road. And the ringing is getting louder inside from the ear, he added. My balance hasn't gotten any better

after Dr. Herzog's surgery, Hudson said. As long as I take the Depakote I don't have any problems with the headaches since the surgery by Dr Herzog, he said.

It was noted that as part of his claim against the Second Injury Fund, Hudson also alleges problems with his right knee and his neck. With regard to my knee, a lot of the problems or symptoms started when I had to shovel, Hudson stated, because sometimes I had to get down on my knees to get the rock out. Sometimes I wore knee pads, sometimes I didn't, the claimant said. Indicating that there had been a specific event when he had an injury to the right knee, Hudson stated that it would have been in '99. Explaining about a car collision in which he was involved, Hudson testified when I first started down there I was hit head on by a kid coming down Freidens, and the Highway Patrol said he was doing 75 and doing 55 when he hit me. It knocked the cab back on the truck two inches, Hudson said. After that collision my legs were tired and hurtin' if I put a lot of pressure on the clutch and brake at that time, he said. I do not know of either of my knees striking any part of the interior upon the collision, Hudson said, and I had no treatment for either of my knees after this accident happened. The claimant was queried if the symptoms he was having in the right knee resolve completely or did he continue with problems in the right knee. I have had trouble with weakness in it and l've had it operated on; and I had a bursa that got infected, and I have no idea what caused that, Hudson stated. The claimant was questioned further if after this accident in the early '70's, did he continue having any symptoms or did his symptoms resolve in the right knee. Well, basically, my knees kept -- they were tired a lot, Hudson answered. As to the right knee only, there were no other symptoms or problems other than being tired when I climbed up the bank, the claimant said.

Present complaints in my right knee are the same thing that happened before, Hudson stated. I have to watch when I walk; flat ground doesn't bother me but just climbing up a hill of any size does, he said, my legs get tired.

I started having problems with neck in probably 1995 or there about, Hudson stated. Testifying as to what caused these symptoms to start, Hudson testified I was walking up a walkway on the crushing plant in Defiance and I stepped up on the limestone that was piled up and I didn't see a beam above my head, and I went straight up, just like you would be climbing a step. Put all the pressure up and it brought me back down on my knees, he stated. Hudson agreed that he struck the beam with his head, with a hardhat on. After this accident I went to the Aid Station for treatment, Hudson said, and they gave me medicine, muscle relaxants. I missed four or five weeks from work, but it wasn't -- that's about the time I had the major problem with depression and Dr. Farrell put me out. Missing time from after the 1995 neck injury was all tied -- all happened together, the claimant said. I went to Aid Station, and I was gonna be off but at the same time I had trouble with depression, and Dr. Farrell put me off; and Aid Station said there was no reason, they wasn't going to put me off on workman's comp then; I collected it on disability insurance that I got with the union, Hudson stated. The symptoms I had in my neck after the 1995 accident was that

my neck hurt turning it right and left, the claimant said. The treatment I received at the Aid Station did not help a lot, he said. I did not have any other treatment in that general time frame for the neck, the claimant said. I was still able to do my job at LaFarge despite the symptoms I had in my neck after the 1995 injury, Hudson stated, though he admitted that his neck would get tired doing the job after the injury, I would have to look in the mirror.

I was diagnosed with depression right around 1995, Hudson stated. Agreeing that he was prescribed medication for this condition, Hudson stated that Dr. Farrell prescribed medication, and then when he started going to Veterans, Dr. Kehr (phonetically) did. I am still taking medication relationship to my diagnosis of depression, Hudson said, it's either Prozac or a generic for it. This is prescribed by Dr. Kehr at Veterans; I had to go see him every three months and he would give me the prescription for it, Hudson said. Dr. Kehr retired and I have different doctor at the VA currently, the claimant added. The symptoms I have in relation to depression is that I get depressed, Hudson said, the medicine has helped. Hudson stated that the condition of depression sometimes has affected his ability to do his job. I really -- just honestly the way I was treated sometimes, Hudson said. I really don't know how the depression has affected my ability to do my job; I couldn't -- have a hard time telling you, the claimant said. I -- the only thing I know for sure is as long as I take my medicine that's prescribed I do pretty good, Hudson testified.

Since I left LaFarge, I have not engaged in any activity, job, hobby, anything else that involved a repetitive use of my wrists, thumbs, or shoulders, Hudson stated. At no time since I left LaFarge have I sought any type of employment, the claimant said.

A typical day for me since I stopped working at LaFarge is a I try to get out of the house as much as I can, Hudson said. I used to walk till I lost the dog, he said, I do housework for the wife, and I (do) odd jobs around the house. try to stay busy. I do not really have any hobbies, Hudson said, and I didn't really have any hobbies before 1995, I didn't have time really. I did some volunteer work at church; worked the election polls occasionally, Hudson added.

The claimant was asked - going back to the last day you worked at LaFarge, and considering the problems,

symptoms, complaints and any limitations you may have had at that time regarding your hands, wrists, thumbs, shoulders, neck, right knee, your hearing, the balance problems, and the headaches, do you feel there was any job or employment you could have engaged in at that time on a regular sustained basis. No, Hudson answered.

Hudson reviewed Claimant's Employee's Exhibit A and testified that the documents were medical bills for the operations on my hands, and arms, and neck, and shoulders. Hudson was queried if from his review of these documents, did he see any bills in there related to the surgery for his neck. No, the claimant said. Hudson agreed that based upon his review of these documents, to the best of your knowledge, these medical bills relate only to medical care, treatment, or testing he would have had for his hands, wrists, thumbs, or shoulders.

On cross examination by the employer/insurer, the claimant was questioned about Claimant's Exhibit A; it was noted that the first page of the document is a list of bills, and there were two columns on the right-hand side of the page that show amounts that were charged in the amount of $\ 35,778.93, and the claimant's insurance company paid a total amount of $\ 10,849.94. This sounds correct to me, Hudson stated, they discounted it quite a bit. The claimant was asked if he had received any bills for the differences between those two amount, and Hudson answered - No. When asked if there were any unpaid, out-of-pocket expenses that he could document. I probably got them but I don't know where they're at, the claimant answered.

Hudson agreed, during cross examination, that he had testified on direct examination he had stopped working at LaFarge in mid-February, 1999. Then I went on six months family leave, the claimant said. He agreed that he was not paid during that time. It was noted that Hudson was not terminated until June of 1999. Hudson agreed that while on family leave he had several surgeries that had to do with his ears, an acoustic neuroma and the hydrocephalus. He agreed that there were no surgeries during that time for his hands, wrists, elbows, shoulders, neck, et cetera. I did have the knee worked on, Hudson added.

During cross examination, Hudson agreed that he was off work in 1998 with Dr. Powell because of bilateral carpal tunnel syndrome. During that time I was paid only benefits from the union, Hudson said, the union paid me when I was off sick. This benefit $\ 125 or $\ 180 a week, something like that; it wasn't a lot, he said. I received no pay from the company during that time period, Hudson said.

I had trouble with my thumbs but the surgery I had was on my wrists for my thumbs, the claimant said during cross examination. Agreeing that he had surgical scars, Hudson stated I got some on both hands, all over; my hands are scarred pretty good. Hudson agreed that he had some treatment on his shoulders prior to leaving work. My shoulders did improve after that treatment for a short period then they'd bother me some more; get back to bothering me again, Hudson stated.

He was asked when did his shoulders start bothering him again. I had shots in my shoulders prior to probably 1995, Hudson responded, and they would last approximately four to six weeks and my shoulder would go back to hurting. The injections were not with Dr. Powell, Hudson said, this would have been another doctor, I can't remember his name. When I had injections with Dr. Powell, that would have been some time in 1998, he said, where I seen Dr. Polineni. I think I was still working at LaFarge when I had the injections by Dr. Powell, Hudson said. It was noted that Hudson had stopped working at LaFarge in February of 1999, and Hudson was asked if his shoulder got worse after that. Hudson admitted that his shoulders continued to get worse after he stopped working but before he saw the doctor in September of 1999. Hudson agreed that his hands got worse after he stopped working in February of 1999 until the wrist surgeries and the repeat carpal tunnel surgery.

During cross examination, Hudson agreed that in the months after his carpal tunnel surgery up until February of 1999 he was able to work full time doing his job of shoveling, and scraping, and whatever else he did there. This was true right up to the time that he had the problems with the acoustic neuroma., he agreed During that time period I probably did make complaints to my employer about an inability to do the job, Hudson said. I probably said something to Dale Hemsoth (phonetically), my supervisor, and to Joe Dingledine (phonetically). Hudson admitted that he didn't tell his employer that he could no longer do his job because of his shoulders, wrists and hands. But I know that they bothered me a lot, the claimant said, I told them I had trouble with them bothering me a lot.

On cross examination by the Second Injury Fund, Hudson agreed that the last day that he actually worked at LaFarge was on February 23, 1999, and the reason he didn't come to work on February 24, 1999 was because he was having surgery for the acoustic neuroma. He agreed that after taking that six weeks off in 1998 for the carpal tunnel surgery he went back to the same job at LaFarge. Hudson agreed that from the surgery for the acoustic neuroma he had some complications. Discussing the complications, Hudson testified I got out of the hospital on Saturday at 3:00 and Sunday about 3:00 I was back in there. I had what I told the doctor was a migraine from the tip of my toes to the top of

my head, he said, and he tried twice in bed the spinal tap. He finally put me on a fluoroscope, I think is what it was, and as he took off 28 cc's and the headache went away, and that's when the doctor said he knew about what was wrong. The doctor went upstairs and looked at my MRI and found out that I had the hydrocephalus, the claimant said. They had to wait for the ear to heal before treating the hydrocephalus, and then the knee acted up, so that put it of longer, Hudson said. And then a programmable shunt was put in, and I had it in three weeks and developed bacterial meningitis, so I went back to the hospital and they took it out; I was off three weeks and they put it back in and this time they put it in the vein instead of in the stomach. I still have a shunt in today, Hudson said, in a vein on the right side of my chest. The purpose of the shunt is to drain off excess water pressure on the brain, Hudson said. When they did the surgery to remove the neuroma there was some nerve damage on the left side of my face done during the course of the surgery, Hudson said, it controls your taste buds and that, and hearing. Before my surgery I could hear some out of my left ear, Hudson stated, and after the surgery I could hear nothing, and also after the surgery I had problems with taste, still do. The claimant was queried, wasn't it correct that after the surgery he's also had some problems with the tear ducts in your left eye. Dr. Herzog came in and at the time after surgery he said: "Are you sure you got full use of the left side of your face?", and I said: "Yeah." . He said: "I don't see how you could. Because of what we did." I had it for two weeks and then the eye went shut, and the mouth drooped, Hudson testified. Eventually that went away, he stated, and l've got trouble with the tear duct in the corner of the eye; they put what they call a pacifier in there and it helps hold the water, and I have to use eye drops. Following the surgery for the acoustic neuroma I do not continue to have headaches today as long as I take the Depakote. The problems with balance, I continue to have balance problems, Hudson stated, they're worse than what I had before the acoustic neuroma surgery. Explaining how they are worse, Hudson testified if I twist and turn it bothers me, I have fell two to three times. I fell off a ladder, from down off a ladder and lost my balance and come down and bruised my right leg and across my buttocks; I was standing on the edge of a tile wall and off it and come down and had a turkey-platter size bruise on the right side when I slid down the concrete blank, he stated. Before the acoustic neuroma surgery I probably fell a few times because of balance problems, he said. I had problem with my knee in March of 1999, Hudson said, it just swelled up. I ended up in the hospital, and Dr. Powell asked me the same question and I told him, I said: "I have no idea." I was in there seven days, and they finally operated on it, and he said the bursa sack, whatever that is, it was infected; it caused it to swell, the claimant testified. Hudson agreed that this after he had stopped actually working at LaFarge.

Hudson stated during cross examination by the Second Injury Fund that he tries to take walks now since the knee surgery. With driving I have to concentrate a lot more because the left eye and stuff bothers me a lot, he said, I really have to watch it. I still take long car trips with the wife; yeah, Hudson said. It was noted that Hudson had testified earlier that he used to do some odd jobs in carpentry but he doesn't do much of it anymore. I still do some odd jobs or carpentry around the house, he said. It took me two a half years to finish a room that I got started, he said. With some help I hung drywall, he stated. I put up a ceiling, he agreed, and I still do painting, don't like to but I do. Agreeing that he did the electrical work too for that room, Hudson stated I enjoy doing that. Hudson agreed that he had testified he did some work on the elections, like being an election judge. The last time I did this was the presidential election, Hudson said, I got there at four and left sometime around 7:30 in the evening. When asked if he had any problems doing this, Hudson responded - Got tired; everybody else got tired, too. He was asked if he had considered looking for a desk job. No, I have not, Hudson answered, I just don't think I could do it. Hudson agreed that he never returned to actually work at LaFarge following his acoustic neuroma surgery.

Medical records in evidence included the following:

A. Records from Family Medical Group, Dr. James Farrell, D.O., period June 9, 1994 - January 17, 2002 (No. N) reflected treatment of Hudson for various ailments and conditions; portions of the handwritten entries were illegible. The first entry of 06/09/94 noted Hudson was being seen for follow-up of blood work, - cholesterol. Depression was noted for the first time in the 03/09/95 entry; the record reflected continued treatment of medication (i.e. 01/20/97 Prozac prescribed). The 08/17/95 entry first noted the problem of "legs getting worse". A 08/30/96 entry noted the chief complaint as - headaches, and that medication was refilled; it was noted that Hudson was having dispute over work stoppage; it was noted that he had increased stress and increased headaches.

The 02/24/97 entry noted a chief complaint of pain in the left shoulder blade two to three times a day. Written was: "'shovels (at) work"; "Strenuous occup since Oct 97". The diagnosis on 02/24/97 included - left scapular strain. A 10/28/97 entry noted complaints of low back pain and left foot pain; the diagnosis was - SI syndrome/LBP, and probable degenerative disc disease. A report of a x-ray of the lumbar spine, dated 10/28/97, stated findings of - no fracture or acute osseous abnormality identified, small osteophytes in lumbar spine, and intervertebral disc spaces are relatively well preserved.

The record reflected in November 1997 testing for a cough Hudson had had for four weeks; it was written in the 11/14/97 entry that the etiology was unknown, there was a question as to sources including Hudson's occupation. A 11/22/97 report of a chest x-ray noted a history of - Dysphagia and lime dust exposure; the summary was - no acute

cardiopulmonary disease is evident.

The 11/28/97 entry reflected complaints of left shoulder pain; the impression was tendonitis vs bursitis vs degenerative joint disease; medication was prescribed. Complaints of continued left shoulder blade area pain was noted in the next entry of 02/26/98; it was further written that symptoms had improved with Relafen but not completely; the diagnosis was a muscle strain. The 03/02/98 entry noted treatment with hot packs, and that a work excuse was given for $02 / 25 / 98-03 / 02 / 98$.

The next entries in the record began with June 2001 entries and indicated treatment and evaluation for leg cramps. BarnesJewish St. Peters records reflected testing and treatment for sleep apnea in September 2001 and in November 2001. The impression of restless leg was again noted in a 12/10/01 entry of the Family Medical Group. The Family Medical Group record final entries through January 2002 concerned treatment for gastrointestinal problems.

B. Records from BJC Aid Station consisted of two Work Release Forms dated February 20, 1995 and March 3, 1995 (No. K). The 2/20/95 form noted a diagnosis of - contusion cervical spine, cervical strain; the form indicated that Hudson was capable of regular duty as of 2/20/95, and no restrictions were noted. The 3/3/95 form noted a diagnosis of - cervical strain and degenerative joint disease cervical spine; the form indicated that Hudson was capable of regular duty as of $3 / 6 / 95$; no restrictions were noted, and it was indicated that no follow-up appointments were scheduled.

C. Records from St. Charles Clinic, period May 8, 1995 - June 14, 1999 (No. D) concerned hearing loss treatment. The record began with a 5/8/95 hearing test report. In a 5/16/95 update report on Dr. James Vighi, M.D.'s form, it was indicated that Hudson had a history of hearing loss in the left ear, that he suffered from tinnitus and dizziness on rare occasions; it was further indicated in the form that Hudson suffered from stress-related headaches and that he was on Prozac; it was indicated on the form that Hudson's family history was his father had had hearing loss and diabetes. In the typed 5/16/95 entry, Dr. Vighi wrote that Hudson presented with a past audiometric evaluation which showed a separation between the right and left ear; it was noted that Hudson had been treated in 1979 for vertigo and a hearing loss and there was no diagnosis at that time other than a neurosensory hearing loss, etiology secondary to acoustic trauma. A 4/1/97 receipt for a Miracle Ear hearing aid for the left ear was in the record. Dr. Vighi recommended a testing to see if an MRI was necessary; the record included in a 12/31/98 entry that Hudson was unable to do an MRI due to metal shavings found in the eye as the machine was still picking up residue from the eye.

A 1/19/99 treatment entry noted that Hudson wanted credit towards a more powerful aid. A 6/14/99 hearing test report noted that this was a post-operative audio; it was noted that in the left ear there was profound hearing loss.

D. Records from St. Charles Clinic/Dr. Howard Goldstein, M.D., period September 23, 1997 - June 23, 1999 reflected treatment of Hudson for various ailments and conditions. (No. Q) The first treatment note of 09/23/97 noted complaints of choking spells and coughing; it was noted that Hudson was to have carpal tunnel surgery soon and was concerned about choking during surgery. A 04/14/98 report of an x-ray of the chest stated the impression: No active cardiopulmonary disease is seen; and No active disease. A 04/24/98 report of an x-ray of the sinuses noted a clinical diagnosis of - chronic sinusitis, and the impression was - Opacification of the right maxillary sinus, consistent with right maxillary sinusitis. It was noted in a 05/22/98 entry that Hudson worked in heavy dust and Claritin was helping.

A 07/21/98 entry noted that Hudson reported a sore on left cheek of his face for a month or more; it was noted that Hudson had a history of skin cancer; it was written that Hudson was to see a dermatologist. A 11/02/98 entry included a diagnosis of - hearing loss, tinnitus, chronic; it was questioned whether or not Hudson needed an ENT eval. A prescription request form, dated 12/01/98, included the medication Prozac; Prozac was again prescribed on 01/30/99. A 01/27/99 entry noted Hudson's request for medicine for leg cramps, was up most of the night. May 1999 entries noted complications from shunt in head, that Hudson was in the hospital.

E. Records from Neurosurgical Associates, Inc./Dr. B. Dennis Mollman, M.D. concerned the treatment of Hudson for a left acoustic neuroma during the period of February 12, 1999 - June 8, 1999. (No. O) In the first treatment note of 02/12/99. Dr. Mollman wrote that Hudson had been referred by Dr. Jacques Herzog for evaluation of a left acoustic neuroma which had been discovered by MRI. A 03/09/99 note stated that Hudson was status post acoustic neuroma resection on 02/24/99; exam findings on 03/09/99 included - a $1 / 5$ weakness in his left facial function including an inability to close the eye and drooping of the corner of his mouth; it was noted that Hudson would still need a shunt for his hydrocephalus. The next entry of 03/16/99 indicated that the weakness of the left facial function was improving; it was noted that the headaches were returning though they were not a bad as they were before. A Disability form was completed by Dr. Mollman; the form was dated 03/31/99 and indicated that Hudson was disabled from 02/24/99 to indeterminate. A 04/15/99 entry noted that Hudson vision had returned to normal and his headaches were now postural.

A 05/07/99 emergency room examination report by a Dr. Harry O. Cole noted that Hudson had been seen at St. Luke's Hospital emergency room complaining of headache and fever, the recommendation was to rule out meningitis, and Hudson was placed on medication until the results. A Discharge Summary report reflected that Hudson was admitted

from 05/07/99 - 05/13/99; it was written that the surgical procedure performed during the hospitalization was Ventriculoperitoneal shunt removal; the discharge diagnosis was - Gram-negative meningitis, and the secondary diagnoses were - Infected ventriculoperitoneal shunt, Diverticulitis and Status post colon resection. The Discharge Summary further included that Hudson was discharged home for 10 days of intravenous antibiotics and then follow-up in approximately two weeks.

In a 05/13/99 letter, Dr. Mollman wrote that they would have to make some decisions as to Hudson's risks for having an indwelling ventriculoatrial shunt and the potential for bacteremias secondary to his colon disease. A 05/26/99 operative report indicated that Dr. Mollman performed the procedure of placement of a ventriculoatrial shunt, right side for a diagnosis of hydracephalus; a history included that Hudson had been treated with antibiotics for about two weeks, but presently presented with again papilledema, visual obscuration associated with headaches. A Discharge Summary indicated that Hudson was discharged from St. Luke's Hospital after the procedure on 05/27/99. A 06/03/99 entry noted that Hudson had presented with complaints of increased headaches. Dr. Mollman wrote a 06/03/99 treatment report that Hudson had had a shunt revision and was doing fairly well. I will continue to follow him until full recovery, the doctor wrote. In the final document in the record, a 06/08/99 letter to Dr. Herzog, Dr. Mollman wrote that Hudson was developing more disequilibrium and dizziness, and he was asking Dr. Herzog to look at Hudson again.

F. St. Luke's Hospital records included various emergency room and in-patient records covering a period of February 15, 1999 through May 26, 1999 (No. R) A 02/24/99 operative report reflected that Dr. Herzog and Dr. Mollman performed the procedure of - Translabyrinthin removal of left acoustic neuroma with abdominal fat graft obliteration; the post-operative diagnosis was - Left cerebellopontine angle tumor consistent with acoustic neuroma, final pathology pending. The written indications for the procedure included the following: "This is a 55 -yer-old male who has had a history of progressive left-sided hearing loss for the past five years. In the course of his evaluation, he was found to have findings consistent with a 1.5 to 1.9 cm left cerebellopontine angle tumor consistent with acoustic neuroma."

A 03/01/99 Discharge Summary by Dr. Herzog noted that Hudson was hospitalized from 02/28/99 - 03/02/99; the discharge diagnosis was hydrocephalus. The history of present illness noted that a translabyrinthine resection of acoustic neuroma had been performed by Dr. Mollman and Dr. Herzog, and that Hudson had developed an intractable severe headache on day of the 03/01/99 admission. The doctor wrote: "I discussed with the patient and his family the fact that this probably represented hydrocephalus in that he had a two-year history of headaches, memory loss and increasing gait difficulty." The record indicted that a lumbar puncture had been performed and Hudson's headache was markedly improved.

A 04/07/99 operative report indicated that on that date Dr. Mollman performed the procedure of ventriculoperitoneal shunt with programmable valve set at 110 MMHG; the postoperative diagnosis was - hydrocephalus. The pre-operative status was: "Mr. Hudson is a gentleman that had an acoustic tumor removed by Dr. Herzog and myself. He was known to have hydrocephalus and continued to have symptomatology secondary to the hydrocephalus and was admitted for shunting."

Hudson's 05/07/99 - 05/13/99 hospitalization was for the 05/08/99 procedure of removal of the ventriculoperitoneal shunt due to infection shunt and meningitis; this operative report indicated that the procedure was performed by Dr. Harry O. Cole, M.D.

An emergency room record (date was illegible) indicated Hudson had presented status post VP Shunt for hydrocephalus with complaints of mild abdominal pain and stiffness to neck. A 05/26/99 report of an MRI noted a history of - neck pain, and stated findings and impression were: Mild posterior disc annulus bulging with osteophytic ridging but without cord impingement at C5-6 and C6-7, and lateral spurring associated with foraminal encroachment at C5-6 bilaterally at C6-7 on the right. A 05/26/99 operative report indicated that Dr. Mollman performed the procedure of placement of a ventriculoatrial shunt, right side for a diagnosis of hydracephalus; a history included that Hudson had been treated with antibiotics for about two weeks, but presently presented with again papilledema, visual obscuration associated with headaches.

G. Records from John Cochran Veterans Administration Medical Center covered treatment for various ailments of Hudson from April 2, 1997 through July 23, 2002. (No. L) The first entry of 04/02/97 noted a diagnosis of - depression/sleep apnea. A 04/11/97 entry noted Hudson's symptoms of decreased hearing loss; under stress, has been terminated in litigation - Arbitration. Further noted was - no history of hypertension, 1965 - restless legs; stress headaches. The diagnosis on 04/11/97 was - depression. A 07/11/97entry noted diagnoses of - 1. occupational lung exposure; 2. depression/anxiety, situational, increased Prozac; 3. hypertension, and medication was noted; 4. Migraine headache, and medication was noted. A 01/21/98 entry noted Hudson's comments that he had been experiencing being "tired" during the day, but that may be associated with the " 8 hrs of shovel work" that he performs everyday; the diagnoses were - hypolipidemia, depression, and chest pain (a stress test with EKG was scheduled). A 10/05/98 entry noted Hudson had colon complaints, that he had decreased appetite and had lost 40 pounds, and that his hearing loss and tinnitus was worse in his left ear. Among the diagnoses on 10/05/98 were: previous colon surgery, will review records and proceed as needed; skin cancer, patient has been treated and following up with dermatology; hearing

loss, referred to hearing clinic at this time; jumpy leg syndrome, takes clonazepam to help him sleep. Subsequent entries noted treatment for depression and jumpy leg syndrome (i.e. 04/12/01 entry, which also noted nasal allergy, status post ventriculo-caval shunt, arch pain and referral to podiatry for arch support).

H. Records from Jefferson Barracks Veterans Administration Medical Center, period June 8, 1999 November 12, 2002 (No. M), began with a 06/08/99 entry which noted that Hudson had had an acoustic neuroma removed, then persistent headache found to be hydrocephalis and shunt was put in, knee got bad and had surgery for that (knee bursectomy), shunt taken out then put back in, then had encephalitis, now shunt is back in and now has trouble with balance and headaches; it was noted that the shunt was working better now, and that Hudson was depressed and Prozac would be increased. A 07/08/99 entry noted that Hudson had been having complaints of anxiety attacks or the last 6 weeks while he lays down; it was noted that Hudson had been on sick leave for 5 months, is laborer. The next entry of 09/09/99 included that Hudson was given SSD and now doesn't work; it was written - "He needs to have some things to do during the day". It was noted that Hudson had some hearing loss; it was noted that things were starting to look up for Hudson. The record indicated that Hudson was continuing to be treated by Psychiatry, including medication, on a regular basis through approximately June of 2000; the record reflects continued treatment with medication as well as occasional psychiatric evaluations/group sessions through the remainder of the record. Treatment entries subsequent to June 2000 reflected ongoing treatment of primary care and for such conditions as hypertension, optometry (i.e. a. 07.05/00 - complaints of pressure behind the left eye ever since he surgery to remove the acoustic neuroma on the left side; it was noted that the surgery affected the nerve going to the left side of Hudson's face. B. 06/27/02 - prescribed artificial tears secondary to nerve damage from surgery to remove acoustic neuroma), treatment for post-op acoustic neuroma removal (i.e. bacterila meningitis secondary to shunt infection), otolaryngology treatment, foot pain and prosthetics, degenerative joint disease, squamous cell carcinoma of skin, follow-up care for disc fusion performed at Barnes Jewish Hospital by Dr. Piper (i.e. see 01/31/02 entry).

I. Records of St. Charles Orthopedic Surgery Associates/Dr. Mark K. Keohane, M.D., period March 16, 1998 - April 16, 2001 (No. E). In the initial treatment entry of 3/16/98, Dr. Keohane wrote that Hudson had bilateral carpal tunnel syndrome with electric diagnostic studies consistent with median nerve compression of carpal tunnel.

Records from Dr. John Powell, M.D. (No. J) ${ }^{[5]}$ included a 04/15/98 operative report indicating that Dr. Powell performed the surgery of bilateral endoscopic carpal tunnel release.

A 4/17/98 entry in Dr. Keohane's record indicated that Hudson was 2 days out from bilateral endoscopic carpal tunnel release and was doing well. The 5/14/98 treatment entry noted that Hudson was 4 weeks post-op; the included - "He'll return to work in 10 days and see us again in a month for followup"; the next entry of 6/17/98 noted that Hudson was a "no show". By 7 months post-op, an 8/03/98 entry, it was noted that Hudson's complaints were pain in the right elbow and also the left thumb. "He does a lot of shoveling which bothers the carpal metacarpal point of his thumb", the doctor wrote. Exam findings on 8/03/98 included: slight enlargement at the CMC joint, with some mild tenderness to palpation there and pain on grinding; negative Dequervain's; tenderness to palpation at lateral epicondyle and pain on resisted extension of the wrist and fingers. It was written that Hudson was given a tennis elbow strap and anti-inflammatory medication for his thumb and elbow. The next entry of 01/18/99 stated that Hudson was in for followup of upper extremity pain and continued to have epicondylar pain, and a chief complaint of pain at the CMC joint of both thumbs with some mild swelling and tenderness to palpation here and pain on circumduction.

The next entry of 03/15/99 noted that Hudson had developed pain and swelling in the front of the right knee. The March 18, 1999 entry stated that Hudson presented with pain and swelling in the right leg; it was recommended that Hudson be hospitalized. It was written in the 03/29/99 entry that Hudson was about 1 week post treatment of aseptic prepatellar bursa; it was noted that Hudson had a complicated problem in that he had had an acoustic neuroma and apparently needed an intercerebral shunt placed.

In a 09/27/99 it was written that Hudson was now complaining of some pain in both shoulders and both wrists; there has been no history of fall or trauma recently, he's had some pain with use, was noted; it was written that Hudson had loss of full forward flexion with positive impingement sign. The 12/9/99 entry indicated that an x-ray revealed some subacomial spurring and degenerative arthritis at the AC joint of the left shoulder; the 12/27/99 entry indicated that Hudson was 1 week out from acromiplasty of the left shoulder. A 01/31/00 entry stated that Hudson was 1 week out from right shoulder acromioplasty surgery. A 03/23/00 entry included that exam showed full range of motion both shoulders and good strength.

The next entry of 05/01/00 noted Hudson's complaints of some ill defined wrist and hand pain; it was written that an x-ray was obtained that showed some degenerative changes between the trapezium and the top of the navicular. "I think the patient is developing some osteoarthritis", the doctor wrote. It was written that if Hudson continued to have difficulty he might benefit by localized fusion. It was further noted that Hudson had had a carpal tunnel release done about a year ago and seemed to have recovered well from that. "He apparently used a shovel for many years and the shovel occupation may have contributed to his previous carpal tunnel problem", Dr. Keohane wrote. The doctor noted that Hudson was interested in filing a workers'

compensation claim; Dr. Koehane wrote that he suggested to Hudson to talk to Dr. Powell about this, but it seemed reasonable that it was related causally. In the next entry of 07/17/00 it was written that Hudson was being re-evaluated with regard to his hands; it was noted that Hudson had some degenerative arthritis in his carpal bones. It was noted that Hudson was principally concerned because he thought this should be involved with a workers' compensation problem. "He has been retired a couple of years", the doctor wrote. It was noted that Hudson had been using Lodine on a regular basis which he obtained through Veteran's Hospital. In the final entry of 04/16/01, it was written that Hudson had complaints of bilateral hand and wrist pain, and burning in his wrist. It was written that "an EMG and nerve conduction studies that suggest either peripheral neuropathy and/or carpal tunnel syndrome and or ulnar nerve neuritis. Dr. Keohane wrote that Hudson's symptoms suggested that most of his trouble was with the ulnar nerve. It was noted that Hudson was using Lodine and had a complicated medical history; it was again written that it was possible he might benefit by some operative care, but it was not clear at this point.

An 11/30/00 entry noted that Hudson had complaints of left knee pain; it was written that Hudson had fallen several weeks ago down an embankment, but his knee bothered him before that as well. With no clinical findings, the recommendation was for observation of his symptoms.

K. Records from Dr. William Greer, M.D., dates March 15, 2001 and October 11, 2001 (No. P) consisted of two examination entries (both cc'd to Dr. Farrell and Dr. Ross) In the 03/15/01 entry, it was noted that Hudson returned for follow-up of bilateral upper extremity numbness and hand pain. He continues to demonstrate normal tone, bulk, and strength throughout the upper extremities including a detailed examination of the hand muscles, the doctor wrote. Dr. Greer found the Tinel's and Phalen's signs to remain negative over the median nerve, but percussion of the ulnar nerve in both arms still produced tingling in digits four and five of the hand. Dr. Greer wrote that Hudson was improving somewhat with conservative care of anti-inflammatory medication and avoidance of mechanical injury; the doctor recommended that conservative care be continued, and follow-up in six months. In the 10/11/01 entry, Dr. Greer noted that Hudson had had a repeat nerve conduction study and had had a right median nerve release and ulnar nerve transposition, and apparently the same was planned for the left; the doctor noted that Hudson also reported having a had a sleep study. None of these reports are available to me, the doctor wrote. Dr. Greer noted similar exam findings on the left; it was noted that the right arm was bandaged up to the hand. Dr. Greer wrote that 'as the clinical management of his median and ulnar neuropathies is being handled by others, follow-up with me will be on an as-needed basis".

L. Records of Dr. Subbaroa Polineni, M.D., hand surgeon, period July 26, 2001 - October 22, 2002 (No. F) reflected that Hudson was seen for the first time on 7/26/01 by referral from Dr. Powell. It was noted that Hudson complaint was pain over both hands and thumbs. Dr. Polineni ordered x-rays of bilateral hands and wrists, and a 08/05/01 x-ray report noted findings of:

1. Bilateral osteoarthritic changes in the scaphoid-trapezium and scaphoid-trapezoid joints with associated subchodral cysts, left greater than right. The associated nonspecific diffuse soft tissue swelling in both wrists may be related to the osteoarthritic changes.
2. Radiopacity in the soft tissue overlying the right distal phalanx which likely represents a retained splinter.

Dr. Polineni had repeat EMG nerve conduction studies performed, and wrote in a 8/20/01 entry that they revealed Hudson "has a clear cut ulnar nerve problem at the elbow with denervavtion changes in the ulnar nerve intervated muscle s of the right hand". (sic) The doctor wrote that having the ulnar nerve released at the elbow would help Hudson. Dr. Polineni performed surgery on 09/07/01 (the name of the surgery was left blank); the post-operative diagnosis was - 1. Ulnar nerve compression, right elbow region; and 2. Median nerve compression, right wrist. The doctor performed a second surgery on 09/28/01 of a scaphoidtrapezial-trapezoid carpal joint fusion; the post-operative diagnosis was scaphotrapezial joint degenerative arthritis. In a 10/15/01 post-op entry, it was written that Hudson was doing fine, the splint was removed, and a thumb spica cast was applied; it was noted that a pin was protruding so Hudson was placed on anti-biotics. The next and last entry of 10/22/01 noted that there was no signs of infection, and Hudson was to return in 3 weeks.

Additional records from Dr. Polineni for the period November 12, 2001 to September 16, 2002 (No. G) indicated further post-op treatment. In an Attending Physician's Statement of Disability, dated 11/14/01, Dr. Polineni indicated that for the diagnosis of - Status post op scaphotrapezial joint degenerative arthritis, and Status post op ulnar and median nerve compression right hand ${ }^{[6]}$, Hudson's symptoms had first appeared in approximately 1998, that he had ceased work because of disability on 09/06/01; it was indicated that the condition was not a condition of Hudson's employment; the doctor indicated that he was aware of Hudson's main duties in his usual work, and that Hudson was disabled from performing his work from 09/06/01 indefinitely, and the doctor further indicated that Hudson was disabled from performing all other types of work indefinitely; the doctor indicated that Hudson's physical impairment was - Severe limitation of functional capacity, incapable of minimal (sedentary) activity 75-100\%.

In a 01/17/02 entry, Dr. Polineni wrote that the fusion was healing very well, and Hudson was ready to have the

other hand done. A 02/13/02 operative report indicated that Dr. Polineni performed the operation of - triscapho-fusion, left wrist; the post-operative diagnosis was - scaphotrapezial and scaphotrapezoid arthritis, left wrist. The record reflected post-operative treatment. In a 05/02/02 entry, the doctor wrote that Hudson was doing fine, that he was started on more everyday activities and exercises. Dr. Polineni noted in a 06/10/02 post-op entry that Hudson was continuing to ask about the median and ulnar nerve symptoms on his left side; an EMG NCV was ordered. A form from Orthologic Corp, dated 07/01/02, reflected that a bone growth stimulator had been received and that Hudson's insurance had authorized the unit, and their coverage was 100 % with 80 % coverage and financial assistance on the 20 %. It was written in the 08/01/02 entry that the NCV studies were reviewed and were within normal range. In the last treatment entry of 09/16/02, Dr. Polineni wrote that Hudson would be continued on a bone stimulator for another 2 months, and if needed he could do the disability report.

M. Records from HealthSouth concerned evaluation and treatment on December 18, 2001 and on May 3, 2002 (No. H). The 12/18/01 record noted a diagnosis of right wrist/hand -- arthritis, degenerative joint disease - wrist; injury date was noted as - January 1, 2001; surgery date was noted as September 29, 2001, and performed by Dr. Polineni. It was written that Hudson reported the carpal tunnel syndrome/arthritis was the result of repetitive shoveling from 1990-98; the record noted that Hudson was retired. The 12/18/01 record indicated Hudson was seen for a one-time visit to properly fit and instruction on use of a wrist/thumb spica.

The 05/03/02 record indicated that Hudson presented status post left wrist fusion on 2/14/02 and referral status post pin removal for thumb spica splinting. The 05/03/02 record noted a date of injury of 01/01/02; it was noted that Hudson was retired.

N. Records of Dr. Jacques Herzog, M.D. of The Center for Hearing and Balance Disorders concerned the annual evaluation of Hudson on 2/15/2000 and on 1/23/01 status post removal of a large left acoustic neuroma. (No. I) The 02/15/00 entry noted that Hudson's difficulty with postoperative disequilibrium had continued and had created difficulty with his ability to continue to work and drive a car, though he is able to ambulate; it was further noted that Hudson was having difficulty with a persistent frontal headache which may be related to his underlying hydrocephalus, and that Hudson was under management of Dr. Chandos. The 01/23/01 entry included the following:

He is continuing to have difficulty with disequilibrium, however he is able to drive a car. He describes difficulty associated with ambulation, particularly on uneven surfaces. Hearing is subjectively stable. The tympanic membranes are intact bilaterally. Audiogram reveals a profound left loss consistent with a trans labyrinthine removal of the acoustic neuroma two years ago. The right reveals a continued severe high frequency sensorineural hearing loss essentially unchanged from his last visit.

It was further written in the 01/23/01 that an MRI of the head would be performed, and Hudson would return in one year.

Dr. David T. Volarich, D.O. testified by deposition on behalf of the claimant. (No. C) The doctor identified his Independent Medical Examination Report after seeing Hudson on July 18, 2003 (Dp. Exh. No. 2); the exhibit was offered into evidence without objection (See, Volarich Dp. pg. 7-8)

Dr. Volarich discussed his extensive examination findings. Medical records were reviewed, the doctor stated. Dr. Volarich testified as to his diagnoses after evaluation of Hudson:

"I had several diagnoses. First, with reference to the injury date leading up to June of '99, my diagnoses included overuse syndrome, right upper extremity, most consistent with median nerve entrapment at the wrist, or carpal tunnel syndrome, aggravation of CMC, which is carpal/metacarpal degenerative arthritis, and impingement of the shoulder.

The second was status was post endoscopic carpal tunnel release with poor result, followed by open carpal tunnel release, CMC fusion involving the scaphoid, trapezium, and trapezoid, and right shoulder subacromial decompression.

Next was status post endoscopic left carpal tunnel release with poor result, followed by CMC fusion involving the scaphoid, trapezium and trapezoid, and left shoulder subacromial decompression.

As far as pre-existing diagnoses, those included: Bilateral shoulder bursitis, historic right elbow dislocation, chronic cervical syndrome, including disc bulges at C5-6 and C6-7, with degenerative disc disease and degenerative joint disease diffusely throughout the cervical spine, left acoustic neuroma status post translabyrinthine resection.

Next was postoperative hydrocephalus, status post shunt placement. Next was shunt infection, status post removal and replacement with a ventriculoatrial shunt. Next was right knee septic bursitis, status post open

repair. Next was bilateral inguinal hernias status post repairs, asymptomatic.

Subsequent diagnoses included right elbow cubital tunnel syndrome, status post decompression. And secondly, anterior cervical discectomy and fusion at C5-6 and C6-7 with instrumentation." (Volarich Dp. pp. 1718)

The doctor testified about his opinion on the substantive causative factor that brought about the conditions he diagnosed:

"It's my opinion that the repetitive nature of Mr. Hudson work, as described in the history and job activities section of my report, especially the extensive shoveling, are the substantial contributing factors causing the multiple overuse and repetitive trauma injuries to both upper extremities, including bilateral carpal tunnel syndrome, bilateral shoulder impingement, and aggravation of bilateral thumb CMC degenerative arthritis, all of which required extensive surgical repairs." (Volarich Dp. pg. 19)

Dr. Volarich stated that it was his opinion Hudson was at maximum medical improvement when he saw Hudson on July 18, 2003.

The doctor agreed that he reviewed medical records regarding treatment Hudson had received for the conditions he had diagnosed with regard to the primary claim against the employer. He was queried if the treatment Hudson had received was reasonable and necessary to cure and relieve him from the effects of those conditions. Dr. Volarich answered: "In my opinion it was. It was what was necessary to treat the severity of all the problems that he had." (Volarich Dp. pg. 20) When asked if he had had an opportunity to review the medical bills associated with that treatment, the doctor responded - "I have about an inch stack of bills." (Volarich Dp. pg. 46) Agreeing that the costs associated with that treatment was reasonable and customary, Dr. Volarich further testified: "Those are the standard charges for the surgeries that he had in the St. Louis metropolitan area." (Volarich Dp. pg. 45)

Dr. Volarich testified as to his opinion of any disability he attributed to the conditions Hudson had:

"I had several opinions regarding disabilities leading up to the 6/99 accident while in the employ of LaFarge Quarry, including: A 50\% permanent partial disability of the right upper extremity rated at the carpal/metacarpal joint of the thumb due to aggravation of arthritis that required fusion of the scaphoid, trapezium and trapezoid. This rating accounts for pain, weakness and lost motion in this digit.

Similarly, there is a 50\% permanent partial disability of the left upper extremity rated at the carpal/metacarpal joint of the thumb due to the aggravation of arthritis that required fusion of the scaphoid, trapezium and trapezoid. This rating accounts for ongoing pain, weakness and lost motion in this digit.

There is a 50\% permanent partial disability of the right upper extremity rated at the wrist due to the carpal tunnel syndrome that required two separate surgical repairs. This rating accounts for pain, paresthesias, weakness and lost motion in the dominant hand.

There is a 35\% permanent partial disability of the left upper extremity at the wrist due to the carpal tunnel syndrome that required two separate surgical repairs. This rating accounts for pain, paresthesias and weakness as well as lost motion in non-dominant hand.

There is a 35\% permanent partial disability of the right upper extremity rated at the shoulder due to the impingement syndrome that required open subacromial decompression. This rating accounts for pain, lost motion, weakness and crepitus in the dominant arm.

There is a 35\% permanent partial disability of the left upper extremity at the shoulder due to the impingement syndrome that required open subacromial decompression. This rating accounts for pain, lost motion and weakness, as well as crepitus in the non-dominant arm.

In addition, I thought there was a 25\% permanent partial disability of the body as a whole that I offered as a multiplicity factor due to the combination of injuries to the upper extremities.

I think I misspoke a minute ago. In the left hand he did not have two carpal tunnel releases. It was just one (single release)." (Volarich Dp. pp. 20-22)

The doctor discussed the disabilities he had assessed as to pre-existing medical conditions:

"I have several opinions there, as well. Pertaining to his pre-existing medical conditions, it's my opinion that there was a 15 % permanent partial disability of each upper extremity at the shoulder due to the chronic bursitis causing ongoing pain and contributing to lost motion and weakness leading up to June of '99.

There was a 15 % permanent partial disability of the right upper extremity at the elbow due to the dislocation that caused recurrent soreness and stiffness at the elbow leading up to June of '99.

There was a 25 % permanent partial disability of the body as a whole rated at the cervical spine due to his

chronic cervical syndrome, including disc bulging at C5-6 and C6-7, as well as the degenerative disc disease and degenerative joint disease, all of which contributed to pain, loss motion and headaches leading up to June of '99.

There was a 35 % permanent partial disability of the body as a whole rated at the central nervous system due to the acoustic neuroma that required extensive surgical resection, as well as the hydrocephalus that required two separate repairs and shunt placements. This rating accounts for ongoing headaches, loss of hearing, disequilibrium and tinnitus leading up to June of '99.

There is a 30 % permanent partial disability of the right lower extremity at the knee due to the septic bursitis that required open repair. This rating accounts for ongoing pain, weakness and crepitus in the right lower extremity.

Disability from his hernias was not identified since he was asymptomatic after repairs." (Volarich Dp. pp. 22-24)

The doctor gave his opinion of whether or not the primary injuries and the pre-existing injuries or conditions he had diagnosed were obstacles or hindrances to Hudson's employment or reemployment. "In my opinion they were obstacles to employment or reemployment." (Volarich Dp. pg. 46) (Ruling: Objection on grounds of - calls for a vocational opinion - is overruled. Volarich Dp. pg. 46)

Dr. Volarich was asked his opinion as to the effect of the combination of the pre-existing conditions and the conditions he attributed to the primary claim against the employer: "In my opinion the combination of the disabilities creates a substantially greater disability than the simple sum or total of each separate injury or illness, and a loading factor should be added." (Volarich Dp. pg. 25)

Dr. Volarich was asked to explain an acoustic neuroma:

"An acoustic neuroma is a tumor in the inner ear on the nerve that provides the sense of hearing. It grows on that nerve. It displaces bone, it displaces other neurogenic structures. It continues to grow as a malignancy.

It doesn't metastasize like other tumors do, but this causes a lot of local damage. A lot of expansile damage to the bone and nervous structures, and will cause deafness because it completely - to be removed you have to cut the nerve completely. So that's how he lost hearing in that ear.

Because of the location of that tumor and because of the type of surgical repair, he developed a blockage between the different ventricles in the brain, causing the ventricles to enlarge. The term 'hydrocephalus', that's what that means. That has to be repaired by putting a shunt in there to drain it. You put the shunt inside the ventricle, pass that shunt down under the skin of the scallop through the neck, down into the abdomen initially. The second time it went into the heart.

That is necessary to keep the patient from becoming demented, from having more problems with equilibrium, or to lose urinary continence and so forth. So this is a major problem in his brain that all occurred as a result of the tumor." (Volarich Dp. pp. 24-25)

Dr. Volarich agreed that Hudson had subsequent conditions and diagnoses that he felt were not pre-existing or related to his employment at LaFarge: a. Ulnar neuropathy of the right elbow, and b. Cervical fusion. The doctor testified as to any disability he had assessed for these subsequent conditions:

"As far as the right elbow disability, I thought that there was a 30\% permanent partial disability of the right elbow due to the ulnar neuropathy that required decompression, and that continued to cause ongoing weakness and paresthesias in the dominant arm.

As far as the neck and the cervical fusion, I thought there was an additional 30\% permanent partial disability of the body as a whole rated at the cervical spine due to the two-level anterior cervical discectomy and fusion, with instrumentation, at C5-6 and C6-7. It also contributes to pain, lost motion and headaches." (Volarich Dp. pg. 26)

It was noted that Dr. Volarich, in his report in the section entitled "Past Medical Background" he had indicated Hudson had a history for depression, high cholesterol and hypertension, but the doctor did not rate these conditions. "I did not. I don't believe that the high cholesterol or hypertension caused him any difficulties at work. I would defer to psychiatry as far as his depression." (Volarich Dp. pg. 39)

The doctor was asked his opinion as to whether Hudson was capable of engaging in any substantial gainful activity or employment. Dr. Volarich testified:

"It's my opinion that he's unable to engage in any substantial gainful activity, nor could he be expected to perform in an ongoing working capacity in the future.

It's my opinion he could not be reasonably expected to perform on an ongoing basis eight hours a day, five days a week out of the work year. It's also my opinion that he is unable to continue in his line of employment that he last held as a laborer and a driver for the LaFarge Quarry, not could he be expected to perform and work on a full-time basis in a similar job.

Based on my medical assessment alone, it's my opinion that Mr. Hudson is permanently and totally disabled and unable to return to the open labor market as a direct result to of the injury leading up to 6/99 in combination with his pre-existing medical conditions.

He was totally disabled before the development of the (right) ${ }^{[7]}$ elbow ulnar neuropathy or the need for spine fusion." (Volarich Dp. pp. 26-27)

Dr. Volarich agreed it was his opinion that even without consideration of the subsequent cervical fusion or the subsequent development of right ulnar neuropathy, that Hudson was totally disabled.

Dr. Volarich testified as to his opinion regarding any future or additional treatment for Hudson:

"I had several general considerations for treatment. In order to maintain his current state, he will require ongoing care for his pain syndrome using modalities including but not limited to narcotics and non-narcotic medications, including nonsteroidal anti-inflammatory drugs, muscle relaxants, physical therapy, and similar treatments as directed by the current standard of medical practice for the symptomatic relief of his complaints.

"When I saw (Hudson) I did not think additional surgery was indicated." (Volarich Dp. pg. 28)

The doctor agreed that with regard to Hudson's ability to work and other, he assigned a number of restrictions referable to the elbows, wrists and hands, referable to the shoulders referable to the spine, referable to the lower extremities, referable to his central nervous system (including difficulties with the acoustic neuroma and hydrocephalus).

On cross examination, it was noted that the doctor had indicated in his report the date of injury as "Up to June of 1999", and Dr. Volarich was queried if Hudson had relayed a specific date when he was injured. The doctor answered: "No. This is up to how long he was employed, I believe, at LaFarge Quarry. This was not a one-time incident for the upper extremity injuries." (Volarich Dp. pg. 33) Stating that he believed it was correct that the last time Hudson had actually worked was in February of 1999, Dr. Volarich further testified: "I think that's what he told me. But again, it was my understanding he was still employed until June." (Volarich Dp. pg. 33) Dr. Volarich gave more testimony in regards to the development of Hudson's problems:

"I don't believe - well, again, there was a developmental thing for several years leading up to June of '99. So if we can phrase that to say that up to the development of symptoms referable to the 6/99 claim, all of these things are from these injuries to the upper extremities and the current claim here.

I don't believe there was anything before let's say five or ten years ago that would relate to the kind of problems he reported to me here.

"Because this is a repetitive trauma claim, the symptoms don't develop overnight. It takes a period of time. In this case I think it was several years that they were in the making, because of the severity of the problems.

The aggravation of the arthritis, for example, in the thumbs, the entrapments, the impingement in the shoulders and so forth all take several years to develop. So to say were they present before June of 99, yes, they were in there developmental stage for those three or four years up to that time.

If we go back and say had it not been for the repetitive trauma to the wrist and hands would he have those symptoms from some other problem before this? No, he didn't." (Volarich Dp. pp. 34-35)

Dr. Volarich admitted, during cross examination, he did not review any medical records that specifically made the diagnosis of bursitis for Hudson. "There were a couple of notes referencing shoulder pain, trouble sleeping and so forth, but nothing specifically where he had injections, or that diagnosis", the doctor stated." (Volarich Dp. pg. 36) The doctor admitted that he did not review any records that documented Hudson had a right elbow dislocation in 1961. Dr. Volarich agreed that there was nothing in the medical records indicating Hudson was on any kind of restrictions relative to his shoulders or relative to his right elbow prior to June of 1999. Hudson was on restrictions relative to his knees for a short time prior to June of 1999 because surgery was done in March, the doctor said, "(B)ut I don't think there was any permanent restriction placed by his treating surgeon". (Volarich Dp. pg. 38) Dr. Volarich agreed that with regard to his neck, Hudson was working full duty without restrictions up until June of 1999, and with regard to his hernias, Hudson did not report any hindrance in his ability to perform his work activities. When queried wasn't it correct that before June 1999

Hudson was working full duty without any permanent restrictions, Dr. Volarich responded - "As far as I know." (Volarich Dp. pg. 40) When questioned if Hudson had any prior medical history of arthritis, the doctor answered:

"There is no question he had arthritis that developed over the years just from the wear and tear of the type of work that he did. Let me look and see if his family doctor had treated him.

Yes. I see in 1995 Dr. Farrell, his family doctor, had him on Relafen, which is a non-steroidal antiinflammatory. It looks like neck pain is what he was treating him for back then. This is 3/9/95." (Volarich Dp. pg. 40)

Dr. Volarich agreed that he had listed the medications Hudson was on at the time he saw Hudson, and which of these medications Hudson was on prior to June of 1999. Agreeing that Hudson is currently treating for his headaches, Dr. Volarich further stated: "One of the medicines that he is taking is Phrenilin, which is a barbiturate that is used specifically to treat headaches." (Volarich Dp. pg. 42)

The doctor agreed, during cross examination, that he is not a vocational expert. Agreeing that he would defer to the opinion of a vocational expert as to whether or not Hudson is employable in the open labor market, Dr. Volarich stated: "If they can find a job for which he is suited based on the limitations that I suggested, I don't have any problem with him trying." (Volarich Dp. pg. 45)

Dr. Russell Cantrell, M.D. testified by deposition on behalf of the employer/insurer (No. 1) Board certified in physical medicine and rehabilitation, Dr. Cantrell stated that he examined Hudson on December 2, 2004. The doctor noted Hudson's relayed history:

"He told me that he had worked for 20 years as an over-the-road truck driver. And for seven years prior to ceasing employment had worked on the crush end of an operation at LaFarge, which is a company that manufactured a crushed limestone. And he had also indicated that he would intermittently shovel gravel that spilled off of conveyors. He reported that his company had gone through several name changes. And in 1996, he was terminated after a confrontation with his employers but had his job reinstated in 1997. When he returned back to work, he was placed back on a job where he had to shovel gravel and limestone and did that for sometimes greater than eight hours per day, five to six days per week." (Cantrell Dp. pg. 7)

Previous diseases or injuries relayed by Hudson was noted by Dr. Cantrell:

"He had a past medial history, yes, for coronary artery disease, high blood pressure, cardiac arrhythmia, restless leg syndrome, and abnormal sleep patterns. And he had indicated that he had undergone several sleep studies, one of which was performed in 1995. He also indicated that he took a variety of different medications. The ones he recalled taking were Lorazepam, Neurontin, Quinazepam, Daypro, Depakote, along with a cholesterol lowering medication, some various cardiac medications with a recent addition of a beta-blocker, aspirin, and a multivitamin. He also reported that he had bilateral leg edema." (Cantrell Dp. pg. 8)

Dr. Cantrell agreed that Hudson had told him that in 1998 he had had carpal tunnel releases, which were performed by Dr. Powell. Hudson relayed "he had continued to have pain complaints in his wrists and hands despite the carpal tunnel surgery, but he had gone back to his regular duties thereafter", the doctor noted. (Cantrell Dp. pg. 8) Dr. Cantrell stated that in February of 1999 Hudson was ultimately diagnosed with an acoustic neuroma in his left ear. "The symptoms of which were ringing in his left ear and he had ultimately undergone surgery for that in February of 1999". Agreeing that Hudson expressed to him at the exam his feelings with regard to his being able to go back to work after the February 1999 surgery, Dr. Cantrell testified:

"He knew that he was going to lose hearing in his left ear because of the nature of the surgery. What he experienced after surgery was a loss of balance and severe headaches after the surgery. At that time, he had reported to me that he knew he was not going to go back to work." (Cantrell Dp. pg. 7)

The doctor agreed the Hudson described some surgery he had with Dr. Polineni:

"He had indicated that because of the continued complaints in his hands even after the continued complaints in his hands even after the carpal tunnel release, he was referred by his primary physician to Dr. Polineni; and Dr. Polineni had performed a repeat carpal tunnel release surgery as well as a right ulnar nerve release surgery he believed in the year 2000. And he had later performed a fusion surgery near the wrist of both of his hands because of ongoing pain complaints in that area." (Cantrell Dp. pp. 9-10)

Dr. Cantrell agreed that Hudson had some treatment from Dr. Powell:

"Let's see, Dr. Powell was the physician who had performed his carpal tunnel release and Dr. Powell had later seen him for complaints in his shoulders and had performed cortisone shots in his shoulders and later performed bilateral subacromial decompression surgeries in his shoulders." (Cantrell Dp. pg. 10)

The doctor noted that a review of medical records revealed that in October 1996 Hudson had complaints of headaches and "reference was made to a head and neck injury that occurred in the 1950's". (Cantrell Dp. pg. 13) Doppler flow studies "were ordered in November of 1996 due to complaints he was having then of bilateral rest pain in his legs as well as a history of back problems", Dr. Cantrell noted. (Cantrell Dp. pg. 13) The doctor stated that medical records from 1997 revealed that "(A)t that time, he had a short-term history of pain in the left shoulder blade area presenting with a history that he shoveled at work. Also mention in that record was reference to carpal tunnel treatment provided by Dr. Farley. At that time, he was found to be tender along the medial scapula border and was diagnosed with a left scapular strain." (Cantrell Dp. pg. 14) In October of 1997 Hudson had "pain in his lower back with what was thought to be probable degenerative disk disease and SI joint syndrome", the doctor said, x-rays "revealed some small osteophytes anterior to the L3 and the L4 vertebra". (Cantrell Dp. pg. 14) Dr. Cantrell agreed that Hudson had negative thoracic x-rays in October 1997. February 26, 1998, the doctor testified, Hudson "again had some pain complaints in the left shoulder blade and arm pain in his arm that improved with Relafen but not completely. And the doctor at that time had indicated he remained tender along the medial left scapular area and was again diagnosed as having a muscular strain." (Cantrell Dp. pp. 16-17) In March of 1998 Hudson saw Dr. Powell again, the doctor agreed, and "(A)t that time, Dr. Powell had made note of a diagnosis of bilateral carpal tunnel syndrome noting that utilization of splints and Relafen had not provided much her (sic) much improvement and that electrodiagnostic studies were consistent with carpal tunnel syndrome". (Cantrell Dp. pg. 16) 1998 records from St. Charles Clinic "were from Dr. Goldstein regarding referral to a neurologist for a diagnosis of carpal tunnel syndrome", Dr. Cantrell noted. (Cantrell Dp. pg. 14) Dr. Powell's "records from April of 1998 indicate that Mr. Hudson was status post bilateral endoscopic carpal tunnel releases and was doing well with the numbness having nearly resolved", the doctor noted. (Cantrell Dp. pg. 16) Records from August of 1998 indicate that Dr Powell felt Hudson "was doing well in regard to his carpal tunnel release surgery, but he did have some pain complaints in his right elbow and in his left thumb, Dr. Cantrell stated. (Cantrell Dp. pp. 16-17) In December of 1998 Hudson had an MRI scan "apparently because there was a loss in the discrimination of hearing in his left ear"; subsequent medical records, though, appeared to indicate they at first were not able to do an MRI scan due to some metal shavings in one of his eyes, the doctor noted. (Cantrell Dp. pg. 17) Dr. Cantrell agreed that in January of 1999, Hudson had complaints at the CFC joints of both thumbs and was given a steroid injection, and he also had a prescription for complaints of leg cramps. In February 1999 Hudson ultimately did undergo the MRI scan, the doctor testified, "and was found to have findings consistent with an acoustic neuroma and then had some complications following surgery where he had some severe headaches and was diagnosed as having a chemical meningitis, thereafter, and then later had improvements in his headaches and was thought to have a hydrocephalus diagnosis for which he later underwent a ventriculoparitoneal shunt". (Cantrell Dp. pg. 18)

Dr. Cantrell discussed the findings upon examination of Hudson. The doctor agreed that his review of medical records revealed that Hudson was on some additional medicine including Paxil, an anti-depressant.

The doctor agreed it was his understanding Hudson had stopped working in February of 1999.

In May 1999 Hudson had an MRI scan because of neck pain, Dr. Cantrell stated, "(A)nd that showed an annular disk bulge posteriorly with osteophytic ridging without spinal cord impingement at the C5-6 and the C6-7 levels with lateral spurring and foraminal encroachment.....Those findings could be best summed as degenerative changes at the C5-6 and C6-7 levels...". (Cantrell Dp. pg. 19)

In November 1999 Hudson had some complaints in his shoulders for which he received some subacromial cortisone injections, the doctor noted. Dr. Cantrell further testified:

"He had advised his physician in December of '99 that the symptoms in his shoulders had improved short term with the cortisone injections. At that time, he was having no complaints of numbness or tingling in his arms and his symptoms were confined to the shoulders. And the x-rays then had revealed some degenerative changes within the acromioclavicular joint of the shoulder. He then in December of '99 had undergone what appears to have been an acromioplasty of the left shoulder." (Cantrell Dp. pp. 19-20)

The doctor explained that an acromioplasty is where "the surgeon through surgical procedure shaves away bone spurs which might be causing impingement of the rotator cuff". (Cantrell Dp. pg. 20) The doctor was asked his opinion of whether or not the bone spurs appeared to be degenerative in nature, or caused by some trauma or repetitive trauma.

Dr. Cantrell answered: "They appear to be degenerative in nature. They were bilateral and there were records earlier which had indicated the onset of the shoulder pain complaints in which there was not any history of a fall or trauma." (Cantrell Dp. pg. 20) Shortly thereafter in January 2000 Hudson "had similar surgery to his right shoulder, yes", Dr. Cantrell said. (Cantrell Dp. pp. 20-21) Discussing February 2000 entries, Dr. Cantrell stated that Dr. Powell, who had done the surgeries, noted Hudson was doing very well in regards to his left shoulder and was regaining motion in his right shoulder. Dr. Herzog, in February 2000, Dr. Cantrell said, wrote that Hudson "was one year out from his acoustic neuroma removal, still having some postoperative disequilibrium creating difficulty for him in his abilities to work and drive a car. Although, he did note that he was able to walk." (Cantrell Dp. pg. 21) Dr. Cantrell noted that Hudson saw Dr. Powell in March 23, 2000, several months out from his shoulder surgeries, "(A)nd Dr. Powell had noted he was doing well without complaints, had a full range of motion, and normal strength in both of his shoulders without any further follow-up scheduled". (Cantrell Dp. pg. 21) Dr. Cantrell stated that it would appear this was the date Hudson was at maximum medical improvement for the condition to his shoulders.

Hudson returned to Dr. Powell in May 2000 "with complaints of pain in his wrist and hand and x-rays were done revealing developing osteoarthritis in the trapezium and navicular areas of his wrist". (Cantrell Dp. pg. 22) He was seen by Dr. Keohane for follow-up in May of 2000, Dr. Cantrell said, and "I guess he had mentioned to Dr. Keohane interest in filing complaints in is wrist as being work-related, and Dr. Keohane had referred him back to Dr. Powell in that regard", Dr. Cantrell said. (Cantrell Dp. pg. 23) Dr. Cantrell agreed it was noted at that time that Hudson had recovered from his carpal tunnel surgery. In July of 2000 Hudson was seen by Dr. Keohane, Dr. Cantrell said, and discussed what the record revealed:

"Dr. Keohane had noted Mr. Hudson's concerns about whether these complaints were related to his prior work. He noted he had been retired for a couple of years. He noted x-rays revealed carpal arthritis between the navicular and the trapezium and mild changes at the basil joint of the thumb. He noted Mr. Hudson's functional capacity seemed reasonable, but that he may benefit from a limited intercarpal fusion. But that immediate fusion surgery was not recommended." (Cantrell Dp. pp. 23-24)

In August 2000 Hudson presented to Dr. Powell with complaints of numbness and tingling similar to those he had in the past with his carpal tunnel syndrome, Dr. Cantrell stated. "Although Dr. Powell at that time did not note any physical finding on examination but did recommend nerve conduction tests", the doctor said. (Cantrell Dp. pg. 24) Hudson was seen in September, it was noted, and Dr. Cantrell testified: "He had undergone in the interim electrodiagnostic tests which revealed evidence of a possible neuropathy in addition to a possible ulnar nerve entrapment at the elbow and bilateral carpal canal cortisone injections were provided." (Cantrell Dp. pg. 24) Dr. Cantrell commented about Dr. Schlafly's examination of Hudson in July of 2001:

"He noted that there was possible evidence of cubital tunnel syndrome, although he noted that problem apparently did not arise until after he stopped working and could not establish a causal relationship between the cubital tunnel syndrome and his employment; and therefore, could not make any definite recommendations for cubital tunnel surgery. He did feel the carpal tunnel syndrome was caused by his work requirements and provided disability rating in that regard. He further indicated that it was not clear whether he would benefit from any further carpal tunnel surgery given the mixture of what appeared to be both arthritic and nerve problems affecting his hands." (Cantrell Dp. pg. 27)

It was Dr. Schlafly's opinion that Hudson could not go back to work shoveling rock because of those ongoing problems in his hands, Dr. Cantrell said.

Hudson went to see Dr. Polineni in July of 2001 with pain complaints located over the dorsum with wrists movements and a burning sensation, Dr. Cantrell said. The doctor was asked his conclusions after review of a September 2001 operative report:

"The operative note had indicated under the clinical history that Mr. Hudson had been shoveling rock six to eight hours a day and had been doing so for the last several years, which was inconsistent with the history that I was otherwise aware of that he had stopped working in February of 1999 and had not worked since then. The surgery done at that time was a carpal and a cubital tunnel release surgery performed by Dr. Polineni." (Cantrell Dp. pg. 28)

In April of 2002 Dr. Polineni made a diagnosis of degenerative arthritis involving the carpal bones at both wrists; in the interim Hudson had undergone a wrist fusion surgery, Dr. Cantrell noted.

Dr. Cantrell discussed Hudson's treatment by Dr. Piper in 2002:

"He was having complaints in his neck at that time and a repeat MRI scan was ordered, again noting degenerative disk

disease at C5-6 and C6-7, and medical records indicated that thereafter in July of 2002, Mr. Hudson had undergone an anterior cervical disectomy, and interbody fusion at those two levels." (Cantrell Dp. pg. 29)

The following testimony occurred as to Dr. Cantrell's opinions:

Q. Moving to the last paragraph on page ten, you noted that Mr. Hudson presented with a lengthy medical history. Can you tell us what your conclusions were with regard to the medical history and your examination and review of the records indicated?

A. I felt that due to his complicated medical history, which included a combination of both neurologic pathology and muscloskeletal problems, that he was not capable of returning to his regular duty activities. It was my opinions that the carpal tunnel syndrome with which he was diagnosed and for which he underwent endoscopic and open carpal tunnel release surgeries was causally related to his occupational activities. (Cantrell Dp. pp. 29-30)

(Ruling: Claimant's objection is sustained. Cantrell Dp. pg. 30)

Q. (By Mr. Bippen) If we can go back to the bottom of page ten and run through what you've written there and I'll ask questions as we go through.

A. Okay. As indicated earlier, I felt that the occupational activities he had performed between '97 and '99 would be considered a substantial factor in causing the diagnosis of carpal tunnel syndrome. I did not find evidence to support a causal connection between his diagnosis of ulnar neuropathy at the right elbow and his occupational activities.

Q. Why not?

A. I base that opinions on the fact the electrodiagnostic tests performed preceding his first endoscopic carpal tunnel release did not show any evidence of ulnar neuropathy at the elbow and there were no subsequent complaints during the course of his employment reflecting ulnar neuropathy syndrome.

Q. You reached some conclusion - previously within the report, you wrote some, you summarized the history of Dr. Volarich's reports, and we don't have to go through that again, but you reached some conclusions that were in contrast to Dr. Volarich's impressions that were in his report. Can you tell me what those differences are?

A. I noted that Dr. Volarich had indicated that he felt Mr. Hudson had a poor result regarding his initial endoscopic carpal tunnel release surgery which, and upon my review of the medical records, I did not feel that was actually the case. The medical records clearly showed a very good result following his endoscopic carpal tunnel release with resolutions of his symptoms and his ability to return to his regular duty activities.

Q. And then you make some comments with regard to the diagnostic tests. Can you go through those, please?

A. Yes, he, Mr. Hudson, had undergone several different diagnostics tests and has been shown to have osteoarthritis in his neck, both wrists, his low back, as well as in both of his shoulders. I felt that the generalized nature of his osteoarthritis being in multiple joints and symmetrically present would reflect a diagnosis of general osteoarthritis.

Q. Would you say that was a result of his work?

A. I believe that some of his work activities while being performed may have served to temporarily exacerbate the symptoms in his wrists and hands, but I did not feel that his work performed between 1997 and 1999 would be considered a causative factor for the development of that condition, no.

Q. And that would include both of his wrists?

A. Yes.

Q. Did you find any causal connection between the work injury and the cervical arthritis?

A. No I did not.

Q. Did you reach some further opinions then with regard to his medical conditions?

A. Yes. I felt that due to multiple medical conditions, he was not capable of gainful employment. I felt that the proximate cause for his disability was that of the accoustic neuroma for which he suffered some complications thereafter.

Q. You can go through that.

A. I further indicated that the carpal tunnel syndrome that he was initially diagnosed with did not appear to be in and of itself a limiting factor for his work abilities due to the fact that he had returned to his regular duty activities. I indicated that I did not find supporting evidence in the records to establish a causal connection between his complaints in his shoulders and his occupational activities.

Q. Why is that?

A. The medical records had indicated that during the course of his employment, the symptoms he had described were along the medial scapular border inconsistent with a muscular strain, and latent treatment he received, which included subacromial cortisone injections and accommodates in both shoulders was really to address a diagnosis of arthritis at the AC joint itself. And those were symptoms that really manifested after he had quit working.

Q. You mentioned it is noteworthy in reviewing his medical records that he did not present with any ongoing pain

complaints in his shoulders during the course of his employment, what is the significance of that?

A. If you are looking and trying to make a determination where an activity at work or outside of work is the cause of or the exacerbating factor for a person's symptoms, then what you would typically expect to see is the symptoms being present at the greatest when someone is physically active doing the purported cause of the symptoms. And then if that activity is then ceased, then you would expect at the very least the symptoms to decrease and possibly resolve if there isn't correlation between the activity and the symptoms.

Q. And that did not happen in this case.

A. No, it did not.

Q. In fact, if you would review - can you briefly review and tell us what exactly did happen after he stopped working? Was there actually an increase in pain after he stopped working in his shoulders, elbows, wrists, etc.

A. Yes. He had stopped working in February of '99. And the first indication that I see of complaints specific to the shoulder joints themselves was in September of '99 where he presented with no history of fall or traumas. And it was after that, that apparently over the course of the next several months, his pain complaints had persisted and increased to the point he had undergone cortisone shots with only short-term relief and then ultimately the accommodates in the left and right shoulder in December of '99 and January of 2000, respectively.

Q. Going back to page 11, the last sentence f the last paragraph there, it says the degenerative changes present. Can you explain what that sentence is and what it means, please?

A. The - what I had noted was there were degenerative changes present in the acromioclavicular joints of both shoulders. Again, I felt in conjunction with arthritis present in his neck, arthritic findings present in one of his knees as I recall, arthritic findings in both of his wrists. The multilocation of these degenerative changes would suggest a diagnosis of a generalized osteoarthritis and not a relationship to his occupational activities. (Cantrell Dp. pp. 3136)

Dr. Cantrell further testified: "What I noted was that the basis of my opinion that his arthritis in his wrist was not workrelated based on the fact that his symptoms progressively worsened after cessation of employment." (Cantrell Dp. pg 37)

Agreeing that he assigned percentages of disability to all of the body parts he had discussed, Dr. Cantrell testified:

"Five percent at each wrist due to the diagnosis of carpal tunnel syndrome, 10 percent due to the diagnosis of osteoarthritis at each wrist which required intercarpal fusion surgeries, 8 percent at each shoulder due to the diagnosis of AC joint osteoarthritis and secondary impingement, 7 percent in the right arm at the elbow due to the diagnosis of ulnar neuropathy." (Cantrell Dp pp. 36-37)

The doctor was asked his opinion as to when Hudson would have reached maximum medical improvement in regards to the surgeries on his elbows and wrists. Stating that it would vary from surgeon to surgeon and the healing rates of each individual, Dr. Cantrell further stated:

"So I don't know that I can tell you when he did or should have reached maximum medical improvement. I guess we could go back and look at his clinical notes. His surgery was in September of 2001. And the fusion to the wrist joints, there really weren't from my review of the records, enough information to say when exactly he reached maximum improvement in that regard.

"In regards to the wrist fusion surgery, you could probably estimate a three to four month recovery period, yes." (Cantrell Dp. pg. 38)

On cross examination, Dr. Cantrell agreed that he is not a neurologist or a surgeon. The doctor agreed that arthritis can be caused by trauma in certain circumstances. Dr. Cantrell stated that "(I)t depends on the circumstances, yes" that arthritis can be caused by repetitive trauma in certain circumstances. (Cantrell Dp. pg 39) The doctor was further queried specifically about Hudson's circumstances of shoveling rock between 1997 and 1999 sometimes greater than eight hours a day, five to six days a week, could those circumstances result in arthritis. Dr. Cantrell answered:

"In certain areas, potentially, and not in others. Again, it depends. There is a dominance factor. One person is typically right-handed or left-handed dominant. So you would expect to see a predominance or arthritic change, if it's related to repetition and trauma, being present in one side and not necessarily in the other. So when you see bilateral findings and when you see findings in the cervical spine in which there is really not any trauma associated with shoveling, there's no trauma to the cervical spine, that constellation of multiple joint involvement would suggest to me more of a diagnosis of generalized arthritis not related to the repetition of that particular job." (Cantrell Dp. pp. 39-40)

Agreeing that Hudson would have been using his bilateral upper extremities when his job was shoveling for that two-year period, Dr. Cantrell stated - "Again, in a different fashion". (Cantrell Dp. pg 40). Dr. Cantrell admitted that Hudson did not explain to him that he shoveled four hours a day using his left hand and then switched to four hours a day using his right hand, that he did not have a history of how Hudson had shoveled.

The doctor agreed, during cross examination, that the bilateral carpal tunnel releases Hudson had undergone in 1998 were the two carpal tunnel surgeries he related to Hudson's occupation. Dr. Cantrell agreed that he had indicated in his report that Hudson had been having for several years prior to his carpal tunnel complaints and carpal tunnel surgeries symptoms of tinnitus in the left ear and was ultimately diagnosed as having an acoustic neuroma in the left ear. Dr. Cantrell agreed that after the carpal tunnel surgery by Dr. Powell in 1998, Hudson continued to complain of symptoms in both hands and wrists. The doctor was queried wasn't it right that because of those continuing symptoms Hudson was later referred to Dr. Polineni who performed repeat right carpal tunnel release at the same time or around the same time he did a right ulnar release, and the doctor answered - "Yes". (Cantrell Dp. pg 44) The doctor agreed that Hudson actually had one carpal tunnel surgery on the left wrist and two carpal tunnel surgeries on the right wrist. (Cantrell Dp. pg 37) Dr. Cantrell was queried, from Dr. Polineni's and Dr. Powell's record it would appear that a repeat carpal tunnel surgery on the right was due to continuing problems after the 1998 surgery, and Dr. Cantrell responded:

"From my review of the records - I don't know exactly what their opinions were, but from my review of the records, there wasn't a continuation of numbness and tingling. There appeared to be at some later time a recurrence of numbness and tingling in his right arm." (Cantrell Dp. pg. 44)

Dr. Cantrell agreed that a February 15, 1999 MRI of the brain revealed a cerebellar pontine angle tumor on the left with features characteristic of an acoustic neuroma, and also ventricular dilatation consistent with communicating hydrocephalus. When queried if he would agree that these findings were present on and prior to February 15, 1999, Dr. Cantrell answered - "Yes". (Cantrell Dp. pg 51) The doctor agreed that tinnitus is sometimes a symptom of an acoustic neuroma or hydrocephalus; the doctor further agreed that vertigo and also headaches can be associated with an acoustic neuroma. Dr. Cantrell agreed that he had noted several other pre-existing problems and conditions for Hudson, including - coronary artery disease, hypertension, cardiac arrhythmia, restless leg syndrome, abnormal sleep patterns with sleep studies done in 1995, and depression. "I believe so, yes" (Hudson had documentation of degeneration in his low back prior to February of 1999), Dr. Cantrell stated. (Cantrell Dp. pg. 53)

On cross examination by the Second Injury Fund, Dr. Cantrell agreed that his information was that Hudson stopped working in February 1999 after the neuroma was diagnosed. Agreeing that once the condition was realized medically the surgery was set up quickly, Dr. Cantrell stated - "There wasn't much time between the scan performed in mid February of '99 and the surgery performed a little over a week later, yes." (Cantrell Dp. pg. 54) The doctor stated that this fell outside the scope of his practice to know the urgency with which this type of surgery would need to be done. When further queried if this was true - outside the scope of his practice - as to whether or not the same condition that was diagnosed in 1999 could have been present in 1979, 20 years before and could Hudson have done the work that he did and led the life he led those 20 years? Dr. Cantrell answered:

"Again, he wasn't able to tell me how long the tinnitus, the ringing, in his left ear had been present. He said several years. That could mean four or five. It could mean eight or ten or more than ten years. It's typically a symptom that it could begin and then remain present unchanged, or it could begin and worsen gradually over time depending on the cause of that. So as I said earlier, I don't have really enough information from the symptoms that date back, the vertigo and headaches in '99, and how long he had been having the tennitis to know the length of time that the neuroma had actually been present." (sic) (Cantrell Dp. pg. 55)

The doctor was queried, from his understanding of Hudson's work conditions, was it possible that Hudson suffered any work injuries after February of 1999. "Obviously, if he's not working, he doesn't suffer any either acute or repetitive work injuries after ceasing employment. (Cantrell Dp. pp. 55-56) Dr. Cantrell agreed that it was his information that Hudson has never returned to work in any capacity for any employer since he had the neuroma surgery in February of 1999. The doctor was asked if the neuroma was related to Hudson's work, and Dr. Cantrell answered - "No". (Cantrell Dp. pg. 56) Dr. Cantrell's opinion was that a differentiation between his ability to hear out of the left and out of the right ear was not a disabling condition in Hudson's case. The doctor further stated:

"That symptom alone would not necessarily be a disabling condition. I believe in regards to the acoustic neuroma, it was the consequence of the surgery itself. Not simply the loss of hearing in his left ear. That in and of itself would not be a disabling condition, but the impaired balance that he suffered after the surgery that creates challenges for him." (Cantrell Dp. pg. 56)

The doctor was queried if the same would be true for tinnitus, that that wouldn't be disabling in and of itself. Dr. Cantrell answered: "In regards to his occupation, no. I could possibly think of certain - if the tennitis was severe, in certain occupations, you might say that yes, it is something that makes it difficult to do certain types of jobs, you know." (sic) (Cantrell Dp. pg. 57) But in Hudson's case, "(I)t would not, no", the doctor reiterated. (Cantrell Dp. pg. 57)

The doctor was queried, during cross examination by the Second Injury Fund, about his statements in his report based on multiple things Hudson is not capable of gainful employment, and also the statement - the proximate cause for the disability is the acoustic neuroma and the complications; the doctor was asked if he was saying the acoustic neuroma and the sequelae from the treatment in and of itself disabled Hudson. Noting that he was seeing Hudson after Hudson had also undergone a two level cervical fusion, bilateral wrist fusions and bilateral shoulder accommodates, Dr. Cantrell further testified:

"Honestly, to answer that would mean to probably have him prior to having undergone all those additional surgeries have him undergo a functional evaluation where we could assess his balance and impairment of the balance over a period of time. Because again, I think from what I understand, his impairment imbalance was worse immediately after the surgery, but has improved since surgery. And so I don't know that I have enough information, honestly, to answer that question." (Cantrell Dp. pg. 59)

The doctor was asked, looking at the entire picture of Hudson's health and the various condition that he found and testified about would it be fair to say that the bilateral carpal tunnel which was originally treated in either 1997 but operated on in 19998 a fairly minor component of his current picture of disability. Dr. Cantrell answered:

"Well, you could look at tat one of several ways. Somebody could have two diagnoses that both contribute to a disability, one minor, one major; or you can look at a person like Mr. Hudson in which he has multiple medical and orthopedic diagnoses. So if you just look at the sheer number of conditions that he has been treated for and has been operated for, it is overall a minor condition, yes. But just from the sheer number of conditions which he suffered from and is treated for." (Cantrell Dp. pg. 60)

James England, rehabilitation counselor, testified by deposition on behalf of the claimant. (No. B) England stated that he performed an evaluation of Hudson on October 29, 2003 to determine whether or not he thought Hudson was employable in the open labor market. Medical records from 1989 through 2002 reviewed as well as the report of Dr. David Volarich were discussed by England; England noted the restrictions placed on Hudson by Dr. Volarich.

After discussing Hudson's vocational history, England noted: "So I didn't really think he would have any skills that would be usable below a medium level of exertion." (England Dp. pg. 39) England was asked if Hudson would have any transferable skills usable in light or sedentary level of exertion. England answered: "No, because I think all the skills that he had in the past would have involved operation of equipment or trucks, which would require medium level exertion." (England Dp. pg. 39) England agreed that he performed vocational testing on Hudson, and testified:

"Well, I gave him the Wide Range Achievement Test, Revision 3. He scored at a high school level on reading. He scored at the sixth grade level on math. I think those would certainly be adequate for a variety of other positions. I don't think academics would prevent him from alternative work." (England Dp. pg. 40)

England was asked, based on his evaluation, what opinion, if any, did he have with regard to whether Hudson was capable of sustaining employment on a regular basis. England answered: "Well, I felt with the combination of the various medical problems that he had. I didn't believe that there would be any kind of work that he could sustain and perform on a consistent day-to-day basis." (England Dp. pp. 42-43) The doctor testified as to his opinion of whether Hudson is capable of even sedentary work:

"I don't believe that he is because I think sedentary employment typi - even sedentary employment which is the easiest form of work, normally involves communication. This man has a lot of problems hearing. He also has trouble using his upper extremities in repetitive fashion and I think someone who has trouble with communication and with using the upper extremities in a repetitive manner is not really going to be able to do sedentary work that I'm aware of." (England Dp. pg. 43)

England was asked if Hudson would be a viable candidate for vocational rehabilitation, and he answered: "I don't believe that somebody with - at his age, with the combination of problems that he has, would really benefit from any kind of vocational rehabilitation." (England Dp. pg. 43) England was asked his opinion as to whether Hudson is employable in the open and competitive labor market. "I don't believe that he is", England answered. (England Dp. pg. 44)

On cross examination by the employer/insurer, England noted that Hudson had last worked about the end of February 1999. England noted that based on that, he "would say certainly there were a number of problems ongoing before the - the primary injury". (England Dp. pg. 48) England agreed that the medical records revealed prior problems with such ailments as stress beginning in 1994 for which Hudson was still being treated with medication up to the time he saw Hudson, problems with his cervical spine dating back to at least 1995, problems with headaches for which he was still taking medications when he saw Hudson, first records of treatment for hearing in 1995 though Hudson had relayed that his hearing problems began in 1979.

England agreed, during cross examination by the employer/insurer, that he had testified academics would not prevent Hudson from alternative work, so it was his conclusion Hudson was not capable of competing in the open labor market based primarily on functional restrictions. England was asked if the functional restrictions were related to a combination effect and not just hand or upper extremity problems, and England answered:

"I think it's a combination of the hand and the upper extremity problems combined with the back problems combined with the communication problems that he has because of the hearing loss. I mean there are a number of different things. It's not just one condition or another." (England Dp. pg. 53)

Agreeing that Hudson's age was a big factor, England stated: "He's sixty years old. I mean, that's another negative factor that I took into consideration." (England Dp. pg. 53)

On cross examination by the Second Injury Fund, England agreed that he is not a doctor and is not making any judgments as to the causation of Hudson's medical problems. When queried, wasn't it correct that his opinions were based on Hudson as he found him in October of 2003, England responded - "Correct". (England Dp. pg. 57) Commenting on his opinion of the impact of Hudson's hearing loss, England testified:

"I think it's a significant impact, particularly if the person is limited.....from doing more physical kinds of activity and is physically limited to the point where communication becomes a very important factor in what would be otherwise left vocationally, then I think it's really a key factor, particularly since what we typically do with somebody this age who can't do physical kind of work is to find service employment for them. That's usually the most available thing out there in the work force." (England Dp. pg. 58)

When further queried if Hudson's hearing loss and communication problems prevent sedentary type work, England stated: "Well, I mean they - they certainly combining with - with upper extremity problems, they basically knock out I think what - what would otherwise be left as far as sedentary work." (England Dp. pg. 58)

On redirect, England agreed that hearing loss was an issue, but it was a combination of things when talking about other jobs (besides those that would require hearing). Agreeing that he was talking about problems in other jobs because of problems with his back, problems with vertigo and other things, England testified: "This guy's got a lot of different problems and I looked at him as a whole, not just trying to break it up into only this or only that. He's got a lot of different problems." (England Dp. pp. 63-64)

Date: $\qquad Made by: \qquad$

LESLIE E. H. BROWN

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Patricia "Pat" Secrest

Director

Division of Workers' Compensation

[^0]

[^0]: $\overline{[1]} SUMMARY OF THE EVIDENCE begins on page 39.

{ }^{[2]}$ Dr. Polineni wrote in this form that the nature of treatment was: 9-7-01 -- Ulnar nerve decompression right elbow, Median nerve decompression right

wrist, and 9-28-01 -- scaphotrapezial trapezoid carpal joint fusion right hand.

${ }_{13}^{13}$ Note: Section 287.220.1 RSMo 1999, in instances of Second Injury Fund permanent partial disability liability, requires that both the compensable disability and the preexisting disability meet a threshold of "equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability".

${ }_{14}^{14}$ See, Volarich Dp. pg. 40 for the doctor's correct from left to the right elbow.

${ }_{15}^{15}$ Dr. Powell's records (No. J) consisted of 6 pages. The documents included were the 04/15/98 operative report of the bilateral carpal tunnel bilateral wrist surgeries performed by Dr. Powell, the next documents were treatment entries from March 23, 2000 through January 11, 2001, and there was a 08/29/00 nerve conduction studies report by Dr. Yanover. The March 23, 2000 through January 11, 2001 treatment entries were the same ones as in the medical records of - St. Charles Orthopedic Surgery Associates/Dr. Mark Keohane (No. E).

${ }_{16}^{16}$ Dr. Polineni wrote in this form that the nature of treatment was: 9-7-01 -- Ulnar nerve decompression right elbow, Median nerve decompression right wrist, and 9-28-01 -- scaphotrapezial trapezoid carpal joint fusion right hand.

${ }_{17}^{17}$ See, Volarich Dp. pg. 40 for the doctor's correct from left to the right elbow.