Don Northern v. St. Luke's Medical Center; SSM St. Mary's Health Center

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based upon my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed. I believe the administrative law judge erred in concluding that employee did not prove that his work for employer caused his carpal tunnel syndrome.

The administrative law judge gave undue credence to the testimony of St. Luke's witnesses regarding employee's duties. The testimony of Mark Novy is entitled to very little weight. He began working for employer five months before trial. He admitted he had no personal knowledge of employee's job duties during the period when employee began to experience symptoms (early 2003). The testimony of Carol Lamping is not worth much more. Ms. Lamping made work schedules but testified that the actual duties employee performed may have varied from the task she assigned when she made the schedule. She admitted that employee's duties in the kitchen involved work for both the cafeteria and patient services but that Ms. Lamping was only knowledgeable about patient services. St. Luke's did not offer into evidence a job description from 2002 and 2003 to establish employee's job duties. The only evidence of the actual job duties employee performed during the time he developed symptoms is employee's first-hand testimony. I find his testimony regarding his job duties at St. Luke's to be the most credible and persuasive on the topic.

The administrative law judge's conclusion that the opinion of Dr. Ollinger is more persuasive than the opinion of Dr. Levy is severely flawed. The administrative law judge displayed his lack of understanding of expert proof when he declared that employee had an, "obligation to prove her [sic] case by methods relied upon by experts in the field." His cite to State Bd. of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. banc 2003) suggests that the administrative law judge finds this standard of proof in $\S 490.065$ RSMo, the statute governing the admissibility of expert testimony. The administrative law judge has taken this evidentiary rule out of context, misstated it, and converted it into something it is not; an element of proof in employee's workers' compensation claim. The Supreme Court of Missouri views § 490.065 differently:

Section 490.065 is the standard for admitting expert testimony in civil cases. State Bd. of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 153 (Mo. banc 2003). That section requires the court to consider whether experts in the field reasonably rely on the type of facts and data used by the expert or if the methodology is otherwise reasonably reliable. If not, the testimony is inadmissible. Id. at 157.

McGuire v. Seltsam, 138 S.W.3d 718, 720-721 (Mo. 2004).

To prove matters beyond lay understanding, a workers' compensation claimant's obligation is to elicit expert testimony regarding causation from, "a witness qualified as an expert by knowledge, skill, experience, training, or education." § 490.065 RSMo. The administrative law judge may sustain an objection to expert testimony if the witness' opinion is not based upon the type of facts and data reasonably relied upon by experts in the particular scientific, technical, or specialized field in which the witness purports to be an expert.

In the instant case, employee offered the expert testimony of Dr. Levy. Dr. Levy is an orthopedic surgeon who completed a five-year surgery fellowship as part of his education and training. He has forty (40) years experience performing surgeries. It is clear that Dr. Levy is qualified as an expert in medical matters by his knowledge, skill, experience, training and education. So what type of facts and data did he rely upon in forming his opinion? Dr. Levy testified that the job duties described to him by employee were hand-intensive, repetitive jobs involving turning, twisting, and lifting with his hands. Dr. Levy relayed that employee told Dr. Levy that his hands were constantly moving and employee's hands got no significant periods of rest. Based upon the job description provided by employee as well as the fact that employee worked more than twice as many hours at St. Luke's than he did at St. Mary's, Dr. Levy concluded that employee's repetitive duties at St. Luke's were the prevailing factor in employee's development of upper extremity problems; carpal tunnel syndrome and cubital tunnel syndrome.

Incredulously, the administrative law judge concluded that Dr. Levy is not an expert because Dr. Levy relied upon employee's job duties and constant hand movement in forming his causation opinion. The administrative law judge goes so far as to characterize Dr. Levy's reliance on employee's job duties and hand movements as

"unconventional."

The administrative law judge's criticism of Dr. Levy is unfounded, especially in light of his acceptance as credible the opinion of Dr. Ollinger. Below I quote how Dr. Ollinger described his analysis. The factors considered by Dr. Ollinger sound very similar to the factors considered in Dr. Levy's "unconventional" approach:

[W]hat I did is take the information that we've already talked about which is his employment at St. Luke's primarily, and the job duties that he had, which we've discussed because I read them to you in my report. I tried to make a medical judgment to a reasonable degree of medical certainty if that work exposure would be at the level of being a substantial factor of proximal cause of cubital trauma injuries and, in this case, bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome.

And what I looked at or at least tried to imagine in my head was the - the denominators of force, repetitions, awkward postures, contact stresses and what we call duration factors, which means how long does someone do one activity, are there rest cycles involved and how long do they do it throughout the day.

(Tr. 142-143) (Emphasis added).

Dr. Ollinger identified only one carpal tunnel syndrome risk factor for employee; morbid obesity. Dr. Ollinger explained that morbidly obese individuals are at greater risk for developing carpal tunnel syndrome. Dr. Ollinger did not say that employee's obesity caused his carpal tunnel syndrome. In fact, Dr. Ollinger never identified any activities that could have caused employee's development of carpal tunnel syndrome, yet, surprisingly, Dr. Ollinger was able to rule out as a carpal tunnel syndrome cause employee's only hand-intensive activity - his dietary aide work. Dr. Ollinger identified no risk factors at all for cubital tunnel syndrome for employee. Yet, again, he was able to rule out employee's intensive upper extremity work as a causative factor.

Although Dr. Ollinger testified that he reviewed a written job description of employee's job at St. Luke's and based his opinion on the written job description, the job description was not offered into evidence. The administrative law judge relied heavily upon the fact that Dr. Ollinger had a written job description in making his credibility determination. Notwithstanding his claim that he was in possession of a job description, Dr. Ollinger's testimony reveals that his opinion was based upon his mistaken belief that employee's duties were essentially like those found on a "cafeteria serving line" or "cafeteria line." "What I did appreciate is what the job duties require an ordinary person to - how to serve food onto a plate doesn't require awkward positions." Dr. Ollinger asked employee few questions about his job duties. Rather, Dr. Ollinger's opinion is admittedly based somewhat upon facts and data he acquired a few years ago getting food in the St. Luke's cafeteria. I cannot accept that observations made in a cafeteria line are the type of facts and data upon which experts in the fields of medicine or ergonomics reasonably rely in forming causation opinions or that this methodology is otherwise reasonably reliable. I simply do not find credible Dr. Ollinger's opinion.

The administrative law judge determined, without the benefit of any evidence, that an ergonomic study is the only data upon which an expert can reasonably rely when forming a causation opinion in a repetitive trauma case. My research reveals no such requirement in the law. Notwithstanding his own conclusion that an ergonomics study is necessary for a valid expert opinion on causation, the administrative law judge finds Dr. Ollinger's opinion probative without such a study by positing, "that hand surgeons have more experience from prior experience with ergonomic studies to more effectively evaluate a case where only general job descriptions and lay descriptions have been provided." Not only has the administrative law judge made up a legal standard of proof, he has also made up an exception to that standard based upon a postulate wholly unsupported by the record. The administrative law judge's determination that Dr. Ollinger is more credible is explicitly founded upon an assumption that Dr. Ollinger has a lot of experience with ergonomics studies. There is no evidence in the record to prove the assumption. I do not believe this unfounded credibility determination should stand.

I believe employee has met his burden of proving a compensable claim. Employee's burden, as established by Missouri courts and quite different from the burden imposed by Administrative Law Judge Joseph Denigan, is summarized below:

[Employee's] burden was not to establish the elements of his case on the basis of absolute certainty, but rather, he only needed to show the elements of his c