James Johnson v. Hertz Corporation

1. Are any benefits awarded herein? Yes
2. Was the injuries or occupational diseases 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: all days worked through November 29, 2005 and thereafter.
5. State location where accident occurred or occupational disease was contracted: Kansas City, Platte County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee drove a shuttle bus for Hertz and repetitively opened and closed doors and handled baggage for many of the passengers who entered and exited his shuttle bus.
12. Did accident or occupational disease cause death? No

Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Both upper extremities
2. Nature and extent of any permanent disability: Not addressed at this temporary hearing.
3. Compensation paid to-date for temporary disability: None.
4. Value necessary medical aid paid to date by employer/insurer? None.

On August 3, 2006, the employee and employer appeared for a temporary hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The employee, James T. Johnson, appeared in person and with his attorney, Michael Downing of Edelman and Thompson. The employer, Hertz Corp., appeared through its attorney, D’Ambra Howard. Although the Second Injury Fund is a party, it did not appear for this temporary hearing. The primary issue presented by the parties is whether the employee’s alleged repetitive traumas caused the need for treatment and temporary disability the employee claims. After considering the evidence, and for the reasons set forth below, I find that the employee’s work was the prevailing factor in causing his bilateral upper extremity complaints and award him both additional medical care and twenty-five (25) weeks of temporary disability benefits for compensation totaling $7,666.75. I return this case to the open docket for further consideration at the request of the parties.

The parties stipulated that:

1. On or about November 29, 2005 ("the injury date"), Hertz Corp. ("Hertz"), was an employer working subject to Missouri's Workers' Compensation law with its liability fully insured by Insurance Company of the State of Pennsylvania;
2. Mr. James T. Johnson was its employee working for employer subject to the law in Kansas City, Platte County, Missouri;
3. Mr. Johnson filed his claim within the time allowed by law;
4. The nature and extent of disability will not be addressed at this time;
5. Claimant's average weekly wage is $\ 460.00 resulting in a weekly compensation rate of $\ 306.67 for temporary total disability compensation; and,
6. Hertz did not provide Mr. Johnson either with any temporary total disability compensation or medical care (other than a March 23, 2006 appointment with Neal Moore, D.O. at Landmark Medical Center).

The parties requested the Division to determine:

1. Whether Mr. Johnson sustained a series of repetitive traumas arising out of and in the course of employment?
2. Whether Mr. Johnson notified Hertz Corp. of the repetitive traumas as required by law?
3. Whether Mr. Johnson is entitled to temporary total disability benefits from January 18, 2006 through April 9, 2006 and again from May 1, 2006 through August 3, 2006 and into the future?
4. Whether Hertz Corp. must provide the employee with medical care?
5. Whether the alleged repetitive traumas caused the need for treatment and temporary disability the employee claims?

Mr. Johnson testified on his own behalf and presented Exhibit A (medical records) which was admitted into evidence.

Although the employer did not call any witnesses, it did present the following exhibits, all of which were admitted into evidence without objection:

Exhibit 1 - Medical reports

Exhibit 2 - Short Term Disability Records

Based on the above exhibits and the testimony of Mr. Johnson, I make the following findings: Mr. Johnson is a 60-year old male residing in Kansas City, Missouri. He commenced his employment with Hertz on August 21, 2003 as a driver of a shuttle bus at the Kansas City International Airport in Platte County, Missouri. His work duties consisted of driving the shuttle as well as the loading and unloading of baggage on a full time basis. This required him to grip and turn the steering wheel on a repetitive basis as well as load and unload baggage for passengers throughout each workday.

In the summer of 2005, Mr. Johnson testified that he developed symptoms in both upper extremities including swelling in his wrists as well as pain and numbness. He did not immediately seek medical attention as he associated these symptoms with arthritis. He was taken off work in October of 2005 for three weeks for an unrelated medical condition, Chronic Obstructive Pulmonary Disease ("COPD"), and then returned to work on October 30, 2005. He worked the entire month of November 2005 with the exception of November 30, 2005 at his normal job performing his normal duties. He testified that his upper extremities continued to bother him during this period, and in fact became worse. He was again taken off work effective November 30, 2005 by his personal physician, Dr. Paul Joslin, as a result of his COPD/bronchitis and edema in his legs. While he was off work consulting with his personal physician, he informed Dr. Joslin of his hand symptoms at an appointment on December 9, 2005. See, Claimant's Exhibit A at 53. In a report dated December 19, 2005 Dr. Joslin noted Mr. Johnson's left hand was numb with pain radiating almost to the elbow. See, Claimant's Exhibit A at 48. Dr. Joslin ordered EMG tests that were completed on December 20, 2005 and revealed "a very severe hypoesthetic condition" in the left upper extremity, and a moderate hypoesthetic condition in the right upper extremity. Id. at 28. At an appointment on January 18, 2006 Dr. Joslin indicated a follow up was needed for carpal tunnel syndrome. Id. at 45. Dr. Joslin released Mr. Johnson to return to work on January 18, 2006 with reference to his COPD/bronchitis/edema in his legs. See, Claimant's Exhibit A at 1. However, Dr. Joslin continued him off work on that day as a result of his carpal tunnel. Id.

Dr. Joslin then referred Mr. Johnson to Gary Baker, M.D. Dr. Baker is a Fellow of the American College of Surgeons who specializes in cosmetic, reconstructive, breast and hand surgery. See, Claimant's Exhibit A at 2. Mr. Johnson consulted with Dr. Baker on January 25, 2006. In a letter dated January 25, 2006 to Dr. Joslin, Dr. Baker noted that as a driver of a shuttle bus Mr. Johnson performed a good deal of repetitive activity including opening and closing the door of the bus, driving the bus, and handling the baggage. This resulted in exposure to vibration from gripping the steering wheel and constantly turning the vehicle, and that he also repetitively loaded and unloaded the baggage compartment of the shuttle van, which required a good deal of pinch and grip activity in each hand in association with repetitive wrist extension and flexion. Dr. Baker concluded that Mr. Johnson's present bilateral upper extremity symptoms and physical signs were "the direct result of work related repetitive activities performed with each hand and wrist while employed by Hertz Corporation in North Kansas City, Missouri." See, Employer's Exhibit 1 at 2. With reference to a treatment plan, Dr. Baker stated that surgical intervention would not be scheduled or attempted until Mr. Johnson received permission from his employer. This is consistent with Mr. Johnson's testimony that Dr. Baker did not schedule surgery because it was a work related condition, which his health insurance carrier would not cover.

Upon receiving Dr. Baker's opinions on January 25, 2006, Mr. Johnson immediately reported to