Dale Lane v. AmerenUE (a/k/a Union Electric)

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-141467

Employee: Dale Lane

Employer: AmerenUE

a/k/a Union Electric

Insurer: Self-Insured

Date of Accident: Continuing through January 2004

Place and County of Accident: St. Louis, 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 19, 2006. The award and decision of Administrative Law Judge Suzette Carlisle, issued September 19, 2006, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $5^{\text {th }}$ day of March 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: Continuing through January 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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? 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: While Employee worked as a maintenance supervisor for Employer, he typed, wrote and demonstrated vibratory tools, which led to the development of bilateral carpal tunnel syndrome. He continued to be exposed to the hazards of the occupational disease as a statutory Employee when he compiled information from nameplates on motors by writing and inputting data into computer spreadsheets.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Both hands
14. Nature and extent of any permanent disability: 171 / 2 % of each wrist referable to the 175 -week level, 10 % multiplicity, and three weeks disfigurement.
15. Compensation paid to-date for temporary disability: -0 -
16. Value necessary medical aid paid to date by employer/insurer? -0 -

Employee: Dale Lane Injury No.: 03-141467 17. Value necessary medical aid not furnished by employer/insurer? $\ 7,026.85 18. Employee's average weekly wages: $\ 1,475.00 19. Weekly compensation rate: $\$ 649.32 / \ 340.12 20. Method wages computation: Stipulated

1. Amount of compensation payable:

1. Second Injury Fund liability: No

TOTAL: $\quad \ 33,560.08

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Philip M. Hess.

A hearing was held on June 2, 2006, at the Missouri Division of Workers’ Compensation St. Louis City office. Attorney Philip M. Hess represented the Claimant, Dale Lane. The Employer, Ameren UE a/k/a Union Electric, is selfinsured, and was represented by Attorney John P. Kafoury. The Second Injury Fund is not a party to the case. The record closed after presentation of the evidence. The parties submitted post-hearing briefs by June 20, 2006. Hearing venue is correct and jurisdiction properly lies with the Missouri Division of Workers’ Compensation.

The parties have stipulated to the following:

1. The Employer and Claimant were operating under the provisions of the Missouri Workers’ Compensation law on or about January 30, 2003;

1. The Employer's liability was fully insured through Corporate Claims Management;
2. The Employer had notice of the injury;
3. The Claim for Compensation was filed within the time prescribed by law;
4. Claimant has not received any medical treatment paid for by the Employer and no temporary disability (TTD) payments have been made by the Employer; and
5. In the event that Claimant is found to be a statutory employee, Claimant's last day of work has been stipulated to be on or about the last day of January 2004.

1. Did the Employer employ Claimant, or was he an independent contractor, after he retired?
2. Did Claimant sustain an occupational disease, which arose out of and in the course of employment?
3. Is the Employer liable for past medical expenses totaling $\ 7,026.85 ?
4. Is the Employer liable for temporary total disability (TTD) totaling $\ 2,597.28 from February 17, 2004 to March 16, 2004?
5. Did Claimant sustain permanent partial disability (PPD), and if so, to what extent?
6. Did Claimant sustain disfigurement?

Claimant offered Exhibits A through G, which were admitted without objection and Employer offered Exhibits 1 and 2, which were admitted without objection.

Only evidence supporting this award will be summarized. Any objections not expressly ruled upon are overruled.

Claimant, a 56-year-old retired widower, resides in Collinsville, Illinois. He graduated from high school in 1967 and attended college for eighteen months before he was drafted into the Vietnam War. He received numerous awards including a Purple Heart and a Badge of Honor during his military service between 1968 and 1970.

He worked a variety of jobs for Employer between June 1970 and January 2003 including janitor, ash handler, laborer, machinist, welder, repairman and supervisor.

In 1987 he became a maintenance supervisor. He supervised up to twenty-six employees, including repairmen, machinists, and electricians. Twenty-five to fifty percent of his time each week was spent on the computer and approximately 10 percent was spent demonstrating the proper use of equipment to employees. Claimant demonstrated pneumatic impact and vibratory tools, electrical hand tools, wrenches, ratchets, hand grinders, drill motors, and slays. The computer and keyboard sat on a metal desk. There was no pad for the keyboard. The mouse pad sat on a pullout tray from the desk. Claimant completed forms in longhand.

Claimant first noticed carpal tunnel type problems about nine years before he retired in January 2003. He did not recall talking with Dr. Malench, his primary care physician, in 1996 about tingling in his hands. However, he did not dispute the medical record. Prior to retirement, tingling in his hands awakened him. His hands fell asleep while driving. He felt a "funny bone" sensation from his elbows to his fingers, and stiffness in both hands. He often shook his hands to wake them when working with hand tools. Claimant did not report the condition to his Employer before he retired and did not ask for any medical treatment.

In July 2003, he complained to Dr. Malench of elbow pain after painting. His hand complaints remained the same after he retired. He mentioned the carpal tunnel type hand complaints. The doctor prescribed anti-inflammatories. The elbow problems resolved and he is not seeking benefits for his elbows.

Claimant worked for Employer (Ameren) as a consultant from October 2003 to the end of January 2004. He collected data from motors located in St. Louis power plants and input data into the computer. Companies used the data to solicit repair bids. He was hired through the purchasing department. He was not supervised, and Ameren relied on his expertise. Ameren offered him the position because his primary responsibility before retirement was maintaining the equipment. The length of his consulting services was fixed.

Ameren set an hourly salary based on his pre-retirement income. Claimant had no benefits and the parties signed no written agreement. The Employer instructed Claimant where to go, what to do, and how to enter the information into a spreadsheet, which they provided. He input data about 80 percent of the time, and 20 percent of the time he wrote information. The Employer paid him to work approximately 35 hours per week. Claimant worked four months and only consulted for Ameren. During this time his hand complaints remained consistent.

The wrist complaints continued, and in November 2003, Dr. Malench ordered a nerve conduction study at Anderson Hospital which revealed severe bilateral carpal tunnel syndrome. Claimant reported the condition to the Employer in December 2003. He received a denial letter from the Employer in January of 2004, suggesting he should use his group insurance to cover treatment. His care was transferred to Dr. McKee, who recommended bilateral carpal tunnel surgery. Surgery was performed on both hands on February 17, 2004. Dr. McKee released Claimant from treatment on March 16, 2004.

Claimant identified the nerve conduction bill and surgeon's charges. Surgery resolved the numbness and tingling in his hands, however decreased grip strength and limited finger dexterity remain. His golf game has declined. He does very little gardening. Claimant has two scars from surgery. He stands 5 feet, $101 / 2$ inches tall and has weighed 245 pounds for approximately six years. It is his belief that the carpal tunnel syndrome is related to his work because of intensive use of his hands and no other possible sources. He denied a history of diabetes, arthritis, or thyroid conditions.

Dr. Ollinger examined Claimant June of 2005 but did not ask Claimant about the Employer's essential job function survey. The survey described Claimant's duties as a full-time employee with the Employer. Dr. Ollinger did not ask about Claimant's use of vibratory tools, which was contained in the survey.

As a supervisor, his main task was to direct employees. He acknowledged this was a less demanding use of his hands than other jobs. He lost no time from work for his hands while employed full time. He worked for Energy Electric Company as a consultant for four days in January 2004. He attended meetings and discovered the company already had a system in place.

Claimant had surgery two weeks after completing Ameren's consulting project. After surgery he complained of loss of finger dexterity and stiffness. Ameren is in the busi