Tina Isaac v. Sigma-Aldrich Chemical Company

I specifically disagree with the implication by the administrative law judge (and now adopted by the majority) that Dr. Schlafly's opinion is not credible because it is not shown to be founded upon an ergonomic study of employee's job duties. Such an enhanced burden of proof was recently rejected by the Court of Appeals:

There is no requirement in Missouri that expert opinion regarding causation of an occupational disease be based on an ergonomic study. It is true that Employee has the burden to prove causation of an occupational disease, but the Commission elevated Employee's burden of proof by essentially requiring that her expert rely on an ergonomic study in order for his opinion to be considered probative. Under the applicable statutes, Employee must prove that the disease "had its origin in a risk connected with the employment" and that the disease flowed from that source as a rational consequence. Section 287.067.1 (emphasis added). The Commission's dismissal of Dr. Cohen's opinion solely on the basis that he lacked an ergonomic study is a misapplication of the appropriate law.

Townser, 215 S.W.3d 237 (Mo. App. 2007)

I agree with the majority that employee has failed to meet her burden of proving causation. I am persuaded by the opinion of Dr. Schmidt, because he is an orthopedic surgeon who specializes in the treatment of feet and ankles. For that reason, I join in the decision of the majority except to the extent its reasoning conflicts with my reasoning herein.

John J. Hickey, Member

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: N/A
5. State location where accident occurred or occupational disease was contracted: N/A
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? No
9. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes
2. Describe work employee was doing and how accident occurred or occupational disease contracted: N/A
3. Did accident or occupational disease cause death? N/A Date of death? N/A
4. Part(s) of body injured by accident or occupational disease: N/A
5. Nature and extent of any permanent disability: None
6. Compensation paid to-date for temporary disability: None
7. Value necessary medical aid paid to date by employer/insurer? None

Employee: Tina Isaac Injury No.: 02-157005

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 559.28
3. Weekly compensation rate: $\$ 372.87 / \ 329.42
4. Method wages computation: Stipulation

1. Amount of compensation payable: None
2. Second Injury Fund liability: No

TOTAL: $\quad-0-$

1. Future requirements awarded: None

Said payments to begin N/A 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

$\mathrm{N} / \mathrm{A}$

This case involves a disputed repetitive trauma injury to Claimant's feet with an alleged onset date of June 27, 2002. Employer admits Claimant was employed on said date and that any liability was fully self-insured. The Second Injury Fund is a party to the claim. All parties are represented by counsel.

1. Incidence of Occupational Disease;
2. Nature \& Extent of Temporary Total Disability;
3. Nature \& Extent of Permanent Partial Disability; and,
4. Liability of Second Injury Fund.

The parties stipulate that Claimant's average weekly wage was $\ 559.28 and applicable compensation rates of $\ 372.87 for temporary total disability benefits and $\ 329.42 for permanent partial disability benefits.

Claimant, age 46, was employed at Employer from 1993 until 8/12/03, or roughly 10 years. Her job title was that of Order Filler which included working in the warehouse. While employed as an order filler for Employer, Claimant would pick up packing slips and go to various locations to pick up the needed products. She worked nine9 hour days and had a $1 / 2$ hour for lunch and 2 fifteen minute breaks. She testified she would stand and walk the majority of her work days. She worked in various departments including the cooler warehouse, the dry ice section, the remote building section outside the cooler warehouse and the annex. She estimated the size of the warehouse to one-half the size of Busch Stadium although. On cross examination, she admitted she did not know the dimension of the warehouse and was only estimating.

Claimant testified Employer mandated a safety shoe program around 1996 and she began to wear steel toed safety shoes. She understood OSHA required the shoes. She admitted, on cross examination, that she had been working the same job duties from 1993 to 1996 with the same amount of walking and standing without problem. She described the safety shoes as being hard and heavy with steel in the toe. On cross examination, she testified the soles were made of rubber and the upper part of the boot or shoe was made of leather.

Claimant testified her productivity decreased as a result of wearing the shoes but denied receiving any reprimands for her work. She testified she developed discomfort in her feet and presented to Dr. Mitchell Needleman in 1997 with aching pain. Her discomfort would get better over the weekend but then return on

Mondays. She was given orthotics by Dr. Needleman which she claims she wears everyday. She testified Sigma paid for the orthotics and they cost $\ 250 but she admitted she did not have a receipt for the orthotics. She admitted she has not replaced the orthotics in over 9 years and further admitted she was not wearing them at the time of Trial.

Claimant admitted she was working full duty from 1997 to 2002 with no medical care sought throughout the rest of 1997, 1998, 1999, 2000 and 2001. In 2002 she presented on her own to Dr. Willie Brown who restricted her from wearing safety shoes and required her to sit down in intervals during the day. She admitted Sigma followed these restrictions and she was placed in the Annex where there was a lot less walking and standing and she did not wear safety shoes from 2002 until 2003. She was also allowed more breaks and it was lighter duty. Despite working under these restrictions from June of 2002 until August of 2003, her feet worsened according to her. She also was seen by Dr. Heutel, Dr. Metzger and Dr. Johnson.

Claimant underwent Ossatron surgery on her feet by Dr. Johnson on 1/7/04 which, in her description, consisted of laser surgery to remove bone spurs. This is not an open procedure and was done on an outpatient basis. She admitted she was only seen on one occasion in follow up on 2/9/04 and has absolutely no treatment since that date, for $21 / 2$ years. She takes no prescription medication for her feet and does not do her home exercises on a regular basis.

Claimant testified she left the employment at Sigma in August of 2003 because the company could no longer accommodate her restrictions by Dr. Brown. The company had been accommodating her restrictions and had her working only in the Annex where there was less walking and lighter duty. Although she had been working this restricted duty which included no safety shoes and with less walking and lighter duty since 2002 her feet worsened.

Claimant testified she could have continued to do her light duty work from August of 2003 until October of 2003 if Sigma could have accommodated her. She further testified she was incapable of working from October of 2003 until her surgery on 1/9/04 due to pain. However, on cross examination she admitted she could have continued doing the light duty work at Sigma if they had offered the same. She further admitted no doctor took her off work during this time period. She testified she needed about 3 months after surgery to recover. Again, she admitted no doctor specifically took her off work or restricted her activity post surgery. She did receive 6 to 7 weeks of Unemployment Benefits after leaving Sigma. During this time she was looking for work on the Internet

Claimant filed a Claim for Compensation but did not recall exactly when she did so. She had no reason to dispute that the formal Claim was not filed until March of 2004, 2 months after her surgery. She admitted she had no contact with anyone from Sigma after she left the employment in August of 2003. She did not inform anyone at Sigma she was undergoing the surgery in January of 2004. She chose all of the medical providers outside of BarnesCare, Dr. Schlafly and Dr. Schmidt.

Claimant saw Dr. Schlafly at the request of her attorney and acknowledged her feet were doing alright when she was seen by him. Claimant's currently complains of an inability to wear safety shoes although she does not need to wear them in her current position. She admitted her feet feel better after the Ossatron procedure and but that sometimes they ache.

At the time of trial, Claimant was