Julia Hines v. Laclede Gas Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-008692

Employee: Julia Hines

Employer: Laclede Gas Company

Insurer: Self-Insured

Date of Accident: January 15, 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 November 21, 2006. The award and decision of Administrative Law Judge Suzette Carlisle, issued November 21, 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 $20^{\text {th }}$ day of July 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: January 15, 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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:

Claimant's repetitive data entry work as a Customer Service Representative resulted in bilateral carpal tunnel syndrome. 12. Did accident or occupational disease cause death? No 13. Part(s) of body injured by accident or occupational disease: bilateral hands 14. Nature and extent of any permanent disability: 17.5 % of each wrist, and 12.5 % load 15. Compensation paid to-date for temporary disability: -0 - 16. Value necessary medical aid paid to date by employer/insurer? -0 -

Employee: Julia Hines Injury No.: 04-008692 17. Value of necessary medical aid alleged, but not furnished by employer/insurer? \9,800.00 18. Employee's average weekly wages: \ 885.58 19. Weekly compensation rate: $\$ 590.39 / \ 347.05 20. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\ 8,028.95

Said payments to begin 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 22.5 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Michael C. Goldberg

Injury No.: 04-008692 Before the Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri Checked by: SC:tr

A hearing for a final award was held on August 9, 2006, in the Missouri Division of Workers’ Compensation St. Louis office at the request of Julia Hines ("Claimant") pursuant to §287.450. Attorney Michael C. Goldberg represented Claimant. Attorney Mark M. Anson represented Laclede Gas Company ("Employer"), which is self-insured. The Second Injury Fund was not a party to the proceeding. The record remained open until the submission of Employer’s Exhibit 4 on September 8, 2006. Venue is proper and jurisdiction properly lies with the Missouri Division of Workers’ Compensation.

1. Employer and Claimant were operating under the provisions of the Missouri Workers’ Compensation law at the time of the alleged injury.
2. Employer’s liability was fully self-insured on the alleged date of injury.
3. Employer had notice of the injury and a Claim for Compensation was filed within the time prescribed by law.
4. Claimant’s average weekly wage is $\ 885.58 and the rates for temporary total disability (TTD) and permanent partial disability (PPD) are $\ 590.39 and $\ 347.05 respectively.
5. If Claimant testified a second time she would have said Dr. Farley and SSM DePaul Hospital only provided treatment for carpal tunnel syndrome (CTS).

The issues to be decided at the hearing are:

Only evidence supporting this award is summarized below. Any objections not expressly ruled on are overruled. Claimant offered Exhibits A through D, which were admitted into evidence without objection. Employer offered Exhibits 1 through 4, which were admitted into evidence without objection.

Based upon competent and substantial evidence presented at hearing, I find the following facts:

1. Claimant is 36 years old and has worked for Employer nine years as a Customer Service Representative (CSR). Claimant worked at her desk at least $71 / 2$ hours per day with a 45 -minute lunch and two 15 -minute breaks. Claimant worked considerable overtime between December and February. Claimant also worked for Employer on the Disputed Jobbing Desk (DJD) until she returned to work after carpal tunnel surgery.
2. Claimant is one of sixty CSRs working in individuals cubicles. Each CSR is expected to handle 90 to 100 telephone calls per day and assist customers. Length of calls vary from 2 to 8 minutes, depending on the call. Each CSR is equipped with a computer, mouse, keyboard, headset and telephone. More than half the computer time was spent documenting calls. Each call required entering the customer’s address into the computer. The mouse was used to change screens. While talking to customers, Claimant provided information and updated customer accounts.
3. When a call was completed another call was sent to Claimant unless the computer was in "after call" mode; permitting time to wrap up the previous phone call. In-coming calls were held in a queue. Wrap up included computer entries, typing a memo to a foreman or writing a work order. When completed, Claimant pressed the "ready" button and another call was received. Claimant cannot stay in the "after call" mode longer than needed because supervisors have access to screens and know who is taking a call. They also walk around and remind CSRs that calls are waiting.
4. Claimant typed abbreviations for commonly used terms, i.e. "TONN" for "turn on" and "TOFF" for "turn off," services, filled in boxes and typed memos. Abbreviations and the narratives vary depending on the customer needs. No single key allowed information to be retrieved. Claimant did not type everything discussed with a customer.
5. Claimant worked in a fast paced environment assisting customers and inputting data. The workload varied depending upon the season. Claimant worked at her desk unless meeting with her supervisor, working the DJD, or taking a break. She often performed CSR and DJD duties during a single shift.
6. Claimant received requests to review billing errors on the DJD. She reviewed work orders, decided billing accuracy, discussed payment arrangements, updated customers and the computer. Hundreds of documents, located on another floor, were reviewed by Claimant during slow periods and when co-workers were absent. Claimant held documents in her left hand and flipped through them with the right.
7. Employer selected Claimant to work DJD because she successfully met telephone expectations in a timely manner. Claimant voluntarily stopped working DJD because she was tired of working between two positions.
8. On January 15, 2004, Claimant trained a co-worker while answering calls, and noticed swelling in her right hand. Claimant sought treatment from her physician, Dr. Bernhart, with complaints of bilateral swelling of her arms and wrists, worse on the right. Claimant denied having hormone, diabetes, or thyroid conditions. A nerve conduction study revealed bi-lateral CTS. Claimant completed a report of injury because she believed the condition to be work related.
9. Dr. Ollinger examined Claimant at Employer’s request on February 25, 2004. Claimant complained of right hand and arm pain, swelling to the shoulder and bilateral sore shoulders. A Positive Phalen’s and Tinel’s sign were found bilaterally over the carpal tunnels. Dr. Ollinger diagnosed obesity due to a body mass index (BMI) of 31(based on BMI of 30 being obese), and bilateral CTS. He opined obesity caused the CTS.
10. Alternatively, Dr. Ollinger opined the CTS was idiopathic because Claimant’s work lacked significant repetition, force, awkward posture, contact stress, vibration, or duration for work to be a substantial factor (Ex 1, Dep Ex-B).
11. Dr. Ollinger relied on Employer’s Job Analysis, Claimant’s work history, and the following articles on keystroke analysis by a) the American National Standards Institute (ANSI), b) Kilbom, c) Threshold Limit Value for Hand Activity, and d)

Mathiowetz. Dr. Ollinger applied the analysis used in those articles to reach a conclusion based on a reasonable degree of medical certainty. He did not know the authors and their results have not been validated scientifically. Nor have they been adopted by any governmental, medical or ergonomic agency (Ex 1-62- 64, 67, 72).

1. Dr. Ollinger acknowledged no minimum number of keystrokes was known to cause CTS. However, he believed a 'gray zone' could be established, and a reasonableness standard applied (Ex 1-77). Insurer denied treatment based on Dr. Ollinger's report, and Claimant pursued treatment on her own.
2. Gary W. Farley, D.O., performed bilateral endoscopic carpal tunnel releases on April 5, 2004 and May 10, 2004. Claimant missed time from work after each surgery. The medical treatment was paid through her group health insurance. Claimant was off work from April 5, 2004 to June 20, 2004, following the surgeries and received a course of physical therapy. Dr. Farley opined the CTS was directly related to Claimant's work, based on the job description and history provided by Claimant. He concluded the work to be the most substantial factor contributing to her complaints (Ex B, EE 4).
3. Bruce Schlafly, M.D., a board certified hand surgeon, examined Claimant at her attorney's request for an Independent Medical Examination, and opined Claimant's repetitive work with her hands was the substantial factor in causing bil