Deborah Strait v. GDX Automotive

the administrative law judge erred in concluding that employee failed to meet the burden of proof regarding the contraction of an occupational disease.

The employee must prove by substantial and competent evidence that he has contracted an occupational disease and not an ordinary disease of life. Kelley v. Banta \& Stude Const. Co., Inc., 1 S.W.3d 43, 48 (Mo.App. E.D. 1999); Hayes v. Hudson Foods, Inc., 818 S.W.2d 296, 299-300 (Mo.App. S.D. 1991). This involves showing that there was an exposure to the disease which was greater than or different from that which affects the public generally, and that there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort. Id.; Dawson v. Associated Elec., 885 S.W.2d 712, 716 (Mo.App. W.D. 1994).

A single expert medical opinion will support a finding of compensability even where the causes of the occupational disease are indeterminate. Kelley, 1 S.W.3d at 48; Dawson, 885 S.W.2d at 716. Work conditions need not be the sole cause of the occupational disease, so long as they are a major contributing factor to the disease. Id.

The administrative law judge found that employee failed to prove that her knee condition was work related and found issues as to injury by occupational disease and medical causation in favor of the employer.

However, competent evidence shows that employee met her burden by establishing that she contracted an occupational disease, bilateral chondromalacia and patellofemoral syndrome, and not an ordinary disease of life. She was able to demonstrate both that her exposure was greater than that which affects the public generally and that her work was linked to the contraction of the disease.

Employee testified that her daily job duties included repetitive climbing, bending, kneeling, stooping and squatting. She testified that she climbed a twelve foot ladder 12-16 times a day and stepped up onto a ten inch high platform 10 times a shift. Employee claimed that she had to bend and stoop in order to clean machines and retrieve tools from under her work table. She also testified to squatting to check machine parts as well as occasionally kneeling on the concrete floor. Employee testified that she did not have any problems relating to her knees prior to 2001 when she began to experience pain and swelling in her knees. She testified that her condition was made worse by the repetitive stepping and climbing.

Through expert testimony, employee was able to establish that her work conditions were a major contributing factor to the disease. Dr. Bichalo and Dr. Volarich testified that employee's duties exposed her to the contraction of an occupational disease, specifically, bilateral chondromalacia. Dr. Bichalo, employer's examining physician, opined that employee's knee condition was most likely caused by repetitive work-related type activities. He opined employee sustained a 30\% permanent partial disability at each lower extremity. Dr. Bichalo's opinion was supported by Dr. Volarich who opined that the repetitive nature of employee's work was the substantial contributing factor in causing employee's knee condition as well as subsequent treatment, including surgery. He opined employee sustained a 30\% permanent partial disability of the right knee and a 35\% permanent partial disability of the left knee.

I find the opinions of Dr. Bichalo and Dr. Volarich to be most persuasive, credible and worthy of belief. Employee satisfied her burden by establishing work place exposure as well as a link between her knee condition and her employment. There was sufficient evidence to establish that her employment was a substantial factor in the development of her knee condition.

Additionally, employee is entitled to recovery of her past medical expenses. Employer never authorized treatment for employee's knee condition as it was thought to be not work-related. Because treatment was never authorized by employer, it was reasonable for employee to seek treatment on her own. Dr. Volarich testified that the medical treatment employee received for her knee condition was reasonable and necessary to cure and relieve her from the effects of the occupational disease. Therefore, an award of past medical expenses is justified.

I find that there was exposure in the workplace sufficient to conclude that employee's work duties were capable of producing her resultant medical condition, bilateral chondromalacia. Accordingly, I would reverse the decision of the administrative law judge and award compensation for her knee condition.

Employee: Deborah J. Strait

Injury No. 04-142259

Dependents: $\quad \mathrm{n} / \mathrm{a}$

Employer: GDX Automotive

Additional Party: State Treasurer, as custodian of Second Injury Fund

Insurer: self-insured c/o Gallagher Bassett Services

Hearing Date: 11/20/06 and 2/2/07; finally submitted 3/2/07

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KD/bb and $\ln$

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: alleged 11/30/04
5. State location where accident occurred or occupational disease was contracted: Franklin County, 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? $\mathrm{n} / \mathrm{a}$
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
10. Was employer insured by above insurer? self-insured
11. Describe work employee was doing and how accident occurred or occupational disease contracted: employee alleges to have suffered occupational disease by repetitive use in production work
12. Did accident or occupational disease cause death? no Date of death? n/a
13. Part(s) of body injured by accident or occupational disease: alleged left knee
14. Nature and extent of any permanent disability: $\mathrm{n} / \mathrm{a}$
15. Compensation paid to-date for temporary disability: none
16. Value necessary medical aid paid to date by employer/insurer? none
17. Value necessary medical aid not furnished by employer/insurer? $\mathrm{n} / \mathrm{a}$
18. Employee's average weekly wages: by agreement
19. Weekly compensation rate: $\$ 387.00 / \ 354.05

1. Method wages computation: by agreement of the parties

1. Amount of compensation payable: $\mathrm{n} / \mathrm{a} /

Unpaid medical expenses: \mathrm{n} / \mathrm{a}$

Issues as to occupational disease and medical causation found in favor of the employer. The claim for compensation as against the employer and insurer is denied. All other issues are rendered moot.

1. Second Injury Fund liability: Open

TOTAL: N/A

1. Future requirements awarded: $\mathrm{n} / \mathrm{a}$

Employee: Deborah J. Strait

Injury No: 04-142259

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: $\quad \mathrm{n} / \mathrm{a}$

Employer: GDX Automotive

Additional Party State Treasurer, as custodian of Second Injury Fund

Insurer: self-insured c/o Gallagher Bassett Services

The claimant, Ms. Deborah J. Strait, and the employer, GDX Automotive, self-insured c/o Gallagher Bassett Services, appeared at hearing by and through their counsel and agreed to have a joint hearing in this matter with companion injury numbers 05-026564 and 05-022140.

At issue in Injury Number 04-142259 is whether the claimant sustained a compensable injury to her left knee. The claimant requests that the claim as against the Second Injury Fund remain open. The parties have agreed that the various issues to address at hearing are as follows:

Injury by occupational disease;

Medical causation;

Notice:

Liability for past medical expense;

Temporary total disability; and

Permanent partial disability.

Further, the employer alleges that past payment of certain disability benefits should be credited toward any temporary total disability found to be owed in the matter.

Ms. Strait appeared at hearing and testified on her own behalf. Ms. Strait further elicited the testimony of Ms. Cheryl Pierce; the deposition testimony of David Thomas Volarich, D.O.; and read into the record certain portions of the deposition of James Daryl Eichelberger. The employer elicited the testimony of Mr. Kevin Carpenter; Ms. Sherry Counts; Ms. Jennifer Christy; Ms. Angela Pataky; Ms. Josephine Gonzales; Mr. Robert Dryden; and the deposition testimony of Dr. Michael Nogalski; Dr. David Chalk; and of Dr. Paulo Bicahlo.

It is further noted that the deposition of Deborah J. Strait, taken on 4/26/06, was submitted as a part of the records of Tesson Heights Orthopaedics, Claimant's Exhibit B.

Certain objections made at hearing to the various exhibits offered into evidence raise an issue as to the evidentiary weight to be attributed to those offers, but not their admissibility. The following exhibits are in evidence:

A. Deposition of David Thomas Volarich, D.O., taken on 10/13/06

B. Certified medical records of Tesson Heights Orthopaedic \&

Arthroscopic Associates, P.C.

C. Medical records of Patient's First Health Care and Tri-County Surgery Center

C-1 Billing statements

F1-F4. Earnings Statements

1. Deposition of Dr. Michael Nogalski taken on 10/23/06
2. Deposition of David Chalk, M.D., taken on 11/1/06
3. Deposition of Paulo Bicahlo, M.D., taken on 11/13/06
4. Application for employment

6 Photo of stairs

1. Workplace photographs (6)
2. Income Protection Claim (three pages)
3. Medical record of Dr. Chalk (one page)
4. Orientation Materials
5. Timeline
6. Task Analysis Report

Ms