Ronald Ford v. Ameren UE

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 July 2, 2007. The award and decision of Administrative Law Judge Kathleen M. Hart, issued July 2, 2007, 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 $29^{\text {th }}$ day of October 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: June 30, 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis
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 contracted bilateral carpal tunnel syndrome as a result of his job duties for Employer.
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: right and left wrists
14. Nature and extent of any permanent disability: 171 / 2 % of the right wrist, 171 / 2 % of the left wrist, 10 % multiplicity factor
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

Employee: Ronald Ford Injury No.: 04-062525 17. Value necessary medical aid not furnished by employer/insurer? Unknown. Parties stipulated to a hold harmless agreement in the event Claimant's injuries were found compensable. 18. Employee's average weekly wages: $\ 1,268.00 19. Weekly compensation rate: $\$ 662.55 / \ 347.05 20. Method wages computation: Stipulation

1. Amount of compensation payable:

1. Employer had notice of the injury and a claim for compensation was timely filed.
2. Claimant's wages were sufficient to entitle him to the maximum compensation rates of $\$ 662.55 / \ 347.05.
3. Claimant has received no TTD payments to date and no medical expenses were paid on his behalf.
4. In the event the Employer is found responsible for Claimant's occupational disease, Employer has agreed to hold harmless and indemnify Claimant for all of the medical bills paid by his group medical carrier as well as for the time loss benefits previously paid.

The parties stipulated the issues to be resolved are as follows:

1. Whether the Claimant sustained an injury by occupational disease arising out of and in the course of his employment;
2. Whether Claimant's carpal tunnel syndrome is medically and causally related to his employment;
3. Nature and extent of Claimant's permanent partial disability and liability for any disfigurement.

Based upon the competent and substantial evidence, I find:

1. Claimant is a 52 year-old male who currently resides in Arnold, MO. He is 6'3" tall and weighs approximately 224 pounds. His weight has remained steady for the last several years.
2. Claimant is currently employed by Employer as a Unit Operating Engineer (UOE). He began working for Union Electric Company upon his high school graduation in June 1973. He has no other formal training or military service. He was initially hired as a janitor and later transferred to the coal gang.
3. The work on the coal gang required him to clean out coal chutes and break large pieces of stuck coal. He described having to manually destroy the pieces with a large metal rod, and he explained that tremendous amount of force was required.
4. Claimant then advanced to the position of Laborer, which also required extensive hand use and heavy physical labor. As a Laborer, he was also required to use jack hammers, water lances, air guns, high pressure hoses, and large hand tools.
5. Claimant next worked as a Super Cleaner and performed some of the functions described earlier, in addition to having to clean in other areas. His work as a Super Cleaner was similar to the duties of his next position, Plant Operating Engineer (POE).
6. As a POE, he was responsible for making rounds around the facility and checking the oil levels and temperature of various equipment. He also performed extensive valving, scraping of coal feeders, backing out of blowers as well as tagging out of equipment.
7. Claimant also worked as an Assistant Unit Operating Engineer (UOE), a position which could result in him being downgraded to a POE position or working as a UOE. In addition to the job described earlier, he also used high pressure water hoses with a water cannon to clean out other areas.
8. Claimant has been classified as a UOE since 1987. The physical requirements of this job changed drastically in 1994 when a digital control system was instituted. Prior to that time, Claimant used a bench board, which required manual adjustment of pneumatic levers. Starting in 1994, he was able to perform the same functions via the use of a ten monitor control system controlled by mouse/track balls and key boards. He explained there were six track balls operating at once to control the numerous screens, and the majority of

work required him to tap on the mouse balls.

1. He also explained that his work as a UOE required him to complete workmen's protection orders. Initially, this required extensive typing as the database was not complete. The most significant period of typing occurred around October and November of 2003. At times he typed all day. Claimant noted increased hand complaints at this time.
2. Claimant reviewed a job description prepared by an unknown person. (Exhibit F) He explained there were a large number of responsibilities of a POE that were not mentioned in the job description. He provided examples, many of which included hand intensive tasks described earlier, such as use of a high pressure hose, hydrovac and an air impact wrench.
3. Claimant also provided a copy of his work schedule from February and March of 2003. He testified he spent an average of 3 days a week on POE functions and 2 days a week in the UOE position.
4. Claimant first noticed problems with his hands in 1998 and 1999. Initially, the symptoms consisted of his hands falling asleep, and he was able to function by taking a break or shaking his hands. He did not seek any treatment at that time and waited until his hand complaints worsened in late 2003 and early 2004 before seeking treatment.
5. Claimant attempted to report his hand complaints and seek treatment through his supervisors. He ran into some delays as a result of their inability to locate the appropriate form. Claimant was eventually sent to Diane Hicks who noted Claimant's complaints and an appointment was made on behalf of Employer with Dr. Ollinger.
6. Dr. Ollinger examined Claimant on July 12, 2004. He recommended Claimant undergo bilateral nerve conduction studies, but was unable to receive authorization to proceed. Dr. Ollinger concluded Claimant's work was not a substantial factor in the development of his carpal tunnel syndrome.
7. Claimant next was seen by Dr. Maylack who eventually performed bilateral carpal tunnel releases. Claimant missed time from work and was paid sick leave. He returned to work in the control room full time in January 2005.
8. He reported improvement as a result of the surgical intervention, mainly with the severity of numbness and tingling. He continues to complain of considerable loss of grip strength, right greater than left. He continues to have tenderness in his palms, an inability to hold the string when bow hunting, and difficulty opening jars and bottlecaps. He has pain with prolonged gripping and twisting. He complains of locking up of his right thumb, index and long fingers on strenuous gripping. He has an approximately one inch scar on each hand.
9. Claimant testified regarding some of his prior injuries. In the early 1980's, he injured his right wrist. He had two surgeries involving a bone graft and screws from below his thumb into his forearm. He was released from treatment and returned to work. He has had no other treatment for this injury since the 1980's. He continues to have range of motion restrictions, but did not have numbness and tingling following that injury.
10. Claimant fractured his right fifth metacarpal in the late 1980's. He had no surgery and returned to work without complaints.
11. Claimant fractured the tip of his left middle finger in 1990. Following settlement of that case in 1993, Claimant continued to have some weakness in his finger.
12. Claimant also had treatment for neck problems in 2001 or 2002. Dr. Albanna diagnosed bone spurs and discussed surgery. The bone spurs cause pain into Claimant's chest, but not into his shoulders or arms.
13. Claimant is credible.

Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented and the applicable law, I find the following:

Claimant contends he developed bilateral carpal tunnel syndrome as a result of the repetitive activities he performed and the vibratory equipment he used during his employment with Employer. Employer contends Claimant's condition was caused by his weight and smoking history, not by his work.

In order to support a finding of occupational disease, employee must provide substantial and competent evidence that he/she has contracted an occupationally induced disease rather than an ordinary disease of life. The inquiry involves two considerations: (1) whether there was an exposure to the disease which was greater than or different from that which affects the public generally, and (2) whether 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.

Claimant must also establish, generally through expert testimony, the probability that the claimed occupational disease was caused by conditions in the work place. Claimant also must prove a direct causal connection between the conditions under which the work is performed and the occupational disease. The work conditions need not be the sole cause of the occupational disease, so long as they are a major contributing factor to the disease.

Kelley v. Banta \& Stude Const. Co., Inc., 1 S.W.3d 43, 48 (Mo. App. 1999) (citations omitted).

Claimant's surgeon, Dr. Maylack, reviewed the POE job description, the medical records from Claimant's carpal tunnel treatment and the medical records from his prior injuries. He opined Claimant's job duties were the substantial factor in the development of his bilateral carpal tunnel syndrome. In support of this opinion, he noted Claimant has a 30-year history of a hand intensive job involving activities that are well known to lead to the development of carpal tunnel syndrome. He further testified medical studies do not link obesity and smoking as actual causative factors in carpal tunnel. While these factors may be correlated with carpal tunnel, they have not been established as causes of carpal tunnel syndrome.

Employer's expert, Dr. Ollinger, reviewed the same POE job description as Dr. Maylack. Dr. Ollinger also visited the plant, but did not see a worker performing the job duties of a POE. Dr. Ollinger opined neither Claimant's duties as a POE nor his duties as a UOE were the proximal cause or substantial factor in development of his carpal tunnel syndrome. He found the alternative explanation for Claimant's condition is his weight and smoking history.

Dr. Ollinger agreed there is no medical literature that establishes a causal relationship between smoking and carpal tunnel syndrome, or between obesity and carpal tunnel syndrome. He testified while these are risk factors, "to say that they caused the condition, I think that's taken a little far". (Exhibit 1, page 29) In addition, Dr. Ollinger took no history from Claimant regarding his smoking history and agreed Claimant's body mass index puts him below the range for obesity. I find Dr. Ollinger's opinion not credible.

Claimant's expert, Dr. Volarich, opined the substantial factor in the development of Claimant's condition and his need for surgery is the repetitive nature of his job, and his use of vibratory and impact tools. Dr. Volarich, Dr. Maylack and Dr. Ollinger all agreed Claimant had no other disease that could cause the development of carpal tunnel syndrome. They also agreed Claimant's prior injuries to his hands did not cause his condition.

I find the overwhelming weight of the evidence supports a finding Claimant's work activities were a substantial factor in causing his bilateral carpal tunnel syndrome and need for treatment. I further find Claimant's carpal tunnel syndrome and subsequent treatment are medically and causally related to his employment.

A permanent partial disability award is intended to cover claimant's permanent limitations due to a work related injury and any restrictions his limitations may impose on employment opportunities. Phelps v. Jeff Wolk Construction Co., 803 S.W.2d 641,646 (Mo.App.1991)(overruled in part by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 225 (Mo.banc 2003)). With respect to the degree of permanent partial disability, a determination of the specific amount of percentage of disability is within the special province of the finder of fact. Banner Iron Works v. Mordis, 663 S.W.2d 770,773 (Mo.App. 1983) (overruled in part by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 225 (Mo.banc 2003)).

A multiplicity factor is "a special or additional allowance for cumulative disabilities resulting from a multiplicity of injuries." Sharp v. New Mac Elec. Co-op. 92 S.W.3d 351, 354 (Mo.App. S.D. 2003) (citations omitted)(overruled in part by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 225 (Mo.banc 2003)). The fact finder has the discretion to include a multiplicity factor in assessing cumulative disabilities but is not required to do so. Sharp at 354.

Dr. Volarich is the only physician to offer an opinion as to the level of PPD Claimant sustained as a result of his carpal tunnel syndrome. He concluded there is a 35 % PPD of each wrist as a result of the work injury and a 15 % PPD to the body as a whole due to the combination of injuries to the upper extremities.

Claimant had a significant prior injury to his right wrist, but he was able to return to his physically demanding job, with some restrictions, for nearly 20 years. Since his carpal tunnel surgeries, he has ongoing complaints unrelated to his prior wrist fracture. Given his continued complaints and restrictions, I find he has sustained 171 / 2 % PPD to each wrist with a 10 % load factor and 2 weeks of disfigurement. He is therefore entitled to $\ 24,076.59 in compensation.

Date: $\qquad Made by: \qquad$

KATHLEEN M. HART

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Lucas Boling

Acting Director

Division of Workers' Compensation

Ronald Ford v. Ameren UE

Injury No: 04-062525