Melanie Days v. Laclede Gas Company

the evidence provided by employee's medical expert, Dr. Feinberg, and Dr. Hannaway, a neurologist. The administrative law judge used the evidence provided by Dr. Ollinger to find that employee failed to prove her carpal tunnel syndrome was an occupational disease arising out of and in the course of her employment. However, based on the competent and substantial evidence provided by Drs. Feinberg and Hannaway, it is clear that employee's excessive typing at work was a substantial cause of her carpal tunnel syndrome.

"An occupational disease is compensable if it is clearly work related and meets the requirements of an injury which is compensable as provided in subsections 2 and 3 of section 287.020." Section 287.067 RSMo 2000. The employee must establish, generally through expert testimony, the probability that the claimed occupational disease was caused by conditions in the work place. Dawson v. Associated Elec., 885 S.W.2d 712, 716 (Mo.App. 1994). The employee bears the burden of proving a direct causal relationship between the conditions of his employment and the occupational disease. Jacobs v. City of Jefferson, 991 S.W.2d 693, 696 (Mo.App. 1999).

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.

Kelley v. Banta \& Stude Const. Co., Inc., 1 S.W3d 43, 48 (Mo.App. 1999) (citations omitted).

Employee worked as a service representative for employer. She testified that she used a keyboard between five-and-a-half to six hours each day at work. Employer presented evidence from an occupational therapist, Mr. Victor Zuccarello, who had performed a job analysis for employer's work place in 2003. Mr. Zuccarello determined that service representatives generated approximately 12,300 keystrokes each day.

Employee first began experiencing hand pain around September 2002. Employee complained of her pain and was sent to Dr. Ollinger by employer in February 2003. Dr. Ollinger diagnosed employee with carpal tunnel syndrome and suggested that employee see a different doctor for treatment. Additionally, Dr. Ollinger opined that employee's work was not a substantial cause of her carpal tunnel syndrome. One of the reasons for this opinion was his belief that there was no repetition in employee's work. Based on his odd belief that performing a task 12,300 times in a single day is not repetitive, I would find his opinion not to be as credible as the opinions of Drs. Hannaway and Feinberg.

Dr. Hannaway, examined employee on April 8, 2003. Based upon his examination and a review of employee's work history, Dr. Hannaway concluded that employee's "chronic keyboard work" was a substantial cause of her carpal tunnel syndrome. He then referred employee to Dr. Mackinnon for carpal tunnel release surgery. Dr. Mackinnon performed release surgery on employee's left wrist on September 5, 2003.

Employee saw Dr. Feinberg on March 14, 2006, for an independent medical examination. After examining employee and thoroughly reviewing her medical records and work history, Dr. Feinberg concluded that employee's work was a substantial cause of her carpal tunnel syndrome as well as her need for carpal tunnel release surgery and repeat EMG nerve conduction velocity testing.

Based on the above, I believe the competent and substantial evidence provided by Drs. Hannaway and Feinberg shows that the repetitive motion of excessive typing exposed employee to the hazard of carpal tunnel syndrome, that this exposure was greater than the exposure to the general public, and that there is a recognizable link between her repetitive and excessive typing and carpal tunnel syndrome.

Therefore, I would find that employee has met her burden to show that her excessive typing was a substantial cause of her carpal tunnel syndrome, and as such, has a compensable occupational disease. Accordingly, I would reverse the decision of the administrative law judge and award compensation.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission to deny compensation.

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 February 18, 2003
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.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: N/A.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

Employee: Melanie Days Injury No.: 03-015678

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 963.98

1. Weekly compensation rate: $\$ 642.66 / \ 340.12
2. Method wages computation: By agreement.

1. Amount of compensation payable: None. $\ 0.00
2. Second Injury Fund liability: No

TOTAL:

$\ 0.00

1. Future requirements awarded: None.

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

The matter of Melanie Days ("Claimant") proceeded to hearing at the Division of Workers' Compensation in the City of St. Louis to determine whether Claimant sustained an occupational disease arising out of and in the course of her employment. Attorney Ray Howard represented Claimant. Attorney Mark Anson represented Laclede Gas Company ("Employer"), which is self-insured.

The parties agreed that on or about February 18, 2003, Claimant was an employee of Employer, and earned an average weekly wage of $\ 963.98, which corresponds to rates of compensation of $\ 642.66 for total disability benefits and $\ 340.12 for permanent partial disability benefits. Venue, notice, and timeliness of the claim were not at issue. Employer disputed compensability, and paid no benefits prior to hearing.

The issues are: 1) Did Claimant sustain an occupational disease arising out of and in the course of her employment; 2) Is Claimant's medical condition causally related to her work activities; 3) Is Claimant entitled to recover temporary total disability benefits covering a period of time from September 5, 2003 through October 5, 2003; and 4) What is the nature and extent of Claimant's permanent partial disability?

Claimant is a 46 year old woman who has worked for Employer for 21 years. Currently, Claimant is a correspondence representative, and her job duties include replying to customer emails, writing letters, handling bill inquiries, and other administrative tasks. Prior to 2005, Claimant worked in customer service answering phones. It was in this position that Claimant said she developed the symptoms of pain and numbness in her hands, elbows, shoulders, and head, for which she now seeks compensation.

As a customer service representative, Claimant used a phone, keyboard, computer monitor, pens, paper, calculators, and staplers. Her job was to input and transmit information regarding customer accounts and to help resolve issues. Claimant testified that in her typical 8 -hour workday, with some overtime, she was constantly keyboarding $51 / 2$ to 6 hours a day. She indicated she worked 5 to 6 days per week and 20 to 24 hours overtime in a month. She testified that her other job tasks included gripping, pulling, and pushing paperwork. When questioned on the amount of paperwork she processed in a day, Claimant testified she had "piles" of paperwork, but indicated she only handled 5 to 10 files per day on an average, and each file contained 10 sheets or less of paper. Claimant initially worked on an old computer or CRT and only recently obtained personal computers; but in both cases, the keyboards required less force than old fashioned typewriters.

Claimant testified that the symptoms of numbness, tingling, swelling, and pain in her arms, hands, and shoulders developed over time without her recognizing that the symptoms were rel