Michael Eye v. GKN Aerospace

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 September 21, 2007. The award and decision of Administrative Law Judge Linda J. Wenman, issued September 21, 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 6th day of March 2008. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman DISSENTING OPINION FILED Alice A. Bartlett, Member John J. Hickey, Member Attest:

Secretary

After a review of the entire record as a whole, and consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed. I believe the administrative law judge erred in concluding that employee met 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). 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. W.D. 1994). 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.

It is employee's burden to establish workplace exposure. Employee has failed to do so in this case. Employee testified as to the extent he used his hands in his job as a team leader. Employee's testimony as to the repetitive nature of his job, with regard to the use of his upper extremities, differed from that of other employees who had worked in the same position for employer. Employee worked as a team leader for employer from 2001 until May 12, 2005. Prior to employee's employment with employer, he worked as a factory worker and machine operator for McDonnell Douglas and then Boeing for 14 years. Employee testified that as a team leader he spent approximately $21 / 2-3$ hours on the computer. Employee testified that his duties as team leader also required that he assist or instruct other employees on the production procedures. Employee testified that he did not frequently lift heavy equipment as that would have been a violation of a union contract.

Marvin Beiter, operations manager for employer, testified that he worked as a team leader for about a year and that the position did not require physical labor because it would violate union contract. Mr. Beiter also testified that the team leader position consisted of minimal computer work and that he never noticed employee spending an excessive amount of time on the computer. Mr. Beiter was also unaware of any other team leaders who complained of similar problems with their hands. Amy Cornell, health and safety specialist for employer, testified that she also worked for two years as a team leader and that no other team leader has ever filed a claim for a repetitive motion injury to the upper extremity.

Dr. Schlafly and Dr. Howard provided opinions as to medical causation. I find the opinion of Dr. Howard more credible than that of Dr. Schlafly. Dr. Schlafly opined that employee's work for employer was the substantial and prevailing factor in causing employee's carpal tunnel syndrome; however, Dr. Schlafly did not review a written description of employee's job duties but based his opinion on employee's portrayal of his job duties. Employee's depiction of his job duties differs from that of other employees who worked in the same position. Employee testified that his job duties were more hand intensive than other employees that performed the same job. In addition, Dr. Schlafly testified that employee's work for a prior employer (Boeing) which involved manual labor was a contributing factor to the development of employee's carpal tunnel syndrome. Exposure to an occupational disease while working for a previous employer should not play a role in determining employer's liability. Employer's liability must be determined by whether its conditions of employment or employee's job duties while working for employer exposed employee to an occupational disease.

In contrast to Dr. Schlafly, Dr. Howard provided his opinion after both examining employee and reviewing a written description of employee's job duties pertaining solely to employer. Dr. Howard opined that

employee's work as a team leader for employer was not a substantial factor in causing employee's carpal tunnel syndrome. Dr. Howard believed that employee's work was not causally related to his carpal tunnel condition because employee's job duties were only occasionally, not repetitively, hand intensive. Dr. Howard testified that employee smoked a pack of cigarettes a day for the past 24 years which put him at a higher risk for the development of carpal tunnel syndrome. Dr. Howard felt that employee's carpal tunnel syndrome was more likely idiopathic.

I find the opinion of Dr. Howard to be most persuasive, credible and worthy of belief. Based on the medical evidence and testimony, it is reasonable to conclude that employee was not exposed to an occupational disease while working for employer.

There was insufficient evidence to establish that employee's work conditions exposed him to an occupational disease. Accordingly, I would reverse the decision of the administrative law judge and deny compensation in this case.

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

Alice A. Bartlett, Member

1. Are any benefits awarded herein? Yes

- Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

- Date of accident or onset of occupational disease: April 19, 2005

- State location where accident occurred or occupational disease was contracted: St. Louis County, MO

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
2. Did employer receive proper notice? N/A
3. Did accident or occupational disease arise out of and in the course of the employment? Yes

- 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: Due to repetitive hand use, Employee developed bilateral carpal tunnel syndrome.
3. Did accident or occupational disease cause death? No
4. Part(s) of body injured by accident or occupational disease: Bilateral wrists

- Nature and extent of any permanent disability: 15\% PPD referable to each wrist, and 15\% multiplicity.

1. Compensation paid to-date for temporary disability: None
2. Value necessary medical aid paid to date by employer/insurer? None

Employee: Michael Eye Injury No.: 05-079477

1. Value necessary medical aid not furnished by employer/insurer? None

- Employee's average weekly wages: Sufficient for maximum rates

1. Weekly compensation rate: $\$ 675.90 / \ 354.05
2. Method wages computation: Stipulated

1. Amount of compensation payable:

60.375 weeks of permanent partial disability from Employer $\ 21,375.77

1. Second Injury Fund liability: Yes

7.65 weeks of permanent partial disability from Second Injury Fund $\ 2,708.48

Total: $\ 24,084.25

1. Future requirements awarded: None

Said payments to begin immediately 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 25 % of all payments in favor of the following attorney for necessary legal services rendered to the claimant: Richard Ameduri

The above referenced Workers' Compensation claim was heard by the undersigned Administrative Law Judge on September 7, 2007. Post-trial memorandums were received, and the case was submitted on September 14, 2007. Attorney Richard Ameduri represented Michael Eye (Claimant). GKN Aerospace (Employer) was insured by Zurich American Insurance Company, and represented by Attorney Kenneth Alexander. Assistant Attorney General Da-Niel Cunningham represented the Second Injury Fund (SIF).

Prior to the start of the hearing the parties identified the issues for disposition in this case: occupational disease; arising out of and in the course/scope of employment; medical causation; application of the last exposure rule in regard to subsequent employers; and the liability of Employer and SIF for permanent partial disability (PPD) benefits. Hearing venue is correct, and jurisdiction properly lies with the Missouri Division of Workers' Compensation.

Claimant offered Exhibits A-E, and Employer offered Exhibits 1-4. The Court was asked to take Administrative Judicial Notice of the Division's file regarding this injury number. All exhibits were admitted into the record without objection. Any markings contained within any exhibit were present when received, and the markings did not influence the evidentiary weight given the exhibit. Any objections not expressly ruled on in this award are overruled.

All evidence presented has been reviewed. Only testimony necessary to support this award will be reviewed and summarized.

1. Claimant worked for Boeing Aircraft as a parts manufacturer starting in 1987. In 1995, Claimant was promoted to a Team Leader, and worked in a supervisory capacity.

1. In 2001, Employer acquired a portion of Boeing, including Boeing's part manufacturing division. Claimant subsequently became an employee of Employer during the acquisition process. Claimant remained employed as a Team Leader following the acquisition until he was terminated by Employer on May 12, 2005. During his tenure, Claimant was a Team Leader for 7 different departments in 8 years.
2. As a Team Leader, Claimant's daily duties included: interacting with employees working the product line he was charged with ove