Fata Bosnjak v. True Manufacturing

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the evidence, read the briefs, 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 §286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated February 5, 2008, as supplemented herein.

The administrative law judge found that employee failed to meet her burden of proof with regard to the contraction of an occupational disease. The administrative law judge found employee did not establish a causal connection between her upper extremity complaints and her work duties as there was no objective evidence supporting that conclusion. The administrative law judge concluded that substantial and competent evidence did not support a finding that employee's condition was causally related to work and therefore denied compensation. We agree with this conclusion.

We offer this supplemental opinion to address the issue raised by employee in her Application for Review; that the award of the administrative law judge was not clear and needed to be revised to state clear findings of fact and conclusions of law.

The administrative law judge set forth the findings of fact and conclusions of law supporting her award. For clarity, we set out the following findings and conclusions.

The substantial weight of the evidence, including the expert opinions of Dr. Rotman and Dr. Brown, supports a conclusion that there was no new injury or disease to the employee's upper extremities that was causally related to her work.

Dr. Brown evaluated employee on August 17, 2005 and opined that the cause of employee's subjective complaints was not clear. Dr. Brown opined that given the fact that employee had not been working for over a year and her upper extremity symptoms still had not improved suggested that her subjective complaints were not substantially related to her work. After nerve conduction studies were performed and came back normal, Dr. Brown opined that employee's subjective complaints with regard to her upper extremities were not substantially caused by her work.

Dr. Rotman evaluated employee on July 9, 2007 and found no evidence of rotator cuff tendonitis impingement or biceps tendonitis. Dr. Rotman noted that x-rays of employee's cervical spine as well as employee's shoulder examination were completely normal. He found that there were no objective findings to correlate with employee's subjective complaints. Dr. Rotman opined that employee's subjective complaints were completely unreliable based on her physical examination. Dr. Rotman found that there was no evidence of a work-related injury that resulted from employee's four years of employment with employer. Dr. Rotman did not recommend any further treatment and opined that employee could return to full duty.

On the contrary, Dr. Volarich initially opined that the repetitive nature of employee's work was the substantial contributing factor causing the bilateral upper extremity tenosynovitis of the forearms, as well as symptoms consistent with carpal tunnel syndrome in both hands. He further opined that the repetitive work activities caused bilateral rotator cuff and bicipital tenosynovitis. He noted that employee had not received any treatment for those conditions. After nerve conduction studies were performed and revealed no abnormalities with regard to employee's upper extremities, Dr. Volarich gave the following opinion: that the repetitive nature of employee's work was the substantial factors as well as the prevailing factors causing the bilateral rotator cuff and bicipital tendonitis with associated myofascial pain as well as causing the bilateral forearm flexor and extensor tenosynovitis with myofascial pain that required conservative treatment. Dr. Volarich's opinion is not supported by the evidence and differs from that of the more credible medical opinions of Drs. Rotman and Brown.

Employee failed to offer any evidence to support her claim that she developed an occupational disease, with regard to bilateral hands or shoulders, as a result of her work. Employee did not present any medical records showing that she sought treatment for her alleged conditions. The record does not contain any medical evidence showing that employee had problems with her upper extremities while she was employed with employer or after she left her employment with employer in August 2004. There is simply no evidence of employee receiving any treatment for any problems related to her upper extremities.

In 2005, employee underwent evaluations and testing with regard to her upper extremities; however the medical evidence indicates normal clinical findings and test results. In addition, the treatment records from November 2003 through August 2006 from employee's primary physician, Dr. Karahodzic, do not contain any references of complaints concerning employee's hands or shoulders nor do the records show treatment for any condition related to employee's hands or shoulders during that time frame.

Furthermore, employee's testimony relating her upper extremity problems to her work is lacking credibility as it is not supported by the evidence. Employee's testimony with regard to both reporting her hand/shoulder problems to her supervisor and requesting treatment from employer was not consistent, calling her credibility into question. However, employee's supervisor credibly testified that employee never made any complaints or reported any problems regarding her hands or shoulders while she was working for employer.

The Commission agrees with the ultimate conclusion reached by the administrative law judge that employee failed to meet her burden of proof that her work duties were a substantial factor in causing the problems with her bilateral upper extremities.

The award and decision of Chief Administrative Law Judge Leslie E. H. Brown, issued February 5, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 11th day of July 2008.

John J. Hickey, Member

Employee: Fata Bosnjak

Injury No. 04-104083

Before the<br>DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial Relations of Missouri<br>Jefferson City, Missouri

Dependents: ---

Employer: True Manufacturing

Additional Party: ---

Insurer: Liberty Mutual Fire Insurance Company

Hearing Date: October 18, 2007; record closed November 13, 2007 Checked by: LEHB/lsn

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 on or about May 3rd, 2004
5. State location where accident occurred or occupational disease was contracted: alleged St. Charles, 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? N/A

1. Did accident or occupational disease arise out of and in the course of the employment? No
2. Was claim for compensation filed within time required by Law? Yes
3. Was employer insured by above insurer? Yes
4. Describe work employee was doing and how accident occurred or occupational disease contracted: machine operator/factory work
5. Did accident or occupational disease cause death? No Date of death? ---
6. Part(s) of body injured by accident or occupational disease: alleged right and left upper extremities

- Nature and extent of any permanent disability: ---

1. Compensation paid to-date for temporary disability: $\ 0.00
2. Value necessary medical aid paid to date by employer/insurer? \$4,202.64 for evaluations

1. Value necessary medical aid not furnished by employer/insurer? ---
2. Employee's average weekly wages: $\ 527.15
3. Weekly compensation rate: $\$ 351.43 / \ 347.05

- Method wages computation: by agreement of the parties

1. Amount of compensation payable:

Unpaid medical expenses: ---

--- weeks of temporary total disability (or temporary partial disability)

--- weeks of permanent partial disability from Employer

--- weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning --- for ---

Claimant's lifetime

1. Second Injury Fund liability: N/A

1. Future requirements awarded: ---

Said payments to begin as of date of this Award 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 --- all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Frank J. Niesen

Employee: Fata Bosnjak

Injury No: 04-104083

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: ---

Employer: True Manufacturing

Additional Party ---

Insurer: Liberty Mutual Fire Insurance Company

Checked by: LEHB/lsn

This is a hearing in Injury Number 04-104083. The claimant, Fata Bosnjak, appeared in person and by counsel, Attorney Frank J. Niesen; the claimant testified through a translator, Violetta L. Niesen (who was also sworn in). The employer/insurer, True Manufacturing/Liberty Mutual Fire Insurance, appeared by and through counsel, Attorney Maureen Cary.

The parties entered into certain stipulations, and agreements as to the issues and evidence to be presented in this hearing.

The parties filed Memorandums of Law in this case.

On or about May 31, 2004: a. the claimant was in the employment of True Manufacturing in St. Charles County, Missouri; b. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation law; c. the employer's liability was insured by Liberty Mutual Fire Insurance; d. the employee's average weekly wage was $\ 527.15, the rate being $\$ 351.43 / \ 347.05..

e. A Claim for Compensation was filed within the time prescribed by law. f. No temporary total disability benefits were paid. G. Medical was paid for evaluation by the employer in the amount of \$4,202.64.

1. Whether or not the claimant suffered an occupational disease
2. Medical causation
3. Nature and extent of permanent partial disability

The following exhibits were admitted into evidence:

No. A: Report of David T. Volarich, D.O. dated February 28, 2005

No. B: Report of David T. Volarich, D.O. dated the April 5, 2006

No. C: Excerpt from claimant's January 29, 2007 deposition - page 39, lines 15 to page 40, line 23] [RULING: Employer/Insurer's objection at the hearing to the admission of this exhibit is overruled. See, Civil rule 57.07 (a). Additionally, it should be noted that the employer/insurer, in their Memorandum of Law wrote: "The employer and insurer withdraw their objection to employee's exhibit C at this time."]

No. 1: WITHDRAWN

No. 2: Report of Dr. Davis M. Brown, M.D. dated August 17, 2005

No. 3: Report of Dr. Daniel Phillips, M.D. dated October 10, 2005

No. 4: Report of Dr. Davis M. Brown. M.D. dated October 18, 2005

No. 5: Report of Dr. Mitchell B. Rotman, M.D. dated July 9, 2007

No. 6: Records from Dr. Edina Karahodzic M.D. of Family Medicine of South City

No. 7: Deposition t