Jeannine Reed v. W. W. Grainger

I submit this concurring opinion in which I join in and adopt the award and decision of the administrative law judge.

In the instant claim the employee alleges that she sustained an injury due to an occupational disease arising out of and in the course of her employment, i.e., injuries to her bilateral upper extremities due to repetitive trauma at work.

Employee alleges her occupational disease was resultant of her repetitive activities at work between 1997 and 2002.

Employee's medical expert, Dr. Koprivica, opined that employee's resultant injuries to her bilateral upper extremities were directly attributable to her occupation which entailed repetitive trauma activity between 1997 and 2002. Due to employee's occupational disease and injury to her bilateral upper extremities, employee underwent several surgical procedures in 1997 and 1998, which concomitantly affected the employee's ability to perform her ordinary tasks at work and also harmed her earning ability, i.e., employee was required to take time off from work and receive temporary total disability during all appropriate time frames away from work and receive medical treatment necessary to cure and relieve her from the effects of her injury.

Paraphrasing Garrone v. Treasurer of the State of Missouri, 157 S.W.3d, 237 (Mo.App. E.D. 2004), an occupational disease does not become a compensable injury until the disease causes an employee to become disabled by affecting the employee's ability to perform ordinary tasks and harming an employee's earning ability. An employee can be diagnosed with an occupational disease and experience symptoms of the disease prior to the time that it becomes disabling. An employee can suffer an injurious exposure prior to becoming disabled. The injurious exposure does not become a compensable injury until it becomes disabling.

In the instant case, this injury became disabling and affected the employee's ability to perform her ordinary tasks and harmed her earning ability initially in 1997 and following subsequent surgeries occurring in 1998. The date of employee's first surgery in 1997 was the date of disability for this injury and occupational disease, and is the date which must be used in determining Second Injury Fund liability. Employee's occupational disease became a compensable injury in 1997. Employee neither alleged nor proved a disability preexisting the first surgery date. Subsequently, employee and employer entered into a compromise lump sum settlement of this injury pursuant to the provisions of $\S 287.390$ RSMo in 2003.

Employee has not made allegation of any additional injury occurring between 1997 and 2002, and there is no evidence from any medical records or medical opinion that would support any determination or conclusion by the Commission that an additional injury occurred especially between employee's return to work date in 1999, and her termination of employment in 2002.

Accordingly, I agree with the conclusion of the administrative law judge that there was no evidence to support a finding that there was a pre-existing disability to combine with the disability attributable to the primary injury at the time the primary injury became compensable in order to determine the possibility of any Second Injury Fund liability.

Employee: JEANNINE REED

Injury No. 02-154036

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: W. W. GRAINGER

Insurer: TRAVELERS INDEMNITY COMPANY OF AMERICA

Additional Party: MISSOURI STATE TREASURER as CUSTODIAN OF THE SECOND INJURY FUND

Hearing Date: NOVEMBER 14, 2007

Checked by: PAM/pd

- Are any benefits awarded herein? No.

1. Was the injury or occupational disease compensable under Chapter 287? Yes.
2. Was there an accident or incident of occupational disease under the Law? Yes.
3. Date of accident or onset of occupational disease: 1997, date of onset.
4. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri.
5. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
6. Did employer receive proper notice? Yes.
7. Did accident or occupational disease arise out of and in the course of the employment? Yes.
8. Was claim for compensation filed within time required by Law? Yes.
9. Was employer insured by above insurer? Yes.
10. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant Reed performed repetitive tasks in the course and scope of her employment resulting in bilateral upper extremity injuries.
11. Did accident or occupational disease cause death? No. Date of death? N/A
12. Part(s) of body injured by accident or occupational disease: Bilateral wrists and fingers.
13. Nature and extent of any permanent disability: Stipulated.

- that Employer and Employee were operating under and subject to the provisions of the Missouri Workers' Compensation law;

- that Employer had notice of the claim and timely claim for compensation was filed;

- that Employee's compensation rate is $\$ 278.42 / \ 278.42;

- that Employer's liability was previously settled for 15 percent of the body as a whole referable to both upper extremities;

- that prior to settlement, Employer paid compensation in the amount of \4,597.14 and medical expenses in the amount of \ 17,531.75.

The parties have requested the Division to determine the following issues:

- whether Employee sustained accidental injury arising out of and in the scope and course of her employment with W. W. Grainger beginning in 1997 through October 7, 2002;

- whether Employee was permanently totally disabled by the combined effects of the injuries through October 7, 2002 and pre-existing disabilities.

Jeannine Reed worked for W. W. Grainger, Inc., an industrial warehouse, from 1994 through October 7, 2002. Her job title was order filler, and her duties included repetitive use of her hands, wrists and arms in taking items from shelves, placing them in boxes and carrying the boxes (weighing up to 50 pounds each) to a conveyor belt. She generally did this 8 hours per day, 5 days per week. On occasion, she would fill orders for 5 to 6 hours per day and would spend the rest of the day cleaning and stocking shelves.

In 1997, Ms. Reed started experiencing numbness in her hands. She reported this as a work-related condition to Employer and received authorized medical care. Specifically, between October of 1997 and October of 1999, she underwent surgery on three occasions which included bilateral carpal tunnel releases, bilateral trigger thumb release and excision of a cyst of the right wrist. Dr. Harris performed all of the procedures. He released Ms. Reed to full duty and from medical care on December 6, 1999.

Upon returning to work in 1999 as an order filler, Ms. Reed's job duties and work schedule were the same as they had been prior to 1997 when she first developed the numbness in her hands. Although she did not seek further treatment for the hands, she continued to have problems with them. She also experienced problems with her vision, knees and feet. Reed stopped working on October 7, 2002 due to all of these conditions but particularly for her foot condition.

Ms. Reed has a number of significant disabilities. Ms. Reed claims she is permanently totally disabled. Dr. Koprivica opines Reed is permanently totally disabled. Mary Titterington, vocational expert, believes Reed is permanently totally disabled and unemployable in the open labor market. I find based on her testimony, medical records and reports and credible expert testimony that Jeannine Reed is permanently totally disabled and unemployable in the open labor market.

Reed asserts that she is permanently totally disabled as a result of her current disability in combination with her pre-existing disabilities. She seeks an award of permanent total disability benefits from the Second Injury Fund.

Ms. Reed must prove the following: (1) that she has permanent disability as a result of a compensable workrelated injury; and (2) that she has permanent disability predating the compensable work-related injury which is of "such seriousness as to constitute a hindrance or obstacle to employment or to obtain reemployment if employee becomes unemployable," Section 287.220.1 RSMo 1994; Garribay v. Treasurer, 930 S.W.2d 57 (Mo.App. 1996); Rose v. Treasurer, 899 S.W.2d 563 (Mo.App. 1995); Leutzinger v. Treasurer, 895 S.W.2d 591 (Mo.App. 1995); and Wuebbeling v. West County Drywall, 898 S.W.2d 615 (Mo.App. 1995); and (3) that the combined effect of the disability resulting from the work-related injury and the disability that is attributable to all conditions existing at the time the last injury was sustained results in permanent total disability.

In this claim, there is no dispute that Ms. Reed sustained bilateral carpal tunnel syndrome and trigger finger in the course and scope of her employment with W. W. Grainger. The issue is whether Reed's disability became permanent on December 6, 1999 when released by Dr. Harris or whether she continued to be injured throughout her employment ending October 7, 2002. If Reed is not continuously injured following her release from medical treatment through her last date of employment, then the vision, knee and foot injuries which combined with her hands to render Reed permanently totally disabled do not predate her primary claim and, therefore, cannot