Bonita Miller v. U.S. Airways Group, Incorporated

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. We have reviewed the evidence, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we affirm the denial of compensation by separate opinion. The award and decision of Administrative Law Judge Rebecca S. Magruder issued July 24, 2008, is attached and incorporated by this reference to the extent it is not inconsistent with our findings, conclusions, award, and decision herein.

The administrative law judge recited that the only disputed issue in this case is whether employee's claim for compensation is barred by the statute of limitations. The transcript reveals there are other issues in dispute. One of those other issues is dispositive of the claim.

The instant claim for compensation designated Injury No. 07- 070265 alleges employee sustained workrelated bilateral carpal tunnel syndrome caused by repetitive trauma through January 29, 2007. Employee also has a pending claim for compensation designated Injury No. 04-054594 alleging work-related bilateral carpal tunnel syndrome caused by repetitive trauma through June 4, 2004. Employer/insurer admits that employee has sustained an occupational disease arising out of and in the course of employment with employer, but disputes that employee sustained the occupational disease on or about January 29, 2007.

The obvious question becomes did employee sustain two occupational diseases through her employment with employer? We agree with the administrative law judge that the medical condition of ill (bilateral carpal tunnel syndrome) underlying the instant claim is the same condition of ill for which employee was diagnosed and treated in 2004. Having determined that employee has not established she sustained a new and distinct injury caused by repetitive trauma through January 29, 2007, as alleged in the instant claim, we deny the claim.

We do not adopt or incorporate the administrative law judge's discussion and conclusions regarding whether this claim for compensation was filed within the periods set forth in the 2004 and 2007 versions of $\S 287.430$ RSMo and what version of the statute properly applies because determination of those issues is not necessary to our award and decision. Those issues are more properly addressed in resolution on Injury No. 04-054594.

Given at Jefferson City, State of Missouri, this 25th day of March 2009.

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Bonita Miller

Injury No. 07-070265

Dependents: N/A

Employers: U.S. Airways Group, Incorporated

Insurers: New Hampshire Insurance Company

c/o AIG Domestic Claims, Incorporated

Hearing Date: June 16, 2008

Checked by: RSM/cg

- Are any benefits awarded herein? No.

1. Was the injury or occupational disease compensable under Chapter 287? No.
2. Was there an accident or incident of occupational disease under the Law? Yes.
3. Date of accident or onset of occupational disease: June 2004.
4. State location where accident occurred or occupational disease was contracted: Missouri.
5. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.

1. Did employer receive proper notice? Yes.
2. Did accident or occupational disease arise out of and in the course of the employment? Yes.
3. Was claim for compensation filed within time required by Law? No.
4. Was employer insured by above insurer? Yes.
5. Describe work employee was doing and how accident occurred or occupational disease contracted: While performing hard intensive activities, Claimant developed bilateral carpal tunnel syndrome.
6. Did accident or occupational disease cause death? No. Date of death? N/A
7. Part(s) of body injured by accident or occupational disease: left and right wrists.
8. Nature and extent of any permanent disability: N/A.
9. Compensation paid to-date for temporary disability: None.
10. Value necessary medical aid paid to date by employer/insurer? Unsure.
11. Value necessary medical aid not furnished by employer/insurer? None.
12. Employee's average weekly wages: N/A.
13. Weekly compensation rate: N/A.
14. Method wages computation: No agreement.

The only disputed issue in this case is whether the employee's Claim for Compensation filed in October 2007 is barred by the statue of limitations. The parties submitted a signed agreement of stipulated facts which are as follows:

1. Bonita R. Miller (hereinafter referred to as "Miller" or "Employee") is a 51 year old woman who has been continuously employed by U.S. Airways or predecessor airlines including Piedmont Airlines from 1984 to the present date. Her place of employment since August 1990 has been KCI airport in Kansas City, Platte County, Missouri.
2. For the first nine months after her 1990 transfer to KCI Airport, Miller was assigned duties of loading baggage on ramp. Thereafter and continuing to the present day, Miller has been assigned customer service agent duties which she has performed on a full-time basis.
3. In her capacity as customer service agent for the past almost 18 years at KCI Airport, Miller has been assigned customer service including check-in duties for approximately ninety per cent ( 90 % ) of her work time and has been assigned working the gate for the remainder of her work time (approximately one shift per week). In both of these assignments, Miller performs regular repetitive activity, including keyboarding, lifting luggage, tearing off baggage claims and boarding passes, and other tasks requiring frequent use of her upper extremities.
4. In April 2002, Miller sought medical treatment for neck pain. An EMG was performed on her left upper extremity which showed "very mild early" carpal tunnel syndrome on left side. However, Miller testified she had no numbness, tingling or pain in her left arm at the time.
5. In June 2004, Miller began experiencing a gradual onset of problems with both hands including numbness and tingling. In early June 2004, she reported these symptoms to her supervisors at U.S. Airways and a Report of

Injury was prepared by her Employer, which identified a date of injury/illness as June 4, 2004.

1. On June 4, 2004, Miller signed an U.S. Airways document entitled "Employee's Responsibility after an Occupational Injury," in which she acknowledged her responsibility to "report all accidents/injuries immediately to your manager supervisor and assist in completing the O1-1 (Report of Occupational Injury)." At orabout that time, Miller completed an accident report.
2. In June 2004, when Miller reported her upper extremity conditions to her Employer, she believed those problems were work-related based on her repetitive activities at work and based on the fact that she was not doing anything differently at home. "It had to be work."
3. After reporting her upper extremity condition to her Employer in June 2004, U.S. Airways scheduled Miller to see Dr. Timothy Link. Miller was first examined by Dr. Link on June 7, 2004 withsymptoms of bilateral hand pain and numbness. Dr. Link diagnosed bilaterally wrist tendonitis and possible early carpal tunnel syndrome. Dr. Link scheduled Miller for EMG and nerve conduction testing which were performed on or about August 3, 2004 by Dr. Ira Fishman. Based on the results of these tests, Dr. Fishman diagnosed bilateral carpal tunnel syndrome of mild severity, and this diagnosis was reported to Miller.
4. On September 8, 2004, Miller consulted with Dr. James P. Reardon, orthopedic surgeon, regarding possible treatment options for her bilateral carpal tunnel syndrome. Dr. Reardon prescribed Vioxx, advised Miller to continue use of splints, and discussed the possibility of carpal tunnel release surgery. Miller returned to Dr. Reardon on October 6, 2004. Dr. Reardon's notes indicated Miller did not want to have surgery for her carpal tunnel. Dr. Reardon diagnosed her with residual mild carpal tunnel syndrome bilaterally. Dr. Reardon indicated Miller had no limitations and released her to return on an as needed basis.
5. Miller underwent approximately 5 weeks of physical therapy between October 15, 2004 and November 22, 2004, which she testified gave her short-term relief only. Her pain symptoms were no better after than before the course of physical therapy.
6. Following conclusion of physical therapy, Miller did not return to Dr. Link, Dr. Reardon or any other health care provider for her upper extremity symptoms. Miller ceased taking Vioxx after conclusion of physical therapy and, thereafter, used Ibuprofen approximately, three times per week. However, Miller has now doubled her dosage, taking two pills instead of one. Miller also continued to wear splints at night.
7. Ms. Miller has never received any workers' compensation disability benefits, including payments for permanency due to her carpal tunnel syndrome.
8. In January 2007, Miller filled out another accident report in which she advised her Employer of upper extremity complaints. U.S. Airways completed and filed a second Report of Injury, which identified a January 29, 2007 date of injury/illness and described the type of injury/illness as carpal tunnel syndrome.
9. In October 2007, Miller signed and filed two Claims for Compensation, both alleging that parts of body injured were "bilateral upper extremities," both alleging that injury occurred "[d]uring course and scope of employment as a customer service representative, Employer suffered repetitive trauma to her bilateral upper extremities due to lifting luggage and by keyboarding resulting in bilateral carpal tunnel syndrome," and stating that place of accident was "KCI Airport." The first Claim for Compensation alleged a date of accident or occupational disease of "repetitive trauma through 6/04/04." The second Claim for Compensation alleged a date of accident or occupational disease of "repetitive trauma through 1/29/07."
10. Miller has not missed any time from work as a result of her upper extremity ailments to her hands and wrists.
11. Miller's numbness and tingling significantly increased following the holiday season in 2006. She testified she worked over-time during the holidays because of increased traffic and had little down time during the season.
12. U.S. Airways switched to a new computer system which required Miller to undergo training. Her first training began on November 2, 2006 which consisted of eight hours a day for three days on a computer in Phoenix, Arizona. Miller then went for a second training session beginning January 15, 2007 which consisted of eight hours a day for five days in Charlotte, North Carolina. Following her return from training, Miller's hand pain, numbness and tingling became so severe she reported it to her Employer.
13. Miller testified her symptoms were significantly different in 2007 than they were in 2004 in that she began suffering significant pain in her hands which extended into her forearm when lifting bags. Further, she testified that as a result of the significant pain she began modifying her work duties to compensate for the

pain.

1. Miller presently is seeking additional medical treatment for her hands and wrists. Her upper extremity pain is significantly worse in 2007 than it was in 2004. Miller's condition has continued to worsen from 2007 to the present date.
2. Claimant's retained medical expert, Dr. James A. Stuckmeyer, based on a March 6, 2008 examination, has diagnosed work-related "progress