Rose Gordon v. Lear Corporation

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, read the briefs, heard oral argument, 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 October 20, 2008, as supplemented herein.

The instant claim involves a request for workers' compensation benefits for an alleged occupational disease arising out of and in the course of employment. The administrative law judge found that employee did not prove that her work was the prevailing factor causing her medical conditions (bilateral carpal tunnel syndrome and left cubital tunnel syndrome). The administrative law judge found Dr. Crandall's findings to be more credible than Dr. Schlafly. We agree with this conclusion.

Section 287.063, RSMo. Supp. 2008, provides:

- An injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

- An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

The Commission agrees that claimant did not establish an injury by occupational disease. Employee failed to prove that her work duties were the prevailing factor causing her bilateral carpal tunnel and left cubital tunnel syndrome. The competent and substantial evidence shows that the work for employer did not expose claimant to the hazard of carpal tunnel syndrome or cubital tunnel syndrome.

The Commission agrees with the ultimate conclusion reached by the administrative law judge that employee failed to meet her burden of proof that she sustained an occupational disease arising out of and in the course of her employment.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued October 20, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 22nd day of May 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

The ultimate determination of credibility of witnesses rests with the Commission. The Commission is not bound to yield to an administrative law judge's findings, though, including those relating to credibility; and the Commission is authorized to reach its own conclusions. The law only requires the Commission to take into consideration the credibility determinations of an administrative law judge and not give those determinations deference. Kent v. Goodyear Tire \& Rubber Co., 147 S.W.3d 865 (Mo.App. W.D. 2004).

The administrative law judge found the opinion of Dr. Crandall to be more credible than the opinion of Dr. Schlafly. I disagree. Dr. Crandall's opinion regarding whether employee's work duties caused the conditions giving rise to employee's symptoms is simply not credible. The award founded upon Dr. Crandall's opinion is not supported by competent and substantial evidence.

Under Section 287.063.2 RSMo, employee must prove that the "occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor[.]"

Therefore, the question is whether employee presented sufficient evidence to support a finding that the work she performed for employer was the prevailing factor in causing her medical conditions, carpal tunnel syndrome and cubital tunnel syndrome. I believe the evidence supports that her work was the prevailing factor causing her conditions.

Claimant testified to the repetitive nature of her work, entered a video depicting such repetition, and offered medical expert testimony supporting her claim. Employee provided testimony as to how she performed her work as a seat labeler. Employee's duties predominately consisted of labeling and scanning seats, requiring constant and repetitive use of her hands. She testified that she began experiencing numbness and tingling in her hands and that she reported her symptoms to her supervisor and prepared an incident report. Employee was treated conservatively without improvement. Employee was sent to Dr. Cantrell who ordered nerve conduction studies which confirmed employee had bilateral carpal tunnel syndrome. Employee then saw Dr. Crandall who recommended surgery, but employer denied treatment. Employee sought treatment from Dr. Schlafly who performed bilateral carpal tunnel surgeries as well as surgery for left cubital tunnel syndrome. Employee testified that she saw improvement following the surgeries.

Dr. Schlafly testified that employee used her hands repetitively in performing her work duties which included labeling, scanning, and pushing seats. Dr. Schlafly noted the repetitive nature of employee's job required constant use of both hands. Dr. Schlafly opined that employee's work was the prevailing factor causing employee's conditions and the need for bilateral carpal tunnel and left cubital tunnel surgeries.

Dr. Crandall opined that employee's work was not the prevailing factor causing her conditions; however, the opinion of Dr. Crandall is not credible. Dr. Crandall did not specifically witness employee performing her duties, but based his opinion in part on a brief video prepared by employer showing only a portion of employee's job duties. The ten second video did not depict all aspects of employee's work for employer and therefore did not accurately portray the work. Dr. Crandall also believed that employee was embellishing her work duties even though her description of her duties was not contradicted by employer's job description. Dr. Crandall agreed that employee's work required repetitive use of her hands, but opined that her job was not hand intense enough to cause her conditions. Under 287.063.3 RSMo, repetitive motion is recognized as an occupational disease; there is no requirement that the job be of a certain hand intensity.

Furthermore, there is not evidence suggesting employee engaged in activities that would expose her to the risk of an occupational disease, specifically carpal tunnel syndrome or cubital tunnel syndrome, outside of her employment life. Dr. Schlafly testified that employee did not suffer from diabetes, hyperthyroidism, or another medical condition that would cause her symptoms. Dr. Schlafly opined that employee's bilateral carpal tunnel syndrome was not idiopathic in nature. Dr. Crandall did not offer any other cause for employee's conditions. Prior to working for employer, employee did not experience numbness or tingling or any problems with her hands. The evidence clearly demonstrates that employee's conditions, both bilateral carpal tunnel syndrome and left cubital tunnel syndrome, were directly caused by her work for employer.

Employee met her burden of proof establishing that her work for employer was the prevailing factor causing her medical conditions and need for surgery. Accordingly, I would reverse the award of the administrative law judge and award benefits.

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

1. Are any benefits awarded herein? No

- Was the injury or occupational disease compensable under Chapter 287? No

1. Was there an accident or incident of occupational disease under the Law? No

- Date of accident or onset of occupational disease: January 26, 2007 (alleged)

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

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
2. Did employer receive proper notice? Yes
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: The claimant, a seat labeler, developed bilateral carpal tunnel syndrome and elbow pain.
3. Did accident or occupational disease cause death? No Date of death? N/A
4. Part(s) of body injured by accident or occupational disease: Both wrists and left elbow

- Nature and extent of any permanent disability: 17 % permanent partial disability of the right wrist, 15 % permanent partial disability of the left wrist, and 17 % of the left elbow.

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

Employee: Rose L. Gordon Injury No.: 07-005816

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

- Employee's average weekly wages: $\ 781.60

1. Weekly compensation rate: $\$ 521.09 / \ 376.55
2. Method wages computation: By agreement

COMPENSATION PAYABLE

1. Amount of compensation payable:

None

1. Second Injury Fund liability: Open

Total:

None

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 hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Timothy P. O'Mara, Esq.

Employee: Rose L. Gordon

Injury No.: 07-005816

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

Before the