Richard Moeller v. M. R. Bathe Electric Co.

(Concurring in Part and Dissenting in Part)

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 modified to award more benefits to employee.

First, there is no question that employee's carpal tunnel syndrome of the left wrist is compensable under Missouri Workers' Compensation Law. However, it is my opinion, based upon the medical, expert testimony, and lay testimony, that employee should be awarded 25 % permanent partial disability benefits at the level of the left hand/wrist instead of the 17.5 % permanent partial disability benefits awarded by the administrative law judge.

According to § 287.190.6 RSMo (2004), "[p]ermanent partial disability' means a disability that is permanent in nature and partial in degree...." The court in Rana v. Landstar TLC, 46 S.W.3d 614 (Mo. App. W.D. 2001) stated that "[t]he Labor and Industrial Relations Commission has discretion as to the amount of the award and how it is to be calculated." Id. at 626 (citations omitted), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

In this case, there is contradictory medical evidence as to the nature and extent of employee's permanent partial disability suffered as a result of his carpal tunnel syndrome. Dr. Poetz is of the opinion that employee has sustained 50 % permanent partial disability of the left hand directly resultant from his work-related carpal tunnel syndrome. However, Dr. Sudekum is of the opinion that employee has sustained 8 % permanent partial disability of the left hand due to his carpal tunnel syndrome.

The first record of employee's left wrist neurological abnormalities began in 1994. Dr. Koo examined employee on February 4, 1994 and diagnosed employee with bilateral carpal tunnel syndrome, clinically right greater than left. Dr. Koo later performed right carpal tunnel endoscopic release. Employee went back to work following this procedure and did not have any documented carpal tunnel syndrome problems again until 2004.

Employee developed numbness, pain, and loss of dexterity in his left hand in September 2004. On November 24, 2004, Dr. Sudekum performed a left endoscopic carpal tunnel release. Employee testified that he received no improvement in his left hand symptoms following this procedure. Despite these continued problems, employee was returned to work full duty on January 27, 2005. On March 10, 2005, a nerve conduction study revealed evidence of persistent left carpal tunnel syndrome. However, Dr. Sudekum did not perform a revision of the left carpal tunnel release on employee until September 8, 2005.

Dr. Poetz examined employee on September 5, 2006, and his records indicate that employee's chief complaints were numbness and tingling in his entire left hand with pain and that the employee's hand falls asleep at night and wakes him up at the same frequency it did as before the two surgeries. Dr. Poetz's records also show that employee complained of not having dexterity in his hand and that his hand seemed to contract and cramp up even when he was resting. Lastly, Dr. Poetz's records showed a decrease in employee's grip strength and decreased pinprick sensation in the median nerve distribution on the left.

Employee testified at the hearing (three years after the last surgery) that he had developed left hand

cramping in the ten months before the hearing. He further testified that at its worst, his pain is 4 to 5 out of 10, and on good days, the pain is 3 out of 10 . The cramping seems to cause him to drop objects and slows his work. Employee went on to state that he has lost strength in his left hand, has ongoing numbness, lack of dexterity, and that his hand wakes him up at night.

In this case, the administrative law judge, in awarding employee only 17.5 % permanent partial disability benefits, incorrectly relied on past decisions of the Commission involving similar fact patterns. The courts have repeatedly held that the extent and percentage of disability sustained by an injured employee is a finding of fact within the special province of the Commission. Sellers v. Trans World Airlines, Inc., 776 S.W.2d 502, 505 (Mo. App. 1989), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003); Quinlan v. Incarnate Word Hospital, 714 S.W.2d 237, 238 (Mo. App. 1986); Banner Iron Works v. Mordis, 663 S.W.2d 770, 773 (Mo. App. 1983), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003); Barrett v. Bentzinger Brothers, Inc., 595 S.W.2d 441, 443 (Mo. App. 1980), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003); and McAdams v. Seven-up Bottling Works, 429 S.W.2d 284, 289 (Mo. App. 1968). There is no authority for the percentage of disability being established by a review of prior Commission decisions.

There is a large disparity between Drs. Sudekum and Poetz's opinions. The administrative law judge's decision to award employee 17.5 % permanent partial disability benefits was based upon what the Commission had awarded similar claimants in the past.

It is my opinion that the administrative law judge placed too much emphasis on the prior Commission decisions and in doing so failed to properly assess the nature and extent of employee's permanent partial disability. Specifically, the administrative law judge gave too little weight to employee's current complaints of cramping pain, loss of strength, ongoing numbness, lack of dexterity, and that his hand wakes him up at night. Based upon the entire record, including, but not limited to the medical records, expert testimony, and lay testimony, I believe employee has sustained 25 % permanent partial disability to his left hand/wrist as a result of his work-related carpal tunnel syndrome. As such, I would modify the award of the administrative law judge merely awarding employee 17.5 % permanent partial disability benefits at the level of the left hand/wrist and award employee 25 % permanent partial disability benefits at the level of the left hand/wrist.

For the foregoing reasons, I respectfully dissent from the majority's decision to affirm the extent of disability awarded by the administrative law judge.

John J. Hickey, 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: September 23, 2004

- 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:

Claimant developed carpal tunnel syndrome in his left wrist while working as an electrician.

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: Left wrist

- Nature and extent of any permanent disability: 171 / 2 % permanent partial disability of the left wrist and one week for disfigurement

1. Compensation paid to-date for temporary disability: $\ 6,179.69
2. Value necessary medical aid paid to date by employer/insurer: $\ 12,488.00

Employee: Richard M. Moeller Injury No.: 04-147456

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

- Employee's average weekly wages: $\ 809.22

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

1. Amount of compensation payable:

30.625 weeks of permanent partial disability from Employer \$10,842.78

1 week of disfigurement from Employer \ 354.05

1. Second Injury Fund liability: Open

Total: \quad \ 11,196.83

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: Jack J. Adams, Esq.

This workers' compensation case arises out of a work related injury in which the claimant, an electrician, suffers from carpal tunnel syndrome in his left wrist. The sole issue for determination is permanent disability and disfigurement. The Second Injury Fund claim remains open pursuant to an agreement among the attorneys. The evidence compels an award for the claimant for permanent partial disability benefits. Both of the attorneys in this case presented the evidence and prepared briefs in an exemplary manner.

At the hearing, the claimant testified in person and the parties jointly offered medical reports from Robert P. Poetz, M.D., and Anthony E.