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Joel Norman v. Bi-State Development Agency

Decision date: August 12, 20098 pages

Summary

The Missouri LIRC affirmed the Administrative Law Judge's decision denying workers' compensation benefits to a bus driver who claimed bilateral carpal tunnel syndrome from repetitive motion work. One commissioner dissented, arguing the employee presented substantial evidence that his twelve-plus years as a bus driver was the prevailing factor causing his occupational disease and permanent disability.

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Caption

FINAL AWARD DENYING COMPENSATION <br> (Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-025561

Employee: Joel Norman

Employer: Bi-State Development Agency

Insurer: Self-Insured

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 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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated Margaret D. Landolt, and awards no compensation in the abovecaptioned case.

The award and decision of Administrative Law Judge Margaret D. Landolt, issued February 25, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 12th day of August 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

DISSENTING OPINION

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 and permanent partial disability benefits, temporary total disability benefits, and past medical benefits should be awarded.

The administrative law judge determined that employee failed to meet his burden of proving that he sustained an occupational disease arising out of and in the course and scope of employment, and that his work was the cause of his medical condition. It is my opinion that the administrative law judge, in arriving at said decision, failed to properly weigh the evidence as a whole and, consequently, erred in denying employee benefits.

With regard to occupational diseases arising from repetitive motion, Section 287.067.3 RSMo (2005) provides the following:

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....

In this case, there is substantial evidence supporting employee's claim that his twelve plus years of working as a bus driver for employer was the prevailing factor in causing his bilateral carpal tunnel syndrome and resulting permanent disability.

Employee testified that the operation of the bus is hand intensive. The bus's steering wheel lies flat (parallel to the ground as opposed to a car's steering wheel which is more upright). The bus driver is constantly exposed to the vibration in the bus's steering wheel, which is made worse on rough roadways. A bus driver must constantly hold onto the steering wheel with both hands; otherwise the wheel will jerk from his grasp. The bus driver must push and pull the steering wheel while driving. In addition, the bus driver must open and close the doors to allow passenger transfers.

Dr. John O'Brien was employee's primary care provider. On October 4, 2005, employee saw Dr. O'Brien with complaints of his hands falling asleep with pain and cramping that progressively worsened during the course of each week. Employee continued to follow-up with Dr. O'Brien and on March 7, 2006, Dr. O'Brien noted that employee's upper extremity complaints and examination were consistent with carpal tunnel syndrome.

Employee had previously been diagnosed with diabetes, therefore, Dr. O'Brien went to great lengths to rule out or determine if employee's diabetes was the cause of his upper extremity complaints. Dr. O'Brien not only ordered a nerve conduction study for employee, but also ordered blood tests and x-rays. On April 12, 2006, Dr. O'Brien diagnosed employee with bilateral carpal tunnel syndrome which "is almost certainly related to his occupation as a bus driver."

Although neither Dr. O'Brien, nor any of the other medical experts provided testimony, it is clear from the records that he considered several factors in ruling out employee's diabetes or arthritis as the cause of employee's medical condition. In the year prior to employee's first complaints of upper extremity problems, Dr. O'Brien's records clearly show employee was not suffering any ill-effects associated with diabetes. The exams consistently failed to reveal edema, cellulitis, or ulceration. The prior exams also consistently

revealed good pulses and intact sensation. Also, after employee's complaints on October 4, 2005, it is clear that Dr. O'Brien was well aware that employee's diabetes could be a cause, but duly noted that "[a]lthough diabetes control has not been ideal, [employee's] most recent hemoglobin A1C was only 8."

Dr. O'Brien referred employee to Dr. David Strege. Employee complained to Dr. Strege that he had bilateral pain in the hands, worse on the right and trigger finger of the right ring finger. On June 1, 2006, Dr. Strege performed left carpal tunnel release and, on June 15, 2006, he performed right carpal tunnel release on employee. Dr. Strege's operative reports confirmed that the median nerves were both focally compressed at the transverse carpal ligament. Focal compression is consistent with Dr. O'Brien's diagnosis of bilateral carpal tunnel syndrome as opposed to a diabetic neuropathy. Employee was released from Dr. Strege's care in September of 2006.

Employer sent employee to Dr. Evan Crandall for an Independent Medical Evaluation on April 5, 2006. Dr. Crandall indicated that employee has symptoms and signs consistent with carpal tunnel syndrome, but Dr. Crandall went on to state in his report that "this would be considered a medical case and not a work-related injury ... [because employee's] work does not contain the physical activity that could cause, change or aggravate carpal tunnel syndrome. It is not hand intensive."

Employee was then sent, by his attorney, to Dr. Jerry Meyers on March 6, 2007, for a second Independent Medical Evaluation. Dr. Meyers concluded that employee's bilateral carpal tunnel syndrome and his trigger finger are indeed related to his work as a bus driver and that this is the prevailing factor in the development of his problem. Dr. Meyers assessed a permanent partial disability for the right wrist at 40 % and partial disability for the left wrist at 25 %.

The administrative law judge, in denying employee benefits, relied heavily on the fact that Dr. O'Brien's records incorrectly stated that employee had only been diagnosed with diabetes for three years prior to his upper extremity complaints when in fact employee had been diagnosed with diabetes for six years prior to his complaints. Although this may have been a misstatement by Dr. O'Brien concerning the precise timeline of the onset of employee's diabetes, the statement was intended as nothing more than a provisional assessment of a possible cause. In no way should this misstatement be dispositive as to the credibility of Dr. O'Brien's opinion; especially when the records clearly show that it was only after further investigation that Dr. O'Brien opined that employee's bilateral carpal tunnel syndrome was almost "certainly...a result of his occupation as a bus driver" (as opposed to diabetic neuropathy).

Essentially, there are medical records from three separate doctors; Dr. O'Brien, Dr. Strege, and Dr. Meyers, which all suggest that employee's work as a bus driver was the prevailing factor in causing his bilateral carpal tunnel syndrome. Dr. Crandall is the only doctor that indicated that employee's work was not "hand intensive" enough to cause this condition and Dr. Crandall made this suggestion without even addressing the position and movement of the hands required to operate a bus.

Based on the foregoing, I find Dr. O'Brien and Dr. Meyers more credible with regard to causation than I do Dr. Crandall. For this reason, I believe that employee has carried his burden of establishing that his job duties as a bus driver at Bi-State Development Agency are the prevailing factors in causing his bilateral carpal tunnel syndrome and, as a result, employee should be entitled to permanent partial disability benefits, temporary total disability benefits, and past medical benefits associated with his bilateral carpal tunnel syndrome. As such, I would reverse the award of the administrative law judge denying employee of any benefits regarding this matter.

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

AWARD

Employee: Joel Norman

Injury No.: 06-025561

Before the<br>Division of Workers' Compensation<br>Department of Labor and Industrial Relations of Missouri<br>Jefferson City, Missouri

Dependents: N/A

Employer: Bi State Development Agency

Additional Party: N/A

Insurer: Self-Insured

Hearing Date: January 13, 2009

Checked by: MDL

FINDINGS OF FACT AND RULINGS OF LAW

  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: Alleged March 24, 2006

- State location where accident occurred or occupational disease was contracted: St. Louis, 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? No

- 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: N/A
  1. Did accident or occupational disease cause death? N/A
  2. Part(s) of body injured by accident or occupational disease: N/A

- Nature and extent of any permanent disability: 0

  1. Compensation paid to-date for temporary disability: None
  2. Value necessary medical aid paid to date by employer/insurer? \$824.21

Employee: Joel Norman

  1. Value necessary medical aid not furnished by employer/insurer? $\ 6,244.99

- Employee's average weekly wages: $\ 789.20

  1. Weekly compensation rate: $\$ 526.13 / \ 365.08
  2. Method wages computation: Stipulation

COMPENSATION PAYABLE

  1. Amount of compensation payable: 0

Total: 0

  1. Future requirements awarded: None

Said payments to begin 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Joel Norman

Dependents: N/A

Employer: Bi State Development Agency

Additional Party: None

Injury No.: 06-025561

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

PRELIMINARIES

A hearing was held on January 13, 2009 at the Division of Workers’ Compensation in the City of St. Louis, Missouri. Joel Norman ("Claimant") was represented by Mr. David Sokoloski. Bi State Development Agency ("Employer"), which is self-insured, was represented by Mr. John Johnson. Mr. Sokoloski requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about March 24, 2006, Claimant was an employee of Employer; venue is proper in the City of St. Louis, Missouri; Employer received proper notice of the injury; and the claim was timely filed. The parties further stipulated Claimant was earning an average weekly wage

Full decision text continues in the plain-text archive copy.

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