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.