George Wolin v. Swank Audio Visuals, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-121948

Employee: George Wolin

Employer: Swank Audio Visuals, Inc.

Insurer: Federal Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

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 February 19, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge John K. Ottenad, issued February 19, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $1^{\text {st }}$ day of September 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: George Wolin

Departments: N/A

Employer: Swank Audio Visuals, Inc.

Additional Party: Second Injury Fund (Open)

Insurer: Federal Insurance Company

Hearing Date: October 30, 2008

Injury No.: 06-121948

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

Checked by: JKO

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: (allegedly) September 30, 2006
5. State location where accident occurred or occupational disease was contracted: St. Louis City
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? N/A
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was employed as an audio technician for Employer and developed bilateral carpal tunnel syndrome allegedly from his work activities.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Right Wrist and Left Wrist
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

Employee: George Wolin Injury No.: 06-121948

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 1,057.00
3. Weekly compensation rate: $\ 704.67 for TTD/ $\ 376.55 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

Claim denied $\ 0.00

1. Second Injury Fund liability: Open

TOTAL:

$\ 0.00

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: James M. Martin.

Employee: George Wolin

Departments: N/A

Employer: Swank Audio Visuals, Inc.

Additional Party: Second Injury Fund (Open)

Insurer: Federal Insurance Company

Injury No.: 06-121948

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On October 30, 2008, the employee, George Wolin, appeared in person and by his attorney, Mr. James M. Martin, for a hearing for a final award on his claim against the employer, Swank Audio Visuals, Inc., and its insurer, Federal Insurance Company. The employer, Swank Audio Visuals, Inc., and its insurer, Federal Insurance Company, were represented at the hearing by their attorney, Mr. John P. Kafoury. The Second Injury Fund is a party to this case, but the Fund Claim is being left open by agreement of the parties. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) George Wolin (Claimant) has alleged an occupational disease claim with a date of injury of September 30, 2006.

2) Claimant was an employee of Swank Audio Visuals, Inc. (Employer).

3) Venue is proper in the City of St. Louis.

4) The Claim was filed within the time prescribed by the law.

5) At the relevant time, Claimant earned an average weekly wage of $\ 1,057.00, resulting in applicable rates of compensation of $\ 704.67 for total disability benefits and $\ 376.55 for permanent partial disability (PPD) benefits.

6) Employer has not paid any benefits to date.

1) Did Claimant sustain an occupational disease?

2) Did the occupational disease arise out of and in the course of employment?

3) Are Claimant's injuries and continuing complaints, as well as any resultant disability, medically causally connected to his alleged exposure at work on or about September 30, 2006?

4) Did Claimant provide appropriate notice of his injury/occupational disease to Employer?

5) Is Employer liable for past medical expenses?

6) Is Claimant entitled to future medical care?

7) What is the nature and extent of Claimant's permanent partial disability attributable to this injury?

The following exhibits were admitted into evidence:

A. Chronology of medical issues concerning the development of the carpal tunnel syndrome

B. A1c test information

C. Certified medical treatment records from Signature Health

D. Medical treatment records from Dr. Robert Tague

E. Certified medical treatment records from Cardinal Neurosurgery \& Spine, Inc.

F. Stipulation for Compromise Settlement for Injury Number 04-138052 between Claimant and the Second Injury Fund

G. Deposition of Dr. Jerome F. Levy, with attachments, dated February 5, 2008

H. Medical treatment records and bills from Premier Care

I. Medical treatment records from St. Anthony's Medical Center

J. Withdrawn by Claimant

K. Certified medical treatment records and bills from Tesson Heights Orthopaedic \& Arthroscopic Associates, P.C.

1. Claim for Compensation and Division acknowledgement form dated December 28, 2006 for Injury Number 06-121948
2. Claim for Compensation for Injury Number 04-138052
3. Certified medical treatment records from Dr. Robert Tague
4. Certified medical treatment records from Cardinal Neurosurgery \& Spine, Inc.
5. Deposition of Dr. Henry Ollinger, with attachments, dated February 20, 2008

Notes: 1) Unless otherwise specifically noted below, any objections contained in these Exhibits are overruled and the testimony fully admitted into evidence.

2) Some of the records submitted at hearing contain handwritten remarks or other marks on the Exhibits. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on October 30, 2008.

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions and depositions, the medical records and bills, the other documentation, and the testimony of Employer's witness, as well as my personal observations of Claimant and the other witness at hearing, I find:

1) Claimant is a 54-year-old male who worked for Employer for approximately 17 years, through 2008, as an audio technician. Prior to being hired as a regular full-time employee by Employer in 1991, he performed some freelance work for them in the 1980s. Claimant testified that his work days can range anywhere from 4 to 8 hours per day, and up to 17 hours per day, depending on the job. He states that his minimum workday is 4 hours per day. Claimant testified that he believes it is more complicated and hand-intensive to operate an audio board during a business meeting than a concert.

2) Claimant testified that his job duties include set up, repair and operation of audio boards for business conferences and concerts. Claimant testified that his job duties involve standing on a riser in the back of an auditorium during a business meeting or concert, and operating an audio board with his hands by adjusting the various sound levels on an audio board. He adjusts levels, faders, knobs and handles throughout the meeting or performance. Claimant testified that his hands are in a cocked position and he leans against the board as he maneuvers the fader buttons up and down the board with his fingers.

3) Medical treatment records from Dr. Robert Tague (Exhibits D and 3), Claimant's family physician, document treatment Claimant had for both diabetes and bilateral hand complaints going back to 1994. On April 15, 1994, Dr. Tague noted that Claimant complained of "carpal tunnel pain" which was present for 4 months, and

which would awaken him at night. Claimant described his job duties as "variable." Blood tests run on that date showed high glucose levels and in subsequent notes, there are diagnoses of "DM" (diabetes mellitus) for which he was apparently prescribed diet and exercise. Claimant's weight on that date was 233 pounds. Claimant's continued blood tests, and office notes through the rest of the 1990's, showed that the glucose levels would sometimes be down in the normal range, and at other times would be slightly high. Claimant initially lost some weight ( 30 pounds) and the hand complaints were apparently not as troublesome because they were not referenced again in the records until 2002/2003. There is an additional mention of carpal tunnel, left greater than right, on September 21, 1998, but it is under a section of the note entitled "PMH" which stands for past medical history. There was no contemporaneous reference to carpal tunnel syndrome complaints at that visit.

4) Claimant testified that in 2003 he began to have more severe problems with his wrists and so he sought further treatment for his complaints.

5) Dr. Tague sent Claimant for EMG and Nerve Conduction Study testing on the upper extremities to St. Anthony's Medical Center (Exhibit I) on October 16, 2003. The testing revealed mild delays on the right median nerve and moderate delays on the left median nerve, consistent with mild right carpal tunnel syndrome and severe left carpal tunnel syndrome.

6) Claimant was then referred to Dr. Daniel Kitchens at Cardinal Neurosurgery \& Spine, Inc. (Exhibits E and 4) for further evaluation of his hand complaints. Dr. Kitchens examined Claimant on November 25, 2003. He noted a several year history of left hand pain, numbness and tingling, and a more recent onset of right hand complaints. Dr. Kitchens noted that, "The numbness and tingling come[s] on when he is playing the bass and is flexing his wrist and using his fingers." There is absolutely no reference to his work causing any of the hand problems, and in fact, the report indicates that, "he reports no occupational concerns." Dr. Kitchens diagnosed bilateral carpal tunnel syndrome, severe on the left and mild on the right. He discussed treatment options with Claimant including surgery versus conservative care. Claimant wanted to consider his options and was instructed to contact Dr. Kitchens if he decided to proceed with the surgery.

7) Claimant contin