Russell McDonald v. Bi-State Development Agency

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-061035

Employee: Russell McDonald

Employer: Bi-State Development Agency

Insurer: Self-Insured

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 March 27, 2009. The award and decision of Administrative Law Judge Matthew D. Vacca, issued March 27, 2009, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $29^{\text {th }}$ day of September 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Russell McDonald

Injury No 06-061035

Dependents: N/A

Employer: Bi-State Development Agency

Add'l Party: Second Injury Fund (open)

Insurer: Self Insured

Hearing Date: February 11, 2009

Before The

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checking Date: February 11, 2009

Checked by: MDV/CW

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287?
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: Mid 2005 to early 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? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
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: Lifting and emptying trash barrels and other lifting duties caused cubital tunnel
12. Did accident or occupational disease cause death? No Date of death?
13. Part(s) of body injured by accident or occupational disease: Right Upper Extremity at Elbow
14. Nature and extent of any permanent disability: 35 % of Right Elbow
15. Compensation paid to-date for temporary disability: -0 -
16. Value necessary medical aid paid to date by employer/insurer? $\ 3,789.60

Employee: Russel McDonald

1. Employee's average weekly wages: $\ 771.16
2. Weekly compensation rate: $\$ 508.96 / 365.01$
3. Method wages computation: Stipulated

1. Amount of compensation payable:

12 weeks of temporary total disability (or temporary partial disability) \$6,107.52

73.5 weeks of permanent partial disability from Employer \$26, 828.24

5 weeks of disfigurement from Employer \1825.05

1. Second Injury Fund liability: Open

TOTAL: \quad \ 34,760.81

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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Jim Hoffman

Employee: Russell McDonald

Injury No 06-061035

Dependents: N/A

Employer: Bi-State Development Agency

Add'l Party: Second Injury Fund (open)

Insurer: Self Insured

Before The

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDV/CW

The parties agreed that the issues for determination were occupational disease, arising out of and in the course of employment, medical causation, past TTD from 11/10/06-01/31/07 (12 weeks) and the nature and extent of any permanent partial disability. While disfigurement was not specifically raised as an issue, the employee did show his arm to the ALJ and complained of disfigurement during his testimony.

1. Claimant, Russell McDonald, 57, was employed by Bi-State Development Agency as a maintenance worker for 36 years. He was responsible for snow removal, handling salt bags, cleaning stairs, removing trash and debris from the right of way and loading equipment and moving furniture, but his main job was emptying trash at bus stops and Metro waiting areas. He would drive to the boarding areas in a truck and remove the trash from 20-40 fifty-gallon barrels a day. Sometimes this required rolling them to a gate lift to empty them on the truck. He called his work strenuous and was tired at the end of the day. He now works around the shop and not on the road.
2. In 2005, Employee suffered an unrelated on-the-job injury to his right hand when he fell off a truck. The Employer/Insurer authorized Dr. Rottman to treat Employee for that injury. Dr. Rottman performed surgery on Employee's right hand. Dr. Rottman released Employee to work from that injury on or about January 23, 2006.
3. While treating for his right hand injury he informed Dr. Rottman of right elbow pain also caused by his work. At the request of Dr. Rottman, Employee gave Dr. Rottman Exhibit H, a trash barrel schedule. Employee discussed with Dr. Rottman his work which

involved repetitive lifting of heavy objects each day. In March of 2006, Dr. Rottman ordered a nerve conduction study which revealed cubital tunnel syndrome. Employee testified that at that time Dr. Rottman informed Employee that his cubital tunnel syndrome was caused by the repetitive nature of his work. Employee testified that he immediately reported the work injury and Dr. Rottman's diagnosis to Mike Creamer, his supervisor, and filled out Exhibit A, Employee Injury Statement, with Mike Creamer. According to Mr. Creamer, the injury report was placed in Employee's personnel file and a copy was given to "work comp."

1. Dr. Rottman assigned the billing code in connection with Mr. McDonald's treatment. Employer/Insurer paid for all of Employee's treatment in connection with the 3/16/06 injury, including all bills for the ulnar nerve transposition surgery.
2. Dr. Rottman sent an October 31, 2006 report to John Bouhasin, Employee's attorney at that time. According to Dr. Rottman, "my impression is that if his work with the right arm does involve repetitive flexion and extension of the elbow where the elbow is flexed past ninety (90) degrees for at least four hours per day, then his work at Metro Transit would be the prevailing factor with regards to his right cubital tunnel."
3. Dr. Rottman performed an ulnar transposition surgery for the cubital tunnel syndrome on 11/10/06. Employee remained off work for slightly over twelve weeks following the surgery. Despite paying all medical without objection, Employer failed to pay TTD.
4. On March 8, 2007, a job analysis CD was sent to Dr. Rottman. Employee testified that he was not aware of the CD being prepared and was not consulted regarding whether or not the CD accurately reflected a fair description of his job. Employee testified that the 12 minute CD of a co-worker emptying a couple of trash barrels does not accurately reflect his forty (40) hour work week as he emptied twenty (20) to forty (40) 55-gallon drums each day and performed numerous other lifting and cleaning activities such as picking up tree branches, concrete repair work, snow removal, salt bag carrying, digging ditches, removing trash and debris from the right of way and moving furniture.
5. Dr. Rottman testified in his deposition that he did not discuss the CD with Employee despite a doctor/patient relationship, but acknowledged that discussing the CD with his patient is a "reasonable suggestion." After being made aware of other job duties not depicted on the CD, Dr. Rottman testified that: "The best information would be a videotape of Mr. McDonald himself doing his job for the -at least four out of the eight hours verses a ten minute videotape. Those ten minutes may just have been a videotape. She may have watched it for a long time. But it's always better, in my opinion, to look at that person doing the job, because Mr. McDonald may pick up things different than the person who was in the videotape. He may do things differently. That would be more accurate, and it would be accurate, obviously, to review any analysis with Mr. McDonald, to see if he agreed to it."
6. Employee's supervisor, Michael Creamer, testified that he was not consulted in the preparation of the CD. The adjustor handling the file, Carol Campbell, testified that she was not consulted in the preparation of the CD. In addition, neither Carol Campbell nor Michael Creamer reviewed the CD prior to the CD being sent to Dr. Rottman.

1. Ms. Sewick, the billing clerk for Dr. Rottman, initially billed Employee's health insurance, but was instructed by Dr. Rottman to return the money and bill the Employer/Insurer. She received payment in full without any objection or dispute from the Employer/Insurer. According to Ms. Sewick, all billing codes are assigned by Dr. Rottman.
2. Dr. Rottman later described the actual CD as being an inaccurate description of Employee's job duties and explaining that a different CD of the Employee actually working would be the best evidence. Dr. Rottman 's May 21, 2007 letter report concerning the job task analysis CD was rather equivocal on the level of activity depicted: "it just did not seem like enough stress to the elbow to be the prevailing factor here for a right cubital tunnel condition."
3. Claimant's supervisor expressed familiarity with a twelve minute video taken of a fellow employee, Leroy Coonce, doing the job in question. He described the other employee as slow but said the video "pretty much" showed what he did at that job. He said claimant sometimes moved furniture and cleared snow. He also pointed out that there was only one stop shown and he would have many others in a day. He admitted that his exhibit on the trash barrel schedule (Ex.H) did not show any trash stops taking more than twelve minutes.
4. Claimant's credible testimony was that the job was very repetitive and he was frequently called away from his job emptying barrels to perform many other tasks. Further the CD does not depict the myriad variables in his job, such as when trash was strewn all over a site, or the barrels were full of water and bags had to be drained or trash was thrown on the tracks and he had to retrieve it because he had the truck.
5. Dr. Rottman said that on $3 / 16 / 06$ he felt that the elbow complaints were not related to his earlier hand injury but might be related to a repetitive flexion of his elbows at work that the employee said he did. He acknowledged that at the time he did not have enough information to know one way or another whether that was the case. He said it was possibly related to work.
6. On 10/5/06 he said that "if, in fact, he did work with the right elbow doing a lot of repetitive flexion and extension, then it would be work-related" He added, in that report, that if there was some question as to the amount of flexion and extension, he would welcome a videotape or job analysis (p.10).
7. Dr. Rottman prepared a report on $5 / 21 / 07$ after viewing the CD and reading a job analysis prepared by HealthSouth. Because of all the driving between sites, he did not think there was really repetitive work but only occasional activities lifting and rolling cans. He did not see a repetitive flexion and extension of the elbow as he was told, just an occasional use of the elbow and the job activities were varied. As a result he did not think the job activities were the prevailing factor for the cubital tunnel condition on the right elbow. He said the cause was anatomical in that it was the structures of Claimant's body covering the nerve that caused the nerve to be tight.

1. Dr. Volarich examined the Claimant at the request of the Claimant's attorney. He felt that due to Claimant's job activities, including trash pickup, maintenance work, snow removal, grass control and other jobs, that the work was the prevailing factor in causing the right elbow cubital tunnel syndrome. He rated the condition at 35 % of the right elbow.
2. Claimant was a simple credible witness who testified forthrightly and directly. I reject the notion Claimant could outwit Dr. Rottman and fabricate his job duties sufficiently to establish medical causation.

1. Claimant was exposed to an occupational disease that involved repetitive use of his upper extremities that caused injury to his right elbow.

The dispute is whether the work he did at Metro was the prevailing factor in causing right cubital tunnel syndrome. The treating doctor said it was possible if the history of repetitive use of the elbow was accurate, it probably was the cause. Once he saw the job analysis and video, he did not think the history Claimant gave him was accurate and rejected work as causative. The job analysis and video made it clear to Dr. Rottman that the Employee mischaracterized the amount of repetitive use of the elbow was involved in his job.

Nevertheless, Claimant's credible testimony was that the job was very repetitive and he was frequently called away from his job emptying barrels to perform many other tasks. Further the CD does not depict the myriad variables in his job, such as when trash was strewn all over a site, or the barrels were full of water and bags had to be drained or trash was thrown on the tracks and he had to retrieve it because he had the truck. He also carried bags of salt in the winter and shoveled snow.

I find Claimant's history given to Dr. Rottman initially and at trial was accurate and supports exposure to an occupational disease.

I find that at the time the injury and occupational disease occurred, Employee was within his period of employment where he might reasonably be and where he was fulfilling the duties of his employment, i.e., emptying trash cans and other laborer duties. Accordingly, employee was in the course of his employment.

The claimant has the burden of proving all the essential elements of the claim for compensation. It is noted that the proof as to medical causation need not be by absolute certainty, but rather by a reasonable probability. "Probable" means founded on reason and experience which inclines the mind to believe but leaves room for doubt. Tate v. Southwestern Bell Telephone Co., 715 S.W.2d 326, 329 (Mo.App. 1986). "Medical causation, not within the common knowledge or experience, must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause". Brundige v. Boehringer Ingelheim, 812 S.W. 2d 200, 202 (Mo.App. 1991); McGrath v. Satellite Sprinkler Systems, Inc., 877 S.W.2d 704, 708 (Mo.App. E.D. 1994). The ultimate importance of expert testimony is to be determined from the testimony as a whole and less than direct statements of reasonable medical certainty will be sufficient. Choate v. Lily Tulip, Inc., 809 S.W. 2d 102, 105 (Mo.App.1991).

Dr. Volarich had an accurate history of claimant's duties and Dr. Rottman did not. Dr. Rottman's original opinion that the injury was work related is correct as being founded on actual facts and a correct description of the job.

1. Claimant was temporarily and totally disabled from 11/10/06-01/31/07 and is entitled to 12 weeks TTD at the rate of 508.96 .
2. Claimant has sustained a 35 % permanent partial disability to the elbow as a result of the right cubital tunnel syndrome and 5 weeks of disfigurement.

Date: $\qquad

Made by: \qquad$

Matthew D. Vacca

Administrative Law Judge

Division of Workers' Compensation

Attest: $\qquad$

Naomi Pearson