The employee Diane Dobbs is 46 years of age, having been born on April 17, 1963. Ms. Dobbs resides in Ozark, Missouri.
Ms. Dobbs graduated from high school, and then attended college but did not graduate. During early adulthood, Ms. Dobbs married her former husband and moved to San Antonio, Texas, with her husband, who was in the Army. Initially, Ms. Dobbs did not work outside the home. Later, she obtained and engaged in various employment occupations, including work as a contract employee.
In 1994, Ms. Dobbs obtained employment with the employer MCI, working in telecommunications sales. This employment involved sales over the telephone. Ms. Dobbs worked for MCI until in or around July 1998. In describing the nature of this work and her use of the computer and telephone communications system while working for MCI, Ms. Dobbs testified in her deposition and trial as follows:
- MCI provided both a handset and a headset for talking on the telephone, but she used primarily the handset, which was connected to the telephone. (Ms. Dobbs described the handset as an "old time handset with two round ends.") Often times, the computer would dial the telephone numbers, but at other times she would have to manually dial the telephone numbers. Ms. Dobbs further indicated that she made approximately ten calls an hour, although these calls included busy signals, answering machines, and the calls not being answered. In using a handset, Ms. Dobbs commonly (approximately 90 percent of the time) held the phone in her left hand and typed with her right hand; but she alternated use of her hands. Additionally, she would put the phone down and type with both hands.
- During telephone sales calls, Ms. Dobbs input into the computer information relating to the customer and the sales incident, including details relating to the product and the name, address and telephone number of the customer. The data entry involved approximately 10 to 15 screens and the use of a keyboard, which occurred with each
call, regardless of whether a sale was made. The telephone calls were categorized into three categories: (1) sale made, (2) sale not made, and (3) call back.
- Telephone calls involving a made sale would take 15 to 20 minutes at a time. In addition to data entry, Ms. Dobbs had to use a keyboard to access the internet or an information data base, which allowed her to answer sales questions, such as the cost of a phone call to Singapore. The longest telephone calls involved "call backs", which required more data entry; while telephone calls involving no sales took the least amount of time with the least amount of data entry.
- The computer monitor was situated at a height at or near her eye level, which allowed her to read from the monitor without her having to bend her neck downward. (Ms. Dobbs noted that she had previously suffered a neck injury, and attempted to alleviate pain and discomfort in her neck by having the monitor placed at eye level.) Yet, the table upon which the keyboard rested was too high, causing her hands to be situated at a high level; and she had to type with her hands being at approximately a 90 degree angle.
According to Ms. Dobbs, while working for MCI she began to experience pain in her elbows and arms, and attributed the pain to her use of the computer and keyboard. Additionally, Ms. Dobbs indicated that she informed her supervisor (Bryan Belt) of the problems, who informed her that she needed to adjust the height level of the monitor and keyboard.
In the course of giving a deposition, Ms. Dobbs testified that, in her employment with MCI, she commonly worked six-hour shifts four days a week, and then worked occasional mandatory Saturdays, and she could come into the office and work additional time. In this regard Ms. Dobbs indicated that she worked 27 to 32 hours a week. However, in her testimony at trial Ms. Dobbs indicated that she worked 15 hours a week.
Approximately a month after leaving MCI, in August 1998, Ms. Dobbs obtained employment with Brad Bradshaw, M.D., J.D. Law Office, and assisted the law office in setting up the business systems and moving the office to a new location. Additionally, Ms. Dobbs is noted by Dr. Paff to have provided the law office with assistance as a paralegal, and used the computer very little. Ms. Dobbs engaged in her employment with Dr. Bradshaw's law office until in or around February 1999.
Ms. Dobbs presents with a complicated medical history involving multiple medical conditions. Further, an understanding of her medical condition is complicated by the presentation of her case, including the lack or insufficiency of medical evidence that is before the undersigned judge.
The medical records in evidence reveal the following:
- On November 3, 1998, Ms. Dobbs presented to David Paff, M.D., pursuant to a referral from Dr. Wantuck and Dr. McQueary. At the time of this examination, Ms. Dobbs presented with multiple problems, and saw Dr. Paff primarily for problems relating to her arms. At the time of this examination, Dr. Paff offered an impression:
- Fibrositis.
- Ulnar neuropathy, possibly at the cubital tunnel though there is no motor weakness.
- deQuervain's tenosynovitis bilaterally.
- CMC joint arthritis of the thumb.
- During her examination with Dr. Paff on November 3, 1998, Ms. Dobbs provided a history of being involved in a motor vehicle accident and suffering an injury to her neck, which resulted in her receiving treatment from Dr. McQueary, who is an orthopedic surgeon. Additionally, Dr. Paff notes a history of Ms. Dobbs hurting all over, and having difficulty sleeping and having mild chronic depression.
- Subsequent to the November 3, 1998 examination, Dr. Paff initiated a course of treatment, which included a nerve conduction study and occupational therapy. Dr. Paff noted that the nerve conduction study was normal. Dr. Paff further noted that Ms. Dobbs presented with multiple problems, which he opined related to his diagnosis of fibrositis.
- On December 1, 1998 Dr. Paff took Ms. Dobbs off work, noting that she was unable to work due to the thrombophlebitis in her right leg.
- In December 1998, Dr. Paff noted that Ms. Dobbs "developed superficial thrombophlebitis in her right lower extremity below the knee where she has had varicose veins for a long time, went to the emergency room. She cannot take aspirin or nonsteroidals. She is on elevation and heat....She does have tender, swollen, inflamed saphenous system veins below the knee."
- On December 17, 1998, Dr. Paff propounded the following comments:
The patient's [Ms. Dobbs] status is improving in regard to her upper extremities, particularly her right upper extremity. She still has a lot of tenderness in various areas on the left. Again, I think she has a lot of fibrositis and perhaps some repetitive trauma also. Her varicose veins thrombosed in the right leg are not getting better. She states she is starting to have some tenderness in the left. She is under the care of Dr. Wantuck with anticoagulant therapy with Coumadin. I am going to continue her therapy for a couple of more weeks. She should have an x-ray of her left elbow just to make sure there is no functional bone problem. I will review that. Apparently she has no more authorizations to come to me from Dr. Wantuck, and she tells me that Dr. Wantuck is not going to renew that.
- On January 14, 1999, Dr. Paff propounded the following comments:
The patient [Ms. Dobbs] comes back in, first of all to get a sticker for her car for handicap. She has bilateral blood clots in her legs now. She is taking Coumadin. She is bleeding easily. She has lots of complaints about her upper extremities which might do well with a cortisone injection,
though I am concerned about doing that in the face of all of the problems she having in her lower extremities. I did tell her that I would like to see her back in a couple of months and if this does clear, we can try to do something about her upper extremities, though she has fibrositis and I doubt if we are going to make much progress.
- On March 29, 1999, Dr. Paff noted that Ms. Dobbs is off Coumadin and is not taking any medications. Additionally, Dr. Paff noted that Ms. Dobbs has fibrositis, and states that the fibrositis "is her major problem outside of her veins." (Dr. Paff, at a different time, notes that these two conditions are not related to Ms. Dobbs' employment with MCI.) Dr. Paff further noted during this examination that Ms. Dobbs was having a lot of tender areas that trigger point injections could be tried on, but he did not want to proceed with such treatment until after Ms. Dobbs underwent a scheduled surgery for removal of the right saphenous vein system.
- On November 21, 2001, Ms. Dobbs presented to Salim Rahman, M.D., who is a neurosurgeon with Springfield Neurological Spine Institute, for an examination. At the time of this examination, Dr. Rahman noted that the MRI (performed on September 26, 2001) demonstrated a disc protrusion paracentrally at C5-6 and an osteophyte disc complex at C6-7; and there is evidence of compression of the anterior space. Dr. Rahman offered an impression of neck pain and cervical stenosis, and recommended that Ms. Dobbs undergo a CT myelogram to delineate the bony anatomy.
- On December 4, 2001, Ms. Dobbs underwent an examination at St. John's Physicians and Clinics, Orthopedic Association Branch, pursuant to a referral by John W. Hawkins, M.D. In light of this examination, Ramon Shane, M.D., offered his impression - "There is evidence of extensive chronic superficial and deep vein thrombosis demonstrable in the right lower extremity with no evidence of any active component seen."
- On January 11, 2002, Ms. Dobbs underwent a diagnostic study relating to a venous exam, which resulted in John Clark, M.D., offering the following impression:
- There is no evidence of deep venous thrombosis.
- Vanous reflux is noted in the popliteal and saphanous systems.
- There is a focal area of superficial thrombosis in the varicosed branches of the greater vein above the ankle.
- On September 2, 2008, Ms. Dobbs presented to Shane L. Bennoch, M.D., for an independent medical examination at the request of her prior attorney. In light of his examination and findings, Dr. Bennoch did not identify or conclude that Ms. Dobbs sustained a work-related injury in her employment with MCI. In this regard, Dr. Bennoch states,
As you recall Ms. Dobbs had worked at MCI for several years and complained of numbness and pain to her shoulders, elbows and hands.
After taking a history and doing an exam of Ms. Dobbs, I would be unable to conclude with any reasonable degree of medical certainty that Ms. Dobbs had carpal tunnel syndrome.
David G. Paff, M.D., who is a physician practicing in the specialty of occupational medicine, testified by deposition on July 25, 2007 in behalf of the employee. Dr. Paff provided certain treatment for Ms. Dobbs, pursuant to a referral from Drs. Wantuck and McQueary. And at the request of a prior attorney, Dr. Paff performed an evaluation and issued a final rating report on April 5, 2000. In light of his examinations and evaluations of the employee, Dr. Paff opined that the repetitive trauma associated with Ms. Dobbs' work at MCI aggravated her fibrositis; and, as a result her repetitive trauma injury at MCI, Ms. Dobbs sustained a permanent partial disability of 10 percent to each upper extremity at the 210 -week level (elbow). In his deposition Dr. Paff refers to this condition as cubital tunnel syndrome. And, relative to the treatment for her elbows, Dr. Paff opined that Ms. Dobbs does not need any additional medical care.
In addition, Dr. Paff opined that, Ms. Dobbs presented with a permanent partial disability of 15 percent to the body as a whole, referable to the fibrositis; she presented with a permanent partial disability of 7.5 percent to the body as a whole, referable to the neck (motor vehicle accident in 1996); and she presented with a permanent partial disability of 10 percent to her upper extremity at the 175 -week level, referable to bilateral CMC joint arthritis of the thumb. Dr. Paff opined that the disabilities attributable to the fibrositis, neck, and bilateral CMC joint arthritis of the thumb are not related to her employment at MCI.
Dr. Paff did not render an opinion relative to Second Injury Fund liability.
On cross-examination Dr. Paff acknowledges that his understanding of the work performed by Ms. Dobbs is limited to his statement that she was a telemarketer for MCI. In this regard, Dr. Paff propounded testimony as follows:
Q. In your report you indicate that Ms. Gooch [Dobbs] was a telemarketer for MCI. Do you have any other history or information about what she did specifically for MCI?
A. Nothing more specific than that.
Q. You would need more information than simply a job title to be able to make an opinion that her elbow problems were caused by her job duties at MCI, wouldn't you?
A. My understanding of the job duties is it's repetitive use of the phone and use of a computer.
Q. Where did you get that information from?
A. Well, because I've been in places where they're doing that kind of work and my daughter has done that kind of work in telemarketing. I have not been at MCI specifically.
Q. She [Ms. Dobbs] didn't tell you what type of computer she used, did she?
A. No.
Q. She didn't tell you how much she used her arms and hands, did she?
A. She didn't tell me because I didn't ask because this - at that point in time when I started on this it wasn't a Workers' Compensation case, so I didn't go into that.
Q. Now, at her subsequent employment at Mr. Bradshaw's law office, she also talked on the phone and screen calls, didn't you?
A. That's what she told me, yes.
Q. Which was the same type of work that she was doing at MCI, wasn't it?
A. I don't believe so, but I haven't seen both of those jobs, so I can't be sure of that.
Q. Both of them involved, from what you know, extensive telephone work, didn't they?
A. What she told me about Bradshaw's office is she talked on the phone and screened calls. She used the computer very little. I don't have much detail about MCI, but that's when her symptoms began.
Q. You don't have any detail about whether she used the computer at all at MCI, do you?
A. That's my - it's my impression, but it's not in my report. It's my impression that telemarketers use computers, yes.
In addition, on cross-examination, Dr. Paff acknowledged that Ms. Dobbs suffers from fibrositis or fibromyalgia, which is not related to her work at MCI. And Dr. Paff acknowledged that Ms. Dobb's condition of fibromyalgia has been progressive.
Thomas B. Corsolini, M.D., who is a physician practicing in the specialty of physical medicine, testified by deposition in behalf of the employer and insurer. Dr. Corsolini performed an independent medical examination of the employee on April 13, 2005. At the time of this examination, Dr. Corsolini took a history from Ms. Dobbs, reviewed various medical records and the deposition given by Ms. Dobbs in June 2003, and performed a physical examination of her.
According to Dr. Corsolini, in performing an examination of Ms. Dobbs, he noted that his visual inspection of the legs revealed some scarring on the right lower extremity that could be consistent with previous superficial venous inflammation; but she presented with no apparent swelling, and no pitting edema in the lower legs. Dr. Corsolini further noted that, at the time of his examination, Ms. Dobbs demonstrated a normal active range of motion at all joints in both upper extremities, and a normal range of motion in all directions in the cervical spine. Nor did he find any evidence of muscle atrophy in her hands or any portion of her arms or legs. However,
Dr. Corsolini noted that Ms. Dobbs reported some tenderness with palpation at the left ulnar groove at the elbow.
In light of his examination and evaluation of the employee, Dr. Corsolini opined that Ms. Dobbs presents with no diagnosis that he could associate with her working experience at MCI. In this context, Dr. Corsolini propounds the following comments:
I think Ms. Gooch's [Dobbs] complaints and her physical examination yield no diagnosis, and with the length of time since leaving her job at MCI, over six years ago, there is no logical basis upon which to presume that any of the activities she was performing have produced any permanent injury. I will note that she had negative nerve conduction test studies in 1998, effectively ruling out carpal tunnel syndrome or ulnar neuropathy. Anything else that she might have been having would at most be considered nonspecific muscle pain or nonspecific tendon and joint pain.