Teresa Kitchen v. Mid-America Hotels Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-030986

Employee: Teresa Kitchen

Employer: Mid-America Hotels Corporation

Insurer: Self-Insured c/o Claim Management Inc.

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 for review as provided by section 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms and adopts the award and decision of the administrative law judge dated July 22, 2009.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of section 287.510 RSMo.

The award and decision of Administrative Law Judge Maureen Tilley, issued July 22, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $14^{\text {th }}$ day of January 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Teresa Kitchen

030986

Injury No. 07-

Dependents: N/A

Employer: Mid America Hotels Corporation

Additional Party: Second Injury Fund (left open)

Insurer: Self Insured. Third Party Administrator: Claim Management Inc.

Checked by: MT/kh

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease? March 22, 2007
5. State location where accident occurred or occupational disease contracted: Cape Girardeau County, Missouri
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 happened or occupational disease contracted: The employee developed carpal tunnel syndrome because of the hand intensive work she performed at Burger King.

Employee: Teresa Kitchen

030986

1. Did accident or occupational disease cause death? No
2. Parts of body injured by accident or occupational disease: Right hand
3. Compensation paid-to date for temporary total disability: None
4. Value necessary medical aid paid to date by employer-insurer? $\ 2,045.84
5. Value necessary medical aid not furnished by employer-insurer? None
6. Employee's average weekly wage: $\ 439.95
7. Weekly compensation rate: $\ 293.30
8. Method wages computation: By agreement
9. Amount of compensation payable:

Unpaid medical expenses: N/A

Additional Medical Aid: See findings

This award is only temporary and partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

On May 6, 2009, the employee, Teresa Kitchen appeared in person and by her attorney, Timothy Ruddy, for a temporary or partial award. The employer-insurer was represented at the hearing by their attorney, Kenneth McManaman. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a summary of the evidence and the findings of fact and rulings of law, are set forth below as follows:

1. Covered Employer: Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and the employer was self insured. The third party administrator is Claim Management Inc.
2. Covered employee: On or about the date of the alleged accident or occupational disease the employee was an employee of Mid America Hotels Corporation.
3. Notice: Employer had notice of employee's accident.
4. Average weekly wage and rate:

A. Average weekly wage: $\ 439.95

B. Rate for temporary total disability and permanent partial disability: $\ 293.30

1. Medical aid furnished by employer-insurer: $\ 2,045.84
2. Temporary disability paid by employer-insurer: None

1. Occupational disease: Whether on or about March 22, 2007 the employee sustained an occupational disease arising out of and in the course of her employment.
2. Medical causation: Whether employee's injury was medically causally related to accident or occupational disease.
3. The employee is claiming additional or future medical aid.
4. Statute of Limitations: Whether employee's claim was filed within the time allowed by law.

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Deposition of Dr. Bruce Schlafly

1. Deposition of Teresa Kitchen, Employee
2. Deposition of Lisa M. Howe, OTR/L, who performed functional job analysis
3. Deposition of Dr. R. Evan Crandall, M.D.
4. Deposition of Dr. Bruce Schlafly, M.D.
5. Partial medical records of Med Stop One
6. DVD of Ergonomic Functional Job Analysis created by Lisa Howe, OTR/L

- The employee stated that she has worked for Mid America Hotels (Burger King) for 25 years. She stated that in 2004-2005 she did not work for Mid America Hotels for 4-6 weeks. During that time she worked for the Lutheran Home 35 hours a week. She then worked at Rhodes 101 and took care of drive through traffic. She did this for four nights a week. She then went back to work at Burger King.

- The employee stated that she is now the breakfast manager and the assistant manager.

- The employee stated that she also does some house work on the side. She stated that for a year she did eight hours a week of house work on the side. However, since January of 2009, she has done four hours of housework on the side.

- The employee also currently cleans at Southeast Fabrication and Eagle Oil Company. She stated that when she cleans these places she is only there for 45 minutes. She stated that she dusts and vacuums with her left hand because her right hand hurts.

- The employee also stated that in 2004 she worked at Hyundai five nights a week. She stated that in 2005 she worked at Capaha Bank three nights a week. She stated that she had symptoms in her right hand back then but her daughter helped her clean.

- In the employee's deposition she stated that in 1995, when the symptoms began she thought she had arthritis in her right hand. At the hearing, the employee stated that in 2000, she thought she had arthritis in her hands. The employee also stated that in March 22, 2007, when she went to Med Stop One, she also thought she had arthritis in her right hand.

- The employee stated that she did not mention the problems with her right hand to her employer until 2007.

- The employee stated that her activities at Burger King before March 22, 2007 included: her going in at 5 A.M., turning the lights on, counting all of the drawers (six drawers with $\ 100 in each), making sure everything was entered properly in the books, making sure the restroom was clean, working at the food counter ( 99 % of the time), taking orders, typing in amount of money given to her by customers and giving change back, taking trays to customers, and making an afternoon deposit after counting the drawers. The employee stated that she now takes orders on a touch screen and does not have to punch in orders like she previously had to.

- The employee stated that in 1995 she began experiencing difficulty when she was counting money. She stated that as time went on her hands got worse. She stated that she has constant pain down her right thumb to her palm and forefinger. She stated that her left hand hurts periodically.

- The employee stated that in 2000 she went to Med Stop One and was seen by Dr. Cova.

- The employee stated that in 2007 her employer's insurance carrier then had her go to Dr. Crandall.

- The employee stated that she eventually saw Dr. Schlafly. She stated that he diagnosed her with carpal tunnel syndrome. She stated that she is asking for treatment for her right hand.

- On April 4, 2007 the employee was examined by Dr. Evan Crandall, a plastic surgeon. The employee gave a verbal history of her job description.

- Dr. Crandall stated that the employee is a 46 year old female. He stated that she is 5‘4" tall and weighs 206 pounds.

- Dr. Crandall stated that the on physical of the employee's upper right extremity, the employee has a negative ulnar Tinel's sign, a negative median Tinel's sign, a positive Phalen's test and a positive arm raise test. He stated that the employee has a positive provocative test and a negative Finkelstein test. He stated that the employee has no evidence of ganglions, trigger fingering or thenar muscle atrophy. He stated that the left upper extremity examination is unremarkable.

- Dr. Crandall stated that on April 4, 2007, the employee underwent a right nerve conduction study which demonstrated severe carpal tunnel syndrome.

- Dr. Crandall stated that the level of carpal tunnel syndrome is consistent with a five year history of carpal tunnel syndrome. He stated that the employee will need surgery in order to get better. He stated that the surgery can be done with the scope or the classic open technique with an anticipated good result. He stated that the employee could work light duty three days following surgery, full duty work at twenty-eight days, and final evaluation at six months.

- Dr. Crandall stated that based on the information he has received, he does not believe the employee's case is work-related. He stated that in order for work to be considered hand intensive and an ergonomic risk factor for carpal tunnel syndrome it needs to exceed OSHA guidelines for hand intensive activity. He stated that this would be the equivalent of repetitive movement every two to three seconds for over four hours per day. For keyboardists it takes over four hours of continuous typing per day which is around 60,000 keystrokes, or for lifting it takes over 10,000 pounds per day to satisfy OSHA and NIOSH criteria. He stated for carrying trays, the employee would need to carry approximately 1,000 to 2,000 trays per day to be considered an ergonomic lifting risk. He stated that counting the cash and reconciling the numbers for that would not take four hours of continuous typing or repetitive movement.

- Dr. Crandall stated that the employee's job does not appear to fit the criteria to be considered a risk factor for the cause of her carpal tunnel syndrome. He stated that the employee's medical risk factors would be the prevailing factor and not the work factors.

- Dr. Crandall stated that the employee has medical risk factors of high body mass index, age and female gender.

- Dr. Crandall stated that he wrote a secondary report on October 9, 2007. He stated that the employer ordered a functional job analysis to assess the ergonomic issues of the employee's position. He stated that the employer ordered an ergonomic specialist, Lisa Howe, to the job and they prepared a seven page report outlining the job's position, its functions, and the movements that are required in performing the job.

- Dr. Crandall stated that the functional job analysis was consistent with what the employee had described. He st