Danielle Johnson v. Nike IHM Manufacturer

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-104617

Employee: Danielle Johnson

Employer: Nike IHM Manufacturer

Insurer: Old Republic 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 November 4, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued November 4, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $15^{\text {th }}$ day of April 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

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 future medical care should be awarded.

The administrative law judge determined that employee failed to meet her burden of proving that she sustained an occupational disease arising out of and in the course and scope of her employment, and that her work was the cause of her medical condition. It is my opinion that the administrative law judge, in arriving at said decision, failed to properly weigh the evidence and, consequently, erred in denying employee future medical care.

Section 287.067.1 RSMo defines an occupational disease as:

[A]n identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

Section 287.067.2 RSMo provides that for an occupational disease to be compensable, it must be "the prevailing factor causing both the resulting medical condition and disability." Further, "[t]he 'prevailing factor' is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable."

In determining what the medical cause of employee's disability is, there are two issues: 1) the impact of employee's risk factors; and 2) the impact of employee's work activities. It is clear from the record that at 5'6" and 280 lbs. employee is overweight. Further, it has been proven that obesity increases the likelihood for individuals to develop carpal tunnel syndrome. However, there is nothing in the record to suggest that employee's obesity caused her carpal tunnel syndrome.

Dr. Brown took a history from employee relative to her day-to-day responsibilities with employer, reviewed her treatment records/nerve conduction studies, performed a physical examination, and diagnosed employee with chronic bilateral carpal tunnel syndrome. Dr. Brown concluded that based on the description of her job, her overall medical history, and her lack of non-occupational activity that would put her at risk for carpal tunnel syndrome, he believed "her work for employer for the past five years

Employee: Danielle Johnson

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would be considered the prevailing cause for the need for further treatment for her bilateral carpal tunnel syndrome."

Employer sent employee to Dr. Strecker. Dr. Strecker agreed with Dr. Brown that employee does indeed have bilateral carpal tunnel syndrome. However, Dr. Strecker opined that he "[d]id not find any evidence that her job was the primary or prevailing factor for her development of carpal tunnel syndrome." Subsequent to Dr. Strecker's examination of employee, Dr. Strecker toured the plant where employee had worked and produced a supplemental report reiterating that he did not believe that employee's work activities were the prevailing factor in the cause of her bilateral carpal tunnel syndrome.

Although Dr. Strecker summarily concludes that employee's work was not the prevailing factor for her development of carpal tunnel syndrome, he stops short of stating what he actually believes did cause her carpal tunnel syndrome. Dr. Strecker identifies that employee is obese, but he never states that her obesity caused her carpal tunnel syndrome.

It may not be the defense's burden to prove that something other than employee's work activities caused her carpal tunnel syndrome, but when there are two conflicting expert opinions, I believe the doctor that states, with specificity, what caused employee's condition should be deemed more credible than a doctor that does not know what caused her condition. Dr. Brown definitively stated that employee's work is the prevailing cause for the need for further treatment for her bilateral carpal tunnel syndrome. On the other hand, Dr. Strecker merely stated that he did not find any evidence that employee's job was the primary or prevailing factor for the development of employee's bilateral carpal tunnel syndrome. For the foregoing reasons, I believe Dr. Brown's opinion should have been found more credible than Dr. Strecker's.

Throughout the award, the administrative law judge weighs employee and employer's expert opinions and ultimately decides that the evidence is essentially equal. Based on said finding, the administrative law judge concludes that employee did not satisfy her burden of establishing that her work was the prevailing factor in causing her bilateral carpal tunnel syndrome. However, in arriving at said conclusion, the administrative law judge implies an incorrect statement of law. The administrative law judge pointed out that neither expert cited any "scientific study" supporting their position or establishing scientifically determined factors that cause the employee's medical condition. The administrative law judge goes on to state that "[o]ne might conclude that both positions rely on 'junk science'" in establishing their positions. In so stating, the administrative law judge has basically made up a legal standard of proof. Under Missouri Workers' Compensation Law there is no such requirement that an expert cite to a scientific study to support their position. The fact that the administrative law judge even took this into consideration in arriving at his conclusion further supports my opinion that the administrative law judge failed to properly weigh the evidence.

Although the administrative law judge states in his award that the evidence was basically equal for employee and employer, by denying employee benefits, he, in

Employee: Danielle Johnson

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essence, found a doctor that could not state what caused employee's bilateral carpal tunnel syndrome more credible than a doctor that definitively pointed to employee's work activities as the prevailing cause of her bilateral carpal tunnel syndrome. In my opinion, this is an illogical conclusion. Further, it is worth noting that this administrative law judge has repeatedly decided carpal tunnel syndrome cases by supplementing the evidence with his own medical assumptions and by imposing new burdens of proof upon employees. The judge usurps the role of medical experts by substituting his opinions for those of the medical experts. Such usurpation is contrary to the dictates of the Missouri Supreme Court and should not be condoned.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

John J. Hickey, Member

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: November 10, 2008 (alleged)
5. State location where accident occurred or occupational disease was contracted: St. Charles 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? 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: The claimant, a plastic component operator, developed bilateral carpal tunnel syndrome.
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: Both wrists
14. Nature and extent of any permanent disability: Not determined
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: None

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 1,006.58
3. Weekly compensation rate: $\$ 671.08 / \ 404.66
4. Method wages computation: By agreement

1. Amount of compensation payable:

None

1. Second Injury Fund liability: Open

TOTAL:

None

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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Attorney D. Andrew Weigley, Esq. represented the claimant, but waived any attorney's fee pertaining to this aspect of the proceeding.

Employee: Danielle Johnson

Department: N/A

Employer: Nike IHM Manufacturer

Additional Party: Second Injury Fund (Open)

Insurer: Old Republic Insurance Company

Injury No.: 08-104617

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/ch

This workers' compensation case raises several issues arising out of an alleged work related injury in which the claimant, a machine operator, suffers from carpal tunnel syndrome and requires surgery of the condition. The issues for determination are (1) Occupational disease arising out of and in the course of employment, (2) Medical causation, and (3) Future medical care. The Second Injury Fund claim remains open pursuant to an agreement among the attorneys. The evidence compels an award for the claimant for future medical care.

At the hearing, the claimant and Jeff Turner, the emp