Wilbert Shepard v. Yellow Transportation

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 05-041995

Employee: Wilbert Shepard

Employer: Yellow Transportation (Settled)

Insurer: Self-Insured (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence, read the briefs of the parties, and considered the whole record. Pursuant to § 286.090 RSMo, we reverse the award and decision of Administrative Law Judge Cornelius T. Lane dated December 2, 2009. The award and decision of the administrative law judge is attached hereto solely for reference.

Employee alleges he sustained bilateral carpal tunnel syndrome arising out of and in the course of his employment. Employee settled his claim against employer/insurer. This matter is before us to determine the liability of the Second Injury Fund for enhanced permanent partial disability, if any.

"A mere cursory reading of $\S 287.220 .1$ makes it clear that an employee/claimant must establish that he or she sustained a compensable injury and that the injury caused the requisite level of permanent partial disability as part of his or her claim against the Fund."2

The administrative law judge allowed compensation in this matter without making a finding that employee's alleged primary injury - bilateral carpal tunnel syndrome constituted a compensable injury. In particular, the administrative law judge did not address whether employee had proven his bilateral carpal tunnel syndrome was medically causally related to his employment.

"An occupational disease is compensable if it is clearly work related and meets the requirements of an injury which is compensable as provided in subsections 2 and 3 of section 287.020."3

"In proving a causal connection between the conditions of employment and the occupational disease, the claimant bears the burden of proof. 'To prove causation it is sufficient to show 'a recognizable link between the disease and some distinctive feature of the job which is common to all jobs of that sort.' And, 'there must be evidence of a direct causal connection between the conditions under which the work is performed and the occupational disease.' However, the cause and development of an occupational

[^0]

[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2000, unless otherwise indicated.

${ }^{2}$ Nance v. Treasurer of Mo., 85 S.W.3d 767, 771 (Mo. App. 2002), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

${ }^{3}$ Section 287.067.2 RSMo.

Improvee: Wilbert Shepard

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disease is not a matter of common knowledge. There must be medical evidence of a direct causal connection. 'The question of causation [is] one for medical testimony, without which a finding for claimant would be based on mere conjecture and speculation and not on substantial evidence.' 'A claimant must submit medical evidence establishing a probability that working conditions caused the disease, although they need not be the sole cause.'[^4]

The administrative law judge sustained the Second Injury Fund objections to the admission of Dr. Berkin's report (hearsay) and Dr. Berkin's deposition (offered after the record closed). Employee did not raise the propriety of the administrative law judge's evidentiary ruling as an issue in either his Application for Review or his brief. Consequently, Dr. Berkin's opinions are not in evidence. We disregard references in employee's brief to Dr. Berkin's opinions.

In his brief, employee states Dr. Volarich provided an opinion establishing employee's carpal tunnel syndrome is compensable. We have reviewed Dr. Volarich's deposition and his report. Dr. Volarich offers no opinion that there was a causal relationship between the conditions under which employee performed his work duties and the development of carpal tunnel syndrome. Nor did Dr. Volarich offer an opinion that there exists a recognizable link between carpal tunnel syndrome and some distinctive feature of employee's job which is common to all jobs of that sort.

**Conclusion**

The record is devoid of an expert medical opinion establishing a medical causal relationship between employee's work duties and his carpal tunnel syndrome. Because employee has failed to establish that he sustained a compensable occupational disease, employee's claim against the Second Injury Fund must fail.

**Award**

We reverse the award of the administrative law judge and deny compensation in this matter. All other issues are moot.

Given at Jefferson City, State of Missouri, this 9th day of February 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

[^4]: Vickers v. Mo. Dep't of Pub. Safety, 283 S.W.3d 287, 292 (Mo. App. 2009) (internal citations omitted).

Employee: Wilbert Shepard

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Secretary

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 affirmed. I adopt the award and decision of the administrative law judge.

I respectfully dissent from the decision of the majority of the Commission to deny benefits in this case.

John J. Hickey, Member

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: 3-2-2005
5. State location where accident occurred or occupational disease was contracted: Saint Louis, 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 occurred or occupational disease contracted: Claimant was a dock worker which involved driving a forklift and loading/unloading cargo.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Bilateral wrists
14. Nature and extent of any permanent disability: Settled with Employer following surgery for 17.5 % of each wrist plus 5 % load factor
15. Compensation paid to-date for temporary disability: $\ 3642.13
16. Value necessary medical aid paid to date by employer/insurer? $\ 28,994.49

1. Value necessary medical aid not furnished by employer/insurer? Nil
2. Employee's average weekly wages: $\ 842.40
3. Weekly compensation rate: $\$ 383.52 / \ 354.05
4. Method wages computation: Stipulation

1. Second Injury Fund liability: Yes

151.95 weeks with a 15 % load factor of 22.78 weeks at a compensation rate of $\ 354.05 per week for a total of $\ 8,065.25

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: James M. Martin 1007 Olive Street $5^{\text {th }}$ Floor, Saint Louis, Missouri 63101

The matter of Wilber Shepard ("Claimant") proceeded to hearing on August 27, 2009. Claimant was represented by attorney James Martin. The Second Injury Fund was represented by Assistant Attorney General Kristin Frazier.

1) Venue

2) Notice

3) Relevancy to the Workers' Compensation Act

4) Statute of Limitations

1) What is the nature and extent of permanent partial disability against the Second Injury Fund?

Claimant's attorney submitted the following exhibits into evidence:

Exhibit A: Medical Records of Barnes Jewish Hospital

Exhibit B: Medical Records of Missouri Baptist Hospital

Exhibit C: Dr. Hulsey Medical Records

Exhibit D: Dr. Crandall Medical Records

Exhibit E: Concentra Medical Records

Exhibit F: Saint Louis University Medical Records

Exhibit G: St. Louis Internal Medicine Medical Records

Exhibit H: Healthcare Institute Medical Records

Exhibit I: Medical Records of Dr. Kriegshauser

Exhibit J: Southwest Medical Center Medical Records

Exhibit K: Medical Records of Dr. Berkin

Exhibit L: Medical Records of St. Alexius Hospital

Exhibit M: Medical Records of Dr. Heim

Exhibit N: Medical Records of Dr. Burmeister

Exhibit O: Southwest Medical Center Medical Records (2006)

Exhibit P: Deposition of Dr. David Volarich

Exhibit Q: Deposition of James England

Exhibit R: Chronology of Claimant's injuries

Exhibit S: Stipulation for Compromised Settlement (06-097574)

Exhibit T: Yellow Freight letter for Division of Employment Security

Exhibit U: Stipulation for Compromised Settlement (05-041995)

Exhibit V: Stipulation for Compromised Settlement (05-128902)

Exhibit W: Stipulation for Compromised Settlement (02-091207)

Exhibit X: Stipulation for Compromised Settlement (96-400692)

All of the above exhibits were accepted into evidence except Claimant's Exhibit K in which the Second Injury Fund objection was sustained. Exhibit K will not be considered in the findings of fact and rulings of law in this case. Claimant's Exhibit R is accepted into evidence over the objection of the Second Injury Fund.

Based upon competent and substantial evidence, I find:

1) Claimant testified very credibly that while working for Employer, he had experienced numbness and tingling in his hands and was having those problems for several years. Employer communicated to its employees that it would no longer pay for any tests or injuries with regards to the wrist after a certain date. Claimant went for medical help before that date to Dr. Kriegshauser in May 2005 at Southwest Medical Center. He then was seen by Dr. Crandall for his bilateral carpel tunnel syndrome. He underwent surgery on the right wrist on April 13, 2006 and May 4, 2006 on the left wrist. Claimant returned to work in June 2006.

2) Claimant testified he still has problems with his hands, such as numbness and tingling.

3) Prior to Claimant's carpel tunnel syndrome of March 2, 2005, Claimant had the following preexisting/disabilities:

A) Meniscus tear of the right knee on August 24, 1985

B) 40 % of the right shoulder as a result of injury on January 22, 1996, resulting in surgery by Dr. Hulsey on July 23, 1997. Claimant's claim was settled with Employer for 17.5 % of the left shoulder and 10 % of the left thumb for a total of 45.1 weeks of permanent partial disability.

C) Claimant was diagnosed in 1999 with chronic obstructive pulmonary disease, vascular disease, and coronary artery disease. Dr. Volarich rated the chronic obstru