Betty Eaton v. AT&T/Southwestern Bell Telephone L.P.

(Modifying Award of March 9, 2011)

Injury No.: 09-056213

Employee: Betty Eaton

Employer: AT\&T/Southwestern Bell Telephone L.P.

Insurer: Self-Insured

On March 9, 2011, we issued a temporary award or partial award. On March 18, 2011, employer filed a Motion to Modify or Amend the March 9, 2011, temporary or partial award. Employee filed a Motion to Dismiss employer's Motion to Modify or Amend to which employer/insurer responded. We have reviewed the parties' motions. We find that we failed to address an issue raised by employer in its Application for Review. As our award was only temporary, we retain jurisdiction to "modify the award from time to time to meet the needs of the case." Section 287.510 RSMo. We deny employee's Motion to Dismiss. We issue this award to correct our earlier oversight.

Pursuant to § 287.510, we modify our March 9, 2011, temporary or partial award on the issue of additional medical treatment.

The administrative law judge directed employer to provide additional medical treatment with Dr. Bruce Schlafly as the authorized treating physician. The administrative law judge was without authority to so direct. We reverse the administrative law judge's designation of Dr. Bruce Schlafly as the authorized treating physician.

Instead, employer shall provide such additional medical treatment as may reasonably be required to cure and relieve employee from the effects of the injury.

In all other respects, our March 9, 2011, temporary or partial award remains unchanged.

This award is only temporary or partial. It 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 $\S 287.510 RSMo.

Given at Jefferson City, State of Missouri, this \qquad 30^{\text {th }} \qquad$ day of March 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

I have reviewed the Motion to Modify or Amend and the Motion to Dismiss. I would dismiss the Motion to Modify and leave our March 9, 2011, award unchanged. I respectfully dissent from the decision of the majority to modify our award.

John J. Hickey, Member

1. Are any benefits awarded herein? Future medical benefits.
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? July 23, 2009.
5. State location where accident occurred or occupational disease contracted: Cape Girardeau, 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.

1. Describe work employee was doing and how accident happened or occupational disease contracted: Employee spent her entire work shift each day taking calls from customers and entering/retrieving data into a computer.
2. Did accident or occupational disease cause death? No.
3. Parts of body injured by accident or occupational disease: Bilateral upper extremities.
4. Compensation paid-to date for temporary total disability: None.
5. Value necessary medical aid paid to date by employer-insurer? None.
6. Value necessary medical aid not furnished by employer-insurer? None.
7. Employee's average weekly wage: $\ 1,211.22.
8. Weekly compensation rate: The rate of compensation for temporary total disability and permanent total disability was $\ 807.48. The rate for permanent partial disability was $\ 422.97.
9. Method wages computation: Stipulation.
10. Amount of compensation payable:

Unpaid medical expenses: None.

Additional Medical Aid: See award.

TTD: None.

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 July 13, 2010, the employee, Betty Eaton, appeared in person and by her attorney, Mr. Steve Taylor, for a hearing for a temporary award. The employer was represented at the hearing by its attorney, Mr. Bob Evans. 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 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 Law, and duly qualified as a self-insured employer.
2. Covered Employee - On or about the date of the alleged occupational disease, the employee was an employee of AT\&T and was working under the Missouri Workers' Compensation Law.
3. Notice - Employer had notice of employee's accident.
4. Statute of Limitations - Employee's claim was filed within the time allowed by law.
5. Average Weekly Wage and Rate - Employee's average weekly wage rate was $\ 1,211.22. The rate of compensation for temporary total disability and permanent total disability was $\ 807.48. The rate for permanent partial disability was $\ 422.97.
6. Medical Aid Furnished - Employer/Insurer has not paid any medical aid.
7. Temporary Total Disability Paid - Employer/Insurer has paid $\ 0.00 as temporary total disability benefits for 0 weeks of disability.
8. Previously Incurred Medical - There is no claim for previously incurred medical for the purposes of this hearing.
9. Mileage or other medical ( $\mathbf{2 8 7 . 1 4 0}$ RSMo) - There is no claim for mileage or other medical expenses under 287.140 RSMo for the purposes of this hearing.
10. Additional TTD or TPD - There is no claim for additional TTD or TPD benefits for the purposes of this hearing.
11. Permanent Total Disability - There is no claim for permanent total disability benefits for the purposes of this hearing.
12. Permanent Partial Disability - There is no claim for permanent partial disability benefits for the purposes of this hearing.

1. Occupational Disease - There is a dispute as to whether the employee sustained an occupational disease arising out of and in the course of her employment.
2. Medical Causation - There is a dispute as to whether the employee's injury was medically causally related to the occupational disease.
3. Additional or Future Medical - Employee is claiming additional or future medical aid.

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

Employer-Insurer's Exhibits

Ms. Eaton testified that she was born November 24, 1971. She stated that she has two children, ages 12 and 5, and that they live at 917 Lee in Sikeston, Missouri. Ms. Eaton testified that her husband works at Noranda and that they have been married for 15 years.

Ms. Eaton's testimony was that she had worked at a fast food restaurant for three years during High School as a supervisor and that during the course of that employment she had no complaints related to her upper extremities. Ms. Eaton testified that she worked in the fast food industry until 1994 when she married and stayed home as a homemaker for a period of time. When asked about whether she was under a doctor's care while staying at home she indicated that she was under the care of an OBGYN associated with childbirth. When asked specifically whether she had any symptoms of carpal tunnel syndrome during her pregnancies she responded "no".

It was Ms. Eaton's testimony that in 2000 she underwent gastric bypass surgery to treat her obesity at Barnes Hospital. According to Ms. Eaton, at her heaviest she weighed 385 pounds. When asked whether she was experiencing any symptoms of carpal tunnel syndrome prior to her gastric bypass surgery, she replied "no".

Ms. Eaton said that she went to work at Sikeston Gymnastics in approximately 2000 on a part time basis working 15 to 20 hours a week. Her testimony was that she was there for approximately 6 years on a part time basis and throughout the course of her employment at Sikeston Gymnastics she had no symptoms of carpal tunnel syndrome and had no work related injuries.

Ms. Eaton said she went to work at New Wave Communications in 2005. She said that when she began working at New Wave Communications that it was a second job as she continued her part time employment at Sikeston Gymnastics. Ms. Eaton said that at the time that she started at New Wave Communications she did not have any symptoms of carpal tunnel syndrome.

Ms. Eaton said that her job at New Wave Communications involved answering the phone, engaging in sales over the phone and typing for 40 hours a week with no overtime. Ms. Eaton said that as to the position of her upper extremities while at her desk at New Wave Communications she testified that the keyboard for her computer was lower than her desk. When asked whether the computer desk setup at New Wave Communications stressed her upper extremities less than the arrangement that she had at AT\&T she replied "yes, the computer desk arrangement at New Wave Communications caused far less stress on my upper extremities". Ms. Eaton was asked how many hours of her work day was she typing at New Wave Communications and her testimony was that it was approximately half of her day.

Ms. Eaton said that she thereafter left her job at New Wave Communications to go to work for AT\&T. Ms. Eaton testified specifically that she had no complaints related to her upper extremities at the time that she left New Wave Communications.

Ms. Eaton testified that in mid May, 2009 she began experiencing pain in her upper extremities that was worse during the day and caused her numbness, tingling in her hands and fingers and interfered with her ability to sleep. She said that at the time she wasn't sure what was going on and so she just tried to ignore the symptoms and continued to work.

Ms. Eaton testified that she began working at AT\&T in July 2008 and that her trainer was Scott, her first supervisor was Donna and her second supervisor was Jama. Ms. Eaton said that at the time that she began her work at AT\&T that she had no complaints with her upper extremities. It was Ms. Eaton's testimony that her position at AT\&T was retention and that that job involved wearing a headset and keeping her hands on a keyboard throughout the entire course of her day.

Ms. Eaton said that unlike New Wave Communications, at AT\&T the keyboard was not located beneath the computer but was instead sitting on the same level as the computer screen making it higher off the ground and causing more of a bend and stress on her upper extremities to enter data on the keyboard. Ms. Eaton said that even when she was not typing data into the computer her hands remained on the keyboard in position to type and that this position was held throughout the course of her day. She testified that her work hours were 8:45 a.m. to 7:15 p.m. and that she got a 30 minute lunch break and tw