Ray Volk v. Chrysler, LLC

(Affirming Award and Decision of Administrative Law Judge by Separate Opinion)

Injury No.: 01-170109

Employee: Ray Volk

Employer: Chrysler, LLC

Insurer: Self-insured

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ Having reviewed the evidence, read the briefs, heard oral argument and considered the whole record, the Commission finds that the award of the administrative law judge (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the ALJ dated November 4, 2010, by issuing a separate opinion denying compensation in the above-captioned case.

The ALJ found that employee failed to sustain his burden of proof that he developed an occupational disease while working for employer. Having made this finding, the ALJ deemed all other issues moot. While we agree with the ALJ's decision to deny compensation, we disagree with the ALJ's analysis in arriving at said decision.

Employee's Testimony

Employee worked for employer for 19 years. His last date of employment was July 5, 2001. When employee began his tenure with employer, he was hired for the position of material handler, where he would open parts, stock parts, and keep parts available for use on the line. Employee testified that approximately one year after he was hired he started driving a fork-lift truck in addition to his handler duties. Employee ended up holding a number of different positions with different duties while he was employed with employer, ending in a position in the paint department. Employee testified that in his various positions he used his hands, arms, legs, and back.

With regard to the alleged primary injury of bilateral carpal tunnel syndrome, employee testified that he went to a doctor for problems with his hands prior to July 2001.

Employee did not give the name of the doctor he saw with regard to his hands.

Employee later testified that he did not go to see a doctor regarding his hands prior to leaving Chrysler on July 5, 2001.

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

Employee testified that after his retirement he visited employer's clinic for follow-up care starting in 2001 at a frequency of "every 3 months or every 45 days." However, employee's follow-up care was for his shoulders. He testified that he did not say anything about any pain complaints involving his wrists or hands during these visits.

Employee testified that he was first diagnosed with carpal tunnel syndrome on July 14, 2003. Employee testified that he began experiencing symptoms approximately three years before he left the employment. Employee testified that when he was diagnosed with carpal tunnel syndrome, the emphasis was on his shoulder condition. His primary problems were with his shoulders, but he was told that he would need surgery for his carpal tunnel syndrome "sooner or later." Employee had two surgeries for his carpal tunnel syndrome, one to his left wrist in 2005, and one to his right wrist in 2006. Employee testified that he never went to employer's clinic with any complaints of aching, pain, or discomfort in either one of his hands prior to his carpal tunnel release surgeries.

Employee testified that he was diagnosed with avascular necrosis in his left and right hips in 1996. Employee also testified that he was diagnosed with avascular necrosis in his shoulders in 1999 or 2000. Employee testified that he had a knee injury in 1997 or 1998 for which he had surgery performed by Dr. Rende. Employee testified that he had surgeries to his left hip in 1997 and 1998. Employee had surgery to his right shoulder in 2001. Employee also testified that he was diagnosed with Klinefelter's Syndrome by Dr. Darren Pearson at some unspecified date, and was told that it is a possible cause for his avascular necrosis. The diagnosis of Klinefelter's Syndrome is not in the medical records.

Employee complained of numbness and tingling affecting both hands, primarily the right, to Dr. David Fagan on June 30, 2003. Dr. Fagan noted that the symptoms began approximately two weeks before employee's visit. On June 30, 2003, none of the provocative tests were positive for carpal tunnel syndrome, but Dr. Fagan recommended that employee have nerve conduction tests and EMG's for further evaluation.

Employee had nerve conduction studies ordered by Dr. Fagan on July 14, 2003. He was diagnosed with carpal tunnel syndrome by Dr. Fagan on July 17, 2003.

In August 2003, a formal Claim for Compensation was filed by employee alleging bilateral carpal tunnel syndrome with a date of disability of May 1, 2003.

Employee followed up with Dr. Susan Mackinnon on October 7, 2004. Dr. Mackinnon noted that employee reported that his symptoms started in 2000 and had increased significantly. Dr. Mackinnon noted that employee would likely need bilateral carpal tunnel releases. Dr. Mackinnon made no reference to his employment with employer being related to his bilateral carpal tunnel syndrome or need for surgical releases.

Dr. Mackinnon performed a left carpal tunnel release surgery on August 2, 2005. On April 18, 2006, Dr. Mackinnon performed a carpal tunnel release surgery on employee's

right wrist. On July 26, 2006, Dr. Mackinnon released employee from care stating that "he really has no complaints" following the surgeries.

Employee was diagnosed with avascular necrosis in multiple joints by Dr. Rende. On May 14, 1998, employee had a total hip replacement of his left hip by Dr. Rende. On November 16, 1998, employee was released to work and was doing well both symptomatically and clinically.

Employee was treated for right shoulder pain in June 1997. He was referred to physical therapy for conservative treatment. Employee later treated with Dr. Rende regarding this shoulder pain. On May 31, 2001, employee visited Dr. Ken Yamaguchi regarding his right-sided shoulder pain. Dr. Yamaguchi indicated in his notes that employee's pain had been a problem for "the last three years." Dr. Yamaguchi also noted that "[t]he etiology of his avascular necrosis is unknown at this time, although the only possibility is that [employee] was a severe drinker at one point. Employee reported a history of alcohol abuse to Dr. Yamaguchi. Dr. Yamaguchi noted that employee stated he was a spray painter, and used his left shoulder primarily in his job. Dr. Yamaguchi performed the right shoulder hemiarthroplasty on July 17, 2001.

On May 15, 2003, employee had a total shoulder arthroplasty for his left shoulder performed by Dr. Rende. On September 16, 2004, Dr. Rende noted in follow-up that employee was doing well both clinically and radiographically in regards to his shoulder.

On March 29, 2006, employee returned to see Dr. Yamaguchi with pain complaints regarding his left shoulder. Dr. Yamaguchi noted that employee reported he was recently diagnosed with Klinefelter's Syndrome with an extra chromosome affecting long bones and it is stated that this may have a possible relationship to his avascular necrosis. There is no name of a doctor listed in regards to this diagnosis, and no records evidence this diagnosis.

On June 6, 2006, Dr. Yamaguchi performed a shoulder revision total shoulder arthroplasty on employee's left shoulder. On June 14, 2006, one week following the revision, employee reported no pain.

Employee suffered from a left knee lateral meniscus tear and chondromalacia. On March 13, 1997, Dr. Rende performed surgery on employee's left knee, a partial lateral meniscectomy chondroplasty of the patella, and chondroplasty of the femoral trochlea. Employee was released to work on October 30, 1997, after reporting that his knee was doing very well.

Dr. Jacques Van Ryn testified on behalf of employee by deposition on July 23, 2010. Dr. Van Ryn evaluated employee on June 10, 2010. Dr. Van Ryn reported reviewing the records regarding employee's treatment from 1996 to present. Dr. Van Ryn testified that employee's symptoms regarding his carpal tunnel syndrome began in

approximately 1999. Dr. Van Ryn did not ask employee if his symptoms in his body parts from his avascular necrosis had gotten better, worse, or stayed the same as they were in June 2001. However, Dr. Van Ryn testified that according to the records, his pain symptoms had gotten worse in the affected body parts. Dr. Van Ryn opined that the work employee performed while at employer is the "predominant prevailing factor and the causation of bilateral ulnar and carpal tunnel syndromes."

With regard to the primary injury, Dr. Van Ryn opined that employee is 15\% permanently partially impaired of both the right and left upper extremities rated at the wrists due to his carpal and ulnar tunnel syndromes. With regard to employee's preexisting conditions, Dr. Van Ryn opined that employee is 50\% permanently partially impaired of the upper left extremity rated at the shoulder, 20 % permanently partially impaired of the upper right extremity rated at the shoulder, 25 % permanently partially impaired of the lower left extremity rated at the hip, 10 % permanently partially impaired of the lower left extremity rated at the knee, and 5 % permanently partially impaired of the body as a whole due to his degenerative cervical disc disease. Dr. Van Ryn also noted that employee has significant medical disease including diabetes, sick sinus syndrome, and has a pacemaker; however, he did not assign a disability rating for these preexisting conditions.

Dr. Van Ryn concluded that "as a result of the bilateral carpal tunnel and ulnar tunnel syndromes combined with his extensive preexisting medical condition has caused [employee] to be unable to do any gainful employment. He cannot compete in the open labor market. Therefore[,] he is permanently completely disabled for work."

Ms. Delores Gonzalez, a vocational expert, testified by deposition on behalf of employee on July 26, 2010. Ms. Gonzalez evaluated employee on September 15, 2006 and November 24, 2006. Ms. Gonzalez opined that based on a combination of employee's physical ailments and conditions and his vocational background, he is unable to engage in substantial gainful activity.

Ms. Gonzalez testified that her opinion that employee is not employable is based in part on how he presented physically as of the date she saw him in 2006. Ms. Gonzalez did not ask employee if his preexisting conditions got better, worse, or stayed the same after the primary injury date of July 5, 2001.

Employee alleges his bilateral carpal tunnel syndrome is an occupational disease which he incurred while working for employer. Employee further alleges that his carpal tunnel syndrome combines with his preexisting disabilities to render him permanently and totally disabled. Employee seeks permanent partial disability benefits against employer for his carpal tunnel syndrome and permanent total disability benefits against the Second Injury Fund.

Before determining Second Injury Fund liability, an employee "must establish that he or she sustained a compensable [primary] injury and that the injury caused the requisite level of permanent partial disability." Nance v. Treasurer of Missouri, 85 S.W.3d 767, 771 (Mo. App. 2002).

In this case, employee alleges that his primary injury is the occupational disease of carpal tunnel syndrome. Section 287.067.1 RSMo defines occupational disease as:

an 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 f