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Norman Berra v. Berra Construction, LLC

Decision date: December 7, 201110 pages

Summary

The Commission affirmed the administrative law judge's award of workers' compensation benefits to Norman L. Berra for occupational disease injuries to both wrists and left elbow sustained through repeated use of hand and power tools in his employment at Berra Construction, LLC. The employee was awarded permanent partial disability compensation totaling $21,234.40 plus temporary disability benefits and medical expenses.

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This archive contains published Missouri Labor and Industrial Relations Commission workers' compensation decisions reproduced for research convenience. Official source links remain authoritative where provided. Joseph Ott, Attorney 67889, Ott Law Firm - Constant Victory - Personal Injury and Litigation maintains these public legal archives to support Missouri case research and to help prospective clients connect that research to the firm's courtroom practice.

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This workers' comp decision may point to a separate injury claim.

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Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 98-179083

Employee: Norman L. Berra

Employer: Berra Construction, LLC

Insurer: Missouri Employers Mutual Insurance Company

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 April 26, 2011. The award and decision of Administrative Law Judge Edwin J. Kohner, issued April 26, 2011, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 7^{\text {th }} \qquad$ day of December 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

AWARD

Employee:Norman L. BerraInjury No.: 98-179083
Dependents:N/ABefore the <br> Division of Workers' <br> Compensation
Employer:Berra Construction, LLCDepartment of Labor and Industrial <br> Relations of Missouri
Additional Party:N/AJefferson City, Missouri
Insurer:Missouri Employers Mutual Insurance Company
Hearing Date:April 6, 2011Checked by: EJK/lsn

FINDINGS OF FACT AND RULINGS OF LAW

  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: January 1, 1998
  5. State location where accident occurred or occupational disease was contracted: Franklin 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 occurred or occupational disease contracted: The employee suffered pain and numbness in both arms from regularly using hand and power tools, including hammers, power saws, drills, and screw guns.
  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, left elbow
  14. Nature and extent of any permanent disability: 271 / 2 % permanent partial disability of the right wrist, a 71 / 2 % permanent partial disability to the left wrist, and a 2 % permanent partial disability to the left elbow, plus 15 % for multiplicity
  15. Compensation paid to-date for temporary disability: $\ 6,378.24
  16. Value necessary medical aid paid to date by employer/insurer: $\ 20,199.99
  1. Value necessary medical aid not furnished by employer/insurer? None
  2. Employee's average weekly wages: $\ 1,000.00
  3. Weekly compensation rate: $\$ 531.52 / \ 278.42
  4. Method wages computation: By agreement

COMPENSATION PAYABLE

  1. Amount of compensation payable:

75.2675 weeks of permanent partial disability from Employer $\ 20,955.98

1 week of disfigurement from Employer $\ 278.42

  1. Second Injury Fund liability: No

TOTAL: $\quad \ 21,234.40

  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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Joseph K. Robbins, Esq.

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Norman L. Berra

Injury No.: 98-179083

Dependents: N/A

Employer: Berra Construction, LLC

Additional Party: N/A

Insurer: Missouri Employers Mutual Insurance Company

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/lsn

This workers' compensation case raises several issues arising out of a work related injury in which the claimant suffered pain and numbness in both arms from regularly using hand and power tools, including hammers, power saws, drills and screw guns. The sole issue for determination is permanent disability. The evidence compels an award for the claimant for permanent disability benefits.

At the hearing, the claimant testified in person and offered a medical report of Jerry R. Meyers, M.D., and voluminous medical records. The defense offered medical reports from David M. Brown, M.D., and Michelle D. Koo, M.D., and voluminous medical records from Barnes Hospital.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the occupational disease was contracted in Missouri. Any markings on the exhibits were present when offered into evidence.

SUMMARY OF FACTS

This fifty-one year old claimant's work involved general carpentry and construction regularly using hand and power tools, including hammers, power saws, drills and screw guns. He developed numbness in his right hand and fingers and his left hand would also go numb with extended use. His right hand symptoms were more severe than his left.

On June 15, 1998, the claimant consulted Dr. Michelle Koo for discomfort, pain, numbness, and tingling in his right and left hand as well as left elbow pain. Dr. Koo diagnosed bilateral carpal tunnel syndrome, which she noted to be aggravated by his work activities. She also diagnosed some left lateral epicondylitis, which is also related to his work activities. She noted he had no pain in his right lateral medial epicondyle on examination of his elbow. She recommended nerve conduction studies and administered bilateral carpal tunnel injections. On July 20, 1998, bilateral nerve conduction studies revealed median neuropathy affecting motor and sensory conduction at the right carpal tunnel. Left median and right and left ulnar nerve conduction studies were normal. On September 15, 1998, Dr. Koo performed a right endoscopic carpal tunnel syndrome release. She last examined the claimant on January 15, 1999, and opined

its

that he had very good relief of his preoperative symptoms, except for on the radial aspect of his ring finger, which still tingled somewhat. All other fingers were noted to have good relief of all of the symptoms. She noted minor tenderness on very deep palpation in the mid-palm area, with excellent grip strength and range of motion. She concluded he was at maximum medical improvement for his right hand and that he would not need any further intervention. Regarding his left hand symptoms, it was noted he was not numb and tingling all of the time and that he would wait until his symptoms progressed, or at least a year from his right hand surgery. Dr. Koo released the claimant from her care.

On December 1, 1999, Dr. Sudekum examined claimant for right hand and wrist symptoms and recorded a history of the 1998 right endoscopic carpal tunnel release and noted since his surgery he had pain in the area of the incision on the volar aspect of the wrist that radiated approximately into his forearm, elbow, and upper arm. Dr. Sudekum also noted that one month before this exam, the claimant began experiencing symptoms of numbness and tingling in ring and little fingers as well as decreased grip strength and nocturnal pain. Dr. Sudekum opined that the claimant had clinical symptoms of right ulnar neuropathy with the probable sign of injury or compression at the wrist and possibly the elbow. He opined that the ulnar neuropathy was a work-related condition due to the nature and duration of his employment as a carpenter. A December 15, 1999, bilateral nerve conduction study was consistent with bilateral carpal tunnel syndrome and a lesion, nerve compression, at the right Guyon's canal. Dr. Sudekum performed a steroid injection to both carpal tunnel regions. Dr. Sudekum also recommended right ulnar nerve decompression at the elbow and wrist as well as revision open carpal tunnel release. On February 16, 2000, Dr. Sudekum noted claimant's left hand pain and numbness had resolved completely and his right-sided symptoms improved significantly. He opined that surgery was not indicated at that time, but may be required in the future if symptoms reoccur.

On May 10, 2000, Dr. Sudekum noted recurrence of pain in claimant's right palm and intermittent numbness and tingling in the thumb and all four fingers. He also noted complaints of tenderness in the right lateral epicondylar region. Dr. Sudekum performed a surgical incision into his right lateral epicondylar region. Dr. Sudekum last saw claimant on December 5, 2000, for increasing pain and paresthesias in his hands, wrists, and forearms. He noted claimant had constant numbness in his right ring and little fingers, significant grip strength weakness and an inability to hold on to objects like a hammer. Intrinsic muscle atrophy of the right hand was noted, consistent with severe ulnar neuropathy. Surgery was scheduled to include a right open carpal tunnel revision, right open carpal tunnel release, as well as right ulnar nerve release at the wrist and elbow.

On December 20, 2000, Dr. Ollinger examined the claimant and diagnosed (1) postoperative endoscopic decompression right carpal tunnel 09/15/98; (2) atrophy in the right ulnar innervated hand musculature; (3) right tennis elbow, which he said was onset one year ago. On December 20, 2000, Dr. Phillips performed an NCV/EMG to compare with prior data revealing a severe right ulnar neuropathy, with the findings most consistent with localization at the level of the wrist. Dr. Phillips suspected that the median neuropathy represents residual from previously more severe involvement. The test also revealed moderate left carpal tunnel syndrome.

On January 3, 2001, Dr. Ollinger opined that the claimant's severe right ulnar tunnel compression neuropathy was related to his employment but not associated with the January 1, 1998, date of loss. He concluded the right ulnar nerve compression at the wrist developed sometime after Dr. Koo discharged the claimant on January 15, 1999, and, as such, not related to that date of loss. He noted the left carpal tunnel syndrome was an active condition needing operative decompression and that this condition did relate to the January 1, 1998, date of loss. He also commented that claimant's right tennis elbow was not referenced until Dr. Sudekum's record of May 2000 and, although work-related, was not related to the January 1, 1998, date of loss.

Dr. Ollinger performed a right ulnar nerve decompression on January 16, 2001. He continued to treat the claimant through February 21, 2002, with five postoperative visits. He released the claimant to return to work with no restrictions on March 12, 2001. Dr. Ollinger noted on this visit that the claimant's muscle mass of the ulnar nerve innervated intrinsic muscles was improving. He continued to have sensitivity and slight pain in his palm, especially with gripping and tenderness in the ulnar palm if it is bumped. He noted cramping in his thumb after gripping all day long and some residual tingling and numbness, which was a bit more noticeable in the past six months. His entire little finger and ring finger distal to the PIP showed clear improvement from his pre-operative c

Full decision text continues in the plain-text archive copy.

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