Kenneth Enderle v. Leggett & Platt, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-040445

Employee: Kenneth Enderle

Employer: Leggett \& Platt, Inc.

Insurer: Fidelity \& Guaranty Insurance Underwriters

c/o Gallagher Bassett Services

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 § 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated October 4, 2011, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Maureen Tilley, issued October 4, 2011, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 2^{\text {nd }} \qquad$ day of May 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

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 (ALJ) should be reversed and employee should be awarded permanent partial disability benefits, temporary total disability benefits, and past medical expenses.

The ALJ determined that employee failed to meet his burden of proving that he sustained an occupational disease arising out of and in the course his employment. It is my opinion that the ALJ failed to properly weigh the evidence and, consequently, erred in denying employee's claim.

Section 287.067.1 RSMo defines "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."

Based on my review of the evidence, I find that employee's repetitive use of his left hand and wrist while working for employer was the prevailing factor in causing his left wrist carpal tunnel syndrome.

Employee's duties while working for employer as a forklift operator included moving material from one floor to the next by use of an elevator. The elevator is accessed by placing a load upon the floor of the elevator and the employee then reaches over with his left hand and pushes the electrical button on the elevator in order to move the material up or down. Employee testified that while moving the material on the elevator he had to hold the button down continuously for 20-30 seconds. He testified that the electrical button is held on an I-beam and that employee would place his left thumb on one side of the I-beam for leverage and push in on the button with his left index finger and hold it to move the material. Employee stated that he would do this 30-40 times per day. Employee further stated that this was an awkward position for him and that he had to flex his wrist to hold the button.

Employee also testified that he drove the forklift with his left arm extended and often experienced vibrations through the steering wheel due to holes in the concrete floor, railroad tracks, and chunks of the solid rubber tires breaking off of the forklift.

Employee testified that he had never had any problems concerning either his left hand or wrist or right hand or wrist before he became a forklift driver for employer.

Dr. Woiteshek saw employee for the purpose of an independent medical evaluation. Based upon his review of the medical records, physical examination and the history provided to him by employee, he diagnosed overuse syndrome of the left hand with subsequent carpal tunnel syndrome and surgery by Dr. Deisher. Dr. Woiteshek testified that the treatment provided to employee was appropriate, reasonable, and necessary. Dr. Woiteshek also opined that the repetitive use of his left hand and wrist leading up to May 23, 2009, while working for employer as a forklift driver, was the prevailing factor in causing the carpal tunnel syndrome in the left wrist. Lastly, Dr. Woiteshek opined that employee had reached maximum medical improvement and assessed 35% permanent partial disability of the left upper extremity at the level of the wrist.

Dr. Sudekum saw employee for an independent medical evaluation as well. Dr. Sudekum reviewed employee's medical records, had x-rays taken, performed a physical evaluation, reviewed a job description of employee's position provided by employer, and reviewed employee's deposition testimony. Dr. Sudekum opined that employee's work with employer was not the prevailing factor in the development of his left carpal tunnel syndrome. Dr. Sudekum believes that employee's arthritis as well as congenital anomalies were the primary factors in causing his carpal tunnel syndrome. Dr. Sudekum opined that employee had a 2% permanent partial disability to the left wrist due to his non-work-related carpal tunnel surgery.

With regard to the issue of causation, Dr. Sudekum testified that it was significant to note that employee's carpal tunnel syndrome developed in his non-dominant left hand. He stated that this was important because in a situation where overuse or work activities would be considered a factor, one would typically expect the dominant hand to be affected more significantly than the non-dominant hand.

On cross-examination, Dr. Sudekum admitted that employee's job duties as a forklift operator were minor contributing factors in the development of his carpal tunnel syndrome.

In denying employee's claim, the ALJ heavily relied on Dr. Sudekum's opinion that if employee's carpal tunnel syndrome was caused by his work activities, he would also have carpal tunnel syndrome in his dominant right hand. I find that this opinion is speculative and ignores significant facts from the record. Employee testified that he drove the forklift with his left arm extended and pushed the elevator button with his left hand and wrist. These are two specific, repetitive activities that employee did exclusively with his left hand and wrist. While it may be more common for a worker to experience carpal tunnel syndrome in their dominant hand, in this case the anomaly is clearly explained by employee's credible testimony concerning his job duties.

Enployee: Kenneth Enderle

- 3 -

For the foregoing reasons, I find Dr. Woiteshek's opinions more credible and conclude that employee's repetitive use of his left hand and wrist leading up to May 23, 2009, while working for employer, was the prevailing factor in causing the carpal tunnel syndrome in his left wrist. Employee should be awarded permanent partial disability benefits, temporary total disability benefits, and past medical expenses.

I respectfully dissent from the decision of the majority of the Commission.

Cutis E. Chick, Jr., Member

Employee: Kenneth Enderle

Injury No. 09-040445

Dependents: N/A

Employer: Leggett \& Platt Inc.

Additional Party: Second Injury Fund

Insurer: Fidelity Insur Underwriters c/o Gallagher Bassett Services

Hearing Date: July 6, 2011

Checked by: MT/rf

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? Alleged 5/23/09.
5. State location where accident occurred or occupational disease contracted: Cape Girardeau County, MO.
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.

1. Describe work employee was doing and how accident happened or occupational disease contracted: Employee alleges use of his left hand in a repetitive fashion while employed at Leggett \& Platt.
2. Did accident or occupational disease cause death? No.
3. Parts of body injured by accident or occupational disease: Left wrist.
4. Nature and extent of any permanent disability: None.
5. Compensation paid-to date for temporary total disability: None.
6. Value necessary medical aid paid to date by employer-insurer? None.
7. Value necessary medical aid not furnished by employer-insurer? None.
8. Employee's average weekly wage: $\ 429.58.
9. Weekly compensation rate: $\$ 286.39 / \ 286.39.
10. Method wages computation: By stipulation.
11. Amount of compensation payable:

Unpaid medical expenses: None.

Medical mileage or travel expenses: None.

weeks of temporary total disability: None.

weeks of permanent partial disability: None.

weeks of disfigurement: None.

1. Second Injury Fund liability: None.
2. Future requirements awarded: None.

On July 6, 2011, the employee, Kenneth Enderle appeared in person and with his attorney, Chris Weiss for a hearing for a final award. The employer was represented at the hearing by its attorney, Kenneth Voigt. The Second Injury Fund was not represented at the hearing and was left open. 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. The employer, Leggett \& Platt, Inc. was insured through Fidelity Guaranty Insurance Underwriters c/o Gallagher Bassett Services.
2. Mr. Enderle was an employee of Leggett \& Platt, Inc. at the time of the claim.
3. Notice of the injury/occupational disease was provided in a timely manner.
4. The Claim for Compensation was filed within the statute of limitations.
5. The parties have stipulated to an average weekly wage of $\ 429.58 with a corresponding compensation rate for both temporary total disability and permanent partial disability of $\ 286.39.
6. The parties stipulate that the employer/insurer have paid no medical aid.
7. The parties stipulate that the employer/insurer has paid no temporary total disability benefits.

1. Did the claimant sustain an occupational disease in connection with his employment at Leggett \& Platt?
2. Is the claimant's employment at Leggett \& Platt the prevailing factor in his left wrist condition, need for medical treatment, and resulting disability?
3. Is the claimant entitled to reimbursement of $\ 1,069.23 in out-of-pocket medical expenses?
4. Is the employee entitled to payment of $\ 734.17 for lost time benefits?
5. What, if any, is the na