Dawn Callahan v. Booksource, Inc.

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 03-143411

Employee: Dawn Callahan

Employer: Booksource, Inc.

Insurer: Employer's Fire and Insurance Co.

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the briefs, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we issue this final award and decision modifying the award and decision of the administrative law judge. We adopt the findings, conclusions, decision and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision and modifications set forth below.

The issues stipulated in dispute at the hearing were: (1) nature and extent of permanent partial disability; (2) medical causation; (3) future medical treatment; and (4) future temporary total disability.

The administrative law judge made the following findings: (1) employee's left hand and elbow injury arose out of and in the course and scope of employment with the employer; (2) work was a substantial factor causing employee's left hand and elbow injury; (3) employee sustained a permanent partial disability of 25 % of the left arm at the level of the elbow; (4) employee met her burden of proof regarding her need for additional medical treatment and employer is obligated to provide the surgeries recommended by Dr. Schlafly; and (5) it is appropriate to order that temporary total disability benefits be provided to employee in conjunction with the award of future medical treatment.

Employer submitted a timely Application for Review with the Commission alleging the administrative law judge erred: (1) in making internally inconsistent findings that employee is at MMI and sustained 25 % disability of the left arm while simultaneously finding employee was entitled to a recommended surgery or surgeries; (2) in finding the accident caused the injuries and disabilities for which benefits are now being claimed to the elbow; (3) in finding it appropriate to order surgery to the elbow depending on the outcome of carpal tunnel surgery; (4) in finding employee sustained a carpal tunnel injury to her hand when the medical evidence established that her complaints on exam were to the ulnar nerve distribution; and (5) in ordering surgical treatment for carpal tunnel syndrome when the diagnostic test and clinical findings on exam were inconsistent with a diagnosis of carpal tunnel syndrome.

For the reasons set forth in this award and decision, the Commission modifies the award of the administrative law judge.

We disagree with the administrative law judge's credibility determination. We find Dr. Strecker more credible than Dr. Schlafly on the issue of medical causation. Dr. Schlafly opined that, as a result of the work injury, employee is suffering from carpal tunnel syndrome and in need of surgery to correct this condition. Yet, on cross-examination, he acknowledged that the majority of people with carpal tunnel syndrome who have a surgical need will have abnormal

neuropathy—which employee does not. He also acknowledged that employee does not exhibit a number of the typical signs and physical symptoms of carpal tunnel syndrome which doctors use to determine whether or not a person has an operable condition for carpal tunnel syndrome.

Dr. Strecker, on the other hand, did not turn a blind eye to the nerve conduction studies and employee's actual symptoms when he rendered his opinion that employee was not suffering from carpal tunnel syndrome the last time he saw her (which was after Dr. Schlafly's examination), but instead was suffering from cubital tunnel syndrome. Dr. Strecker opined that employee's work was not a substantial factor in causing her to develop cubital tunnel syndrome, because the mechanism of injury suffered by employee is inconsistent with injury to the ulnar nerve. Dr. Strecker opined that it would be possible for employee to suffer carpal tunnel syndrome secondary to a crushing injury like that described by employee, and rendered an initial diagnosis that she suffered from sub-acute possible carpal tunnel syndrome, but opined that nerve conduction studies and employee's complaints and physical symptoms did not match up with a diagnosis of carpal tunnel syndrome. Dr. Strecker opined that the work injury is not the cause, or a contributing factor, to employee's need for surgery for cubital tunnel syndrome. Dr. Strecker believes employee has a 7% permanent partial disability at the level of her elbow.

We resolve the conflicting medical expert testimony as follows. We find Dr. Strecker's causation opinion more credible than Dr. Schlafly's. We find that employee's work was not a substantial factor causing her to sustain carpal tunnel syndrome or cubital tunnel syndrome. We find Dr. Strecker's opinion as to future medical care more credible than Dr. Schlafly's. We find employee is not a surgical candidate as a result of the work injury because that injury did not cause her cubital tunnel syndrome and because she does not have carpal tunnel syndrome.

The parties dispute the issue whether employee is entitled to future medical treatment as a result of the work injury of March 28, 2003. Section 287.140.1 RSMo provides, as follows:

> In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

Employer argues that the administrative law judge's decision to award a disputed surgery while simultaneously awarding permanent partial disability is inconsistent and an inappropriate application of the Missouri Workers' Compensation Law. We agree. As the court in *Cardwell v. Treasurer of Mo.*, 249 S.W.3d 902, 910 (Mo. App. 2008) explained:

> After reaching the point where no further progress is expected, it can be determined whether there is either permanent partial or permanent total disability and benefits may be awarded based on that determination. One cannot determine the level of permanent disability associated with an injury until it reaches a point where it will no longer improve with medical treatment. Although the term maximum medical improvement is not included in the statute, the issue of whether any further medical progress can be reached is essential in determining when a disability becomes permanent and thus, when payments for permanent partial or permanent total disability should be calculated.

It is unclear how the administrative law judge could have determined employee's permanent disability, when by virtue of her decision to award a disputed surgery, employee's medical

condition would have necessarily changed or progressed. But in any event, we have adopted Dr. Strecker's opinion with respect to future medical treatment referable to the work injury. Our credibility finding is dispositive of the issue.

The claimant is not required to present evidence of the specific medical care that will be needed but he is required to establish through competent medical evidence that the care requested flows from the accident. An employer is required to compensate for future medical care only if the evidence establishes a reasonable probability that additional medical treatment is needed and, to a reasonable degree of medical certainty, that the need arose from the work injury.

ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. 2007) (citations omitted).

We have found that employee does not have a surgical need flowing from the work injury for carpal tunnel syndrome or cubital tunnel syndrome, because those conditions were not caused by work. We modify the award of the administrative law judge. We find employee does not have a need for future medical treatment that flows from the work injury. We conclude employer is not obligated under $\S 287.140$ to provide future medical care in connection with the work injury of March 28, 2003. Likewise, as the administrative law judge linked her award of temporary total disability benefits to her decision to award the disputed surgeries, we conclude employer is not obligated to provide temporary total disability benefits.

We have determined that employee's work did not cause her to develop carpal tunnel syndrome or cubital tunnel syndrome. We note that the parties stipulated that employee did sustain "an injury" by accident on March 28, 2003. The question presently before us is the nature and extent of any permanent disability suffered by employee as a result of that injury.

The Commission may consider all the evidence, including the testimony of the employee, and draw all reasonable inferences in arriving at the percentage of disability. This is a determination within the special province of the Commission. The Commission is also not bound by the percentage estimates of the medical experts and is free to find a disability rating higher or lower than that expressed in medical testimony. This is due to the fact that determination of the degree of disability is not solely a medical question. The nature and permanence of the injury is a medical question, however, the impact of that injury upon the employee's ability to work involves considerations which are not exclusively medical in nature.

Elliott v. Kan. City School Dist., 71 S.W.3d 652, 657 (Mo. App. 2002) (citations omitted).

We find employee's testimony credible to the extent she describes some lingering pain in her hand from when it was crushed between two tables on Mach 28, 2003. We find that employee suffered some permanent partial disability referable to the injury the parties stipulate that she sustained on that date. We find that employee suffered a 10\% permanent partial disability at the 175 -week level as a result of the work injury.

Accordingly, we modify the award of the administrative law judge. Employee is entitled to permanent partial disability benefits from the employer for 17.5 weeks.

We modify the award of the administrative law judge. Employee is entitled to permanent partial disability benefits from the employer for 17.5 weeks, not 52.5 weeks as awarded by the administrative law judge. Employee is not entitled to future medical care from the employer or temporary total disability benefits in connection with the disputed surgeries.

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.

The award and decision of Administrative Law Judge Vicky Ruth, issued October 20, 2011, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $19^{\text {th }}$ day of June 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Dawn Callahan

Injury No. 03-143411

Dependents: N/A

Before the

Employer: Booksource, Inc.

DIVISION OF WORKERS' COMPENSATION

Additional Party: None

Department of Labor and Industrial

Relations of Missouri

Innurer: Employer's Fire and Insurance Co.

Jefferson City, Missouri

Hearing Date: July 20, 2011

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: March 28, 2003.
5. State location where accident occurred or occupational disease was contracted: Rolla, Missouri.
6. Was abo