Kenneth Schaffer v. Associated Electric Cooperative, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 11-058029

Employee: Kenneth A. Schaffer

Employer: Associated Electric Cooperative, Inc.

Insurer: Associated Electric Cooperative, Inc.

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by $\S 287.480$ RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated October 10, 2012.

This award is only temporary or partial, 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.

The award and decision of Administrative Law Judge Maureen Tilley, issued October 10, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 6^{\text {th }}$ day of March 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

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? July 12, 2011.
5. State location where alleged accident occurred or occupational disease contracted: New Madrid 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 happened or occupational disease contracted: Employee was doing repetitive work with left and right upper extremities resulting in bilateral carpal tunnel syndrome.

1. Did accident or occupational disease cause death? No.
2. Parts of body injured by accident or occupational disease: Left and right upper extremities.
3. Nature and extent of any permanent disability: N/A.
4. Compensation paid-to date for temporary total disability: 0.00.
5. Value necessary medical aid paid to date by employer-insurer? 0.00.
6. Value necessary medical aid not furnished by employer-insurer? 0.00.
7. Employer's average weekly wage: 1,203.20.
8. Amount of compensation payable? N/A.
9. Weekly compensation rate: **TTD $802.13/ PPD $425.19**
10. Method wages compensation:

- Unpaid medical expenses: N/A.

- Medical mileage or travel expenses: N/A.

- Weeks of temporary total disability: N/A.

- Weeks of permanent partial disability: N/A.

- Weeks of disfigurement:

1. Second Injury Fund liability: N/A.
2. Future Requirements Awarded:

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 17, 2012, the employee, Kenneth A. Schaffer, appeared in person and by his attorney, Stephen Taylor, for a temporary or partial award. The employer-insurer was represented at the hearing by their attorney, Joseph Page. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. At the time of the hearing, the parties agreed on certain undisputed facts and identified the facts that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. That on July 12, 2011 the Employer, Associated Electric Cooperative Inc., was operating under and subject to the provisions of the Missouri Workers' Compensation Act.
2. That on July 12, 2011, Kenneth A. Schaffer was an employee of Associated Electric Cooperative Inc., and was working under and subject to the Missouri Workers' Compensation Act.
3. That the average weekly wage for the injuries that occurred July 12, 2011 was $\ 1,203.20 and the rate of compensation for purposes of temporary total disability is $\ 802.13 and permanent partial disability is $\ 425.19.
4. That no medical aid has been furnished by the employer/insurer.
5. No temporary total disability has been paid by the employer/insurer.

1. Accident/Occupational disease;
2. Notice to Employer;
3. Statute of Limitations;
4. Medical Causation; and
5. Future Medical.

Employee's Exhibits:

A. Medical Records;

B. Dr. Annamarie Guidos Independent Medical Examination Report; and

C. Dr. Annamarie Guidos Curriculum Vitae.

1. Deposition of Employee, Kenneth A. Schaffer; and
2. Email from Tammy Ludwig to Theresa Crossfield.

All Exhibits were admitted without objection.

The Court also took judicial notice of the Division file in this matter.

Kenneth A. Schaffer, Employee, is a 59 year-old resident of New Madrid, Missouri. He resides with his wife Susan. He has two children who no longer live at home. Employee graduated from high school and received an Associates degree after two years in college.

Employee testified that he first went to work for his uncle, BJ Schaffer, as a general farm laborer in 1974, driving tractors and combines. He testified that he had no illnesses or injuries while working there. Employee testified thereafter he went to work for Fred Rowe from 1976 to 1978 as an equipment operator driving a bulldozer. He testified he had an injuries or illnesses while working there. Employee testified that in 1978 he began farming for his family and his father, RB Schaffer in Mississippi and he continued farming that operation until 1991. He testified that as a farmer he drove a tractor and a combine and did general repair work. He testified he had no injuries or illness while working there on or off the job during that period of time. Employee testified that he moved back to Missouri and rented a farm and farmed from 1991 to 1999 doing general farm work, driving a tractor, a combine and doing maintenance on equipment. He testified he had no injuries while working that job either on or off the job.

Employee testified in the year 2000 he purchased a tire repair and sales shop in the name of a corporation, KASCO along with his wife which he continues to operate until the present. Employee testified that he is the manager of the store and that he has two to three employees not including his wife. He testified that his duties were to sell and repair tires and to service vehicles. He testified that he had no illness or injuries while working for the tire store. Employee testified that he also began farming his uncle's land in 2000 which consists of 600 acres. He testified that he is the manager and has the same employees that work at the tire shop also working the farm. He testified that he generally does management duties but during the planting season in the spring he may spend as many as forty hours driving a tractor planting and that during the harvest in the fall he may spend a week to two weeks driving a combine to assist in the harvest. Employee testified that at all other times he only did management work and did not have to do maintenance on the equipment. Employee testified that he had had no illness or injuries while working as the farm manager since 2000.

Employee also testified that first went to work for Associated Electric Cooperative, Inc. in 2001 and worked there for about 6 months. He indicated that his job duties was driving a

bulldozer, driving a scraper and driving a truck. Employee testified that he had no illnesses or injuries while working at Associated Electric Cooperative, Inc. during that period of time either at work or away from work. Employee testified that in 2003 he went back to work at Associated Electric Cooperative, Inc. on a part time basis again as an equipment operator where he drove a bulldozer, drove a scraper and also drove a truck. Employee testified that he had no illnesses or injuries while working there or away from work during that period of time. Employee also testified that he had a couple of short term jobs between 2003 and 2006 but he had no injuries or illnesses while working those short term jobs.

Employee testified that he went to work full time at Associated Electric Cooperative, Inc. in 2006. Employee indicated that his full time job title was Yard Equipment Operator. Employee testified that his job duties were driving a bulldozer, driving a scraper, driving trucks, dumping trains and running a jackhammer. Employee testified that while at work his job requirements were hand intensive using both hands to operate levers while driving the bulldozer, operating levers while driving a scraper, shifting gears while driving a truck and using levers when dumping the train as well as hand intensive work using a jackhammer. The employee testified that his jobs required pulling levers, squeezing levers and he demonstrated consistent arm movements while operating the machinery during his work shifts. When asked about his hours employee testified that he would work, eighty hours every two weeks, one week doing four 12 hour shifts and one 8 hour shift and after three days off he would do two 12 hour shifts. Employee testified that during those shifts he would work as much at 10.5 hours using his hands consistently in a repetitive manner operating the machinery.

Employee testified he had an injury to his foot while working at Associated Electric Cooperative, Inc. which was treated and the claim was settled in 2011.

Employee testified that in approximately 2009 he had the onset of numbness, tingling, burning sensations and loss of use of his hands that was gradual in onset. Employee testified that the symptoms came on when he was using his hands and upper extremities in a repetitive fashion while at work at Associated Electric Cooperative, Inc. with repetitive use of his hands driving the heavy equipment. Employee testified that in 2010 during a visit to Dr. David Pfefferkorn on October $7^{\text {th }}$ he complained of problems with his hands and was prescribed Voltaren gel. Employee testified that Dr. Pfefferkorn prescribed a nerve conduction study. Employee testified that thereafter he saw Dr. Riyadh Tellow for a nerve conduction study on October 18, 2010. Employee testified that Dr. Tellow reported moderate to severe bilateral carpal tunnel syndrome after the studies were completed. Employee testified that he did not have any conversation with Dr. Pfefferkorn again about his bilateral hand complaints until June 17, 2011. Employee testified that he asked the doctor about the nerve conduction studies but the doctor indicated they had lost employee's medical records. Employee testified that he saw Dr. Pfefferkorn again shortly thereafter and the records from Dr. Tellow indicate that the nerve conduction studies were faxed to Ferguson Medical Group on June 27, 2011 as confirmed by the fax transmission information on the top of the Dr. Tellow records. Employee testified that when he saw Dr. Pfefferkorn concerning the results of the nerve conduction studies Dr. Pfefferkorn told employee that his carpal tunnel syndrome was work related.

Employee testified that he reported what he had been told about work causing his carpal tunnel syndrome to his supervisor. Employee testified that he was then referred to the Human Resources person, Theresa Crossfield and advised her that Dr. Pfefferkorn had told him that he had bilateral carpal tunnel syndrome and that it was work related. Employee testified that Theresa Crossfield, advised him that she had emailed the information to Tammy with the Third Party Administrator and had been told by Theresa Crossfield that Tammy had replied that the carpal tunnel syndrome was "not work related". Employee testified that Theresa Crossfield left the company shortly thereafter and that he had never spoken to her again.

Employee testified that he then hired his attorney to file a claim for the carpal tunnel syndrome. Employee testified that he was sent to Dr. Annamaria Guidos for an independent medical evaluation on November 18, 2011. Employee testified that Dr. Guidos took a history from him including all of his work duties at Associated Electric Cooperative, Inc. as well as those on the farm operation and the tire store and he advised her about his job as an assistant fire chief. Employee testified that Dr. Guidos was also given a job description from the New Madrid Power Plant concerning a Yard Equipment Operator which was reviewed. Employee testified that the doctor did not share her impression with him but had forwarded it to his attorney. Employee did testify that Dr. Guidos had recommended further treatment including more studies and further care. Employee also testified that Dr. Tellow had advised him that he would need surgery for his bilateral carpal tunnel syndrome.

Employee testified that he had not had any new injuries to his hands since the report of injury to Theresa Crossfield in 2011. Employee also testified that he did not do anything repetitive with his hands away from work at Associated Electric Cooperative, Inc. Employee testified that he was still working in the same capacity at Associated Electric Cooperative, Inc. Employee testified that he had the same complaints and that the symptoms continued to be numbness, tingling, burning, loss of feeling in both hands from the wrists to the fingers. Employee testified that on a zero to ten scale for pain that the pain was usually an eight and with repetitive use doing work with the equipment while at Associated Electric Cooperative, Inc. it would intensify to a ten. Employer advised that he treated the symptoms with arthritis strength Tylenol.

Employee testified that he had also had a fall at work where he struck his head and he was seeing Dr. Sonjay Fonn for a neck injury. Employee testified that Dr. Fonn was only treating him for neck problems with injections. Employee testified that the treatment included shots and that he was better after receiving the shots in his neck. Employee also testified that Dr. Fonn was not treating him for his hand complaints.

Employee testified that he did do other jobs while employed at Associated Electric Cooperative, Inc. He testified that on the farm he would spend as many as 20 hours a week doing management work. Employee testified that he seldom drove equipment. That he would drive a tractor perhaps 40 hours during planting season in the spring and would drive a combine as many as 40 to 60 hours in the fall. Employee also testified that he continued to work in the management capacity at the tire store and that his duties generally included sales and managing the employees. That he would work there as many as 20 hours a week. He indicated that he had

little repetitive hand use there. Employee was asked if he ever used an impact wrench to which he answered in the affirmative. He further stated that he would only use one every four to five months to tighten lug nuts on a tire. Employee also acts as the assistant fire chief for the city of Lilbourn and that there would be three to four fires a year. He indicated his duties were supervisory as he was the assistant chief directing other people what to do and that he had very little use of his hands in that job capacity. Employee testified that his symptoms continued and that he wished to have the treatment recommended by Dr. Guidos, including further diagnostic studies and care for the bilateral carpal tunnel syndrome.

Employee indicated his claim was sent to the Division of Workers' Compensation on July 27, 2011. Court filed indicates that it was received and processed at the Division of Workers' Compensation on August 1, 2011.

Employee introduced medical records. The medical records of Dr. David Pfefferkorn reveal that Kenneth Schaffer was his patient from 2003. Dr. Pfefferkorn's records on October 7, 2010, indicate that employee was treating with Dr. Foltz for his work related foot injury. The records indicate he was seen for his hands and was sent for a nerve conduction study of the left wrist. The medical records of Dr. Riyadh Tellow indicate that Mr. Schaffer was seen by him on October 18, 2010, and a Nerve Conduction Study and EMG were performed with an interpretation of moderate/severe bi-lateral carpal tunnel syndrome which was shown copied to Dr. Pfefferkorn. Dr. Pfefferkorn's next office note dated February 18, 2011, concerns treatment of employee for cold symptoms and has no mention of the nerve conduction studies. Dr. Pfefferkorn's next office note on June 17, 2011 indicates that employee wants to go over this nerve conduction study but he doctor could not put his hands on them at the time.

The record of Dr. Tellow indicates transmission from a fax machine that the nerve conduction study results and a summary addressed to Dr. Pfefferkorn were faxed on June 27, 2011. The next note of Dr. Pfefferkorn dated October 26, 2011, reflects employee still having problems with his hands but Dr. Pfefferkorn declines to render an opinion about whether it is work related. The last note of Dr. Pfefferkorn from January 16, 2012 concerns treatment for a cold.

There are also treatment records from Dr. Sonjay Fonn beginning December 15, 2011, where employee presents with wrists and neck pain. Dr. Fonn treats Mr. Schaffer for his neck problems but does not treat him for his hand problems.

The independent medical evaluation for Dr. Annamaria Guidos of November 18, 2011, indicates employee has chief complaint in both wrists and hands. The report reveals work related injury occurring about two years by history working using his hands continually and noting onset of numbness and tingling of the median innervated digits. The history of Dr. Guidos indicates that he works a part time job performing farm work along with his regular job where we worked for six years. The history states Dr. Pfefferkorn indicated to employee that work was the cause of his bilateral carpal tunnel syndrome. The history indicates that Dr. Tellow performed studies which showed moderately severe bilateral carpal tunnel syndrome. Dr. Guidos performed an examination of Mr. Schaffer which found decreased sensation in the median and innervated

digits bilaterally. The examination showed positive Tinel's signs on the right and positive Tinel's signs on the left. Dr. Guidos reviewed the diagnostic studies from Dr. Tellow and the job description from the New Madrid Power Plant as Yard Equipment Operator. Dr. Guidos opined employee to have a history of work related occupational injury beginning about two years before the examination resulting in bilateral carpal tunnel syndrome. That patient clinically presents with bilateral carpal tunnel syndrome. Dr. Guidos recommended update diagnostic studies to assess symptomatology and found the prevailing cause for the patient's current symptoms and need for further studies is the cumulative repetitive activity involving bilateral upper extremities at his work place over a period of two years. The doctor's opinion was made within a reasonable degree of medical certainty.

Employer Exhibit " 2 " is an email from Tammy Ludwig a claims specialist at CCMSI, the Third Party Administrator of Associated Electric Cooperative, Inc., to Theresa at tcrossfield@aeci.org which confirms a fax from Theresa Crossfield concerning Kenneth Schaffer including Dr. Tellow's reports of bilateral carpal tunnel syndrome. The email indicates "there's nothing addressing causation" and that "if Kenny wishes to try \& pursue this through WC, my recommendation would be for you to submit a FROI \& obtain a signed medical release" to get all of the records from the treating physicians so a complete medical review could be requested. Further, "I'll issue a WC denial" so that "he should continue to submit all charges through his private insurance." That "as additional information becomes available, it will be reviewed for possible reconsideration" and "if there's nothing in the medical stating his condition is work related, the denial will stand". "However, if his doctor indicates his employment is the prevailing factor I will schedule an Independent Medical Evaluation with another physician to address causation". This email from Tammy Ludwig to Theresa Crossfield is dated July 7, 2011.

An injury due to repetitive motion is recognized as an occupational disease under the Workers' Compensation Act. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. RSMo. §287.067

In the present case, the expert medical opinion from Dr. Annamaria Guidos states that the prevailing cause for patient's current symptomatology and need for further care is the cumulative repetitive activity at his work place over a period of two years. The doctor refers to the job description from the New Madrid Power Plant Yard Equipment Operator job duties and his work doing his regular job for about six years. Dr. Guidos opinion was made within a reasonable degree of medical certainty.

Dr. Tellow found employee to have moderate to severe bilateral carpal tunnel syndrome when conducting the studies on October 18, 2010. Employee testified that Dr. Pfefferkorn advised employee that his symptoms were work related when he saw employee in June 2011.

There is no contrary opinion from any physician on behalf of Employer.

Employee testified about the amount of work and the type of work he did for employer, Associated Electric Cooperative, Inc. totaling 2080 hours per year. Employee's testimony was that his use of his hands doing work outside of Associated Electric Cooperative, Inc. was a very small percentage of the amount of work that he did using his hands, that being 80 to 100 hours per year. Employee also testified that his work operating heavy equipment at Associated Electric Cooperative, Inc. was much more hand intensive than any work that he did either at the farm operation where he primarily was a manager or at the tire and service operation where he primarily did management work or as the assistant fire chief where he only did supervisory duties. Employee testified that the onset of his symptoms occurred while he was at work operating the heavy equipment for Associated Electric Cooperative, Inc. Employee testified that the onset occurred in about 2009 and intensified to the point where he reported the symptoms to Dr. Pfefferkorn in October of 2010. Employee testified that he had never had any injuries to his upper extremities outside of work prior to the onset while doing his work duties from and since 2010. Employee testified that the information that the symptoms were work related was expressed to him by Dr. Pfefferkorn at the end of June or early July 2011. I find the testimony of the employee to be credible.

Based on a review of the entire record, I find the opinion of Dr. Guidos that the prevailing cause for employee's current symptoms and need for further studies and treatment is his cumulative repetitive activity at work at Associated Electric Cooperative, Inc. over a period of two years is credible. I also find that on July 12, 2011 employee sustained an occupational disease arising out of in and the course of his employment at Associated Electric Cooperative, Inc. I also find that the employee's work at Associated Electric Cooperative, Inc. is the prevailing factor in his condition of bilateral carpal tunnel syndrome. I therefore find that employee's bilateral carpal tunnel syndrome is medically causally related to his occupational disease.

Employer/Insurer has raised the issue of Notice. The statute states "No proceedings for compensation for any occupational disease or repetitive trauma under this chapter shall be maintained unless written notice of the time, place, and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the diagnosis of the condition unless the employee can prove the employer was not prejudiced by failure to received the notice."

The purpose of $\S 287.40$ "is to give the Employer timely opportunity to investigate the facts surrounding an accident, and, if an accident occurred, to provide the Employee medical attention in order to minimize the disability." Doerr v. Teton Transp., Inc., 258 S.W.3d 514 (Mo. App. 2008). However, the failure to give timely written notice may be excused if it is found that the failure did not prejudice the employer. Id at 527-28.

Proving that Employer had actual notice is sufficient to show that Employer was not prejudiced by lack of written notice. A claimant may demonstrate lack of prejudice where "evidence of actual notice was uncontradicted, admitted by Employer, or accepted as true by the factfinder." Pursifull v. Braun Plastering \& Drywall, 233 S.W.3d 219 (Mo. App. 2007).

The burden of proving Employers' lack of prejudice in not receiving written notice rests on the Employee. Once Employee presents substantial evidence that Employer had actual notice of the injury, however, the burden of showing prejudice then shifts to Employer. Sell v. Ozarks Medical Center, 333 S.W.3d 498 (Mo. App. S.D. 2011).

Here, there is no evidence that Employee provided written notice to Employer per $\S 287.420$. However, Employee did show that he gave Employer actual notice of his occupational disease. As discussed above, the first time that a doctor advised Employee that he had carpal tunnel syndrome as a result of his work activities was in late June 2011 when he saw Dr. Pfefferkorn. Employee testified Dr. Pfefferkorn told him that his bilateral carpal tunnel syndrome was work related. Employee testified that he reported the condition to his supervisors and he was referred to the Human Resources person, Theresa Crossfield. Employer's Exhibit 2 is an email from the adjuster of the third party administrator to Theresa Crossfield confirming that a week prior to July 7, 2011 a fax had been received concerning Kenneth Schaffer and his claim for bilateral carpal tunnel syndrome. Employer's Exhibit 2 also confirmed that the claim was denied.

The testimony of Employee concerning his report of injury to the supervisor and to the Human Resources Director was uncontroverted. Further, that evidence is substantiated by Employer's Exhibit 2.

Employee has thus presented substantial evidence that employer had actual notice occurring within the statute of limitations. I find the employee's testimony is credible on this issue. The Employer's Exhibit 2 substantiates employee's testimony. Therefore, upon the showing of actual notice, the burden then shifted to employer to show prejudice from the lack of written notice. The employer did not present any evidence on this issue. Furthermore, there is not any evidence or record showing actual prejudice to employer. Based on all of the evidence presented I find that the employee gave employer actual notice of the injury within the time that employee had knowledge that the injury was work related and that the employer was not prejudiced by the lack of written notice.

Employee testified that Dr. Pfefferkorn told him that his bilateral carpal tunnel syndrome was work related when Employee saw him in June 2011. The first written documentation of a doctor opining that Employee's bilateral carpal tunnel syndrome was work related was from Dr. Guidos' IME report from November 18, 2011. The Employee filed his Claim for Compensation on July 29, 2011. Based on both of those dates, I find that Employee's claim was filed within the time allowed by law.

Both Dr. Tellow and Dr. Guidos agree that the employee has bilateral carpal tunnel syndrome. Dr. Guidos believes the employee needs further medical treatment. Dr. Guidos prescribes further medical care including electrodiagnostic studies of bilateral upper extremities to assess the current symptomatology of employee. Based on the witness testimony and all of the evidence presented, I find that the employee needs additional medical treatment in order to cure and relieve him from the effects of his injury. Furthermore, I find that Associate Electric Cooperative, Inc. is responsible for providing medical treatment to the employee.

The employer/insurer has denied further treatment for the employee's bilateral carpal tunnel and cubital tunnel; therefore I order the employer to provide treatment for the employee's bilateral carpal tunnel and bilateral cubital tunnel.

As previously indicated this is a Temporary or Partial Award. The Award is therefore subject to further Order, and the proceedings are hereby continued and the case kept open until a Final Award can be made.

Stephen Taylor, attorney at law, is allowed a fee of 25 % of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

As previously indicated this is a temporary or partial award. The award is therefore subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

Made by:

Maureen Tilley

Administrative Law Judge

Division of Workers' Compensation