Ricky Blanchard v. Staples, Inc.

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 10-051990

Employee: Ricky Blanchard

Employer: Staples, Inc.

Insurer: Indemnity Insurance Company of North America

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

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 reverse the award and decision of the administrative law judge.

The parties submitted the following issues for determination by the administrative law judge: (1) whether employee suffers from an occupational disease; (2) whether the occupational disease arose out of and in the course of employment; (3) whether work is the medical cause of the alleged injury; (4) whether employer is responsible for providing future medical care; (5) whether employee provided notice as required by law; and (6) whether the claim is barred by the statute of limitations. Employee requested a temporary award ordering the provision of medical care and all associated benefits under the Missouri Workers' Compensation Law. Employer requested a final award denying benefits.

The administrative law judge concluded that employee failed to establish that his work is the prevailing factor in causing the resulting medical condition and disability, and denied employee's claims against the employer and the Second Injury Fund.

Employee filed a timely Application for Review with the Commission alleging the administrative law judge erred because: (1) she failed to understand the extent of employee's hand activities at work and thus incorrectly relied on Dr. Goldfarb's opinions over those of Dr. Beatty; and (2) her interpretation of the 2005 amendments raises the bar so high that employee has no court remedy whereby to seek redress, thereby violating employee's constitutional rights of due process and equal protection of law.

For the reasons set forth herein, we reverse the administrative law judge's award and decision.

Employee worked for employer for about 23 years. Employee last worked for employer as a shipping supervisor; he held this position for the last five to seven years of his employment. Previously, employee performed a number of different jobs throughout

employer's warehouse. Employee's duties as a shipping supervisor involved both supervisory tasks and manual labor.

Employee provided extensive and detailed testimony regarding his job duties. We credit employee's testimony and find the following facts as to his work tasks.

Employee's daily duties began with checking time sheets to determine who was working that day. From there, employee proceeded to his computer to see if there were any problems such as errors in past orders that needed his attention. This work could last as long as two to three hours, though it was not usually continuous. Employee then helped pass out "pick tickets," a computer printout with a customer's order printed on it. For years the pick tickets came out of the printer on a continuous roll and had to be separated by manually tearing the pages apart. Over the last two years of employee's work, the pick tickets were printed on individual sheets. Employee typically handled between 200 to 500 tickets at a time, though he could see up to 2000 throughout the day. Each of the tickets had to be scanned using a scan gun. Employee performed this task by holding the individual tickets in his left hand, while holding the scan gun in his right, using his right index finger to work the trigger. After scanning the tickets, he placed them in a tray for other employees to retrieve and process.

Employee occasionally processed the pick tickets himself, which involved locating the ordered items within employer's warehouse. Employee used a cart which he pushed or pulled throughout the warehouse, while handling items as small as pens and as heavy as cases of coffee mugs. Employee pulled these items off shelves or racks and loaded them onto the cart.

Three to four times per week, employee packed shipping boxes. This task involved removing items from the pick cart and placing them on a packaging table. Employee used a tape gun to put cardboard boxes together. To use the tape gun, employee held it in his right hand and started the tape on one side of the box, then pulled it over to the other side. Employee then applied pressure to the box with the gun and twisted the gun with his wrist so that the tape would tear off. Employee then loaded the box with the items, closed up the box, and taped the top using the tape gun. Next, employee stapled the pick ticket to the box, picked up the box from the table, and placed it on a nearby conveyer belt. These boxes weighed anything from 2 pounds to 60 pounds. Employee could not say how many boxes he filled in an average day, as it varied.

Every day for 2 to 3 hours, employee worked in the "UPS manifest area," which involved taking boxes off a conveyer belt and placing them on a scale. Employee then removed the pick ticket from the box using his left hand. Employee estimated he removed 200 to 300 of these tickets in a typical day. After removing each ticket, employee picked up a scan gun with his right hand, and scanned each ticket three times, using his right index finger on the trigger of the scan gun. Employee then put the pick ticket in a tray. A shipping label would print from a machine; employee would grab the label and pull the sticker off with his right hand and affix it to the box. Employee then lifted the box and placed it on another conveyer belt. From there, the box travelled to another location where the boxes were removed and placed on skids or pallets. Employee would stack the boxes 3 to 7 feet high on the skid, then shrink wrap the skid using a roll of shrink

wrap that employee manipulated by placing the index and long fingers of both hands into the ends of the tube. After affixing one end of the shrink wrap between two boxes, employee would circle around the skid approximately 15 times.

After the skids were shrink wrapped, employee moved them with a pallet jack machine, a stand-up forklift vehicle which a person operates using buttons and a rotating handle. Employee would drive the skids to a truck using the pallet jack machine.

In addition to the foregoing duties, employee performed managerial tasks including supervision, training, and discipline of between 15 and 40 other employees. Employee's daily job tasks varied somewhat, due to his helping out wherever he was most needed.

Employee testified that the description of his work duties contained in the 2003 and 2010 job descriptions prepared by employer were incomplete, because they did not include all of the physical tasks that he performed on a daily basis. We note that employer did not present any live witnesses to rebut employee's testimony as to his job duties, or to show that employer's written descriptions of his duties were more accurate than employee's testimony. Employer points to the affidavit from Sherri Weber describing employee's job duties, but we consider this evidence less persuasive. Ms. Weber's statements contained in the affidavit were not subject to cross-examination, and are far less detailed than employee's testimony regarding his duties, and as such we do not find them to materially contradict his testimony.

After careful consideration, we credit employee's testimony on this point. We find employee's testimony regarding his work duties more persuasive than the written job descriptions and the Weber affidavit provided by employer.

Employee began to experience symptoms in his right hand and elbow in approximately 2002. Employee wasn't aware of any particular accident that caused these symptoms. Employee went to his family physician, Dr. Faron, for treatment. Dr. Faron ordered an MRI of employee's neck. Employee's symptoms receded.

In 2005, employee again experienced some symptoms in his right arm, and returned to Dr. Faron. Again, employee wasn't aware of any particular injury in connection with these symptoms. Treating doctors performed an electrical study on his arm. Employee's symptoms again receded, although he returned to Dr. Faron in 2006 for right arm complaints.

In February 2010, employee developed right arm symptoms, including numbness and tingling, that were much worse than he experienced previously. Employee returned to Dr. Faron, who prescribed physical therapy. Employee attended three sessions of physical therapy but obtained no relief. Dr. Faron ordered an MRI of employee's neck and referred him to Dr. Yoon, who in turn ordered electrical studies. Based on these studies, Dr. Ahmad, an associate of Dr. Yoon, informed employee that he had carpal tunnel syndrome.

After learning he had carpal tunnel syndrome from Dr. Ahmed, employee informed Karen Stoverick, employer's director of human resources, of his diagnosis. Employee asked Ms. Stoverick if employer would cover the costs of his surgery, given the fact employer was in the process of winding down operations at the warehouse where employee worked. Ms. Stoverick sent employee to BarnesCare, where doctors examined employee and referred him to Dr. Charles Goldfarb, who specializes in upper extremity surgery. It appears from the medical record that employee's conversation with Ms. Stoverick must have taken place between June 4, 2010 (the date Dr. Ahmed diagnosed carpal tunnel syndrome), and July 19, 2010 (the date employee went to BarnesCare). It also appears from the medical record that the first date that a diagnostician rendered an opinion linking employee's work duties to his injuries was July 29, 2010, when Dr. Goldfarb suggested that work may have played a role in the development of employee's right arm symptoms.

Employee continues to experience complaints, including numbness and tingling in his right hand. Employee's thumb is weak, which makes it difficult to hold onto things. Employee is interested in obtaining further medical care for his condition.

Employee has high blood pressure and diabetes; he takes medications prescribed by his family physician for each condition. Employee smoked cigarettes for 20 years, though he stopped 6 or 7 years ago. Employee also has a history of neck pain in 2004 or 2005 with radiation into his elbow and hand.

Employee provides the testimony of Dr. Michael Beatty, who examined employee and diagnosed right carpal tunnel syndrome and right cubital tunnel syndrome. Dr. Beatty recommends that employee undergo surgery for both conditions. Dr. Beatty testified that having multiple risk factors may impact the clinical presentation of a diagnosis such as carpal tunnel syndrome, but ultimately opined that employee's work for employer is the prevailing factor causing these conditions.

Employer, on the other hand, provides the testimony of Dr. Charles Goldfarb, who examined employee and who also diagnosed right carpal tunnel syndrome and right cubital tunnel syndrome. Dr. Goldfarb agrees that employee needs treatment for these conditions, including surgery. Dr. Goldfarb testified that there are a number of factors that might play a role in causing these conditions, including cervical spine issues, diabetes, a history of smoking, and hypertension. Dr. Goldfarb noted that employee's description of his work duties differed from the written description that employer had provided him. Dr. Goldfarb initially indicated that if employee's reports of significant elbow flexion or repetitive wrist flexion/extension were accurate, then work may be the predominant factor in the development of his nerve symptoms. But after employer provided Dr. Goldfarb with written descriptions of employee's work duties, Dr. Goldfarb changed his opinion and determined that work is not a prev