Lonnie Harris v. Bi-State Development Agency

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 10-021927

Employee: Lonnie Harris

Employer: Bi-State Development Agency

Insurer: Self-Insured

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, and considered the whole record. Pursuant to § 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's carpal tunnel syndrome is an occupational disease that arose out of and in the course of her employment and is medically causally related to her work activities; (2) whether employer is liable for past medical expenses that remain unpaid to Dr. Prieb in the amount of $\ 200.00; (3) whether employer is liable for temporary total disability benefits for two time periods beginning June 1, 2010, through July 15, 2010, for 45 days, and from February 17, 2011, through April 13, 2011, for 55 days for a total of 100 days or 14.285 weeks totaling $\ 5,177.88; and (4) whether employer is liable for permanent partial disability benefits and disfigurement from carpal tunnel syndrome.

The administrative law judge rendered the following findings and conclusions: (1) Drs. Koo and Crandall's opinions are more credible than the opinions of Drs. Schlafly and Margolis; (2) employee did not meet her burden to show that carpal tunnel syndrome arose out of repetitive work activities that were the prevailing factor in the development of bilateral carpal tunnel syndrome and disability; and (3) all other issues are moot.

Employee filed a timely Application for Review with the Commission alleging the administrative law judge erred: (1) in crediting employer's experts over employee's experts; and (2) in finding that employee's non-work risk factors caused her diagnosis of carpal tunnel syndrome.

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

Employee was 63 years of age at the time of the hearing before the administrative law judge. Before she started working for employer, employee was diagnosed with diabetes. Employee was initially able to control her diabetes by managing her diet, but eventually began taking oral medication for the condition. At about the same time

employee began working for employer, employee was diagnosed with hypertension. Employee has also struggled with obesity.

Employee worked for employer for about 10 years as a van driver. Employee drove up to 100 miles a day throughout the St. Louis metropolitan area. Other than a break between passengers lasting 10 or 15 minutes, employee spent her entire 8 -hour shift for employer driving passengers in the van. The van had automatic transmission and power steering, but the steering wheel in the van was harder for employee to turn than the steering wheel in her car, and required a more forceful grip. Employee explained that the handling of the van, especially over rough roads, could be unpredictable and required her to keep a tight grip on the steering wheel to maintain control of the van.

Employer also required employee to assist passengers in wheelchairs. Employee pushed or pulled passengers in manual wheelchairs onto the electric wheelchair lift. Once the passenger and their wheelchair were inside, employee used straps to secure the wheelchair to the floor. There were four straps, and each had to be tightened. Employee pressed a button to tighten the straps, then secured the remainder of the slack by tightening a knob. The knob took about 6 turns to tighten. Employee experienced her worst hand complaints while performing this activity. Employee assisted up to 6 wheelchair passengers per day. On certain weeks, employee had as few as 1 or 2 wheelchair passengers per week.

Employee's hand complaints began in 2008 and 2009 and progressed in intensity. On February 27, 2010, employee went to the emergency room with complaints of swelling in her hands while driving employer's van. Treating doctors diagnosed hand pain and hand tendonitis, and gave employee a hand splint and ice pack. Employee reported her hand problems to employer. Employer sent employee to BarnesCare, where Dr. Thomas Kibby diagnosed unspecified chronic arthropathy of the wrists, concluded employee's injuries were not work-related, and released employee with a recommendation that she see her personal physician.

On March 11, 2010, employee sought treatment with a hand surgeon, Dr. Kosit Prieb, who examined employee, ordered nerve conduction studies, and diagnosed bilateral carpal tunnel syndrome, advanced on the left. On June 1, 2010, Dr. Prieb performed a left carpal tunnel release. Dr. Prieb took employee off work from June 1, 2010, until July 15, 2010. Employee returned to work on July 16, 2010, without restrictions. On February 17, 2011, Dr. Bruce Schlafly performed a right carpal tunnel release. Dr. Schlafly took employee off work from February 17, 2011, until April 13, 2011.

Employee's hands improved after surgery, but employee still has pain and numbness in her hands and fingers. Employee continues to experience pain and tingling in her fingers, as well as weakness, and difficulty with prolonged activity. Employee has difficulty holding a book to read, and is unable to open bottles like she could before. Employee has one and a half inch long scars in the palm of each hand from her carpal tunnel release surgeries. Employee also has scarring on her hands from childhood burns; employee credibly testified (and we so find) that the scarring from her childhood burns never caused her any problems with her hands.

Employee presents the treating surgeon Dr. Schlafly, who opined that employee's work as a van driver for employer is the prevailing factor in causing bilateral carpal tunnel syndrome. Dr. Schlafly believes that employee's carpal tunnel syndrome resulted from her repetitive work of gripping and twisting the steering wheel of the van, as well as the more forceful work of securing the wheelchairs into place by pulling straps and tightening knobs.

Employee also presents Dr. Margolis, who opined that employee's work for employer was the prevailing factor in causing her to develop symptomatic bilateral carpal tunnel syndromes and permanent partial disability which he rated at 35 % of the left hand and 30 % of the right hand. Dr. Margolis also recommended that a multiplicity factor be added. Dr. Margolis did not assign any specific restrictions but opined that employee should avoid activity which exacerbates discomfort. Dr. Margolis opined that employee did not suffer any permanent partial disability from childhood burns on employee's palms and fingers.

Employer presents Dr. Michele Koo, who examined employee, reviewed medical records and a job summary, and who opined that employee's bilateral carpal tunnel syndrome is not related to her work for employer. Dr. Koo believes that employee's carpal tunnel syndrome is caused by her non-work risk factors, such as obesity, diabetes, age, gender, and a sedentary life style. Dr. Koo opined that employee's work was not repetitive and did not require firm or repeated grasping in a manner that would cause carpal tunnel syndrome.

Employer also presents Dr. Evan Crandall, who opined that driving a van cannot cause, change, or aggravate carpal tunnel syndrome. Dr. Crandall does not believe moving a steering wheel involves repetitive stress to the flexor tendons or muscles of the forearm. Dr. Crandall opined that the prevailing factors causing employee's carpal tunnel syndrome are osteoarthritis, diabetes, high body mass index, high blood pressure, age, gender, and menopause. Dr. Crandall rated employee's permanent partial disability at 10\% of each wrist.

We note that employee's job duties involved not only driving but also maneuvering and securing passengers in wheelchairs. We conclude and find that these duties did require firm, repetitive grasping and involved repetitive stress to the flexor tendons and muscles of employee's forearms. We find that the opinions of Drs. Schlafly and Margolis are supported by these facts as found. We adopt their opinions (and so find) that employee's work for employer is the prevailing factor in causing her bilateral carpal tunnel syndrome and associated disability. We also find persuasive Dr. Margolis's opinion that a multiplicity factor should be added to account for the synergistic effect of employee's bilateral carpal tunnel syndrome.

Occupational disease arising out of and in the course of employment

Section 287.067.1 RSMo provides, as follows:

In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an

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.

We have credited the opinions from Drs. Schlafly and Margolis that employee suffers from bilateral carpal tunnel syndromes, and that work is the prevailing factor in causing these conditions. The credible findings of Drs. Schlafly and Margolis demonstrate that employee sustained an occupational disease that appears to have had its origin in a risk connected with the employment, and that appears to have flowed from that source as a rational consequence. We conclude employee sustained an occupational disease arising out of and in the course of employment for purposes of the foregoing section.

Section 287.067.2 RSMo provides, as follows:

An injury by occupational disease 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. 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.

In the context of occupational disease, the courts have clarified that:

A claimant must submit medical evidence establishing a probability that working conditions caused the disease, although they need not be the sole cause. Even where the causes of the disease are indeterminate, a single medical opinion relating the disease to the job is sufficient to support a decision for the employee.

Vickers v. Mo. Dep't of Pub. Safety, 283 S.W.3d 287, 292 (Mo. App. 2009)(citations omitted)(emphasis in original).

Again, we have credited the opinions from Drs. Schlafly and Margolis that employee suffers from bilateral carpal tunnel syndromes, and that work is the prevailing factor in causing these conditions. Given the credible findings from Drs. Schlafly and Margolis, we conclude that employee's occupational exposure was the prevailing factor in causing the resulting medical conditions of bilateral carpal tunnel syndromes and associated disability to the extent of 15 % permanent partial disability of the right upper extremity at the 175 -week level, and 17.5 % permanent partial disability of the left upper extremity at the 175 -week level.

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,