Chad Keith v. R. W. Andersohn Enterprises, Inc. d/b/a Doll Services & Engineering, Inc.

We agree with the administrative law judge’s conclusion that employee failed to meet his burden of proof with respect to the issue of medical causation. We wish to make clear that we reach this result because employee’s expert, Dr. Dwight Woiteshek, offered opinions that are simply not persuasive in light of his lack of pertinent information regarding employee’s work duties, preexisting injuries to the upper extremities, hobbies, and alcohol abuse. We note that employee, in his brief, merely provides arguments why the opinions of employer’s expert, Dr. Michele Koo, should be deemed lacking credibility, and fails to explain why we should find persuasive Dr. Woiteshek’s testimony where he lacked pertinent factual information.

With that said, we wish also to make clear that we believe Dr. Koo, in issuing an opinion that compares employee’s work exposure to a conglomeration of numerous non-work risk factors, has failed to provide an opinion that is relevant for the purposes of our analysis under the Missouri Workers’ Compensation Law. Dr. Koo appears to have premised her medical causation opinion in this matter on her view that employee’s non-work risk factors of obesity, smoking, and alcohol abuse, considered cumulatively, outweigh work as a causative factor. It thus appears that Dr. Koo relied on a definition of “prevailing factor” that departs from the plain language of Chapter 287.

As the parties are undoubtedly aware, the version of § 287.800 RSMo applicable to this claim requires that we strictly construe the language of the Missouri Workers’ Compensation Law. Strictly construing the language of § 287.020.3(1) RSMo, we find no support for the proposition that employee’s work exposures must prevail over a combination of each of employee’s non-work risk factors. Section 287.020.3(1) does not define a prevailing factor as the primary factor “in relation to all other factors combined,” but rather “in relation to any other factor.” For this reason, we believe Dr. Koo’s opinion in this matter is inapposite for purposes of resolving the question of medical causation under § 287.020.3(1).

In sum, although we do not find Dr. Koo's ultimate causation opinion to be particularly relevant to the issues involved in this matter, we deny employee's claim because he has failed to advance persuasive expert medical opinion evidence to meet his burden of proof as to the issue of medical causation.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued April 16, 2013, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $11^{\text {th }}$ day of December 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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: April 1, 2009 (alleged)
5. State location where accident occurred or occupational disease was contracted: Franklin 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? No
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
11. Describe work employee was doing and how accident occurred or occupational disease contracted: The claimant, a heating and air conditioning technician, suffered bilateral carpal tunnel syndrome and cubital tunnel syndrome.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Both wrists and elbows (alleged)
14. Nature and extent of any permanent disability: 15 % permanent partial disability to each wrist and elbow plus 8 weeks for disfigurement
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: $\ 5,080.57

1. Value necessary medical aid not furnished by employer/insurer? $\ 1,955.65
2. Employee's average weekly wages: $\ 874.55
3. Weekly compensation rate: $\$ 583.03 / \ 404.66
4. Method wages computation: By agreement

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

TOTAL:

None

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mark A. Cordes, Esq.

Employee: Chad Keith

Dependents: N/A

Employer: R.W. Andersohn Enterprises, Inc., d/b/a Doll Services \& Engineering, Inc.

Additional Party: N/A

Insurer: Cincinnati Insurance Company

Injury No.: 09-103087

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/lsn

This workers' compensation case raises several issues arising out of an alleged work related injury in which the claimant, a heating and air conditioning technician, suffered bilateral carpal tunnel syndrome and cubital tunnel syndrome. The issues for determination are (1) Occupational disease arising out of and in the course of employment, (2) Notice, (3) Medical causation, (4) Liability for Past Medical Expenses, (5) Temporary Disability, (6) Permanent disability and disfigurement, (7)) Recoupment of medical expenses paid, (8) Statute of Limitations, and (9) the identity of the employer. The evidence compels an award for the defense.

At the hearing, the claimant testified in person and offered a medical report from Dwight Woiteshek, M.D., a first amended claim, and various medical records and bills. The defense offered depositions of the claimant, Michael Hemphill, Sue Straatmann, Dwight Woiteshek, M.D., and Michelle Koo, M.D., records from the Missouri Division of Employment Security, a motor vehicle accident report, a web screen shot, the claimant's termination of employment letter, payment record to ProRehab, Answers to the Claimant's First Amended Claim, and various medical records.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the alleged occupational disease was alleged to have been contracted in Missouri. Any markings on the exhibits were present when offered into evidence.

This 32 year old claimant, a heating and air conditioning technician, suffered bilateral carpal tunnel syndrome and cubital tunnel syndrome. On November 15, 2001, R.W. Andersohn Enterprises, Inc. hired the claimant as a heating and cooling systems installer. The claimant testified that his job in the field involved splitting about half of his time between working with sheet metal and half of his time doing pipefitting and installing air conditioning (A/C) units. His duties for sheet metal work included installation, fabrication, layout, design, bending, folding, cutting, hanging, hammering, and duct work. His job involved the use of power drills, power saws, band welder, pipe wrenches, hammer, screwdrivers, and impact gun. The claimant testified that a high percentage of his job involved putting in screws and that he used the impact

gun quite often, usually several times a day. On the other hand, various other routine aspects of his job did not require the use of hand tools: layout duties, office work, coordinating his subordinates, ordering materials and supplies, and customer relations.

The claimant testified that there were times when he did not work in the field. The claimant also worked in the office for a couple of weeks during October 2006 following a jobrelated hernia. The claimant fell through the ceiling while on the job and following that incident, the claimant worked in the office for a few days. The claimant did not file Workers' Compensation claims for either of the latter two injuries.

In 2008, the claimant had knee surgery and spent all of his time working in the office from September through December 2008. The claimant testified that, during this time, he probably did not use any hand tools. From January through April 2009, the claimant spent 80\% of his time in the office, gradually working his way back into the field. He testified that his field work at the time was similar to the field work performed by Brian Hackett. After this time period, the claimant resumed full-time work in the field.

The claimant testified that beginning in April 2009, his hands and arms started to feel sore and weak. He testified that he thought he was overworking them. The pain began in his hands then worked its way toward his elbows and shoulders and worked its way down his arms. The claimant testified that he did not inform his employer when his pain started, nor did he contact a medical professional at the time the pain began.

On September 4, 2009, the claimants, family physician, Dr. Tim Baker, examined the claimant for this condition, and this was the first time the claimant sought medical treatment for this condition. The claimant reported pain in his hands, wrists, elbows, and arms to Dr. Baker. Dr. Baker prescribed steroids to help regain strength in his hands, wrists, and arms. Dr. Baker diagnosed bilateral hand pain probable overuse. The claimant testified that he was aware that his condition was work related after his consultation with Dr. Baker on September 4, 2009, but also testified that he didn't know the condition was work related until late November or early December 2009. After taking the steroids for a few months he sought a nerve conduction specialist, Dr. Verdine.

On December 23, 2009, the claimant verbally reported his right and left hand/wrist/elbow pain to the employer's controller, Sue Straatmann, and she was the first agent of the employer to whom he reported the condition. He has never submitted a written notification to his employer that his work was causing his right and left hand/wrist/elbow pain. The claimant testified that M