Tamara Lynn v. McClelland Marketing, Inc.

acknowledged this task was interrupted by other duties such as answering phones and handling boxes of files.

In 2008 or 2009, employee began to develop pain and discomfort in her hands, wrists, and fingers. Employee's arms were falling asleep while driving and she was having burning, tingling, and numbness in her hands. Employee's symptoms gradually worsened.

In December 2010, employee sought treatment for hand numbness at Madison Memorial Hospital. On February 17, 2011, employee saw Dr. Ed Burke for hand pain. Dr. Burke diagnosed carpal tunnel syndrome and recommended employee see a specialist. On March 9, 2011, employee saw Dr. Bruce Schlafly, who confirmed the diagnosis of bilateral carpal tunnel syndrome, and recommended carpal tunnel release surgeries.

On March 15, 2011, employee underwent a right carpal tunnel release, and on April 21, 2011, she underwent a left carpal tunnel release. It appears that Dr. Schlafly last saw employee on May 25, 2011, but his handwritten notes are not legible and so we are unable to determine when (if ever) he took employee off work, found employee to be at maximum medical improvement, or released employee to return to work. At the hearing before the administrative law judge, employee answered "yes" to her attorney's leading question asking whether as part of her claim she's claiming she's unable to work from March 15, 2011, through July 1, 2011. Employee did not identify the symptoms she was experiencing that purportedly prevented her from working during this time period, nor did she provide any other testimony or evidence to prove up this assertion. We find employee's affirmative response to her attorney's leading question lacking persuasive force on this issue. Consequently, we decline to make any findings that employee was rendered unable to work during any time period as a result of her carpal tunnel syndrome or related surgeries.

The bilateral carpal tunnel release surgeries provided employee with some relief, but she continues to experience tingling and numbness in her hands and fingers. Employee has difficulty with gripping, and can no longer open jars. Employee's hands still fall asleep while driving.

On August 31, 2011, Dr. Shawn Berkin saw employee for purposes of providing an independent medical examination on behalf of the employee. Dr. Berkin opined that employee's repetitive hand intensive activities performed in the course of her duties for employer were the prevailing factor causing her to suffer bilateral carpal tunnel syndrome. Dr. Berkin rated employee's permanent partial disability resulting from bilateral carpal tunnel syndrome at 35 % of each upper extremity at the level of the wrist. Dr. Berkin opined employee should use nonsteroidal anti-inflammatory medications for arm and hand pain.

On November 21, 2011, Dr. Richard Rende saw employee for purposes of providing an independent medical examination on behalf of the employer. Dr. Rende opined that employee's bilateral carpal tunnel syndrome was likely the result of repetitive microtrauma sustained in the course of her employment as an office assistant. Dr. Rende opined that employee had reached maximum medical improvement, and rated employee's disability referable to bilateral carpal tunnel syndrome at 3\% permanent partial disability of each

wrist. Dr. Rende opined that employee would not need any future treatment in connection with the work injury.

We find persuasive the unanimous medical causation opinions from Drs. Rende and Berkin (and so find) that employee's bilateral carpal tunnel syndrome resulted from repetitive trauma caused by her work as an office assistant for employer. We note that employee, in her brief, concedes that " $[t]$ here has not been substantial evidence to show that the employee needs additional ongoing medical care associated with future medical." Brief of Employee/Petitioner, page 8. Especially in light of this concession, we find persuasive Dr. Rende's opinion (and so find) that employee does not have any need for future medical treatment referable to bilateral carpal tunnel syndrome. We find that employee's bilateral carpal tunnel syndrome results in a 12.5 % permanent partial disability of each upper extremity at the wrist.

Before her evaluations by Drs. Rende and Berkin, no other physician informed employee that her carpal tunnel syndrome was work-related. On May 31, 2011, employee filed a Claim for Compensation with the Division of Workers' Compensation. This document alleges employee suffered a repetitive trauma injury affecting both upper extremities in April 2010 in High Ridge, Jefferson County, Missouri. This document also includes employee's name and address. This was the first notice employee provided to employer of her injury. Throughout her course of treatment for bilateral carpal tunnel syndrome, employee received treatment from providers of her own choosing, and never requested that employer provide her with medical treatment. Employer did not have any notice of employee's need for treatment in connection with bilateral carpal tunnel syndrome.

Section 287.420 RSMo sets forth the requirements for the notice an employee must provide her employer regarding a work injury, and provides, in relevant part, as follows:

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 receive the notice.

Under the foregoing provision, the triggering event in the context of an injury by occupational disease is "diagnosis of the condition." The parties appear to have overlooked the relevant and controlling case law interpreting the meaning of this language:

Strictly construing Mo. Rev. Stat. § 287.420 (Cum. Supp. 2005), "the condition" is referring to the previously stated occupational disease or repetitive trauma. Therefore, the question then becomes, at what point is an occupational disease or repetitive trauma diagnosed? Looking to the plain, obvious, and natural import of the language, it follows that a person cannot be diagnosed with an occupational disease or repetitive trauma until a diagnostician makes a causal connection between the underlying medical condition and some work-related activity or exposure.

Allcorn v. Tap Enters., 277 S.W.3d 823, 829 (Mo. App. 2009).

Pursuant to Allcorn, the thirty-day notice period did not begin to run for this employee until a diagnostician made a causal connection between her injuries and some workrelated activity or exposure. We have found that the date a diagnostician first made a causal connection between employee's carpal tunnel syndrome and some work-related activity or exposure was August 31, 2011, when Dr. Berkin evaluated employee and offered his opinion that her carpal tunnel syndrome was caused by her work for employer. We have also found that on May 31, 2011, employee filed a Claim for Compensation with the Division of Workers' Compensation, which amounts to a written notice meeting each of the requirements under § 287.420. "[T]he statute does not require that the notice be given after the diagnosis, but only that it be given no later than thirty days after the diagnosis of the condition." Allcorn, at 830 (emphasis in original). Applying the relevant and controlling case law, we conclude that employee provided timely notice to employer meeting each of the elements of the statute. We conclude that employee's claim is not barred by $\S 287.420$.

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. Berkin and Rende that employee suffers from bilateral carpal tunnel syndromes caused by her work for employer. The credible findings of Drs. Berkin and Rende 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 287.067.3 RSMo