Billy Tabor v. Clinton Schreiber Foods, Incorporated

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 06-119870

Employee: Billy Tabor

Employer: Clinton Schreiber Foods, Incorporated

Insurer: Zurich American Insurance Group

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Employee filed three claims for compensation alleging various injuries sustained during his employment with employer. The administrative law judge issued three awards denying compensation. Even though employee's claims involved different facts and theories of injury, the awards issued by the administrative law judge were, in all material respects, identical. Employee filed timely Applications for Review in each claim.

On March 1, 2013, the Labor and Industrial Relations Commission (Commission) issued orders finding that the administrative law judge failed to properly address the issues involved in the individual claims, and remanding the cases to the administrative law judge with directions to issue separate awards with specific findings.

On November 20, 2013, employee filed a "Petition to Reconsider the Commission's Order and Requesting the Commission Issue a Final Award." Employee alleges the administrative law judge failed to act on the Commission's orders of remand because the administrative law judge believed the remands were improper. Employee requests that the Commission review the record and issue awards disposing of his claims. The Commission has not received any response by employer or the Second Injury Fund to employee's motion.

The Code of Judicial Conduct for Missouri Workers' Compensation Administrative Law Judges states that "[a] worker's compensation administrative law judge shall dispose of all judicial matters promptly, efficiently, and fairly." ${ }^{1}$ More than one year has passed since we issued our remand order. The record reveals no action taken in response to our order. The administrative law judge's reasons for taking no action in response to our remand order do not appear of record. The administrative law judge in the instant matter did not dispose of this matter promptly. He did not dispose of it at all.

Employee's motion of November 20, 2013, suggests the administrative law judge decided he did not have authority to take the action we directed. If the suggestion is true, it does not explain why the administrative law judge did nothing in response to our remand order. We believe the Code of Judicial Conduct direction that administrative law judges dispose of matters promptly required the administrative law judge to take some action in response to our remand order long before the passage of an entire year, even if that action was merely an order expressing his belief that he had no authority to comply with our order.

We continue to be of the opinion that our order of remand herein was a proper exercise of our authority under $\S 287.610 .5$ RSMo, which specifically states that "[t]he labor and industrial relations commission may remand any decision of an administrative law judge for a more complete finding of

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[^0]: ${ }^{1}$ Code of Judicial Conduct for Missouri Workers' Compensation Administrative Law Judges, Canon 3.5

facts." However, in the interest of providing the parties with a resolution in this matter, and because the administrative law judge has failed to take any action whatsoever to give effect to our orders of remand, we will conduct a review on the merits, despite the difficulty presented by the administrative law judge's original failure to fulfill his statutory duty under § 287.460.1 RSMo to render an award "together with a statement of the findings of fact, rulings of law and any other matters pertinent to the question[s] at issue." See also Stegman v. Grand River Reg'l Ambulance Dist., 274 S.W.3d 529 (Mo. App. 2008), discussing the needless burden upon the administrative and judicial system that results where, as here, an administrative law judge declines to fulfill his duty under the law.

Accordingly, we hereby set aside our order of remand dated March 1, 2013, and take up this matter pursuant to our jurisdiction under $\S 287.480$ RSMo.

At the hearing, the administrative law judge identified the following issues: (1) accident; ${ }^{2}$ (2) the need for future medical care; (3) the degree of permanent disability; (4) the liability of the Second Injury Fund; and (5) whether the Second Injury Fund has liability for an occupational disease as a preexisting condition.

The administrative law judge determined as follows: (1) it appears that employee's work for employer is not the prevailing factor in causing employee's current disability to his upper extremities, neck, ${ }^{3} or back; { }^{4}$ (2) employee is not entitled to any permanent partial disability from employer; and (3) there is no Second Injury Fund liability. The administrative law judge did not specifically address the issue of accident or occupational disease.

As noted above, employee filed a timely Application for Review challenging the administrative law judge's findings and conclusions. Pursuant to § 286.090 RSMo, we reverse the award and decision of the administrative law judge for the reasons set forth herein.

Employee worked for employer from May 5, 2003, to November 13, 2006. It is uncontested that employee has a preexisting 2000 diagnosis of bilateral carpal tunnel syndrome (CTS) sustained in his work for a previous employer, for which he settled a workers' compensation claim (together with back and neck injuries) for 20 % permanent partial disability of the body as a whole in 2003. Employee alleges he sustained aggravation and progression of his bilateral CTS as a result of repetitive upper extremity movements involved in handling and taping boxes of cheese product in the course of performing his duties for employer through September 13, 2006.

An electromyography and nerve conduction study performed on January 8, 2000, revealed mild left CTS and possible right CTS. It appears that employee did not receive any further medical treatment for these conditions at that time; employee explained, in his testimony, that he did not have the funds to seek further treatment. Employee continued to suffer from numbness and pain in his bilateral upper extremities. On August 11, 2003, in an independent medical examination report generated for employee's 2000 workers' compensation claim against the former employer, Dr. P. Brent Koprivica rated a 15\% permanent partial disability of the bilateral wrists referable to employee's CTS, but opined that employee likely would suffer additional

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[^0]: ${ }^{2}$ We note that employee's claim for compensation alleges an injury by repetitive motion, i.e., by occupational disease, and does not allege an accident.

${ }^{3} Employee does not allege injury to his neck herein.

{ }^{4}$ Employee does not allege injury to his back herein.

permanent partial disability as a result of further aggravating injury employee was then experiencing in his work for employer.

From February to November 2006, employee's duties for employer involved stacking cardboard boxes into a machine, handling 12 to 18 pound boxes of cheese product, reaching inside to inspect the packages of cheese, and taping the boxes shut using a tape gun. Employee handled between 500 and 600 boxes per shift on one line, and as many as 1,200 per shift on another. Employee credibly testified (and we so find) that this repetitive work caused him numbness and cramping in his hands that was much worse than he experienced previously. Employee asked employer to change his duties, and employer assigned a coworker to help employee so he didn't have to work as fast.

A November 22, 2006, study revealed mild right CTS and moderate left CTS. On December 16, 2006, employee's evaluating expert, Dr. Koprivica, opined that employee's occupational exposure and repetitive duties for employer were the prevailing factor resulting in further repetitive injury to his bilateral upper extremities. On July 3, 2007, employer's authorized treating physician Dr. O. Allen Guinn opined that the progression in employee's CTS between 2000 to 2006 was caused by his work for employer. On August 16, 2007, an administrative law judge entered a temporary award finding the progression in employee's CTS was work-related and ordering employer to provide treatment.

Dr. Guinn performed a right carpal tunnel release on September 10, 2007, and a left carpal tunnel release on October 8, 2007. On December 18, 2007, Dr. Guinn released employee for full-duty work. Employee credibly testified (and we so find) that the surgeries helped relieve his pain, but that he continues to experience numbness in his fingers and problems with dropping things.

Above, we have noted the opinion of Dr. Koprivica in support of employee's claim. Employee also presents expert medical testimony from the orthopedic surgeon Dr. Truett Swaim. Dr. Swaim opined that employee's occupational cumulative trauma aggravated his preexisting bilateral CTS and was the prevailing factor to cause his need for surgical intervention as well as additional permanent partial disability. Dr. Swaim opined employee should avoid repetitive forceful use of the hands and vibrating/jarring equipment and rated a 25% permanent partial disability of each arm at the 175-week level.

We have noted that the authorized treating surgeon Dr. Guinn believes the progression of employee's bilateral CTS was caused by his work for employer. Employer also sent employee for an evaluation with Dr. Terrence Pratt, who opined that any progression of CTS seen on diagnostic study would most likely relate to employee's more recent repetitive use of upper extremities (or in other words, employee's work for employer). On the other hand, employer presents expert medical testimony from the physical medicine and rehabilitation specialist Dr. Eden Wheeler. Dr. Wheeler acknowledged the changes demonstrated on the 2006 studies, but opined that it was difficult to identify the causative factor of such progression because of other jobs employee had before he worked for employer.

Especially where employer's authorized treating and evaluating physicians Drs. Guinn and Pratt agree with employee's experts Drs. Swaim and Koprivica, we do not find the sole contrary opinion from Dr. Wheeler to be especially persuasive. We adopt the opinions of Drs. Koprivica, Pratt, Guinn, and Swaim that employee's repetitive upper extremity work for employer caused aggravation and progression of his preexisting bilateral CTS.

Employee's experts did not address the issue whether employee will need future medical treatment to cure and relieve the effects of his bilateral CTS, and employee has failed, in his brief, to cite any other evidence indicating that he does. Accordingly, we find that employee has failed to meet his burden of proof with respect to the issue of future medical care. We find that there is not a reasonable probability employee has a need for future medical care referable to his bilateral CTS.

In 1994, employee was diagnosed with attention deficit disorder (ADD) and prescribed Ritalin; employee testified this condition impairs his memory and concentration. Employee's counselor at Pathways wrote an October 13, 2005, letter to employer asking that employee's duties be changed to something less stressful in light of his ADD. We find this evidence sufficient to establish that employee experienced a preexisting permanent partial disability referable to ADD, but we note that employee's experts did not provide a rating for this condition. After careful consideration, we find that employee's preexisting permanent partial disability referable to ADD amounted to 5 % permanent partial disability of the body as a whole.

As noted above, employee settled a 2000 workers' compensation claim for 20\% permanent partial disability of the body as a whole in 2003, but this covered gene