Stanley White v. Ameren UE

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 parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties asked the administrative law judge to resolve the following issues: (1) whether employee sustained one or more occupational diseases to the upper extremities arising out of and in the course of his employment with employer; (2) whether the notice requirement of $\S 287.420$ RSMo shall serve as a bar to the claim for compensation or any portion thereof; (3) if employee is found to have sustained an occupational disease, whether said occupational disease is a substantial factor in the cause of any or all of the injuries and/or conditions alleged in the evidence; (4) the nature and extent of employee's permanent partial disability, if any; (5) whether employer/insurer shall be ordered to reimburse employee for past medical expenses; and (6) whether employer/insurer shall be ordered to provide future medical benefits pursuant to § 287.140 RSMo.

The administrative law judge rendered the following findings and conclusions: (1) employee sustained an occupational disease arising out of and in the course of his employment with employer in the form of bilateral carpal tunnel syndrome; (2) employee has not sustained an occupational disease with respect to either shoulder; (3) employee's claim for occupational disease is not barred by $\S 287.420$, because the notice requirement under that section is not applicable to claims for occupational disease under the law in effect when employee's claim accrued; (4) because employee did not demand that employer/insurer furnish medical treatment prior to obtaining his right carpal tunnel release surgery, employee exercised his right under $\S 287.140$ to seek medical treatment at his own expense, and thus employer/insurer is not responsible for the cost of that surgery; (5) employer/insurer is obligated to provide treatment for employee's work-related left carpal tunnel syndrome; and (6) as a result of his work-related bilateral carpal tunnel syndrome, employee has a 20\% permanent partial disability of the right wrist and a 20\% permanent partial disability of the left wrist, and as a result of the bilateral nature of these injuries, a 10\% multiplicity factor should be imposed.

Employee filed a timely application for review with the Commission alleging the administrative law judge erred: (1) in crediting the opinions of employer/insurer's medical expert over those of employee's medical expert; and (2) in not awarding permanent partial disability, past due medical aid, and future medical aid in connection with the claimed workrelated occupational disease to both shoulders.

Employee's motion to strike employer's answer to employee's application for review On March 20, 2014, employer/insurer filed its answer to employee's application for review. Therein, employer/insurer alleged that the administrative law judge erred in awarding compensation for employee's bilateral wrist injuries, and asked the Commission to reverse the administrative law judge's award referable to those issues. On March 28, 2014, employee filed "Petitioner's Motion to Strike Respondent's Answer to Application for Review or, Alternatively, Petitioner's Answer to Respondent's Application for Review" (Motion). On April 11, 2014, employer/insurer filed "Respondent's Response to Petitioner's Motion to Strike Portions of Respondent's Answer to Application for Review."

Even if we were to reweigh the evidence referable to the issues involved in the administrative law judge's determinations that employee suffered compensable left and right wrist injuries by occupational disease in the form of bilateral carpal tunnel syndrome, we agree with the administrative law judge's findings, analysis, and conclusions as to those issues, and we are ultimately adopting those findings, analysis, and conclusions herein. Accordingly, we must deny employee's Motion as moot.

As noted above, we agree with and hereby adopt the administrative law judge's determinations that employee suffered compensable left and right wrist injuries by occupational disease in the form of bilateral carpal tunnel syndrome. We note, however, that the administrative law judge ordered employer/insurer to furnish medical treatment referable to the left wrist, including surgery, but also entered an award of permanent partial disability referable to the left wrist. These results are incompatible, because we cannot assess the nature and extent of employee's permanent disability referable to left carpal tunnel syndrome until employee's condition reaches a state of maximum medical improvement. Cardwell v. Treasurer of Mo., 249 S.W.3d 902, 910 (Mo. App. 2008).

Both of the medical experts who testified in this matter opined that employee's left carpal tunnel syndrome would be appropriately treated by a left carpal tunnel release surgery, and at oral argument in this matter, employee's counsel indicated that employee wishes to undergo this procedure. It thus appears that employee will undergo additional surgery to correct his left carpal tunnel syndrome, and we find therefore that he has not yet reached maximum medical improvement with respect to this condition.

As a result, we must modify the administrative law judge's award on this point as follows: we disclaim his factual findings with respect to the issue of permanent partial disability referable to the left wrist, vacate his award of $\ 12,777.80 in permanent partial disability benefits referable to the left wrist, as well as the $\ 2,555.56 award for multiplicity, and enter instead this temporary award, subject to further order.

Section 287.067.1 RSMo defines an occupational disease, 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.

Employee's claim for compensation alleges a left shoulder injury by repetitive use with a date of injury of August 16, 2005. But the record suggests (and we so find) that employee did not seek any treatment for left shoulder issues until February 2009. As noted in the administrative law judge's award, employee began seeing Dr. James Schaberg for right shoulder problems in December 2005. Although employee continued to see Dr. Schaberg for evaluations and to receive cortisone injections in his right shoulder, Dr. Schaberg's records do not contain any suggestion that employee suffered from left shoulder symptoms until February 20, 2009. In Dr. Schlafly's report of February 12, 2008, he made only passing mention of the left shoulder, reciting employee's suspicion that he was developing arthritis in his left shoulder, noting some restricted range of motion, and suggesting additional evaluation in the form of diagnostic studies.

The courts have linked the "date of injury" in occupational disease cases to the date the disease first becomes "compensable," which typically has been interpreted to mean the date an employee first experiences some disability from the disease. See Garrone v. Treasurer of State, 157 S.W.3d 237, 242 (Mo. App. 2004)(holding that an employee's carpal tunnel syndrome did not become a compensable injury until the date he missed work for surgery, as he worked without restriction up until that date), and Coloney v. Accurate Superior Scale Co., 952 S.W.2d 755, 759 (Mo. App. 1997)(noting that "Missouri courts have interpreted section 287.063 to provide that an employee with an occupational disease is 'injured' ... when the disease causes a 'compensable injury'").

At oral argument in this matter, employee's counsel suggested that employee could have been suffering from symptoms referable to his left shoulder prior to August 16, 2005, but chose to focus on seeking treatment for his more pressing right shoulder and carpal tunnel issues instead. This may be so, but the record before us simply does not support such a finding. Employee, in his own testimony, was unable to persuasively identify the timing of the onset of his left shoulder symptoms with any specificity.

In his report of July 9, 2013, Dr. Schlafly opined that employee's work duties caused his bilateral shoulder impingement syndrome and rotator cuff tendonitis, but did not specifically indicate (1) that employee suffered any identifiable disease of the left shoulder up to and including August 16, 2005, or (2) that employee's work caused such a condition. While we

are convinced that employee was suffering significant left shoulder problems at least as of February 2009, we believe Dr. Schlafly's causation opinion ultimately provides no support for employee's actual claim, which is for a left shoulder injury by occupational disease up to and including August 16, 2005. Because there is no other credible evidence on this record that employee suffered any identifiable disease of the left shoulder (related to work or otherwise) as of August 16, 2005, we must conclude that employee did not suffer a compensable occupational disease affecting his left shoulder through August 16, 2005. For this reason, we deny employee's claim for compensation referable to the left shoulder.

The administrative law judge determined that employer/insurer's expert, Dr. Rotman, provided more persuasive opinions regarding the cause of employee's bilateral shoulder impingement syndrome. With respect to the right shoulder, we disagree, for the following reasons.

Dr. Rotman believes that impingement syndrome or rotator cuff tendonitis can never constitute a compensable occupational disease unless one's job requires repetitive overhead work at least 4 hours per day. Dr. Rotman did not refer to any medical literature or scientific study to support this hypothesis; it thus appears that this 4 hour per day "threshold" is of Dr. Rotman's own creation. But Dr. Rotman did not describe the origin of this hypothesis, or provide any testimony to specifically link it to his own clinical experience.

Where a medical expert declines to engage with the particular facts and circumstances attendant to an employee's work, and instead relies upon the application of a personal, per se "threshold," the origin of which is unexplained, we are not inclined to afford much weight to the expert's ultimate opinions. For this reason, we cannot credit Dr. Rotman's causation opinion in this matter.

This leaves us with the opinion from Dr. Schlafly that employee's repetitive and forceful physical labor duties as a gas serviceman constitute a substantial factor causing his shoulder impingement syndrome and rotator cuff tendonitis. Employee persuasively testified (and we so find) that his right shoulder symptoms in 2002 when he sought treatment from Dr. Orell affected a different part