Kimberly Warren v. Alexian Brothers Lansdowne Manor, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 09-051279

Employee: Kimberly Warren

Employer: Alexian Brothers Lansdowne Manor, Inc.

Insurer: Zurich American Insurance Co.

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated April 9, 2014. The award and decision of Administrative Law Judge Linda J. Wenman, issued April 9, 2014, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $26^{\text {th }}$ day of November 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Hearing Date: March 13, 2014

Checked by: LJW

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: April 10, 2009
5. State location where accident occurred or occupational disease was contracted: St. Louis County, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
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: Due to the repetitive and forceful nature of her work, Employee developed bilateral carpal tunnel syndrome.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Bilateral wrists
14. Nature and extent of any permanent disability: 17.5 % PPD referable to each hand at the 175 week level, 15 % multiplicity and 2 weeks of disfigurement.
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

Employee: Kimberly Warren Injury No.: 09-051279

1. Value necessary medical aid alleged not furnished by employer/insurer? $\ 18,111.77
2. Employee's average weekly wages: Sufficient to produce rates listed below.
3. Weekly compensation rate: $\$ 286.59 / \ 286.59
4. Method wages computation: Stipulated

1. Amount of compensation payable:

Unpaid medical expenses: $\ 18,013.88

$85 / 7^{\text {th }} weeks of temporary total disability (or temporary partial disability) \ 2,497.42

70.44 weeks of permanent partial disability from Employer $\ 20,187.40

2 weeks of disfigurement from Employer $\ 573.18

1. Second Injury Fund liability: Open

TOTAL: $\quad \ 41,271.88

1. Future requirements awarded: N/A

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 in favor of the following attorney for necessary legal services rendered to the claimant: Sarah Hale

Employee: Kimberly Warren

Dependents: N/A

Employer: Alexian Brothers Lansdowne Manor

Additional Party: Second Injury Fund (open)

Insurer: Zurich American Insurance Co.

Injury No.: 09-051279

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LJW

A hearing for final award was held regarding the above referenced Workers’ Compensation claim by the undersigned Administrative Law Judge on March 13, 2014. Posttrial briefs were received from the parties on April 3, 2014. Attorney Sarah Hale represented Kimberly Warren (Claimant). Alexian Brothers Lansdowne Manor (Employer) is insured by Zurich American Insurance Company and represented by Attorney Thomas Tobin. The Second Injury Fund (SIF) did not participate in the hearing and will remain open for further proceedings.

Prior to the start of the hearing, the parties identified the following issues for disposition in this case: occupational disease; medical causation; liability of Employer for past medical expenses; liability of Employer for past temporary total disability (TTD) benefits; and liability of Employer for permanent partial disability (PPD) benefits. Claimant offered Exhibits A-E and GH. Exhibit F was marked, but withdrawn. Employer offered Exhibit 1-2. All offered exhibits were admitted into the record. Any markings contained within any exhibit were present when received, and the markings did not influence the evidentiary weight given the exhibit. Any objections not expressly ruled on in this award are overruled.

All evidence presented has been reviewed. Only testimony and evidence necessary to support this award will be summarized.

1. At the time of hearing Claimant is 42 years old, and is 5 foot 4 inches tall and weighs approximately 325 pounds. Claimant is not currently working as she is enrolled as a full-time nursing student. Claimant worked as a certified nurse assistant (CNA) for most of her working life, and began working as a CNA for Employer during November 1997. Claimant's CNA job duties included the following: transferring patients between bed to chairs, wheelchairs, and shower chairs; performing patient showers; making and changing beds; pushing beds and wheelchairs; lifting patients in bed; lifting patients after falls; lifting patients using a Hoyer lift; feeding patients; changing patients clothes; assisting patients with personal laundry; and limited patient charting. On average, Claimant was assigned 10-13 patients under her direct care, but she was also required to assist other CNA's when they required help. Other than her breaks and

lunch, Claimant testified her motion was essentially constant during her shift. During her course of employment with Employer, Claimant worked full-time or 40 hours per week, and had no other outside employment. She had no hand intensive hobbies.

1. During April 2009, Claimant sought medical care from her personal physicians after developing pain and numbness in both hands/wrists that extended to her elbows. X-rays and lab work was negative, ${ }^{1}$ and Claimant was placed on ibuprofen. Claimant returned to her physicians on June 2, 2009, after her symptoms continued. A serum rheumatoid panel and sedimentation rate was negative, Claimant was placed in occupational therapy, and a right wrist splint was provided. On June 8, 2009, Claimant's physicians noted her thyroid panel was normal. On June 10, 2009, Claimant notified Employer she believed her bilateral hand/wrist symptoms were work related, and Employer referred her to Concentra Medical for evaluation. Following his examination, the Concentra physician diagnosed bilateral arm pain, Claimant was informed her condition was not work related and was advised to seek medical care with her private physicians.
2. On August 5, 2009, Claimant sought medical care with Dr. Bruce Schlafly, a board certified hand surgeon. Claimant provided Dr. Schlafly with a description of her job duties. Following his physical examination, Dr. Schlafly ordered bilateral EMG/NCV studies performed of Claimant's upper extremities. These studies were performed by Dr. Rao on August 11, 2009. Dr. Rao concluded the studies demonstrated "mildly abnormal electrophysiological study consistent with bilateral early mild carpal tunnel syndrome (CTS), left worse than right, and left early cubital tunnel syndrome." Dr. Rao also noted the study showed no evidence of polyneuropathy, myopathy, or cervical radiculopathy. Based on Claimant's history, level of symptoms, and electrical studies, Dr. Schlafly recommended Claimant undergo a right CTS release, and to re-evaluate the need for left CTS release after the right was performed. On February 16, 2010, Dr. Schlafly opined Claimant's work with Employer "for many years as a CNA at the nursing home is the prevailing factor in the cause of her bilateral carpal tunnel syndrome, and in the need for treatment, including carpal tunnel release." During deposition testimony Dr. Schlafly testified occupational CTS relates to a combination of repetition, forces on the hands, and posture of the hands and wrists. Further, Dr. Schlafly testified "the amount of repetition required to produce a carpal tunnel syndrome decreases as the amount of forces applied increase."
3. On October 19, 2010, at Employer's request, Claimant was examined by Dr. Crandall, a board certified plastic surgeon with hand certification. Dr. Crandall noted Claimant's hand complaints, and Claimant provided Dr. Crandall with a description of her job duties. Dr. Crandall's physical examination was essentially normal, and he noted negative responses to bilateral Tinel and Phalan's testing. Following his physical examination and review of Dr. Rao's EMG/NCV studies, Dr. Crandall ordered repeat NCV studies. ${ }^{2}$ The repeat study was completed by Dr. Phillips who noted "this was a technically difficult study due to patient tolerance and movement. The primary focus was to evaluate for carpal tunnel and critical values were obtained." Dr. Phillips concluded the study "does not disclose evidence for carpal tunnel." After reviewing Claimant's repeat EMG/NVC studies, Dr. Crandall opined Claimant "does not have ulnar neuropathy or carpal tunnel syndrome." Dr. Crandall further opined assuming Claimant did have CTS, her work would not be the prevailing factor in causing the CTS as CNA work is "not at a

[^0]

[^0]: ${ }^{1}$ Claimant's serum glucose was normal, and her urinalysis was normal for glucose and ketones.

${ }^{2}$ In deposition testimony, Dr. Crandall questioned Dr. Rao's interpretation of his study.

level that can cause muscle or nerve injury." During deposition testimony, Dr. Crandall identified Claimant's major risk factors for CTS as her obesity and history of hypertension. ${ }^{3}$

1. On December 7, 2011, Claimant underwent a right CTS release performed by Dr. Schlafly. Following surgery Claimant reported an improvement in her symptoms. Dr. Schlafly then proceeded with a left CTS release on December 23, 2011, and again post-operatively Claimant reported improvement in her symptoms. Dr. Schlafly authorized Claimant to be off work following surgery from December 7, 2011 through February 5, 2012. Dr. Schlafly testified the medical treatment provided Claimant was reasonable and necessary to treat her bilateral CTS, and the charges for treatment were fair and reasonable. On April 29, 2013, Dr. Schlafly rated Claimant's disability at 25 % PPD referable to the right hand and 20 % PPD referable to the left hand. During deposition testimony Dr. Schlafly testified some physicians consider obesity to be a risk factor for development of CTS, but