Felicia Buffington v. Hubell Killark Electric

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 10-111151

Employee: Felicia Buffington

Employer: Hubell Killark Electric

Insurer: Liberty Insurance Corporation

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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 4, 2014. The award and decision of Administrative Law Judge Margaret D. Landolt, issued December 4, 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 $9^{\text {th }}$ day of April 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Felicia Buffington

Injury No.: 10-111151

Dependents: N/A

Employer: Hubell Killark Electric

Additional Party: N/A

Insumer: Liberty Insurance Corporation

Hearing Date: September 9, 2014

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

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: November 9, 2010
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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? 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: Employee used her upper extremities in a repetitive fashion.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Upper extremities and cervical spine
14. Nature and extent of any permanent disability: 15 % PPD of the body as a whole - cervical spine; 10 % PPD of each elbow; 20 % PPD of each wrist with a 10 % loading factor.
15. Compensation paid to-date for temporary disability: $\ 1,025.41
16. Value necessary medical aid paid to date by employer/insurer? $\ 23,453.15

1. Value necessary medical aid not furnished by employer/insurer? $\ 39,245.95
2. Employee's average weekly wages: Sufficient to justify maximum rates
3. Weekly compensation rate: $\$ 799.11 / \ 418.58
4. Method wages computation: By agreement

1. Amount of compensation payable:

Unpaid medical expenses: $\ 39,245.95

179 weeks of permanent partial disability from Employer $\ 74,925.82

4 weeks of disfigurement from Employer 1,674.32

1. Second Injury Fund liability: No

TOTAL: $\ 115,846.09

1. Future requirements awarded: None

Said payments to begin 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: Mr. Frank J. Niesen Jr.

Employee: Felicia Buffington

Departments: N/A

Employer: Hubell Killark Electric

Additional Party: N/A

Insurer: Liberty Insurance Corporation

Injury No.: 10-111151

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

A hearing was held on September 9, 2014 at the Division of Workers' Compensation in the City of St. Louis, Missouri. Felicia Buffington ("Claimant") was represented by Mr. Frank J. Niesen, Jr. Hubell Killark Electric ("Employer") and its insurer Liberty Insurance Company were represented by Mr. Henry Herschel. Mr. Niesen requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about November 9, 2010 Claimant sustained an occupational disease arising out of and in the course of employment; Claimant was an employee of Employer; venue is proper in the City of St. Louis, Missouri; Employer received proper notice of the injury; the claim was timely filed; Claimant was earning an average weekly wage sufficient to entitle her to the maximum rates of compensation of $\ 799.11 for Temporary Total Disability ("TTD") benefits and $\ 418.58 for Permanent Partial Disability ("PPD") benefits; and Employer paid TTD benefits of $\ 1,025.41 and medical benefits of $\ 23,453.15.

The issues to be determined are whether Claimant sustained an occupational disease arising out of and in the course of employment with respect to her elbows and cervical spine; medical causation with respect to her elbows and cervical spine; liability of Employer for past medical expenses of $\ 39,245.95; liability of Employer to provide future medical treatment; and nature and extent of PPD.

Claimant is a 43 year old woman who began working for Employer in September 2007 assembling light fixtures. Employer is in the business of manufacturing industrial lights and receptacles that are used in oil refineries and wet areas. Before Claimant began working for Employer she had no problems or symptoms in her hands, arms, or neck. Claimant worked ten hour days, five days a week. The fixtures came in kits, and Claimant assembled and wired them by using hand tools such as screw drivers, wire clippers, pliers, hammers, and ratchets. She also used vibratory hand tools including power screwdrivers and air guns. Claimant was required to lift different weights from 5 to 80 pounds or more, sometimes by herself. Claimant is 5'2", and weighs 120 pounds.

Employer imposed strict quotas. Claimant worked at a waist high table. She pushed, pulled, lifted, reached, carried, gripped, and squeezed with her arms extended away from her body at about chest height. She typically placed 10 wires per light, and each wire cable had 2 to 4 individual wires inside of it, so she placed wire nuts on anywhere from 20 to 40 wires per light. Depending on whether she worked alone or with someone, or if she worked 8 or 10 hours a day, she wired form 64 to 160 lights a day. Consequently, she wired anywhere from 640 to 6,400 wire nuts per day. Each nut required several twists of her wrists then one final hard twist. Claimant's hands and arms were always extended in front of her or above her head so she could pull down the guns she used. Her head was always looking down when she was assembling the light fixtures.

After working for Employer for about three years Claimant started to notice aching and swelling in her hands and fingers, and her hands started waking her up at night. Claimant repeatedly asked her supervisor Ed Colley, as well as other company representatives, for medical treatment, but none was offered. In 2009, Claimant was at a party, and a man fell on her and broke some of her ribs. While Claimant was treating for this injury with Dr. Padda, she mentioned she was having problems with her arms, hands, and neck. On October 20, 2010 Dr. Padda noted her hand symptoms, diagnosed carpal tunnel syndrome and administered injections.

At approximately the same time Claimant's hand symptoms began, she started to experience pain in her neck that radiated along her shoulder girdle into her left medial elbow. Dr. Padda ordered an MRI of her cervical spine which was obtained on November 2, 2010, and revealed a right C5-6 protrusion in the lateral recess where the C6 root exited, and caused some cord compression and stenosis, a bulge at C6-7 with bilateral facet osteoarthritis worse on the right, mild facet osteoarthritis on the right at C3-4 and C4-5, and bilateral facet osteoarthritis at C7-T1. Dr. Padda also ordered an EMG/NCS of the upper extremities which was performed on November 9, 2010, and interpreted as consistent with moderate bilateral median nerve entrapment, and a proximal lesion of the C5-6 root. Dr. Padda diagnosed carpal tunnel syndrome, and on November 22, 2010 scheduled cervical epidural steroid injections. The first injection was performed on the right at C5-6 and C6-7 on December 7, 2010, and bilateral facet joint injections from C5-T2 were administered on January 8, 2011. Dr. Padda administered a left elbow medial epicondyle injection on January 24, 2011. Due to persistent symptoms, Dr. Padda recommended surgery.

On April 7, 2011, Dr. Rotman evaluated Claimant, and noted complaints of bilateral hand swelling, tingling, aching, reduced strength in her right hand, burning pain in her elbows, and awakening at night. Dr. Rotman noted she worked as a job assembler and wired lights since $2008^{1}$, noted she was taking Dilaudid and Neurontin for pain control, reviewed the EMG/NCS, and noted the injections provided minimal relief. Dr. Rotman noted a history of a motor vehicle accident which caused some neck pain into her right shoulder. ${ }^{2}$ Dr. Rotman diagnosed bilateral carpal tunnel syndrome and recommended surgery, and also recommended traction and physical therapy for her neck. He opined there may be a work related component to her carpal tunnel condition based upon her history of repetitive hand intensive activities. He did not see any other risk factors.

[^0]

[^0]: ${ }^{1} Claimant started working for Employer in 2007.

{ }^{2}$ Claimant testified she was never in a motor vehicle accident.

On April 20, 2011, Employer sent Claimant to Concentra, and she was examined by Dr. Cantanzaro, who noted pain in her bilateral posterior elbow, and pain and weakness in her ulnar volar wrists, hands, and forearms. Dr. Cantanzaro diagnosed possible cubital tunnel syndrome and possible carpal tunnel syndrome, requested an updated EMG/NCS, but allowed her to work at regular duty. Dr. Cantanzaro opined work was the prevailing factor in Claimant's injury.

Dr. Evan Crandall reviewed a videotape of Claimant's work activities on July 13, 2011, and opined the activities were hand intensive and a potential cause of tendonitis and carpal tunnel syndrome. Dr. Crandall examined Claimant on November 9, 2011, noted symptoms in her hands since November 2010, diagnosed bilateral carpal tunnel syndrome and left deQuervain's syndrome, and recommended surgery.

Dr. Phillips performed an updated EMG/NCS of Claimant's upper extremities on December 19, 2011 and noted severe right with moderate left carpal tunnel syndrome, borderline left cubital tunnel syndrome, cervical radiculopathy with mild myelopathy, and tendonitis at her left medial and lateral epicondyles. Dr. Crandall reviewed that study on December 1, 2011, and recommended surgery.

On January 26, 2012, Dr. Crandall performed a left open carpal tunnel release and a deQuervain's release. Postoperatively Dr. Crandall recommended a splint, physical therapy, and light duty. Dr. Padda injected her right carpal tunnel again on February 15, 2012.

On February 16, 2012 Dr. Crandall performed a right open carpal tunnel release. Claimant developed a post-operative infection that required hospitalization. She was eventually discharged with an IV. After recovering from her infection, she underwent physical therapy, and was released to work full duty on April 23, 2012. Dr. Crandall found Claimant to be at maximum medical improvement on April 23, 2012.

Dr. Crandall testified on behalf of Employer. Dr. Crandall testified Claimant's original nerve conduction study was normal with respect to the ulnar nerve, and the repeat nerve conduction study showed a borderline finding on her left ulnar nerve, but was still within the limits of normal, and did not explain her symptoms. He testified she had some cervical neck disease which could also cause neurologic symptoms. He testified her symptoms were explained by problems other than an ulnar neuropathy of the elbows. Dr. Crandall testified he did not diagnose Claimant with a condition of the elbow, but diagnosed her with carpal tunnel syndrome and deQuervain's syndrome. He testified elbow surgery was not appropriate treatment, and would make her symptoms worse. He testified the values found on the nerve conduction study did not warrant surgery on her elbows.

Dr. Crandall testified Claimant's work at Employer was hand intensive, and opined her carpal tunnel syndrome is work related. He found Claimant sustained 7\% PPD of the right wrist as a result of the carpal tunnel syndrome and 8 % PPD of the left wrist as a result of the carpal tunnel syndrome and deQuervain's syndrome. Dr. Crandall characterized Claimant's carpal tunnel syndrome on the right as being severe, and moderately severe on the left. Dr. Crandall testified Claimant's work activity could cause ulnar neuropathy, if she had it, because the work was also intensive for the elbow, and had the risks and hazards to be able to cause a condition at

the elbow, but he didn't think she had a condition at the elbow that warranted disability or surgery.

Dr. Daniel Kitchens, a neurosurgeon, examined Claimant on December 4, 2013, prepared a report, and testified on behalf of Employer. Dr. Kitchens testified Claimant had a disc herniation at C5-6 based upon the MRI report from 2010, and the herniation was not traumatic, degenerative, or as a result of aging or some unknown process. Dr. Kitchens testified with a reasonable probability of medical certainty Claimant's disc herniation was not work related. Dr. Kitchens testified lifting items that were essentially more than half of her body weight could not have put enough stress on her cervical spine to have caused it to herniate. He further testified there would have to be a specific incident for there to be a workers' compensation injury in the form of a cervical disc herniation, and repetitive activity cannot cause a disc to rupture. He testified there would have to be a specific lifting incident or a specific blow to the spine to cause a disc herniation at the cervical, thoracic, or lumbar area.

Dr. Kitchens acknowledged Claimant had some objective evidence of abnormality in her neck such as a herniated disc, and EMG studies that demonstrated she was having nerve problems in her neck, but felt she had no disability in her neck. He testified the epidural steroid injection Claimant had in her neck was an appropriate treatment for a symptomatic cervical herniation.

Dr. David Volarich examined Claimant on June 15, 2013, prepared a report, and testified on behalf of Claimant. As a result of the November 9, 2010 injury Dr. Volarich diagnosed overuse syndrome right upper extremity causing median nerve entrapment at the wrist (carpal tunnel syndrome) status post open carpal tunnel release; overuse left upper extremity causing median nerve entrapment at the wrist (carpal tunnel syndrome and deQuervain's tenosynovitis) status post open carpal tunnel release and release of the $1^{\text {st }}$ dorsal compartment; overuse syndrome right upper extremity at the elbow causing medial epicondylitis and mild ulnar neuritis status post non operative treatment; overuse syndrome left upper extremity at the elbow causing medial epicondylitis, lateral epicondylitis, and mild ulnar neuritis status post non operative treatment; and repetitive lifting causing cervical radiculopathy right greater than left secondary to disc protrusion centrally and to the right at C5-6 and diffuse bulging right greater than left at C67 status post non operative treatment.

Dr. Volarich explained the mechanism of injury. He testified when performing her job Claimant had to lift with her arms extended away from her body, lifting weights up to 75 pounds, which is over half her body weight. Lifting those weights in an awkward position put significant stress on the cervical spine and upper extremities, and it is a reason to develop radicular symptoms and disc abnormalities in the neck. He testified having her head in that position probably causes increased interdiscal pressure at those levels, particularly when lifting, and using your hands forcefully will cause the disc to bulge, and cause the disc to eventually herniate with enough repetitive stress to it.

Dr. Volarich opined as a direct result of the injuries sustained leading up to November 9, 2010 while in the employ of Employer, the following industrial disabilities exist that are a hindrance or obstacle to her employment or re-employment: 35 % PPD of the right wrist due to the carpal tunnel syndrome; 35 % PPD of the left wrist due to the carpal tunnel syndrome; 20 %

PPD of the left forearm due to the deQuervain's tenosynovitis; 20\% PPD of the right elbow due to the medial epincondylitis and mild ulnar neuropathy; 25 % PPD of the left elbow due to the medial and lateral epincondylitis and mild ulnar neuropathy; and 30 % PPD of the body as a whole at the cervical spine due to the disc protrusion at C5-6 and bulge at C-7.

Dr. Volarich testified future medical care should be made available to Claimant, including narcotic and non-narcotic medication and physical therapy, and Claimant may need epidural steroid injections, nerve root blocks and similar treatments for her cervical radicular symptoms.

Claimant continues to have problems with her hands, elbows, and neck as a result of her work injury of November 9, 2010. Claimant lifts less. Her neck is stiff so it is harder for her to drive. Her elbows and hands ache and swell. She no longer does yard work or gardening. Buttoning and zipping her pants is a problem. She was fired by Employer and eventually found a job with Baldor Electric in 2013 as a machine operator, but had to quit that job because it was too hard on her hands and arms.

Claimant now works as a bartender and waitress. She is not able to open jars and beer bottles with her hands and fingers because of loss of strength and tingling. She uses a bottle opener. She cannot carry trays because they are too heavy. She has constant pain in her elbows and neck. The pinching never goes away. If she turns her head it causes pain in both sides of her neck. She has pain, aching, and swelling into her hands and arms, and takes over the counter medications up to three to four times a day. She incurred bills from Dr. Pada and Dr. Rotman. She has scarring on the palms of her hands and wrists.

Based upon a comprehensive review of the evidence, my observations of Claimant at hearing, and the application of Missouri law, I find:

Claimant met her burden of proving her cervical condition is medically causally related to the repetitive work Claimant performed at Employer. Dr. Volarich's opinion that Claimant's work which involved lifting weights in excess of half of her body weight and working with her hands extended and in awkward positions was the cause of her herniated disc was well reasoned. His explanation was sound. On the other hand, I do not find Dr. Kitchens opinion that Claimant's herniated disc could not have been caused by her work because there was no singular lifting incident or trauma to be persuasive.

I further find Claimant's elbow condition is related to her employment. I find Dr. Volarich's opinion on this point to be persuasive. Dr. Crandall testified Claimant's repetitive work activity could cause ulnar neuropathy, if she had it, because the work was also intensive for the elbow, and had the risks and hazards to be able to cause a condition at the elbow, but he didn't think she had a condition at the elbow that warranted disability or surgery. Dr. Phillips performed an updated EMG/NCS of Claimant's upper extremities on December 19, 2011 and noted borderline left cubital tunnel syndrome, cervical radiculopathy with mild myelopathy, and tendonitis at her left medial and lateral epicondyles. Dr. Volarich's opinion is supported by objective medical evidence.

Although Claimant complained to her supervisor about her medical condition, Employer did not send Claimant to Concentra for treatment until April 20, 2011. Dr. Cantanzaro's opinions and suggestions were not acted upon until Claimant was sent to Dr. Crandall on November 9, 2011. Even after that, at no point did Employer authorize or provide treatment for Claimant's cervical condition. Pursuant to Section 287.140.1 RSMo, the Employer is required to provide medical treatment for work injuries. When the Employer fails to provide that treatment, the Employee may go to her own medical provider and have her treatment paid for by the Employer. Employer is liable for the following medical bills: Center for Interventional Pain: $\ 34,095.70; Dr. Rotman: $\ 285.00; Kirkwood MRI and Imaging: $\ 1,710.00; and Hampton Open MRI: $\ 3,155.25.

Claimant is not entitled to future medical care and treatment. Dr. Volarich's opinion that Claimant might benefit from future medical treatment does not meet the standard of reasonable probability required by statute to award future medical benefits.

I find Claimant sustained PPD of 15 % of the cervical spine; 10 % PPD of each elbow; and 20 % PPD of each wrist with a loading factor of 10 %. I further find Claimant is entitled to 4 weeks of disfigurement due to the scarring from her surgeries.

Claimant met her burden of proving her carpal tunnel, elbow, and cervical spine conditions are medically and causally related to her work for Employer. She is entitled to 179 weeks of permanent partial disability and 4 weeks disfigurement for a total of 183 weeks of compensation at the weekly rate of $\ 418.58 or $\ 76,600.14. Claimant is also entitled to reimbursement for medical expenses of $\ 39,245.95. Claimant is awarded a total of $\ 115,846.09.

This award is subject to an attorney's lien of 25 % in favor of Claimant's attorney, Mr. Frank Niesen.

Made by: $\qquad$

MARGARET D. LANDOLT

Administrative Law Judge

Division of Workers' Compensation