Yolanda Harris v. Union Electric Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 13-083161

Employee: Yolanda Harris

Employer: Union Electric Company

Insurer: Self-Insured

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 November 10, 2016, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued November 10, 2016, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 15^{\text {th }} \qquad$ day of February 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Hearing Date: August 16, 2016

Checked by: KOB

1. Are any benefits awarded herein? No
2. Was the occupational disease compensable under Chapter 287? No
3. Was there incident of occupational disease under the Law? No
4. Date of onset of occupational disease: July 31, 2013
5. State location where occupational disease was contracted: St. Louis
6. Was above employee in employ of above employer at time of alleged 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? No
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 occupational disease contracted:

Claimant used a computer, mouse and other data input devices as a customer service representative.

1. Did accident or occupational disease cause death? No
2. Part(s) of body injured by occupational disease: N/A
3. Nature and extent of any permanent disability: N/A
4. Compensation paid to-date for temporary disability: N/A
5. Value necessary medical aid paid to date by employer/insurer? $\ 288.84

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 1,204.42
3. Weekly compensation rate: $\$ 802.94 / \ 433.58
4. Method wages computation: stipulation

1. Amount of compensation payable: $\ 0.00
2. Second Injury Fund liability: Dismissed

TOTAL:

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 hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Frank Niesen

The matter of Yolanda Harris ("Claimant") proceeded to hearing to determine whether Claimant contracted an occupational disease. Attorney Frank Niesen Jr. represented Claimant. Attorney Patrick Patterson represented Union Electric ("Employer"), which is self insured.

The parties stipulated that on or about July 2013, Claimant was an employee of Employer subject to the Missouri Workers' Compensation Act ("the Act"). Venue is proper in the city of Saint Louis, Employer received proper notice, and Claimant filed the claim within the time required by the Act. The parties further agreed at the relevant time Claimant earned an average weekly wage of $\ 1,204.42 resulting in applicable rates of compensation of $\ 802.94 for temporary total disability ("TTD") benefits and $\ 433.58 for permanent partial disability ("PPD") benefits. Employer paid no TTD, but did pay medical benefits totaling $\ 288.84.

The issues to be determined are: 1) Did Claimant contract an occupational disease arising out of and in the course of employment; 2) Is Claimant's work the medical cause of her condition; 3) Is Employer responsible for future medical care; and 4) What is the nature and extent of Claimant's partial disability?

The following exhibits were marked and admitted into evidence. All objections are now overruled.

1. Deposition of Dr. Thomas F. Musich M.D.
2. Metro Imaging
3. ESSE Health
4. Rehab One Network
5. William Strecker, M.D.
6. BarnesCare

A. Deposition of Evan Crandall, M.D.

B. Records of Washington University Physicians ${ }^{1}$

C. ENG Nerve Conduction Test/Dr. Phillips

Claimant is a 53 year old woman who attended one year of college and has spent her vocational life working in clerical positions. In 2007, Claimant began working for Employer, initially as a telephone clerk taking non-billing calls. Such calls involved customers reporting lights out or wires down, but did not deal with any account-related issues. In 2008, Claimant became a customer service representative. As a customer service representative, Claimant worked from 8:30 to 5:00 ${ }^{2}$. During any given work day, Claimant had two 15 minute breaks, a half hour for lunch, and 20 minutes personal time. Claimant worked forced overtime as needed, which was often related to weather.

Claimant described the nature of her duties. Her job involved taking inbound calls from customers regarding bills and to a lesser extent lights-out inquires. She answered questions and gave safety instructions as required. Claimant testified she took calls all day long. She thought a typical day would have 70-90 calls per day, with Monday being the heaviest day, and more calls after storms. She was busy and seldom had any downtime. The typical call lasted from 1 to 5 minutes, although some could last as long as a half an hour. Each call involved some degree of typing. She used a headset, mouse and calculator. Minimal entry per call involved typing the customer's name, description of the problem, and the details of the discussion. Claimant used the mouse to navigate through her computer screens and the separate calculator on approximately 80 % of her calls.

By way of contrast, Kenya Grinnett, Claimant's supervisor, testified for Employer regarding Claimant's duties. She agreed Claimant used a headset, keyboard, mouse, and computer to perform her job. She also agreed Claimant worked forty hours per week with possible overtime. She took billing questions, trouble/ outage calls, electrical work, and move calls, and made computer notes after the call ended. However, Ms. Grinnett said the number of calls averaged 20-30 per day with an average length of time of 5 minutes and possible breaks inbetween. She testified Claimant took commercial calls which had a lower volume than the residential calls, and once or twice a week the business center representatives did not take calls at all but had a "correspondence day" which involved computer entry paperwork.

Claimant saw her primary care physician, Dr. Adams, in February 2013 for problems with her right thumb. The symptoms involved her hands locking up, dropping things, numbness, tingling, and being awoken at night. Dr. Adam's records noted patient presents with "right hand

[^0]

[^0]: ${ }^{1}$ Claimant raised objections to the admission of Dr. Goldfarb's records to the extent he addresses causation, although no argument in favor was including in the post trial brief. Those objections are overruled. Claimant testified Dr. Goldfarb made comments to her regarding causation, making what he actually wrote on the topic relevant and admissible. When a party opens the door to a topic, the admission of rebuttal evidence on that topic becomes permissible. Howard v. City of Kansas City, 332 S.W.3d 772, 785 (Mo. 2011).

${ }^{2}$ When Claimant was initially hired she worked the 11:00 to 7:30 shift for a year.

pain" with a history of "about 1 week of pain at base of $\mathrm{L}^{3}$ thumb." The exam showed tender base of left thumb, and the diagnosis was joint pain, likely DJD.

On April 23, 2013, Claimant saw Dr. Strecker, who noted Claimant had been having pain and stiffness in her left thumb which has progressed to the right thumb and is worse in the morning. She complained it will catch on her. The diagnosis was stenosing tenosynovitis. He started treatment with medication and a splint, but Claimant never returned for follow up.

Claimant then told Christina, her supervisor, about her hand problems. Employer sent Claimant to BarnesCare ${ }^{4}$ on August 28, 2013. She complained her hands were swollen, locking and painful and she started noticing pain and locking of thumb about 6 weeks prior. Symptoms were worse on the right and woke her at night. The exam was significant for positive Phalen's and tenderness to palpation at base of thumbs. The diagnosis was acquired trigger finger/thumb bilaterally, and unspecified neuralgia. BarnesCare referred Claimant for testing to rule out CTS.

On October 16, 2013, Claimant came under the care of Dr. R. Evan Crandall. His evaluation included review of the job analysis report, Claimant's work history, symptoms, medical history, description of her job, a generalized description of her lifting, typing, mouse, hand-writing and posture had been performed. Claimant reported she would take up to 100 calls per day and talk to customers about bills, payments and problems when their lights would go out. She did not know how many key strokes or pages she typed in a day, but she felt work caused her symptoms.

The nerve conduction studies performed by Dr. Phillips were positive for mild right CTS, very mild left CTS, and mild right ulnar neuropathy. Specifically the nerve testing showed " $[t]$ here is evidence for very mild demyelinative median sensory neuropathy across the left carpal tunnel. There is mild demyelinative ulnar motor dueropathy across the right elbow with sensory axonal involvement and this makes the lesion more significant." Dr. Crandall recommended conservative treatment, noting he did not recommend surgery for patients with minor values on their nerve conduction studies. He recommended a cortisone injection for the right trigger thumb, or a trigger thumb release if the symptoms did not resolve.

Based upon the history provided, he did not believe Claimant's work was the prevailing factor in the cause of her conditions of ulnar neuropathy, carpal tunnel syndrome ("CTS"), and trigger thumb. He has analyzed jobs of customer service representatives in the past, and did not believe those jobs were hand-intensive. He noted keyboarding has no association with cubital tunnel syndrome, and although high-level keyboard work could cause CTS, it has to exceed the OSHA guidelines of 4 hours of continuous typing per day. According to Dr. Crandall, customer service representatives never have continuous typing. He noted to meet the NIOSH guidelines, one would have to exceed 15,000 keystrokes per hour, and he did not believe Claimant would have that volume of typing activity.

Dr. Crandall noted