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

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[^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 Claimant had medical risk factors for her CTS, ulnar neuropathy, and trigger thumb, which included her age, gender, high body mass index, high blood pressure and surgical menopause. Based on Dr. Crandall's opinion, Employer declined to authorize treatment. Claimant was not happy with that decision and told Employer she would go to her own doctor.

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[^0]: ${ }^{3}$ The record contains these apparently contradictory references to the right and left extremities.

${ }^{4}$ Claimant testified she was treated at Concentra, but the records are from BarnesCare.

On November 7, 2013, Claimant came under the care of a physician of her own choice, Dr. Goldfarb. He recorded complaints of right hand swelling, mild numbness and tingling, and thumb pain right worse than left. Claimant's symptoms were present for several months, and in her opinion are related to typing and using a mouse all day. The exam was significant for negative Tinel's, positive Phalen's. His Impression/Diagnosis was trigger thumb, primarily right side with mild CTS, and the plan was to proceed with right trigger thumb release only.

Dr. Goldfarb discussed the relationship of work to her diagnoses, and although "excessively high keystrokes" can be related to the development of CTS, he did not believe work is the prevailing factor for the development of Claimant's CTS or trigger thumb. On causation, Dr. Goldfarb opined. "I do not believe work is the prevailing factor for the development of her carpal tunnel syndrome. Trigger digits and trigger thumb have been less studied in the literature but given the state laws of Missouri, I cannot relate it either as the prevailing factor." Dr. Goldfarb performed right trigger thumb release procedure on December 11, 2013 .

Claimant recovered well from her thumb surgery and returned to work in January 2014, although she soon thereafter missed time while she successfully battled breast cancer. During this time, Employer performed ergonomic adjustments to her work station, and she now has fewer problems.

Claimant has high blood pressure and had a hysterectomy in 2009. She has no autoimmune disease or thyroid problems, but is on several medications for high blood pressure and for her status as a cancer survivor. Claimant is 5'5", right handed and has weighed in the range of 180-190 pounds at all relevant times. Claimant testified she still wears braces at night and takes Ibuprofen and Flexeril as needed. She wakes from pain 2-3 times a week. She currently does not want surgery. Claimant uses her stylus to text on her cell phone. She just recently got a home computer and does not keyboard outside of work. Claimant does not pick up her grandkids for fear of dropping them and has trouble opening jars. Her right hand is worse than the left and she has swelling 2-3 times a week.

Thomas F. Musich, M.D., a family practitioner, examined Claimant at her counsel's request on June 17, 2014 and gave his deposition October 9, 2015. Dr. Musich took a history of injury consistent with the record and reviewed prior medical records, including those of Dr. Goldfarb. He noted the keyboarding, calculator and mouse. On physical exam, Dr. Musich noted Phelan's Test as positive on the right and negative on the left. Tinel's was positive bilaterally. Dr. Musich felt that the acute bilateral hand symptomology was the prevailing result of her work activities at Employer and assigned a 25\% PPD to the right wrist and 20\% PPD to the left wrist. Dr. Musich noted Claimant "does not participate in any secondary job activities, she does not suffer from rheumatoid arthritis, thyroid disease, or diabetes, and there is no family history of trigger or nerve entrapment at the carpal tunnel levels. [She] adamantly denies any history of hand intensive hobbies."

In addition to examining Claimant in the course of her treatment, Dr. Crandall testified by deposition on the issue of causation on Employer's behalf. As is more fully set forth above, he

concluded Claimant did not have enough keystrokes in a given work day to meet the threshold for establishing a case of work related carpal tunnel.

Dr. Goldfarb, a doctor who provided Claimant with treatment outside the workers' compensation realm, opined Claimant's work was not intensive enough to cause either the trigger thumb or CTS. He had a lengthy discussion with Claimant on the topic, and based on information she provided concluded work was not the prevailing factor for the development of her CTS or trigger thumb conditions. He properly applied the "prevailing factor" standard mandated by the Act.

Claimant seeks to recover compensation for CTS, ulnar neuropathy and trigger thumb. Carpal tunnel syndrome is a known occupational disease. Weniger v. Pulitzer Pub. Co., 860 S.W.2d 359, 360 (Mo. App. 1993); Cook v. Missouri Highway \& Transp. Comm'n, No. SD 34290, 2016 WL 6236636, at 5 (Mo. Ct. App. Oct. 25, 2016). However, mere diagnosis of the condition is not sufficient to render it compensable under the Act. "An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability." § 287.067.3. "The 'prevailing factor' is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability." Id. The burden of proving all the essential elements of the claim and establishing a causal connection between the accident and the injury rests on the claimant. Moreland v. Eagle Picher Techs., LLC, 362 S.W.3d 491, 504 (Mo. Ct. App. 2012).

The outcome of this case turns on the expert medical evidence. "The question of causation [is] one for medical testimony, without which a finding for claimant would be based on mere conjecture and speculation and not on substantial evidence." Vickers v. Missouri Dep't of Pub. Safety, 283 S.W.3d 287, 292 (Mo. Ct. App. 2009). Claimant relies on the testimony of Dr. Musich, a family practitioner who performs IMEs in workers' compensation cases almost exclusively for claimants. He considered the job analysis report and Claimant's self-reported activities, but had no other information regarding Claimant's work, in particular a key-stroke count. He did not address her current risk factors. He reached the conclusion Claimant had a compensable claim based on very little analysis.

On the other end of the spectrum, Dr. Crandall, who unlike Dr. Musich has experience operating on upper extremity injuries, concluded Claimant does not have a work-related condition. He noted she had certain non-vocational risk factors, but relied mainly on his conclusion she did not have enough key-strokes in her work to make the condition compensable. He felt customer service representatives never have continuous typing.

One of the problems in this case is the lack of convincing evidence on the issue of the number of keystrokes in a typical day. Claimant either took 20 to 30,70 to 90 , or up to 100 calls per day, each with some non specific data entry involved. She had breaks from typing between calls. Her own description of her job indicated each call minimally involved typing the customer's name, description of the problem, and the details of the discussion. Despite a job analysis, there was no keystroke analysis, and Claimant's own description does not support a finding of excessively high keystrokes.

I am not persuaded by either Dr. Musich or Dr. Crandall alone. The former reaches the expected opinion with little or no analysis, and relies on possibly faulty information regarding the extent of Claimant's work. His opinion cannot form a sufficient basis on which to award benefits. The latter stubbornly holds to the proposition a worker must reach a magical number of keystrokes before the work-related disease germinates. Without a credible medical expert, Claimant's case fails. See Seifner v. Treasurer of State-Custodian of Second Injury Fund, 362 S.W.3d 59, 67 (Mo. Ct. App. 2012), wherein the Commission found the claimant's expert was not credible and that due to the lack of credible medical evidence on the issue of causation, it could not find in claimant's favor. See also Bowman v. Cent. Missouri Aviation, Inc., No. WD 79276, 2016 WL 4440296, at 6 (Mo. Ct. App. Aug. 23, 2016), as corrected (Aug. 31, 2016) (Without [his medical expert]'s opinion, [the claimant] simply did not carry his burden of proving that the work incident was the prevailing factor in causing his medical condition).

Claimant's case would fail even if Dr. Musich's opinion were not totally discounted because there is a third expert whose opinion is superior to either expert. Dr. Goldfarb, a physician chosen by Claimant to evaluate and treat, was unable to state Claimant's work was the prevailing factor in her conditions (CTS and trigger thumb) and disability, as required by the Act. He and Claimant had a lengthy discussion regarding causation, and provided her with literature on the topic. He also properly recited the "prevailing factor" standard applicable in Missouri. Because he is a neutral player chosen by Claimant who gave the question serious, analytical consideration and applied the proper standard, I am persuaded by Dr. Goldfarb on causation. And because his conclusion is consistent, I find Dr. Crandall's opinion is persuasive when coupled with Dr. Goldfarb's.

I find Claimant had failed to meet her burden of proving she has a work-related condition. While I do not necessarily believe there is a magic number of key strokes necessary to cause CTS or trigger thumb, Claimant has not convinced me she used her hands in a sufficiently repetitive manner to cause her problems. I do not find Claimant's occupational exposure was the prevailing factor in causing her medical condition or disability.

Claimant has failed meet her burden to prove causation under the Act. All other issues are moot. The claim is denied.