Lynette Lammert v. Festus R-VI School District

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 16-006646

Employee: Lynette Lammert

Employer: Festus R-VI School District

Insurer: Missouri United School Insurance Company

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 briefs, and considered the whole record. Pursuant to $\S 286.090$ RSMo, the Commission reverses the award and decision of the administrative law judge.

The parties asked the administrative law judge to resolve the following issues: (1) occupational disease; (2) causation; (3) liability for past medical expenses; (4) future medical care; and (5) rate of compensation.

The administrative law judge concluded as follows: (1) that the evidence of record compels an award in favor of the defense, because employee did not produce a preponderance of the evidence to show that her working conditions were more likely than not to be the prevailing factor causing her bilateral carpal tunnel syndrome; (2) employee's average weekly wage was $\ 539.74; (3) if the claim was compensable, employer would be liable to employee for $\ 666.00 as reimbursement of past medical bills; and (4) if employee sustained injury by way of a compensable occupational disease, substantial and competent evidence exists to establish that employee requires further medical care to cure and relieve the effects of the injury.

Employee filed a timely application for review alleging the administrative law judge erred: (1) in finding that employee did not produce a preponderance of evidence which proved that her work was the prevailing factor in causing her carpal tunnel syndrome; and (2) in his calculation of employee's average weekly wage. In her brief filed subsequently with the Commission, employee withdrew her allegation that the administrative law judge erred with respect to the issue of the appropriate rate of compensation.

Employer also filed a timely application for review alleging the administrative law judge erred in calculating employee's average weekly wage.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

Employee started working for employer as a bus driver on May 31, 2006. At the time of hearing in this matter, she remained employed in this capacity. Employee works 5 days per week, and typically works $51 / 2$ hours per day. Employee's various routes involve

driving between 30 and 40 miles per day. Employee also drove buses for field trips, averaging one or two per week. These trips could involve significantly longer mileage and work hours.

Before 2015, when employee began driving newer buses, employee's work of driving the school bus included the following physical duties and exertions involving the upper extremities: gripping and manipulating the steering wheel with both hands; flipping a switch with the left hand to activate emergency flashers at each stop; engaging the emergency brake at each stop by pushing down on a lever under the dash, then disengaging the brake by pulling up on the lever; opening and closing the manual door by grabbing a metal handle with the right hand, pushing down with the thumb on a button on top of the handle, lifting the handle to clear a catch, and then pulling the lever approximately 10 to 12 inches inward, toward the aisle of the bus. Employee also cleaned the bus, which involved sweeping it out every few days.

At some point in early 2015, employee began driving newer buses, in which she is no longer required to open the door manually; instead, she simply pushes a button on the steering wheel to open or close the door. Setting the parking brake is also much easier on the newer buses, as employee need only push a button on the dashboard to set the brake, and pull up on the button to release it.

Gripping and manipulating the steering wheel while the bus is in motion involves considerable vibration into both upper extremities. The older buses were worse in this regard. With the newer buses, employee continues to experience vibration, but mostly in her hands and not all the way up into her arms.

Beginning in mid-to-late 2015, employee began to notice that she was waking up multiple times per night due to her hands falling asleep. She also noticed this sensation while driving. She had never experienced similar symptoms before. On January 12, 2016, employee saw her primary care physician, Dr. Amie Nash, who prescribed Mobic and ordered nerve conduction studies, which revealed moderately severe bilateral carpal tunnel syndrome. Employee continues to experience numbness, tingling, and pain in both hands and wrists. Her symptoms are worsened with driving, particularly her work activity of driving the bus.

Employee's date of birth is March 4, 1965; she was 50 years of age when her symptoms first manifested in mid-to-late 2015. Employee is not diabetic and has never been a smoker. She takes medication for high blood pressure. Both of the testifying medical experts agreed that they would diagnose employee with morbid obesity.

Employee presents the expert medical opinion of Dr. Bruce Schlafly, an orthopedic surgeon specializing in injuries and diseases affecting the hands and upper extremities. Dr. Schlafly acknowledged that employee exhibits a number of factors that are medically recognized to correlate with the development of carpal tunnel syndrome, such as her age, gender, and obesity. Nevertheless, Dr. Schlafly believes employee's

Injury No.: 16-006646

Employee: Lynette Lammert

- 3 -

repetitive work with her hands as a school bus driver for employer is the prevailing factor causing her to suffer the resulting medical condition of bilateral carpal tunnel syndrome. Dr. Schlafly explained that employee's work duties over the years created friction involving the flexor tendons in the carpal tunnel, when in turn led to median nerve irritation and compression. Dr. Schlafly recommends that employee undergo surgery in the form of bilateral carpal tunnel releases to cure and relieve the effects of this condition.

Dr. Schlafly acknowledged that employee's work duties changed somewhat when she began driving the newer buses in early 2015, and that employee's symptoms first manifested after this change. However, he persuasively testified this change did not negate the causative impact of employee's many years driving the older buses, with their more hand-intensive requirements, such as the manual doors.

Employer, on the other hand, presents the expert medical opinion of Dr. Evan Crandall, a plastic surgeon specializing in the upper extremities. Dr. Crandall believes that employee's duties as a bus driver cannot possibly have caused or even contributed to carpal tunnel syndrome, because, in Dr. Crandall's opinion, driving a car or bus can never cause carpal tunnel syndrome. Remarkably, Dr. Crandall went so far as to assert that it wouldn't matter to him if employee was driving 700 miles per day. Instead, Dr. Crandall believes employee's risk factors, considered together, are the prevailing factor causing her to suffer carpal tunnel syndrome, and that her obesity is the most severe cause. With regard to the issue of future medical treatment, Dr. Crandall agrees employee needs surgery to cure and relieve the effects of her bilateral carpal tunnel syndrome.

After careful consideration, we find Dr. Schlafly to be generally more credible, and his causation opinion more persuasive in this matter, than Dr. Crandall and his contrary opinion that employee's work cannot have caused or even contributed, in any way, to her bilateral carpal tunnel syndrome. Accordingly, we find that employee's repetitive work with her hands as a school bus driver for employer is the primary causative factor, in relation to any other factor, in the development of her bilateral carpal tunnel syndrome. We further credit the unanimous opinion from the medical experts on the issue of future medical care, and find that employee requires additional treatment in the form of bilateral carpal tunnel release surgeries to cure and relieve the effects of her bilateral carpal tunnel syndrome.

Average weekly wage

Employer pays employee a variable rate per route, plus an additional hourly rate for any work beyond her typical routes. Employee testified that her typical weekly income is around $500.00. This is supported by employer's Exhibit B, which consists of a schedule of earnings showing employee's gross wages during her biweekly pay periods from May 16, 2015, through December 31, 2015.

Excluding the last pay period from December 16 through 31, 2015, which obviously includes the holiday break and thus reflects unusually low wages, employee's gross

-4 -

wages in the last 13 weeks before seeking treatment for carpal tunnel syndrome in January 2016 amount to $\ 6,385.17.

Occupational disease - causation

Section 287.067 RSMo provides, in relevant part, as follows:

1. 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 needs 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.
2. An injury or death by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.
3. An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. 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. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

We have credited the opinion from employee's medical expert, Dr. Schlafly, and found that employee's repetitive work with her hands as a school bus driver for employer is the primary causative factor, in relation to any other factor, in the development of her bilateral carpal tunnel syndrome.

We conclude that employee's bilateral carpal tunnel syndrome had its origin in a risk connected to her employment, and flowed from that source as a rational consequence. We conclude that employee's occupational exposure was the prevailing factor causing her to suffer the resulting medical condition and any disability that may be referable

Injury No.: 16-006646

Employee: Lynette Lammert

-5-

thereto. Accordingly, we conclude that employee has suffered a compensable injury by occupational disease in the form of bilateral carpal tunnel syndrome. ${ }^{1}$

Section 287.140.1 RSMo controls with respect to the issue of past medical expenses, and provides, in relevant part, as follows:

In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer sh