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

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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

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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

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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 shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

It is well-settled in Missouri that an award of past medical expenses is supported when the record includes (1) the bills themselves; (2) the medical records reflecting the treatment giving rise to the bills; and (3) testimony from the employee establishing the relationship between the bills and the disputed treatment. Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105, 111-12 (Mo. 1989). Employee provides her bills, medical records, and identified the bills in her testimony.

Specifically, employee claims $\ 88.00 in charges from Dr. Nash for an office visit on January 12, 2016, and $\ 578.00 in charges from Dr. Tariq Alam for the nerve conduction studies performed on January 26, 2016. With respect to the charges from Dr. Nash, we note that the provider's record for January 12, 2016, reflects treatment for allergies and/or a vitamin D deficiency, in addition to bilateral wrist complaints. Transcript, page 158. In her testimony, employee conceded she is unsure what portion of the $\ 88.00 charge refers to treatment for allergies versus treatment for her compensable work injury. In its brief, employer argues that this concession on the part of employee prevents her from satisfying her burden of proving that the $\ 88.00 charge from Dr. Nash flows from treatment employee received to cure and relieve the effects of her work injury.

We are not persuaded. Our review of Dr. Nash's other bills (included as part of employee's Exhibit 2) reveals that Dr. Nash charges a flat rate of $\ 88.00 for any office visit. In other words, the record demonstrates that Dr. Nash's office would have charged employee the entire amount of $\ 88.00 even if employee had not also received some treatment unrelated to the work injury on January 12, 2016. Accordingly, we conclude that the $\ 88.00 charge flows from treatment employee received to cure and relieve the effects of her compensable work injury. With respect to the $\ 578.00 in

[^0]

[^0]: ${ }^{1} In 2005, our legislature removed from \S 287.067$ a prior reference to the various requirements for accidental injuries set forth under $\S \S 287.020 .2$ and 287.020 .3 RSMo. The obvious import of this amendment was to remove from our analysis the requirements set forth under those sub-sections, including the much-discussed "unequal exposure" test, see Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012). For this reason, we have not applied the unequal exposure test to this claim. See Lankford v. Newton Cnty., No. SD34269 (Jan. 17, 2017).

charges from Dr. Alam, we conclude that the bill properly corresponds to the treatment records in evidence.

Employer has not advanced any evidence that would demonstrate that employee is not required to pay the billed amounts, that her liability for the disputed amounts was extinguished, and that the reason such liability was extinguished does not otherwise fall within the provisions of § 287.270 RSMo. See Farmer-Cummings v. Pers. Pool of Platte Cnty., 110 S.W.3d 818 (Mo. 2003), and Maness v. City of De Soto, 421 S.W.3d 532, 545 (Mo. App. 2014). We conclude employer is liable for $\ 666.00 in past medical expenses.

Section 287.140.1 RSMo provides for an award of future medical treatment where the employee can prove there is a reasonable probability of a need for future medical treatment that flows from the work injury. Conrad v. Jack Cooper Transp. Co., 273 S.W.3d 49, 51-4 (Mo. App. 2008). We have credited the unanimous opinions from the testifying experts that employee remains in need of additional medical care, in the form of bilateral carpal tunnel release surgeries, to cure and relieve the effects of her bilateral carpal tunnel syndrome.

We conclude that employee is entitled to, and employer is liable to provide, that future medical treatment that may reasonably be required to cure and relieve the effects of the work injury.

Section 287.250 RSMo provides, in relevant part, as follows:

1. Except as otherwise provided for in this chapter, the method of computing an injured employee's average weekly earnings which will serve as the basis for compensation provided for in this chapter shall be as follows: ...

(4) If the wages were fixed by the day, hour, or by the output of the employee, the average weekly wage shall be computed by dividing by thirteen the wages earned while actually employed by the employer in each of the last thirteen calendar weeks immediately preceding the week in which the employee was injured or if actually employed by the employer for less than thirteen weeks, by the number of calendar weeks, or any portion of a week, during which the employee was actually employed by the employer. For purposes of computing the average weekly wage pursuant to this subdivision, absence of five regular or scheduled work days, even if not in the same calendar week, shall be considered as absence for a calendar week. ...

We conclude the foregoing provision is applicable to account for the circumstances before us, where employee was paid per route (i.e. "output") plus an hourly rate for any

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: January 26, 2016 (Alleged)
5. State location where accident occurred or occupational disease was contracted: Jefferson County, 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? 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 accident occurred or occupational disease contracted: The claimant, a school bus driver, suffered bilateral carpal tunnel syndrome.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Both wrists
14. Nature and extent of any permanent disability: Not determined
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: None

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Lynette Lammert

1. Value necessary medical aid not furnished by employer/insurer? $\ 666.00
2. Employee's average weekly wages: $\ 539.74
3. Weekly compensation rate: $\ 359.83
4. Method wages computation: Thirteen week rule

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

TOTAL:

None

1. Future requirements awarded: None

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: Dean L. Christianson, Esq.

Employee: Lynette Lammert

Injury No.: 16-006646

Dependents: N/A

Employer: Festus R-VI School District

Additional Party: N/A

Insurer: Missouri United School Insurance Company

Before the<br>Division of Workers' Compensation<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri<br>Checked by: EJK

This workers' compensation case raises several issues arising out of an alleged workrelated injury in which the claimant, a school bus driver, suffered bilateral carpal tunnel syndrome. The issues for determination are: (1) Occupational disease, (2) Medical causation, (3) Liability for past medical expenses, (4) Future medical care, and (5) Rate. The evidence compels an award for the defense.

At the hearing, the claimant testified in person and offered a deposition of Bruce Schlafly, M.D., correspondence from claimant's counsel, medical bills and records from Draves Family Practice and Mercy Clinic Neurology. The defense offered a deposition of R. Evan Crandall, M.D., and a wage statement. Both of the attorneys submitted excellent briefs.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the claimant's medical condition was contracted in Missouri. The parties waived any objection to venue. Any markings on the exhibits were present when offered into evidence.

This 51-year-old claimant, a school bus driver, suffered bilateral carpal tunnel syndrome. The claimant testified that she is 5 feet and 7 inches tall, weighs 355 pounds, takes antiinflammatory medication for symptoms in her hands and wrists, receives blood pressure medication, a blood thinner, and medication for an irregular heartbeat. She is not diabetic, has never had a thyroid problem, and has never been a smoker.

The claimant has worked for eleven years for this employer as a school bus driver. She works five days per week, five and one-half hours per day. Her work begins in August of each year and ends in May of the next year. She has breaks for spring break and Christmas. Occasionally, she also works in the summer.

The claimant is not paid by the hour, for most purposes. She is generally paid per the route which she drives. She testified that her typical weekly income is around $\ 500.00. The employer and insurer marked and offered into evidence a wage statement. See Exhibit B.

The claimant testified that she generally drives two different routes on each day. The first route is her "high school" route. Her second route is her "elementary" route. She sometimes also drives a "midday" route, and she sometimes also drives day routes.

The claimant high school route begins at 6:15 a.m. She arrives at work and inspects her bus before starting on her route. This route involves picking up the sixth through twelfth grade students and dropping them at three separate schools. Each morning on the high school route, she will pick up between 55 and 65 students between the hours of 6:40 a.m. and 7:35 a.m. She will make between 30 and 35 stops to do this, including the stops to drop them off. All of her driving, in any given day, generally totals around 30 to 40 miles. It is generally city driving, involving a lot of starting and stopping.

The claimant performs the elementary route after the high school route. She again picks up between 55 and 65 students and makes 15 stops on this route. Otherwise, this route is similar to the route performed for the high school route.

After the elementary route, the claimant returns home and is free until 2:00 p.m. when she returns to perform the high school route. Immediately after that route, she performs the elementary route.

On two to three times each week, the claimant performs a midday route beginning at 11:00 or 11:30 in the morning transporting between 2 and 12 students about 5 miles. She makes an individual stop for each student.

The claimant occasionally performs a day route. This generally involves day trips where the students will be taken to various places such as the zoo or a sporting activity and is paid by the hour for this trip. She testified that she would average these trips approximately once per week. These trips generally involve more driving and less stopping and starting. The claimant sweeps her bus with a broom to clean it and takes out the trash every couple of days.

The claimant testified that she drove an "older bus" from the day she started until May 2015. For the first three years she worked, the older buses had a manual transmission. Since then they have had an automatic transmission. The older buses also had a "manual" door which she had to operate. The older buses had a rougher ride as well, with more vibration of the steering wheel. Opening the door on the older bus involved grabbing a metal door handle with her right hand, while her left hand remained on the steering wheel. She would then push down on a button on the top of the handle, using her right thumb. She then had to lift the handle up to clear a catch, and then pull the lever toward the aisle of the bus. She testified that this requires

some force to perform. She testified that closing the door was a bit easier. She testified that in pulling the handle she pulled it 10 to 12 inches toward the aisle. She testified that the handle was metal and that sometimes it could be a bit slippery if she wore gloves. On the older bus, the claimant had to turn on her flasher at each stop. This involved flipping a switch with her left hand. The switch was mounted to the left of the steering wheel. Also at every stop, the claimant had to engage the emergency brake. This was on the left side of her driver's seat, under the dash. She had to push on the emergency brake to engage it, and then pull up on the brake to disengage.

The ride on the older bus was more difficult than the newer bus, because it involved more vibration. She testified that she drives by holding onto the steering wheel with both of her hands. She testified that she is very focused on the road and that she knows she holds the steering wheel very tight. She testified that she gets "white-knuckled" when holding the steering wheel, because of her grip. The vibrations from the steering wheel, on the older buses, would be felt beyond her hands and wrists, and into both arms. She would feel these vibrations both with driving and idling.

On the newer buses, the vibration was not as bad, though it was still there. She still feels the vibration into her hands and wrists, but not into her arms. She also has to engage the emergency brake, though this is easier because it is a push button brake. The flashers and door are controlled by push buttons.

The claimant generally drives smaller buses, a 16 passenger bus, during the mid-day route. The smaller buses also have a power door on the control panel. She testified that the vibration in the smaller buses is worse than the newer bus, though not as bad as the older large bus. The flashers and the brake are also buttons on the control panel.

The claimant testified that she began to have symptoms in her hands and wrists in either August or September 2015. She reported this to her supervisor, Joe Seifer, in December 2015. He advised her that he would look into it; later on he advised her that carpal tunnel syndrome is not covered by the school district. As a result, the claimant was not offered any medical care by this employer. The claimant went to her primary care physician in November 2015 for an unrelated matter and mentioned her hand and wrist condition to the nurse practitioner. She was advised that she should report this to her employer. The claimant returned to the doctor's office in January 2016 and was evaluated for her hands and wrists. Electrical studies were performed. Since then she has received anti-inflammatory medications. She testified that the medications are no longer relieving her symptoms. The claimant identified the medical bills she received from her primary care physician.

The claimant testified she did not have any hand or wrist problems before 2015. She testified that she has no hobbies in which she uses her hands. As a child, she had a fracture to the small finger on her left hand, though she stated it was no longer painful afterwards.

The claimant continues to complain of symptoms in her hands and wrists. Her right hand was asleep at the time of the hearing. Her left hand was also becoming numb. She testified that she gets a numbness, tingling and painful feeling in her hands and wrists. This is somewhat relieved by dangling her hands at her side, while driving. Usually the worst problems are in her right hand, though she gets these symptoms in both hands. She tends to feel these symptoms either when she is driving the bus or when she is sleeping. Previously she never had these symptoms when she was simply driving her own car. However, her symptoms have now progressed to the point that she gets them even while driving her own car. The claimant testified that she understands the doctors have recommended surgery, and she would like to undergo this surgery.

On March 15, 2016, Dr. Crandall, a board certified plastic hand surgeon, examined the claimant, reviewed her medical records, and took a medical history. He found that the claimant had several positive tests for carpal tunnel syndrome and recommended that the claimant undergo bilateral carpal tunnel releases. See Dr. Crandall deposition, pages 11, 28. Dr. Crandall assessed that claimant's working conditions:

Well, I do believe she has to occasionally grip her steering wheel. But she does not have repetitive flexion of the tendons going back and forth when we're lifting things. The amount of grip to be able to keep one's hands on the wheel is only one to two pounds. The number of turns she has, she said were, well, she had to open the door a hundred and fifty, two hundred turns per day, which is the equivalent of maybe two minutes on a NordicTrack or elliptical trainer. It sounds maybe to that person, that bus driver, to be a lot, but in comparison to my patients who have really hand-intensive jobs it's maybe one one-thousandth of what my factory patients have. It doesn't mean that the person is dishonest or that they think that. They're simply mistaken. They don't know what a hand-intensive position really is. They've never seen it. They've never done it. ...

[Opening and closing the manual door is] not enough activity to hurt anybody. It's spread throughout the day. It's less than two minutes of exercise at the gym all put together. And it wouldn't explain how you got carpal tunnel syndrome of the left hand that doesn't open the door. See Dr. Crandall deposition, pages 22, 23.

He opined that the claimant's risk factors for carpal tunnel syndrome included age, gender, high body mass index, hypertension, and menopause and that morbid "obesity alone could be considered the prevailing risk factor in the cause of her carpal tunnel syndrome." See Dr. Crandall deposition, pages 26, 27. He opined:

Her work activities are not a factor in the cause of her carpal tunnel syndrome. ... I believe that operating a school bus does not exceed any known ergonomic parameter. I've never seen an ergonomic evaluation that shows that driving a school bus exceeds any known ergonomic parameter. That's less than one percent, maybe two percent of what people do to exercise to become healthy. And for those reasons, I believe that they provided her a safe driving environment and it's a safe job that cannot cause upper extremity ailments. See Dr. Crandall deposition, pages 27, 28.

He testified that he has never seen any literature to support driving a truck or bus can cause carpal tunnel syndrome. See Dr. Crandall deposition, page 20. He testified that he was familiar with all occupational medicine books about this condition and that there were no studies relating to the occurrence of carpal tunnel syndrome in truck drivers or delivery drivers. See Dr. Crandall deposition, page 36.

Bruce Schlafly, M.D.

On April 18, 2016, Dr. Schlafly, a board certified orthopedic hand surgeon, examined the claimant, reviewed her medical records, and took a medical history. He diagnosed bilateral carpal tunnel syndrome and recommended bilateral carpal tunnel releases to cure and relieve this condition. See Dr. Schlafly deposition, pages 16, 20. He opined that the claimant's bilateral carpal tunnel syndrome was causally related to her position as a school bus driver based on her

repetitive use of the hands for gripping and turning of the steering wheel which has some vibration in it, and it also required repetitive pushing and pulling of the hand over the manual door opener. And my opinion is that such activity over the years created friction involving the flexor tendons in the carpal tunnel, which then led to median nerve irritation and compression. See Dr. Schlafly deposition, pages 20,21 .

He opined that the claimant's job as a bus driver was the prevailing factor in the cause of her carpal tunnel syndrome. See Dr. Schlafly deposition, pages 19-21.

Dr. Schlafly also testified that the claimant has several other risk factors that have been shown to play a role - statistically - in the development of carpal tunnel syndrome. See Dr. Schlafly deposition, page 27. Some of these factors are: A wrist facture, being a woman between the ages of 40 and 60, and obesity. See Dr. Schlafly deposition, pages 27, 28, 32. He testified that high blood pressure or hypertension is not a risk factor for carpal tunnel syndrome. See Dr. Schlafly deposition, page 34. He also testified that it was relevant that when the claimant was tested for carpal tunnel syndrome, the nerve conduction studies showed "moderately severe" carpal tunnel syndrome, not "very early or mild" carpal tunnel syndrome. See Dr. Schlafly deposition, page 45. He testified that this showed her condition developed over a number of

Dr. Schlafly testified that he routinely treats patients with carpal tunnel syndrome and estimated that about 50 % are work related while 50 % are due to other factors. See Dr. Schlafly deposition, pages 24-25. He testified that some carpal tunnel syndromes can be caused by work while others can be idiopathic in nature and that simply because someone has a job that requires the use of their hands does not mean that job carries a risk factor for the development of this overuse syndrome. See Dr. Schlafly deposition, page 25. Dr. Schlafly testified:

Q. Outside of direct trauma, is there any scientific evidence of a direct cause of carpal tunnel?

A. Well, probably along the lines of multiple, very persuasive studies of carpal tunnel syndrome developing after $\mathrm{X}, \mathrm{Y}$ or Z .

Q. And those X, Y and Z's, are those risk factors, right?

A. Yes. (See Dr. Schlafly deposition, page 27.)

Dr. Schlafly testified that the condition is more common in women between the ages of 40-60, and that it is three times more likely to develop in her age range versus a man of her age. See Dr. Schlafly deposition, pages 27-28. Dr. Schlafly testified that the claimant's age and gender were risk factors in the development of carpal tunnel syndrome. See Dr. Schlafly deposition, page 39. Dr. Schlafly testified that he was aware of no specific study to support the theory that gripping a steering wheel is a direct cause of carpal tunnel syndrome. See Dr. Schlafly deposition, page 37. Dr. Schlafly explained his characterization of repetitive gripping:

Q. So when you say repetitive, what do you mean?

A. Driving the school bus you have to hold the steering wheel the whole time.

Q. So when I drive to work in the morning on my 25 -mile commute, am I repetitively gripping and turning my wheel?

A. Yes, but I don't think it's the same qualitative degree as driving the school bus.

Q. But that's what we're talking about, right? I'm holding the wheel. That, in your opinion, would be repetitive gripping of my steering wheel?

A. During that commute, yes. (See Dr. Schlafly deposition, pages 43-44.)

Dr. Schlafly opined that the use of a manual door would cause of her carpal tunnel syndrome when her complaints did not arise until well after she stopped using the manual door and after she had been off work in the summer of 2015. He testified:

Q. If the repetitive pushing and pulling of the handle for the manual door opener is a factor, wouldn't you expect her symptoms to arise while she was actually performing that function not four or five months after?

A. Well, that's a relevant consideration, but it's also relevant that when ultimately she was tested with nerve conduction studies that it showed moderately

severe carpal tunnel syndrome, not just very early or mild, a suggestion that although perhaps she has a high pain tolerance, the condition probably developed over a number of months.

Q. But the nerve studies weren't until January of 2015, right?

A. Correct.

Q. So the nerve studies weren't done in conjunction with her performing the manual door opening?

A. Correct.

Q. And that would have been maybe nine months after she last did that, nine or ten months?

A. Yes.

Q. Can carpal tunnel syndrome become moderate in a period of nine to ten months for whatever reason?

A. Yes. (See Dr. Schlafly deposition, pages 45-46.)

Dr. Schlafly testified that he would normally expect a patient to develop complaints while performing the job duties that caused the condition. Dr. Schlafly pointed to "operation of the steering wheel and the vibration associated with it and operation of the manual door opener" as the most significant of her job duties to cause the condition. See Dr. Schlafly deposition, page 62 .

There is no dispute that the claimant developed bilateral carpal tunnel syndrome in 2016. The claimant alleges that she developed that condition as a result of the use of her hands in performing her duties as a school bus driver. The defense denies that the claimant's school bus driver duties were the prevailing factor causing her bilateral carpal tunnel syndrome and claimant that the prevailing factors causing the condition were age, gender, and high body mass index.

A claim for compensation due to an occupational disease is to be determined under Section 287.067, RSMo Supp. 2005:

287.067. 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 need 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. ...

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Lynette Lammert

Injury No.: 16-006646

1. 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.

An informative legal analysis of occupational diseases pursuant to Missouri law is found in Kelley v. Banta Stude Const. Co., Inc., 1 S.W.3d 43 (Mo. App. E.D. 1999), from which the following legal principles are cited:

In order to support a finding of occupational disease, employee must provide substantial and competent evidence that he/she has contracted an occupationally induced disease rather than an ordinary disease of life. The inquiry involves two considerations: (1) whether there was an exposure to the disease which was greater than or different from that which affects the public generally, and (2) whether there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort.

Claimant must also establish, generally through expert testimony, the probability that the claimed occupational disease was caused by conditions in the work place. Claimant must prove "a direct causal connection between the conditions under which the work is performed and the occupational disease." However, such conditions need not be the sole cause of the occupational disease, so long as they are a major contributing factor to the disease. A single medical opinion will support a finding of compensability even where the causes of the disease are indeterminate. The opinion may be based on a doctor's written report alone. Where the opinions of medical experts are in conflict, the fact finding body determines whose opinion is the most credible. Where there are conflicting medical opinions, the fact finder may reject all or part of one party's expert testimony which it does not consider credible and accept as true the contrary testimony given by the other litigant's expert.

In this case, the claimant contends she developed bilateral carpal tunnel syndrome as a result of her employment as a part-time bus driver with this employer. The defense denied that her work activities are the prevailing factor in causing both his medical condition and disability. It is true that carpal tunnel syndrome has been long recognized by Missouri Courts as a known occupational disease. Weniger v. Pulitzer Pub. Co., 860 S.W.2d 359 ,360 (Mo. App. 1993). However, simply because someone has been diagnosed with this common condition, does not make it a compensable occupational disease under the Missouri Workers' Compensation Act.

In order to determine the outcome of the present case and discern whether the claimant has met her burden of proof, the expert medical evidence is critical. The claimant relies on Dr. Schlafly's evaluation.

Dr. Schlafly opined that the claimant's repetitive gripping and turning of the steering wheel was the prevailing factor. However, he had no information on how many times she turned the wheel any given day or the force it takes to turn the wheel. He also testified that an individual driving a passenger automobile to and from work over 25 miles would be gripping and turning the steering wheel. See Dr. Schlafly deposition, pages 43-44.

He also opined that the repetitive opening and closing of the manual door was a prevailing factor but testified that she did not have symptoms of carpal tunnel over nine years of doing this and it was not until she stopped driving a manual door bus that she noticed symptoms. His theory does not explain why the claimant would have carpal tunnel syndrome in the left hand if this task was responsible for the condition. He testified that the timing of her symptoms were "unusual," because they did not arise until months after she stopped performing them altogether. Dr. Schlafly testified, "I'm not aware of any study specific to bus drivers" to support the theory that gripping a steering wheel causes carpal tunnel syndrome. See Dr. Schlafly deposition, page 37 .

On the other hand, Dr. Crandall opined that her job duties and the fact that operating a school bus were not the prevailing factors causing the claimant's carpal tunnel syndrome. He opined that the primary factor, in comparison to all factors, is her obesity causing her condition and disability. See Dr. Crandall deposition, page 27. Dr. Crandall testified that there is no scientific evidence that supports driving as a cause of carpal tunnel syndrome. See Dr. Crandall deposition, pages 19, 20.

The claimant testified in detail as to her job duties. The bulk of her testimony centered on her job requirements driving the "old" bus. However, she never suffered from complaints while driving the "old" bus. Her complaints started after having the summer off and shortly after returning to part-time work in August or September 2015, driving the "new" bus. If it was the manual door, she would not have developed carpal tunnel syndrome in the left hand. If it was the old bus, she would have had complaints while driving that bus for over nine years. If it isn't the old bus, it certainly wouldn't be the new bus that she admitted was even easier to operate. The claimant, a part-time bus driver, drives 30-40 miles over a period of $31 / 2$ to 4 hours per day, with multiple breaks. She operates a bus with an automatic transmission and automatic door. When she was required to use a manual door, she never had complaints.

Both experts appear to be qualified board certified surgeons in fields related to the claimant's medical condition. They both opined that the claimant has conditions that predispose her to the medical condition including age, gender, and high body mass index. They both testified about the effect of the claimant's occupational duties and offered conclusions whether those occupational duties caused the claimant's bilateral carpal tunnel syndrome. Dr. Schlafly was unclear as to how they arrived at his conclusion, because he testified that he was not aware of any scientific studies relating the claimant's condition to her occupational duties. In addition, he seemed to contend that the claimant's condition had a delayed onset from the time she ceased operating a manual door and the onset of symptoms. He was also unclear whether operating a

manual door could cause carpal tunnel syndrome in the claimant's wrist that did not operate the manual door. Neither expert had any scientific quantification of the claimant's exertion or repetitions during working hours and neither expert found any scientific studies or treatises concluding that the claimant's working conditions were a factor causing her bilateral carpal tunnel syndrome.

The evidence of record compels an award in favor of the defense, because the claimant 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.

Other issues in this case included average weekly wage, liability for past medical expenses, and future medical care. The facts underlying these issues are relatively clear-cut, but the resolution revolves around whether the claim is compensable.

With respect to the average weekly wage, the claimant worked for thirteen weeks, from September 16 to December 15, 2015, and received \$7,718.60. See Exhibit B. Dividing the sum by 13 results in an average weekly wage of $\ 539.74.

With respect to past medical expenses, the claimant proved that she was not tendered medical treatment, and proved that she incurred total medical bills in the amount of $\ 666.00 as a result of her injury through the office of Dr. Draves and Mercy Clinic Neurology. See Exhibits 2, 3, 5. If the claimant can establish her liability for the medical bills, the defense then has the burden of proving that the claimant's liability for the bills was extinguished. Farmer-Cummings v. Personnel Pool, 110 S.W.3d 818 (Mo.banc 2003). This burden requires a showing that the claimant is not required to pay the bills, that the claimant's liability for the bills is extinguished, and that the reason her liability is extinguished does not fall within the provisions of Section 287.270, RSMo. Id. The defense did not offer any proof in this regard. Therefore, if the claim were compensable, the defense would be liable to the claimant for $\ 666.00 as reimbursement of past medical bills from Dr. Draves and Mercy Clinic Neurology.

With respect to additional medical care, both of the physicians testified that the claimant requires bilateral carpal tunnel releases and the claimant wishes to pursue this treatment as soon as possible. If the claimant sustained injury by way of a compensable occupational disease, substantial and competent evidence exists to establish that the claimant requires further medical care to cure and relieve the effects of the injury.

However, since the claim is not compensable, the defense has no liability for past medical expenses or additional medical care.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Lynette Lammert

Injury No.: 16-006646

Made by:

EDWIN J. KOHNER

Administrative Law Judge

Division of Workers' Compensation