Laverne Shegog v. SSM Health Care St. Louis

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 12-067125

Employee: Laverne Shegog

Employers: SSM Health Care St. Louis

Insurer: Self Insured

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

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, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we modify the award and decision of the administrative law judge (ALJ). We adopt the findings, conclusions, decision, and award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below

The parties asked the administrative law judge to resolve the following issues: (1) occupational disease arising out of and in the course of employment; (2) medical causation; (3) future medical treatment; and (4) statute of limitations.

The administrative law judge separately addressed the employee's claims of occupational disease consisting of carpal tunnel syndrome and de Quervain's tenosynovitis. He determined as follows:

1. The employee was not employed by this employer when she was diagnosed with carpal tunnel syndrome in January 2000, July 2000, February 2003, and April 2006 and previously received a workers' compensation settlement following her claim against another employer for bilateral carpal tunnel syndrome.
2. The employee's work activities for this employer in 2011 and 2012 were not the prevailing factor causing her medical condition of bilateral carpal tunnel syndrome.
3. An employer is not required to furnish medical treatment for a non-work related injury, therefore future medical is denied.

1. The issue of the statute of limitations is moot because no claim for compensation ever arose.

1. The employee developed left de Quervain's tenosynovitis while working for the employer. The employee developed right de Quervain's tenosynovitis after she stopped working for employer. The employee's left de Quervain's tenosynovitis was negative by 2015.
2. Based on the weight of the credible evidence in the record, including medical opinions of Dr. Schlafly, Dr. Brown and Dr. Dysarz, the employee's work as a housekeeper for employer was not the prevailing factor causing her bilateral de Quervain's tenosynovitis.
3. The employee is in need of further medical treatment to cure and relieve the effects of her upper extremities diagnoses however the employer is not required to furnish such treatment because employee's employment for this employer was not the primary factor causing either her bilateral carpal tunnel syndrome or her bilateral de Quervain's tenosynovitis.

Employee filed a timely application for review with the Commission alleging the administrative law judge's award was erroneous in that:

1. The ALJ's finding that the employee's recurrent carpal tunnel syndrome in 2012 was a continuation of the exact same injury she had in 2004 is inconsistent with the uncontradicted evidence that after conservative treatment the employee was relatively symptom free until and after additional exposure to hand intensive work she had with the employer in 2011-2012 caused additional occupational injury to her wrists no longer treatable with conservative measures.
2. The ALJ erred in relying on the testimony of Dr. Dysarz in support of his finding that the housekeeping duties employee performed could not have caused carpal tunnel syndrome because Dr. Dysarz's opinion lacked any substantial foundation.
3. The ALJ unfairly discredited the employee's testimony based on her imperfect recollection of all of her medical records prior to her 2004 injury and the employee's

inability to understand some of the words used to question her during the hearing.

Having reviewed the evidence and considered the whole record, we find the ALJ's analysis relating to the employee's carpal tunnel syndrome occupational disease claim supported by competent and substantial evidence and made in accordance with the Missouri workers' compensation law. We therefore affirm and adopt the ALJ's findings and award relating to this issue.

We modify the ALJ's award only with respect to his analysis and findings relating to the employee's de Quervain's tenosynovitis occupational disease claim. We address the following issues relating to employee's de Quervain's tenosynovitis claim:

1. Occupational disease arising out of and in the course of the employee's employment with this employer.
2. Medical causation.
3. Application of the statute of limitations.
4. Employer's liability to provide future medical treatment.

Beginning around 1999, more than a decade before her employment with employer, employee sought treatment for intermittent pain and swelling in her hands. ${ }^{1}$ On April 6, 2004, Dr. David Strege diagnosed employee with bilateral carpal tunnel syndrome. ${ }^{2}$ In April 2006, Dr. Bruce Schlafly found that employee's repetitive work as a full time housekeeper for St. Louis University from November 2000 through April 2, 2004, was the substantial and prevailing factor in the aggravation of mild underlying preexisting carpal tunnel syndrome, resulting in permanent partial disability to her right and left hands at the level of the wrist. ${ }^{3}$ On October 24, 2006, a Division of Worker's Compensation ALJ approved a compromise settlement between employee and her prior employer for permanent partial disability involving "any and all aggravating incidents occurring during the course of employment involving the hands, wrists, elbows, and shoulders to date of approval of this settlement (emphasis added)". ${ }^{4}$

After a time of unemployment, employee performed housekeeping work for two successive employers from 2006 until April 2011. She elected to avoid surgery and treated her carpal tunnel syndrome by wearing hand splints. The employee testified that during this time her work duties were lighter and that her wrists were "okay because of the splints that I was wearing."5

[^0]

[^0]: ${ }^{1} Transcript, 167.

{ }^{2} Id. 151.

{ }^{3} Id. 170-171.

{ }^{4} Id. 152.

{ }^{5}$ Id. 9-10.

The employee was no longer wearing splints and was experiencing no problems with her hands and wrists when she began working for employer as an aide performing housekeeping services in its environmental services department in April 2011. The employee worked full time as a housekeeper for employer from April 2011 until December 2012. The employee testified that 90 % of her job duties involved as a housekeeper involved using her hands, including flipping mattresses, pulling out floor boards, "high dusting" and wiping down furniture including bed springs, mopping, cleaning toilets and "pulling trash." 6

Beginning around the end of October to November 2011, the employee began to feel discomfort in her right and left hand that included a feeling of numbness and tingling, as though her hands were sleeping, accompanied by some pain. The employee took Motrin for the pain but her symptoms continued to worsen. In December employee complained to her supervisor Pat Keys about pain in her hands. On January 25, 2012, supervisor sent employee to employer's emergency room (ER). The ER wrapped employee's right hand with a bandage and prescribed Naproxen. When employee later inquired about workers' compensation coverage, employer's representative Chris Givens told employee "she didn't think it was a Workman's Comp case and that I should see a doctor on my own." ${ }^{7}$ The employee consulted Dr. Dysarz, a board-certified hand surgeon, on March 21, 2012. At that time, she complained of "tingling, swelling in my fingers, my wrist, my fingers...swelling up, [and a] burning sensation in my fingers all the way up to my elbow." 8

In a letter documenting his examination of the employee on March 21, 2012, Dr. Dysarz noted, "A left Finkelstein test was clearly positive for DeQuervain's tenosynovitis." Dr. Dysarz subsequently noted evidence of employee's left de Quervain's tenosynovitis on numerous occasions over a lengthy period of time. ${ }^{10}$

On July 13, 2012, Dr. Dysarz noted that the employee's left de Quervain's symptoms had improved somewhat following a Kenalog injection several months prior but remained unresolved due to her inability to keep her left wrists splinted and rested. That day, Dr. Dysarz reinjected employee's left first dorsal extensor tendon compartment with Kenalog and prescribed a thermoplastic splint for the employee to wear constantly. He advised employee that she might require a left first dorsal extensor tendon compartment release in the future. On October 12, 2012, Dr. Dysarz noted that the employee chose not to address her left de Quervain's tenosynovitis when she had open right carpel tunnel release surgery on September 28, 2012. ${ }^{11}$

When deposed, Dr. Dysarz initially testified that de Quervain's tenosynovitis "is a common cause of spontaneous wrist pain that we see in patients. Sometimes they use their hands a lot, sometimes they have minimal use of their hands, and there isn't really

[^0]

[^0]: ${ }^{6} Transcript, 5-6.

{ }^{7} Id. 13.

{ }^{8} Id. 14.

{ }^{9} Id. 68.

{ }^{10}$ See Dr. Dysarz's handwritten notes dated March 21, 2012, April 20, 2012, July 13, 2012, October 12, 2012, and November 9, 2012; all noting positive left Finkelstein's test results. Id. 71-75.

${ }^{11} \mathrm{Id}$.70 .

Injury No.: 12-067125

Employee: Laverne Shegog

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one thing that we can relate it to."12 Dr. Dysarz acknowledged that many doctors disagree with his opinion that people performing housekeeping and janitorial services are not going to develop de Quervain's tenosynovitis from that work. He stated, "[I]t's a controversial subject."13

Dr. Dysarz later testified that employee's particular job was not a prevailing causative factor in the development of her left DeQuervain's tenosynovitis because her work did not include "a lot of repetitive heavy gripping or resisted thumb abduction or adduction (emphasis added)."14 Dr. Dysarz took no history from the employee about the actual work she performed in her housekeeping work for employer. He based his opinion about the employee's job duties on about a half hour of direct observation of housekeeping workers at employer's facility and employer's job descriptions.

In a report summarizing his examination of the employee on February 6, 2014, Dr. Bruce Schlafly noted that although the Finkelstein test for de Quervain's tendonitis15 was negative at each of the employee's wrists, she "has some tenderness at the first dorsal extensor tendon compartment of the left wrist, and there is some thickening present at this tendon sheath."16 Based on his examination and objective findings, Dr. Schlafly diagnosed mild de Quervain's tendonitis of the employee's left wrist. Dr. Schlafly testified he considered the employee's repetitive work with her hands and wrists as a housekeeper for employer to be the prevailing cause of her left de Quervain's tendonitis. Dr. Schafly noted that at the time of the employee's prior diagnosis of carpal tunnel syndrome in 2003, there was no diagnosis of de Quervain's. Dr. Schlafly recommended treatment consisting of a de Quervain's tendon sheath release of employee's left wrist.

At employer's request, hand surgeon Dr. David M. Brown examined the employee on June 16, 2015. In the course of his one-time independent medical evaluation, Dr. Brown found, based on employee's complaints of right sided radial wrist pain, "symptoms and findings suggestive of a diagnosis of right deQuervain's tenosynovitis."17 Dr. Brown's report stated, "With regards to [employee's] history of de Quervain's tenosynovitis of the left wrist, today she does not complain of pain over the