Shawna Beard v. Harley-Davidson Motor Co., Inc.

We adopt the Findings of Fact and Rulings of Law as stated in the Temporary and Partial Award issued by Administrative Law Judge Angie Heffner on July 10, 2017, except as modified and supplemented herein.

We agree with the administrative law judge's determination that Dr. Anne Rosenthal's opinion dated December 5, 2016, was thorough, credible, and persuasive. Dr. Rosenthal's opinion was that work performed at Harley-Davidson was the prevailing factor in employee's bilateral carpal tunnel syndrome. Her opinion is supported by objective medical findings including Dr. Sivakoti Katta's review and examination following EMG/NCV testing. Dr. Rosenthal's opinion is also supported by her detailed review of job duties and employee's prior history. Furthermore, Drs. Katta and Rosenthal recommend surgery for bilateral carpal tunnel syndrome and identify restrictions. Drs. Rosenthal and Katta's restrictions are completely consistent with the diagnosis and recommended treatment.

We note the diagnosis by appellant's doctor, Dr. Brett A. Miller, of "bilateral hand pain, possible carpal tunnel syndrome." (Hearing record at page 121) This further buttresses the employee's medical evidence. However, like the administrative law judge, we do not find Dr. Miller's opinion to be credible or persuasive in other respects. He appears to rest his conclusion that this 37-year-old female's condition is "idiopathic" on the notion that "seven months is certainly not long enough to develop carpal tunnel syndrome from a job."1 (Hearing record at page 121) We are unaware of any medical literature or legal limitation which sets a minimum level of temporal exposure in repetitive motion work to prove causation of an injury. ${ }^{2}$

Dr. Miller's report indicates he has "been coming to the Harley-Davidson plant on sight (sic) since January" and that he "has toured the plant on multiple occasions." (Hearing record at page 122) He further indicated his familiarity with various job stations including the employee's. While the administrative law judge may have failed to appreciate the level of Dr. Miller's familiarity with the plant's operations and nature of duties, the fact remains that Dr. Miller does not say employee was not exposed to the risk at the plant. Dr. Miller also fails to explain why he deemed it appropriate to release employee to full duty when he believed she may have been suffering from carpal tunnel syndrome.

Employer asserts that the judge erred in finding employee was (temporarily) totally disabled because of the lack of written medical restrictions. Employer asserts that it was merely employee's choice not to return to work.

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[^0]: ${ }^{1}$ Dr. Miller also inaccurately identifies the length of exposure as seven months. Employee worked at the facility doing this work from January 2016 through September 23, 2016, although she was employed by a temporary agency for the first two months.

${ }^{2}$ Section 287.067.3 RSMo provides that a repetitive motion injury is compensable if the occupational exposure was the prevailing factor in causing both the medical condition and disability. Subsection (8) merely states if the exposure is less than three months and the evidence shows exposure with the immediate prior employer was the prevailing factor in causing the injury, liability shifts to the prior employer; a circumstance inapplicable to this case.

An employee's testimony about their ability to work is competent evidence and is a valid basis upon which to make an employability determination. ${ }^{3}$ Employee's credible testimony about the nature of her work duties, which Dr. Rosenthal correctly summarized as "repetitive hand intense work" (Hearing record at page 114) was uncontroverted in the record.

Employee credibly described her symptoms and the inability to perform tasks that require repetitive hand movements, including driving and other daily activities involving continued use of the hands. (Transcript at page 43) Dr. Rosenthal acknowledged reasonable restrictions for a patient with diagnosed carpal tunnel syndrome would include not engaging in repetitive hand motion activities and she added the restriction of wearing wrist splints. Employee's medical providers have recommended bilateral carpal tunnel surgery.

Cumulatively, all these factors show that employee is not employable in the open labor market at this time. We doubt that any employer would hire employee knowing that she was in imminent need of surgery and would be expected to be absent for a lengthy period or severely limited in any work activity while she's in the recovery period.

We defer to the administrative law judge's findings of credibility in all respects. Employee was consistent in all material portions of her testimony and reports of injury throughout this proceeding. We reject employer's assertion that employee's testimony in this proceeding was "evasive." (Transcript at 72-73 and Appellant brief at page 15)

Employer's Human Resources witnesses added little to the picture. Both indicated they were not involved in and not familiar with worker's compensation practices and policies within the plant.

The thrust of Mary Kloker's testimony was merely that she had no recollection of certain events.

It appears that Amanda Thibodeau's testimony was offered to dispute employee's assertion that she informed employer of restrictions. We find claimant credible that she did inform employer in a phone conversation that occurred on September 26, 2016, immediately after a lengthy examination and diagnosis by her primary care provider. ${ }^{4}$ There is no requirement in the law that employee provide employer with a written statement of restrictions. Therefore, whether Ms. Thibodeau's or employee's memory is faulty regarding the conversation adds very little to analysis.

In certain other respects, we find Ms. Thibodeau's testimony less credible. Ms. Thibodeau was asked by employee's counsel, "was it your experience that employees who need surgery are able to fully perform their jobs?" Ms. Thibodeau responded, "Yes," without

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[^0]: ${ }^{3}$ Pruett v. Federal Mogul Corp., 365 S.W. 3d 296, at page 309 (Mo. App. S.D. 2012). Beard testified in detail about the nature of the duties and her inability to perform tasks, (Transcript pages 20-30, 43-44), and in her deposition at pages 265271 of the hearing record.

${ }^{4}$ We understand that employer's counsel is attempting to discredit the credibility of employee's testimony through raising this difference in recollection by employer's witness. We are simply not convinced that it has much bearing on the credibility issue. We note another assertion by employer that employee's credibility is diminished because of a default judgment in a bankruptcy claim in which fraud was alleged against employee. It deserves some weight in our consideration. However, employee's testimony on this issue and her forthright admission about the circumstances is believable.

equivocation, hesitation or elaboration to this question. (Transcript, page 98) This reflexive answer appears to have been delivered with minimal consideration of the actual question. In our view, this diminishes her credibility as a witness. It is hard to reconcile her statement that employee told her that she needed surgery on her hands, yet there was no further discussion about work restrictions, and Ms. Thibodeau apparently felt no obligation as an employer representative to inquire in this regard. Ms. Thibodeau simply told her to "follow the process." (Transcript, page 96) Employee filed her Claim for Compensation with the Division of Workers' Compensation on September 30, 2016. Employer has never offered employee accommodated work.

Employee's counsel acknowledged at oral argument that employer would have had a reasonable basis for defending the claim as a result of Dr. Miller's opinion. The basis for employee's argument for an award of costs is for unreasonable conduct by employer's counsel in the deposition of employee.

In our view, some of employer's counsel's conduct at the employee's deposition was improper, ranging from unprofessional to unethical. ${ }^{5}$ Likewise, some of employer's counsel's written statements in his brief, border on accusations against the judge and opposing counsel. There is no place for name-calling and gratuitous comments of this nature in the profession of law. ${ }^{6}$

However, under a strict construction reading of the statute, employee has not provided enough to establish employer pursued an unreasonable defense of a claim. We are not convinced that employer should be punished for his counsel's bad behavior under section 287.800 RSMo where employer had a reasonable basis to defend. The statute provides for assessment of costs where a proceeding is "brought, prosecuted, or defended without reasonable ground." (§ 287.560 RSMo) and we are to exercise this discretion with caution. ${ }^{7}$ Employer's position in opposing the claim was defensible. It was the methods and conduct of employer's counsel that were deplorable. We conclude, therefore, that employee is not entitled to $\ 2,223.90 in costs from employer by reason of employer's defending this claim without reasonable grounds pursuant to $\S 287.560$ RSMo.

Employer suggests the administrative law