Thomas Penning v. Harley Davidson

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 13-046307

**Employee:** Thomas Penning

**Employer:** Harley Davidson

**Insurer:** Trumbull Insurance Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge awarding compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge (ALJ) with this supplemental opinion.

No doctor was deposed. Obviously, there are differences of opinion regarding the precise nature of employee's work-related injury. We find credible employee's testimony that leading up to May 13, 2013, he was fully able to perform the duties of strenuous manual labor without significant symptoms or impairment referable to his right wrist, that he was essentially asymptomatic with respect to his right wrist and not in need of medical care.

The employee clearly sustained an accident on May 13, 2013, resulting in the immediate onset of severe, disabling, and unprecedented symptoms for which he required and received authorized care.

The employee's authorized treating physician Dr. Bagby, an orthopedist, diagnosed a scaphoid fracture. This diagnosis was supported by multiple radiological studies including x-rays on June 28, 2013, July 12, 2013, and July 29, 2013. The latter studies (contrary to assertions in employer/insurer's brief) were interpreted by Dr. Bagby as demonstrating a "healing" fracture, a diagnosis clearly consistent with a recent, acute injury. (Transcript, 296, 298, 307).

We give careful consideration to Dr. Toby's thoughtful analysis of this case. Although there may be some confusion as to whether Dr. Toby's opinions were based, in part, on a mistaken understanding regarding the length of time that passed from the date of accident to performance of the CT scan on August 14, 2012, we are convinced that Dr. Toby's opinions were well-informed.

Injury No.: 13-046307

Employee: Thomas Penning

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We note Dr. Toby agrees it's possible that employee's work-related injury of May 13, 2013, made a previously asymptomatic scaphoid nonunion unstable. (Transcript, 278-279, 283). Thus, although Dr. Toby and Dr. Grimm disagree with regard to the precise nature of injury sustained, both opinions corroborate employee's reported sudden onset of severe, disabling and persistent symptoms of pain and numbness following the May 13, 2013, injury.

Based upon the employee's credible testimony and after careful review of the medical evidence, we find that employee's May 13, 2013, accident was the prevailing factor causing injury due to a change in the pathology of employee's scaphoid producing an immediate, unprecedented condition of pain and related disability that necessitated all treatment provided to date as described in the record before us.

Employer's medical expert recommended a carpal tunnel release be performed in conjunction with the fusion procedure involving employee's right wrist because postoperative swelling would likely aggravate employee's carpal tunnel syndrome. Because we find the fusion procedure was necessitated by painful symptoms caused by employee's accidental work injury, the need for carpal tunnel release is identified as compensable pursuant to the holding in Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. 2011).

In any event, Dr. Grimm stated that swelling caused by the May 13, 2013, trauma was the prevailing factor causing employee's carpal tunnel syndrome. We note that post-traumatic swelling of the right wrist was observed by Dr. Bagby three months post-injury. We find employee's May 13, 2013, injury was the prevailing factor causing carpal tunnel syndrome.

Sufficiency of Pleadings

Employer/insurer also urge that no claim for carpal tunnel syndrome can be sustained herein because said condition was not specifically pled. This argument is without merit. Claims for compensation need not contain the formal elements of a civil petition. A sense of fairness requires only that the employer be advised of the nature of the claim. We find the pleadings herein are sufficient because the employer's medical expert was fully aware of employee's overall condition, medical evidence regarding causation was admitted without objection, and employer is not shown to have been surprised, misled, or unprepared to meet any issue presented. See Groce v. Pyle, 315 SW2d 482, 492-493 (Mo. App. 1958).

Objection to ALJ's Ruling on Submission of Proposed Award

Employer's application for review also alleges the ALJ erred in overruling its objection to the employee's submission of a proposed award.

We note that 8 CSR 50-2.010 (14) provides that "Hearings before the division shall be simple, informal proceedings." 8 CSR 50-2.010 (14) (C) provides, in pertinent part, "On the request of any party and on order of the administrative law judge, a brief may be

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submitted, which must be filed within the time set by the administrative law judge. . . ." In this case, the January 10, 2017, hearing transcript reflects the ALJ's request for submission of trial briefs on February 10, 2017. (Transcript, 82).

Employer/insurer's application for review cites no basis for its objection to the employee's alleged submission of a "proposed Award". We find nothing in the record before us documenting either the employee's alleged submission of a proposed award, the reasons for employer/insurer's objection, or the ALJ's ruling on this issue. In that employer's brief fails to address this issue, we deem employer/insurer to have abandoned this allegation of error in the ALJ's award.

Employer/insurer's application for review doesn't challenge the ALJ's award of temporary total disability or future medical care other than on bases disposed of by our analysis, supra.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Angie Heffner, issued March 21, 2017, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 25th day of April 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Thomas Penning Injury No. 13-046307

Employee: Thomas Penning Injury No: 13-046307

Employer: Harley Davidson

Insurer: Trumbull Insurance Company c/o TPA Gallagher Bassett Services

Additional Party: N/A

Hearing Date: January 10, 2017

Checked by: $\mathrm{AH} / \mathrm{lh}$

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: May 13, 2013.
5. State location where accident occurred or occupational disease was contracted. Kansas City, Platte 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? Yes.
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: During the course and scope of his employment, Employee was using his hands to push down with pressure on a motorcycle part to assemble it when he felt his right wrist pop and felt immediate pain in his right wrist.
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: Right wrist.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Thomas Penning

Injury No. 13-046307

1. Nature and extent of any permanent disability. 30% of the right upper extremity referable the wrist.

1. Compensation paid to-date for temporary disability: $7,802.18.

1. Value necessary medical aid paid to date by employer/insurer? $2,331.91.

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: 998.05.

1. Weekly compensation rate: 666.04/$433.58.

1. Method wages computation: Parties stipulate.

**COMPENSATION PAYABLE**

Amount of compensation payable:

Employer is ordered to pay Claimant:

21.60 weeks of temporary total disability at a reduced rate of $341.04 to reflect an offset due to the short-term disability benefits paid during the time period.

35% of the right upper extremity referable the wrist or 61.25 weeks of permanent partial disability at Claimant's compensation rate of 433.58 totaling 26,556.78.

1. Future requirements awarded:

Employer is ordered to provide future medical treatment to cure and relieve the employee from the effects of a work related injury as it pertains to his right scaphoid fracture.

Said payments to begin as of the date of this award 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: Josh Perkins

Employee: Thomas Penning

Injury No: 13-046307

Employer: Harley Davidson

Insurer: Trumbull Insurance Company c/o TPA Gallagher Bassett Services

Additional Party: N/A

Hearing Date: January 10, 2017

Checked by: AH/lh

On January 10, 2017, the parties appeared for a final hearing. The Employee, Thomas Penning ("Claimant"), appeared in person and through counsel, Josh Perkins. The Employer/Insurer ("Harley" or "Employer") appeared through Tom Billam. The parties stipulated to the following:

1. That on May 13, 2013, Harley Davidson was an Employer operating under the provisions of the Missouri Workers' Compensation Law and that the liability under said law was fully insured by Trumbull Insurance Company;
2. That on May 13, 2013, the Claimant was an employee of Harley Davidson;
3. That Claimant notified Employer of his injury and timely filed a Claim for Compensation;
4. That Claimant's average weekly wage was $\ 998.05 resulting in $\ 666.04 rates for temporary total and $\ 433.58 for permanent partial disability payments;
5. That Employer provided Claimant with temporary total disability from June 13, 2013 through September 4, 2013 totaling $\ 7,802.18; and
6. That Employer paid $\ 2,331.91 in medical expenses.

The parties requested the Division to determine:

1. Whether the Employee sustained an accident arising out of and in the course of employment;
2. Whether the alleged accident caused the disability the Employee claims;
3. Whether the Employee is entitled to temporary total disability benefits from September 5, 2013 until February 10, 2014;
4. Whether the Employer must provide Employee with medical care in the future; and
5. Whether the Employee suffered any disability and, if so, the nature and extent of the Employee's disability.

Claimant offered the following exhibits which were admitted without objection:

The Employer/Insurer offered the following exhibits all of which were admitted into evidence without objection:

1. Dr. Bruce Toby, M.D., report dated September 04, 2013;
2. Dr. Bruce Toby, M.D., addendum report dated May 17, 2016;

Based on the above exhibits and the testimony of Claimant, I make the following findings:

Claimant is a 57-year-old employee and has worked for Employer since January 3, 2002. He has been a PT1 Assembler with Harley since he began his employment. Claimant is righthand dominant.

Claimant testified that on May 13, 2013, he was performing a different position on a different line than his usual assignment. On this day, he was assembling drive trains which required him to place one half of the motorcycle part on a stationary surface and then place the other half of the motorcycle part on top of it and slide them into place. Claimant testified that they were working with a batch of these motor cycle parts that were not lining up correctly making it difficult to assemble them. As a result, Claimant used all of his body weight to exert a significant amount of pressure onto the parts. At the time of the injury, Claimant testified that he weighed approximately 340 pounds. While Claimant was assembling one particular drive train using his body weight to push down on it, he felt a pop in his right wrist and experienced excruciating pain. He testified that the pain was so intense that he felt like he had to go to the bathroom. Claimant described the pain as a 10 out of a 10 on the pain scale. He could not do anything with his hand. He pulled the cord with his left hand and his team leader arrived and took him immediately to the on-site medical clinic.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Thomas Penning

Injury No. 13-046307

While Claimant was in the Employer's medical clinic, he completed an incident report with assistance from someone else because he had trouble writing. Employer provided ice to treat his wrist and he returned to work after 30 minutes to an hour of being in the Employer's medical clinic. He completed the rest of his day at work but was not able to perform all of his duties causing his co-workers to work around him. Claimant testified that he continued to work his full-time position without any restrictions the day after he injured his right wrist. He continued to have trouble performing some of the required tasks. He saw the on-site therapist for heat and ice during shifts.

On June 12, 2013, because of his on-going complaints, Employer authorized an x-ray of Claimant's right wrist. The x-ray indicated a possible navicular fracture in Claimant's right wrist and Employer sent him to Dr. Bagby, an orthopaedic surgeon, for treatment. A cast was used to treat the fracture and Dr. Bagby restricted his work to no use of his right arm. Employer could not accommodate the restriction and Claimant was paid temporary total disability payments. Following the removal of the cast, Dr. Bagby sent Claimant to physical therapy.

Claimant testified that his pain and discomfort persisted after the cast was removed. Dr. Bagby ordered a CT scan of his right wrist. The CT scan indicated a chronic fractured nonunion of the scaphoid with degenerative changes. Dr. Bagby then referred Claimant to a hand specialist.

Employer sent Claimant to Dr. Toby. After examining Claimant and reviewing the August 14, 2013 x-rays and CT scan, Dr. Toby concludes that the changes, particularly the changes shown in the CT scan would not have occurred over the four week time period from the stated injury. Dr. Toby concludes that the scaphoid fracture occurred prior to the May 13, 2013 incident at work and is therefore not related to his employment with Harley.

Due to Claimant's complaints of numbness in his right hand and fingers, Dr. Toby ordered an EMG which was conducted on August 28, 2013. Claimant's EMG was positive for moderate carpal tunnel syndrome in his right hand. Dr. Toby concludes that Claimant has right carpal tunnel syndrome and it was caused by the chronic scaphoid nonunion.

On October 8, 2013, Dr. Toby performed a four corner fusion on his right wrist and an endoscopic carpal tunnel release on the same wrist and hand. Claimant was restricted to not use his right arm. In December of 2013, Dr. Toby performed another surgery to remove the pins in his right wrist. Toby ordered physical therapy and Claimant participated.

On February 3, 2014, Dr. Toby allowed Claimant to return to work doing his regular job without restriction but limited Claimant's availability to 40 hours per week. This work hour limitation continued until he released Claimant at maximum medical improvement on April 4, 2014 for his carpal tunnel syndrome. Employer required Claimant to take a fit to work test which Claimant passed.

Claimant testified that prior to the May 13, 2013 work-related accident he had never had any injury or treatment to his right wrist or hand. He had never received any medical treatment to his right wrist and hand for any reason. Claimant owns a farm and regularly performs farm chores. He specifically testified that he has never injured his right hand or wrist at the farm.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Thomas Penning

Injury No. 13-046307

Following the May 13, 2013 injury at work, Claimant has pain every day in his right hand. He testified that he had trouble gripping, turning, twisting and pulling with his right hand. Claimant has numbness and tingling in his four main fingers. He has difficulty feeling small objects when he picks them up and has limited range of motion.

RULINGS

INJURY BY ACCIDENT ARISING OUT OF AND IN THE COURSE AND SCOPE OF EMPLOYMENT AND THE CAUSE OF DISABILITY

The first issue to be determined is whether Claimant sustained an injury by accident arising out of and in the course and scope of his employment on May 13, 2013. I find by a preponderance of the credible evidence that Claimant did, in fact, sustain an injury by accident arising out of and in the course and scope of his employment on May 13, 2013.

Pursuant to RSMo. 287.020.2, "The word 'accident' as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor."

Furthermore, Section 287.020.3 states:

"(1) In this chapter the term 'injury' is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident 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.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life."

Based on Claimant's testimony and the records submitted into the record, it is evident that Claimant injured his right wrist while assembling a motor cycle part. It was an unexpected traumatic event identifiable by time and place of occurrence during a single work shift. Furthermore, at the time of the accident, Claimant felt severe pain in his right wrist and hand. Immediately after the accident, as discussed previously, Claimant was taken to the Employer's medical clinic to be treated.

Supported by the foregoing, I find that the event which occurred on May 13, 2013 meets the definition of an accident as set out in RSMO 287.020.2. Accordingly, the Court must now

**Employee: Thomas Penning**

**Injury No. 13-046307**

evaluate whether the accident caused an injury arising out of and in the course and scope of Claimant's employment. I find that it did.

The first step in determining whether an injury arises out of and in the course and scope of employment is to determine whether it is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury. In the present case, the evidence establishes that the May 13, 2013 work accident is the prevailing factor in causing Claimant's right wrist injury.

A month after his accident, Claimant was evaluated and treated by Dr. Bagby for what Bagby diagnosed as a right scaphoid fracture. After two months of treating with Dr. Bagby, Claimant continued to have quite a bit of pain in his right wrist. Dr. Bagby states in his August 12, 2013 letter that Claimant has not had any prior right wrist injuries and opines, "I would state that his work incident was the prevailing cause of his scaphoid fracture." (Ex. G) Dr. Bagby then refers Claimant to a hand surgeon.

Dr. Toby examines Claimant on August 23, 2013 and concludes that the x-ray changes seen on the August 14, 2013 images and CT scan "would not have occurred over the four week time from the stated injury." (Ex. I) The injury occurred May 13, 2013, three months prior to the x-rays and CT scan Dr. Toby relies on in his treatment plan for the Claimant. Dr. Toby's narrative reports are confusing in several places because he correctly states the date of injury a couple of times but then links the injury to four weeks prior to the August 14, 2013 x-rays and CT scan. It is also unclear whether Dr. Toby reviewed the June 12, 2013 x-rays.

Additionally, based on the results of an EMG performed on Claimant on August 28, 2013, Dr. Toby diagnosed Claimant with carpal tunnel syndrome in his right hand. Dr. Toby addresses causation in his May 17, 2016 letter to counsel for the Employer, "[t]he reason for the carpal tunnel release, in addition to the fact that it did present with some symptoms, was the fact that the surgery we performed would have caused more swelling and possibly would have made his moderate carpal tunnel on the right considerably worse in the perioperative period." (Ex. 2) He opines that the prevailing cause of the carpal tunnel syndrome is the chronic scaphoid nonunion and subsequent traumatic arthropathy of the wrist. (Ex. 2) He later explains in his letter that one of the main reasons to perform the carpal tunnel releases in Claimant's situation, "was the fact that he would have had potentially markedly increased symptoms in the perioperative period from the swelling from the operation itself." (Ex. 2)

Counsel for Claimant referred him to Dr. Guinn for examination and evaluation. Dr. Guinn reviewed the June 12, 2013 x-rays and concluded that the x-rays show a significant displacement of the fracture with no sclerosis seen on the fracture margins which indicates an acute fracture. Also consistent with an acute fracture is a significant step off and displacement of the scaphoid Dr. Guinn found on the x-rays.

Dr. Guinn explains that the x-rays taken on June 12, 2013 were not interpreted correctly until Dr. Toby read x-rays from either June 12, 2013 or August 23, 2013. Dr. Guinn points out the confusion surrounding whether or not Dr. Toby reviewed the June 13, 2013 x-rays or if he made his causation opinion based on the August 23, 2013 x-rays and then explains that the significant sclerotic changes Dr. Toby observes only appear in the August 23, 2013 x-rays.

Dr. Guinn opines that Claimant did not have a pre-existing condition that was made worse by the incident on May 13, 2013. Instead, Dr. Guinn concludes that Claimant acutely fractured his wrist on May 13, 2013. "In my professional opinion, the injury that occurred to the patient on May 13, 2013, was a direct result of his actions while working, and therefore, his employment is the prevailing factor in the causation of the broken scaphoid. Additionally, the traumatic carpal tunnel that resulted from the swelling due to the fracture, is also considered work related, so, again, his employment is the prevailing factor in the causation of the nerve compression." (Ex. C)

I find Dr. Guinn's opinions credible and persuasive. Accordingly, I find that the May 13, 2013 work accident was, in fact, the prevailing factor in causing injuries and resulting disabilities to Claimant's right wrist. While I have taken Dr. Toby's expertise and experience into account, I do not find his opinion and conclusion to be credible in this instance because he relied on inaccurate facts to conclude that the scaphoid fracture was chronic and not the prevailing factor in the injury. Further, Dr. Toby's conclusion that the carpal tunnel syndrome was caused because of the surgery to repair the chronic scaphoid fracture is also based on the inaccurate facts he used to conclude the scaphoid fracture was chronic and not acute.

Claimant must now show that his injury did not come from a hazard or risk unrelated to his employment to which he would have been equally exposed outside of and unrelated to his non-employment life.

In the present case, the record establishes that Claimant's injuries are the result of a hazard directly related to his employment at Harley. Specifically, Claimant testified that on May 13, 2013, he was assembling motor cycle parts and using his body weight as he was pushing and moving the parts into place. The assembly line at Harley is not accessible to the public, therefore it is reasonable to conclude that his accident was the result of an activity that he only performed at work and that he would not have been equally exposed to the hazard that caused his accident outside of his work with Harley.

I find Claimant's testimony on this issue credible. As discussed earlier, the medical evidence establishes that this accident was the prevailing factor in causing Claimant's right wrist injury. Therefore, I find that the evidence clearly establishes that Claimant's right wrist injury is the result of a risk directly related to his work, to which he is not equally exposed to in his nonemployment life.

Claimant offered Exhibit I which consists of medical records and work restrictions from Dr. Toby. Prior to the hearing, the parties stipulated that the employer/insurer paid 11.71 weeks of temporary total disability in the total amount of $\ 7,802.18. However, upon receipt of Dr. Toby's September 04, 2013, causation opinion, the Employer terminated Claimant's temporary total disability benefits effective September 4, 2013. The medical records contained in Exhibit I provide Claimant's work status reports showing that Claimant was to be on "one-handed duty if available, patient to remain off work if one-handed duties are not available." Claimant testified

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Thomas Penning

Injury No. 13-046307

that Employer could not accommodate Claimant's restrictions during the time period for which Claimant seeks temporary total disability.

Claimant testified that he received short term disability benefits at the rate of $325.00 per week during the time period of September 04, 2013, through his release to return to work on February 10, 2014. As such, the employer is entitled to an offset of 325.00 per week. Claimant's temporary total disability rate is 666.04 per agreement of the parties thereby entitling Claimant to temporary total disability benefits at the reduced rate of 341.04 per week (666.04-$325.00). However, Dr. Toby notes in a medical record from Claimant's January 31, 2014 office visit that Claimant will return to work on February 3, 2014 or one week earlier than Claimant testified he returned to work. Without a record detailing the amount and number of weeks Employer paid Claimant short-term disability, my calculation of temporary total disability owed to the Claimant is supported by Dr. Toby's record which was created contemporaneously with when the return to work date was set. I hereby award Claimant past due temporary total disability benefits in the total amount of 7,366.46 (21.60 weeks x 341.04).

PERMANENT PARTIAL DISABILITY

Determining the amount or percentage of disability due to the Claimant is a finding of fact within the province of the Administrative Law Judge. *Hawthorne v. Lester E. Cox Medical Center*, 165 S.W.2d 587, 594-595 (Mo. Ct. App. 2005). The Administrative Law Judge has discretion as to the amount of the permanent partial disability to be awarded and how it is to be calculated. *Ran v. Land Star TLC*, 46 S.W.3d 614, 626 (Mo. App. W.D. 2001).

The only evidence presented on the issue of whether Claimant suffered any permanent partial disability as a result of the May 13, 2013 injury was the January 25, 2016, report of Dr. Poppa. (Ex. D) Employer did not offer any evidence to contradict or impeach the rating report of Dr. Poppa. "[T]he question of nature and extent of permanent partial disability is one for medical testimony." *Elliott v. Kansas City, Mo., Sch. Dist.*, 71 S.W.3d 652, 658 (Mo.App. W.D.2002). The sole medical testimony at the hearing on the issue of permanent partial disability came from Dr. Poppa. Dr. Poppa rated Claimant's permanent partial disability as follows:

1. 35% permanent partial disability of the right upper extremity at the 175-week level referable to Claimant's right wrist scaphoid fracture resulting in partial wrist fusion; and
2. 25% permanent partial disability of the right upper extremity at the 175-week level referable to Claimant's right-sided carpal tunnel syndrome requiring surgical release.

Claimant has significant ongoing complaints as it relates to his right wrist and hand. He has pain daily. Claimant has difficulty performing his job duties at Employer. He requests the assistance of co-workers in performing certain tasks at work. He has difficulty getting his hand into tight spaces as he cannot bend his right wrist completely. He has significant loss of range of motion, flexion and extension in his right wrist due to the partial fusion. Claimant's grip strength is diminished. The evidence presented, including Claimant's testimony, supports that Claimant's right hand and wrist injury impacts his activities of daily living, including his self-care, personal

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Thomas Penning

Injury No. 13-046307

hygiene, sleep, driving, social and recreational activities, and his job duties on the assembly line

at Harley.

Claimant's final visit with Dr. Toby was April 04, 2014. In his final office notes, Dr.

Toby states that, upon his return to work, Claimant "had some difficulty placing his hand in

certain positions. . ." Ex. I. Dr. Toby further recorded that he "[h]e has pains at the end of the

day. He takes Aleve for this." See Exhibit I.

Employer did not obtain a rating from Dr. Toby or from any other physician. The

uncontradicted testimony of a qualified medical expert cannot be ignored by the Court. *Angus v.

Second Injury Fund, 328 S.W.3d 294*, 297 (Mo.App. W.D.2010) (citing *Wright v. Sports

Associated, Inc., 887 S.W.2d 596*, 600 (Mo. banc 1994). Here, the uncontested medical evidence

is the rating from Dr. Poppa. Upon review of Dr. Poppa's report and hearing Claimant's

testimony concerning the limitation on use of his right hand/wrist, I hereby award Claimant 35%

permanent partial disability of the right upper extremity at the 175-week level. This equals 61.25

weeks of compensation. Claimant's compensation rate is $433.58. As such, the total amount of

compensation to Claimant for permanent partial disability is $26,556.78.

FUTURE MEDICAL TREATMENT

The final issue to be decided is whether the Employer is required to provide medical

treatment to the Claimant in the future. Pursuant to section 287.040 RSMo, employer shall

provide such medical treatment as may reasonably be required after the injury or disability, to

cure and relieve from the effects of the injury. "To receive an award of future medical benefits, a

claimant need not show 'conclusive evidence' of a need for future medical treatment." *Stevens v.

Citizens Memorial Healthcare Foundation, 244 S.W.3d 234*, 237 (Mo.App. S.D.2008)

(quoting *ABB Power T & D Co. v. Kempker*, 236 S.W.3d 43, 52 (Mo.App. W.D.2007)). "Instead,

a claimant need only show a 'reasonable probability' that because of her work-related injury,

future medical treatment will be necessary. A claimant need not show evidence of the specific

nature of the treatment required." *Id.*

I find that on May 13, 2013, Claimant sustained a compensable accident that arose out of

and in the course of his employment. I further find that the May 13, 2013, accident was the

prevailing factor in causing Claimant's acute scaphoid fracture and carpal tunnel syndrome and

resulting need for treatment. Claimant continues to have hardware installed in his right wrist.

Section 287.040(8) addresses instances when Employer is required to provide prosthetic devices

to cure and relieve the employee from the effects of a work-related injury. I find that Claimant

satisfied his burden of proof on this issue for future medical treatment related to the right wrist

scaphoid fracture that occurred on May 13, 2013. However, the Claimant did not meet his burden

of proof on future medical care related to the carpal tunnel syndrome.

Dr. Guinn is of the opinion that Claimant continues to have significant compression of

the median nerve in his right wrist. See Claimant's Exhibit C, pg. 5. Dr. Guinn recommended

additional medical treatment including an EMG/NCS to determine the severity of Claimant's

nerve compression. *Id.* Dr. Guinn stated that additional treatment may be required depending on

the results of the EMG/NCS.

10

Dr. Poppa stated that Claimant will more likely than not develop post-traumatic arthritis and post-surgical arthritic processes involving his right hand/wrist due to the partial fusion. Dr. Poppa stated that Claimant may require intermittent cortisone injections, prescription medications, anti-inflammatories, as well as the potential for future surgeries considering the hardware that remains in his right wrist. (Ex. D).

The employer/insurer offered the report and opinions of Dr. Toby. Dr. Toby placed Claimant at maximum medical improvement on April 04, 2014. In his final office notes, Dr. Toby stated as follows:

"We believe he has reached maximum medical improvement with respect to his carpal tunnel release. We also believe he can be seen on a p.r.n. basis for his partial wrist fusion. I discussed this with him. He understands it well. He can return to us p.r.n." (Ex. I)

Dr. Toby acknowledges that Claimant should be afforded the opportunity to see him on a "per needed basis" for his partial wrist fusion. However, he finds Claimant to be at maximum medical improvement. Dr. Guinn opines that Claimant needs additional diagnostic testing which may indicate that he needs more treatment. This opinion does not satisfy the burden of proof to require future medical treatment for the carpal tunnel syndrome.

I, therefore, find that Claimant met his burden and established that there is a reasonable probability that because of his May 13, 2013 work-related injury future medical care will be necessary. The Employer/Insurer shall be liable to Claimant for future treatment needs necessary to cure and relieve Claimant of the effects of his right scaphoid fracture injury that occurred on May 13, 2013.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of Josh Perkins.

Icortify thot on 3-21-17

I delivered a copy of the foregoing award in the parfins in the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.


Made by:


Angie Heffner

Administrative Law Judge

Workers' Compensation Division