Richard Peeler v. Missouri Department of Corrections

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 16-003861**

**Employee:** Richard E. Peeler

**Employer:** Missouri Department of Corrections

**Insurer:** Central Accident Reporting Office

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund (Open)

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated May 24, 2018, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Kevin A. Elmer, issued May 24, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **4th** day of January 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No.: 16-003861

Employee: Richard E. Peeler

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

I found Dr. Schlafly's opinion persuasive that employee's carpal tunnel syndrome is not due to diabetes because employee does not have issues with his legs (peripheral neuropathy), which typically occurs with diabetic individuals in their legs prior to their hands. *Transcript*, page 144-45. Dr. Schlafly also testified that it would be "most unusual" for employee's degree of issues in his hands to be related to his diabetes without issues in employee's legs. *Transcript*, page 156. Dr. Schlafly further opined that employee's carpal tunnel syndrome could continue to worsen, even while in a non-hand-intensive position, due to the severity of the carpal tunnel syndrome. *Transcript*, page 163.

Dr. Brown's opinion, on the other hand, is based on limited and inaccurate information. For example, Dr. Brown thought that employee worked four 10-hour days during his entire tenure, instead of only during a short period of time. *Transcript*, page 303. Dr. Brown thought that employee opened doors electronically, instead of physically. *Transcript*, page 331. Also, Dr. Brown reviewed only a portion of the over 600 pages of medical records that Dr. Schlafly reviewed. *Transcript*, page 303. There is insufficient evidence to show that Dr. Brown's review of medical records included records from the Department of Veterans Affairs that showed that employee's diabetes was controlled and, therefore, not likely the cause of his carpal tunnel syndrome.

For these reasons, I find that employee established that his carpal tunnel syndrome was not due to his diabetes, but arose out of and in the course of his employment with employer. Therefore, employee's injury was compensable pursuant to the workers' compensation law.

I would reverse the administrative law judge's award denying benefits. Because the Commission majority has decided otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member

Issued by DIVISION OF WORKERS' COMPENSATION

**Employee:** Richard Peeler

**Dependents:** N/A

**Employer:** Missouri Department of Corrections

**Insurer:** Central Accident Reporting Office

**Additional Party:** Treasurer of Missouri, as the Custodian of the Second Injury Fund

**Hearing Date:** February 26, 2018

**Checked by:** KAE

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 25, 2016
5. State location where accident occurred or occupational disease was contracted: Texas 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? No
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: Claimant alleged repetitive nature of turning keys, opening doors/locks, writing, performing pat-downs and cell searches resulted in injuries to wrists and hands.
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 and hands.
14. Nature and extent of any permanent disability: 0.00
15. Compensation paid to-date for temporary disability: 0.00
16. Value necessary medical aid paid to date by employer/insurer? $0.00
17. Value necessary medical aid not furnished by employer/insurer? 0.00
18. Employee's average weekly wages: 633.64

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Peeler

1. Weekly compensation rate: $422.43 TTD/PTD/PPD
2. Method wages computation: Stipulation by the parties

COMPENSATION PAYABLE

1. Amount of compensation payable: $\ 0.00

TOTAL: $\ 0.00

1. Future requirements awarded: None

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Peeler

Injury No. 16-003861

**Employee:** Richard Peeler

**Injury No. 16-003861**

**Dependents:** N/A

**Employer:** Missouri Department of Corrections

**Insurer:** Central Accident Reporting Office

**Additional Party:** Treasurer of Missouri, as the Custodian of the Second Injury Fund

**Hearing Date:** February 26, 2018

**Checked by:** KAE

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on February 26, 2018. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about March 12, 2018.

The employee appeared personally and through his attorney Kevin Spear. The Employer appeared through its attorneys, Catherine Goodnight, Assistant Attorney General, and Cara Harris, Assistant Attorney General. This matter was requested as a Hardship Hearing, and as a result, the Second Injury Fund did not appear. However, after hearing evidence, this matter is decided as a final hearing award.

The parties entered into a stipulation of facts. The stipulation is as follows:

1. On or about January 25, 2016, the Missouri Department of Corrections was an employer operating under and subject to The Missouri Workers' Compensation Law and during this time was fully insured by the Central Accident Reporting Office.

1. On the alleged injury date of January 25, 2016, Richard Peeler was an employee of the employer and was working under and subject to The Missouri Workers' Compensation Law.

1. The above-referenced employment and accident occurred in Texas County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

1. The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Peeler

Injury No. 16-003861

(5) At the time of the alleged accident of January 25, 2016, the employee's average weekly wage was 633.64, which is sufficient to allow a compensation rate of 422.43 for temporary total disability compensation/permanent total disability compensation, and a compensation rate of $422.43 for permanent partial disability compensation.

(6) No temporary total disability compensation has been provided to the employee.

(7) The employer and insurer have not provided any medical treatment to the employee or paid any medical expenses.

(8) The attorney fee being sought by Attorney Kevin Spear is 25 percent of the amounts recovered.

ISSUES

The issues to be resolved by hearing include:

(1) Whether the employee sustained an accident or incident of occupational disease on or about January 25, 2016; and, if so, whether the accident or occupational disease arose out of and in the course of his employment with the employer.

(2) Whether the employee notified the alleged employer of his injury as required by Section 287.420, RSMo.

(3) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries.

EVIDENCE PRESENTED

The employee testified at the hearing in support of his claim. In addition, the employee offered for admission the following exhibits:

Exhibit 1........................ Deposition of Dr. Bruce Schlafly with reports and CV

Exhibit 2.................................................................................VCLF Expenses

Exhibit 3.................................................................................VCLF Contingent Fee Agreement

The exhibits were received and admitted into evidence.

The employer and insurer presented two witnesses at the hearing of this case - David Pershing and David Southard. In addition, the employer and insurer offered for admission the following exhibits:

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Peeler

Injury No. 16-003861

Exhibit A............................................................................ Protective Order

Exhibit B........................................................................ Deposition of Claimant taken August 22, 2016

Exhibit C........................................................................ Deposition of Dr. David Brown with reports and CV

Exhibit D........................................................................ Department of Veterans' Affairs records, 276 pages

Exhibit E........................................................................ Harry S. Truman Veterans' Hospital records, 352 pages

Exhibit F........................................................................ 57 numbered photos taken at South Central Correctional Center

Exhibit G........................................................................ Offender Movement Pass

The exhibits were received and admitted into evidence.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took administrative or judicial notice of the documents contained in the Legal File, which include:

- Notice of Hearing

- Answer of Employer/Insurer to Claim for Compensation

- Answer of Second Injury Fund to Claim for Compensation

- Claim for Compensation

- Report of Injury

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

DISCUSSION

A hardship hearing was held in this matter on February 26, 2018 in Springfield. The parties agreed to have the trial in Springfield, though venue lies in West Plains. The issues to be decided at this hardship hearing included causation, need for treatment, and if proper notice of the claim was given to the employer. At issue is an alleged occupational disease to Claimant's bilateral upper extremities.

Mr. Peeler's Testimony

Richard Peeler testified on his own behalf that he has been a long-time employee of the Departm