John Weavers v. Missouri Department of Corrections

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 16-031643

Employee: John B. Weavers

Employer: Missouri Department of Corrections

Insurer: Central Accident Reporting Office

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 September 4, 2018, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Victorine Mahon, issued September 4, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 27th day of March 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Issued by Missouri Division of Workers' Compensation

Claimant: John B. Weavers

Injury No. 16-031643

1. Value necessary medical aid not furnished by employer/insurer? None.

1. Claimant's average weekly wages: 765.95.

1. Weekly compensation rate: 510.62 (TTD)/$464.58 (PPD).

1. Method wages computation: By agreement.

**COMPENSATION PAYABLE**

1. Amount of compensation payable: None.

1. Second Injury Fund liability: None.

**TOTAL: NONE.**

1. Future requirements awarded: None.

Issued by Missouri Division of Workers' Compensation

Claimant: John B. Weavers

Injury No.: 16-031643

**FINDINGS OF FACT and RULINGS OF LAW:**

**Dependents:** Not applicable

**Employer:** Missouri Department of Corrections

**Additional Party:** Not applicable

**Insurer:** Central Accident Reporting Office

**Hearing Date:** July 11, 2018

**Injury No.:** 16-031643

**Before the DIVISION OF WORKERS' COMPENSATION**

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

**Insurer:** Central Accident Reporting Office

**Hearing Date:** July 11, 2018

**Checked by:** VRM/va

**INTRODUCTION**

The undersigned Administrative Law Judge conducted a hearing in this case on July 11, 2018. Claimant John B. Weavers appeared in person and with his attorney Kevin Spears. Employer Missouri Department of Corrections and the Central Accident Reporting Office appeared by attorney Cara Harris. The parties were afforded an opportunity to submit briefs on or before July 25, 2018. Although this proceeding was set as a hardship hearing, Employer requested that if the administrative law judge determined the dispositive issues in Employer's favor, the decision be designated as a Final Award. That request was granted.

**STIPULATIONS and ISSUES**

The parties entered into the following stipulation of facts and narrowed the issues, as follows:

1. Employer, a qualified self-insured entity, was operating under and subject to the provisions of the Missouri Workers' Compensation Act on the date of the alleged injury.
2. On or about April 12, 2016, Claimant was an employee of the State of Missouri, Department of Corrections and subject to the Missouri Workers' Compensation Act.
3. The claim was filed within the time allowed by law.
4. Claimant's average weekly wage is 765.95, resulting in a wage rate of 510.62 for temporary total disability and the maximum rate of $464.58 for permanent partial disability.
5. Employer furnished no medical aid and no temporary disability benefits.

The parties further stipulated that the issues to be resolved by hearing are as follows:

MNKOI 0001632198

Issued by Missouri Division of Workers' Compensation

Claimant: John B. Weavers

Injury No. 16-031643

(1) Did Claimant sustain an occupational disease?

(2) Did the alleged occupational disease arise out of and in the scope and course of employment with Employer?

(3) Is the alleged occupational disease medically causally related to Claimant's work for Employer?

(4) Is Employer liable for medical aid to cure and relieve the effects of Claimant's occupational disease?

In addition to his testimony, Claimant offered the following exhibits, which were admitted:

- Exhibit 1 Deposition, reports and CV of Dr. Bruce Schlafly

- Exhibit 2 Certified medical records from TCMH Family Clinic

- Exhibit 3 VCLF Expenses

- Exhibit 4 VCLF Contingent Fee Agreement

- Exhibit 5 Addendum Report of Dr. Bruce Schlafly dated May 29, 2018

Employer offered the following exhibits which were admitted:

- Exhibit A Deposition and reports of Dr. David Brown

- Exhibit B Report of Dr. Shawn Kutnik dated December 11, 2017

- Exhibit C Photograph of the door to MVE

- Exhibit D Photograph of the door handle to MVE

- Exhibit E Photograph of a metal storage container with padlock

- Exhibit F Photograph of a wooden storage container with padlock and keys

- Exhibit G Photograph of a padlock with keys

- Exhibit H Protective order

- Exhibit I Deposition of Claimant dated March 15, 2017

The undersigned made no markings to any exhibit.

John B. Weavers (Claimant) is in his mid-fifties. He has worked nearly 30 years for the Missouri Department of Corrections. He began his career as a correctional officer in Jefferson City at the Missouri State Prison. He has worked at the South Central Correctional Center (SCCC) since 2000. Since 2003, he has worked in the Missouri Vocational Enterprises (MVE) section within SCCC. MVE operates as a furniture factory at the correctional facility and employs inmates to build or repair furniture used by the agencies of the State of Missouri and its employees. In addition to his work at SCCC, Claimant worked as a clerk at a retail store.

Issued by Missouri Division of Workers' Compensation

Claimant: John B. Weavers

Injury No. 16-031643

For the Department of Corrections, Claimant generally worked 40 hours per week, consisting of 4 days a week, 10 hours per day. Throughout his workday, Claimant pushed open heavy doors, unlocked or locked various doors, padlocks, toolboxes, and other fastened containers. During his career he would often strip search as many as 123 inmates multiple times in a day. Recently, however, there were only 67 inmates working in MVE, and the searches now generally were pat-downs whenever an inmate set-off a metal detector. Claimant noticed numbness and tingling in his hands, particularly at work, beginning in 2012.

Inmate Searches

Prior to 2012, Claimant was required to conduct strip searches off all inmates entering and exiting the MVE factory. The inmates entered a room three at a time. Each one would strip off all of their clothing. Claimant and typically another officer would search all of the clothing, which included wringing each piece of clothing thoroughly to check for contraband. Claimant testified that each search, including an inmate's clothing and shoes, took at least two minutes. When the searches were completed, the three offenders dressed, proceeded into the work area, and three more offenders would enter the dress-out room. The process continued until all 123 offenders had been searched. Claimant contended that the process was completed within one hour. This is mathematically impossible if the each search actually took at least two minutes and there were more than 100 inmates. Claimant had no explanation for this phenomenon during cross-examination.

After each inmate was searched at the beginning of their assigned work shift, Claimant explained that there were additional searches beginning around 8:30 a.m. when inmates left the area for chapel or medical appointments. Then there was the lunch time when more searches would occur. Finally, at approximately 3:45 p.m., the correctional officers began the process of releasing the offenders from the MVE area for the day, which again required the strip search of all offenders as they left. Claimant's shift ended at 4:00 p.m. While there might be additional correctional officers to assist, Claimant did not explain how they were able to do the strip search of more than 100 people in only 15 minutes at the end of the day.

In response to the Prison Rape Elimination Act passed by Congress, Missouri prisons eliminated inmate strip searches sometime after 2012. For the last several years, correctional officers began relying on metal detectors and patdowns rather than strip searches. In deposition, Claimant said these were a "pretty intense pat search" which took about one minute each. The patdown search was completed every time an inmate exited the MVE area and whenever an inmate was unable to clear a metal detector upon arriving at the MVE factory (Ex. I, p. 27).

Locking/Unlocking Doors and Boxes

About 100 times per day Claimant unlocked and opened a heavy fire-type door to the MVE area, which he believed weighed about 250 pounds. He used a large square brass key with his right hand to unlock the door and his left hand or body to push it open. He also helped unlock tool boxes, including unlocking a large box that stored about 20 other toolboxes within the large box. When offenders left the area, he had to place I.D.s into a box which was locked and unlocked.

Issued by Missouri Division of Workers' Compensation

Claimant: John B. Weavers

Injury No. 16-031643

Claimant's duties also included completing paperwork with the aid of a computer. About once or twice per week he searched furniture to assure there was no contraband entering the correctional facility. This included opening drawers, grabbing, squeezing, and twisting pillows and cushions, and unzipping cushions. Claimant also used a radio located on his shoulder, which required him to push a button with his right thumb to tell guards on the outside when someone was leaving the MVE area. He occasionally was assigned to work in other areas of the prison such as the segregation unit or the sally port. He participated in contraband searches, broke up fights two or three times a week, and generally supervised the inmates. Claimant believed that every bit of his time in MVE involved hand-intensive work. While most of the time he had another correctional officer working with him, there were days when he was the only correctional officer working in MVE.

The medical experts do not dispute that Claimant suffers from carpal tunnel syndrome and that Claimant has pain. Claimant rated the pain as a five or six on a ten-point scale. He said he has shooting pain that goes from his wrists to his elbow as well as across the tops of his fingers and down into his thumb. He awakes during the night due to his symptoms of aching and throbbing pain. He gets relief from ice baths. He has lost grip strength. Claimant believes his symptoms improve when he is away from work. He said he experiences additional pain when he performs patdowns, turns keys, pushes open doors, lifts, cuffs inmates, and pushes his mic to talk to other officers.

On March 9, 2016, Claimant sought treatment for his wrists and right thumb from Dr. Wolfe, who was Claimant's primary care physician. At that time, the physician noted that Claimant complained of pain in his wrist and right thumb, which gets better if he shakes his hands. Dr. Wolfe noted positive Phalen's and Tinel's signs. Dr. Wolfe diagnosed Claimant with bilateral carpal tunnel syndrome and recommended night splints, and if not effective, then an EMG and a referral to an orthopedic specialist. On April 12, 2016, Dr. Wolfe reported that Claimant's symptoms were worsening. Claimant first reported his condition to his employer on May 3, 2016, and requested treatment.

**Dr. David Brown**, is a board certified orthopedist with a specialty in hand surgery. His practice primarily involves the treatment of patients. He saw Claimant at the request of Employer on August 30, 2016.

Dr. Brown ordered x-rays which revealed moderately-advanced osteoarthritis at the base of Claimant's thumbs, characterized by narrowing in the joint and osteophyte formation. Dr. Brown said such condition could explain Claimant's wrist pain. He related studies showing that osteophyte formation at the base of the thumb, as well as Claimant's elevated body mass index and age, were risk factors for carpal tunnel syndrome. Dr. Brown said a study from the Journal of Hand Surgery shows "that patients with osteoarthritis in the base of the thumb like [Claimant] had, incidents of carpal tunnel syndrome was greater than 40 percent." (Ex. A, p 34). Consistent with Dr. Wolfe's findings, Dr. Brown diagnosed Claimant with probable bilateral carpal tunnel syndrome and recommended an EMG. Although Claimant believed his job duties were repetitive and hand intensive, that was not the impression he imparted to Dr. Brown.

Issued by Missouri Division of Workers' Compensation

Claimant: John B. Weavers

Injury No. 16-031643

Dr. Brown reviewed Claimant's deposition, but nothing Claimant had said changed Dr. Brown's opinion that Claimant's job duties were intermittent, varied, and not sufficiently repetitive to be the prevailing factor in causing Claimant's carpal tunnel syndrome. As Dr. Brown explained in his own deposition of November 17, 2017:

> Repetitive trauma is defined as an accumulation of microtrauma over time. And if the activities are not frequent and there's rest intervals between doing them, it's unlikely those activities would result in any permanent trauma to a nerve or a tendon or any type of repetitive trauma type of condition.

(Ex. A, pp. 17-18).

Dr. Brown went on to explain that there are long list of activities and occupations that put one at risk for developing carpal tunnel syndrome. Dr. Brown differentiated Claimant's work from that of an assembly line worker who repetitively performs a certain function over a short interval of time. Based on Mr. Weaver's description of his work as a corrections officer, Dr. Brown simply did not believe that such duties were sufficiently repetitive nor the type of hand-intensive duties that would cause carpal tunnel syndrome. Moreover, Dr. Brown said performing the same activity 50 or 100 times a day, such as unlocking a door with a Folger Adams key, even if done for 17 or 20 years, would not cause carpal tunnel syndrome. "Now, if he's doing it 400 or 500 times a day, then that could alter my opinion." (Ex. A, p. 40). Claimant never testified to opening the door with the Folger Adams key 400 to 500 times per day.

Dr. Bruce Schlafly also is a board certified orthopedic hand surgeon. He examined Claimant and created a report on December 14, 2016. Dr. Schlafly believed the locking and unlocking of the door as well as the patdown searches caused Claimant to develop carpal tunnel. Dr. Schlafly agreed Claimant told him that he was opening and closing and unlocking the heavy door leading to the MVE area about 100 times a day. Dr. Schlafly testified that unlocking the door 100 times a day during Claimant's 10-hour work shift, which would average 10 times an hour, or one time every 6 minutes is enough to have caused carpal tunnel syndrome. Dr. Schlafly believed that it is not just a repetition factor of unlocking the door that contributed to Claimant's carpal tunnel, but the duration of employment and the weight of the door which are important.

Dr. Schlafly agreed that if Claimant is pulling the door shut it would not cause as much impact on his hand. Dr. Schlafly did not know how much the door weighed. Dr. Schlafly opined that the searching of the factory, even only once or twice a week, could have contributed to Claimant's development of carpal tunnel, especially if he was lifting heavy items weighing between 30 and 60 pounds while doing the searching.

Dr. Schlafly was unaware of studies that tied Claimant's osteoarthritis of the thumb joint to development of carpal tunnel. Dr. Schlafly did not have an opinion as to whether obesity was a factor in the development of carpal tunnel. He was aware of studies that link carpal tunnel syndrome to a BMI of 30 or greater, but he had not seen articles linking obesity as a cause of carpal tunnel syndrome in patients with a body mass index less than 30. But as Dr. Schlafly clarified, "I'm not saying they don't exist, but I've not seen those." (Ex. 1, p. 17). Looking at all non-occupational factors, Dr. Schlafly testified "well based upon my understanding of his work activities as given in my report, I think it is probable that Mr. Weavers' carpal tunnel syndrome is related to his work activities at the prison" (Ex. 1, p 15 emphasis added).

7

Issued by Missouri Division of Workers' Compensation

Claimant: John B. Weavers

Injury No. 16-031643

Even though Dr. Schlafly believed the patdowns as described by Claimant have contributed to the development of carpal tunnel, he said they were not the most important contribution even if performed repetitively. He testified as follows:

Q: Okay. And in your opinion, the task of performing a patdown, if done repetitively, could that lead to tendinitis and thereby to carpal tunnel syndrome?

A: No.

Q: Okay. So Mr. Weavers told you that he performs about 100 pat searches a day over the past, you know, 14-15 years, which equates to ten pat searches an hour, so one every six minutes. Does that sound about right?

A: Yes.

Q: Okay. He testified in his deposition that it takes about a minute to perform the patdown. Would that number of pat searches be considered repetitive in your opinion?

A: Yes.

Q: Okay. By itself would you consider the pat searches he performed sufficient to find that his work activities caused his bilateral carpal tunnel syndrome?

A: I'm not sure. Not necessarily.

(Ex. 1, pp. 22 - 23).

Dr. Schlafly next testified regarding the locking and unlocking and the opening and closing of the heavy steel door of about 100 times a day and how that impacted Claimant's upper extremities. Dr. Schlafly said that placing the wrist into a position like a pushup to force open a door does put tension on the median nerve. He agreed, however, that merely opening and closing and locking and unlocking does not involve the carpal tunnel:

Q: So Dr. Kutnik again opined that the task of locking and unlocking, pushing and closing the heavy steel doors would not involve gripping, lifting or squeezing over the relevant areas of the hand that would be expected to increase the risk of carpal tunnel syndrome. Do you agree with that opinion?

A: Well, you can push and twist without gripping. I agree with that. Those are different activities, but the activities involved with the hands and wrists when opening and closing doors doesn't involve the area of the carpal tunnel.

(Ex. 1, p 25).

Still, Dr. Schlafly believed that if you combined all of Claimant's activities that included patdowns, the doors, the padlocks, searches, and reports, the job was hand-intensive and sufficiently repetitive to cause his carpal tunnel.

Dr. Schlafly admitted Claimant is not exposed to any vibrations in his job nor is he exposed to any impact maneuvers other than pushing on the steel door. Dr. Schlafly testified the most important thing that

Issued by Missouri Division of Workers' Compensation

Claimant: John B. Weavers

Injury No. 16-031643

contributes, in his opinion, to the development of Claimant's carpal tunnel is the opening and closing and locking and unlocking of the heavy door, with the patdowns coming in second.

Finally, adopting OSHA terminology, Dr. Schlafly conceded that repetitive work means cycles of motion about five times per minute or keyboard activity greater than four hours per day, but he believed force also played a part. Dr. Schlafly admitted in his testimony that a certain amount of people develop idiopathic carpal tunnel.

Dr. Shawn M. Kutnik of Archway Orthopedics and Hand Surgery saw Claimant on December 11, 2017, at the request of Employer. Like Dr. Brown, Dr. Kutnik was provided with a description of Claimant's job activities and the Claimant's deposition. He also reviewed Dr. Schlafly's opinion and Dr. Brown's deposition. Dr. Kutnik agreed that Claimant had degenerative arthritis at the CMC joint to a greater degree on the right side. He agreed that the arthritis in the bilateral thumbs and Claimant's age were preexisting risk factors for bilateral carpal tunnel syndrome. He found, like Dr. Brown, that Claimant's job responsibilities were consistent with intermittent use of the hands rather than a constant or repetitive use. He determined that the job activities were neither forceful enough nor done on a constant enough basis to be considered a prevailing factor. As such, it was his opinion that the Claimant's job responsibilities were not the prevailing factor in the development of bilateral carpal tunnel syndrome.

Credibility Finding

I do not find Claimant wholly credible. I find that he exaggerated the amount of time and frequency with which he performed various job duties, particularly the strip searches he previously performed prior to the change in the law. His estimate of the number of strip searches he performed, and the time in which they took, are mathematically impossible. While this had been only one part of his job, his embellishment in this regard raises serious concerns regarding the reliability of the remainder of his testimony. I also find the causation opinions of Dr. Brown and Dr. Kutnik more persuasive than the opinion of Dr. Schlafly.

CONCLUSIONS OF LAW

The seminal issue in this case is whether Claimant's job duties are the prevailing factor in the cause of his development of carpal tunnel syndrome. Claimant has the burden of proving that his employment activities are the prevailing factor in the cause of his carpal tunnel. *Townser v. First Data Corp.* 215 S.W.3d 237, 241 (Mo. App. E.D. 2007). Occupational disease is defined in § 287.067.1 RSMo, as:

> 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 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.

Missouri specifically outlines the standard for a repetitive use claim in § 287.067.3 RSMo, as follows:

> 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

Issued by Missouri Division of Workers' Compensation

Claimant: John B. Weavers

Injury No. 16-031643

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.

Medical causation, not within common knowledge or experience, must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause. Brundage v. Boehringer Ingelheim, 812 S.W.2d 200, 202 (Mo. App. W.D., 1991); Matzker v. St. Joseph Minerals Corp., 740 S.W.2d 362 (Mo. App. E.D. 1987). Because the cause and development of an occupational disease is not a matter of common knowledge, there must be medical evidence of a causal connection. Vickers v. Dept. of Public Safety, 283 S.W.3d 287 (Mo. App. W.D. 2009).

Having reviewed all of the evidence, and having found credible and persuasive the opinions of Dr. Brown and Dr. Kutnik, I conclude that Claimant has failed to prove that his work with Employer is the prevailing factor in causing his medical condition and disability. Because this determination is dispositive, I deny all benefits to Claimant under the Workers' Compensation Act for this claim.


I deilvered a copy of the foregoing mward to the parties to the case. A complete record of the method of delivery and deto of service upon each ourty is retained with the executed mward in the Division's case file. By $\qquad$ cap


Made by:


Chief Administrative Law Judge Division of Workers' Compensation