Archie Winnett v. Builders Bloc

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 14-089700**

**Employee:** Archie Winnett

**Employers:**

1. Builders Bloc
2. State of Missouri Department of Social Services

**Insurers:**

1. Missouri Employers Mutual Insurance Company
2. Central Accident Reporting Office (CARO)

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 July 3, 2018, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Lorne J. Baker, issued July 3, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 3rd day of April 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

**Employee:** Archie Winnett

**Dependents:** N/A

**Employer:** Builder's Bloc

**Additional Party:** Missouri Department of Social Services

**Insurer:** Missouri Employers Mutual Insurance

**Hearing Date:** April 9, 2018

**Injury No.:** 14-089700

**Before the Division of Workers' Compensation**

**Department of Labor and Industrial Relations of Missouri**

**Jefferson City, Missouri**

**Checked by:** LJB

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: Alleged through October 29, 2014
5. State location where accident occurred or occupational disease was contracted: Alleged St. Louis 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? 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 alleges through repetitive use of his upper extremities he sustained an occupational disease of peripheral compression neuropathies, including bilateral carpal tunnel and cubital tunnel syndrome.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: None
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: $0
16. Value necessary medical aid paid to date by employer/insurer? $0

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Issued by DIVISION OF WORKERS' COMPENSATION

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

1. Employee's average weekly wages: 429.00

1. Weekly compensation rate: 286.00/$286.00

1. Method wages computation: By stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable: 0

Unpaid medical expenses: 0

TOTAL: $0

1. Future requirements awarded: None

Injury No.: 14-089700

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 14-089700

Employee: Archie Winnett

Dependents: N/A

Employer: Builder's Bloc

Additional Party: Missouri Department of Social Services

Insurer: Missouri Employers Mutual Insurance

The matter of Archie Winnett ("Claimant") proceeded to hearing to determine the liability of Employer Builder's Bloc ("Builder's Bloc") and Employer Missouri Department of Social Services ("MDSS"). Attorney Daniel Keefe represented Claimant. Attorney Timothy Maurer represented Employer 1 and its Insurer, Missouri Employers Mutual Insurance. Attorney Da-Niel Cunningham represented MDSS and its Insurer, Central Accident Reporting Office.

The parties dispute that up through October 29, 2014, Claimant sustained a compensable injury arising out of and in the course of his employment. The parties stipulated Claimant was, at different times, an employee of both employers and had an average weekly wage of $429.00 at the time of the alleged injury, which resulted in applicable rates of compensation of $286.00 for both temporary total disability benefits ("TTD") and permanent partial disability ("PPD") benefits. The parties further stipulated venue is proper in the city of St. Louis, that both employers received proper notice, and that Claimant filed the claim within the time required by law. Neither employers paid TTD or medical benefits.

The issues for determination are the following: 1) Accident/occupational disease; 2) arising out of and in the course and scope of employment, 3) medical causation; and 4) liability for future medical care and treatment.

At the hearing, Claimant testified in person. The parties offered a joint exhibit into evidence. The exhibit contained the following records:

1. Dr. Brent Koprivica medical report
2. Dr. David Brown medical records
3. Capital Region Physicians medical records
4. Missouri Dept. of Social Services Employment records
5. Employer's First Report of Injury and Information forms dates October 23, 2014, Claimant's Application for Employment dated August 14, 2013, and Claimant's Employment Verification report/wage information
6. Division of Employment Security business records
7. Transcript of Claimant's deposition on February 2, 2015
8. SSM Healthcare/SMJMC Occupational Medicine records
9. Wheat Chiropractic medical records
10. Dr. Brent Berliner business records
11. Dr. Brent Berliner medical records (187 pages)

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Issued by DIVISION OF WORKERS' COMPENSATION

In addition, Builder's Bloc offered the following exhibit which was admitted into evidence without objection.

A. Transcript of Claimant's recorded Statement taken on October 24, 2014

The parties asked for a final award if Claimant was found to be at maximum medical improvement ("MMI"). Claimant sought a temporary award only in the event Claimant was not determined to be at MMI and additional medical treatment was awarded.

Findings of Fact

Claimant is a thirty-nine year old single person and the father of four children. Prior to working for MDSS or Builder's Bloc, Claimant became a certified massage therapist in 2010 after completing a nine-month massage therapy program. He worked as a licensed massage therapist for Therapeutic Touch from March 2011 through February 8, 2013. Claimant then worked as a self-employed, subcontracted massage therapist with Berlener Chiropractic, PC beginning March 11, 2013, through late August 2014. During this period of time, Claimant performed 149 massages. When he was not required to be at Dr. Berlener's office, he also separately performed massages at his clients' homes. Overlapping part of his time as a subcontracted massage therapist, he also worked 30 to 50 hours a month for an event venue, La Maison. His hand intensive duties included busing dishes, setting up and breaking down the event, general cleaning of the venue which included mopping, sweeping, cleaning, laundry, dishwashing and tending bar. He stopped working at La Maison in late summer 2014. Claimant also worked for UPS during the winter season of 2013 into early 2014.

Claimant worked full time for MDSS as an office support assistant beginning in March of 2014 through August 30, 2014. His job duties involved significant file work, some computer work, copying, organizing, phone work, basic customer service and other office tasks. He left his job with MDSS for a better paying position as a full-time carpenter's apprentice and was hired by Builder's Bloc in this capacity on September 22, 2014. Claimant hoped his apprenticeship would later lead to a journeyman or master carpenter position with a future pay.

1 Claimant testified he is engaged to be married in May 2018 and is also expecting the birth of another child.

2 Joint Ex. 6.

3 Joint Ex. 10.

4 Joint Ex. 10.

5 Joint Ex. 7.

6 Id., p. 7.

7 Claimant denied at his deposition and at hearing that he had other employment or side jobs while working for MDSS. The business records from Berlener Chiropractic, Inc., indicate to the contrary that Claimant was performing massage therapy services during this time.

8 According to the transcript of Claimant's recorded statement taken on October 24, 2014, Claimant answered affirmatively when asked if he was hired by "McBride" on September 22, 2017. The statement was taken by a representative from Missouri Employers Mutual Insurance. The transcript indicates the policy holder is McBride & Son Services Co. The Court assumes any reference to McBride related to Claimant's job duties is referring to Claimant's work for Builder's Bloc. The parties did not attempt to clarify or explain this distinction at hearing, but based upon the questions and answers contained therein, the Court assumes any reference to McBride is also a reference to Employer Builder's Bloc.

9 Dr. David Brown's narrative report states Claimant indicated to him his first day of work was September 29, 2014. Wage records indicate Claimant worked a total of 10 hours the week ending September 22, 2014 and worked 38 hours the week ending September 29, 2014.

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Increase. His apprenticeship job duties included heavy physical labor, carrying heavy loads of lumber and supplies, using hand tools, sweeping, picking up debris, and using power tools including drills, saws, and a nail gun. The use of power tools exposed his hands to a lot of vibrations. He carried items ranging from small scraps of wood to long pieces of lumber of various lengths and widths.

Claimant was asked during his recorded statement and at his deposition when his symptoms started and when he first noticed them. On both occasions, Claimant indicated the pain began the morning of October 23, 2014. The pain was in his right arm and ran approximately from his shoulder down to the digits in his hand and he had numbing in both hands and numbing from the right elbow down to the right finger tips. He testified at hearing his uncomfortable symptoms began "roughly two weeks" after starting work for Builder's Bloc.

During his recorded statement of October 24, 2014, he stated the symptoms included joint pain in his elbow, some minor issues with his shoulder and numbness and tingling in his hands and forefinger, middle finger, index finger and thumb roughly two weeks after he started working for Builder's Bloc. He did not know what was causing his pain and could not depict a specific time or act that was causing his complaints. He complained of numbing and tingling from his mid forearm down to his hands and from his right shoulder down to his hand. He had pain only on his right upper extremity, but had feelings of numbness and tingling in both hands. He did not know what was causing his right arm pain, but indicated the pain ran from approximately his shoulder down to the digits in his hand. He first had symptoms of numbing and tingling when he attempted to go to sleep between October 6 and October 10, 2014.

At deposition, he stated he woke up around 1:00 or 2:00 a.m., with excruciating pain in his hands and that his hands felt fat and tingly. The pain was up his right forearm and he had shooting pain down the back of his right shoulder. Through the rest of the morning he had shooting pain coming down both arms and into his hands. He further indicated he had problems getting dressed to go to work and could not hold a coffee cup. He then called Builder's Bloc to let them know something was wrong. Nothing specifically stood out to him as to why he was hurting.

The "Initial Report of Injury Information" report, dated October 23, 2014, notes Claimant's complaints started 5-6 weeks ago and that there was no incident involved. Wage records from Employer Builder's Bloc indicate Claimant worked for Builder's Bloc a total of 87 hours the week ending October 6, 2014, and a total of 150 hours as of the week ending October 20, 2014.

At Builder's Bloc's referral, Claimant presented to Dr. David Brown, a board certified hand and upper extremity surgeon, for evaluation on October 29, 2014. He advised Dr. Brown he first developed symptoms in both upper extremities after working for Builder's Bloc for about

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 14-089700

two weeks. Dr. Brown believed Claimant described symptoms suggestive of carpal tunnel syndrome and recommended standard electrodiagnostic studies of both upper extremities and conservative treatment. While Dr. Brown believed Claimant's work activities potentially could contribute to the development of peripheral compression neuropathies, he did not believe Claimant was exposed long enough to result in any type of repetitive trauma induced related condition. He did not believe Claimant's short time working for Builder's Bloc would be considered the prevailing factor in the need for the recommended further evaluation.

At the referral of his attorney, Claimant presented to Dr. P. Brent Koprivica for an independent medical evaluation on September 11, 2017. Dr. Koprivica prepared a narrative report in connection with his evaluation, but did not testify. Dr. Koprivica noted historically there was not any extensive repetitive hand use involved in Claimant's work for the State of Missouri¹⁸. Claimant indicated to the doctor his work for MDSS was very sedentary and not something that exposed his upper extremities to any cumulative injury of significance. Claimant indicated to him the significant history of chronic cervical, thoracic and lumbar pain for years with an onset of neck and back pain beginning around the age of 12. He noted Claimant smoked up to one pack of cigarettes a day for twenty-five years, but quit smoking in 2015. Dr. Koprivica also noted Claimant had a significant amount of past chiropractic treatment. Claimant denied having any significant prior intensive upper extremity recreational activity prior to October 29, 2014.

According to Dr. Koprivica's report, Claimant described an acute onset of symptoms which followed his lifting a 20' x 20' wall with 2" x 6" frame with multiple coworkers. Following this incident, the next day, Claimant noted he was unable to use either hand forcefully for gripping and had difficulty making a fist with either hand. Claimant also thought he might've developed a neck injury from the onset of his disabling symptoms.¹⁹

Taking Claimant's subjective history into account (i.e., the acute onset of lifting a wall), Dr. Koprivica characterized "the onset on an acute basis of being suggestive of the possibility of a cervicothoracic regional injury combined with the development of double crush symptomology based on preexistent non-symptomatic issues of bilateral carpal tunnel syndrome and bilateral cubital tunnel symptoms." Based on Claimant's description of onset of symptoms, Dr. Koprivica opined Claimant's description of onset of symptoms would be suggestive of a compensable event (emphasis added). He further noted if there was MRI evidence of potential impingement in the cervicothoracic region, he would consider an acute onset date associated with precipitating new structural injury in the cervicothoracic region along with double crush phenomenon resulting in disabling symptoms from peripheral entrapment neuropathies. Conversely, he opined, if no significant cervicothoracic regional impairment was identified, Dr. Koprivica considered disabling symptoms to be based on an occupational disease claim from cumulative injury involving the development of peripheral entrapment neuropathies in isolation. Either potential positions would represent compensable impairments, to him. Similar to Dr. Brown, he recommended bilateral low electrodiagnostic studies, but also recommended an MRI scan of the cervicothoracic region. He did not find Claimant to be at MMI from the alleged work injury.

¹⁸ Here referring to MDSS.

¹⁹ At hearing, Claimant testified he did not tell Dr. Koprivica his problems were the result of a specific traumatic accident. According to Claimant, it was only after repeated questioning by Dr. Koprivica he brought up the incident of carrying a wall with a number of coworkers.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 14-089700

Claimant was unable to return to his job with Builder's Bloc because of his upper extremity problems and has noticed a progression of some symptoms and a worsening of numbness and tingling in his hands since his employment with them ended. Currently, he has random bouts of pain in his elbows that are not necessarily brought on by any particular activity. Nothing stands out to him which causes the pain. His hands go numb if he is standing, or completing a task such as cooking or reading. His hands "just seem to go numb all by themselves." Claimant never had complaints to his elbows, forearms, wrists, or hands prior to working for Builder's Bloc. Claimant believes the nature of his job duties, "the intense physical labor," as he characterizes it, with Builder's Bloc caused his bilateral upper extremity problems. He cannot recall any specific time or act that caused his symptoms. Claimant seeks an award for additional medical treatment to cure and relieve him of his complaints.

Per Claimant's testimony, he received a settlement for a traumatic work injury to his right thumb at the end of 2013 or beginning of 2014 and possibly had a prior work injury in Idaho in the late 1990s. Since about the age of 12 or 13, he has had issues with his lower back. In addition, he was diagnosed in 2013 with clinical sciatica and received significant chiropractic treatment for his spine. He had surgery for appendicitis in 1993 or 1994. He is a non-smoker[^1] and does not have heart problems, diabetes, or high blood pressure. He denies any prior history of hand numbness or pain. He has been playing the guitar since the age of 12 and for the last five or so years. At the time of his February 2015 deposition, he had been playing interactive video games five to ten hours a week and two-plus hours of a sport three to four times a week. In 2014, he gardened a 20 foot by 20 foot plot near his home, which required cultivating, harvesting, and weeding five hours per week during the season.

Claimant has been working for Hobby Lobby as a framer since October 2015. He assists customers with shadow boxes and frames and helps them select mats, frames, and fillets. He spends roughly two-thirds of his work day using his hands to frame items. He states he has never been symptom free since October 2014 when they first began. Claimant's certification as a massage therapist lapsed in 2015.

Rulings of Law

Based on the substantial and competent evidence described above, including Claimant's testimony, the medical records, the expert medical opinions, and my personal observations of Claimant at hearing, I find the following:

Claimant contends he developed occupational injuries to his upper extremities as a result of his employment with Employer Builder's Bloc and seeks medical treatment. Section 287.140.1 provides, in relevant part:

In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

[^1]: This is in contrast to the social history Claimant gave Dr. Brown on October 29, 2014, whereby he noted to have been a smoker for the past twenty-one years.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 14-089700

While injuries to the upper extremities such as carpal tunnel syndrome are long recognized by Missouri Courts as an occupational disease, a mere diagnosis from of this common condition does not make it a compensable occupational disease under Missouri Workers' Compensation Act. *Weniger v. Pulitzer Pub. Co.*, 860 S.W.2d 359, 360 (Mo. App. 1993). Per RSMo 287.067.3, "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 both the resulting medical condition and disability." In order to meet this burden and have a compensable injury, the Claimant must show she was injured as a result of an injury which arose out of and in the course of the employment, establishing essential elements including causal connection between the incident and injury. *Johnson v. City of Kirksville*, 855 S.W.2d 396 (Mo. App. 1993).

"Medical causation," not within the 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. *Brundige v. Boehriner Ingelheim*, 812 S.W.2d 200, 202 (Mo. App. 1994). The [fact finder] is the sole judge of weight of the evidence in the credibility of the witnesses. *Id.* The development of carpal tunnel syndrome and other occupational diseases are medical conditions not within common knowledge which are treated by physicians specializing in the treatment of upper extremities. *Id.* When conflicting medical opinions are in evidence, the [fact finder] determines which expert's opinion is more credible. *Bock v. Broadway Ford Truck Sales, Inc.*, 55 S.W.3d 427, 439 (Mo. App. 2001). The weight to be given the expert's opinion on medical causation is within the sole discretion of the fact finder. *Id.* at 438. (Citations omitted).

I find Dr. Brown's opinion, with regard to medical causation, more credible and persuasive than Dr. Koprivica's. Employee's expert, Dr. Koprivica provides no specific diagnosis concerning Claimant's upper extremity complaints, but opines in the alternative as to the medical cause (either unspecified cervicothoracic structural damage or unspecified peripheral compression neuropathies). During the hearing, Claimant admitted Dr. Koprivica could not tell him what was causing his symptoms. Dr. Koprivica told him there would need to be more specific types of testing to figure out exactly what the issue was. In addition, Dr. Koprivica's did not conduct an accurate history or is otherwise misguided. That is apparent as he opines Claimant's symptoms began following an acute incident (carrying a large wall with co-workers), which Claimant unequivocally denies.

Dr. Brown opined that while the Builder's Bloc job could over time cause peripheral compression neuropathies, in this instance Claimant's very short occupational exposure to repetitive trauma was insufficient to be the prevailing factor in causing his complaints, particularly given the very early onset of symptoms only two weeks into his employment.

Dr. Koprivica, who is board certified in occupational medicine and, unlike Dr. Brown, is not a board certified hand and upper extremity surgeon, does not identify any other occupational repetitive trauma exposures other than Claimant's duties at Builder's Bloc. Claimant denied hand-repetitive hobbies to Dr. Koprivica, but provided testimony concerning guitar playing, gaming, sports, and gardening. Employee testified to potentially hand-repetitive activities outside of work in the area of 15-20 hours per week in deposition over a period of time. Dr. Koprivica took into

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account Claimant's uncandid and incomplete history, further rendering his expert opinion unpersuasive.

Dr. Koprivica opines Claimant's condition was the result of acute onset nature and, as a fall back opinion states Claimant's occupational duties are the cause of his complaints. He notes Claimant's duration of exposure at Builder's Bloc is relatively short, but opines it is because of the "intensiveness of his upper extremity tasks, including the nature of those tasks," that can result in cumulative upper extremity injury. The Court finds Dr. Koprivica's indecisive and poorly elaborated opinion not credible.

With regard to MDSS, Claimant states he had no symptoms or upper extremity problems while working there. At the hearing when asked what he believed caused his upper extremity problems, Claimant stated, "I don't think it was anything other than the intense physical labor that I went through at Builder's Bloc." Claimant failed to provide any evidence his job activities exposed him to the hazards of any upper extremity occupational disease and no medical expert opined his work duties for MDSS was the prevailing factor in causing both the resulting medical condition and disability. Claimant's claim against MDSS fails.

In addition to the opinion of Dr. Brown, and the ambiguous opinion of Dr. Koprivica, I find Claimant's testimony not credible with regard to causation. Claimant has shown himself to be a poor historian with regard to his recent work history. He stated on different occasions he was not otherwise employed while employed by MDSS. His work history with Dr. Berlener's office indicates otherwise. Furthermore, Claimant stated on multiple occasions he could not think of the cause of his complaints and they began while at home. He did not testify credibly, either at hearing or at his deposition, as to how his roughly two weeks of occupational duties at Builder's Bloc could have caused his complaints. Claimant has not met his burden of proving his work duties with either employer are the prevailing factor in causing is upper extremity symptoms and need for additional evaluation and/or treatment. Claimant failed to show he sustained an occupational injury arising out of and in the course of his employment with either Builder's Bloc or the MDSS.

Claimant failed to meet his burden regarding medical causation. As such, all other issues are moot. I thereby deny Claimant any benefits under the Missouri Workers' Compensation Act.

I certify that on July 3, 2018, I delivered a copy of the foregoing award to the parties to 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.

By: __________________________

M

Made by:

Lorne J. Baker

Administrative Law Judge

Division of Workers' Compensation

9/25/18