Connie Holloway v. Emerson Electric / Emerson Climate Technology

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 17-088003

**Employee:** Connie Holloway

**Employer:** Emerson Electric/Emerson Climate Technology

**Insurer:** Old Republic Insurance Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by § 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated October 16, 2018.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued October 16, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 13th day of June 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

**Employee:** Connie Holloway

**Dependents:** N/A

**Employer:** Emerson Electric / Emerson Climate Technology

**Address:** 1201 N. 16th Street, New York 11, 10026, U.S.A.

**Address:** 1201 N. 16th Street, New York 11, 10026, U.S.A.

**Employer:** Emerson Electric / Emerson Climate Technology

**Address:** 1201 N. 16th Street, New York 11, 10026, U.S.A.

**Address:** 1201 N. 16th Street, New York 11, 10026, U.S.A.

**Employer:** Emerson Electric / Emerson Climate Technology

**Address:** 1201 N. 16th Street, New York 11, 10026, U.S.A.

**Employer:** Emerson Electric / Emerson Climate Technology

**Address:** 1201 N. 16th Street, New York 11, 10026, U.S.A.

**Injury No.:** 17-088003

**Before the Division of Workers' Compensation**

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

**Jefferson City, Missouri**

**Insurer:** Old Republic Insurance Company

**Hearing Date:** August 1, 2018; Record Closed August 31, 2018

**Checked by:** VRM/ps

1. Are any benefits awarded herein? Yes.

1. Was the injury or occupational disease compensable under Chapter 287? Yes.

1. Was there an accident or incident of occupational disease under the Law? Yes.

1. Date of accident or onset of occupational disease: March 1, 2017.

1. State location where accident occurred or occupational disease was contracted: Ava, Douglas County, Missouri.

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.

1. Did employer receive proper notice? Yes.

1. Did accident or occupational disease arise out of and in the course of the employment? Yes.

1. Was claim for compensation filed within time required by Law? Yes.

1. Was employer insured by above insurer? Yes.

1. Describe work employee was doing and how accident occurred or occupational disease contracted: This was an injury due to repetitive job duties.

1. Did accident or occupational disease cause death? No. Date of death: N/A.

1. Part(s) of body injured by accident or occupational disease: Right upper extremity.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Connie Holloway

Injury No.: 17-088003

1. Nature and extent of any permanent disability: To be determined.

1. Compensation paid to-date for temporary disability: None.

1. Value necessary medical paid to date by employer/insurer? Unknown.

1. Value necessary medical aid not furnished by employer/insurer? To be determined.

1. Employee's average weekly wages: Not at issue at this time.

1. Weekly compensation rate: Not at issue at this time.

1. Method wages computation: Not at issue at this time.

**COMPENSATION PAYABLE**

1. Amount of compensation payable: See future requirements below.

1. Second Injury Fund liability: Not applicable.

1. Future requirements awarded:

Employer/Insurer shall provide medical care to cure or relieve the effects of the work-related injury, as discussed in the Award.

This Award is temporary or partial, it is subject to further order, and these proceedings are continued and shall remain open until a Final Award can be made. Failure to comply with the terms of this Award may result in the doubling of any amounts if such Final Award is in accordance with this Temporary or Partial Award.

Although Claimant at this time is requesting no back temporary disability or unpaid medical benefits, Claimant's attorneys, Newman Law Firm, LLC, have provided a valuable service and normally would be due a 25-percent fee on the lien of any proceeds.

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Employee: Connie Holloway

Injury No.: 17-088003

Dependents: N/A

Employer: Emerson Electric / Emerson Climate Technology

Additional Party: Treasurer of Missouri as

Custodian of the Second Injury Fund

Insurer: Old Republic Insurance Company

Hearing Date: August 1, 2018; Record Closed August 31, 2018

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Old Republic Insurance Company

Hearing Date: August 1, 2018; Record Closed August 31, 2018

Checked by: VRM/ps

The undersigned Administrative Law Judge conducted a Hardship Hearing in Springfield, Missouri, on August 1, 2018. Attorneys John Newman and Jennifer Newman represented Connie Holloway (Claimant). Attorneys Shari Lockhart and Kelli Anderson appeared on behalf of Emerson Electric (Employer) and Old Republic Insurance (Insurer). Don Hanger was present as the Employer's corporate representative. The Second Injury Fund did not participate in the hearing. The parties reached stipulations of fact and narrowed the issues as follows:

1. On March 1, 2017, Emerson Climate Technology (now Emerson Electric) was an employer operating subject to the Missouri Workers' Compensation Law, and during that time was insured with Old Republic Insurance Company, c/o Helsman Management Services.
2. On March 1, 2017, Connie Holloway was an employee of Employer and was working subject to The Missouri Workers' Compensation Law.
3. The employment and alleged injury occurred in Douglas County, Missouri. The parties agreed to a change of venue to Greene County, Missouri, for purposes of the hardship hearing. Venue and jurisdiction are proper.
4. Claimant notified Employer of her injury as required by § 287.420 RSMo.
5. The Claim for Compensation was filed within timely per § 287.430 RSMo.
6. The parties deferred the issue of the proper average weekly wage and compensation rate.
7. No Temporary Total Disability (TTD) benefits have been paid to Claimant.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Connie Holloway

Injury No.: 17-088003

(8) Employer provided some medical treatment to Claimant; however, the dollar amount of such treatment was not available at the time of hearing.

ISSUES

(1) Were Claimant's work duties the cause of the medical conditions for which she now seeks treatment?

(2) Is Employer liable for medical treatment to cure and relieve the claimant of the effects of the injury?

EVIDENCE PRESENTED¹

Live Testimony:

Connie Holloway

Chris Shaefer

Ted Lennard, M.D.

Kay Pierce

Claimant's Exhibits:

1. Curriculum Vitae - Dr. Ted Lennard
2. Report - Dr. Ted Lennard
3. Emerson Climate Technology Accident Report
4. Box of Copy Paper

Employer and Insurer's Exhibits:

A. Deposition - Dr. Shawn Kutnik (May 29, 2018)

B. Report - Dr. Shawn Kutnik (June 26, 2018)

C. Deposition - Connie Holloway (February 8, 2018)

D. Records Keyed

D-1. Records Keys with Explanatory Information

E. Parts Handled

E-1. Parts Handled with Explanatory Information²

¹ The administrative law judge made no marks on any exhibit.

² Exhibits A, B and C were received and admitted into evidence on August 1, 2018. Claimant objected to Exhibits D and E, as these exhibits did not specify that they related to Claimant. The exhibits were received provisionally, on the stipulation that Employer/Insurer provide supplemental information within 30 days. Employer/Insurer also were given 30 days to provide evidence in response to Exhibit 4 - which was a box of copy paper. On August 28, 2018, Employer/Insurer substituted Exhibits D-1 and E-1, to which Claimant had no objection. Exhibits D-1 and E-1 were received and admitted into evidence and the record closed. No additional evidence was received with respect to Exhibit 4. The box of paper was released to the custody of Claimant's counsel.

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MNKOI 0000611657

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Connie Holloway

Injury No.: 17-088003

Claimant is a 57-year-old woman who attended Ava High School until the 11th grade and subsequently obtained a GED. She began working for Emerson Climate Technology (Emerson Electric) in Ava, Missouri, in June 2010. Emerson Electric is a plant that manufactures scroll compressors. Claimant began working as a Tool Crib attendant in March or April of 2013. She was working in the Tool Crib on March 1, 2017, which is the date of injury identified in the Claim for Compensation.

The Tool Crib is about the size of a two-car garage located inside Employer's factory. The Tool Crib attendant fulfills requests for parts and equipment from fellow employees, much like a sales clerk at an auto parts store. An attendant's primary duties include receiving, sorting, and stocking inventory, fulfilling the tool and equipment "issues" from fellow employees, and recording transactions on the computer.

The attendant typically uses tin snips, a screwdriver, and an instrument similar to a box knife to open boxes and containers. A few boxes could be opened without tools. After opening the container, the attendant removes the packing slip and the items from the box. The attendant then verifies that the packing slip and purchase order match the items received, records the inventory on the computer, and stocks the material on shelves in the appropriate location.

There are three shifts of Tool Crib attendants. While most shipments were received on the first shift, the second and third shift attendants must complete the work the first shift failed to process. This was in addition to any freight that occasionally arrived during their own shifts. Claimant primarily worked second shift or third shift. Although the number of boxes received and processed each day vary, Claimant thought she opened, processed, and stocked 35 to 75 boxes of inventory each day. Some of the boxes received in the Tool Crib contained up to 50 different items that had to be unpacked, put away, and entered into the computer. The shipments included 40 x 4 lights, which were heavy in weight. Spindle boxes received in the Tool Crib weighed 30-40 pounds. The larger spindle boxes required a forklift to move. Some boxes contained Simple Green Solution, and each of those jugs weighed 30 to 40 pounds. The Tool Crib received multiple boxes of copy paper weighing 50 pounds on pallets that Claimant was required to lift and move to its proper location. Claimant had handled inventory weighing up to 75 pounds. A forklift could be used to lift the heaviest of boxes and inventory.

In recording the inventory, Claimant was required to tab through a several computer screens and make entries via a keypad and mouse. For each packing slip received, she was required to enter the packing slip number and order number into the computer, circle items received, confirm and save this information in the computer system, stamp packing slips, and initial and write on packing slips. While multiple items may be the same object (such as safety glasses), there are various kinds and sizes, and different makes and models required Claimant to make a separate entry on the computer. Claimant spent approximately two hours of each shift matching and entering the invoice order information. Claimant's job duties in the Tool Crib also included gauging and checking or inspecting parts for quality.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Connie Holloway

Injury No.: 17-088003

As documented in Exhibits D-1 and E-1, leading up to her work injury, it was not unusual for Claimant to handle several hundred parts during a shift. She also might key 100 or more records. This was in addition to Claimant's other job responsibilities of unwrapping pallets and boxes, unpacking, and putting away inventory.

During November 2016, one of Claimant's co-workers in the Tool Crib broke her ankle and was incapable of working. Beginning in November 2016, Claimant's work hours increased. Leading up to the March 1, 2017, Claimant worked about 70 hours per week. In March of 2017, Claimant began experiencing a significant amount of pain in her right hand, right elbow, and index, middle and ring fingers on her right hand. She also developed an indentation on the base of the right thumb and tingling in her right hand.

Initial Medical Treatment

Claimant reported her work injury and symptoms to Kay Pierce, her supervisor, and Debbie Sisney, the nurse at Emerson Electric Co. Claimant reported pain, numbness, and tingling in her right upper extremity. She reported feeling as though an ice pick was "sticking" her in her right elbow. Her right wrist would sometimes pop, causing a sensation of needles in her right hand. The Accident Report dated March 24, 2017, indicates right thumb pain, which was constant; numbness in fingers, which interrupted sleep; and weak right hand grip due to thumb pain. Nurse Sisney recommended that Claimant take Ibuprofen, wear a thumb brace for a short time, and undergo massage therapy. Claimant also had been using Bio freeze for one month. These conservative measures failed to resolve her symptoms.

Dr. James Jordan, the company physician evaluated Claimant at the plant facility, but there are not medical records available from this evaluation. Dr. Jordan ordered physical therapy for Claimant. This treatment resolved the right elbow pain but not the pain in her right thumb and right hand. Claimant next saw a physician at Mercy OccMed who diagnosed Claimant with carpal tunnel syndrome, but concluded it was not work-related. Employer/Insurer then stopped authorizing medical treatment.

In August 2017, Claimant hurt her right leg when she fell through a deck at her home that was in need of repair. Claimant missed one month of work for this injury; however, her right upper extremity symptoms did not improve while off work. When she returned to her regular job duties in the Tool Crib at Emerson, she continued to experience pain in her right thumb and hand.

Due to her continued complaints, Employer/Insurer had Dr. John Lorette evaluate Claimant on October 31, 2017. He found that Claimant had positive Phalen's and Tinel's test results. He diagnosed mild carpal tunnel syndrome, but he said her symptoms were not directly related to her work or work environment. Following the evaluation with Dr. Lorette, Employer/Insurer authorized no more treatment from an outside source, although Claimant continued to receive daily conservative treatment from the company nurse for continuing symptoms in the right hand.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Connie Holloway

Injury No.: 17-088003

**Dr. Shawn Kutnik** is a board certified orthopedic hand surgeon who both treats and evaluates individuals with orthopedic injuries. He testified by deposition on May 29, 2018. Dr. Kutnik found on examination that Claimant showed evidence of carpal tunnel syndrome, triggering of the thumb, and was positive for Tinel's, Phalen's, and Durkan's response. Dr. Kutnik's evaluation showed that Claimant also had atrophy of the thenar musculature of the right hand and virtually no sensation to light touch to the second and third digits, and thumb. He further found significant arthritis to joints at the base of the thumb into the wrist.

Dr. Kutnik reviewed a job description provided to him by Employer, obtained a history from Claimant, and reviewed Claimant's deposition. Dr. Kutnik testified that Claimant's history and deposition testimony were consistent. Claimant testified in deposition she had to open approximately 35 to 75 boxes per day with a utility knife and lifted jugs of liquid weighing 30 to 40 pounds. Dr. Kutnik said Employer provided information indicating that most things Claimant lifted were less than 10 pounds and that she rarely lifted a case of paper weighing 20 pounds twice during a work shift.

Dr. Kutnik agreed that Claimant suffers from carpal tunnel syndrome in her right, dominant hand. He recommended a confirmatory EMG and surgery "right now" given the atrophy and grossly altered sensation in the hand (Ex. A, p. 27). He concluded, however, that Claimant's work activities were not the prevailing factor in her need for treatment. Dr. Kutnik said Claimant's job duties of "50 to 75 percent computer work or the light lifting she was doing" at the job were insufficient to cause either the carpal tunnel syndrome or the triggering of the thumb (Ex. A, p. 16). Dr. Kutnik's opined that Claimant's need for treatment resulted from certain risk factors, including her gender, older age, and primarily obesity. While he performed no testing on the left hand, Dr. Kutnik conceded that these risks equally would affect Claimant's left hand.

**Dr. Ted Lennard** testified live at the hearing. Dr. Lennard is a medical doctor who is board certified in physical and rehabilitation medicine and regularly treats and evaluates patients with upper extremities complaints. He has been practicing with the Springfield Neurological Institute since 1991. Dr. Lennard evaluated Claimant on December 22, 2017.

At the time of Dr. Lennard's evaluation, Claimant had complaints of constant, sharp right wrist pain, radiating into her right hand. She also had complaints of sharp stabbing pains at the base of her right thumb that radiate into her right forearm and right elbow. Claimant reported occasional popping in her right wrist, which is painful. When this happened, it caused her to become nauseous and caused her right hand to become really hot. Claimant reported constant numbness in the dorsal aspect of her right ring finger and occasional numbness in her right middle and index fingers. She reported that her right thumb will go numb at night and awaken her. Claimant had involuntary grip release and loss of fine motor skills in her right fingers. Claimant rated her right wrist pain at 4/10 at its best and 10/10 at its worst. Dr. Lennard's history noted that Claimant had been working overtime since Thanksgiving of 2016. At the time of Dr. Lennard's evaluation, Claimant was working 12 or more hours per day.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Connie Holloway

Injury No.: 17-088003

Dr. Lennard evaluated both of Claimant's upper extremities and made comparisons between her right and left hands and arms. Dr. Lennard noted Claimant's right hand was weak and that she had atrophy in her right thumb. Dr. Lennard noted that Claimant did not have weakness in her left hand nor did she have atrophy in her left thumb. She also tested positive for Tinel's and Phalen's with regard to the right wrist. Claimant did not test positive for Tinel's and Phalen's with respect to the left hand. Claimant tested positive for carpal tunnel syndrome with regard to the right hand; however, she did not have the disorder in her left hand. Dr. Lennard testified that these are objective findings. Dr. Lennard's evaluation revealed tenderness over the volar wrist and mild pain with flexion in the right wrist.

Dr. Lennard diagnosed Claimant with right carpal tunnel syndrome. He believed Claimant had not achieved maximum medical improvement for her work injury of March 1, 2017. He recommended an EMG/nerve conduction study of the right upper extremity followed by occupational therapy three times a week for a period of three to four weeks. In his report of December 22, 2017, Dr. Lennard opined that due to the atrophy noted in the right thenar eminence, Claimant may require surgery pending the results of the electrical studies.

Dr. Lennard was emphatic that Claimant's job duties for Employer leading up to March 1, 2017, was the prevailing factor in the onset of her right hand symptoms and diagnosis of carpal tunnel syndrome. Dr. Lennard noted that Claimant's job duties require right hand gripping with unusual wrist postures and forces. Dr. Lennard testified that Claimant's job duties of cutting open boxes strains the upper extremities. It did not surprise Dr. Lennard that Claimant's symptoms in her right thumb and right hand continued when she was off work in August 2017, due to the severity of findings on examination.

Dr. Lennard opined that Claimant has minimal co-existing risk factors compared to her job responsibilities. While recognizing that Claimant had conditions that might predispose her to carpal tunnel syndrome, Dr. Lennard said not every female who is overweight will develop the disease. Dr. Lennard had the opportunity to review Dr. Kutnik's report prior to testifying at the hearing. Dr. Lennard testified that Claimant is the same age, same weight, and same gender on her left arm as she is on the right arm. Therefore, he disagreed with Dr. Kutnik's opinion that the risks of (1) gender, (2) age, and (3) obesity are the prevailing factor in causing Claimant's right hand symptoms and need for treatment.

Other Witnesses

Ms. Kay Pierce was Claimant's supervisor at Emerson. She testified that leading up to Ms. Holloway's injury in March 2017, Claimant worked 60 hours a week, as well as on Saturdays, depending on the work load. She said most of the loading and unloading in the Tool Crib occurred on first shift and Claimant did not work that shift. She acknowledged, however, that uncompleted duties from the first shift fall to the second and third shift to complete. She also acknowledged that there had been a first shift worker who was on Family Medical Leave which may have increased the work on the second shift.

Ms. Pierce acknowledged that a part of Claimant's job duties in the Tool Crib regularly included the lifting of boxes of copy paper. Ms. Pierce said the copy paper is ordered from Staples and the

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Connie Holloway

Injury No.: 17-088003

information from Staples indicated that it was "20 pound." Ms. Pierce viewed Exhibit 4, and agreed that it was identical to the copy paper boxes received and used by Employer. Ms. Pierce testified that large quantities of copy paper were ordered, received, and shipped out at Emerson Electric. She said it was not unusual for 40 boxes of copy paper to arrive in the Tool Crib to unload, unpack, restack, and put away. There were times when even larger amounts of copy paper were sent to the Tool Crib on multiple pallets.

Ms. Pierce testified that employees in the Tool Crib are required to lift up to 30 pounds. Exhibit D-1 and E-1, along with Ms. Pierce's testimony, confirm that Claimant was keying up to 100 or more records per shift and could handle hundreds of parts per shift. This was in addition to other job duties of opening pallets and boxes.

Mr. Chris Schaefer is the operations manager with Clampitt Paper Company in Springfield and has been employed in the paper business for more than 30 years. He is familiar with the industry's standards. Mr. Schaefer identified Exhibit 4 as the same brand of paper Clampitt Paper sells. While he did not know the type of office paper used at Emerson, as there are 40 different brands of paper, he said all manufacturers use the same industry standards. In that regard, he explained that the boxes of paper Claimant would have handled regularly at Emerson Electric would be about 50 pounds.

Mr. Shaefer explained that although a box of paper like Exhibit 4 may state it is "20 pound," that is not the weight of box of paper, but how paper is gauged. He explained that a team of 500 sheets of uncut copy paper measuring 17 x 22 inches weighs 20 pounds, whereas a thicker paper might be gauged at "28 pound."

Current Condition

Claimant has not had an EMG performed and has not received any further medical care for her work injury. Claimant left her employment with Emerson on April 20, 2018. The symptoms in Claimant's right (dominant) arm continue to this date. Since leaving employment with Emerson, Claimant's symptoms have not improved. She continues to awake from her night's sleep with a stabbing pain in her right hand. She continues to experience numbness in the fingers on her right hand. She frequently drops objects as she has an involuntary grip release and weakness in her right hand. She continues to feel like an "ice pick" is in her right wrist. She is tender over her right elbow. Her right wrist pops. Claimant has difficulty washing her hair each day in the shower, as her right hand immediately goes numb upon putting shampoo in her hair. Claimant had no preexisting disabilities to her right thumb, right hand, or fingers on her right hand.

Credibility Findings

I find the testimony of Claimant credible. I find credible the testimony of Chris Schaefer. While Kay Pierce appeared credible in many respects, it is apparent that she was not aware of all of the weight handled by Claimant. Ms. Pierce clearly was mistaken regarding the weight of the paper boxes (20 pounds versus 50 pounds). Moreover, Ms. Pierce worked first shift and was not always present during Claimant's shift. To the extent that the testimonies of Ms. Pierce and Claimant differ, I accept the testimony of Claimant as credible and more persuasive.

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Connie Holloway

Injury No.: 17-088003

While recognizing the orthopedic expertise of Dr. Kutnik, I accept the medical opinion of Dr. Lennard as more credible and persuasive. Dr. Kutnik opined that the prevailing factor in causing Claimant's medical condition and need for treatment were her gender, age, and obesity. As Dr. Lennard explained, and as conceded by Dr. Kutnik, Claimant is just as old, just as overweight, and just as female on her left upper extremity as she is on her right. Yet, this is not a case of bilateral carpal tunnel syndrome. The current symptoms are on the right side only, which is Claimant's dominant arm. Moreover, Dr. Kutnik did not have accurate information regarding the weight Claimant handled or the frequency of some job duties.

Dr. Lennard had the opportunity to review Dr. Kutnik's report prior to testifying at the hearing. Unlike Dr. Kutnik's comments, it did not surprise Dr. Lennard that Claimant's symptoms in her right thumb and right hand continued even while she was off work for one month in August 2017. Dr. Lennard testified credibly that due to the severity of the findings upon examination of Claimant and the atrophy present in Claimant's right hand, he did not anticipate Claimant's right thumb and right hand symptoms would have improved. Similarly, I also find Dr. Lennard's opinion more credible and persuasive than the contrary opinion of Dr. Lorette.

RULINGS OF LAW

Claimant bears the burden of proving all essential elements of her claim. *Kersey v. Autry Morlan, Inc.*, 388 S.W.3d 644, 648-49 (Mo. App. S.D. 2013). "Medical causation that is not a matter of common knowledge or experience must be established by scientific or medical evidence showing the relationship between the complained-of medical condition and the asserted cause of the condition." *Pruett v. Federal Mogul Corp.*, 365 S.W.3d 296, 304-05 (Mo. App. S.D. 2012). Claimant has met her burden in this case.

Occupational Exposure Caused Injury

Claimant sustained an occupational injury effective on March 1, 2017. Claimant's injuries satisfy the standard of occupational disease as defined in § 287.067.3 RSMo, which provides:

> 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 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.

All treating and evaluating physicians (Drs. Lorette, Lennard, and Kutnik) have diagnosed Claimant with right carpal tunnel syndrome. Claimant's job responsibilities were the prevailing factor in causing Claimant's upper right extremity symptoms and disability, including carpal tunnel syndrome, as credibly testified by Dr. Lennard.

Page 10

MNKOI 0000811657

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Connie Holloway

Injury No.: 17-088003

Section 287.140 RSMo requires an employer to provide medical treatment as reasonably may be required to cure or relieve an employee from the effects of a work-related injury. "Cure or relieve" means treatment that will give comfort, even though restoration or soundness is beyond avail. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 249 (Mo. banc 2003). Both Drs. Kutnik and Lennard agree that Claimant needs medical treatment now for her right carpal tunnel syndrome and both have recommended an EMG/nerve conduction study. Both Drs. Kutnik and Lennard believe Claimant will likely require surgery for her right carpal tunnel syndrome. Claimant continues to suffer from the effects of the work injury of March 1, 2017. Claimant's pain in her right thumb and right hand require treatment to cure and/or relieve her from their effects.

"Section 287.140.1 makes no reference to a 'prevailing factor' test...The legal standard for determining an employer's obligation to afford medical care is clearly and plainly articulated in section 287.140.1 as whether the treatment is reasonably required to cure and relieve the effects of the injury." *Tillotson v. St. Joseph Medical Center*, 347 S.W.3d 511, 518 (Mo. App. W.D. 2011).

For purposes of a Temporary or Partial Award, Claimant must demonstrate the need for medical treatment by a "reasonable probability" rather than a "reasonable certainty." *Downey v. Willamette Industries, Inc.*, 895 S.W.2d 650, 655 (Mo. App. W.D. 1995), overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.2d 220 (Mo. banc 2003). "Probable" means founded on reasonable experience, which inclines the mind to believe, but leaves room for doubt [citations omitted]." *Sifferman v. Sears, Roebuck & Co.*, 906 S.W.2d 823, 828 (Mo. App. S.D. 1995), overruled on other grounds by *Hampton*, 121 S.W.3d 220.

Claimant has met her burden of proof and persuasion. Employer/Insurer shall provide Claimant with medical treatment to cure and relieve the effects of her work injury consistent with the recommendations of Dr. Lennard.

This Award is temporary or partial, it is subject to further order, and these proceedings are continued and shall remain open until a Final Award can be made. Failure to comply with the terms of this Award may result in the doubling of any amounts if such Final Award is in accordance with this Temporary or Partial Award.

Although Claimant at this time is requesting no back temporary disability or unpaid medical benefits, Claimant's attorneys, Newman Law Firm, LLC, have provided a valuable service and normally would be due a 25-percent fee on the lien of any proceeds.

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Made by: $\frac{\text { Victorine R. Mahon }}{\text { Administrative Law Judge }}$ Division of Workers' Compensation