Gina Beaman v. Lowe's Home Centers, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

Injury No. 12-067652

**Employee:** Gina Beaman

**Employer:** Lowe's Home Centers, Inc.

**Insurer:** Self-insured

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

Preliminarily, we note that employee's application for review alleged error in the administrative law judge's award only as to issues that involved injury to employee's left hand and wrist. Specifically, in response to the section on the application for review form that stated, "The Administrative Law Judge's award, decision or order is erroneous for the following specific reasons:" employee wrote the following in an attached document, in pertinent part:

(a) The administrative law judge erred in that she failed to award PPD benefits for the left hand and wrist because the doctors for both the employer and employee found disability of the left hand and wrist due to the work activities.

(b) The ALJ erred in that she failed to award unpaid medical expenses for medical treatment to claimants [sic] left hand and wrist.

(c) The ALJ erred in that she failed to award unpaid medical mileage incurred while obtaining treatment to the left hand and wrist.

(d) The ALJ erred in that she failed to award TTD benefits for the period of time while the claimant was recovering from surgery to the left hand and wrist.

(e) The ALJ erred in that she failed to double the compensation ordered and unpaid following a temporary award.

Injury No. 12-067652

Employee: Gina Beaman

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Employee's appeal brief to the Commission argues the Commission "should further find that a 15% loading factor should be added as there is a synergistic effect due to the involvement of [employee's] bilateral opposing extremities." Because employee's application for review fails to reference any issues relating to employee's right hand or wrist, we find that employee failed to preserve the issue of alleged additional disability due to involvement of bilateral opposing extremities for our review.

**Medical Causation**

The administrative law judge's award states, "An Administrative Law Judge's opinion cannot trump that of a board certified orthopedic surgeon like Dr. Wyrsch who found no causal relationship between a condition in Claimant's left hand and her work for Lowe's." This finding incorrectly suggests that an independent medical evaluation, report, or office note of Dr. Wyrsch addressing the issue of medical causation of employee's left hand condition is a part of the record.

We supplement the administrative law judge's award and decision to clarify that Dr. Wyrsch's opinion regarding medical causation of disability to employee's left hand condition is referenced in Dr. Robert E. Paul's March 30, 2017, independent medical report, admitted into evidence as Claimant's Exhibit 2. Dr. Paul's report recounted that during an April 20, 2015, consult, in response to employee's complaints of left hand pain and swelling around the middle finger, Dr. Wyrsch opined, "I do not believe this is a work related condition but rather an inflammatory arthritis or perhaps just simple osteoarthritis with wear and tear."

As the administrative law judge's Findings of Fact correctly note, "The parties agree that Dr. Wyrsch... determined that Claimant's condition was not work-related and, relying on that opinion, Employer would not authorize further treatment for the left hand."

We affirm with the administrative law judge's conclusion of law that Dr. Evan Crandall's medical opinion, based solely on employee's perception, that pushing and pulling materials at employee's work resulted in 2% disability of the left upper extremity at the wrist level, does not constitute a medical causation opinion based on reasonable medical certainty. We further agree with the administrative law judge's finding that Dr. Paul's evaluation of disability to employee's left hand was based solely on a separately claimed 2014 injury and therefore does not furnish the basis for a finding of medical causation relating to employee's left hand in this case.

1 Petitioner/Employee's Brief, p. 13.

2 Award, p. 10.

3 Transcript, 74.

4 Id., 79.

5 Award, p. 7.

6 Transcript, 83. We take administrative notice of Division records showing that, on or about March 13, 2015, employee filed a separate claim, assigned injury number 14-102585, alleging an injury to employee's left upper extremity, including the left hand, when, "While in the course and scope of employment, employee was lifting carpet pad and felt immediate pain in her left hand."

MNKOI 0000811657

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Based on the foregoing, we affirm the administrative law judge's finding the "Claimant failed to meet her burden of proof with respect to the treatment and any disability as it relates to the left upper extremity in this case."7

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

The award and decision of Administrative Law Judge Victorine R. Mahon, issued February 5, 2019, is attached and incorporated by this reference.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Given at Jefferson City, State of Missouri, this **14th** day of November 2019.


LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

7 Award, p. 10.

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: September 1, 2012.
5. State location where accident occurred or occupational disease was contracted: Taney County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was pulling floor covering and other products.
12. Did accident or occupational disease cause death? No. Date of death? Not applicable.
13. Part(s) of body injured by accident or occupational disease: Right upper extremity.
14. Nature and extent of any permanent disability: 25 percent at the 175 -week level to the right upper extremity plus 5 weeks for disfigurement.

1. Compensation paid to-date for temporary disability: $601.97.

1. Value necessary medical aid paid to date by employer/insurer? $45,203.89.

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

1. Employee's average weekly wages: 543.70.

1. Weekly compensation rate: 362.46.

1. Method of wage computation: By stipulation.

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

- For permanent partial disability

- 25% x 175-week level = 43.75 weeks

- 43.75 weeks x $362.46 = 15,857.63

- For disfigurement

- 5 weeks x 362.46 = $1,812.30

**TOTAL:** $17,669.93

1. Second Injury Fund liability: None.

1. Future requirements awarded: None.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: The Ryan E. Murphy Law Firm.

The undersigned Administrative Law Judge conducted a Final Hearing involving the claim of Gina Beaman (Claimant), who appeared personally and with her attorney, Ryan Murphy. Lowe’s Home Centers, Inc. (Employer) and its Third Party Administrator, Sedgwick CMS, appeared by their attorney, John S. Dolence. Jon Rettmann was present as the corporate representative. The parties reached stipulations of fact and narrowed the issues as follows:

1. On or about September 1, 2012, Lowe’s Home Centers, Inc., was an employer operating under and subject to The Missouri Workers’ Compensation Law, and during this time was an authorized self-insurer.
2. On that same date, Gina Beaman, the claimant herein, was an employee of Employer, and was working under and subject to The Missouri Workers’ Compensation Law.
3. On or about September 1, 2012, Claimant sustained an injurious occupational exposure arising out of and in the course of her employment with the employer.
4. The above-referenced employment and accident occurred in Taney County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper. Jurisdiction is admitted.
5. Claimant notified Employer of an injury as required by § 287.420 RSMo.
6. The Claim for Compensation was filed within the time prescribed by § 287.430 RSMo.
7. At the time of the alleged injury of September 1, 2012, Claimant’s average weekly wage was 543.70, which is sufficient to allow a compensation rate of 362.46 for all purposes.
8. Employer paid Claimant $601.97 in temporary total disability, representing 1.67 weeks for the periods of 2/1/2013 – 2/3/2013, and 9/6/2013 – 9/13/2013.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gina Beaman

Injury No.: 12-067652

(9) Employer provided Claimant with medical treatment in the amount of $45,203.89.

1. What is the nature and extent of any disability sustained as a result of the alleged injurious occupational exposure on or about September 1, 2012?

1. What, if any, compensation is Claimant to receive for disfigurement?

1. Is Employer obligated to pay for certain past medical care and expenses?

1. Should the unpaid compensation following the Temporary/Partial Award be doubled?

1. Is Employer obligated to pay mileage reimbursement?

1. Shall Employer provide future medical care in order to cure and relieve the effects of the injuries?

1. Is Employer obligated to pay additional temporary total disability? Claimant seeks 4.1 weeks of temporary total disability compensation for the period of November 9, 2015, to December 8, 2015.

1. Should Exhibit 2 have been excluded as being an inadequate medical report?

In addition to the exhibits submitted at the Temporary/Partial Hearing on February 24, 2015, the following exhibits also were offered and admitted:¹

- Exhibit 1......Temporary or Partial Award dated 3/23/2015

- Exhibit 2......IME Evaluation: Dr. Robert Paul - 3/30/2017

- Exhibit 3......IME Evaluation: Dr. Evan Crandall - 3/13/2018

- Exhibit 4......Deposition Transcript: Dr. Robert Paul 11/06/2018³

- Exhibit 5......Medical Records: Cleveland Clinic, certified 3/28/2016

- Exhibit 6......Medical Records: Cox Health Occ. Medicine, certified 8/1/2014

- Exhibit 7......Medical Records: Cox Med Center Branson, certified 8/1/2014

- Exhibit 8......Medical Records: Cox Health, certified 2/2/2015

- Exhibit 9......Medical Records: Cox Health, certified 9/18/2018

- Exhibit 10......Medical Records: Ferrell Duncan Clinic, certified 4/29/2016

- Exhibit 11......Medical Records: Mercy Clinic Inc., certified 8/5/2014

- Exhibit 12......Medical Records: Mercy Hospital Springfield, certified 12/16/2014

¹ 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.

² Employer objected to Exhibits 2 and 4. After argument, the objections were overruled and these exhibits were admitted.

³ Both a copy and the original full-sized deposition were admitted as exhibits.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gina Beaman

Injury No.: 12-067652

Exhibit 13......Medical Records: Tri-Lakes Diagnostic Tech., certified 4/28/2016

Exhibit 14......Medical Bills: Cleveland Clinic, certified 9/7/2018

Exhibit 15......Medical Bill: CoxHealth, certified 2/27/2017

Exhibit 16......Medical Bills: CoxHealth, certified 7/20/2018

Exhibit 17......Medical Bills: Ferrell Duncan Clinic, certified 4/20/2016

Exhibit 18......Medical Bills: Ozark Anesthesia Ass. Inc., certified 2/13/2017

Employer's Exhibits

Exhibit A......Complete medical report of Dr. Evan Crandall

In addition to the above exhibits, and at the parties' request, the Administrative Law Judge took official notice of the following records maintained by the Division of Workers' Compensation:

- Notice of Hearing

- Request for Hearing - Final Award

- All Claims or Amended Claims for Compensation in Injury Number 12-067652

- Answers to the above Claims

- Employer's Notice to Rely on Dr. Crandall's Report

FINDINGS OF FACT

Background & Employment

Claimant is 57 years of age. In 2005, she began working for Lowe's Home Centers, Inc., in Hollister, Missouri. Prior to working at Lowe's, Claimant had no prior accidents or medical conditions. In 2012, while working as the department manager of installed sales, she coordinated the installation of product between the customer and the installer. About 40 to 60 percent of each week involved pulling rolls of carpet, padding, or other flooring from high, steel racks with the aid of a forklift or cherry picker. This required her to grip the flooring material with both hands and physically maneuver it into the correct position. While performing these duties in July 2012, she began to feel pain and burning in her right wrist and left hand. Prior to that time she had not had any injuries or accidents to her right wrist or left hand.

On September 1, 2012, Claimant reported her symptoms to Brian Odom, Employer's Human Resources Manager. Consistent with Employer's policy, Claimant completed an incident report (which has been admitted into evidence). In the narrative portion of the report, Claimant wrote, "I have been having burning in my left hand and right wrist. I pull a lot of pad and product to prepare for installs." On the reverse side of the written narrative of the incident report are diagrams of the parts of the body on which an employee is to circle the parts of the body affected by the alleged injury. Claimant circled the right wrist and the web area of the left hand between the index and middle fingers.

Medical Treatment

Employer sent Claimant to Skaggs Regional Medical Center where she reported a chief complaint of bilateral upper extremity pain and swelling. She reported repetitive hand use at work. Claimant next saw Dr. Thomas Pirotte at Cox Occupational Medicine on September 4, 2012, with chief complaint of pain in both hands and both

```

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gina Beaman

Injury No.: 12-067652

wrists. Dr. Pirotte ordered physical therapy and prescribed splints for both wrists and hands. On September 18, 2012, Dr. Pirotte assessed "improved" wrist pain on the left.

On October 9, 2012, Claimant saw Dr. Chad Efird for evaluation of bilateral wrist pain. He continued the splinting for another three weeks. By November 8, 2012, Dr. Efird reported, "it has gotten a little bit better, but she still has continued right wrist pain and left hand pain, more in the 2nd web space." Dr. Efird recommended evaluation by a hand surgeon concerning the left 3rd MCP joint and an MRI arthrogram on the right hand looking at the TFCC region.

Claimant saw Dr. Robert Bradley Wyrsch, an orthopedic hand surgeon, on December 12, 2012, for evaluation of bilateral hand pain. Dr. Wyrsch noted, "In addition to pain in her right wrist, she is having some pain in her left hand. She describes the pain as burning. It is localized between the middle and ring fingers." Upon review of an MRI, Dr. Wyrsch, on January 11, 2013, diagnosed a TFC dysfunction and tear with a possible ulnar impaction. In January 2013, Dr. Wyrsch performed an arthroscopic debridement of the right wrist triangular fibrocartilage central tear, ulnar shortening osteotomy of the right wrist. He placed a mid to distal ulnar fixation plate and screws and two small vague linear lucencies in the distal ulnar diaphysis on the right wrist. He also administered a corticosteroid injection of the right middle finger A-1 pulley and left middle intrinsic tendon.

While recuperating from the right wrist surgery, Claimant was involved in a motor vehicle accident on or about May 21, 2013. On May 29, 2013, Claimant returned to the emergency department at Cox Medical Center in Branson with a chief complaint of injury to the left wrist. It was noted, "Pt states that she was in a car accident one week ago and since that time her left wrist has been hurting."

Claimant followed up with Dr. Wyrsch on August 7, 2013, where he noted "she continues to do well on the right side." But Dr. Wyrsch also noted, "She has a new injury. She is complaining of left wrist pain. This happened after a motor vehicle accident around Memorial Day. She had immediate onset of left wrist pain." The doctor injected the left wrist on that day.

Dr. Wyrsch removed the hardware from Claimant's right wrist on September 3, 2013, and simultaneously performed a pulley release and synovectomy of the right middle finger. Claimant followed up with Dr. Wyrsch on September 16, 2013, where she reported her left wrist continued to bother her. On March 17, 2014, the doctor noted complaints of pain and intrinsic tightness in the middle fingers of both hands. The doctor injected both the right and left middle fingers. No symptoms or treatment for the left wrist were noted. On August 11, 2014, the left middle finger again was injected. AP and lateral x-rays of the left hand were taken which found no bony or joint space abnormalities.

On November 12, 2014, Claimant saw Dr. Wyrsch again with complaints to the left hand. Dr. Wyrsch recommended an MRI to evaluate the left middle finger before doing more injections. The Employer disputed causation for the recommended MRI, believing records reflected an intervening accident.

Temporary or Partial Award

The undersigned administrative law judge conducted a hardship hearing on February 24, 2015, in which the sole issue was Claimant's entitlement to additional medical treatment, specifically an MRI to the left hand, as recommended by Dr. Wyrsch. Based upon the testimony and medical evidence available, Employer was directed to provide additional treatment to cure or relieve the effects of the work injury.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gina Beaman

Injury No.: 12-067652

In compliance with the Temporary or Partial Award, Employer provided an MRI on April 8, 2015, as had been recommended by Dr. Wyrsch. That test revealed:

**TECHNIQUE:** Multiplanar multisequence MR imaging of the left hand was performed without gadolinium.

**FINDINGS:** normal marrow signal seen throughout the visualized osseous structures. There is no acute fracture or dislocation. No periostitis or critical disruption is seen. No joint effusion is seen. Mild joint space narrowing is seen of the metacarpophalangeal joints. The visualized portions of the flexor and extensor tendons are within normal limits. No soft tissue mass is seen.

**Impression:** mild degenerative changes of the hand with probably early underlying inflammatory arthropathy. No acute fracture or dislocation seen.

(Ex. 13). The parties agree that Dr. Wyrsch thereafter determined that Claimant's condition was not work-related and, relying on that opinion, Employer would not authorize further treatment for the left hand.

Claimant then went on her own to the Cleveland Clinic in Ohio on July 22, 2015. She consulted Dr. Steven Maschke about bilateral mid palmar pain. Dr. Maschke assessed a concern for "repeat left middle finger trigger v. RA." He recommended Rhem labs and another MRI of the left hand to better identify if there is pathology consistent with rheumatoid arthritis. Dr. Maschke's do not reference a work-related causation. There also is no specific reference to left "wrist" complaints. The diagnostic result performed at the Cleveland Clinic revealed:

**LEFT HAND:**

Mild degenerative diseases at the first CMC joint with small osteophytes. Joint spaces are maintained. There is no fracture or dislocation. There are no erosive changes identified.

(Ex. 5).

Claimant then self-referred to Ferrell Duncan Clinic in Springfield and saw Dr. Jonathan Cook on September 24, 2015, noting a chief complaint of pain in the left long finger. Dr. Cook initially injected Claimant's finger without significant relief. In November 2015, he performed an A1 pulley release on the middle left finger. On December 8, 2015, Dr. Cook released Claimant to work with a 10-pound lifting restriction with the left hand, and she returned to work the following day. On April 1, 2016, Claimant saw Dr. Cook for the last time. His records reflect that he had seen her for left hand pain secondary to a left middle trigger finger for which she underwent a surgical release. He noted she still wears the splints at night and still has some discomfort dorsally. He did not see the need for further treatment. Dr. Cook's records are silent as to any complaints or treatment for the left wrist. At her last visit with Dr. Cook, Claimant had full flexion of the fingers and almost full extension. Her light touch sensation was intact. Dr. Cook released Claimant from further treatment at that date. He offered no opinion on medical causation.

**Independent Medical Examinations**

Robert E. Paul, M.D., a physician and medical director of the Tulsa Pain and Rehabilitation Center in Tulsa, Oklahoma, examined Claimant on March 30, 2017, provided a written report, and submitted to a deposition. Dr. Paul opined that Claimant suffered from the following conditions:

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gina Beaman

Injury No.: 12-067652

- 10 percent disability to the left middle finger (35-week level) due to a work injury alleged to have occurred July 31, 2014;

- 30 percent disability to the right wrist (175-week level) due to the injury of September 1, 2012;

- 35 percent disability to right middle finger (35-week level) due to the injury of September 1, 2012;

- 20 percent disability to the left wrist (175-week level) due to the injury of September 1, 2012;

- 10 percent synergistic effect "for the on the job injuries of 9/1/2012 and 7/31/2014;"

- Ongoing need for non-narcotic pain management for an indefinite time.

Dr. Paul noted that Dr. Wyrsch believed Claimant suffered from inflammatory arthritis or osteoarthritis, which Dr. Wyrsch had opined was not work-related. Dr. Paul agreed with Dr. Wyrsch that if Claimant was suffering from rheumatoid arthritis is was not job-related. "However, if it is simple common variety osteoarthritis, then the job certainly could be the cause of her arthritis as well as its progression." (Ex. 2, p. 12). As Dr. Paul noted, Dr. Cook's exam and x-ray findings indicated that Claimant's left middle finger needed an A1pulley release. Dr. Paul then provided this causation opinion:

> In my opinion, the patient did not have arthritis but had an ongoing trigger finger secondary to her on the job incidents of 9/1/2012 in combination with 7/31/2014.4

(Ex. 2, p. 10).

Dr. Paul further recommended that Claimant require pain management for her left middle finger problems, and that the "prevailing factor in the need for pain management is this on the job injury of 7/31/2014." (Ex. 2, p. 10). In relation to the September 1, 2012 injury, Dr. Paul also recommended future medical treatment for an indefinite time period for the "right wrist, left wrist and right middle finger problems." (Ex. 2, p. 12).

During cross-examination, Dr. Paul conceded the one MRI of Claimant's left hand reflected "probable early underlying inflammatory arthropathy." Dr. Paul also conceded that an MRI can detect joint damage earlier than an x-ray; that an MRI is useful in detecting the thickening of synovial tissue that occurs with rheumatoid arthritis; and that an MRI is a more sensitive imaging technique than plain x-ray and more useful in detecting changes to joints. Dr. Paul admitted MRI findings are more useful than plain x-ray for diagnosing joint arthropathy.

R. Evan Crandall, M.D., is board certified by the American Board of Plastic Surgery and the American Board of Plastic Surgery Hand Certification. He practices with Aesthetic & Reconstructive Surgery Associates in Chesterfield, Missouri. He performed an independent medical examination of Claimant on March 13, 2018, and provided a complete medical report. Dr. Crandall opined that Claimant had the following disabilities:

- 10-percent disability of the right upper extremity at the wrist level secondary to the triangular fibrocartilage abnormality;

- 2-percent disability of the right upper extremity at the wrist level secondary to the right middle trigger finger and surgery;

- 2-percent disability of the left upper extremity at the wrist level secondary to left long trigger finger and surgery.

Dr. Crandall noted Claimant's right ulnar shortening and the right long trigger finger release. He noted the five cortisone shots Claimant obtained prior to the left long trigger finger release on November 9, 2015. After

4 Claimant testified at the Final Hearing that she did not tell Dr. Paul she had suffered a new injury in 2014.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gina Beaman

Injury No.: 12-067652

examination and a review of all medical records, Dr. Crandall saw nothing that indicated a need for further exploration or surgery.

With respect to the left long finger, Dr. Crandall acknowledged Claimant's subjective belief that the "primary factor" in the development of such condition was her work at Lowe's. He thought her belief was "reasonable" (Ex. 3, p. 5). He went on to state that Claimant was at maximum medical improvement for both upper extremities and provided a rating of 2 percent of the left arm at the 175-week level, and 12 percent of the right arm at the 175-week level. Dr. Crandall said there was nothing in the left wrist that required treatment. Unlike Dr. Paul, Dr. Crandall did not believe Claimant sustained a separate injury in 2014 that caused injury to the left long finger or need for surgery. Dr. Crandall stated that, "I think it is all related to the problems of 2012." (Ex. 3, p. 5). Dr. Crandall did not, however, give a causation opinion as to the left long finger within a degree of reasonable medical certainty. Dr. Crandall also was critical of Dr. Paul's ratings, noting for instance, that a 30-percent rating of the right wrist did not represent the facts of the case.

Present Complaints

Claimant testified that she currently experiences a constant bruise and a sunburn-like sensation, pain, and soreness in the right hand. In her left hand she has a tightness and experiences pain when doing tasks such as stapling or twisting or lifting heavy items.

Credibility Findings

I generally find Claimant credible, to the extent that her subjective complaints do not conflict with the objective evidence. There is no credible evidence that Claimant's upper extremity conditions, disability, and need for surgery stem from an intervening car accident. I find no credible evidence that Claimant suffered a new injury or accident at work in 2014. Claimant testified she did not tell Dr. Paul she had suffered a separate second injury to her left middle finger in 2014. When Dr. Paul was asked where he obtained the history of the alleged July 31, 2014 injury referenced in his report, Dr. Paul initially testified, "I don't know where I got that." He could not identify a specific source other than an allegation in a different claim for compensation. The only injury at issue in this hearing was that of September 1, 2012. As such, Dr. Paul provided no opinion as to causation of the left middle finger condition arising from September 1, 2012. There is no indication Dr. Paul reviewed the Claimant's actual left hand MRI, but he agreed that an MRI is superior to x-rays. Yet, he relied on Dr. Cook's x-ray report in favor of the MRI performed at the request of Dr. Wyrsch. For all these reasons, I find the causation opinion of Dr. Paul as it relates to the left upper extremity to be not credible.

RULING OF LAW

The burden of establishing any affirmative defense is on the employer and the burden of proving an entitlement to compensation is on the employee. § 287.808 RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts, and are to construe strictly the provisions. § 287.800 RSMo.

Occupational Injury

Claimant's testimony regarding her duties with Employer and the repetitive nature of pulling product is credible. She timely reported her symptoms. As to the right upper extremity, Employer provided reasonable and necessary care. The authorized treating physician, Dr. Robert Wyrsch, causally related Claimant's injuries to the right hand

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gina Beaman

Injury No.: 12-067652

and wrist to her work injury culminating in 2012. Claimant has sustained her burden of proof that she suffered an occupational disease to her right upper extremity at the level of the wrist through repetitive trauma in the course and scope of her employment with Employer. This is consistent with the opinion of Dr. Crandall and Dr. Wyrsch.

Concerning Claimant's left hand and wrist, Claimant testified that throughout her course of treatment with Employer's authorized physician that she continued to complain of pain and burning at her left middle finger. After the initial course of treatment with bilateral splinting, the treatment records are silent as to any additional complaints or treatment for left wrist symptoms until May 29, 2013, when Claimant returned to the emergency department following a motor vehicle collision. Subsequent to the injection from Dr. Wyrsch on August 7, 2013, there is no further treatment for, or complaints of symptoms in, Claimant's left wrist in the medical records admitted into evidence.

There was significant testimony from Claimant relating to pain and burning symptoms in her left middle finger. In the course of authorized treatment provided by Employer, there were several injections to Claimant's left middle finger. After the Temporary or Partial Award, Employer provided an MRI of the left hand, which revealed arthritis. Dr. Wyrsch did not believe the arthritis was work-related, and in any event, Claimant was not candidate for a joint replacement. At this point, it was not unreasonable for Employer to decline to pay for additional treatment absent a contrary causal opinion.

Unsatisfied, Claimant sought treatment on her own, but neither Dr. Maschke nor Dr. Cook offered any medical opinion drawing a causal connection between Claimant's left middle finger condition or disability and her work for Employer. Dr. Paul's medical opinion, coming at the end of March 2017, does not aid Claimant as he draws the connection to a 2014 injury based on a mere allegation in a claim for compensation.

There is no requirement that a single expert's testimony wholly support determinations both as to causation and the nature and extent of disability. *Patterson v. Cent. Freight Lines*, 452 S.W.3d 759, 766 (Mo. App. E.D. 2015). In this instant case, however, there is no expert who has rendered a credible opinion tying the left middle finger injury and need for surgery to Claimant's work in 2012. While Dr. Crandall believed it may be related to the 2012 injury, he did not express his opinion within a reasonable degree of medical certainty.

"The claimant in a workers' compensation case has the burden to prove all essential elements of her claim including a causal connection between the injury and the job (citations omitted). Medical causation, which is not within the common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause." *Dillon v. Architectural Materials Co.*, 419 S.W.3d 802, 805 (Mo. App. S.D. 2013). "Where the condition presented is a sophisticated injury that requires surgical intervention or other highly scientific technique for diagnosis ... the proof of causation is not within the realm of lay understanding nor - in the absence of expert opinion - is the finding of causation within the competency of the administrative tribunal. *Pruett v. Fed. Mogul Corp.*, 365 S.W.3d 296, 306 (Mo. App. S.D. 2012).

Case precedent precludes me, as a layperson and not a medical professional, to draw that causal connection. An administrative law judge's opinion cannot trump that of a board certified orthopedic surgeon like Dr. Wyrsch who found no causal relationship between a condition in Claimant's left hand and her work for Lowe's. He also believed no further treatment was needed following the MRI. Claimant failed to meet her burden of proof with respect to the treatment and any disability as it relates to the left upper extremity in this case.

10

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gina Beaman

Injury No.: 12-067652

Section 287.140 RSMo requires an employer to provide medical treatment as reasonably may be required to cure and relieve an injured employee from the effects of the work-related injury. To "cure and relieve" means treatment that will give comfort, even though restoration to soundness is beyond avail. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 249 (Mo. banc 2003).

Employer was not obligated to provide medical treatment for an injury that was not work-related. Once Employer provided the MRI and received the opinion of Dr. Wyrsch that there was no causal relationship between Claimant's left hand complaints and the work at Lowe's, Employer satisfied the Temporary Award.

The testimony of Claimant clearly established that she did not return to Employer with a contrary medical opinion as to causation prior to obtaining treatment at Cleveland Clinic and Ferrell Duncan Clinic. Neither did Claimant advise Employer she was seeking additional unauthorized treatment. Neither did Claimant request Employer provide or pay for additional treatment. "[T]he employer is held liable for medical treatment procured by the employee only when the employer has notice that the employee needs treatment, or a demand is made on the employer to furnish medical treatment, and the employer refuses or fails to provide the needed treatment." *Lyman v. Missouri Employers Mutual Ins. Co.*, 407 S.W.3d 130, 134 (Mo. App. S.D. 2013). Claimant elected to pursue treatment at her own expense. Claimant is not entitled to reimbursement for charges she incurred for treatment at Cleveland Clinic or for any treatment from Ferrell Duncan Clinic, Dr. Cook, or related to Dr. Cook's treatment and surgery. Claimant also is not entitled to mileage reimbursement for her travel to the treatment at Cleveland Clinic or Ferrell Duncan Clinic and Dr. Cook.

Because Employer complied with the Temporary or Partial Award in arranging for the MRI as recommended by Dr. Wyrsch, and absent a credible causation opinion to counter that of Dr. Wyrsch, Employer is not liable for double damages pursuant to §287.510 RSMo.

Having previously determined Claimant has failed to meet her burden of proof as to causation of her left middle finger condition, Employee is not entitled to any additional benefits for temporary total disability.

Dr. Wyrsch provided competent medical opinions as to causation, finding Claimant's right wrist condition to be work-related and Claimant's left middle finger condition to not be work-related. Dr. Evan Crandall did agree with Dr. Wyrsch's opinions on permanent partial disability to the right wrist, and also found an additional 2% permanent partial disability at the 175-week level to Claimant's right middle finger. Dr. Crandall's report does not contradict Dr. Wyrsch's opinions as to causation of the left middle finger condition.

Unlike causation, however, an Administrative Law Judge is not bound by expert testimony as to disability because the "degree of disability is not solely a medical question." *ABB Power T & D Co. v. Kempker*, 236 S.W.3d 43, 52 (Mo. App. W.D. 2007). The degree of disability is within the unique province of the fact finder. *Id.* While Dr. Crandall believed the amount of disability assessed by Dr. Paul was too high, his own disability ratings appear very conservative considering the impact this injury has had on Claimant's personal and work life and ongoing

11

Employee: Gina Beaman

Injury No.: 12-067652

discomfort. Having considered the entire record, I determine that Claimant suffered a 25 percent permanent partial disability to the right arm at the 175-week level, or 43.75 weeks, incorporating all of the disability to the wrist, hand, and finger(s). At the agreed weekly rate of 362.46, Employer shall pay Claimant 15,857.63 for permanently partial disability.

Section 287.190.4 RSMo allows for the assessment of an additional sum not to exceed 40 weeks of compensation when the employee is "seriously and permanently disfigured about the head, neck, hands, or arms." At hearing, the undersigned assessed five weeks compensation total for both hands based on the surgical scarring; however, the scarring on the left was minimal. After further reflection, I determine that Claimant remains entitled to the full five weeks for the disfigurement for the scarring on the right upper extremity. At the weekly rate of 362.46, Claimant is entitled to 1,812.30 for disfigurement.

Claimant has failed to provide competent evidence of the need for future medical treatment. Claimant provided no testimony of the type, dosage, or frequency of any medication she currently takes to relieve any symptoms in her right hand and wrist. While Dr. Paul opined Claimant would need ongoing non-narcotic pain management for her left middle finger problems, Claimant has not proven that such condition is work related.

Dr. Paul's report was admitted over the objection of Employer. The reasons for the ruling are fully set forth in the record. The parties presented no legal arguments in their briefs which would cause the undersigned to change the ruling on its admissibility. In any event, the administrative law judge did not rely on Dr. Paul's opinions.

Employer shall pay Claimant $17,669.93 for permanent partial disability and disfigurement.

Claimant's attorney is allowed a fee of 25 percent of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein. Interest on all sums awarded hereunder shall be paid as provided by law.

I certify that on 2-5-19 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: __________________________

Made by: __________________________

Victorine R. Mahon

Administrative Law Judge

Division of Workers' Compensation