Genise Richards v. Becton-Dickinson & Co., f/k/a Carefusion

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 15-054195**

**Employee:** Genise Richards

**Employer:** Becton-Dickinson & Co., f/k/a Carefusion

**Insurer:** Ace American 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 April 4, 2019.

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 Joseph E. Denigan, issued April 4, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **15th** day of January 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

**DISSENTING OPINION FILED**

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

Injury No. 15-054195

Employee: Genise Richards

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find the employee has failed to prove that her work duties as an inventory clerk for employer's medical device and instrument manufacturing company caused her condition of bilateral carpal syndrome and need for treatment.

The undisputed testimony is that employee had problems with her left hand going back more than twenty years, before she even worked for employer. Employee also had some bilateral upper extremity complaints before employer assigned her to her present position.

Employee's initial description of her work activities, as conveyed to the medical experts, shaped the medical testimony in this case. Dr. Bruce Schlafly, employee's expert, was forced to rely on the job description employee gave him as he never had an opportunity to review employer's job task analysis. Dr. Schlafly admitted he accepted employee's description of her job activities as completely accurate. However, employee significantly overstated both the frequency of her activities and the force required to perform them. Employee advised Dr. Schlafly that she was opening up to 700 tubes per day to remove small tools. Based on this assumption, Dr. Schlafly concluded employee's work was the prevailing factor causing onset of her carpal tunnel syndrome.

However, even employee admitted that she opened nowhere near that many tubes. Employee testified she worked with the tubes approximately twice a week for thirty minutes each time. That represents a total of sixty minutes per week. Employee testified it took her approximately one minute to deal with each inventory item. Crediting employee's testimony, she opened no more than sixty tubes per week. In addition, employee admitted it was not necessary for her to open tubes unless the parts would not otherwise fit where they were to be stored. Jeanette Tucker, employee's direct supervisor at the time of her alleged injury, testified that employer received about forty tubes per week, not 700 per day. As demonstrated the photograph displayed on page 262 of the hearing transcript, the vast majority of the items employee received remained unopened in their tubes, demonstrating that she did not open nearly as many tubes as even her testimony suggested, and dramatically less than what Dr. Schlafly assumed. Accordingly, the facts Dr. Schlafly relied to arrive at his conclusion that employee's work was hand-intensive were fatally flawed.

Employer's authorized physician, Dr. Mitchell Rotman, also initially concluded that employee's work activities caused her carpal tunnel syndrome, although he was careful to condition this opinion on an assumption that employee had accurately described her work activities.¹ When Dr. Rotman had the benefit of the Coventry's objective analysis

¹ Transcript, 245.

Injury No. 15-054195

Employee: Genise Richards

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of the essential functions and physical demands of material clerk, employee's position, he revised his earlier opinion to conclude that employee's work was not the prevailing factor causing her carpal tunnel syndrome. Dr. Rotman's ultimate conclusion, arrived at only after reviewing additional facts regarding employee's actual job duties should be deemed the more credible and accurate of the two expert medical opinions in the record.

In addition, there is another explanation of the cause of employee's bilateral carpal tunnel condition. Both Dr. Schlafly and Dr. Rotman agree that employee had three personal risk factors that placed has at significant risk of non-industrial carpal tunnel syndrome: her female gender, post-menopausal age, and obesity.

In order to establish a repetitive trauma injury arising out of and in the course of employment an employee must establish that her work was the prevailing factor. Employee has failed to do so. The medical expert retained by employee, who opined that employee's work was the prevailing factor causing her carpal tunnel syndrome and need for treatment, admitted he was operating under a misapprehension regarding employee's work activities. Contrasted with this, employer's expert Dr. Rotman, upon learning of employee's actual objectively verified job activities, concluded that her work was not the prevailing factor. Instead, Dr. Rotman concluded that employee's gender, age, and weight were more likely possible reasons for the onset of her condition.

For all of these reasons, the administrative law judge's finding that employee sustained an occupational disease/repetitive trauma arising out of and in the course of her employment should be overturned. Because the majority finds otherwise, I respectfully dissent.

Reid K. Forrester, Member

Employee: Genise Richards

Injury No.: 15-054195

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Becton-Dickinson \& Co., f/k/a Carefusion

Additional Party: N/A

Insurer: Ace American Insurance Company

Hearing Date: February 13, 2019

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

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: July 23, 2015
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 performed repetitive tasks involving lifting and unpacking boxes of parts and cleaning supplies; opening small packages of fine materials and tools used in instrument fabrication; inventory, sorting and placement of same in storage drawers, and keyboard work.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Parts of body injured by accident or occupational disease: both upper extremities.
14. Compensation paid to-date for temporary disability: -0- (stipulated)
15. Value necessary medical aid paid to date by employer/insurer? -0- (stipulated)
16. Value necessary medical aid not furnished by employer/insurer? To be determined.

1. Employee's average weekly wages: $\ 642.36
2. Weekly compensation rate: $\$ 428.24 / T T D$
3. Method wages computation: See narrative Award.

1. Amount of compensation payable:

Unpaid medical expenses

Indeterminate

weeks of temporary total disability benefits

Indeterminate

1. Second Injury Fund liability: Open

TOTAL:

Indeterminate

1. Future requirements awarded: Yes (see narrative award).

Each of said payments to begin immediately and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to Claimant shall be subject to a lien in the amount of 25 % which is awarded above as costs of recovery of all payments hereunder in favor of the following attorney for necessary legal services rendered to Claimant:

Jeffrey P. Gault

Issued by DIVISION OF WORKERS' COMPENSATION

injury No. 15-054195

Employee: Genise Richards Injury No.: 15-054195

Dependents: N/A Before the Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Employer: Becton-Dickinson & Co., f/k/a Carefusion

Additional Party: N/A

Insurer: Ace American Insurance Company

Hearing Date: February 13, 2019 Cbecked by: JED

This case involves a disputed repetitive trauma injury resulting to Claimant with an onset date of July 23, 2015. Employer admits Claimant was employed on said date and that any liability was fully insured. The Second Injury Fund is a party to this claim but remains open for a determination of liability at a future date. Both parties are represented by counsel. Claimant seeks initial benefits to cure and relieve her symptoms.

Any objections not expressly ruled on herein are overruled to the extent they are not consistent with the findings and rulings herein.

1. Incidence of occupational disease (exposure and medical causation);
2. Whether injury arose out of and in the course of employment.

The Claimant testified at trial that she has worked for Employer since May of 1998. Claimant explained that for the last six years her job title was inventory administrator. Prior to that she had worked as an assistant administrator. The assistant administrator job was described as primarily secretarial work requiring data entry, filing, and periodically picking up items for the job.

Claimant's current position as inventory administrator requires working most hours of each work day with her hands inventorying tools, tool accessories, parts, and supplies for use in the manufacturing of surgical instruments. Claimant's current job functions require keyboarding.

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for entering data into a computer, and working a "tool boss" system which requires unpacking, sorting and placing parts and equipment into various drawers and trays. Claimant described hand intensive duties which require the use of significant force involving pinching and gripping activities and pulling open containers, and tearing protective packaging, to remove materials and place these items into drawers lined with slotted trays and dividers, and opening and closing the drawers. Claimant explained and demonstrated the significant force her job duties require with gripping and pinching when these items had to be taken out of their packing tubes and various protective packaging in order to be inventoried.

Claimant described that after working all day, her hands are numb and tingle. She self-treats these symptoms with ibuprofen to alleviate the symptoms. Claimant continues to work and testified she has not missed any time from work as a result of her hand complaints. Claimant indicates however that she works in pain and her hand symptoms affect her work routine; her hands hurt, ache, tingle and swell, especially following a busy work day. Claimant performs no outside activity that is hand intensive. Claimant specifically describes three to four hours per day working on the tool boss system, but other work activities are also hand intensive, including stocking shelves with cleaners, chemicals and general supplies, and keyboarding.

Concentra Records

Claimant noticed that her hand symptoms worsened in July 2015 and she informed her supervisors who sent her to Concentra Medical Center. The first Concentra visit was July 23, 2015 wherein Claimant described tingling and pain from her hands to her elbows. Claimant's complaint history was consistent with her testimony given at the hearing. Claimant took physical therapy and when she did not respond to treatment, she was referred to physiatry at Concentra. Claimant was examined by Dr. Khariton, a physiatrist, at Concentra, who eventually ordered electrical studies on September 4, 2015 which confirmed the presence of carpal tunnel syndrome in both hands.

The positive finding of "moderate sensory and median focal distal neuropathy" was enunciated in Claimant's exam note of September 11, 2015. (Exhibit 1.)

Dr. Rotman Records

Later in September 2015, Dr. Khariton referred Claimant to Dr. Mitchell Rotman, a hand surgeon for Concentra, following the positive electrical studies. Dr. Rotman initially diagnosed Claimant with bilateral carpal tunnel syndrome and suggested that since she failed conservative care she would require carpal tunnel releases. Dr. Rotman's initial report of September 28, 2015 states:

She truly does a lot of hand grasping at work for at least four hours a day and a lot of it is heavy, then that would be pervading here. Otherwise her significant risk factors would be her weight and her age.

(Exhibit 1; Notes dated 09/28/15 & Exhibit 2, p. 6.) Dr. Rotman's report further states that he would see her back for post-operative visits. Dr. Rotman evaluated Claimant this one time.

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In his October 13, 2015 narrative report, Dr. Rotman, for reasons that are not clear in the record, elaborates on the likelihood of Claimant's job tasks causing work related carpal tunnel syndrome (CTS) and suggests he would gladly review any additional information on the job exposure. Dr. Rotman subsequently reviewed the Coventry job description (Exhibit D) and changed his opinion on work-relatedness. He found Claimant's job exposure was not the prevailing cause of her CTS. Rather, he identified factors of her age, gender, and obesity (report 11/20/15).

Opinion Evidence

Dr. Rotman

Employer offered the deposition of Mitchell Rotman, M.D., orthopedic/hand surgeon, as Exhibit B. Dr. Rotman never treated Claimant and, accordingly, did not generate a treatment record beyond his initial examination on September 28, 2015 through Concentra.

Dr. Rotman subsequently reported that Claimant has risk factors which in his opinion became the prevailing factors in causing Claimant's condition. Upon receiving further communication from the Employer/Insurer, Dr. Rotman changed his causation opinion to one finding the prevailing factors in causing Claimant's carpal tunnel syndrome were non-work related. He identified factors of her age, gender, and obesity.

Dr. Rotman describes his grading of the factors which he claims provide for Claimant's carpal tunnel syndrome. He also agreed his opinion would probably change if the information which he had received about the job description was not accurate, specifically with regard to gripping and pinching (pp. 25-27). Dr. Rotman was provided with a job analysis by the insurance company (Exhibit D). The insurance carrier had provided the essential functions analysis to Dr. Rotman which provided that the Claimant "never" performed gripping or pinching during the work day which is contrary to Claimant's testimony.

At deposition, Dr. Rotman clearly stated that his opinion on the prevailing factor analysis was "directly dependent on the accuracy" of the Coventry job analysis (p. 25). Dr. Rotman testified that his opinion would change if forceful gripping and pinching were part of Claimant's work duties:

Q. But, for example, you were asked about to what extent she had to remove items from tubes. And they're apparently small items, but the tubes are wrapped in, I guess, a very, very tight plastic that has to be removed by hand. And if she has to do that for a period of hours every day, could that essentially involve more pinching, more gripping, requiring more grip strength from what Coventry said in their report?

A. Yes, it could change my opinion if I saw her repetitively opening those plastic containers, and they were really hard to open, and it took quite a bit

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of force with both hands to pull those apart, and she was doing several a minute, that would change my opinion. (p. 27.)

Dr. Schlafly

Claimant offered the narrative report of Bruce Schlafly, M.D., orthopedic/hand surgeon, as Exhibit 2. Dr. Schlafly was also deposed by the Employer's attorney (Exhibit A). Upon denial of benefits, Claimant was examined by Dr. Schlafly who also reviewed the record. On physical examination, Dr. Schlafly noted positive Tinels and Phalen's tests, decreased grip strength and altered sensation to the pin wheel test in the index fingers. Dr. Schlafly provided the opinion that Claimant's hand intensive work was the prevailing factor in causing her carpal tunnel syndrome and also in causing the need for the treatment which would be surgical carpal tunnel releases. Dr. Schlafly states (Ex. 2, pg. 5):

"My diagnosis for Ms. Richards is bilateral carpal tunnel syndrome. Her carpal tunnel syndrome has been present for many months. I recommend surgery for bilateral carpal tunnel releases, one hand at a time.

My opinion is that Ms. Richards' repetitive work with her hands at her place of employment at the surgical instrument factory is the prevailing factor in the cause of her bilateral carpal tunnel syndrome, and in her need for bilateral carpal tunnel releases. Although Dr. Rotman implied that the employee must perform forceful and repetitive gripping activities in order to develop occupational carpal tunnel syndrome, publications from OSHA, the CDC, and the American Medical Association all describe occupational carpal tunnel syndrome due to repetitive use of the hand, even if the repetitive work is not heavy, forceful gripping. Ms. Richards describes repetitive work with her hands during her many years of employment at the surgical instruments factory, with the repetitive work consisting of a combination of data entry work and material handling.

I recommend bilateral carpal tunnel releases, one hand at a time, using the standard technique of an open incision in the palm to decompress the median nerve at each wrist. Ms. Richards may find it necessary to come off work for rest of her hands, if treatment is delayed. In her current condition, she has a great deal of disability in both hands due to work related bilateral carpal tunnel syndrome, but the disability can be reduced with surgical treatment."

Dr. Schlafly was deposed and presented with questioning by Employer's counsel as to whether or not the obese/age/gender factors as described by Dr. Rotman were prevailing and he indicated that those factors only applied to a small percentage of women in the general population (5% or less) which might be contributing but would not be prevailing (Ex. A, pp. 15-16). He reiterated that the prevailing factor in the cause of Claimant's condition and need for treatment was the hand intensive work performed by the Claimant, at her employment for the

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Employer (pp. 18-19). Dr. Schlafly further testified that his recommendation for surgery flowed from Claimant's work activities (Ex. A, pg. 18).

Jan Tucker - Supervisor

Jan Tucker is an operations manager for Employer and described Claimant as a good employee who had worked for Carefusion/BDI for many years. At trial, Claimant's supervisor corroborated the salient features of this workplace exposure. She was also asked to identify the Coventry job description (Exhibit D.) This report was not signed but identifies an analyst by name on the front page. The report contains a broad array of body metrics. The report contains no detail on hand function. Nothing in the format suggests it is designed for hand injuries alone or repetitive trauma alone. The four page report contains successive series of boxes with brief entries. It contains no narrative remarks.

Ms. Tucker explained that she participated in providing the work description presented to Dr. Rotman by the insurance carrier (Exhibit D), and in fact had personally filled in at the inventory administrator position when Claimant was absent. Ms. Tucker described being asked questions by an insurance representative and providing answers, which were used to prepare the job analysis relied upon by Dr. Rotman. Ms. Tucker admitted that the portions of the report pertaining to gripping and pinching were incorrect and should not have said that Claimant's position "never" requires gripping or "never" requires pinching. Ms. Tucker admitted that Claimant's position does require hand gripping and pinching and that the report provided to Dr. Rotman (offered in evidence as Exhibit D) was not accurate.

RULINGS OF LAW

Incidence of Occupational Disease

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. See Section 287.067.2 RSMo (2016).

Proof that carpal tunnel syndrome is an occupationally induced disease rather than an ordinary disease of life involves two considerations. First, whether there was an exposure to the disease which was greater than or different from that which affects the public generally. Second, whether there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort. Claimant must establish generally through expert testimony, a direct causal connection between the conditions under which the work is performed and the occupational disease. Townser v. First Data Corp., 215 S.W. 3d 237 (Mo. App. 2007). Here, Claimant offered substantial opinion evidence that Employer's work exposure was the prevailing factor in her development of bilateral CTS. Her testimony reconciles easily with that of her expert.

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Claimant has alleged that she sustained injury to her upper extremities through the repetitive motions and hand exertion. Claimant presented uncontradicted evidence of exposure to grasping, pinching and keyboarding. At trial, Claimant's supervisor corroborated the salient features of this workplace exposure. She corrected the Coventry report inaccuracies and, having performed the job duties herself at times, corroborated Claimant's descriptions with few discrepancies. As a consequence, the exposure (or ergonomics) are essentially undisputed in terms of what the experts must contemplate in their causation opinions for Claimant. Employer's medical expert did not change his testimony based on inaccuracies in the ergonomics report or other details provided by Claimant but freely stated his opinion might probably change if his ergonomic assumptions changed.

Claimant offered substantial probative evidence in the form of medical records and opinions from two qualified physicians that Employer's workplace exposure was the prevailing factor in Claimant's development of disabling symptoms. Foremost in a review of the expert opinion is the uniformity of patient complaints, work duties and clinical findings noted by each surgeon. Dr. Schlafly found work related repetitive trauma and recommended treatment. Dr. Rotman also found work related repetitive trauma and recommended treatment but subsequently changed his opinion as described above.

Dr. Rotman's final opinion is unsupported by a cogent theory that integrated the uncontradicted job description, duties, and ergonomic evidence. Dr. Rotman was provided with a job analysis by the insurance company which omitted several important components of Claimant's work. In contrast, Claimant testified that she performs heavy exertion gripping and pinching in tearing open plastic tubes and other packaging for manually placing small parts, tools and accessories, and materials in the tool boss system through out the day as needed.

Dr. Rotman provided conflicting testimony about the cause of Claimant's condition. He first testified that the cause of carpal tunnel is unknown, an idiopathic condition (p. 28). When asked if Claimant's carpal tunnel syndrome was caused by Claimant's obesity, he restated that the cause of her problem is unknown (p. 30). Dr. Rotman next stated that Claimant's hand intensive work had no effect as a causal factor (pp. 31-32). More importantly, he changed his opinion on causation in reliance on the Coventry job description proffered to him which was demonstrated to be inaccurate and incomplete.

Dr. Rotman subsequently equivocated stating that the hand intensive work as described to him, even without forceful gripping and pinching, would account for approximately 30 percent of the global picture of all of the factors of which age, gender, and obesity accounted for the other 70 percent. Dr. Rotman agreed, nevertheless, that the Claimant requires carpal tunnel surgery to reduce the effects of her hand symptoms, as caused by the carpal tunnel syndrome (p. 21).

Claimant's trial testimony on hand tasks and the accompanying ergonomics lends credible detail to Dr. Schlafly's opinion that Claimant's upper extremity symptoms were caused

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by work. Claimant's daily work duties are found to be hand-intensive requiring repeated grasping, pinching and keyboarding as described. The record reflects that Dr. Schlafly's opinion is better reasoned and supported by the ergonomic facts. Dr. Schlafly's testimony was unimpeached. While it may be argued that Dr. Schlafly did not have opportunity to review the Coventry document, the report was found both inaccurate and incomplete. Indeed, this is the basis upon which Dr. Rotman's causation opinion is less persuasive than that of Dr. Schlafly. Dr. Rotman's reliance on the job description was misplaced. In fairness to Dr. Rotman, he expressly stated his opinion might change if he found Claimant's ergonomic exposure to be different than what he contemplated upon review of the Coventry report.

Dr. Rotman's's testimony did not rebut Dr. Schlafly's opinion incorporating Claimant's ergonomic descriptions of her hand tasks and corresponding symptoms. His distinctions were general and devoid of ergonomic analysis. The failure of Dr. Rotman to be familiar with the workplace ergonomics has two evidentiary ramifications. First, the expert was not aware of a complex circumstance of exposure to repetitive trauma (detailed above) and, lacking foundation, his opinion lacks substantial probative value.

MMI and Treatment

Claimant has not yet attained maximum medical improvement. Dr. Schlafly recommends referral of Claimant to surgery. The record contains no evidence of Claimant's failure to cooperate or attend IMEs with qualified surgeons. Claimant made demand for treatment based on the advice of Dr. Schlafly. Claimant is entitled to additional medical treatment in order to cure and relieve the effects of the reported injury.

Conclusion

Accordingly, on the basis of the substantial competent evidence contained within the record as a whole, Claimant is found to have sustained a work related repetitive trauma to her upper extremities. She has demonstrated a need for relief from disabling symptoms with a plan for further relief of those symptoms. Claimant is entitled to additional medical benefits, and any accompanying TTD benefits, thereafter, until competent medical authority suggests otherwise. Employer shall immediately tender medical benefits by tendering treatment with a qualified surgeon with a demonstrated record in treating repetitive trauma pathologies. Section 287.140.2 RSMo (2016).

I certify that on 4-4-19

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.

My

Made by:

JOSEPH E. DENICIAN

Administrative Law Judge

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