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

- 2 -

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.

WC-32-R1 (6-81)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 15-054195

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 gri