Veneta Hill v. Caring Hearts, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 11-109031

**Employee:** Veneta Hill

**Employer:** Caring Hearts, Inc.

**Insurer:** Guarantee Insurance Company in Liquidation c/o Missouri Insurance Guaranty Association

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 15, 2019. The award and decision of Administrative Law Judge Jason A. Tilley, issued December 15, 2019, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this **21st** day of August 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**DISSENTING OPINION FILED**

Reid K. Forrester, Member

**S. Viki Curls**

Shalonn K. Curls, Member

**Attest:**

**Randal H. Hufner**

Secretary

Injury No.: 11-109031

Employee: Veneta Hill

I have reviewed the evidence, read the briefs of the parties, and considered the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I disagree with the majority's decision to award permanent partial disability, temporary total disability, and unpaid medical expenses to this employee because she did not suffer a compensable occupational disease through her work activities for employer.

I do not believe that employee's work activities for employer were the prevailing factor in her bilateral carpal tunnel syndrome because the administrative law judge erred in finding the opinions of Dr. Shawn Berkin to be more persuasive than Dr. David M. Brown on the issue of causation, and by not properly considering her risk factors that were unrelated to her work activities for her employer, such as her Ehlers-Danlos syndrome, and her hair braiding activities. The administrative law judge also erred by finding employee's testimony to be persuasive, and by relying on this Commission's prior decision in *Mark Cerutti v. Missouri Department of Corrections*, Injury No. 08-091923.

The administrative law judge did not properly consider, in light of the facts in this particular case, the superior qualifications of Dr. Brown, when compared to those of Dr. Berkin. Dr. Brown is a board certified hand surgeon. Dr. Brown completed a surgery fellowship which specialized in orthopedic surgery, and hand, upper extremity and micro surgery. Dr. Brown has expertise in treating clients that have developed carpal tunnel syndrome through their work activities. Perhaps most importantly, Dr. Brown performs up to eight carpal tunnel surgeries per week.¹ Dr. Berkin, on the other hand, admitted during his deposition that his primary field of practice is family medicine. Dr. Berkin is not an orthopedic surgeon, and his practice does not include performing carpal tunnel surgeries on his clients.² Dr. Berkin does not have any demonstrated expertise in occupational or non-occupational related carpal tunnel syndrome. Furthermore, Dr. Berkin did not have the opportunity to review employee's deposition testimony prior to his first evaluation of employee.

Additionally, Dr. Brown clearly opined that employee's work activities for employer were not the prevailing factor in her bilateral carpal tunnel syndrome, and that it would be difficult to assign a specific rating to employee's alleged occupational disease, because of the underlying symptoms in her hands, wrists and arms due to her Ehlers-Danlos syndrome. Dr. Brown also opined that employee had two conditions that were well known risk factors for the development of carpal tunnel syndrome: her Ehlers-Danlos syndrome and rheumatoid arthritis. Dr. Brown also noted two demographic, non-occupational risk factors that may have contributed to her carpal tunnel syndrome: being over 50 years of age and of the female gender. Out of all of employee's possible risk factors for the development of bilateral carpal tunnel syndrome, Dr. Brown believed that employee's Ehlers-Danlos syndrome was most likely the prevailing factor for her bilateral carpal tunnel syndrome.

Dr. Brown also noted that employee performed various activities for employer, and that if someone suffered from a repetitive trauma due to his or her work activities, then Dr. Brown would have expected those symptoms to dissipate soon after that person ceases those work related activities. Employee's symptoms, on the other hand, did not dissipate after she quit working for employer. Employee's symptoms became worse, and required surgery approximately three years after she ceased working for employer.³

¹ See *Transcript*, pages 489-490.

² See *Transcript*, page 408.

³ See *Transcript*, page 566.

Injury No.: 11-109031

Employee: Veneta Hill

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The administrative law judge also misapplied this Commission's decision in *Cerutti*. In that case, Dr. Brown provided medical expert testimony that the claimant's job duties for his employer were not the prevailing factor in the claimant's carpal tunnel syndrome. However, the administrative law judge, and this Commission found the opinions of Dr. Bruce Schlafly to be more persuasive than that of Dr. Brown, and ultimately found that it was the prevailing factor. There are several differences between the claimant in *Cerutti* and that of employee in the present case. For example, the claimant in *Cerutti* was a correctional officer, while employee in the present case was a nurse aide. The claimant in *Cerutti* had job duties that included, but were not limited to, maintaining security within his employer's facility, securing and unlocking doors, policing, and observing offenders within the facility. 4 Therefore, employee had job duties that were different from those at issue in *Cerutti*, and employee was required to use her hands in a different manner. Furthermore, the claimant in *Cerutti* was male, while employee is female. There was also no indication in *Cerutti* that the claimant suffered from rheumatoid arthritis or Ehlers-Danlos syndrome, both of which employee suffers from. Moreover, Dr. Schlafly is a board-certified orthopedic hand specialist, while Dr. Berkin is a family physician.

The administrative law judge also erred by finding employee's testimony to be persuasive. Employee did not specifically testify as to her varied job duties for employer. Employee's testimony was vague, and she only provided a general overview of her work activities. Furthermore, at the trial hearing, employee denied that she bow hunted, and that she braided hair for her family members. However, in her deposition, employee admitted that she braided hair after her work hours, but denied that she was paid to braid hair. She also admitted, in her deposition, to bow hunting two to three times a year, and did this on a regular basis before her father died. 5 It is also worth noting that at the hearing, employee admitted that her father had been dead for 18 years, 6 which means that employee probably used her hands to bow hunt on multiple occasions before the date of her alleged occupational disease. Therefore, the administrative law judge, and this Commission should not find employee's testimony to be persuasive because her testimony was inconsistent regarding the use of her hands.

To summarize, I do not believe that employee has proven her case that her work activities at employer were the prevailing factor in her bilateral carpal tunnel syndrome. The other issues in this case are moot because the prevailing factor for employee's bilateral carpal tunnel syndrome was her preexisting Ehlers-Danlos syndrome. Because the majority has determined otherwise, I respectfully dissent.

Reid K. Forrester, Member

4 See *Cerutti*, Page 3.

5 See *Transcript*, pages 56-57, 624.

6 See *Transcript*, page 57.

TI11900111

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 11-109031

AWARD

Claimant: Veneta Hill

Dependents: N/A

Employer: Caring Hearts, Inc.

Additional Party: Second Injury Fund (Dismissed)

Insurer: Guarantee Insurance Company in Liquidation c/o Missouri Insurance Guaranty Association

Hearing Date: August 28, 2019

Injury No.: 11-109031

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial Relations of Missouri St. Louis, Missouri

Checked by: JAT

FINDINGS OF FACT AND RULINGS OF LAW

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: On or about January 10, 2011.

1. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri.

1. Was above Claimant in employ of above Employer at the 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 a claim for compensation filed within time required by Law? Yes.

1. Was Employer insured by above Insurer? Yes.

1. Describe work Claimant was doing and how accident occurred or occupational disease contracted: Repetitive use of hands.

1. Did accident or occupational disease cause death? No.

1. Part(s) of body injured by accident or occupational disease: Bilateral Hands.

1. Nature and extent of any permanent disability: 20% PPD for the left wrist and 25% PPD for the right wrist. A 5% loading factor is added for multiplicity.

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

1. Value necessary medical aid paid to date by Employer/Insurer? $2,398.08.

1. Value necessary medical aid not furnished by Employer/Insurer? $4,016.67.

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 11-109031

1. Claimant's average weekly wages: 1,202.00.

1. Weekly compensation rate: Temporary Total Disability: 799.11; Permanent Partial Disability: $418.58.

1. Method wages computation: Stipulated.

1. Amount of compensation payable: $156,947.80.

1. Second Injury Fund liability: Dismissed by Claimant.

1. Future requirements awarded: None.

**COMPENSATION PAYABLE**

1. Amount of compensation payable: Medical - 4,016.67. Temporary Total Disability - 118,268.28. Permanent Partial Disability - $34,612.38.

1. Second Injury Fund liability: None.

1. Future requirements award: None

**TOTAL:**

$156,897.33

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law. The compensation awarded to the Claimant shall be subject to a lien in the amount of 25% of all benefits, hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: John Malec.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 11-109031

Claimant: Veneta Hill

Dependents: N/A

Employer: Caring Hearts, Inc.

Additional Party: Second Injury Fund (Dismissed)

Insurer: Guarantee Insurance Company in Liquidation c/o Missouri Insurance Guaranty Association

Hearing Date: August 28, 2019

Injury No. 11-109031

Before the

**DIVISION OF WORKERS' COMPENSATION**

Department of Labor and Industrial Relations of Missouri St. Louis, Missouri

Checked by: JAT

The above referenced Workers' Compensation injury claim was heard before the undersigned administrative law judge on August 28, 2019. The deadline for proposed awards was September 27, 2019. Employer/Insurer submitted their proposed award on September 27, 2019. Claimant requested an extension to October 4, 2019 for submission of their proposed award. Claimant's request was granted without objection. Claimant's proposed award was submitted on October 4, 2019.

Claimant dismissed the claim against the Second Injury Fund prior to the hearing. The parties stipulated that Veneta Hill ("Claimant") was employed by Caring Hearts, Inc. ("Employer") on or about January 10, 2011. Claimant was working under the provisions of the Missouri Workers' Compensation Law. Subsequent to the injury, Employer's insurer filed a Petition for Liquidation triggering the need for Missouri Insurance Guaranty Association to proceed with the defense of this claim¹. A claim for compensation was timely filed. Claimant's average weekly wage was 1,202.00, resulting in a compensation rate of 799.11 per week for TTD and $418.58 per week for PPD. Employer has paid no temporary disability benefits. Employer has paid medical benefits totaling $2,398.08.

The issues to be resolved by hearing include:

1. Incidence of occupational disease/exposure.
2. Whether injury arose out of and in the course of employment.
3. Medical Causation/Prevailing Factor.
4. Liability for Unpaid Medical.

¹ Guarantee Insurance Company in Liquidation c/o Missouri Insurance Guaranty Association will be referred to as insurer.

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1. Nature and extent of temporary total disability.

1. Permanent partial disability.

II. EXHIBITS

Claimant offered exhibits 1-11, which were admitted into evidence without objection. Those exhibits included:

1. Records of Dr. Valerie Walker
2. Records and billings of Dr. Henry Purcell
3. Records and billings of Dr. Edward Heidbrier
4. Records and billings of Dr. Francis Dysarz
5. Records and billings of Myrtle Hilliard
6. Records and billings of Dr. Osei
7. Records of Breakthrough Pain Relief
8. Records and billings of ProRehab
9. Tax returns
10. Deposition of Dr. Berkin with medical reports
11. CMS liens.
12. Veneta Hill medical billing

The Employer/Insurer offered exhibits A - B, which were admitted into evidence without objection. Those exhibits included:

A. Deposition of David M. Brown, M.D.

B. Deposition of Claimant

FINDINGS OF FACT AND RULINGS OF LAW

Claimant testified that she now lives in Arkadelphia, Arkansas and had worked for Caring Hearts Agency, Inc., a home health care provider in the greater St. Louis Metropolitan area, since 2005 or 2006 with her last day of work there being July 3, 2012. Claimant was a certified nurse's aide with a state license.

At the Caring Hearts Agency her job duties fell into two distinct categories. As a bath nurse, Claimant visited disabled and elderly clients to assist them in their personal hygiene

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needs. Besides bathing, Claimant would physically assist them in and out of baths, dress them and groom them, whatever their particular medical condition required.

As a home health aide, Claimant would clean her clients' apartments including mopping floors, cleaning counters, washing dishes, cooking and serving meals, running errands, washing clothes and doing whatever it took to help maintain their homes and health. All hand-intensive tasks multiplied many times that of an average homemaker on a daily basis.

Claimant worked long hours for an extended period of time performing these duties, seven days a week, sometimes starting at 6 a.m. and finishing at 11 p.m. Her rate of pay was 18.50 per hour for bath nurse work and 10 per hour for working as a homemaker. Even though Claimant worked in excess of 40 hours per week, her employer did not pay overtime wages at 1.5 times her hourly wage. Claimant received separate W-2's from Caring Hearts Agency, one for her work as a bath nurse and the other for her work as a Home Health Aide. Claimant always made more money per year as a bath nurse because of the higher wage rate. The W-2's in evidence support Claimant's testimony.

Claimant suffered an unrelated injury to her knee and ankle on July 3, 2012, and was not cleared to work from the date of injury to December 2012.

Claimant's testimony regarding the repetitive work activities and job duties was consistent and credible. Claimant testified that sometime in 2005 to 2006, Claimant began working as a bath nurse and homemaker for the elderly and disabled for Caring Hearts Agency. Claimant stated that she began experiencing problems with her hands during 2008. Within a couple of years of beginning work for the Caring Hearts Agency, Claimant developed pain, stiffness and numbness in her hands. As her workload increased, requiring her to work, at times, 14-hour days, seven days a week, Claimant's hands became increasingly symptomatic and weak. Claimant's sleep patterns were affected by pain. Claimant's symptoms were evaluated by Dr. Valerie Walker who diagnosed carpal tunnel syndrome ("CTS") and prescribed nortriptyline and meloxicam.

Dr. Walker referred her for diagnostic studies. Claimant's symptoms were evaluated further by Dr. Edward Heidbrier who diagnosed arthralgia and CTS. Dr. Heidbrier referred Claimant to Dr. Francis Dysarz, a hand surgeon, for further examination. Dr. Dysarz also diagnosed CTS on March 29, 2011 and administered steroid injections to both wrists. On June 17, 2011, Dr. Dysarz diagnosed right cubital tunnel syndrome and recommended electro-diagnostic studies to evaluate her symptoms of CTS and neck and shoulder pain.

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On January 9, 2013, Claimant was evaluated by Dr. Sherry Ma, a neurologist, who performed electrodiagnostic studies of both upper extremities. The study revealed prolonged median nerve latencies at both wrists, consistent with bilateral CTS.

In May 2013, Claimant was evaluated by Dr. David M. Brown who compiled a report indicating that her work-related activities were not the prevailing factor in causing her CTS. Employer, then, refused further treatment basing their decision on the belief that her prior diagnosis of Ehlers-Danlos syndrome and other risk factors were the causative factors of her symptoms and injuries.

Claimant, having no insurance coverage, was unable to work as a bath nurse or homemaker and struggled to obtain treatment for the injury. Claimant diligently pursued medical care and any delay in treatment was due to Employer refusing payment for same. Claimant, ultimately, obtained Social Security disability benefits with Medicaid coverage and scheduled treatment for her wrists.

Claimant was seen by Dr. Laila Hanna on April 7, 2015 for joint pain in both wrists. Claimant underwent nerve conduction studies and was diagnosed with median nerve entrapment and neuropathy that was worse on the right side. Claimant was diagnosed with CTS. Dr. Hanna prescribed Norco for pain and referred Claimant to a specialist for further care.

On May 15, 2015, Claimant presented as a new patient to Dr. Daniel Osei of Washington University Orthopedics with a history of increasing bilateral wrist and hand pain. Claimant complained of weakness, constantly dropping objects and inability to sleep due to pain. On physical examination, a ganglion cyst was noted over the volar surface of the right wrist that was tender to palpation. Examination of the left hand revealed provocative CTS testing was positive. It was noted that previous nerve conduction studies revealed bilateral CTS. Dr. Osei recommended CTS releases on both hands. Excision of the ganglion cyst was also recommended.

Dr. Osei performed surgery for a right carpal tunnel release and excision of a volar ganglion cyst on June 30, 2015.

Claimant had a post-operative examination on July 8, 2015. Claimant reported improved sensation but that pain was still present. On physical examination, Claimant's surgical incisions were clean and dry and her sutures were removed. Sensory motor functioning of the median, radial and ulnar nerves were intact. Claimant was continued on a 10 pound lifting restriction and scheduled for follow-up in a month.

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Dr. Osei performed a left carpal tunnel release on Claimant on August 4, 2015.

Claimant had a post-operative examination on August 12, 2015. Claimant's incision was clean and dry and her sutures were removed. Neurovascular status was intact. Claimant was placed on a 1-pound lifting restriction and scheduled for follow-up in three weeks.

Claimant was seen for follow-up on October 14, 2015 and the incisions to both hands were well healed. Median, radial and ulnar nerve functioning of both upper extremities were intact. Her pulses were intact and capillary refill was brisk. Claimant was released without restrictions.

Claimant was unable to work because of the bilateral carpal tunnel syndrome from the time Claimant was released from the work restrictions imposed by her prior injury until October 15, 2015, when Claimant was returned to full activities by Dr. Osei, a total of 154 weeks.

Dr. Berkin examined and rated Claimant's condition after he saw her on two occasions. After her first visit with Dr. Berkin in March of 2013, he opined that Claimant had not reached maximum medical improvement and recommended that Claimant see a hand surgeon for further treatment.

He reexamined her on July 18, 2016. At the time of her second exam, Claimant complained of continued numbness, tingling, difficulties in gripping and driving. Dr. Berkin further opined that the hand-intensive activities Claimant performed attending to clients in her job with Caring Hearts Agency such as bathing, dressing, grooming, performing housework, cleaning rooms and bathrooms, was the prevailing factor in causing the bilateral carpal tunnel syndrome and ganglion cyst to the right wrist. He testified that these activities outweighed other activities and risk factors that Claimant may have.

Dr. Brown testified that Claimant's job duties with the Caring Hearts Agency were not the prevailing cause of her bilateral carpal tunnel syndrome. He attributed the cause of the CTS to other risk factors: A history of Ehlers-Danlos Syndrome which is a condition in which connective tissue may be loose and more elastic than normal; being over the age of 50; and the possibility of rheumatoid arthritis. As noted by Dr. Brown, however, the issue of rheumatoid arthritis was only mentioned once in Dr. Walker's records with no treatment or follow up diagnostic testing.

Dr. Brown testified that the medical records provided a history of a heart valve surgery that may have been related to the Ehlers-Danlos Syndrome. No further treatment for the Ehlers-

WV-12-01 (6-01)

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Injury No.: 11-109031

Danlos Syndrome is mentioned in the medical records, nor is there any indications of laxity in the wrists or upper extremities of Claimant that correlate that condition with the CTS.

At the hearing Claimant indicated that her hands continue to cause her difficulties on a daily basis and have resulted in her being restricted to part-time employment. Her hands ache and become stiff after work and still give her problems sleeping.

**RULINGS OF LAW**

Based upon the competent and substantial evidence, I find:

Claimant's testimony was credible and consistent with the medical evidence. The following findings of fact are based on the hearing testimony of Claimant, Claimant's deposition testimony, medical records and the depositions of experts admitted into evidence.

**Issue 1. Occupational Disease**

Employer is disputing that on or about January 10, 2011 that Claimant sustained an accident and/or occupational disease arising out of and in the course of her employment and that Claimant's injuries were medically causally related to the alleged accident and/or occupational disease on or about January 10, 2011.

Under Sections 287.067.2 and 287.067.3 RSMo, "an injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability." "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." In order to be a compensable injury under a repetitive motion occupational disease, Claimant has the burden to prove that the occupational exposure was the prevailing factor in causing the resulting medical condition and disability.

Carpal tunnel syndrome continues to be a compensable injury even under the prevailing factor modification to the statute. See *Cook v. Missouri Highway and Transportation Commission*, 500 S.W. 3d 917, (Mo.App. S.D. 2016); *Mark Cerutti v. Missouri Department of Corrections*, Injury No. 08-091923.

**2. Course and Scope of Employment**

Dr. Brown diagnosed bilateral carpal tunnel syndrome. It was his opinion that Claimant's job activities were not the prevailing causative factor of her bilateral carpal tunnel syndrome.

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Issued by DIVISION OF WORKERS' COMPENSATION

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syndrome. Dr. Brown stated that Claimants other medical condition and age caused her carpal tunnel and that her work duties were not a factor. (Dr. Brown also testified that the carpal tunnel syndrome in Cerutti, supra, was not causally connected. The commission found otherwise.)

Dr. Berkin diagnosed bilateral carpal tunnel syndrome and opined that Claimant's intensive hand activity as a nurse's aide for her employer was the prevailing cause of and for the surgeries. He further opined that the work-related activity far outweighed any other factors that might be considered such as her Ehlers-Danlos Syndrome, age and hair grooming.

I find that the opinion of Dr. Berkin is persuasive and credible regarding the bilateral carpal tunnel syndrome. Based on the evidence and testimony, I find that Claimant's work activities and job duties were the prevailing factor in causing the resulting medical condition and disability of bilateral carpal tunnel syndrome which did not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal non-employment life.

Issue 3. Medical Causation

I find that Claimant sustained a compensable work-related occupational disease and injury; and compensable work-related accident and injury that arose out of and in the course of her employment. I find that Claimant's bilateral carpal tunnel syndrome and the need for medical treatment are medically causally related to Claimant's occupational disease and accident.

Issue 4. Medical Expenses

Section 287.140(1) RSMo provides in pertinent part: "In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." Further, "if the employer is on notice that Claimant needs treatment, and the employer fails or refuses to provide it, Claimant may select his or her own medical provider and hold the employer liable for the costs thereof." Martin v. Town & Country Supermarkets, 220 S.W.3d 836, 844 (Mo. App. 2007); Abt v. Mississippi Lime Co., 420 S.W.3d 689, 704 (Mo. App. 2014).

There is no dispute that after initially providing medical care, the employer refused further treatment after receiving Dr. Brown's report. The medical evidence from both parties indicates that the surgical treatment provided was necessary for the care of Claimant. It was

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simply that the employer did not believe their work caused the need for that treatment. When Claimant was denied medical care she obtained the care she could when able to do so. This included the care for her surgery from Dr. Osei and the attendant health care providers. Medicaid paid and asserted a lien against any recovery made by Claimant in the amount of $4,016.67.

It is ordered that the employer pay the lien asserted by the Center for Medicaid Services in the amount of $4,016.67 and any other costs of the CTS diagnosis, surgery and follow-up care.

Section 287.170, RSMo entitles an injured employee who is unable to work because of his employment-related injury to temporary total disability payments during treatment until the employee reaches maximum medical improvement. Maximum medical improvement frequently is found when the employee is released to full activities or from doctor's care. Employee credibly testified that when released on her other work-related injury she was not able to safely perform her work duties with Caring Hearts Agency. Dr. Berkin agreed that she should not work as a nurse's aide until she recovered from surgery.

Claimant's unpaid medical began in December 2012 after being cleared to return to work following her July 3, 2012 knee and ankle injury and lasted until she was released to all activities by Dr. Osei on October 15, 2015. This was a total of 148 weeks. Employee is therefore awarded temporary total disability benefits of 118,268.28 (148 weeks x 799.11).

Section 287.190 RSMo provides that an employee who suffers an industrial disabling condition as a result of a work related injury or disease may receive an award for that injury for any permanent partial disability incurred.

It was Dr. Berkin's opinion that Claimant had 40% permanent partial disability of the right wrist. It was his opinion that Claimant had 35% permanent partial disability of each wrist for the bilateral carpal tunnel syndrome. It was also his opinion that, due to the disability in both hands that a condition of multiplicity existed and that a loading factor should be applied.

Dr. Brown offered no disability rating.

Based on a review of the evidence, I find that as a direct result of the work-related left carpal tunnel syndrome, including surgery Claimant sustained 20% permanent partial disability of the left hand and wrist at the 175 week level (35 weeks) and as a direct result of

WCC-22-R1 (6-01)

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Injury No.: 11-109031

the right carpal tunnel syndrome, including surgery, Claimant sustained 25% permanent partial

disability of the right hand and wrist at the 175 week level (43.75 weeks). Claimant is,

therefore, entitled to 78.75 weeks of compensation for permanent partial disability.

Furthermore, based upon the evidence, I find that Claimant is entitled to an additional

5% for multiplicity representing an additional 3.94 weeks of compensation.

The employer is, therefore, ordered to pay Claimant a total of 82.69 weeks of

compensation at the rate of 418.58 per week for a total permanent partial disability award of

34,612.38.

**CONCLUSION**

Therefore, based on the evidence, Claimant is awarded benefits as detailed above.

I certify that on 12-5-19

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 __________________________ age __________________________

Made by: __________________________ Jason A. Tilley

Administrative Law Judge

Division of Workers' Compensation

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