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

-2-

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)

Page 1

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)

Page 3

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

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