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 affirm the administrative law judge's award with a modification so that employee's permanent and total disability benefits start at her date of maximum medical improvement. I do not believe that employee suffered a compensable occupational disease through her work activities at employer.
Employee's argument that she sustained an occupational disease on November 1, 2014 by repetitive trauma contradicts the evidence in the record. Dr. Ernest Neighbor never spoke to employee about her educational background, her prior jobs, or any other jobs she held at employer other than driving a forklift. Moreover, Dr. Neighbor did not ask which hand was employee's dominant hand and did not know the date when employee's left elbow symptoms began.
In regards to the issue of whether employer had timely notice of employee's alleged occupational disease under §287.420, Dr. Daniel Smith had numerous discussions with employee while treating her, and talked about the possibility of changing job positions on October 30, 2015 due to her left elbow complaints. On October 2, 2015, employee stated that her symptoms were especially severe when driving a forklift. On May 16, 2016, employee did in fact change positions from a forklift driver to an inspector at employer. I do not believe that Dr. Smith would have told employee she needed to change jobs if he thought that employee's job activities had no bearing on her current condition. Therefore, the "causal connection" was made by Dr. Smith on October 30, 2015 and the notice period began to run at that time. Employee's claim should be barred due to lack of timely written notice. Additionally, employee should not be entitled to an award for disfigurement under §287.190.4 RSMo due to her failure to provide timely notice to employer.
Vocational expert Mr. Terry Cordray opined that employee could still be employed as a cashier, bank teller, customer service representative, or a hostess and still work within those restrictions. Mr. Cordray also noted in his report that employee has a knowledge of ten key typing, keyboarding skills, telephone skills, and the ability to learn on the job. He also opined that she would be a good candidate for vocational rehabilitation or community college. The only restrictions from any doctor were to employee's non dominant hand. The only condition which could prevent employee from being employable is if she truly does need to lay down or change postures or nap during the day. Employee's alleged sleep issues are long standing and predate her alleged occupational disease. Even if employee is permanently and totally disabled, I believe that it should be due to a combination of the disabilities resulting from her alleged November 1, 2014 occupational disease and her preexisting disabilities, and should result in Second Injury Fund Liability. However, the Second Injury Fund was not a party to this case, and the statute of limitations has already run under §287.430 RSMo on the filing of a claim against the Second Injury Fund.
Employee also failed to prove that her bills for the treatment she sought after July 12, 2016 are related to treatment which were caused by her alleged occupational disease. All of the treatment employee sought after July 12, 2016 was either with Dr. Jeff Bradley or provided by employer. The purpose of employee's treatment with Dr. Bradley was to fix the issues which remained from her previous treatment with Dr. Smith. Since this treatment was reasonably necessary to cure and relieve the effects of her prior treatment and not to cure and relieve the effects of her alleged occupational disease, employer should not be held liable for these expenses.
Injury No. 14-106265
Employee: Karen Ritchie
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Because I find that there is no compensable occupational disease, the future medical treatment would be solely to treat employee's pre-existing condition. Therefore, any future medical care that employee might require is not employer's responsibility to provide.
To summarize, I believe that the administrative law judge's award should be reversed in its entirety. Because the majority has determined otherwise, I respectfully dissent.
Reid K. Forrester, Member