Karen Ritchie v. Silgan Containers Manufacturing Corporation

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No. 14-106265**

**Employee:** Karen Ritchie

**Employer:** Silgan Containers Manufacturing Corporation

**Insurer:** Traveler Casualty Insurance of America

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge granting compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge with this supplemental opinion.

On October 16, 2019, an administrative law judge issued an award granting compensation to employee in this workers' compensation claim. On November 1, 2019, employer filed a timely application for review with the Labor and Industrial Relations Commission (Commission).

The administrative law judge determined that employee was entitled to $861.04 per week from employer beginning on July 17, 2017, the date employee was terminated from employer, and for the rest of her life. The administrative law judge should have used employee's date of maximum medical improvement to determine when her permanent total disability benefits should commence.¹ Dr. James Zarr opined that employee's date of maximum medical improvement was May 2, 2018. Therefore, we modify the administrative law judge's award so that employee's permanent total disability benefits begin on May 2, 2018, in the amount of $861.04 per week and for the rest of her life. The weekly payments shall continue for employee's lifetime, or until modified by law.

We modify the award of the administrative law judge as supplemented herein. The award and decision of Administrative Law Judge Lawrence Rebman is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

¹ See *Lewis v. Treasurer of State*, 435 S.W.3d 144, 154 (Mo.App. E.D. 2014) (quoting *Cardwell v. Treas. of State of Missouri*, 249 S.W.3d 902, 910 (Mo. App. E.D. 2008): "Although the term maximum medical improvement is not included in the statute, the issue of whether any further medical progress can be reached is essential in determining when a disability becomes permanent and thus, when payments for permanent partial or permanent total disability should be calculated.")

MNKOI 0000714466

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

Given at Jefferson City, State of Missouri, this **29th** day of September, 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**SEPARATE OPINION FILED**

Reid K. Forrester, Member

**S. Wiki Curls**

Shalonn K. Curls, Member

Attest:

**Secretary**

Injury No. 14-106265

Employee: Karen Ritchie

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

Employee: Karen Ritchie

Injury Nos. 14-106265

Dependents: None

Employer: Silgan Containers Manufacturing

Insurer: Travelers Casualty Ins. Co.

Additional Party: None

Hearing Date: August 16, 2019

Briefs filed: September 16, 2019

Checked by: LR/drl

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: November 1, 2014
5. State location where accident occurred or occupational disease was contracted: St. Joseph, Buchanan County, Missouri
6. Was above employee an 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: Karen Ritchie was a forklift operator working 12-hour shifts 7 days a week, which resulted in her sustaining a repetitive motion to her left elbow and hand.
12. Did accidents or occupational disease cause death? No Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 14-106265

Employee: Karen Ritchie

1. Part(s) of body injured by accident or occupational disease: Left elbow and left hand.

1. Nature and extent of any permanent disability: Claimant is permanently totally disabled.

1. Compensation paid to date for temporary disability? $0

1. Value of TTD not furnished by employer/insurer? N/A

1. Value of necessary medical aid paid to date by employer/insurer? $110.00

1. Value of necessary medical aid not furnished by employer/insurer? $25,456.66

1. Value of necessary medical mileage not furnished by employer/insurer? N/A

1. Did accidents or occupational diseases cause a need for future medical treatment? Yes

1. Weekly compensation rates: TTD: 861.04, and PPD: 451.02

1. Method of wages computation: By Agreement

COMPENSATION PAYABLE

1. Amount of compensation payable:

Permanent total disability benefits of $861.04 each week from July 17, 2017, the day Employer terminated her, and continuing for the remainder of Karen Ritchie's life or until she is not permanently and totally disabled.

Unpaid medical expenses in the amount of $25,456.66 for reasonable and necessary treatment of her November 1, 2014 injury.

Future medical to cure and relieve the claimant of the effects of the November 1, 2014 injury.

Disfigurement to the right elbow of 12 weeks at 451.02 in the amount of 5,412.24.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of Mav Mirfasihi, Employee's attorney, for necessary legal services rendered. Said payments to begin upon receipt of this Award and to be payable and be subject to modification and review as provided by law.

1. Second Injury Fund Liability: N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 14-106265

Employee: Karen Ritchie

Enployee: Karen Ritchie

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 14-106265

Employee: Karen Ritchie

The parties agreed that the issues to be resolved by hearing include:

1. Whether Karen Ritchie sustained an occupational disease in the course of employment.
2. Whether Karen Ritchie gave timely notice of her injury to Employer.
3. Whether Karen Ritchie's Claim for Compensation was filed within the statute of limitations.
4. The nature and extent of Karen Ritchie's disability.
5. Karen Ritchie's amount of disfigurement due to her work injury.
6. Whether Employer is liable for past medical expenses in the amount of $25,456.66?
7. Whether Employer is liable for future medical expenses?

Karen Ritchie offered the following exhibits into evidence without objection:

- Exhibit 1 - Mosaic Life Care records

- Exhibit 2 - St. Joseph Orthopedic & Sports Medicine Center records

- Exhibit 3 - North KC Hospital records

- Exhibit 4 - Drisko Fee & Parkins records

- Exhibit 5 - St. Joseph Center for Outpatient Surgery records

- Exhibit 6 - North KC Hospital/Pain Source records

- Exhibit 7 - North KC Hospital/Pain Source Solution bills: $1,725.00

- Exhibit 8 - Drisko Fee & Parkins bills: 3,416.00

- Exhibit 9 - North KC Hospital bills: 20,315.66

- Exhibit 10 - Dr. Ernest Neighbor's Independent Medical Exam Report

- Exhibit 11 - Michael Dreiling's Vocational Report

- Exhibit 12 - Michael Dreiling's Deposition

- Exhibit 13 - Dr. Ernest Neighbor's Deposition

- Exhibit 14 - Attorney Client Contract

- Exhibit 15 - Termination Letter From Silgan 7/17/17

- Exhibit 16 - Forklift picture (steering wheel knob and levers)

- Exhibit 17 - Karen Ritchie's pay stub 12/22/16

The following exhibits of Employer were admitted into evidence without objection:

- Exhibit A - 60-Day Letter of Dr. James Zarr's Report of May 17, 2019

- Exhibit B - Deposition Transcript of Terry Cordray

- Exhibit C - Report of Injury

- Exhibit D - Certified Medical Orthopedic & Sports Medicine Center

- Exhibit E - 60-Day Letter of Dr. James Zarr's report of May 2, 2018

All objections not specifically ruled on in this award are overruled.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 14-106265

Employee: Karen Ritchie

The following individuals testified at the hearing: Karen Ritchie; Michael Ritchie; and Amy Cohorst, Employer's Human Resource Manager, hereinafter HR Manager.

Karen Ritchie (the "Employee") was employed by Silgan Container Corporation (the "Employer"). Employee claims that on or about November 1, 2014, she was injured by a repetitive injury to her left arm from driving a forklift working.

Employee is right-hand dominant. Employee experienced a left wrist fracture as a result of an ATV accident in May of 2014 at her home. (Id.). This injury resulted in treatment by a cast and she was on short term disability from the Employer for twelve (12) weeks and later returned to full duty work as a forklift operator. (Id.). She was previously employed as a freight broker and as a laborer for the Employer from 2001 to 2005.

Karen Ritchie testified that she worked for Employer since 2008 and that she worked 84 hours a week and 12-hour shifts prior to November 1, 2014. Out of a 12-hour shift, she spent 9-9.5 hours driving the forklift. Mrs. Ritchie's position as forklift operator required the constant driving of a forklift with both hands. She used her right hand to move the levers up and down in order to raise or drop the fork on the forklift, and she used her left hand to steer the forklift. The steering wheel on the forklift had a knob that she had to grip and turn in whatever direction she wanted the forklift to travel. Ex. 16. That she would turn the knob on the steering wheel over a 1,000 times to the left and a 1,000 times to the right using her left hand in a shift. Employer's HR Manager did not dispute the hours or the repetitive nature of Karen Ritchie's job duties, and confirmed that she turned the steering wheel using the knob about 1,000 times in each direction during a shift.

Employee initially sought treatment from her primary care physician, Dr. Vega, who was concerned that she had a cardiac condition and referred her to Dr. Daniel Smith who had treated her for her prior left non work related wrist fracture. (Id. & Ex. D). On November 10, 2014, Dr. Smith ordered an x-ray and electrodiagnostic studies of the left upper extremity, which were normal and did not show any complications. (Id.). In this medical note, Dr. Smith reported claimant broke her left wrist and has constant ache and shooting pain into left wrist noting that the claimant drives a forklift at work and this causes her pain and nausea. (Id.) On January 9, 2015, Dr. Smith completed an MR Arthrogram which revealed mild degenerative changes and evidence of synovitis. (Id.). At this time, Dr. Smith performed a steroid injection over the left lateral epicondyle of her left elbow while also noting that claimant was working a lot of hours with very little time off which was contributing to her pain. (Id.). At an appointment with Dr. Smith on October 2, 2015, Employee was still having left elbow pain and it was noted that neither the injection nor a forearm strap were helping. (Id.). Dr. Smith diagnosed Employee with lateral epicondylitis along with a cubital tunnel syndrome. (Id.). It was at this appointment, Dr. Smith discussed the need for surgical intervention. (Id.).

On October 22, 2015 repeat electrodiagnostic studies were completed which resulted in Dr. Smith performing a steroid injection of the left lateral epicondyle of her left elbow. (Id.). Employee advised Dr. Smith on October 30, 2015 that she is trying to change jobs to decrease the stress on her elbow. (Id.) Claimant further advised Dr. Smith at her appointment on January 14, 2016 that she needed to delay surgery to the end of February due to the cost of her deductible. (Id.). On February 25,

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 14-106265

Employee: Karen Ritchie

2016, Dr. Smith performed a modified Bosworth procedure of the left elbow with transposition of the ulnar nerve at the elbow. (Id.). At a post-surgery follow up with Dr. Smith on February 26, 2016, it is noted that the incision was healing well, however, claimant now noted numbness in her little finger. (Id.). On March 28, 2016, Dr. Smith notes that Employee is losing sensation in her ring and small finger of the left hand and he is concerned that there may still be impingement of the ulnar nerve. (Id.) Dr. Smith wanted to take Employee back to surgery to explore the same. (Id.).

On March 31, 2016, Dr. Smith conducted a second surgery to explore the left ulnar nerve with excision of adhesions. (Id.). A post second surgery appointment was completed by Dr. Smith on April 8, 2016, where it was determined that Employee was still having pain and that some sensation had returned to her ring finger. Employee was having significant sensory disturbance in the little finger of the left hand, that the incision was healing well and the staples were removed. (Id.). Employee was instructed to start home exercises and to treat the pain with Tramadol. (Id.). On May 16, 2016, Employee bid for the less strenuous job of inspector with the Employer at this time, however, she was still off of work on Short Term Disability.

A follow-up appointment with Dr. Smith on July 11, 2016 concluded Employee was still having pain over the ulnar nerve even though her left elbow pain was a bit better and Dr. Smith prescribed repeat electrodiagnostic studies to be performed. (Id.). During the time in which Employee was recovering from her second surgery with Dr. Smith, Mrs. Ritchie bid for a new position at the Employer.

On July 12, 2016, Employee reported the injury to the Employer. (Ex. C). Employee asserted a date of loss of November 1, 2014 and asserted a cumulative injury to her left arm to which she testified was due to the repetitive motion of driving a forklift. (Id.)

Immediately after notifying Employer of her injury on July 12, 2016, Employee was sent to Mosaic Occupational Medicine Clinic for an evaluation where it was noted she had pain in the elbow, hands and fingers. The physician referred her for an EMG and back to the surgeon, Dr. Smith, for further treatment. (Ex. E & E. 1). The Employer did not authorize medical care. (Id.) On August 15, 2016, Dr. Smith reviewed the electrodiagnostic studies which showed the ulnar nerve returned to normal, her incision had healed, and she had full range of motion in the arms. However, Employee was still having pain radiating into the left hand. (Ex. E & D). Dr. Smith suggested Employee continue Tramadol for pain and released Employee to return to work at full duty. (Id.). By this time, the Employee testified she had a different position at the Employer and was no longer a forklift operator, but was instead working as an Inspector.

Employee continued to have pain in her left arm and ultimately sought treatment with Dr. Jeff Bradley on her own, who completed repeat electrodiagnostic studies and an MRI scan of the elbow on December 28, 2016. (Ex. E & Ex. 4). The MRI revealed mild ulnar neuritis at medial epicondyle and showed there was soft tissue swelling over the same area. (Id.). Electrodiagnostic studies completed by Dr. Larry Hollenbeck on January 19, 2017 showed mild slowing of the ulnar nerve at the elbow on the left side. (Id.). On January 26, 2017, Dr. Bradley noted Employee as still having left arm pain and he recommended pain management as he felt a third surgery would be too risky. (Ex. E). Despite Dr. Bradley's position on surgery, Employee wanted to move forward with surgery rather than be on continuous chronic pain medication. (Id.). On February 24, 2017, Dr. Bradley conducted exploration

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 14-106265

Employee: Karen Ritchie

surgery of her left ulnar nerve with further decompression and revision of the transposition of the ulnar nerve. (Id.). Dr. Bradley continued to evaluate Employee from March 2, 2017 through June 29, 2017 where it is noted she should continue therapy for her continued left arm pain and finally Dr. Bradley referred her for pain management. (Id.). Dr. Bradley placed the claimant on Short Term Disability stating that her condition was not work related. (Ex. A).

Employee testified that she is currently seeking ongoing medical treatment from her primary care physician, Dr. Vega, for medication refills of Lyrica, Tramadol and Cymbalta. Employee testified these medications result in side effects such as tiredness and edema. Further, Employee testified that she experiences pain in her left arm as well as difficulty sleeping. Employee stated she can no longer sew, garden, go onto her hands and knees (all fours), bike, nor cut her nails on her left hand as it is too painful. Employee is able to drive with one hand for short distances. Employee's husband testified that he and their grandson help Employee with daily chores around the house as she is unable to complete some of those tasks anymore. Employee's husband also testified that Employee has issues sleeping at night due to the pain she experiences. However, Employee is able to care for herself when her husband is working his full-time job.

MEDICAL OPINIONS

Employee was evaluated by Dr. Ernest Neighbor on December 8, 2017. Dr. Neighbor has practiced orthopedics since July of 1974. Ex. 13, p. 18. He is board certified in Orthopedic Medicine. Ex. 13, p. 19. I find Dr. Neighbor's testimony to be credible and uncontroverted. Dr. Ernest Neighbor's deposition taken on February 20, 2018, was admitted as Exhibit 13.

Dr. Neighbor testified that based on reasonable medical certainty, Karen Ritchie was exposed to repetitive motion disease or cumulative trauma disease which was greater than or different from that which affected the public generally. Ex. 13, p. 13. There was a recognizable link between Karen Ritchie's disease and some distinctive features of her job which was common to all jobs of that sort. Ex. 13, p. 13. Due to the prevailing factor of the work injuries with the date of accident of November 1, 2014, Karen Ritchie developed a lateral epicondylitis and a cubital tunnel syndrome at the left elbow. Ex. 10, p. 2; Ex. 13, p. 13-14. Karen Ritchie has chronic pain syndrome on the ulnar nerve of the elbow, and chronic tennis elbow at the medial elbow. Dr. Neighbor provided work restrictions consisting of minimal use of the left arm, particularly pronation, supination, flexion and extension, lifting and twisting. (Ex. 13 & Ex. 3). Dr. Neighbor believed that due to the work-related disabilities due to the factor of the November 1, 2014, work accident make Karen Ritchie unable to work 8 hours a day, 5 days a week, and 52 weeks a year for any employer. Ex. 10, p. 3. "[N]o Employer in the ordinary course of business could reasonably be expected to employ Karen Ritchie." Ex. 10, p. 3. Dr. Neighbor testified that Karen Ritchie is permanently totally disabled as a result of the November 1, 2014, work injury.

Employer's expert, Dr. James Zarr, did not testify. Dr. Zarr submitted two separate reports on May 2, 2018, and May 15, 2019. Dr. James Zarr on May 2, 2018, opined in part that:

I do not feel that the ATV accident in May 2014 is the prevailing factor. I am not exactly certain what the prevailing factor is for this patient's ulnar nerve pain. Employment activities are a possibility. I do feel this patient has

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 14-106265

Employee: Karen Ritchie

suffered permanent disability and I am rendering a 25% permanent disability rating of the left upper extremity at the level of the left elbow.... Ex. E, p. 8

Dr. Zarr's latter report on May 15, 2019, simply states that he did not believe Karen Ritchie's work-related injury of November 1, 2014, was the prevailing factor causing her left elbow pain because of Dr. Bradley's notes on a disability form. Ex. A, p. 6. Dr. Zarr does not indicate the cause of the left elbow pain. Dr. Zarr's report and subsequent letter are not persuasive.

Dr. Neighbor did agree that the third elbow surgery performed by Dr. Bradley was to "fix" the issues from the prior two surgeries. (Id. at 48).

Vocational Testimony

Vocational expert Mike Dreiling testified by deposition. Mike Dreiling's deposition taken on April 10, 2018, was admitted as Exhibit 12. All objections thereto are hereby overruled.

Mike Dreiling testified that Karen Ritchie has no transferrable job skills. Ex. 12, p. 9. He said that Karen Ritchie cannot pursue any further formal retraining services given her significant ongoing medical disability. Ex. 11, p. 9. Karen Ritchie's educational background 38 years ago is a vocational barrier to re-employment. Ex. 12, p. 8. Mike Dreiling also testified her work background consisting of good reliance on physical function capabilities, including the use of her upper extremities, is a significant vocation barrier to re-employment. Ex. 12, p. 9. In much less severe circumstances in Reiner v. Treasurer of State of Missouri, 837 S.W.2d 363 (Mo. App. 1992), the Claimant was found to be permanently totally disabled even though Claimant had a GED, had attended two separate vocational rehabilitation schools, and had returned to work as a bartender two weeks before the hearing. Karen Ritchie is less able to compete in the open labor market than the Claimant in Reiner.

Mike Dreiling testified that he conducted a vocational assessment including a review of available jobs in her geographic location of St. Joseph, Missouri. And based upon that assessment, it is very apparent that the type of employment that is available to Mrs. Ritchie are not compatible with the ongoing medical difficulties that she is having with her pain issues and the impact that pain has with using her upper extremity. Mr. Dreiling testified that, based upon the vocational-profile factors for Ms. Ritchie, it was his opinion that no employer in the ordinary course of business would reasonably be expected to employ this individual in her present condition and that she is vocationally, permanently totally disabled.

Mr. Dreiling has been a vocation rehabilitation expert for 43 years and has testified in numerous states as an expert in vocational rehabilitation. Ex. 12, p. 11. He is board certified by the American Board of Vocational Experts. Mr. Mike Dreiling is a credible witness.

Employer's vocational rehabilitation counselor, Terry Cordray, testified by deposition. Terry Cordray's deposition taken on November 29, 2018 was admitted as Exhibit B. All objections thereto are hereby overruled. Mr. Cordray's opinion that Karen Ritchie can get a job is based on Dr. Zarr's May 2, 2018, report only, as Dr. Zarr's 2019 report was not published at the time. Ex. B, p. 35. Terry Cordray testified that he was only provided Dr. Zarr and Dr. Neighbor's Independent Medical Exam (IME) report.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 14-106265

Employee: Karen Ritchie

When Terry Cordray was asked if any of his opinions about Karen Ritchie's ability to find a job would change if she needed the ability to lay down or change postures in order to rest and find a comfortable position for her arm and hand, he replied, "yes." *Ex. B, p. 42.*

When Terry Cordray was asked if any of his opinions about Karen Ritchie's ability to find a job would change if she needed to take naps during the day due to the medications she takes and the lack of sleep at night, Terry Cordray again replied, "Yes." *Ex. B, p. 42-43.* Terry Cordray conceded the need to change positions or nap during the day would preclude an individual from employment. *Ex. B, p. 43.* The need to change postures as needed throughout the day results in a finding of total disability. Terry Cordray's opinion that Karen Ritchie can find a job is based on Dr. Zarr's report, which is not persuasive.

RULINGS OF LAW

Workers' compensation law was "intended to place upon industry the losses sustained by employees resulting from injuries arising out of and in the course of employment..." *James v. CPI Corp.,* 897 S.W.2d 92, 94 (Mo.App.E.D.1995) (citation omitted).

Under the Workers' Compensation Act, the main test for permanent total disability claims are whether the claimant is able to compete in the open labor market. *Underwood v. High Road Industries, LLC,* 369 S.W.3d 59, 66 (Mo. Ct. App. 2012); *Knisley v. Charleswood Corp.,* 211 S.W.3d 629, 635 (Mo. Ct. App. 2007). As such, "total disability" is defined as "the inability to return to any reasonable or normal employment." *Underwood,* 369 S.W.3d at 66 (citing *Lewis v. Kansas Univ. Med. Ctr.,* 356 S.W.3d 796, 800 (Mo. Ct. App. 2011)); Mo. Rev. Stat. § 287.020(7). Thus, the critical question, given the Claimant's present physical condition, is whether any employer could reasonably be expected to hire him and whether he could reasonably be expected to successfully perform the work. *Underwood,* 369 S.W.3d at 66 (internal quotations omitted); *Highley v. Von Weise Gear,* 247 S.W.3d 52, 55 (Mo. Ct. App. 2008); *Michael,* 334 S.W.3d at 663; *Mathia v. Contract Freighters, Inc.,* 929 S.W.2d 271, 275 (Mo. Ct. App. 1996). The Claimant need not be completely inactive or inert to meet this statutory definition. He must, however, be unable to compete in the open labor market. *See Reese v. Gary & Roger Link, Inc.,* 5 S.W.3d 522 (Mo. Ct. App. 1999); *Carlson v. Plant Farm,* 952 S.W.2d 369, 373 (Mo. Ct. App. 1997); *Fletcher v. Second Injury Fund,* 922 S.W.2d 402 (Mo. Ct. App. 1996); *Searcy v. McDonnell Douglas Aircraft,* 894 S.W.2d 173 (Mo. Ct. App. 1995); *Reinver v. Treasurer,* 837 S.W.2d 363 (Mo. Ct. App. 1992); *Brown v. Treasurer,* 795 S.W.2d 478 (Mo. Ct. App. 1990).

The courts of this state have held that, in making permanent total disability determinations, a number of factors may be considered, including a claimant's: physical and mental condition, age, education, job experience, and skills. *See e.g., Tiller v. 166 Auto Auction,* 941 S.W.2d 863 (Mo. Ct. App. 1997); *Olds v. Treasurer,* 864 S.W.2d 406 (Mo. Ct. App. 1993); *Brown v. Treasurer,* 795 S.W.2d 439 (Mo. Ct. App. 1990); *Patchin v. National Supermarkets Inc.,* 738 S.W.2d 166 (Mo. Ct. App. 1987); *Laturno v. Carnahan,* 640 S.W.2d 470 (Mo. Ct. App. 1982); *Vogel v. Hall Implement Co.,* 551 S.W.2d 922 (Mo. Ct. App. 1977).

The provisions of Chapter 287 shall be construed strictly and evidence shall be weighed impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflict. R.S.Mo. § 287.800. The Courts have explained that:

TI50810165

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 14-106265

Employee: Karen Ritchie

A strict construction of a statute presumes nothing that is not expressed. The rule of strict construction does not mean that the statute shall be construed in a narrow or stingy manner, but it does mean that everything shall be excluded from its operation which does not clearly come within the scope of the language used. Moreover, strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions.

*Allcorn v. Tap Enters, Inc.,* 277 S.W.3d 823,828 (Mo. App. S. D. 2009)

Employer's primary argument is that Mrs. Ritchie failed to give timely notice of her occupational disease. Section 287.420 RSMo. states, in relevant part that, "[n]o proceedings for compensation for any occupational disease or repetitive trauma under this chapter shall be maintained unless written notice of the time, place, and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the diagnosis of the condition...."

Karen Ritchie testified she started having pain and symptoms in relation to her left elbow and hand in November 2014. Ritchie testified that initially she had no idea what was causing the pain. She originally thought the pain was related to her left wrist fracture in April of 2014. This is supported by the medical evidence that shows her initial visit and complaints on November 10, 2014 which reference her left wrist injury in May of 2014 and her job of driving a fork lift. *Ex. 2, p. 3.* The issue of notice raised in this case by Employer has been previously addressed by *Allcorn v. Tap Enterprises, Inc.,* 277 S.W.3d 823 (Mo. App., 2009).

Strictly construing this sentence, we find that "the condition" is referring to the previously stated "occupational disease or repetitive trauma." Therefore, the question then becomes, at what point is an occupational disease or repetitive trauma diagnosed? Looking to the plain, obvious, and natural import of the language, it follows that a person cannot be diagnosed with an "occupational disease or repetitive trauma" until a diagnostician makes a causal connection between the underlying medical condition and some work-related activity or exposure. See section 287.067 (defining the term occupational disease to mean, as relevant to this appeal, "an identifiable disease arising with or without human fault out of and in the course of the employment."). *Allcorn,* at 829.

In Mrs. Ritchie's case, the only diagnostician to make a causal connection between the repetitive motion disease and some work-related activity or exposure was by Dr. Neighbor on December 8, 2017. *Ex. 10, p. 2; Ex. 13, p. 13.* No other diagnostician linked Karen Ritchie's elbow and hand injury to the continuous operation of her employment duties or forklift operation. Dr. Neighbor's diagnosis, therefore, triggered the notice requirement of section 287.420, as outlined in *Allcorn. Id* at 830.

The evidence indicates that none of her treating physicians in 2014 and 2015 linked the left

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 14-106265

Employee: Karen Ritchie

elbow or hand injury specifically to her work tasks. In fact, the first medical tests were to determine if Mrs. Ritchie's symptoms were caused by cardiac problems. Furthermore, Dr. Zarr notes that Dr. Bradley opined that the symptoms were not work related. Mrs. Ritchie testified it was not until July of 2016, a few months after her second elbow surgery that a physician told her that her injury was caused by repetitive tasks. Mrs. Ritchie informed her HR Manager immediately after she believed her injury was related to her work duties as a forklift operator. On July 12, 2016, Employee reported an injury to the Employer. (Ex. C). Shortly afterwards, the Employer sent Karen Ritchie to Mosaic to be evaluated and for a separate EMG test. The Employer did not authorize any further medical care.

The facts of this case indicates that Mrs. Richie notified her employer within 30 days of the diagnosis that her condition was work related pursuant to the requirement of § 287.420 & 287.430.

Statute of Limitations

The Statute of Limitations defense was raised by the employer at the hearing. Section 287.430 RSMo. states, in relevant part that, "[e]xcept for a claim for recovery filed against the second injury fund, no proceedings for compensation under this chapter shall be maintained unless a claim therefor is filed with the division within two years after the date of injury or death, or the last payment made under this chapter on account of the injury or death...."

When a claim of occupational disease is involved, the "date of injury" language in § 287.430 is modified in the following fashion:

The statute of limitation referred to in section 287.430 shall not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure...." R.S.Mo. § 287.063.3

The injury date on the Claim for Compensation is November 1, 2014. The initial Claim for Compensation was filed on October 18, 2016, which is within the two-year statute of limitations. Also, Employer conceded it paid $110.00 in past medical bills in 2016 to send Karen Ritchie to Mosaic to be evaluated, and also for a separate EMG test, once Employer was notified of the work injury on July 12, 2016. Thus, Employer's last payment in 2016 would extend the statute of limitations another two years. Mrs. Ritchie's Claim for Compensation was filed timely within the statute of limitations.

Nature and Extent of Disability

Karen Ritchie testified in person and was credible. She is 57 years old. She has a high school education with a graduation date of 1980. She has not had any formal classroom education in the last 39 years. Mrs. Ritchie testified that she worked 84 hours a week and 12-hour shifts. During the course of her employment out of a 12-hour shift, she spent 9-9.5 hours driving the forklift. That she would turn the knob on the steering wheel over a 1,000 times to the left and a 1,000 times to the right using her left hand in a shift. Employer's HR Manager conceded the repetitive nature of Karen Ritchie's job duties, and confirmed that she would turn the steering wheel using the knob about 1,000 times in each direction during a shift. Karen Ritchie testified that she started getting significant pain in her left elbow that radiated down to her left hand and fingers in November of 2014, which eventually resulted in a diagnosis of an occupational disease.

11

TI1678-0011

Issued by DIVISION OF WORKERS' COMPENSATION

Impry Nos. 14-106265

Employee: Karen Ritchie

Mrs. Ritchie testified she started experiencing diffuse left arm pain in the upper arm and left elbow in February 2014. (Id.). She testified that the pain in her left elbow and hand started becoming so intolerable that she had to seek medical treatment in November 2014. Ex. B, p. 3.

Mrs. Ritchie had broken her left wrist earlier in the year and initially sought treatment from her primary care physician, Dr. Vega, who was concerned that she had a cardiac condition. Dr. Vega referred her to Dr. Daniel Smith who had treated her for her prior left non work related wrist fracture. (Id. & Ex. D). On November 10, 2014, Dr. Smith ordered an x-ray and electrodiagnostic studies of the left upper extremity, which were normal and did not show any complications. (Id.). In this medical note, Dr. Smith reported claimant broke her left wrist and has constant ache and shooting pain into left wrist noting that the claimant drives a forklift at work and this causes her pain and nausea. (Id.)

Shortly after her second surgery on March 31, 2016 (Ex. B, p. 30) and prior to going back to work in May of 2016, a lighter-duty inspector position became open at Karen Ritchie's place of employment, and testified that she applied and received that job based on her seniority. However, she was still unable to perform all her duties in the inspector position. For example, the position required lifting of aluminum and steel cans, but she was unable to lift the steel cans because they were too heavy.

Karen Ritchie also testified the inspector position required her to cut aluminum cans in order to do quality control testing on the cans. However, she was unable to cut the cans because she was unable to hold the cans steady with both hands for the blade to cut them. In one instance, she cut her thumb and eventually stopped doing the cutting of the cans. Karen Ritchie testified her supervisor was aware that she was skipping the step of cutting the cans and intentionally overlooked it. The inspector position was eventually eliminated and Karen Ritchie on July 17, 2017, received a termination letter from Employer that stated:

> Per our conversation on Friday, July 14, 2017, your most recent leave of absence has expired. We have reviewed the information provided by you and your physician and as we have discussed, we are not able to find work that is within your restrictions. Unfortunately, at this point, we are not able to accommodate your restrictions and as a result, your seniority is being terminated.

Dr. Neighbor has opined that as a result of the November 1, 2014, work injury, Karen Ritchie developed epicondylitis and a cubital tunnel syndrome at the left elbow. Ex. 5, p. 29; Ex. 10, p. 2. The work injuries required three separate left elbow surgeries: (1) February 25, 2016, she had a left elbow carpal tunnel release and anterior transposition of the ulnar nerve (Ex. B, p. 33), (2) March 31, 2016, she had a left ulnar nerve exploration and excision of adhesions (Ex. B, p. 30), and (3) March 24, 2017, she had a repositioning of the left ulnar nerve and left cubital tunnel decompression (Ex. D, p. 21-28). Prior to any of the surgeries, she had two methylprednisolone injections that offered no relief. Ex. B, p. 10 & 12.

Dr. Zarr met with Karen Ritchie once according to her testimony, and that lasted eight to ten minutes. Karen Ritchie further testified that Dr. Zarr did not ask any pertinent questions related to her work and Dr. Zarr's report does not reference any inquiry about Karen Ritchie's job duties. Dr. Zarr's reports are not persuasive.

12

MNKOI 0000811697

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Karen Ritchie

Karen Ritchie denied having any work limitations or restrictions prior to the November 1, 2014, work injury. *Ex. 13, p. 11.* However, since the November 1, 2014, injury, she suffers from chronic pain in her left elbow that radiates down to her left hand causing numbness in her ring and small fingers. After taking her three pain medications, Lyrica, Norco, and Cymbalta, the pain is about a three to four on a scale of zero to ten, with zero being no pain.

Karen Ritchie testified she does not cut her fingernails on the left hand because it hurts too much, so she waits until they break. She does not wear jewelry/rings on her fingers because of the pain. She testified the pain wakes her up two to three times in a night. She sleeps about four hours a night. Due to the lack of sleep, she takes two to three naps in a day anywhere from 45 minutes to two hours each. Karen Ritchie further stated her left upper extremity is restricted from: Lifting more than one pound; any pushing, pulling, gripping. As a result of the very limited use of the left upper extremity, her daily activities are limited. For example, she cannot crawl, sew, mow, bike, or make the bed. Her husband, Michael Ritchie, does or helps her with most of the tasks around the house.

Michael Ritchie testified in person that he has been married to Karen Ritchie for 35 years. He testified that he helps Karen Ritchie do several tasks at home that she cannot do, e.g., fold the laundry, do the dishes, mow the lawn, and make the bed. He testified that Karen Ritchie prior to the November 2014 work injury was self-sufficient and could do everything herself without help. Michael Ritchie testified that he will wake up at times in the middle of the night and see Karen Ritchie sitting in bed because she cannot sleep due to the pain. He stated that Karen Ritchie sleeps a lot during the day and up to one to two hours at a time. In addition, Karen Ritchie uses an alarm clock during the day to make sure she is up by 3:00 p.m., so the bus driver can see her at the door. Otherwise, if she fails to wake up, her grandson is not allowed off the bus. Michael Ritchie further testified that his physical relationship with Karen Ritchie has been compromised as a result of the work injury, because any attempts to hug her causes her pain. I find Michael Ritchie's testimony to be credible.

The test of permanent total disability is whether, given the Claimant's situation and condition, she is able to compete in the open labor market. *Laturno v. Carnahan*, 740 S.W.2d 470, 472 (Mo. App. 1982).

Mrs. Ritchie's vocational profile is that she is 57 years old and cannot competently use a computer due to the loss of use of one hand. Her past work experience indicates a lack of transferable job skills to many light or sedentary jobs and that she needs to change postures as needed and/or nap during the day due to her pain and medications. In her present physical condition, Karen Ritchie cannot compete in the open labor market.

The Employer shall pay to Karen Ritchie the sum of $861.04 each week from July 17, 2017, the day Employer terminated her, and continuing for the remainder of Karen Ritchie's life.

R.S.Mo. § 287.190.4 states in relevant part, "[i]f an employee is seriously and permanently disfigured about the head, neck, hands or arms, the division or commission may allow such additional sum for the compensation on account thereof as it may deem just, but the sum shall not exceed forty weeks of compensation...."

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 14-106265

Employee: Karen Ritchie

During trial, at the request of counsel, I observed that Karen Ritchie had a six-inch scar in the underneath area of the left forearm, from the elbow to the hand. She also had a separate three-inch scar on the top area of the left forearm. In addition, Mrs. Ritchie cradles her arm and it has atrophied some. As such, I assign an additional 12 weeks for the disfigurement on the left forearm at a rate of 451.02, or a total of 5,412.24.

Past medical Expenses

Karen Ritchie testified that she incurred uncompensated medical bills totaling $59,732.15, all of which related to and are the product of the November 1, 2014, work injury. She specifically testified that all the medical bills in Exhibits 7-9 related to the professional services she received as shown in the medical records in Exhibits 1-6. Karen Ritchie further testified that she paid for all the medical treatment herself through her insurance premiums, co-pays, and health insurance.

However, out of the 59,732.15 total bills, she only presented and claims 25,456.66, which reflects the amount Employer had the opportunity to authorize, but refused to do so after July 12, 2016, when she reported her injury and requested treatment. Employer's HR Manager testified Employer had the opportunity to authorize and direct treatment, but she did not know why Employer's insurer refused to authorize treatment.

If Employer is on notice that Employee needs treatment and fails or refuses to provide it, the Employee may select her own provider and hold Employer liable for costs. *Martin v. Town & Country Supermarkets*, 220 S.W.3d 836, 844 (Mo.App.2007). The testimony and medical records demonstrate that Karen Ritchie incurred $25,456.66 in uncompensated medical bills from July 12, 2016, to present related to her work injury of November 1, 2014. The Employer's representative conceded it had the opportunity to authorize or direct, but refused to do so.

Mrs. Ritchie testified that she believes she is liable for repayment of the payment of $25,456.66 in medical bills if they are deemed compensable. Employer then has the burden to prove that Mrs. Ritchie had no reimbursement obligation or other liability to pay such sums. *Proffer v. Fed. Mogul Corp.*, 341 S.W.3d 184 at 190 (Mo. App., 2011). Employer's representative testified that she believes the insurance companies would work out reimbursement but she wasn't sure how that worked.

The HR Manager was also unsure whether Karen Ritchie would have to reimburse her health insurer for any monies recovered. It was undisputed that (1) Karen Ritchie had out-of-pocket co-pays that she had to pay for medical treatment, (2) Employer subtracted weekly insurance premiums of $60.20 from her checks (Exhibit 17), and (3) her health insurer paid the remaining balance. Employer has failed to meet its burden of proof establishing it is entitled to a credit on any amounts paid by the health insurer.

The employer shall reimburse Mrs. Ritchie $25,456.66 representing past uncompensated medical bills.

Future Medical Expenses.

Under the Missouri Workers' Compensation Law, a claimant must show that the need for medical treatment by reason of a compensable accident is a reasonable probability. *Bowers v. Hiland Dairy Co.*, 132 S.W.3d 260 (Mo. App. S.D. 2004). "Conclusive evidence is not necessary to support a

14

TI06980664

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 14-106265

Employee: Karen Ritchie

claim for future medical benefits, but, rather, it is sufficient to show the need is founded on reason and experience which inclines the mind to believe but leaves room for the doubt." *Sullivan v. Masters Jackson Paving Co.*, 35 S.W.3d 879 (Mo. App. S.D. 2001). "Once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury... The clear and unambiguous terms of Section 287.140.1 require nothing more than a demonstration that certain medical care and treatment is reasonably required to cure and relieve the effects of the injury." *Tillotson v. St. Joseph Med. Ctr.*, 347 S.W.3d 511 (Mo. App. W.D. 2011). A claimant need not show that the work accident is the prevailing factor in necessitating the recommended medical treatment. *Id.*

"[I]n determining whether medical treatment is 'reasonably required' to cure or relieve a compensable injury, it is immaterial that the treatment may have been required because of the complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition." *Id.* "A claimant can receive an award of future medical benefits if a work injury aggravates a pre-existing condition to the point that the claimant is likely to need future care." *Dierks v. Kraft Foods*, 471 S.W.3d 726 (Mo. App. W.D. 2015).

Dr. Neighbor testified that Karen Ritchie requires ongoing chronic pain management in the amount of $4,000.00 per year. Employer's physician, Dr. James Zarr, in his report indicates Karen Ritchie will need medication on a long-term basis. *See Ex. C, p. 8.*

Karen Ritchie testified the she sees pain management physicians once every three months for prescription refills and she actually has an injection scheduled due to the left elbow and hand pain on her next visit.

Karen Ritchie's need for future medical treatment is uncontroverted. The Employer shall provide such future medical treatment as is reasonably required to cure or relieve Karen Ritchie of the effects of her left elbow and hand condition related to her work injury of November 1, 2014.

**CONCLUSION**

Based upon the above Findings of Fact and Rulings of Law, the Employer shall provide the following compensation to Mrs. Karen Ritchie:

- Permanent total disability benefits of $861.04 each week from July 17, 2017, the day Employer terminated her, and continuing for the remainder of Karen Ritchie's life or until she is not permanently and totally disabled.

- Unpaid medical expenses in the amount of $25,456.66 for reasonable and necessary treatment of her November 1, 2014 injury.

- Future medical to cure and relieve the claimant of the effects of the November 1, 2014 injury.

- Disfigurement to the right elbow of 12 weeks at 451.02 in the amount of 5,412.24.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of Mav Mirfasihi, Employee's attorney, for necessary legal services rendered.

15

**Employee: Karen Ritchie**

Said payments to begin upon receipt of this Award and to be payable and be subject to modification and review as provided by law.

**Made by:** __________________________

**Lawrence Rebman**

Administrative Law Judge

Division of Workers' Compensation