At the initial setting of the hearing before the administrative law judge on November 8, 2019, the parties asked the administrative law judge to resolve the following issues:
- Whether employee sustained an injury by occupational disease arising out of and in the course of his employment;
- Whether employee is entitled to temporary total disability benefits from January 23, 2018 through February 6, 2018;
- Whether employer must reimburse employee for medical expenses totaling $11,293.00;
- Whether employer must provide employee with future medical benefits;
- Whether employee suffered any disability and the nature and extent of such;
- Whether employee is liable to employer for $1,800.00 in the form of a scheduling fee for failing to appear at an initial independent medical examination appointment; and
- Whether employer is liable for disfigurement compensation.
On January 10, 2020, the administrative law judge issued a decision awarding compensation and determined that:
- Employee sustained an injury by occupational disease on March 15, 2017, arising out of and in the course of his employment;
- Employee is entitled to temporary total disability benefits from January 23, 2018 through February 6, 2018, in the amount of $1,822.54;
- Employer must reimburse employee for past medical expenses totaling $11,293.00;
- Employer is not liable to provide employee with future medical benefits;
- Employee suffered a 10% permanent partial disability to the upper extremity at the 175 week level, requiring 8,353.28 from employer;
- Employee is not liable to employer for 1,800.00 in the form of a scheduling fee for failing to appear at an initial independent medical examination appointment; and
- Employer is liable for disfigurement compensation in the amount of $954.66.
Employer/Insurer filed a timely application for review alleging the administrative law judge erred:
- In finding employee's occupational disease arose out of and in the course of employment;
- In finding that employer was the last employer to expose employee to the occupational disease or that the date of disability occurred while employee was employed by employer; and
- In finding that employee was not liable to employer for the $1,800.00 scheduling fee.
Injury No. 17-046383
Employee: Jonathan Mirfasihi
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For the reasons set forth below, we reverse the award and decision of the administrative law judge.
**Findings of Fact**
Employee worked for employer for 33 years in positions from electrical engineer to program manager, in which position he worked for the last fifteen years. As a program manager, employee wrote proposals to get federal funding for employer to perform classified Federal government work. Employee also wrote reports and prepared presentations. Approximately 80 to 85% of the employee's work involved using a computer keyboard.
While using the keyboard, employee used his left hand, particularly his left thumb, to press the spacebar thousands of times per day while typing for a majority of each day. Employee first noticed pain in his left hand at the end of 2016 or the beginning of 2017, particularly when he was typing. Employee reported this pain to employer around March 15, 2017.
On May 3, 2017, employee saw Dr. Scott R. Steelman, M.D. Employee complained to Dr. Steelman that he experienced pain and triggering his left thumb due to hitting the spacebar with his left thumb. Dr. Steelman observed that employee's CMC, MP, and IP¹ joints were "tender to palpate" and diagnosed employee with osteoarthritis in his left hand CMC joint. Tr., p. 55. Dr. Steelman noted employee's pain, but did not observe any triggering during his examination. Dr. Steelman also noted that employee's grip strength was moderate with the right hand being stronger than the left.
Employee retired from employer on May 12, 2017. Three days later on May 15, 2017, employee started working for Argonne National Laboratory (Argonne). While at Argonne, employee performed nearly identical work as with employer. Employee made presentations, drafted emails, and used the keyboard. However, employee traveled slightly more with Argonne.
On July 5, 2017, the Division of Workers' Compensation received a claim for benefits solely listing employer as liable for an occupational disease with an injury date of March 15, 2017.
On September 27, 2017, employee saw Dr. Christopher Maugans, M.D., who diagnosed employee with left trigger thumb. Dr. Maugans noticed that employee's thumb caught "a little bit" when employee flexed his thumb down. Tr., p. 124. While looking at X-rays, Dr. Maugans observed mild degeneration in the CMC and MP joints of employee's left hand. Dr. Maugans gave employee a steroid injection in the left thumb A1 pulley.
On a second visit on November 13, 2017, employee informed Dr. Maugans that the injection provided relief for a month, but that the triggering returned. Dr. Maugans
¹ As explained by Dr. J. Clinton Walker in his deposition, "the joint closest to the thumbnail is the IP joint, the next more proximal joint is the MP joint, and . . . then the next joint back towards the wrist is the CMC joint." Tr., p. 239.
Injury No. 17-046383
Employee: Jonathan Mirfasihi
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noted: "[n]o tenderness over the first dorsal compartment. It is not catching or locking on my exam today." Tr., p. 129.
On January 23, 2018, employee underwent surgery on his left hand to address triggering in his left thumb. Dr. Maugans released employee back to work two weeks after the surgery. Employee continued to work for Argonne through some point in July 2018.
On September 1, 2018, Dr. Ernest Neighbor, M.D., performed an IME on employee. Dr. Neighbor cited Dr. Maugan's note that on September 28, 2017, the left thumb "caught a little bit when he flexed it down[.]" Tr., p. 194. He also noted that X-rays showed osteoarthritis, mild subluxation, and small osteophytes at the first CMC joint. There is no mention that Dr. Neighbor saw medical records from Dr. Steelman. In his deposition, Dr. Neighbor stated that employee was first treated by Dr. Maugans. We find that Dr. Neighbor did not see the records from Dr. Steelman.
Dr. Neighbor assigned a 25% permanent partial disability and stated:
> The diagnosis for the injury suffered by [employee] due to the prevailing factor of the 3/15/17 work injury is an aggravation of the osteoarthritis of the joints and a trigger thumb at the A1 pulley in the left hand.
Tr., p. 195.
In his report, Dr. Neighbor explained that employee's condition was caused by "repetitive motion in the left hand[,]" but did not elaborate further. Tr., p. 194. In his deposition, the following discussion on direct examination occurred with Dr. Neighbor:
> Q: Based on [a] reasonable medical certainty, was the repetitive motion of intense computer use, including keyboard pressing, pushing, and using a mouse repeatedly, and shuffling and thumbing through papers at work, the prevailing factor and the cause of [employee]'s repetitive motion injury, need for treatment and surgical release of the pulley in the left-hand, and permanent partial disability of 25 percent to the left-hand?
A: Yes.
Tr., pp. 210-211.
Dr. Neighbor further opined that employee's work duties did not cause his osteoarthritis, but aggravated employee's osteoarthritis.
On May 2, 2019, employee was scheduled to see Dr. J. Clinton Walker for an independent medical examination (IME). However, employee forgot about the appointment. Employee was out of the country at the time. Employer purportedly prepaid $1,800.00 to schedule the IME. There are no documents in the record showing that employer actually pre-paid Dr. Walker's office the $1,800.00 scheduling fee. Employer rescheduled the IME for July 11, 2019, for which it purportedly paid an additional scheduling fee of $1,800.00. Employer claims that it forfeited the original
TI3681-1891
Injury No. 17-046383
Employee: Jonathan Mirfasihi
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scheduling fee for the May 2, 2019 appointment because employee did not appear for the IME on that date.
On July 11, 2019, when employee actually saw Dr. Walker, he explained that he had catching or locking and pain in his left thumb that eventually resolved after his surgery with Dr. Maugans.
Dr. Walker explained in his deposition that "tenderness at the joint itself and stiffness within the joint itself is -- is more likely to be arthritis-related than trigger thumb-related." Tr., p. 236. Dr. Walker also explained that the risk factors for thumb triggering include, "heavy or repetitive gripping, squeezing that requires high force along the tendons and high excursion or travel of the tendons[,]" or trauma "in terms of getting hyperextended, or crush injury, or ... anything that produces bleeding and swelling in that localized area[.]" Tr., pp. 241-42.
Dr. Walker opined that the mechanism used to strike a spacebar on a keyboard would not result in triggering of the thumb. "To hit the spacebar really requires very little, if any, excursion of the tendon. That's all related more to CMC joint motion and not MP or IP joint motion. And it's an extremely low force activity, as well." Tr., pp. 242-43.
Dr. Walker further explained that triggering in the thumb "happens at the MP joint related to tendon excursion past the MP joint, which also involves motion at the IP joint itself." Tr., p. 243. Dr. Walker concluded that employee's work activities of typing were not the prevailing factor causing employee's trigger fingering in his left thumb or his osteoarthritis.
At the hearing before the administrative law judge on November 8, 2019, employee for the first time explained other aspects of work that might have contributed to his triggering thumb. Employee used his left hand to carry his briefcase for approximately 20-25% of his work time traveling. Furthermore, in order to reach his desk at work, employee had to pass through three sets of secure doors, which were significantly heavier than an average door. Employee used his left hand to open these doors. Although employee is right-handed, employee described the security door as left-handed doors. Employee went in and out of the secure doors at least six times during the course of any given work day.
We find that there is no record of employee informing Dr. Steelman, Dr. Maugans, Dr. Neighbor, or Dr. Walker about opening heavy security doors or carrying a briefcase as possible causes of the triggering thumb. Accordingly, we do not have any expert opinion as to the cause or effect employee's actions of opening heavy security doors or carrying a briefcase with his left hand. All we have is the supposition of employee at the hearing that such activities contributed to employee's triggering thumb. Such speculation without medical support from an expert is not persuasive.
We find persuasive the opinion from Dr. Walker that employee's work duties of typing were not the prevailing factor causing his medical condition of trigger finger in his left thumb. Dr. Walker explained the mechanism that primarily causes trigger finger, such as heavy gripping or squeezing. He further explained that the mechanism required to strike the spacebar with a left thumb would not result in a triggering thumb. On the other hand, Dr. Neighbo