Jonathan Mirfasihi v. Honeywell Federal Manufacturing & Technologies, LLC

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 17-046383

**Employee:** Jonathan Mirfasihi

**Employer:** Honeywell Federal Manufacturing & Technologies, LLC

**Insurer:** XL Insurance America Inc.

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480, RSMo. We have reviewed the evidence, read the briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090, RSMo, the Commission reverses the award and decision of the administrative law judge.

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:

1. Whether employee sustained an injury by occupational disease arising out of and in the course of his employment;
2. Whether employee is entitled to temporary total disability benefits from January 23, 2018 through February 6, 2018;
3. Whether employer must reimburse employee for medical expenses totaling $11,293.00;
4. Whether employer must provide employee with future medical benefits;
5. Whether employee suffered any disability and the nature and extent of such;
6. 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
7. Whether employer is liable for disfigurement compensation.

On January 10, 2020, the administrative law judge issued a decision awarding compensation and determined that:

1. Employee sustained an injury by occupational disease on March 15, 2017, arising out of and in the course of his employment;
2. Employee is entitled to temporary total disability benefits from January 23, 2018 through February 6, 2018, in the amount of $1,822.54;
3. Employer must reimburse employee for past medical expenses totaling $11,293.00;
4. Employer is not liable to provide employee with future medical benefits;
5. Employee suffered a 10% permanent partial disability to the upper extremity at the 175 week level, requiring 8,353.28 from employer;
6. 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
7. 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:

1. In finding employee's occupational disease arose out of and in the course of employment;
2. 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
3. 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. Neighbor did not provide any explanation to support his general opinion.

Injury No. 17-046383

Employee: Jonathan Mirfasihi

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that employee's work was the prevailing factor causing his medical condition. We do not find Dr. Neighbor's opinion persuasive.

**Conclusions of Law**

*Were employee's work duties the prevailing factor causing employee's medical condition?*

Section 287.067, RSMo, defines a compensable occupational disease as follows, in pertinent part:

1. In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

1. An injury or death by occupational disease 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. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

1. 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. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

In this matter, employee claims that he sustained an injury of triggering in his left thumb due to the repetitive motion of striking the spacebar with his left thumb thousands of times per day while drafting reports. We found that employee mentioned only his typing as the possible cause of his injury until he testified before the administrative law judge on November 8, 2019. At that time, employee also added the possible causes of opening heavy security doors and carrying his briefcase.² However, we found that employee's assertion that opening heavy security doors and carrying his briefcase

² In his deposition, employee stated that dragging his suitcase behind him while traveling for Argonne increased his thumb pain. However, employee focused on his keyboarding work with employer during his deposition.

Injury No. 17-046383

Employee: Jonathan Mirfasihi

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caused or contributed to his triggering thumb was speculation and was not supported by any expert. Accordingly, the only work duty at issue in this matter that was reviewed and analyzed by a medical expert is employee's use of the keyboard.

We found persuasive the opinion of Dr. Walker that the mechanism used to strike a spacebar on a keyboard would not result in triggering of the thumb. We did not find the opinion of Dr. Neighbor persuasive. Accordingly, we conclude that employee failed to meet his burden that his work duties with employer were the prevailing factor resulting in or causing employee's medical condition of triggering thumb. All other issues of temporary total disability benefits, past medical expenses, future medical benefits; and disfigurement compensation are moot.

Is Employee liable for a $1,800.00 scheduling fee for the May 2, 2019, appointment with Dr. J. Clinton Walker?

Employer contends that it paid a prescheduling fee in order to schedule an IME with Dr. Walker for May 2, 2019. However, we found that the record does not conclusively support this allegation. Accordingly, we conclude that employer did not meet its burden to establish that employee should be liable for the alleged fee. Furthermore, employer did not cite any provision of law that granted this Commission authority to award such scheduling fee, if it were due.

Award

We reverse the award and decision of the administrative law judge in that we conclude that employee failed to meet his burden to establish that he suffered a compensable injury by occupational disease arising out of and in the course of his employment. We agree that employee is not liable for the alleged $1,800.00 pre-scheduling fee for Dr. Walker's May 2, 2019 appointment.

The award and decision of Administrative Law Judge Emily S. Fowler is attached solely for reference.

Given at Jefferson City, State of Missouri, this 7th day of October 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

-Attest:

Secretary

Employee: Jonathan Mirfasihi

I have reviewed and considered all of the competent and substantial evidence on 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 believe the decision of the administrative law judge should be affirmed. Because the Commission majority has decided otherwise, I respectfully dissent.

*Shalonn K. Curls, Member*

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Mirfasihi

Employee: Jonathan Mirfasihi

Injury \# 17-046383

Dependents: N/A

Employer: Honeywell Federal Manufacturing \& Technologies, LLC

Insurer: XL Insurance America, Inc.

Additional Party: N/A

Hearing Date: November 8, 2019

Checked by: ESF/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: March 15, 2017
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri
6. Was above Employee in 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: In the course and scope of his employment, Employee was required to type reports of extensive length using his thumb repetitively throughout the day as well as required to carry cases all causing injury to his left hand and thumb.
12. Did accident or occupational disease cause death? No

Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Mirfasihi

Injury No: 17-046383

1. Part(s) of body injured by accident or occupational disease: Left upper extremity at the hand and thumb

1. Nature and extent of any permanent disability: 10% permanent partial disability to the left hand.

1. Compensation paid to date for temporary total disability: $0.00

1. Value necessary medical aid paid to date by employer/insurer? $0.00

1. Value necessary medical aid not furnished by employer/insurer? 11,293.00

1. Employee's average weekly wages: 1,366.91

1. Weekly compensation rate: $911.27/$477.33

1. Method wages computation: Determined by Court

Compensation payable

1. Amount of compensation payable: The employer shall pay to Employee 10% permanent partial disability to the left hand which equates to 17.5 weeks at 477.33 a week for a total of 8,353.28. The employer shall pay to Employee $1,822.54 for unpaid temporary total disability owed from January 23, 2018 to February 6, 2018. The employer shall pay to employee the sum of $11,293.00 as and for medical expenses employee incurred for treatment of his injuries. The employer shall also pay to Employee additional benefits of 2 weeks for disfigurement to Employee's left hand equating to $954.66.

1. Second Injury Fund liability: N/A

1. Future requirements awarded: N/A

The benefits awarded herein shall be subject to a lien of 25% in favor of Devin Mirfasihi Employee's attorney.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Mirfasihi

Injury No: 17-046383

Employee: Jonathan Mirfasihi

Injury \# 17-046383

Dependents: N/A

Employer: Honeywell Federal Manufacturing \& Technologies, LLC

Insurer: XL Insurance America, Inc.

Additional Party: N/A

Hearing Date: November 8, 2019

Checked by: ESF/drl

On November 8, 2019, the parties appeared for final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The Employee, Jonathan Mirfasihi, appeared in person and was represented by his counselors, Devin Mirfasihi and Mav Mirfasihi. The Employer/Insurer appeared through counsel, Tom Walsh.

The parties stipulated to the following:

1. That the employer, Honeywell Federal Manufacturing, was an employer operating subject to the provisions of the Missouri Workers' Compensation law on March 15, 2017, and was fully insured by XL Insurance Company Inc.;
2. That Jonathan Mirfasihi was its employee and he was working subject to the law in, Kansas City, Jackson County, Missouri;
3. That Missouri had jurisdiction to hear this matter;
4. That the employee notified the employer of his injuries as required by law and his claim was filed within the time allowed by law;
5. That the employer has paid $\$ 0.00 \mathrm{in} temporary total disability benefits and has paid \ 0.00 for medical care;

The issues to be resolved by this hearing are as follows:

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Mirfasihi

Injury No: 17-046383

1. Whether the employee sustained an injury by occupational disease arising out of and in the course of his employment.

1. Whether the employee is entitled to temporary total disability benefits from January 23, 2018 to February 6, 2018 representing 2 weeks of temporary total disability totaling $1,822.54.

1. Whether the employer must reimburse the employee for medical expenses totaling $11,293.00.

1. Whether the employer must provide the employee with additional medical care.

1. Whether the employee suffered any disability and, if so, the nature and extent of the employee's disability.

1. Whether the employee must reimburse the employer $1,800.00 for a cancellation fee due to employee's failure to appear at an independent medical evaluation set by the employer.

1. Whether the employee is entitled to any disfigurement.

FINDINGS

The Employee, Jonathan Mirfasihi, testified in person and offered the following exhibits, all of which were admitted into evidence without objection:

Exhibit 1 - Diagnostic Imaging Center Records

Exhibit 2 - Dr. Steelman at Honeywell FM&T Records

Exhibit 3 - Rockhill Orthopedic Records

Exhibit 4 - Surgicenter of KC Records

Exhibit 5 - Select Physical Therapy Records

Exhibit 6 - Diagnostic Imaging Center Bills: 102.00

Exhibit 7 - Rockhill Orthopedic Bills: 2,156.00

Exhibit 8 - Surgicenter of KC Bills: 7,642.00

Exhibit 9 - Select Physical Therapy Bills: 1,495.00

Exhibit 10 - Dr. Ernest Neighbor's IME

Exhibit 11 - Dr. Ernest Neighbor's Deposition

Exhibit 12 - Request for Treatment (8/17/17)

Exhibit 13 - Attorney Client Contract

Exhibit 14 - Correspondence

The Employer did not call any witnesses but offered the following exhibits, all of which were admitted into evidence without objection:

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Mirfasihi

Injury No: 17-046383

Exhibit A - Deposition of J. Clinton Walker, M.D.

Exhibit B - Sixty-Day Letter for Report of J. Clinton Walker, M.D.

Exhibit C - Deposition of Jonathan Mirfasihi

Exhibit D - April 3, 2019, Correspondence to Claimant Attorney Devin Mirfasihi regarding the Independent Medical Examination set on May 2, 2019 with Dr. J. Clinton Walker

Based on the above exhibits and the testimony of Jonathan Mirfasihi, I make the following findings:

Jonathan Mirfasihi (hereinafter referred to as Employee) was a 63-year-old man at the time of his alleged accident on March 15, 2017, while he was in the employ of Honeywell Federal Manufacturing, Inc. At the time of his alleged accident, he had been working for the employer for 33 years as an electrical engineer. He was a program manager at the time of his injury. His job duties as a program manager included working with Washington DC intelligence, writing proposals, writing data monthly reports, and putting presentations together. During his day, he used the computer 75% to 80% of the time. He often did 600 to 800 page reports. While typing he would use his left thumb to strike the space bar between each word typed. This would result in using his left thumb perhaps thousands of times a day. His job duties also required that he traveled to other offices in Washington and to the National labs throughout the country. When traveling he would transport a laptop and files which he would carry in a briefcase which he would carry with his left hand. He would also carry his briefcase to and from work on a daily basis. He would pass through a number of doors, which required using a badge to gain entrance. He would hold a badge in his right hand and he would use his left hand to open the door. These doors were secure heavy doors and they were sometimes difficult to open using his left hand.

He noticed that at the end of 2016 into the beginning of 2017 he started having pain in his left hand. The daily job duties that caused pain included typing on the computer and when he was traveling carrying his briefcase and suitcase. The pain would ease up on the weekends when he was not working. He ultimately reported his problems to management around March 15 of 2017. On May 3, 2017, he was sent by the employer to Dr. Scott Steelman who noted in his records "60-year-old male lead project manager who presents with pain in his left thumb for about 6 weeks. He does not recall any acute trauma to this thumb. He awakens with no pain, then pain occurs as his workday progresses. He does not have pain on the weekends normally. He associates it with using the keyboard with his left thumb. He denies numbness or tingling in his thumb. He is right-hand dominant. He has noticed restricted flexion and extension of his thumb as well as some triggering. He experiences a sharp pain when attempting to use his left hand to pick up a plate or his iPad with his left hand." He noted there was no deformity of the thumb but it was tender to palpate the CMC, and MP, and IP joints. He found pain with resistance. Dr. Steelman ordered an x-ray of the left thumb. The x-ray showed osteoarthritis present in the first CMC joint with mild subluxation, also mild to moderate degenerative changes in the DIP joints 1-5. Dr. Steelman ultimately determined that Employee's symptoms were caused by osteoarthritis which was not work related, i.e. keyboard use. He determined Employee should follow up with his primary care physician. Based upon this information, the employer did not accept his claim as compensable and, therefore, he processed his claim and medical care

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Mirfasihi

Injury No: 17-046383

through his private health insurance, Blue Cross and Blue Shield. This insurance was paid for through a withdrawal from Employee's paycheck. He also had co-pays.

Prior to working for Honeywell, Employee testified he never had any problems with his left hand. He is right-hand dominant. He testified that he cannot use his left hand like he did before. He cannot exert too much pressure such as when using a screwdriver or pliers he now has to use his right hand for that. He has difficulty gripping, picking up a full plate of food, he drops things, and uses his right hand more in daily tasks. He is unable to pick up a jug of milk but can pick up a light bag. He moved 2 months ago and the new home needed modifications but he had to hire others to do the work that he would normally do. He had surgery on his left hand and prior to that surgery his pain level was a 7 to 8 . After the surgery it is now around 3, but with exertion can go up to between 5 and 6 . He mainly has aches in his hand at this time. He cannot use tools with his left hand, he has to open doors with his right hand, and he has a loss of range of motion. The surgery he had was a pulley release on the left hand, which left a scar of between one to two inches. He noted that, although the employer paid for one x-ray and the appointments with Dr. Steelman, they paid for nothing else and everything else went through his health insurance. He missed 2 weeks from work for surgery and recovery for which he was not paid. He was working at a different employment when he had his surgery in 2018. He normally works 5 days a week 52 weeks a year as a salaried employee. He stated he must account for the work and time he does, and that his employer did not pay him for the 2 weeks he was off after surgery. He stated that he ultimately had $\ 11,293.00 in medical bills which were not paid for by the employer.

On cross-examination, he noted that he retired from Honeywell on May 12, 2017. He confirmed that as part of his work duties he made presentations and prepared them, he oversaw others and gave reviews and instruction to other employees. He noted that he retired on a Friday and started a new job with Argonne National Lab as a program manager the following Monday. His job duties were basically the same as with Honeywell in that he gave presentations, supervised, wrote proposals, and travelled. He admitted that prior to his retirement from the employer he had no work restrictions. He had missed no time from work with the employer other than the time he claims he was off work for recovery from the surgery. He admitted that he was paid more at his new job. He admitted that the injury to his left thumb was due to computer use, briefcase carrying, and suitcase carrying. He was diagnosed with trigger finger and osteoarthritis. He admitted that he understood Dr. Walker to say that those work activities he delineated would not cause those particular problems. He confirmed that although he was a salaried employee, he did have to account for his hours, and that he reported no hours during the time he was off after surgery. He stated that he was not paid by Argonne his then current employer for those 2 weeks. He did not ask for sick leave or personal time off although he had those available to him. He stated he is not receiving any medical bills currently and that Blue Cross and Blue Shield paid for his bills. He admitted he was asking for the $\ 11,293.00 in medical costs but not for the full amount of the bills. He was also not asking to be paid for the difference between the full amount of the bills and what Blue Cross and Blue Shield paid. He admitted that his total out-of-pocket expenses were between $\ 1,500.00 and $\ 1,800.00. He admitted that since the surgery his trigger thumb was no longer triggering. He has no numbness but he does admit his range of motion is not the same. There is no tingling in the hand or thumb but there is still achiness. He does still work out on a regular basis doing push-ups, but he no

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Mirfasihi

Injury No: 17-046383

longer does pull-ups. He noted that as of July 2018 he is also retired from Argonne. When asked about the original appointment for an Independent Medical Examination with Dr. Walker, which he missed, he stated that he was out of the country at the time and he completely forgot about it and that is why he did not appear.

On redirect, he stated he did not receive any bills or invoices from Dr. Walker for the independent medical evaluation. He noted that there is a request from his attorney asking to send him an official invoice from Dr. Walker but to his knowledge nothing was ever received.

After reviewing Employee's testimony along with the medical records, this Court finds that Employee's testimony is credible. He was consistent in his answers throughout his testimony and his testimony corresponded with what had been recorded by his treating and examining physicians.

Employee offered the medical records and bills for his medical care. Also included was an independent medical evaluation by Dr. Ernest Neighbor. In his evaluation, Dr. Neighbor noted that Employee had a repetitive motion injury to his left hand as a result of his job duties with the employer. He noted that Employee was first seen at Rock Hill Orthopedics on September 28, 2017. At that time he indicated that for approximately 6 months he had been having problems with his left thumb. He noted it initially was catching or locking, but it had continued to be painful as well. He had tried anti-inflammatory medications, which did not help. At the time of that office visit, he had full range of motion of his fingers, but the thumb could not be fully extended. He had tenderness over the CMC joint but no tenderness over the first dorsal compartment. He was given injections which made things better for a couple of weeks, but then the pain reoccurred. On January 13, 2018, he had a surgical pulley release. Currently, he uses his right hand to open jars and stated that he was unable to pick up his laptop with his left hand. Upon physical examination, Dr. Neighbor's noted that Employee had 70° motion of the MP joint and equal at the CMC joint, but extension at the IP joint showed 40° on the right, but only 5° on the left. Pinch tests were performed at a level of 27 on the right, and on 3 separate occasions he showed a 13% or 50% decrease on the left. An x-ray showed osteoarthritis in the first CMC joint, also mild subluxation and small osteophytes were present at the first CMC joint. Dr. Neighbor felt that the prevailing factor for the injuries suffered by Employee were due to his March 15, 2017 work injury and that those injuries included an aggravation of the osteoarthritis of the joints as well as a trigger thumb at the A-1 pulley in the left hand. Dr. Neighbor felt that as a result of the injury sustained on March 15, 2017, Employee sustained a permanent partial disability of the left hand of 25%. He also believed that as a result of the work injury, Employee missed two weeks of work following the surgery for the release of the trigger thumb. He believed that the medical bills that he reviewed were reasonable and necessary and were caused by the March 15, 2017 work injury. He believed the cost of anti-inflammatory type medications needed due to the injury would be estimated at approximately $500 a year. He stated that Employee would more likely than not need additional surgery on the CMC arthritis and postoperative care including physical therapy would be estimated around $25,000.

Employer offered the report from Dr. Clinton Walker. In this report, Dr. Walker reviewed Employee's medical records, spoke with Employee, and did a physical examination. He noted a healed transverse scar at the thumb MP flexion crease. He noted that the Employee

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Mirfasihi

Injury No: 17-046383

was able to make a full composite left fist and that the left-hand finger extension was full. He noted the left thumb motion was 20° to 49° at the MP joint and 20° hyperextension to 28° flexion at the IP joint. He noted that at the left thumb there was no tenderness at the A-1 pulley. And there was no triggering present. He did note the thumb CMC joint was tender and the grind test was positive. The IP joint was enlarged along the dorsal and radial aspect which was mildly tender. The MP joint was tender and the CMC joint was tender. There was some crepitus and tenderness with grind testing at the thumb MP and CMC joints. Dr. Walker noted that Employee previously had a left trigger thumb or flexor tenosynovitis at the A-1 pulley. He felt the treatment he received was appropriate and that Employee had now recovered with a very good result after surgical treatment. He believed that Employee was at maximum medical improvement. He felt Employee sustained a 2% permanent partial disability of the left thumb related to his previous trigger thumb symptoms and diagnosis. He did not feel that Employee would benefit or require any additional treatment. He felt that Employee's job activities at Honeywell were not consistent with being the prevailing cause of Employee's previous left trigger thumb symptoms and his job activities were unlikely to be related in any way to the diagnosis. He felt that Employee's left thumb MP joint arthritic change may have been a contributing factor for trigger thumb diagnosis due to the enlargement of the MP joint and capsule and the surrounding osteoarthritic inflammation. He noted that Employee was still having some residual symptoms, including pain, stiffness, and pinch grip weakness related to osteoarthritis of the thumb CMC joint, MP joint, and IP joint. He felt that future treatment could be managed through either oral anti-inflammatories, occasional corticosteroid injections, or thumb CMC joint reconstruction if symptoms became significant. He felt, however, that at the present time Employee did not have symptoms significant enough to require surgery. In Dr. Walker's deposition he noted that his office charges a prepayment fee of $1,800.00. If an appointment for an independent medical evaluation is not canceled within 2 weeks, then that payment is forfeited. He also noted that he did believe that the employer's attorney's office was billed for both the initial appointment, which was missed, and the additional appointment that at which Employee appeared.

The first issue to be determined herein is whether the Employee sustained an injury by occupational disease arising out of and in the course of his employment. An "occupational disease" is "an identifiable disease arising with or without human fault out of and in the course of the employment." R.S.Mo. § 287.067.1. "Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section." Id. "To support a finding of occupational disease, an Employee must provide substantial and competent evidence that they have contracted an occupationally induced disease rather than an ordinary disease of life." Cheney v. City of Gladstone, 576 S.W.3d 308 (Mo. App., 2019). The relevant inquiry is "(1) whether there was an exposure to the disease which was greater than or different from that which affects the public generally, and (2) whether there was a recognizable link between the disease and some distinctive feature of the Employee's job which is common to all jobs of that sort." Id. Employee testified that he worked for Employer for 33 years. He was a fulltime employee who worked eight hours a day, five days a week, and 52 weeks a year. At least 75% of Employee's job duties consisted of work on the computer preparing reports and presentations where he would use the space bar button with the left thumb of his hand several thousand times per day as the button is used between every word in the English language. Employee further testified that he would

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Mirfasihi

Injury No: 17-046383

have to use his left hand to grip when opening and shutting four sets of very heavy doors that required government security clearance just to get to his office daily. The opening of the security doors required the swiping of a security badge. For every entry, there was an exit in the same day that required the same process. Therefore, if Employee went to his office and stayed seated his entire eight-hour shift without getting up to go anywhere, other than home, then he would have opened the same doors a total of eight times that day (four times to come in and four times to leave). However, every time Employee would leave his desk to go to the restroom, a meeting, or go to lunch, he would have to open and shut the same security doors.

Whether on business travel or simply going to Employer's office, Employee testified he was also required to carry a briefcase daily that contained his laptop and his client files. Employee testified the briefcase was regularly carried in his left hand.

In order to show a recognizable link between the disease and the job, a claimant must produce evidence "establishing a causal connection between the conditions of employment and the occupational disease." This evidence must be medical evidence and must establish "a probability that working conditions caused the disease, although they need not be the sole cause."

Dr. Ernest Neighbor testified that Employee was exposed to repetitive motion disease at his place of employment, which was greater than or different than that which affected the general public. Dr. Neighbor testified that there is a recognizable link between Employee's disease and some distinctive features of his job which was common to all jobs.

Employer's expert, Dr. Clinton Walker, submitted a report after seeing Employee where he concluded Employee's job-related activities were not consistent with being the prevailing cause of his left trigger thumb symptoms and stated that arthritic change may be a contributing factor for the left trigger thumb diagnosis. However, Dr. Neighbor testified that osteoarthritis is not common in males. Employer's expert testified that when he evaluated Employee, he only evaluated his left hand. Dr. Neighbor conducted side by side pinch tests to compare the right hand to the left hand and repeated each test three times. This showed a clear difference between the conditions of the left thumb to that of the right thumb. The left thumb showed far more crepitus than the right.

I find Employee and Dr. Neighbor's testimony to be credible. Accordingly, I find that Employee sustained an occupational disease on March 15, 2017, arising out of and in the course of his employment.

Employee suffered a trigger thumb injury that needed surgery. Employee testified to repetitive tasks he performed at work that he believed caused the injury. He did not have any complaints, limitations, or restrictions with his left hand prior to his employment. Dr. Neighbor testified Employee's work injury/occupational disease was the prevailing factor. Employer offered no evidence of any other factors that could have caused or contributed to Employee's injury other than the simple wear and tear causing osteoarthritis. However, it is clear the left side suffers more damage than the right and further there are symptoms of trigger thumb on the left. Dr. Neighbor's determined that employee's job duties were the prevailing factor in his trigger thumb as well as his joint osteoarthritis. I find that Employee's repetitive job duties were the

WC-32-R1 (6-81)

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Mirfasihi

Injury No: 17-046383

prevailing factor that caused his occupational disease on March 15, 2017.

Employer offers an alternative defense to this matter by claiming the last exposure rule applies herein. They note Section 287.063.2 states that the last employer to expose the Employee to the hazards of an occupational disease, regardless of how short, shall be liable for the compensation due to the Employee. They then go on to argue that Employee, after having reported his injury to the employer and then seen by their physician, left Honeywell on May 12, 2017 and started working for Argonne on Monday, May 15, 2017. They note that he testified that his new work duties for Argonne were similar, if not exactly like his work duties at Honeywell. They claimed that Employee did not suffer any disability by definition until he was off work for the 2 weeks following his surgery. They cite *Garrone v. Treas. of the State of Missouri*, 157 SW 2D, 237, 242, (MO. CT. APP. 2004) which states that "an occupational disease does not become a compensable injury until the disease causes the Employee to become disabled by affecting the Employee's ability to perform his ordinary tasks and harming his earning ability." Employer argues that even if Employee is found to have suffered an occupational disease, Employee only became disabled once his ability to perform his ordinary tasks and his earning potential were harmed. Employer notes that Employee never missed a day of work at Honeywell nor Argonne until he was actually off due to his surgery. This Court disagrees with the employer's argument that Employee suffered no disability prior to the time he was off at Argonne. Employee testified that he was having problems with his thumb for a few months prior to March 2017. He went to his supervisor and reported the problems he was having with his thumb. His employer sent him to Dr. Steelman who ultimately determined that Employee was suffering from osteoarthritis and determined that this was not related to his work duties. However, in his medical notes Dr. Steelman noted that Employee suffered pain which occurs as his workday progressed. The pain subsided over the weekend. Employee specifically noted to Dr. Steelman that the pain is associated with using the keyboard with his left thumb. It is also noted that Employee noticed restricted flexion and extension of his thumb as well as triggering. Further, he experienced sharp pain when attempting to use his left hand to pick up a plate or his iPad. By the employer's own definition of disability per *Garronne* disability occurs when Employee's ability to perform his ordinary tasks is affected. By the doctor's notes and Employee's own description and testimony it is clear that the pain, weakness and restricted flexion was affecting his ability to do his work. One does not have to actually miss work in order to have your physical problems become disabling. It simply has to interfere or be a hindrance to your ability to perform your job tasks. Herein it is quite clear that the pain, weakness and triggering caused by Employee's injury was interfering with his ability to do his job tasks by description and, therefore, Employee became disabled while working for employer. Wherefore, this Court finds that Employee sustained an injury by occupational disease arising out of and in the course of his employment at Honeywell.

The next issue to be determined is whether the Employee is entitled to temporary total disability benefits from January 23, 2018 to February 6, 2018 representing two weeks for temporary total disability totaling $1,822.54. Employee stated that he was required to be off for two weeks following his surgery to his left hand. Dr. Neighbor testified that Employee needed to be off work for a couple of weeks after his surgery. Employee also testified that during this time, he was not paid by his then employer, Argonne. This testimony is uncontroverted by the employer. This Court, having found Employee's testimony credible, finds that Employee was

WC-32-R1 (6-81)

Page 10

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Mirfasihi

Injury No: 17-046383

due temporary total disability during the time he was unable to work following the surgery to his hand. Wherefore, this Court finds the employer owes to Employee 2 weeks of permanent temporary total disability equaling $1,822.54.

The next issue to be determined by this Court is whether the employer must reimburse the Employee for medical expenses totaling $11,293.00. Dr. Neighbor testified that these expenses incurred by Employee for surgery on his hand were reasonable and necessary and caused by the March 15, 2017 work injury. Employee also testified that these bills were incurred for his work injury of March 15, 2017. As this Court has found that Employee did sustain an injury by occupational disease arising out of and in the course of his employment, and that the surgery was to treat this injury, this Court finds that the employer is liable for Employee's unpaid medical bills. Wherefore, this Court finds that the employer shall pay to Employee the total of $11,293.00 representing the cost of medical care Employee sustained in order to cure or relieve the effects of his injury.

The next issue to be determined herein is whether the employer must provide the Employee with additional medical care. Dr. Neighbor, in his IME as well as in his deposition, noted that Employee would more likely than not need additional future surgery to his left thumb. This would be based upon a recurrence or an increase in symptoms to his thumb. Dr. Walker, in his IME, determined that he did not expect Employee to require or benefit from any additional treatment. In looking at the medical records from the treating surgeon, Dr. Christopher Maugans, Employee was offered, but did not undergo, any therapy after his surgery. It is also noted that he told Employee to get back to him if the Employee was having any issues with his thumb. According to the medical records, it does not appear that Employee ever returned to Dr. Maugans for any additional care related to his thumb. Further, there is no evidence that shows that Employee has had continued problems with this thumb to this point. After reviewing the medical records and evidence herein, this Court does not find that additional medical care in the form of future surgery would be necessary for Employee. Wherefore, this Court finds that the employer shall not be required to provide Employee with additional future medical care.

The next issue to be determined is whether the Employee suffered any disability and, if so, the nature and extent of Employee's disability. Dr. Neighbor's IME noted that Employee suffered a 25% permanent partial disability to his right lower extremity at the 175 week level. Dr. Walker determined that Employee suffered a 2% permanent partial disability to the thumb but that work was not the prevailing factor in causing the disability. This Court has determined that work was the prevailing factor herein and, therefore, any disability determined herein is related to his work activities. After reviewing the medical records and Employee's testimony, including the fact that he has a loss of grip strength, weakness in the hand, and ongoing occasional pain, this Court finds that Employee suffers a 10% permanent partial disability to the left upper extremity at the 175 week level equating to 17.5 weeks of disability at a compensation rate of 477.33 equating to a disability payment by the employer to Employee of 8,353.28.

The next issue to be determined herein is whether Employee must reimburse the employer for a cancellation of an IME fee allegedly paid by the employer to their rating doctor, Dr. Walker. At his deposition, Dr. Walker explained his office policy of failure to appear for scheduled IME. He confirmed that the cost of the IME was $1,800.00. Employee testified that

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Mirfasihi

Injury No: 17-046383

he did not keep the initial appointment with Dr. Walker because he was out of the country and completely forgot about it. When he returned to the country, he reset the appointment. Although it is clear that Employee is at fault for failing to appear at the original IME with Dr. Walker this Court does not find any statutory authority to award to the employer reimbursement for Employee's failure to appear at an IME. Consequently this court cannot and therefore does not award to employer any reimbursement for the lost monies paid for the initial IME.

The final issue to be determined herein is whether or not Employee is entitled to any disfigurement pursuant to section 287.190.4. During Employee's testimony, the Court observed Employee to have a scar of approximately $11 / 2$ inches on his left hand due to the surgery. Having viewed the scar, this Court finds that Employee is entitled to 2 weeks of disfigurement.

Wherefore this Court finds in favor of Employee that he did in fact sustain an injury by occupational disease arising out of and in the course of his employment. Employee is entitled to temporary total disability benefits of $\ 1,822.54. Further the employer is to reimburse Employee for the medical expenses he incurred totaling $\ 11,293.00. Employer is to pay to Employee 10 % permanent partial disability of the left upper extremity at the 175 week level equating to 17.5 weeks of disability at a compensation rate of $\ 477.33 equating to a disability payment by the employer to Employee of $\ 8353.28. And finally the employer is to pay to Employee 2 weeks of disfigurement equating to $\ 954.66

All compensation awarded to Employee shall be subject to a lien in the amount of 25 % of all payments in favor of Devin Mirfasihi, Employee's attorney, for necessary legal services rendered.

I certify that on 1-10-20

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.


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