Kathryn Crowley v. Clarcor/General Electric

$\S 287.210(7)$, RSMo, provides an exception that applies to treating physicians, but not to a PhD toxicologist.

1. The ALJ erred in allowing into evidence the testimony from the employer's witnesses because such testimony was hearsay, lacked foundation, and was not previously provided in response to a request for documents and statements pursuant to $\S 287.215, RSMo, or a subpoena pursuant to \S 287.560$, RSMo.

The employee's brief includes no arguments in support of points 1, 6, 9, and 10. Accordingly, we deem that the employee waived these points on appeal.

Section 287.170.4, RSMo, prohibits an award of TTD benefits when "the employee is terminated from post-injury employment based upon the employee's post-injury misconduct[.]" The term "post-injury" refers to events occurring after the injury at issue with the workers' compensation claim. This statute applies here because the employee continued to work for the employer postinjury and was discharged for post-injury misconduct.

The ALJ specifically found that the employee had "an acute injury on November 19, 2014, to her left wrist." Award, p. 27. The employer followed its policies by requiring a drug test. The ALJ also found "most persuasive" the opinions of toxicologist John Vasiliades, PhD, that based on the test results "there's no question [the employee] took D-methamphetamine" and that the only prescription drug the employee reported would not have caused that positive test result. Award, p. 22, 28. Due to the positive drug test results, the employer discharged the employee for misconduct. As both the employment and the positive drug tests occurred after the primary injury, the ALJ found that the employee "was terminated from post-injury employment based upon post-injury misconduct." Award, p. 29.

In her brief, the employee argues that the term "injury" in "post-injury misconduct" does not refer to the primary injury for the workers' compensation claim, but rather, the alleged acute injury on November 19, 2014, that triggered the employer's requirement for the employee to submit to the drug testing. The employee argues that even if the employee used illegal drugs, such usage was prior to the alleged acute injury; therefore, the alleged misconduct was pre-injury and not post-injury.

The employee further argues that the employer used the alleged acute injury as a pretext to require a drug test. This was the first instance in the employee's 30-year career with the employer where she had to submit to a drug test.

We do not find the employee's arguments persuasive. The term "injury" in the statute does not refer to the employee's November 19, 2014, acute injury, but refers to the primary injury for which the employee seeks workers' compensation benefits. This interpretation is also shared in a dissenting opinion by Judge Teitelman of the Missouri Supreme Court, who disapproved of the plain language of $\S 287.170 .4$, RSMo, because it indicates that the post-injury misconduct refers to misconduct after the primary workers' compensation injury. Accordingly, the postinjury misconduct, "by virtue of being post-injury, could not have been a factor in causing the injury." Mo. All. for Retired Ams. v. DOL \& Indus. Rels., Div. of Worker's Comp., 277 S.W.3d 670, 686 (Mo. 2009) (J. Teitelman, dissenting). Judge Teitelman continued to note that "[t]he statute does not even require that the employer's decision to terminate the injured employee is reasonable or non-pretextual." Id.

We agree with the ALJ's findings and conclusions that the employer terminated the employee's post-injury employment due to post-injury misconduct. Accordingly, the employee is not entitled to TTD due to the provisions of $\S 287.170 .4, RSMo, strictly construed. Therefore, the employee's points 2,3,4$, and 7 fail as they regard TTD benefits. The employee is not entitled to any additional TTD, any doubling of TTD, or any previously paid TTD that the employer paid in compliance with an October 5, 2015, Temporary Award. The employer is entitled to a credit for such previously paid TTD in the amount of $\ 49,833.19.

In her point 5, the employee argues that the ALJ erred in finding that the employee's psychiatric condition did not arise out of and in the course of employment. The basis for this argument is as follows:

Nowhere in the transcript does the Employer or The Second Injury Fund counsel ask the Administrative Law Judge to list causation as an issue. Therefore, the Administrative Law Judge's analysis of the case in this regard should be struck and not considered in this appeal. The only issue is the nature and extent of Ms. Crowley's disability, not the cause of her disability.

Appellant's Brief, p. 13.

The employee did not raise this particular issue in her application for review. Accordingly, we decline to consider it. See 8 CSR 20-3.030(3)(A) and Treasurer of the State v. Mickelberry, 606 S.W.3d 150 (Mo. App. 2020).

Regarding the ALJ's determination that the employee was not PTD, we do not disturb the ALJ's findings relating to the credibility and persuasiveness of the medical and vocational expert opinions produced at hearing and her conclusion that the employee was able to compete in the open labor market and was not PTD.

In her point 8, the employee argues that the ALJ erred in failing to admit into evidence records from the SSA because such were admissible under Missouri law, specifically by $\S 490.210$, RSMo, which provides an exception to the hearsay rule. The employee did not raise the issue of whether the employee's SSA records were admissible under $\S 490.210$, RSMo, at the hearing and therefore did not preserve this issue for appeal. We note, in addition, that the employer/insurer's objections to the employee's SSA records were not based on hearsay.

At the hearing, the ALJ sustained the employer/insurer's objections to the admission of records from the SSA on the grounds of (1) relevance because the determination of disability for social security matters uses a different standard than determinations of disability in workers' compensation matters and (2) "that there are opinions stated therein, including reports regarding her disability, and we were not provided with a 60-day letter of these opinions and so it is not a full medical report, so to the extent that any statements regarding opinions contained within those records would be inadmissible as opinion evidence." Transcript, p. 9.

Section 287.210.7, RSMo, provides, in pertinent part:

The testimony of a treating or examining physician may be submitted in evidence on the issues in controversy by a complete medical report and shall be admissible without other foundational evidence subject to compliance with the following procedures. The party intending to submit a complete medical report in evidence shall give notice at least sixty days prior to the hearing to all parties and shall provide reasonable opportunity to all parties to obtain cross-examination testimony of the physician by deposition. The notice shall include a copy of the report and all the clinical and treatment records of the physician including copies of all records and reports received by the physician from other health care providers.

We conclude that the ALJ did not err in sustaining the employer/insurer's objections. The employee did not follow the provisions of § 287.210.7, RSMo, in attempting to introduce into the record medical opinions that formed the basis for a decision of the SSA.

Furthermore, the employee is not prejudiced by the exclusion of these records, which also contain the employee's statements regarding her own condition because the employee was able to testify at the workers' compensation hearing regarding her own condition.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Melody A. Powell is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 28th \qquad$ day of January, 2022.


LABOR AND INDUSTRIAL RELATIONS COMMISSION


DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:


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 (ALJ) should be modified to conform to the Temporary or Partial Award issued on October 5, 2015.

The employee Kathryn Crowley, now 60 years of age, served the employer for 30 years, working 40 to 45 hours per week, and sometimes 60-65 hours per week, performing heavily repetitive and hand-intensive work. In a Temporary or Partial Award issued October 5, 2015, over 6 years ago, Chief Administrative Law Judge Robert Dierkes found that the employee had bilateral carpal tunnel syndrome, with a date of onset of October 6, 2014. He further found that the prevailing cause of the employee's condition was her repetitive work for the employer. ALJ Dierkes concluded, the employee "is clearly in need of medical care and treatment to cure and relieve [the employee] from the effects of the occupational bilateral carpal tunnel syndrome and [the employer] is responsible to provide said medical care and treatment." Temporary or Partial Award, issued October 5, 2015, p. 11. In his Temporary or Partial Award, ALJ Dierkes further opined, relating to a drug test the employer ordered after the employee sustained a subsequent and distinct acute work injury on November 19, 2014, "[t]he alleged positive drug test has no legal significance in this case; further the result of the drug test is almost certainly a 'false positive' due to Claimant's use of the prescription drug bupropion." Id., p. 12.

At the December 14, 2020, final hearing over 5 years later before a different ALJ, the employee credibly testified that she has never used methamphetamines or amphetamines. However, based on new evidence the employer produced from a toxicologist, the ALJ found that the employer discharged the employee for misconduct, stripped the employee of her entitlement to any of temporary total disability benefits (TTD) benefits, and awarded the employer/insurer a $\ 49,833.19 credit which eclipsed the permanent partial disability (PPD) the ALJ awarded in connection with the employee's work injury. This result is patently unfair and subverts the interests of justice.

As the employee's attorney persuasively argues:

This finding is in error from a legal standpoint because, strictly construed, no conduct the Employee engaged in post-injury could be construed as "misconduct." A test result is not conduct. [The] Employee did not refuse to take the test. She was happy to comply with the Employer's request to take a drugtest for the first time in her thirty-plus years of employment at the plant." Appellant's Brief, filed August 13, 2021.

Accordingly, there was no post-injury misconduct that would result in a denial of TTD, pursuant to $\S 287.170 .4$, RSMo. I would modify the ALJ's award allowing TTD benefits, as found in the temporary award, as well as additional TTD from October 8, 2016, through April 28, 2017.

I also agree with the employee that the employer erroneously ceased paying TTD benefits as of October 7, 2016, when the employee was still not able to compete in the open labor market. The employer should have continued paying TTD benefits until the employee's date of maximum medical improvement, which occurred on April 28, 2017. Because the employer failed to follow the orders of the ALJ, the employer should pay double the amount of TTD, pursuant to $\S 287.510$, RSMo, from October 8, 2016, through April 28, 2017.

-2-

Injury No.: 14-101480

Furthermore, I find persuasive the opinions of Dr. David Volarich, Dr. A.E. Daniel, Ms. Kristine Skahan, and Ms. Michelle Sprecker, that as of April 28, 2017, the employee was unable to compete in the open labor market due to the restrictions of Drs. Volarich and Daniel. Accordingly, I would find that the employer/insurer is liable for permanent total disability benefits after April 28, 2017.

Because the Commission majority has decided otherwise, I respectfully dissent.

Shalonn K. Curls

Shalonn K. Curls, Member

Employee: Kathryn Crowley

Injury No. 14-101480

Dependents: N/A

Employer: Clarcor

Additional Party: Second Injury Fund

Insurer: Travelers Indemnity Company of America

Hearing Date: December 14, 2020

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MAP/sb

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: October 6, 2014
5. State location where accident occurred or occupational disease was contracted: Slater, Saline 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: Repetitive activities of work resulting in bilateral carpal tunnel syndrome
12. Did accident or occupational disease cause death? N/A Date of death?
13. Part(s) of body injured by accident or occupational disease: Bilateral wrists
14. Nature and extent of any permanent disability: 25 % right wrist, 12.5 % left wrist, 2 weeks disfigurement
15. Compensation paid to-date for temporary disability: $\ 49,833.19, representing $981 / 7$ weeks from November 21, 2014, to October 7, 2016

Said payments to begin as outlined herein and subject to modification and review as provided by law.

The compensation awarded to Employee shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to Employee: Corey Jackson

Employee: Kathryn Crowley

Injury No: 14-101480

Employee: Kathryn Crowley

Dependents: N/A

Employer: Clarcor

Additional Party: Second Injury Fund

Insurer: Travelers Indemnity of America

Before the DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MAP/sb

On December 14, 2020, a Final Award Hearing was conducted before the undersigned Administrative Law Judge in Sedalia, Missouri. After a brief extension of time, proposed awards were received on February 3, 2021, and the record was closed. Employee, Kathryn Crowley, appeared personally and by counsel, Corey Jackson. Employer/Insurer appeared through its attorneys, John Fox and Daniel Luebbering. The Second Injury Fund appeared by Assistant Attorney General Deidre Wood.

The parties stipulated as follows:

1. That on or about October 6, 2014, Employee was in the employ of Clarcor and sustained an injury by repetitive trauma which arose out of and in the course of employment.
2. That both the Employee and Employer were operating under and subject to the terms and provisions of the Missouri Workers' Compensation Act.
3. That Employer's liability was insured by Travelers Indemnity Company of America.
4. That Employer had notice of the injury, and a claim for compensation was timely filed.
5. That venue is agreed to in Sedalia, Pettis County, Missouri.
6. That temporary total disability benefits have been paid in the amount of $\ 49,833.19, representing $981 / 7$ weeks, for the period of November 21,2014 , to October 7, 2016.
7. That medical has been provided by the Employer/Insurer in the amount of $\ 27,209.79.

The issues to be resolved include:

1. Average Weekly Wage and Compensation Rate.

**Employee:** Kathryn Crowley

**Injury No.:** 14-101480

1. Whether Employee was terminated from employment based on Employee's post-injury misconduct pursuant to §287.170(4) RSMo.
2. The amount, if any, of additional temporary total disability benefits owed to Employee.
3. Whether the doubling provision for temporary total disability benefits under §287.510 RSMo, applies for the period from October 7, 2016, to April 28, 2017.
4. The nature and extent of any permanent disability and any disfigurement.
5. Liability of the Second Injury Fund.
6. Whether Employee is entitled to reasonable attorneys' fees under §287.560 RSMo.

The following Exhibits were offered into evidence:

1. Deposition Transcript of Kathryn Crowley
2. Corey Jackson Attorney Contract and Expenses
3. Records of the Division of Workers Compensation
4. Transcript of the Hardship Hearing
5. Social Security Disability Records (objection sustained)
6. Reports of Dr. David Volarich and Dr. A.E. Daniel
7. Deposition of Kristine Skahan
8. Medical Records of Dr. Matthew Concannon
9. Subpoena Duces Tecum to Clarcor

Exhibits 1-4 and 6-9 were admitted. Exhibit 5 was not admitted into evidence.

A. Report of Dr. Matthew Concannon

B. Report of Dr. John Vasiliades, Ph.D.

C. Report of Dr. Michael Szewczyk

D. LabCorp Complete Package

E. I-70 Community Hospital Certified Medical Records

F. Akeman-McBurney Medical Clinic Certified Medical Records

G. Spreadsheet of Employee's Time Sheets

H. Ledger of TTD benefits paid to date

I. Ledger of medical benefits paid to date

J. Volumes 1-5 of Transcript of Hardship Hearing

K. Deposition Transcript of Dr. John Vasiliades, with Exhibits

L. Deposition Transcript of Michelle Sprecker, with Exhibits

M. Deposition Transcript of Dr. Brian Divelbiss, with Exhibits

N. Deposition Transcript of Dr. Patrick Hughes, with Exhibits

O. Deposition Transcript of Dr. A.E. Daniel, with Exhibits

P. Drug and Alcohol Policy

Exhibits A through P were admitted into evidence.

WCC-32-81 (6-81)

Page 4

The Second Injury Fund did not offer any Exhibits or witnesses.

The parties asked the undersigned administrative law judge to take administrative or judicial notice of the following documents in the Division of Workers' Compensation records referred to as "The Legal File": Notice of Hearing, Request for Hearing-Final Award, Answer of Employer/Insurer to the Claim for Compensation, Answer of the Second Injury Fund to the Claim for Compensation, Claim for Compensation, and the Report of Injury.

At Hearing, Employer/Insurer offered an Amended Answer to the Claim for Compensation. Employer/Insurer was allowed to amend its answer, over objection from Employee. The Amended Answer was deemed filed on December 14, 2020.

All Exhibits appear as received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any Exhibit by the undersigned administrative law judge.

Witnesses called at the Hearing on behalf of the Employee included Kathryn Crowley and Denise Gordon, Employer's Corporate Designee. Witnesses called at the Hearing on behalf of Employer/Insurer included Marcia Twenter, Human Resources Manager.

Employee Kathryn Crowley testified in her own behalf and also by way of deposition. She is 59 years old and currently lives in Slater, Missouri. Employee attended the 12th grade but left school, without graduating, to find work and help her mother care for her younger siblings. Employee has been married twice, with her most recent marriage lasting 22 years and ending in divorce in 2012.

Employee testified that she worked as a dishwasher for five years, as a waitress for two to three years, and as a cook for two years. She also worked at the Slater Garment Factory for three years, making jackets. She began working for Clarcor's predecessor, BHA, as a sewing machine operator and tuber operator in 1983. She worked there for 32 years, until sometime in November, 2014. Employee testified that she worked 40 to 45 hours per week and sometimes up to 60 to 65 hours per week at the rate of $\ 19.00 per hour. Her duties involved sewing and doing a lot of pushing and pulling.

Employee testified that she had pain, numbness, and tingling in her hands throughout the years. It was not so bad when she was working, but would get worse at night. She scheduled carpal tunnel surgery but then told Janice Harris at Clarcor that she thought her condition was work-related. Ms. Harris asked her to postpone the surgery until Clarcor could send her to a doctor. She had been put on some restrictions as a result of her carpal tunnel complaints, prior to telling Ms. Harris she was claiming her condition was work-related. She had to submit FMLA paperwork because of these restrictions and was moved to a job involving gasket wrapping. Gasket wrapping involved pulling tape off a gasket and Employee testified that some of the tape was hard to pull off. Her hands started hurting and throbbing and on November 19, 2014, she went to Trinket, her supervisor, and reported her hands hurting from pulling the tape on the

**Injury No. 14-101480**

gaskets. She could only work that job for five minutes before her hands would go numb, and when she could not take the pain any longer, she reported her symptoms to Trinket. Trinket contacted Denise who came and advised Employee that she had to take her to get a drug test. Employee testified that her complaints on November 19, 2014, were the same as when she reported the carpal tunnel symptoms. She denied telling Clarcor that the pain from this incident with the gasket tape was different from the carpal tunnel pain. However, at the Temporary Hearing, Employee testified that only one hand hurt as a result of the light-duty gasket-taping work she performed on November 19, 2014. (Exh. 4, v. I, pp. 84-85).

Employee admitted that she knew Clarcor used the same drug policy as GE, the immediate predecessor to Clarcor. She also admitted that she signed GE's drug policy and knew the policy from GE was in effect when Clarcor took over and was "grandfathered" in at Clarcor. Clarcor told her this at meetings and told employees that they could submit their own medical records and pharmacy records if they were drug tested. Employee testified that they all knew if they were hurt at Clarcor, they would be drug tested. She testified that she had no problem undergoing the drug test since that was their policy. The drug test was done the day prior to her appointment with Dr. Szewczyk. While Employee testified that she gave the plant nurse a list of medications she was taking, including Wellbutrin, before the drug test, she admitted on cross-examination that she gave the list of medications to the plant nurse prior to reporting the November 19, 2014, incident involving the gasket tape. Employee admitted that she never submitted a list of medications to her employer after the November 19, 2014, incident where her hands hurt from removing the gasket tape.

On December 22, 2014, Employee was called into Ms. Harris's office and was told that as of Monday, she was terminated due to the drug test results. Employee testified that she told her this was wrong, but Ms. Harris responded that it was their policy. Employee testified that she asked how she could contest the test and was given a phone number of the lab. She testified that she called the lab and was told that Clarcor would have to follow-up on this. She then spoke with Ms. Harris who said a medical examiner would call her back but no one ever did.

Employee testified that she was prescribed Bupropion [also known as Wellbutrin] for depression in 2011 while going through a divorce. On cross-examination, she admitted she started receiving treatment for depression from Dr. Hermann in 2008, before the marital problems. She tried several different medications and then when her marriage problems started, the depression worsened. She testified that she missed time from work due to the divorce and depression. Employee testified that her depression got better post-divorce but worsened after her termination in 2014. She testified the fact that she was fired caused her distress and was most upset that she had worked at Clarcor and its predecessors for 32 years yet "nobody asked me what I took". She testified that the termination "took my life from me." Employee testified that she lost custody of her son and had a hard time getting him back, had money problems, and when her boyfriend passed away two years ago, she "lost everything". Employee testified that she got depressed from all of this. She stated that she had been a role model for co-employees at work and now that is gone. After being terminated, Employee testified that people look at her funny. She testified that she has never done illegal drugs and has never taken meth or even seen meth.

Regarding her current complaints, Employee testified that:

WG-32-03 (6-81)

Page 6

- Her left thumb still goes numb but otherwise left hand is doing good.

- Physical therapy helped the right hand for a while post-operatively, but then all the progress stopped. The right hand is still numb.

- Right hand is worse than the left and getting worse. Her fingers are numb and she has hand spasms.

- She has to use both hands to lift objects.

- Hard to grasp and pick-up things.

- The throbbing in her hands is gone.

- She gets some swelling if working with her hands.

- The right hand will occasionally wake her up.

Employee admitted that Dr. Concannon released her to return to work without restrictions on September 9, 2016. She testified that she could not have performed the gasket wrapping job between October of 2016 and April of 2017. Employee admitted that Clarcor accommodated her doctor's work restrictions up until she was terminated. Employee testified that she does not type or text, but she can count change and sort coins. At home, Employee does the dishes, dusts, mops, and sweeps, but the symptoms worsen if she does a lot. She used a computer at the plant for production data and also did small maintenance work at the plant.

Employee stated that she has not looked for a job since her termination due to her hands. She has a lawsuit pending against Clarcor for wrongful termination.

Employee testified that she has a thyroid condition for which she takes medication and that if she does not take her medication, her hands will swell.

Employee testified that she saw Dr. Snyder at the request of her attorney and gave him a list of medications that she was taking as of November 20, 2014. The only medication that Dr. Snyder identified as causing a false positive drug test was Wellbutrin.

Employee also testified regarding the questionnaire she completed for Dr. Daniel. She stated that her daughter helped her write it out and Employee signed it. Employee agreed that the contents of the questionnaire were accurate. She admitted that there was nothing on the questionnaire about her hands causing her to be depressed and that her pain was not as bad after the surgeries. Employee admitted that when she saw Dr. Daniel, her other life problems were more stressful than her hands were.

Counsel for Employer noted, and the undersigned observed, that Employee used her hands to talk during the course of her trial testimony, to which she agreed. It was observed that Employee brought a mask into the courtroom for COVID-19 and she held the mask in her left hand for approximately two hours of testimony. The undersigned observed her folding the mask, turning it over, and passing the mask back and forth in her hands with no apparent difficulty. In addition, Employee was handed Exhibits, including the drug policy and Dr. Daniel's questionnaire, and was able to hold and turn the pages of the Exhibits with only a little difficulty. At the end of Employer's cross-examination, when asked, Employee testified that her hands did not hurt any more now [at the hearing] than usual.

Employer: Ksthryn Crowley

Injury No. 14-101480

Employee's attorney called Denise Gordon to testify as the Corporate Designee of Clarcor. Ms. Gordon began working at GE/Clarcor in May 2011. She explained the ownership history of the company. GE owned the plant in 2011. The plant was sold to Clarcor in 2013, and the employees then became employees of Clarcor. In 2016, Parker-Hanifan bought out Clarcor. Ms. Gordon is currently an employee of Parker-Hanifan. She was the Environmental Health Manager up until 2016, and was then promoted to Environmental Health and Safety Manager. Ms. Gordon is charged with applying OSHA regulations to the site and meeting compliance with OSHA requirements. Whenever there was a workplace injury or concern for safety, Ms. Gordon would provide personal protective equipment.

Ms. Gordon knows Employee, but she does not know exactly what jobs Employee performed or what her hourly rate was.

Ms. Gordon went over Clarcor's policy on reporting an accident. Ms. Gordon discussed Clarcor's drug policy and testified that it is the policy of Clarcor to test employees when an acute injury occurs and the employee is sent to the emergency room or is sent to an occupational doctor other than the plant nurse.

Ms. Gordon testified that after Employee reported her carpal tunnel problems, she was moved to gasket wrapping to accommodate restrictions placed on her by her personal medical provider in October 2014. This job involved wrapping tape around an inch or so wide metal gasket which weighs approximately 8 ounces. This was the only time that Ms. Gordon was aware that Employee had been put on light duty. Employee reported an acute injury while performing the gasket wrapping duties. She told Ms. Gordon she had pain while doing the gasket wrapping. Ms. Gordon testified that before the November 19, 2014, acute injury, Clarcor had already contacted Dr. Szewczyk's office to schedule an evaluation for carpal tunnel syndrome. When Employee reported the acute injury, she arranged for Dr. Szewczyk to evaluate both the carpal tunnel symptoms and the acute injury.

Ms. Gordon testified that Employee was drug tested on November 20, 2014, because she reported an acute injury to her wrist, not because of the carpal tunnel symptoms. Janice Harris, Human Resources Manager at the time, ordered the drug test. Ms. Harris no longer works at the plant. Ms. Gordon notified Employee that they would be testing her and drove Employee to the test. Ms. Gordon did ask Employee what medications she was on while she was driving her to the clinic and told Employee that she would need to let the doctors/nurses know what medications she was taking.

Ms. Gordon testified that Ms. Harris informed Employee that she failed the drug test. Ms. Gordon testified that employees could contest a positive drug test. Clarcor ordered a second drug test to make sure the first was accurate. Ms. Gordon testified that Employee tested positive for amphetamines and methamphetamines, which was a violation of Clarcor's drug policy. She testified that Employee was terminated because of the positive test.

Employer presented the testimony of Marcia Twenter, the current Human Resources Manager for the plant. Ms. Twenter testified that prior to her termination, the restrictions placed on Employee by her personal physician were being accommodated by the plant. Ms. Twenter

WC-29-R1 (A-81)

Page 8

**Employee:** Kathryn Crowley

**Injury No. 14-101480**

testified that, had Employee not been terminated, the plant could have accommodated the restrictions issued by Dr. Snyder. Ms. Twenter further testified that the plant could have accommodated the restrictions that were issued by Dr. Concannon during the course of Employee's treatment, if she had not been terminated. Ms. Twenter testified that Employee could have performed gasket production, gasket wrapping, cuff hemming, or cuff closure. Ms. Twenter also testified that the plant could have accommodated the restrictions of Dr. Volarich on a permanent basis.

Ms. Twenter testified regarding Exhibit G, which is a spreadsheet of the hours Employee worked prior to the date of injury. This was a spreadsheet that Ms. Twenter created based on data in their Chronos system. Ms. Twenter testified that Employee was making $20.00 an hour at the time of her injury. Exhibit G was admitted into evidence over objection.

On cross-examination by Employee's attorney, Ms. Twenter testified that she started working at the plant in April 2015. She testified that the plant nurse maintains the functional job descriptions. Ms. Twenter testified that she is not a production expert, but she partnered with the plant production manager, the plant manager, and the plant nurse to determine what jobs would have been available for accommodated duty. The production manager has been at the plant for 40 years. The plant manager has been there for 30 years. Ms. Twenter was also asked about accommodating one-handed duty. Ms. Twenter testified that none of the jobs identified could have been performed one-handed solely by one person, but the plant could have had Employee collaborate with another employee to perform the tasks.

Janice Harris testified at the Temporary Hearing of this matter on August 24, 2015. The transcript of the Temporary Hearing was admitted in this proceeding as Exhibit 4 on behalf of Employee and Exhibit J on behalf of Employer/Insurer.¹ Ms. Harris was the Human Resources Manager for Clarcor at the time of this injury and at the time of the Temporary Hearing. She explained the drug testing policy and procedure. Drug testing is done post-accident if medical treatment is required or if there is property damage. For false positive safeguards, Clarcor would ask the lab to run a validation test. She further explained that employees are able to submit medical records with current prescriptions if the drug test comes back positive. She also explained that employees are always asked at the time of testing what medications they are taking. (Exh. 4, v. I, pp. 25-26).

According to Ms. Harris, when an injury is reported, Clarcor conducts an investigation. (Exh. 4, v. I, pp. 28-29). The Employee Health and Safety Department works with Valerie, the plant nurse, in conducting the investigation. Ms. Harris testified that Denise Gordon with Employee Health and Safety, made a note on November 20, 2014, indicating that Employee was crying and felt like she needed to go to the emergency room. The note further indicated that Employee stated she hurt her left wrist pulling tape off a gasket. The note continues that Dr. Szewczyk agreed to see Employee on November 21, 2014, saying what was described was not a "normal" pain for carpal tunnel syndrome. Because the appointment with Dr. Szewczyk was due to a possible wrist sprain from pulling a gasket, a drug screen would be necessary. (Exh. 4, v. I,

¹ The transcript of the Temporary Hearing is admitted as Exhibit 4 and Exhibit J. Both exhibits are paginated, however, the pages do not necessarily align within the two exhibits. References in this Award will be to the Bates-stamped pagination of Exhibit 4.

W0-32-01 (6-01)

Page 9

Employee: Kathryn Crowley

Injury No. 14-101480

pp. 32-34, 40). The drug test took place on November 20, 2014, and the results were positive. When Ms. Harris spoke with Employee to notify her that the drug test results were positive, she told Employee to be sure and let her know if there was anything contributing to the positive test and the company would have the lab do another test. She also told Employee that if there was any reason at all that could have contributed to the positive test results, Employee could provide medical records. Employee never provided any medical records. Because Employee was a long-term employee and seemed surprised at the test results, Clarcor had a different lab, LabCorp, do a more detailed test. The same sample was used and the results were the same. The drug test was performed because of the acute injury Employee reported occurring on November 19,2014 , when she was ripping tape off a gasket. (Exh. 4, v. I, pp. 59-60; 62-63).

Employee testified that she has had hand complaints for years, as early as 1994 during her pregnancy (Exh. 1, p. 43; Exh. 4, v. I, p. 82). Prior to October 6, 2014, Employee suffered from medical conditions, including depression and hypothyroidism.

On June 6, 2008, Employee was seen by Dr. Deborah Herrmann, M.D., at I-70 Medical Clinic with complaints of swelling in the neck, a tightness in her neck, muscle aches, fatigue and weight gain. (Exh. E, p. 53). In addition, Employee's then-husband reported that he thought she was depressed and that people at work reported she needed a "happy pill". Employee admitted to crying easily, but generally did not think she was depressed. There was no mention of hand pain or numbness at this visit. Employee was placed on a trial of Prozac 20 mg . Employee returned to the I-70 Medical Clinic on July 11, 2008, reporting that she had started her Prozac and people reported she was in a much more tolerable mood. Although Employee did not think her fatigue had improved, her husband reported she was doing better. There was no mention of hand or wrist complaints. (Exh. E, pp. 49-50). She was also diagnosed with hypothyroidism. Employee returned on October 17, 2008, for a follow-up on her depression. (Exh. E, p. 47). She reported that since starting on Prozac her mood was much better. Her husband reported that she was much easier to get along with and appeared to be happier. Dr. Herrmann continued Employee on Prozac. There was no mention of hand or wrist pain or numbness at this visit.

The next entry in the I-70 Medical Clinic records is approximately one year later on October 2, 2009, when Employee was seen for follow-up of her depression and hypothyroidism. (Exh. E, p. 43). Employee reported to the doctor that she may need to increase the Prozac as she was still having some depressed moods. Her dosage of Prozac was increased. There was no indication of hand/wrist pain or numbness. When Employee returned to Dr. Herrmann four months later, on March 19, 2010, she reported doing better on the higher dose of Prozac. (Exh. E, p. 41). She also did not feel her hypothyroidism was quite under control yet and reported some swelling in her hands at this visit.

Employee returned to Dr. Herrmann on March 11, 2011, and reportedly had been off her Prozac for a while. (Exh. E, p. 39). She self-discontinued it as she did not think it was helping her much. Employee's husband thought Employee was more moody, so she was interested in trying something different. Dr. Herrmann prescribed Celexa. Employee was seen by Dr. Herrmann in follow-up on April 8, 2011. (Exh. E, p. 37). She reported her mood was good and

**Employee:** Kathryn Crowley

**Injury No. 14-101480**

She was sleeping and eating well. She reported a lot of stressors but felt that she was coping well.

On February 27, 2012, Employee presented to Dr. Herrmann reporting that she had been off of her medications for a couple months. (Exh. E, p. 33). She was feeling sluggish and puffy because of her hypothyroidism. Her mood was not good and she was getting divorced from her husband. Her prescriptions for her thyroid medicine and Celexa were refilled. On July 30, 2012, Employee reported that she was still not doing as well as she would like. (Exh. E, p. 30). She was having some trouble coping with her divorce. She cried all the time. She reported fleeting suicidal thoughts but would never act on them. Employee requested a change in her Celexa prescription. Dr. Herrmann switched her to Wellbutrin XR 150 mg. On October 1, 2012, Employee followed up with Dr. Herrmann, reporting that she was coping well. (Exh. E, p. 27). She denied crying spells and suicidal thoughts. Dr. Herrmann continued her on the same medications.

On October 18, 2013, Employee reported to GE (predecessor to Clarcor) that the knuckle on her left hand rubbed on the bar of the tuber machine making it sore. (Exh. 4, v. II, p. 342) She reported that the middle knuckle of the hand would get really sore and that swelling occurred. Employee was sent to the plant nurse, Valerie Harrison, and was diagnosed with left knuckle discomfort. (Exh. 4, v. II, p. 341). It was recommended to use an ice application 15-20 minutes daily. She returned to the plant nurse on October 21, 2013, for follow-up. (Id. at 341). She reported 0/10 pain and no swelling over the weekend. She was instructed to alter her technique as a tuber and report any new symptoms or worsening. Employee was not referred to any outside medical professional.

On December 19, 2013, Employee was seen by Dr. Herrmann for her hypothyroidism. (Exh. E, p. 22). She reported she needed a refill on her Lasix medication on an as-needed basis because she would use it when she ran out of her thyroid medicine. On January 24, 2014, Employee followed up with Dr. Herrmann for her hypothyroidism and depression. She reported doing well and that her mood was good.

On July 31, 2014, Employee was seen by Theresa Campbell, FNP, at Akeman-McBurney Health Clinic with complaints of hand numbness up to her elbows. (Exh. F, pp. 23-27). She also reported that she had run out of her thyroid medicine for a month and just got it refilled a week ago. Employee stated that, in the past when she would restart her medicine, the numbness she had would get better. Labs were ordered with further evaluation and treatment depending on those results. Employee returned to Nurse Campbell at Akeman-McBurney on August 20, 2014, with continued left arm pain. She reported that her symptoms began earlier but got worse one day ago. (Exh. F, p. 17). Employee reported that she had been doing a different job the past day. Nurse Campbell ordered an EMG.

In an email from Janice Harris to the plant nurse, Valerie Harrison, dated August 20, 2014, Ms. Harris requested that the nurse see Employee in her office because Employee reported that her arms were numb from her elbows down. (Exh. 4, v. II, p. 290). In a response reportedly sent that same day, Nurse Harrison reported that Employee had bilateral numbness from her hand to elbow which started when she moved from tubing for a few hours to sew. (Exh. 4, v. II, p. 31-32)

WC-32-R1 (6-81)

Page 11

**Employee:** Kathryn Crowley

**Injury No.:** 14-101480

**291).** Employee reportedly was seeing her primary care physician for personal medical issues and these symptoms. Employee reported she had a history of carpal tunnel with pregnancies, greater than 10 years ago. She also reported that she was having nerve conduction studies done on her own as recommended by her nurse practitioner. The plant nurse went on to question why they were alerted. The plant nurse also stated "I hope she doesn't attempt to turn this in as Work Comp. She has not mentioned any left/wrist complaints or discomfort to Trinket, Broadway team or myself prior to this. She actually reported her symptoms to HR MGR this week. Trinket stated the Employee does not like to be rotated". The plant nurse also stated, "[t]his Employee has personal physical issue which I believe are the primary factors. She told me tubing causes her no discomfort."

On August 27, 2014, Employee's primary care provider, Nurse Campbell, completed a Certification of Health Care Provider for Employee's Serious Health Condition (FMLA). (Exh. 4, v. II, pp. 372-375). Nurse Campbell indicated that Employee had numbness, pain in the left arm up to the elbow, aching, some redness, and swelling. She further indicated that Employee was unable to perform jobs with repetitive use of the left arm, including the wrist and elbows. Nurse Campbell also noted that the approximate date the condition commenced was July 17, 2014. (Id., at p. 373). Employee turned in the Certification of Health Care Provider completed by Nurse Campbell and restrictions were accommodated. Employee was put in gasket wrapping, which involved putting tape on metal bands. On September 4, 2014, an EMG was performed which indicated left chronic carpal tunnel syndrome. Employee returned to Akeman-McBurney Medical Clinic on September 26, 2014, and was referred to an orthopedist for further evaluation.

On October 6, 2014, Employee was seen by Dr. Kelly Ross, D.O., at Marshall Orthopaedic and Sports Medicine and a Certification of Health Care Provider for FMLA was completed (Exh. 4, v. V, pp. 717-720). Dr. Ross reported that the condition commenced "approximately a year ago (reported by pt)". Dr. Ross also indicated that surgery was scheduled for October 21, 2014, and that Employee would be unable to perform any of her job functions for up to 5 weeks post-operatively. (See also, Exh. C, pp. 12-15). On October 20, 2014, the day before her surgery, Employee was seen by the plant nurse and reported to Employer that her carpal tunnel syndrome was work-related. Employer told Employee that if she wanted treatment, Clarcor would need to send her for an evaluation first. Employee agreed to postpone her surgery. (Exh. 1, p. 45).

On November 20, 2014, Employee went to Employer reporting she was in so much pain that she needed to go the emergency room. (Exh. 4, v. II, p. 205). Employee reported that she hurt her left wrist while pulling tape off a gasket. (See also, Exh. 4, v. I, pp. 84-85) According to her personnel file, Employee reported that it was different from the carpal tunnel. Employee said she twisted it when she was doing gaskets. Employee was also informed that since she was being seen for a possible sprain of her wrist from pulling the gasket tape off, a drug screen would need to be performed. Employee agreed.

Employee was driven to the drug screen by Denise Gordon and a sample was taken on November 20, 2014. (Exh. D, p. 7). The initial screen, or immunoassay test, returned positive for Amphetamine and Methamphetamine. (Id., at p. 8). The chain of custody for the drug test was certified (Id., at p. 9).

WCC-22-011 (6-81)

Page 12

Employer: Kathryn Crowley

Injury No. 14-101480

Employee was evaluated on November 21, 2014, by Michael J. Szewczyk, M.D. (Exh. C, p. 6). Dr. Szewczyk noted that Employee clearly had symptoms of carpal tunnel for years, first becoming noticeable during her pregnancies. Dr. Szewczyk also noted that Employee would "get into trouble" when she stopped her thyroid medications and would have more swelling. Dr. Szewczyk's opinion was that Employee had significant non-work-related risk factors and that her work was not the prevailing factor in causing the carpal tunnel syndrome. Dr. Szewczyk stated that Employee could continue current work activities. (Id., at p. 8).

A second confirmation review of the Employee's drug test was performed on December 24, 2014, which confirmed the positive tests. (Exh. K, pp. 31-32; Exh. D, pp. 63-86). Employee was then terminated for violation of Clarcor's drug policy.

Employee subsequently obtained an independent medical examination from Dr. Michael Snyder, M.D. (Exh. 4, v. V, p. 781). Dr. Snyder is an orthopedic surgeon at JCMG Orthopaedic & Sports Medicine. Dr. Snyder's opinion was that Employee had bilateral carpal tunnel syndrome, which he felt was caused by Employee's repetitive activities at Clarcor. Dr. Snyder recommended surgical intervention. Dr. Snyder also stated: "I do not believe her to be totally and temporarily disabled. I do feel that she could have maintained her position with some modification in her work-related activities. I also feel that had she gone ahead and fixed her carpal tunnel syndrome with surgical release she would be back to full employment at the current time. After they terminated her she was unable to compete in the open job market secondary to the bilateral carpal tunnel syndrome."

Dr. Snyder also opined that the positive drug test for amphetamine was a false positive secondary to her taking the prescription Bupropion. Dr. Snyder did not address the positive test for methamphetamine or identify any other medications, beside Bupropion, that would result in the positive test. Dr. Snyder's Curriculum Vitae did not indicate any certifications or education in Toxicology beyond holding a medical license. (Exh. 4, v. V, pp. 781-788).

The matter was taken to a Hardship Hearing on August 24, 2015, before Administrative Law Judge Robert J. Dierkes. Judge Dierkes found the bilateral carpal tunnel syndrome to be compensable. In addition to ordering Clarcor to provide treatment, Judge Dierkes ordered temporary total disability benefits at the rate of $504.00 per week until such time as Employee is able to compete in the open market for employment, or until such time as the Employee's condition reaches maximum medical improvement, or until Employee's death, or until 400 weeks of TTD benefits have been paid, or until further Order of an Administrative Law Judge of the Missouri Division of Workers' Compensation, whichever shall first occur. Judge Dierkes denied Employee's request for fees and costs under Section 287.560, RSMo.

Employee was sent to Dr. Matthew Concannon for further treatment. Dr. Concannon initially evaluated Employee on January 11, 2016. (Exh. A, p. 41). He released Employee to work without restrictions until surgery on the left wrist. The left carpal tunnel release was performed January 22, 2016. (Exh. A, p. 36). Following surgery, Employee was placed on light duty restrictions of pen/pencil; knife/fork; keyboard activity (light duty only, no lifting) left hand. Starting February 1, 2016, restrictions would be eased to no lifting greater than 5 pounds. (Exh.

W0-22-81 (6-81)

Page 13

A, p. 56). On February 12, 2016, Dr. Concannon opined that Employee could return to work with no restrictions until her next surgery. (Exh. A, p. 54).

The right carpal tunnel release was performed by Dr. Concannon on August 19, 2016. (Exh. 8, p. 31). Dr. Concannon returned the Employee to light duty following surgery on August 20, 2016, with limitation of pen/pencil; knife/fork; keyboard activity (light duty only, no heavy lifting) right hand. (Exh. 8, p. 50). On September 9, 2016, the restrictions were eased to no lifting greater than 5 pounds with the right hand. Dr. Concannon opined that Employee could return to work with no restrictions. At that time, Employee was doing well and the pre-operative symptoms of pain and numbness were completely resolved. Dr. Concannon scheduled a followup for 4 weeks, at which time he expected Employee would be at maximum medical improvement (MMI). (Exh. 8, p. 27).

Employee returned to Dr. Concannon on October 7, 2016. (Exh. 8, p. 27). The doctor's report from that date indicates that Employee reported her pre-operative symptoms of "throbbing and burning" in the right hand had completely resolved, but she still had numbness in the entire hand any time she used it. She reported that since her last visit, the numbness returned. She also reported the index, long and ring fingers felt cold, which was new since the surgery. Dr. Concannon had no explanation as to why the numbness returned. He recommended a repeat EMG, but they had to wait until at least 6 months after the surgery. Dr. Concannon opined that Employee could continue to work with no restrictions on movement or activity.

Bilateral EMG studies were repeated in April 2017; the results indicated that the Employee's condition was improved and that the symptoms she had were likely representing residual effects of the carpal tunnel syndrome, but did not show either a recurrent or persistent compression of the nerve. (Exh. A, p. 69). Employee was seen for a final follow-up on April 28, 2017. At that time, her symptoms reportedly had substantially improved and Dr. Concannon noted her to be at MMI and released her to work without restrictions. (Exh. A, p. 64). In a May 5, 2017, report, Dr. Concannon rated Employee with two percent permanent partial disability (PPD) at the level of the right wrist and two percent PPD at the level of the left wrist. (Id). Dr. Concannon also stated that Employee would not require any further treatment (Id).

Employee submitted the written report of David T. Volarich, D.O., pursuant to the provisions of Section 287.210(7) RSMo. Dr. Volarich' s residency was in internal medicine and his Fellowship was in Nuclear Medicine. (Exh. 6, pp. 3-18).

Dr. Volarich evaluated Employee on June 27, 2017. Dr. Volarich opined that the repetitive nature of Employee's work was the primary and prevailing factor causing the bilateral carpal tunnel syndrome that required bilateral open carpal tunnel releases. In his opinion, Employee was at maximum medical improvement. He assessed 50 % permanent partial disability of the right wrist, 50 % permanent partial disability of the left wrist, and added a 20 % multiplicity factor due to the bilateral nature of the injuries. Dr. Volarich also recommended a vocational

**Employee:** Kathryn Crowley

**Injury No. 14-101480**

Evaluation to determine if Employee was able to return to work in the open labor market. If a vocational assessment could identify a job for which Employee was suited, or find that she could be retrained, he had no objection to Employee returning to work, with the following permanent restrictions:

1. She is advised on proper ergonomic use of the upper extremities and to avoid using the arms in an awkward or blind fashion.
2. She should minimize repetitive gripping, pinching, squeezing, pushing, pulling, twisting, rotatory motions, and similar tasks and limit to as needed.
3. She should avoid impact and vibratory trauma to the arms and use appropriate braces, anti-vibration gloves, support straps, and similar devices.
4. She should not handle any weights greater than two to three pounds with either upper extremity alone, particularly with the arms extended away from the body.
5. She should handle weights to tolerance with the arms dependent, close to the body, but in general, recommend no more than 10 pounds.
6. She is advised to continue a strengthening, stretching, and a range of motion exercise program for the upper extremities daily to tolerance.

Regarding future medical, Dr. Volarich stated that Employee should see her personal physician for any medical care required in the future. He did not identify any specific treatment that Employee might need, why she might need treatment, or state whether it was more likely than not that future medical treatment would be needed. (Exh. 6, pp. 3-18).

**Brian J. Divelbiss, M.D.**

In addition to the report of the treating physician, Dr. Concannon, Clarcor sent Employee to Dr. Brian Divelbiss for a second opinion on causation, permanent restrictions, and a permanency rating. Dr. Divelbiss is a board-certified orthopedic surgeon with a certificate of added qualification in hand surgery. Dr. Divelbiss estimates that he performs 100 to 150 carpal tunnel releases a year. (Exh. M, pp. 4-5, 56-59).

Dr. Divelbiss examined Employee on May 2, 2018, almost a year after Dr. Volarich's examination. He was deposed on February 24, 2020. Dr. Divelbiss reported that when he saw her, Employee's left hand "healed better." She still reported some numbness in her thumb, but no residual constant numbness in her fingers. She reported that there had been a complete resolution of her episodic painful numbness in the left hand. She also reported intermittent swelling in the left hand that she could not relate to any specific reason. Employee reported to Dr. Divelbiss that her right hand did not go quite as well. She reported frequent episodes of intermittent swelling and a sensation of a "heavy coldness" in the hand as well as persistent constant numbness in the median nerve digits and continued nighttime episodic numbness. Employee indicated that for a short time after surgery the episodic night symptoms seemed to go away but then they returned. Dr. Divelbiss also noted that the April 20, 2017, EMG indicated improvement in both hands, although they had not completely returned to normal. (Exh. M, pp. 16-19).

WC-72-R1 (6-81)

Page 15

**Employee:** Kathryn Crowley

**Injury No. 14-101480**

On exam, it was noted that Employee's grip strength averaged 10.7 pounds on the left side as compared to 10.3 pounds on the right side. Dr. Divelbiss noted, however, that Employee had significantly elevated coefficients of variance which is indicative of poor volitional effort. In comparison, Employee's grip strength measured 20-30 pounds bilaterally by Dr. Volarich. (Exh. M, pp. 16-18).

Dr. Divelbiss' opinion was that Employee's long-term exposure to her repetitive job activities was the prevailing cause for her bilateral carpal tunnel syndrome. He rated Employee with five percent permanent partial disability on the left hand and ten percent permanent partial disability on the right hand, due to her persistent symptoms. Given that postoperative nerve studies showed improvement in her electrodiagnostic indices, additional surgical management was unlikely to be helpful according to Dr. Divelbiss. (Exh. M, pp. 19-21).

In his deposition, Dr. Divelbiss testified that 95-plus percent of the time numbness goes completely away after carpal tunnel surgery. (Exh. M, p. 11). It is not all that common for people to have significant limitation of their grip strength and it would be unusual for it to affect their range of motion. (Id.). In his report, Dr. Divelbiss opined that no permanent restrictions would be necessary. In his deposition, Dr. Divelbiss clarified that he did not think anything from an activity standpoint was going to damage the nerves, so he did not feel any need for permanent restrictions (Exh. M, p. 21). In Dr. Divelbiss' practice, it is very unusual to have permanent restrictions for carpal tunnel syndrome. (Id.)

On cross-examination, Dr. Divelbiss was asked if Employee could perform a job description that required "repetitive use: Hands, gross dexterity. Finger, fine dexterity and frequency of repetition." Dr. Divelbiss responded that the diagnosis of carpal tunnel syndrome and those deficits would not prevent her from performing that activity. (Exh. M, p. 26). When asked if numbness would prevent fine dexterity, Dr. Divelbiss clarified that sensation and motion are unlinked and not the same thing. Numbness affects the ability to sense, but it does not affect the motion of the digits. Numbness would not prevent pinching and grasping activities because they are primarily motion-related activities.

Dr. Divelbiss further testified that Employee's two-point discrimination test, which indicates the degree of numbness, was between 6 and 10 millimeters. Anything below 6 is completely normal. 6 to 10 is "kind of mild, mild to mild-to moderate type of two-point sensibility loss." Dr. Divelbiss testified that if someone with a two-point discrimination from 6 to 10 millimeters picked up a tool, they would be able to feel it. (Exh. M, p. 33). According to Dr. Divelbiss, if someone was completely anesthetic, he would not recommend that they work a drill press or climb a ladder due to safety issues.

**Dr. A.E. Daniel, M.D.**

Employee submitted the independent medical examination report of Dr. A.E. Daniel. (Exh. 6). The doctor evaluated Employee on September 26, 2017, and October 31, 2017, for the purpose of diagnosing any mental health condition, and issuing opinions on causation, treatment, disability, and permanent restrictions.

WC-22-01 (6-81)

Page 16

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kathryn Crowley

Injury No. 14-101480

Dr. Daniel noted that Employee reported she had experienced depression for the previous six years contemporaneous with her carpal tunnel symptoms of pain and swelling of her hands. Dr. Daniel also noted that her depression was related to her conflict with her husband who had been having an affair with one of her co-workers for several years. Dr. Daniel noted that Employee considered herself a role model in her small community and she "wanted to hide" herself. The people with whom she worked gradually left her and she felt rejected. Employee reported that her depression improved a while but worsened after her termination, coupled with continued struggles with workers' compensation. Dr. Daniel commented on his mental status examination that Employee's mood was moderately depressed with corresponding depressed and constricted affect. She was tearful during the interview, particularly when she talked about her termination from work. (Exh. 6, p. 23).

Dr. Daniel diagnosed Employee with Major Depressive Disorder, Moderately Severe, Chronic. His diagnosis also listed "Contextual Factors - unemployment & premature Termination from Employment." Dr. Daniel noted that many patients with carpal tunnel syndrome suffer from Depressive Disorder. In his causation opinion, Dr. Daniel opined that Employee's major depressive disorder, by virtue of the fact it was contemporaneous with carpal tunnel syndrome, is the prevailing factor for Employee's Major Depressive Disorder. Dr. Daniel identified Employee's divorce and termination as contributing factors. In Dr. Daniel's opinion, Employee had reached maximum medical improvement from a psychiatric perspective and rated her with permanent partial disability of 30% to the body as a whole. Dr. Daniel further opined that Employee could not compete in the open labor market due to her psychiatric limitations coupled with her physical limitations. (Exh. 6, p. 25).

Dr. Daniel's deposition was taken on June 25, 2018, at the request of Employer. (Exh. O). Dr. Daniel is a psychiatrist who devotes approximately five to ten percent of his practice to performing evaluations on legal matters. Of those evaluations, approximately 80% are performed on behalf of employees or plaintiffs.

Dr. Daniel testified that his rating of 30% of the body as a whole was the disability caused by Employee's Major Depressive Disorder globally. Dr. Daniel used his experience and guidelines of permanent impairment from the Social Security Administration to reach his assessment. (Exh. O, pp. 13-14). Dr. Daniel testified that prior to Employee's injury there was no cause-and-effect documentation between Employee's hand pain and her depression. (Exh. O, p. 17). Dr. Daniel admitted that Employee's termination was pretty traumatic towards her mental state. He also admitted that the alleged false accusation, the false positive test itself, was causing some of her depression. (Id.) Dr. Daniel believes the carpal tunnel syndrome was the prevailing factor in causing Employee's depression because it occurred at the same time as her depression. (Exh. O, p. 20). After being presented with a medical record from an October 17, 2008, visit to Dr. Herrmann where Employee reported her mood was much better after taking Prozac, Dr. Daniel agreed that Employee had a depressed state at least in October 2008. Dr. Daniel also admitted that the October 17, 2008, report from Dr. Herrmann made no mention of hand symptoms or carpal tunnel-like symptoms. (Exh. O, p. 23). Counsel for Employer went through multiple records of Employee visiting her family physician for management of her antidepressant medications, as well as her thyroid condition and other health issues. Dr. Daniel admitted that no other providers, other than himself, reported that Employee was feeling down

W0-22-81 (6-81)

Page 17

Employee: Kathryn Crowley

Injury No. 14-101480

because her wrists were hurting. (Exh. O, pp. 23-33). Dr. Daniel admitted that there were multiple factors for Employee's depression. She had the problem of her divorce, then the termination from her job, and in Dr. Daniel's opinion, "the carpal tunnel syndrome would add to the - her depressed mood." Dr. Daniel admitted that the Employee never told him she was depressed because her wrists were hurting her. (Exh. O, pp. 41-42). When asked if Employee's carpal tunnel syndrome was a greater factor in her depression than her termination for a positive drug test, Dr. Daniel responded, "I think they would have equal weight." (Exh. O, p. 47).

Dr. Daniel testified that depression is caused by a chemical imbalance in the brain and that anti-depressants adjust the balance. (Exh. O, pp. 44-45). Dr. Daniel stated that some people naturally have a chemical imbalance in their brain which causes them to be depressed. (Exh. O, pp. 45-46).

Dr. Daniel also provided a copy of a questionnaire for forensic examination, which was submitted as Exhibit 8 to the deposition. Under the section for "problems or concerns", Employee indicated: "Working too many hours, marriage problem, problem at work, getting fired, losing custody of my son, no money, creditors, seems like I broke the biggest mirror of my life and sentenced the full seven years." There was no mention of the pain or swelling in the Employee's wrists as causing her to be depressed. (Exh. O, pp. 51-53). In response to the question "Have you experienced any mental or nervous problems in the last month?", Employee marked "yes" and responded, "I have no money. Boyfriend had been trying to help me and doing some scraping to help me pay bills. Now the city has-has done something about a year before my marriage fell apart." There was no mention of problems with her hands being related to her mental or nervous problems. (Exh. O, pp. 51-53). When asked about physical problems on the questionnaire, Employee did state "don't have any strength in my hands to do things that I used to before I was fired". Other than that question, Dr. Daniel agreed that there was no indication on the questionnaire that Employee gets depressed or cries because her hands hurt or because of swelling. (Exh. O, pp. 51-53)

Dr. Daniel admitted that none of the records or the questionnaire that was completed by Employee indicated that she was depressed or crying because of her hand pain, numbness, or swelling. Dr. Daniel admitted that the only connection between the carpal tunnel symptoms and psychological state was that, in his opinion, they correlate and happened at the same time. (Exh. O, p. 52).

When specifically asked by Employer's counsel if it was still his opinion that the carpal tunnel symptoms were the prevailing or primary factor in causing the Major Depressive Disorder, Dr. Daniel responded, "it is a major factor." When pressed if it was the prevailing factor, Dr. Daniel stated, "I still believe it is a primary factor in spite of all of the other factors that - I think because-see, she was doing this job for 32 years and she was terminated on a false pretense and the employer has done some harm to her in that context, so I do believe that the CTS is the prevailing factor." When pressed further about whether the carpal tunnel syndrome was the primary factor to any other factor, Dr. Daniel stated "Any other factor, see, all other factors are equal irrelevance here, so my answer would be no." (Exh. O, p. 53).

**Injury No. 14-101480**

On cross-examination by Employee's counsel, when asked if Employee's occupational exposure with Employer was the primary factor in relation to any other factor, Dr. Daniel responded yes. Then in follow-up answers to additional questions from Employee's counsel, Dr. Daniel stated that it was more than the divorce, more than the termination, and more than the false positive on the drug test. (Exh. O, pp. 61-62).

On cross-examination from counsel for the Second Injury Fund, Dr. Daniel stated that his 30% disability rating also encompassed the psychological symptoms attributable to Employee's termination. On re-cross examination, Dr. Daniel further stated that the permanent restrictions he assessed also included the effects of the termination. (Exh. O, p. 68).

Employer sent Employee to see Patrick L. Hughes, M.D., for a psychiatric evaluation on July 19, 2018, for the purpose of diagnosis, causation, and disability determination. Dr. Hughes is a board-certified psychiatrist practicing clinical psychiatry. He authored a report and provided deposition testimony. (Exh. N)

Dr. Hughes noted Employee reported to him that she never experienced any depression symptoms until "my marriage broke up" in 2012, then grudgingly acknowledged "maybe I did start taking medicine in 2008, but that's because my husband and I separated in 2009". Employee also reported that the duloxetine [Dr. Hughes later clarifies in his deposition that it was Fluoxetine, not duloxetine] did not help her and neither did the Celexa, which was inconsistent with the medical records. Employee reported that when she was fired from her job, the depression "got really bad again and I haven't come out of it since." Employee reported that she does not go anywhere, even to visit people "because I don't have any money and I don't have any place to go." When asked about her sleep, appetite and energy levels, she stated "they haven't been too bad, I guess." (Exh. N, p. 83).

Dr. Hughes diagnosed Employee with Dependent Personality Disorder (due to being raised by a struggling single mother with no contact with her father between the ages of 12 and 24) and Major Depressive Disorder. The doctor stated that the Major Depressive Disorder clearly developed at least by 2008 and preceded any carpal tunnel symptoms. The Major Depressive Disorder was absent in the summer of 2014 and did not recur until December 2014 (after she was terminated). Dr. Hughes further stated that, at the time of the examination, Employee related virtually no active symptoms of true Major Depressive Disorder, which was consistent with her taking a half dose of Bupropion XL. Dr. Hughes stated that Employee should re-consult with her family doctor and up the dose of Bupropion to the standard full therapeutic dose, but clarifies that the need for continued anti-depression medication is not causally related to the workplace repetitive injury. He stated that "any true minimal lingering psychiatric disability still present could not be attributed in any medically credible way to her CTS symptoms." (Exh. N, p. 84).

Dr. Hughes' deposition testimony was consistent with his report. Dr. Hughes further clarified that the psychiatric *Diagnostic and Statistical Manual of Mental Disorders-V*, does not list carpal tunnel syndrome as one of the medical causes for depression. Dr. Hughes also

**Employee:** Kathryn Crowley

**Injury No. 14-101480**

clarified that the actual ongoing symptoms of clinical depression are sleep, appetite, and energy levels. He noted that when Employee was asked about those conditions, she responded, "they haven't been too bad, I guess." (Exh. N, pp. 18-19). Dr. Hughes also looked at his notes and Employee herself did not attribute her alleged depression to her carpal tunnel syndrome during their interview. (Exh. N, pp. 19-20). Regarding causation, Dr. Hughes testified that most contemporary psychiatrists are confident that Major Depressive Disorder itself is caused by a gene that people inherit, which turns on episodically, most commonly very late in one's teens or early 20's and generates problems in the serotonin and norepinephrine neurotransmitter system and those neurotransmitter disturbances generate pathological anxiety, clinical depression symptoms, or both. (Exh. N, p. 23).

On cross-examination, Dr. Hughes testified that the Dependent Personality Disorder has not been an obstacle or hindrance to Employee's ability to work. (Exh. N, p. 35). Dr. Hughes opined that if an episode of major depression is moderately severe to severe, many people cannot work through that. (Exh. N, p. 42). If an episode is active and with significant symptoms, it would be a major hindrance to being able to get a new job. Dr. Hughes also opined that the Employee was not experiencing an episode of Major Depressive Disorder at the time of his evaluation. (Exh. N, p. 55)

**John Vasiliades, Ph.D.**

Employer retained John Vasiliades, Ph.D., a toxicologist, as an expert to assess Employee's positive drug test. Dr. Vasiliades has a Bachelor's Degree in Chemistry, a Doctorate in Chemistry, a Fellowship in Analytical Chemistry, and a Fellowship in Clinical Chemistry and Toxicology. His experience includes working as an instructor and Assistant Professor of Pathology at the University of Alabama-Birmingham, as the Director of the Clinical Chemistry Laboratory at the University of Michigan, and as Associate Professor of Pathology at Creighton University. He has also served as the First Chief of Quality Assurance for the Air Force drug testing program and for the Department of Defense. Dr. Vasiliades is board certified in toxicology and forensic toxicology. (Exh. K)

Dr. Vasiliades testified that when someone takes methamphetamine, it is absorbed into the bloodstream. Once it is in the body, it goes to the liver and the parent compound, methamphetamine, will be metabolized, or broken down to another product. (Exh. K, p. 14). Methamphetamine is metabolized to amphetamine. As the body starts metabolizing methamphetamine and amphetamine, the same drugs will be seen in the blood and urine. (Id., at p. 15). Normally, unless someone takes methamphetamine, you will not see both methamphetamine and amphetamine in the person's urine. (Id.).

He explained that when someone takes methamphetamine, you will see methamphetamine and amphetamine in the urine with the concentration for amphetamine being between 5% and 20% of the methamphetamine concentration. (Id., at pp. 15-16). If someone is taking both methamphetamine and amphetamine, you will see methamphetamine and then also amphetamine, but the amount of amphetamine in the urine will be much higher than if the person was taking only methamphetamine. (Id., at p. 16). According to Dr. Vasiliades, the way to

**Injury No. 14-101480**

identify that a person is taking the two drugs versus just pure methamphetamine is by looking at the concentration of the two drugs in the urine.

In forensic work, Dr. Vasiliades explained that to be 100% certain that there are no false positives, two independent methods of analysis are utilized. (Id., at p. 17). First, a screening method to identify whether the drug is there is used, and then a secondary method is used to confirm the presence of the drug. (Id., at pp. 17-18). If you use two independent methods of analysis - screening and confirmation - there should never be a false positive report. (Id.)

Dr. Vasiliades looked at the LabCorp litigation package (Exh. D), which contains all the information related to testing of Employee's sample at the laboratory (Exh. K, pp. 20-21). Dr. Vasiliades reviewed the chain of custody for the sample and opined that the lab did follow the proper chain of custody for the test. (Exh. K, p. 21). The LabCorp litigation package documents that they did a screening by immunoassay and then confirmation testing by GC-MS. (Id., at p. 24).

Dr. Vasiliades explained that methamphetamine has two isomers, a D isomer and an L isomer (Id., at p. 25). D-methamphetamine is the illegal form and L-methamphetamine is the legal form. L-Methamphetamine can be purchased at a local Walgreens store or Wal-mart in a product such as Vicks inhaler. Because the LabCorp test was a methamphetamine sample, a third test was performed to show that the illegal form of methamphetamine was present in the urine sample. (Id., at pp. 25-26). In the Employee's sample, the concentration of D-methamphetamine, the illegal form, was 90-95 percent. (Id., at p. 26). Dr. Vasiliades testified that this means Employee took the illegal form of methamphetamine in the body. (Id., at pp. 26-27). The doctor also testified that no other substances, other than the illegal form of methamphetamine, could lead to the results found in the Employee's sample.

Dr. Vasiliades also commented in his deposition that Employee's test results were a very interesting case because she had a concentration of D-methamphetamine of 1,540 nanograms per ml, and an amphetamine concentration of 1,556 nanograms per ml. (Exh. K, p. 37). Dr. Vasiliades testified that normally, if one is just using methamphetamine, the amphetamine concentration runs between five and 20 percent. For example, if someone had only taken D-methamphetamine and they have a urine sample where D-methamphetamine is 1,000 nanograms per ml, and their amphetamine was 10 percent of the D-methamphetamine, you would expect to see 100 nanograms of amphetamine in the urine. In Employee's case, since the concentration of amphetamine is 1,556 nanograms per ml and the concentration of D-methamphetamine is 1,540 nanograms per ml, this would indicate that Employee did not just take methamphetamine, but also amphetamine, because the concentration of amphetamine is almost equivalent to the concentration of methamphetamine. (Exh. K, 37-38). Dr. Vasiliades testified that in this case, if Employee had only taken D-methamphetamine, you would expect the amphetamine in the urine to be around 10 percent of the D-methamphetamine, or 154 nanograms. (Exh. K, at 71). According to Dr. Vasiliades, Employee's urine sample had 1,400 nanograms of amphetamine that did not come from taking D-methamphetamine.

Dr. Vasiliades testified that he reviewed the raw data himself and based on that data not only did the Employee take methamphetamine, the illegal form, but she also took amphetamine.

WC-32-81 (5-81)

Page 21

**Injury No. 14-101480**

(Exh. K, 38-41). In Dr. Vasiliades' opinion, there was no false positive on this test. (Exh. K, p. 42). He explained that Bupropion can cause a false positive for amphetamine in the screening test, but not on the subsequent confirmation test. (Exh. K, p. 81). Per Dr. Vasiliades, the only way that you test positive for D-methamphetamine is to take D-methamphetamine. (Exh. K, p. 81). Dr. Vasiliades testified that it is almost impossible that the results of Employee's methamphetamine and amphetamine testing were the result of taking Bupropion.

On cross-examination, when asked about therapeutic dosages, Dr. Vasiliades testified that when amphetamine or methamphetamine are used for therapeutic purposes, the dosage that is prescribed is "much, much lower" and the normal blood concentrations run around 200 nanograms per ml. (Exh. K, pp. 54-55). People who abuse drugs normally use 100, 200 milligrams to get high. For therapeutic dosages for amphetamines, normally doctors give anywhere from 10 to 60 milligrams. If you are using therapeutic amounts of amphetamines, the blood concentration is around 200 nanograms per ml. (Exh. K, p. 56). On cross-examination, Dr. Vasiliades also testified that what was seen in the Employee's test results was about one percent of what was seen in people who are chronic users in a study. (Exh. K, pp. 60-61). However, in Dr. Vasiliades' experience, the test results for a recreational user could be anywhere from 1,000 nanograms to 200,000 nanograms per ml. It all depends on the individual, how much they took, and when the urine was collected. Dr. Vasiliadis testified that "there's no question [Employee] took D-methamphetamine. How much she took and when she took it, that I do not know." (Exh. K, p. 67).

Dr. Vasiliadis testified that it depends on how much you take, but a recreational dose of D-methamphetamine will show up in the urine screen for maybe 72 hours. (Exh. K, p. 82). The more time that has passed since the person has taken the D-methamphetamine, the lower the levels will show. In terms of prescription forms of amphetamine, there is Adderall. There are prescription forms of D-methamphetamine. They would be listed in the Physician's Desk Reference. (Exh. K, p. 83). Bupropion is not one of the drugs that would be a prescription form of D-methamphetamine. There are no over-the-counter drugs, foods, or drinks that could be consumed that would test positive for D-methamphetamine.

Employee retained Kristine Skahan for a vocational evaluation, which was performed on February 12, 2017. (Exh. 7). Ms. Skahan has a Master's in Counseling and is a Certified Rehabilitation Counselor. Ms. Skahan performs vocational assessments for workers' compensation, personal injury, medical malpractice, divorce, Railroad Retirement Board, and Social Security Disability cases. In addition, she assists private clients with job placement, job coaching, and career counseling.

Ms. Skahan reported that Employee drove herself to the appointment, which was an hour drive. Ms. Skahan reported that when Employee arrived, she appeared to be tired and had slow speech. She had difficulty sorting through papers and her fingers on both hands were swollen to the point that she could not bend them. Ms. Skahan also reported that Employee had trouble gripping her pen during the examination. Ms. Skahan reviewed the medical reports of Dr. Volarich, Dr. Daniel, and Dr. Snyder. She did not review the reports of Dr. Divelbiss or Dr.

Employer: Kathryn Crowley

Injury No. 14-101480

Hughes. Ms. Skahan noted that Employee completed the 11th grade before leaving school to find work and help her mother care for her younger siblings. She did not graduate from high school. She reportedly took GED classes for 2 years through her church but did not take the test because the church stopped teaching the classes. Ms. Skahan reported that Employee worked as a sewing machine operator at a garment factory from 1980 to 1983. In 1983, she started working for BHA, which was the predecessor to General Electric and Clarcor.

Ms. Skahan performed vocational testing. According to Ms. Skahan, Employee scored at the 8.6 grade level for word reading, at the 7.9 grade level for sentence comprehension, at the 6.3 grade level for spelling, and at the 5.9 grade level for math computation.

Regarding activities of daily living, Employee reported that she can put things in the oven but avoids cooking large meals. She can load and unload the dishwasher but cannot lift heavy pots and pans. She completes light cleaning around the house. She does not go out often. She can do small loads of laundry and fold clothing, but her daughter assists her with larger loads. Employee reported that it is difficult for her to button shirts or pants because of her hands. She reported that it hurts to wash her hair and it takes a great deal of time to get ready because she cannot get her hands to work for the first few hours she is awake. She used to walk for exercise but has stopped. She is currently physically de-conditioned and cannot walk a half block without getting winded. Employee reported to Ms. Skahan that she does not believe she could work an eight hour day or a 50-hour week due to pain and weakness in her bilateral wrists. Employee believes she could not perform the medium-level lifting of her past job due to weakness in her hands. Employee also reported that her past work required intense concentration, multi-tasking, and fast production pace, and Employee did not think she had the concentration and ability to do that as a result of her mental health problems.

Employee reported that she could not do the amount of typing, filing, assembling, and other activities required for sedentary desk work. Employee reported that she cannot manipulate small items over the day without increases in right and left wrist pain and swelling. Ms. Skahan noted that this was consistent with the right wrist pain complaints during testing, where the Employee needed a break after 10 minutes of writing. Employee also reported that she could not do a sedentary office job due to her lack of office experience, lack of computer skills, and lack of knowledge regarding office processes. Employee reported daytime fatigue and needing to take 1-2 naps per day because of sleep problems. Employee also reported she would have problems communicating with people as a result of her depression, adding that she prefers to be home alone.

Ms. Skahan performed a transferable job skills assessment and identified transferable skills. In Ms. Skahan's opinion, Employee would not have any significant transferable skills that would allow her to compete favorably with other workers in the competitive labor market. Ms. Skahan also opined that Employee lacked the vocational profile that would be needed by an employer seeking candidates for a sedentary office type job. Ms. Skahan reviewed the restrictions outlined by Dr. Volarich and concluded that Employee is currently functioning in the less than sedentary category. (Exh. 7, p. 37). In addition, the psychiatric restrictions from Dr. Daniel would further limit her ability to work in the competitive labor market.

WIC-32-81 (6-81)

Page 23

Injury No. 14-101480

In her conclusion, Ms. Skahan opines that considering all of the physical and psychiatric restrictions placed by Dr. Volarich and Dr. Daniel, as well as Employee's work history, Employee has a total loss to the open labor market. (Exh. 7, p. 51). In her deposition, when asked by Employee's counsel, "If a person with a less than sedentary physical presentation with the same presentation of Ms. Crowley, same interview history, subjective history, educational history, vocational scoring, transferable job skill analysis, all of those things, --just in a less than sedentary condition and that's all you know, would you consider that individual to be employable in the open labor market?" Ms. Skahan responded "No." (Exh. 7, p. 48). Ms. Skahan testified that Employee's crying in the workplace would also be problematic. (Exh. 7, pp. 51-52). Ms. Skahan testified that when looking at the two sets of restrictions, psychiatric and physical, she thinks that those alone and in combination would take Employee out of work, when applying them vocationally. (Exh. 7, p. 52).

On cross-examination, Ms. Skahan admitted that she is not a medical expert and that her observations of pain and swelling are simply observations and discussion and she is not qualified to determine if those were related to the work accident. (Exh. 7, p. 54). Ms. Skahan testified that she did not perform an actual job search for available jobs. (Exh. 7, p. 58). She also admitted that the restrictions placed on Employee were only related to the upper extremities and not sitting, standing, or walking, and yet she limited her vocational assessment to sedentary jobs only. Ms. Skahan admitted that there are security positions, in the light duty category, that would only require wiring the police if somebody came to the premises and would not require restraining. (Exh. 7, p. 60). A parking cashier would only require her to sit, stand, or just cashier. Also, a convenience store clerk would only require Employee to just cashier. (Exh. 7, p. 61). Ms. Skahan admitted that she did not consider such jobs in her search. Regarding the crying spells, Ms. Skahan asked Employee "what causes them". Employee reported that her crying spells were caused by her increased stress levels, financial difficulties, and inability to work. (Exh. 7, p. 64). She did not report that the crying spells were due to pain in her hands.

Ms. Skahan admitted that she did not review the medical reports of Dr. Concannon. She further admitted that her opinion on employability was based on the most severe restrictions that she found in the reports given to her. (Exh. 7, p. 65). On cross-examination by the Second Injury Fund, Ms. Skahan testified that it would be very difficult to find full-time, sedentary unskilled work in the labor market based on the 10-pound restriction alone. (Exh. 7, p. 69). Ms. Skahan also testified that the fact Employee lived in Saline County would make it even more difficult. On re-direct, Ms. Skahan testified that gas station cashiers typically require re-stocking and frequent use of upper extremities.

Employer retained Michelle Sprecker to perform a vocational assessment of Employee. Ms. Sprecker is a Certified Rehabilitation Counselor and holds a Master of Science in Rehabilitation Counseling and a Bachelor's in Psychology. Ms. Sprecker testified by deposition. (Exh. L).

Ms. Sprecker met with Employee on December 11, 2018, for just about two and one-half hours, for the initial interview. Employee also participated in a vocational evaluation for just

**Injury No. 14-101480**

over an additional hour. (Exh. L, Deposition Exh. 2). Transportation was arranged by the insurance carrier to bring Employee from her home to the appointment. Employee reported that she does have a Missouri driver's license and her own source of reliable transportation however, at the time of the evaluation, her vehicle had a flat tire.

Employee reported that she gets up at 9:00 am and is able to shower without difficulty. She reported that, when dressing, she has some difficulty with buttoning, and tries to avoid such. She wears slip on shoes and denies any other difficulty with showering, dressing, grooming, styling her hair, or putting on make-up. Employee reported doing some cooking and reported having difficulty doing the dishes. Employee also reported performing limited vacuuming. She reported watching television and does not nap during the day. This is in direct contrast to what Employee reported to Ms. Skahan. Employee reported averaging five to six hours of sleep per night. Employee reported not having a home computer. She recently got a smartphone and can try to search the internet via her phone.

Employee reported that she had been experiencing carpal tunnel syndrome symptoms for "a long time". She also reported that prior to her date of injury, for "many years" she had experienced numbness in the left thumb. Employee reported that she began experiencing depression while she was in the process of getting a divorce in 2012. She reported that her depression had worsened since she stopped working.

Employee reported to Ms. Sprecker that the right carpal tunnel release improved the tingling and numbness in her fingers. Employee further reported that the right upper extremity continues to fall asleep to the point she loses sensation. The numbness is constant but becomes more severe at times, such as when she is writing. She also reported soreness in the right forearm and throbbing across the back of the right palm. Employee reported experiencing discomfort in the left upper extremity but on a less frequent basis. Employee reported she is able to lift 2-3 pounds away from her body, with either upper extremity, but it will be a "strain". She also reportedly was able to lift up to ten pounds close to the body. She reported being able to lift a gallon of milk with both hands.

Ms. Sprecker reviewed the permanent restrictions of Dr. Szewczyk, Dr. Snyder, Dr. Concannon, Dr. Volarich, Dr. Divelbiss, Dr. Daniel, and Dr. Hughes. She noted that Dr. Szewczyk, Dr. Concannon, Dr. Divelbiss, and Dr. Hughes did not impose any permanent work restrictions and, therefore, Employee would be able to return to her pre-injury positions.

Ms. Sprecker's report on the Employee's educational background was consistent with what was reported by Ms. Skahan, and by the Employee's testimony. Ms. Sprecker also reported a vocational history similar to that reported by Ms. Skahan but provided greater detail regarding the positions held at BHA/GE/Clarcor. Ms. Sprecker opined that based on Employee's training and work history, she has demonstrated the ability to perform semi-skilled work.

Ms. Sprecker also performed a Wide Range Achievement Test- Revision 4 (WRAT4) and The Wonderlic Personnel Test (WPT). On the WRAT, Employee scored word reading at the 10.3 grade level, Sentence Comprehension at the 9.2 grade score, spelling at the 8.6 grade score, and Math computation at the 7.3 grade score. (Exh. L, p. 17). These scores were higher than

WC-73-81 (b-81)

Page 25

**Employee:** Kathryn Crowley

**Injury No.:** 14-101480

What Ms. Skahan reported. On the initial Wonderlic Personnel Test, Employee scored a 17, which is equivalent to a 95 WAIS Full scale I.Q. or at the average range. Employee reported feeling that the discomfort she experienced in her hands impacted the pace at which she was able to answer questions. Therefore, she was allowed to complete the evaluation on an untimed basis. On an untimed basis, the employee scored a 20, which is equivalent to a 100 WAIS Full Scale I.Q or at the average range. (Exh. L, pp. 19-20).

When asked about her thoughts about returning to work, Employee reportedly commented to Ms. Sprecker: "I don't think I can do it mentally and physically." Employee has not looked for alternate employment nor submitted any employment applications. Employee also reported that, should she be able to return to work, she would not be willing to consider employment that pays less than $18.00 per hour within 2 blocks of her home. She is not willing to relocate. (Exh. L, p. 21).

Ms. Sprecker commented on the employability of Employee under the restrictions by Dr. Snyder, which were identified as no repetitive activities with the left upper extremity. Ms. Sprecker searched for and identified positions that Employee would be able to perform under those restrictions. Some of the positions she identified were store cashier, customer service associate at Walgreen's, retail cashier, security officer, crew member at fast food restaurants, and a host at Applebee's. (Exh. L, p. 25). Positions identified were located in Marshall, Sedalia, Moberly, and Fayette (within a 50-mile radius). It should be noted however, that Dr. Snyder's restrictions were issued prior to the bilateral carpal tunnel surgeries. (Exh. L, pp. 32, 45-46).

Ms. Sprecker reviewed the restrictions issued by Dr. Volarich and opined that based on those restrictions, Employee would not retain the physical ability to return to the open labor market and would be permanently and totally disabled. Ms. Sprecker also commented that Dr. Daniel essentially stated that Employee is not able to compete in the open labor market due to her psychiatric condition.

On cross-examination, Ms. Sprecker testified it is not likely that Employee would retain the ability to work in a first line supervisory position. (Exh. L, p. 41). Based on the Wonderlic score and intellect score, Employee would be able to run routinized equipment like general office equipment, if she was working as an office worker. *Id.*

The Employee in a workers' compensation case has the burden to prove all the essential elements of the claim, including the causal connection between the injury and work. *Jefferson City Country Club v. Pace*, 500 S.W. 3d 305, 313 (Mo.App., W.D. 2016). The Employee does not have to establish the elements of the case on the basis of absolute certainty; it is sufficient if the Employee shows them by reasonable probability. *Moreland v. Eagle Picher Techs., LLC*, 362 S.W.3d. 491, 504 (Mo.App., S.D. 2012). Probable means founded on reason and experience, which inclines the mind to believe but leaves room for doubt. *Id.* (citations omitted). The burden of establishing any affirmative defense is on the employer. §287.800 RSMo. Administrative Law Judges shall weigh the evidence impartially without giving the benefit of the

WG-32-81 (6-81)

Page 26

**Employee:** Kathryn Crowley

**Injury No. 14-101480**

Doubt to any party when weighing evidence and resolving factual conflicts, and are to strictly construe the provisions of Chapter 287, RSMo. §287.800 RSMo.

The calculation of the average weekly wage is governed by §287.250 RSMo., which provides that where wages are fixed by the hour, the average weekly wage is computed by dividing by 13 the wages earned during the last 13 calendar weeks immediately preceding the week in which the employee was injured. If an employee misses five or more scheduled work days, even if not in the same calendar week, the number that the total gross wages is divided by is reduced by one week for every five calendar days missed.

No pay stubs or a true wage statement were introduced into evidence. However, Employer used its time-keeping system to determine the number of hours Employee worked prior to the date of injury and entered them into a spreadsheet. (Exh. G). The spreadsheet broke Employee's hours out by calendar day each week. Ms. Twenter testified that Employee was paid by Employer on the days that she took vacation or holidays. She was not paid for the time marked absent. There are 14 weeks of wages included in the spreadsheet. Ms. Twenter testified that Employee was making 20.00 per hour on the date of injury. Employee had testified she was making 19.00 per hour.

During the 13 weeks immediately preceding the date of injury, Employee missed 11 regularly scheduled work days for which she was not paid. This does not include days for which Employee did not work her full shift. Based on the statute, the total gross wages for the 13-week period would be divided by 11, instead of 13. For the 13 weeks preceding the date of injury, gross wages total 8,648.60. Using 11 as the divisor, the Average Weekly Wage is 786.24. The resulting compensation rate is 524.16 for temporary total disability and 451.02 for permanent partial disability.

I find the information from Employer's spreadsheet is credible. The average weekly wage is 786.24 and the compensation rate is 524.16/$451.02.

After reporting in October 2014 that she thought her carpal tunnel symptoms were work-related, Employee was moved to a light duty position as a result of restrictions placed on her by her personal physician. The light duty position was gasket wrapping and involved wrapping and removing tape from metal gaskets. On November 19, 2014, Employee reported an injury to her left wrist that occurred while pulling tape off a gasket.

Based on the Employer's documentation of the incident of November 19, 2014, Employee's assertions at the time that this was not the same as her carpal tunnel symptoms, and Employee's testimony at the Temporary Hearing, I find that Employee had an acute injury on November 19, 2014, to her left wrist.

WIC-32-R1 (6-01)

Page 27

**Injury No. 14-101480**

Clarcor's employment policies included drug testing after acute injuries which required an employee to be sent for treatment other than through the plant nurse. Clarcor arranged for Employee to be seen by Dr. Szewczyk for this left wrist injury. Janice Harris, HR Manager in November 2014, considered the incident of November 19, 2014, to be an acute injury and Employee was taken for a drug test. Based on testimony from both Ms. Harris and Denise Gordon, Employee was told to reveal any prescriptions she was taking to the medical providers conducting the drug test. Employer's drug policy also provided an avenue for employees to contest a positive drug test by supplying any pertinent medical records.

Employee tested positive for both methamphetamines and amphetamines. She was surprised at the results and discussed same with Ms. Harris. Because she was a long-time employee, Clarcor had a second test performed on the same sample, by a different lab. The results were the same. Employee never provided any medical records suggesting her positive test results were related to any medications she was taking or to any medical condition she might have had. Based on the positive drug test, Employee was terminated under Clarcor's drug policy.

In his October 5, 2015, Temporary Award, Judge Dierkes found that Employee had been unable to compete in the open labor market since November 21, 2014, and awarded back temporary total disability benefits and additional temporary total disability benefits. He also held that, because of this finding, the alleged positive drug test had no legal significance. He went on to find that the drug test was almost certainly a "false positive" due to Employee's use of the prescription drug, Bupropion. At the Temporary Hearing, there was no evidence from any toxicology expert. Because such evidence was presented at this final hearing, the issue of post-injury misconduct must be re-visited.

**Section 287.170.4, RSMo. states in pertinent part:**

> If the employee is terminated from post injury employment based upon employee's post injury misconduct, neither temporary total disability nor temporary partial disability benefits under this section, section 287.170, or 287.180 are payable...

Chapter 287 is to be strictly construed. If an employee is terminated for post-injury misconduct, no temporary disability benefits are payable. There are no exceptions.

Employee believes that the medication she was taking for depression, Bupropion (Wellbutrin), caused a "false positive" drug test. The new evidence at the final hearing of this matter is the deposition testimony of Dr. John Vasiliades. His testimony is most persuasive. A Board Certified Toxicologist with years of experience analyzing drug tests, Dr. Vasiliades explained in great detail that both methamphetamine and amphetamine were found in the drug test and that the concentration of the amphetamine was such that it would have been taken separately as opposed to having been broken down as a by-product of the methamphetamine. He also explained that Bupropion can cause a "false positive" on the initial screening test but it cannot cause a "false positive" on the subsequent confirmation test. Both tests were conducted on Employee's sample in this matter.

W0-22-81 (6-81)

Page 28

Employer: Kathryn Crowley Injury No. 14-101480

Employee submitted the report of Dr. Snyder to support her belief that Bupropion caused her "false positive" drug test. Dr. Snyder's report only states that Employee was taking Bupropion and that the common breakdown of this is amphetamines. He stated that Bupropion "will cause a false positive for amphetamines". It was his opinion that the Bupropion caused the "false positive" test for Employee. However, Dr. Snyder does not explain the fact that Employee tested positive for not only amphetamines but also methamphetamines. Nor does he explain why Employee tested positive on the screening test as well as the subsequent confirmation test. Dr. Snyder is not a board-certified toxicologist and there is no evidence he reviewed the drug test results from LabCorp.

This tribunal must construe and apply §287.170.4 RSMo. and cannot make determinations as to whether Employee's termination violated contractual or employment law. Her remedies in that regard lie in federal or state court. It is noteworthy that Employee has already filed a civil lawsuit, challenging her termination.

Employer had a policy relating to the use of drugs. That policy was administered appropriately. Employee was aware of the policy and tested positive for methamphetamines and amphetamines. Employee did not avail herself of the opportunity to present medical records or other evidence to refute the drug test. A positive drug test results in termination per the employment policy. I find Employee was terminated from post-injury employment based upon post-injury misconduct. As a result, neither temporary total nor temporary partial disability benefits are payable. To comply with the Temporary Award, Employer paid temporary total disability for 98 1/7 weeks in the amount of $49,833.19. Employer is entitled to a credit in that amount.

Employee claims additional temporary total disability benefits are due for the time frame of October 7, 2016, to April 28, 2017. As indicated above, Employee was terminated for post-injury misconduct and under §287.170.4, RSMo., is not entitled to any temporary disability benefits.

However, regardless of the termination for post-injury misconduct, there would be no temporary total disability benefits due for the period of October 7, 2016, to April 28, 2017. Employer was instructed in the Temporary Award to pay temporary total disability benefits until such time as "Employee is able to compete in the open labor market for employment, or until such time as the employee's condition reaches maximum medical improvement, or until Employee's death, or until 400 weeks of temporary total disability benefits have been paid, or until further Order of an administrative law judge of the Missouri Division of Workers' Compensation, whichever shall first occur."

On September 9, 2016, Dr. Concannon opined that Employee could return to work without restrictions. At a follow-up on October 7, 2016, Dr. Concannon again opined that Employee could continue to work with no restrictions on movement or activity.

WCC-32-R1 (0-81)

Page 29

**Employee:** Kathryn Crowley

**Injury No. 14-101480**

I find that Employee was able to compete in the open labor market as of September 9, 2016, and as of October 7, 2016. Employer was in compliance with the Temporary Award by providing temporary total disability benefits through October 7, 2016. No additional temporary total disability benefits would have been due.

Employee has asked not only that she be awarded additional temporary total disability benefits for the time frame of October 7, 2016, to April 28, 2017, but also that those benefits be doubled pursuant to §287.510, RSMo., which states in pertinent part:

> In any case a temporary or partial award of compensation may be made, and the same may be modified from time to time to meet the needs of the case, and the same may be kept open until a final award can be made, and if the same be not complied with, the amount equal to the value of compensation ordered and unpaid may be doubled in the final award, if the final award shall be in accordance with the temporary or partial award.

Since I have found that Employee was terminated based on post-injury misconduct, the final award is not in accordance with the temporary award and the doubling provision of §287.510, RSMo., does not apply.

Regardless of Employee's termination for post-injury misconduct, the doubling provision would not apply to the facts of this case. Employee was able to compete in the open labor market based on Dr. Concannon releasing her without any work restrictions on September 9, 2016, and again on October 7, 2016. The Temporary Award ordered the payment of temporary total disability benefits, setting forth various time frames, one of which was "until such time as Claimant is able to compete in the open labor market for employment." With no restrictions on movement or activity as of September 9, 2016, and October 7, 2016, I find that Employee was able to compete in the open labor market as of those dates. Employer complied with the Temporary Award; the doubling provision does not apply.

Employee bears the burden of proving the nature and extent of any disability by a reasonable degree of certainty. *Elrod v. Treasurer as Custodian of Second Injury Fund*, 138 S.W. 3d. 714, 717 (Mo. Banc 2004). Proof is made only by competent substantial evidence and may not rest on surmise or speculation. *Griggs v. A.B. Chance Co.*, 503 S.W. 2d 697, 703 (Mo. App. 1973). Expert testimony may be required when there are complicated medical issues. *Id.* at 704. Extent and percentage of disability is a finding of fact within the special province of the fact-finding body, which is not bound by medical testimony but may consider all the evidence, including the testimony of the claimant, and draw all reasonable inferences from other testimony in arriving at the percentage of disability. *Fogelsong v. Banquet Foods Corp.*, 526 S.W. 2d, 886, 892 (Mo. App. 1975).

WC-32-81 (6-81)

Page 30

Employee has alleged a mental injury as well as a physical injury to her hands and wrists due to the carpal tunnel syndrome. She is requesting that she be awarded permanent total disability benefits.

The mental injury will be addressed first. Section 287.120.8 RSMo., states in pertinent part:

> Mental injury resulting from work-related stress does not arise out of and in the course of employment, unless it is demonstrated that the stress is work related and was extraordinary and unusual. The amount of work stress shall be measured by objective standards and actual events.

Section 287.120.9 RSMo., states:

> A mental injury is not considered to arise out of and in the course of the employment if it resulted from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination or any similar action taken in good faith by the employer.

Since Employee has not alleged a specific accident with regard to her mental injury, she must prove that her mental injury flows from her physical injury - the bilateral carpal tunnel syndrome. If the mental injury results from a disciplinary action or termination, it is not compensable.

I find the opinion of Dr. Hughes to be more persuasive than that of Dr. Daniel. Dr. Hughes opined that Employee's Major Depressive Disorder clearly developed by 2008 and preceded any carpal tunnel complaints. He stated that the Major Depressive Disorder was absent in the summer of 2014 and returned in December only after Employee was terminated. When he saw her, Dr. Hughes noted that Employee related virtually no active symptoms of true Major Depressive Disorder. Dr. Hughes discussed the psychiatric *Diagnostic and Statistical Manual of Mental Disorders V* and stated that the manual does not list carpal tunnel syndrome as one of the causes for depression. Ongoing symptoms of clinical depression are sleep, appetite, and energy levels. When he asked Employee about those symptoms, her response was "they haven't been too bad, I guess". Dr. Hughes noted that Employee did not attribute any of her symptoms to her carpal tunnel syndrome during his interview with her. He noted that Employee reported that when she was fired from her job, the depression "got really bad again and I haven't come out of it since". Employee reported to him that she does not go anywhere because she does not have any money nor any place to go.

Dr. Daniel's causation opinion is based on the fact that Employee's depression "correlated" with her carpal tunnel symptoms. He explained that the depression occurred at the same time as her carpal tunnel syndrome, therefore, the carpal tunnel syndrome was the prevailing factor in causing the depression. Just because one condition occurs at the same time as

**Injury No. 14-101480**

Another does not mean that the conditions are causative of each other. He admitted that Employee had treated for depression since 2008 and that she never made mention of her carpal tunnel complaints in the treatment records of her primary care physician who provided the depression medication for her. He admitted that Employee did not list her carpal tunnel complaints on his questionnaire as being a "problem or concern". She listed "working too many hours, marriage problem, problem at work, getting fired, losing custody of son, no money, creditors" as her problems and concerns. There was no indication on the questionnaire that Employee gets depressed or cries because her hands hurt.

Dr. Daniel was pressed on his opinion as to prevailing factor and ultimately stated: "It is a major factor. ...I still believe it is a primary factor in spite of all of the other factors that - I think because - see, she was doing this job for 32 years and she was terminated on a false pretense and the employer has done some harm to her in that context, so I do believe that the CTS is the prevailing factor". It is clear from this testimony that Dr. Daniel places much weight on the fact that Employee was terminated in forming his opinions on causation for Employee's depression.

At the hearing, Employee's testimony confirms her termination caused her distress. She was most upset that she had worked at Clarcor for 32 years yet no one asked her what she took in the context of her being terminated. She testified the termination "took my life from me". She also testified to other factors causing her to be depressed, including losing custody of her son, her divorce, money problems, and her boyfriend passing away.

I find that Employee has not met her burden to prove that her Major Depressive Disorder arose out of and in the course of her employment as a result of her carpal tunnel syndrome. I find that, based on the evidence, Employee's Major Depressive Disorder is either pre-existing or is related to her termination by Employer and, as such, is not compensable pursuant to §287.120.9 RSMo. No permanent disability benefits are due.

Employee did sustain a work-related repetitive injury resulting in the diagnosis of carpal tunnel syndrome. Employer provided treatment, including surgery for both wrists. The remaining issue with regard to the carpal tunnel syndrome is the extent of permanent disability sustained by Employee.

Dr. Divelbiss and Dr. Concannon have provided opinions on permanent partial disability on behalf of Employer. Dr. Snyder and Dr. Volarich have provided opinions on causation and permanent disability on behalf of Employee. Additionally, vocational expert Kristine Skahan provided an opinion on behalf of Employee and vocational expert Michelle Sprecker provided an opinion on behalf of Employer.

In reviewing the experts' opinions with respect to disability and restrictions, I find the opinions of Dr. Divelbiss and Dr. Concannon to be more persuasive than the opinions of Dr. Snyder and Dr. Volarich. Dr. Divelbiss and Dr. Concannon are both specialists in the area of hand and wrist injuries and both actively perform carpal tunnel releases on a regular basis. Dr. Concannon was the authorized treating physician for Employee and had more intimate knowledge of her treatment and surgical outcome. Dr. Divelbiss saw Employee for a second opinion and explained in detail why he believed Employee could perform regular work. Dr.

WIC-22-81 (6-81)

Page 32

**Employee:** Kathryn Crowley

**Injury No. 14-101480**

Concerning rated Employee at two percent permanent partial disability to each wrist. Dr. Divelbiss rated Employee at ten percent of the right wrist and five percent of the left wrist. Neither doctor assigned any permanent restrictions as a result of the carpal tunnel condition.

Dr. Snyder evaluated Employee early on in this matter, providing an opinion on causation which Judge Dierkes found credible in his Temporary Award. Dr. Snyder did not evaluate Employee after her surgeries and has not opined on any permanent disability. Dr. Volarich's assessment of permanent disability of 50% to each wrist is not credible. He noted grip strength of 20 to 30 pounds in each wrist with the exception of one setting. Additionally, Employee's physical presentation at the hearing of this matter does not support a rating anywhere near 50%, particularly the left wrist. Employee testified to significant complaints regarding her right wrist, however, with regard to her left wrist, Employee stated she was only having occasional numbness in her thumb. At the hearing, Employee was observed folding, turning, and manipulating her Covid-19 mask with her left hand. She talked with her hands throughout the hearing. Employee had difficulty handling exhibits with her right hand but showed no signs of disability with her left hand. Employee's presentation cannot be reconciled with Dr. Volarich's rating and the significant restrictions he placed on her.

I find the opinion of vocational expert Michelle Sprecker to be more persuasive than the opinion of Kristine Skahan. Ms. Skahan based her opinion as to permanent total disability on the restrictions outlined by Dr. Volarich only. She did not consider the opinions of Dr. Concannon or Dr. Divelbiss. She felt Employee would be unable to compete in the open labor market as a result of the restrictions of Dr. Volarich. Having found Dr. Volarich's opinion less credible, Ms. Skahan's opinion becomes much less persuasive. Additionally, Ms. Skahan did not do any job market analysis. Ms. Sprecker analyzed the opinions of Dr. Concannon and Dr. Divelbiss that no restrictions were needed as a result of the carpal tunnel surgeries. She also commented on the restrictions outlined by Dr. Volarich and on those outlined by Dr. Snyder prior to the carpal tunnel treatment. She did a job market analysis and identified several jobs in the Slater, Missouri, area which Employee would be able to perform based on the findings of Dr. Concannon and Dr. Divelbiss, as well as the early findings of Dr. Snyder. Of particular note is Ms. Sprecker's testimony that Employee stated she would not accept a position that paid less than $18.00 per hour nor a position greater than two blocks from her home.

I find that Employee has sustained permanent partial disability of 25% of the right wrist and 12.5% of the left wrist. Employee is not permanently and totally disabled. I further find that Employee is entitled to two weeks disfigurement, based on evaluation of her scars at the hearing of this matter.

Based on the evidence presented, I find no liability on the part of the Second Injury Fund.

Employee has requested that she be allowed reasonable attorney fees pursuant to §287.560 RSMo., which states in pertinent part: "...if the division or the commission determines

WC-32-83 (6-81)

Page 33

Employee: Kathryn Crowley

Injury No. 14-101480

that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them". "Whole cost of the proceedings" includes attorneys' fees. Landman v. Ice Cream Specialties, 107 S.W. 3d 240 (Mo. banc 2003).

As Judge Dierkes stated in the Temporary Award, a finding that Employer defended these proceedings without a reasonable ground would be almost impossible. The report of Dr. Szewczyk opining that work was not the prevailing factor in causing Employee's carpal tunnel syndrome would be sufficient grounds to reasonably defend against the claim. After the Temporary Award, Employer provided medical treatment and paid temporary total disability benefits as ordered. Employee has not presented any additional evidence at the final hearing to suggest that Employer has not reasonably defended this claim. Employee is not entitled to costs and fees under $\S 287.560$ RSMo.

Employee was terminated for post-injury misconduct and therefore, is not entitled to any temporary total disability benefits. The temporary total disability benefits paid by the Employer in the amount of $\ 49,833.19, are a credit to the Employer and are applied to the permanent partial disability and disfigurement awarded herein. Employee is awarded permanent partial disability of 25 % of the right wrist and 12.5 % of the left wrist; she is awarded two weeks disfigurement. The total amount awarded is $\ 30,500.23, or 67.625 weeks of compensation and is subject to the credit allowed Employer.

The compensation awarded Employee shall be subject to a lien in the amount of 25 % of payments hereunder in favor of attorney Corey Jackson, for necessary legal services rendered.

I curity that on 4-2-21

I cellered a copy of the foregoing award in the parties to the case. A complete reard of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By $\qquad m p$


Made by: $\frac{\text { Melodie A. Powell }}{\text { Administrative Law Judge }}$

Division of Workers' Compensation