Linda Miller v. Henniges Automotive Sealing Systems North America Inc.

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Commission Rule 8 CSR 20-3.030(5) states, in relevant part:

(A) All briefs shall be subject to the following requirements:

1. Be double-spaced, except the cover, if any, certificate of service and signature block may be single-spaced.

(B) The brief of the petitioner shall not exceed thirty (30) pages.

(C) The petitioner's brief shall contain a fair and concise statement of facts without argument, with citations to the pertinent pages of the transcript supporting each factual assertion.

We will use our discretion and deny employer's and Second Injury Fund's motions to dismiss or strike employee's brief. We have reviewed employee's brief as well as all of the other documents pertaining to injury numbers 15-061022 and 16-024233.

In regard to the administrative law judge's award in injury number 15-061022, we find that the expert testimony of Dr. Raymond Cohen and vocational expert Ms. Kristine Skahan were not credible or persuasive. We find that the testimony of the following experts were credible and persuasive: Dr. David Brown, Dr. Michael Nogalski, and vocational expert Mr. Benjamin Hughes. We also find the opinions of Dr. Benjamin W. Verdine, employee's treating physician, to be especially credible and persuasive in regard to employee's carpal tunnel syndrome in injury number 16-024233.

We affirm and adopt the awards and decisions of the administrative law judge as supplemented herein. The awards and decisions of Administrative Law Judge Edwin J. Kohner are attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this 9th day of February 2022.


**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

**ABCT**

**ABCT**

**Secretary**

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: August 17, 2015
5. State location where accident occurred or occupational disease was contracted: Franklin 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: The employee, a re-packer, suffered a myofascial pain while operating a pallet jack.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Alleged right shoulder, elbow, hand, neck and body as a whole
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: $\ 7,679.77

Issued by DIVISION OF WORKERS' COMPENSATION Linda M. Miller Injury No.: 15-061022 17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: $\ 646.15 19. Weekly compensation rate: $\ 430.77 20. Method wages computation: By agreement

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

TOTAL:

None

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant 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 the claimant: Cory D. Jackson, Esq.

Issued by DIVISION OF WORKERS' COMPENSATION Linda M. Miller

This Workers' Compensation case raises several issues arising out of an alleged work-related injury in which the claimant, a re-packer, suffered a myofascial pain while operating a pallet jack. The issues for determination are: (1) Medical causation, (2) Temporary disability, (3) Permanent disability, and (4) Second Injury Fund liability. The evidence compels an award for the defense.

At the hearing, the claimant testified in person and offered a medical report from Raymond F. Cohen, D.O., depositions of Kristine Skahan and the claimant, the claimant's personnel file, photograph of the claimant's neck and hands, and voluminous medical records. The defense offered depositions of the Michael P. Nogalski, M.D., Benjamin W. Verdine, M.D., Raymond F. Cohen, D.O., and Benjamin D. Hughes, medical records and reports from David M. Brown, M.D., Bobby Enkvetchakul, M.D., and Mark W. Drymalski, M.D.

All objections not previously sustained are overruled. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident was alleged to have occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

On August 17, 2015, this then 55-year-old claimant, a re-packer who cut, trimmed, and re-packaged parts into boxes, was using a hand jack to move a skid. When she pulled on the hand jack, she felt an electrical shock up her right side, pinky finger, elbow and neck. She thought she tore something. After the August 2015 accident, she could not sleep through the night, had dizziness, headaches, and could not lay on her right side or back. She had difficulty grabbing, holding, and lifting.

On the date of injury, the claimant went to Dr. Enkvetchakul for evaluation of her right shoulder and arm. Dr. Enkvetchakul took a medical history of moving a pallet of produce using a pallet jack. When pulling on the pallet-jack, the claimant felt right shoulder pain that radiated down to the small finger of her right hand. She did not fall and nothing struck her shoulder. She had her arm down at her side at waist level or at the level of the handles. The claimant reported that it is not typically very hard to move this pallet or pallet jack, but it got stuck momentarily. The claimant complained of pain from the base of her skull, more on the right side, down the right side of her neck to the shoulder and all the way down the arm into the hand. She also

Issued by DIVISION OF WORKERS' COMPENSATION

Linda M. Miller

Injury No.: 15-061022

reported a tingling sensation down in the hand mostly to the small finger side. Her pain was most prominent around the right shoulder. She reported she did not fully recover after her most recent rotator cuff surgery and never regained full range of motion. She also reported that she was evaluated for cervical complaints after falling at home and was told she has a neck issue and nerve pain. She had been taking gabapentin for that condition. She reported that she had some pain and discomfort prior to this recent incident, but the pain had worsened. Dr. Enkvetchakul diagnosed right shoulder and arm pain and imposed restrictions from lifting with the right upper extremity. See Exhibit D.

From August 24, 2015, to September 9, 2019, the claimant continued to consult Dr. Enkvetchakul for right shoulder and right upper extremity pain. Dr. Enkvetchakul restricted the claimant from lifting with her right upper extremity. See Exhibit D.

On September 15, 2015, the claimant went to Dr. Smith for right shoulder pain. The claimant reported pain mostly at base of neck radiating towards the trapezius that worsened with use and when she raises her arm away from her body. Dr. Smith's examination revealed some superficial swelling and pain along the T1 prominence tenderness into the trapezius and on the right side of neck. Dr. Smith speculated that the condition may be a cervical spine injury or a disc herniation. On September 21, 2015, a cervical spine MRI revealed a mild disc bulge at C6-7 similar to the prior study with no disc herniation, significant spinal canal, or foraminal stenosis. See Exhibit 7.

On September 21, 2015, and September 28, 2015, the claimant returned to Dr. Enkvetchakul with complaints of pain from base of