Dwayne Nevois v. ** Meramec Industries, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 19-078979**

**Employee:** Dwayne Nevois

**Employer:** Meramec Industries, Inc.

**Insurer:** The Meramec Group, Inc.

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund (open)

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated July 14, 2021, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Edwin Kohner, issued July 14, 2021, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 8th day of June, 2022.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Reld K. Forrester, Chairman**

**DISSENTING OPINION FILED**

**Shalonn K. Curls, Member**

**Rodney J. Campbell, Member**

**Attest:**

**Secretary**

The administrative law judge erred in finding that the employee failed to establish by a preponderance of the evidence that he developed the occupational disease of bilateral carpal tunnel syndrome.

Section 287.067.3 RSMo states,

An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The 'prevailing factor' is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration or progressive deterioration of the body caused by aging or by normal activities of day-to-day living shall not be compensable.

The employee has the burden of proving his work exposure was the prevailing factor causing his alleged occupational disease. He must establish through competent and substantial expert medical opinion that his carpal tunnel syndrome was caused by the conditions of his employment. Kelley v. Banta \& Stude Constr. Co., 1 S.W.3d 43, 48 (Mo. App. 1999). "An occupational disease exists when there is a risk or hazard inherent in the work conditions and a disease follows as a natural result." Moreland v. Eagle Picher Techs, LLC, 362 S.W.3d 491, 505 (Mo. App. 2012), citing Causey v. McCord, 763 S.W.2d 155, 157 (Mo. App.1988).

Board-certified hand and orthopedic surgeon Dr. Bruce Schlafly's testimony is more credible than that of Dr. Tyler Krummenacher. There is no question that the employee suffers from bilateral carpal tunnel syndrome, left worse than right. This was the diagnosis of Dr. Jose Remo, Dr. Anthony Berni, Dr. Schlafly, and Dr. Krummenacher together with the emergency room physicians that examined the employee in August of 2019. In addition, Dr. Krummenacher likely diagnosed potential left cubital tunnel syndrome and right cubital tunnel syndrome. He stated that the employee needed further testing to determine whether that is the case. Dr. Krummenacher also felt that the employee likely suffered from complex regional pain syndrome. Nerve conduction studies were not obtained because the employer refused to pay for them. The employer discharged the employee and canceled his health insurance which prevented the employee from paying for his medical care.

Dr. Krummenacher testified that the employee's obesity was the prevailing factor in the cause of his condition. Dr. Krummenacher testified that it was not pre-diabetes or smoking that was the prevailing factor in the cause of the employee's condition. Nor did he find the employee's age or gender to be the prevailing factor. On cross-examination, Dr. Krummenacher stated that the machine operator job could be a factor in the development of carpal tunnel syndrome, although he stated that it did not aggravate or accelerate its development.

While Dr. Krummenacher's opinion was that the employee's obesity was the prevailing factor, he acknowledged he did not know how long the employee had been obese, a factor that could

Enployee: Dwayne Nevois

- 2 -

be significant. In addition, Dr. Krummenacher did not know the mechanics of how obesity would cause carpal tunnel syndrome. He simply testified that there is a statistical correlation between obesity and carpal tunnel syndrome. Likewise, Dr. Krummenacher testified that there were statistical correlations between a person's age and the development of carpal tunnel syndrome.

Dr. Schlafly's testimony was that there is no fat within the carpal tunnel. He testified further that if it is a metabolic issue that is causing carpal tunnel syndrome, that although the condition can be asymmetrical at the start, the symptoms would even out. This is certainly not the case in the employee's condition.

Dr. Schlafly testified that the asymmetry of the employee's condition can be explained by the asymmetry of his occupational use of his dominant left hand. Dr. Krummenacher neither explained nor addressed this issue.

Dr. Schlafly's opinion is logical and well thought out. Regarding the prevailing factor in the development of the employee's carpal tunnel syndrome, he opined,

My opinion is that Mr. Nevois' repetitive work with his hands at the Meramec factory, particularly the machine operator job with repetitive and forceful closing of clamps, is the prevailing factor in the cause of Mr. Nevois' severe left carpal tunnel syndrome and probable right carpal tunnel syndrome, and in the need for treatment, including left carpal tunnel release and post-op physical therapy for the left upper extremity.¹

He further testified that the work done as a machine operator was enough, in and of itself, for the employee to have developed bilateral carpal tunnel syndrome.

The employee worked for the employer starting in 2013. All of the jobs at the plant that he performed were repetitive, whether as a shoe inspector/packer or taper or machine operator; although, the latter jobs did not require as much force as that of a machine operator job.

Dr. Krummenacher acknowledged that severe carpal tunnel syndrome does not develop overnight.

There is no dispute that closing the clamps took a great deal of force. Sometimes both hands were placed on top of the clamp while pressing on the bottom of the clamp with one's knee or thigh. The employee testified that it often took his full body weight to shut a clamp. His trainer, Mr. Joe Overton, likewise indicated that it took a pretty good amount of force to shut the clamp.

Had the employee been able to meet the employer's minimum quota of thirty rotations per shift, even for just ten days, he would have closed the clamps in this manner over 2000 times. Dr. Schlafly described each of these events as meeting the definition of traumatic. Regardless of when you believe that Mr. Nevois worked on the machine as opposed to other repetitive jobs

¹ Transcript, p. 162.

within the plant, there is no question that his hand complaints came after the machine operator job.

The employee's testimony as to the force needed to close the clamps is undisputed. The employer's witness, its Director of Human Resources John Suttenfield, did not testify as to the force requirements. The employee's trainer, Mr. Overton acknowledged the force necessary to close the clamps.

Dr. Schlafly's argument is simply more persuasive. The degree of force used to close the clamps two or three thousand times or more, coupled with six years of repetitive but less forceful work is the prevailing factor. It is simply not believable that after six years of repetitive work followed by a month or several months of extremely forceful, repetitive work, that obesity reared its ugly head to be the primary source of the employee's carpal tunnel syndrome.

In response to the employer/insurer's attacks on the employee's credibility:

On August 16, 2019, the employee went to the emergency room. BJC Missouri Baptist Sullivan records document the employee's diagnosis as positive for joint swelling in his bilateral hands. The employee's weight at that time was 230 pounds with a BMI of 33.1. He was given an information sheet on carpal tunnel syndrome. The fact that the employee was unable to recall other conditions in the record does not make him untrustworthy nor does it diminish the fact that he was treated for carpal tunnel syndrome.

Likewise on August 25, 2019, medical records similarly noted the employee's bilateral upper extremities and diagnosed carpal tunnel syndrome. The employee was provided Naprosyn. To be clear, he may have had other conditions for which he received treatment, but not that night. Hospital records noted pain, swelling, and limited movement in the left upper extremity. The employee was instructed to follow up with Dr. Remo and provided a handout on carpal tunnel syndrome.

Dr. Remo is the employee's primary care physician. On August 20, 2019, the employee reportedly complained about back pain and bilateral carpal tunnel syndrome. The employee's complaints of back pain and fatigue had no bearing on the diagnosis of bilateral carpal tunnel syndrome. Likewise, Dr. Berni diagnosed bilateral hand pain and bilateral carpal syndrome. He recommended carpal tunnel surgery on the employee's left hand.

Computerized medical records often include information pulled from one visit or provider to become part of that day's medical report. The employee would never have seen the records and would not have known their contents. His inability to recall specifics does not alter the fact that he was diagnosed with and treated for carpal tunnel syndrome. It was certainly clear to the employee that his primary complaints in those weeks were his

bilateral hands. To his recollection, that is what he complained of and within a month of his first emergency room visit, treatment had been recommended.

Contrary to the employer's assessment, Joe Overton's testimony was not inconsistent with that of the employee. Joe Overton's testimony was that it took a considerable amount of force to close the clamps. It was so difficult that he had to help the employee. The clamps need to be closed tightly to ensure they were airtight. The employee testified that machine operators would often use a hop or knee on the bottom of the clamp to push up while pushing down forcefully from above, often using two hands.

Finally, as to when the employee worked as a machine operator, the employee's testimony was that while his recollection was in February or perhaps March of 2019, it could have been in July. He felt it was earlier than that but had no specific recollection as to dates.

Likewise, the employer's Director of Human Resources Mr. John Suttenfield, who failed to bring any records which would have shed light on the exact dates of the employee's time as a machine operator, testified that he was sure about the employee's employment dates because he had looked at the records.

Mr. Suttenfield should not be believed. He had available all of Mr. Nevois' work records, records that he alleged unequivocally demonstrated the dates that Mr. Nevois worked as a machine operator. Mr. Suttenfield told the tribunal that he reviewed those documents and that the documents purported to show the dates that the employee worked as a machine operator, yet he brought none of them.

Mr. Suttenfield had a reason to be untruthful. He is in charge of the employer's workers' compensation program. The more workers' compensation claims that are denied accrue to his benefit and worth as an employee.

The employer had easy access to their records while the employee does not. The adverse inference rule has been used when a party fails to call a witness. Its failure to do so gives rise to an adverse inference that the testimony of that witness would have been unfavorable. Routh v. St. John's Mercy Medical Center, 785 S.W.2d 744 (Mo. App. 1990). The same adverse inference should apply to the employment documents the employer did not provide as evidence.

While the employee is a poor historian, he was certain of two things: one, that it took a great deal of force to push down on the clamps; and two, that he started there sometime toward the end of July or in early August of 2019.

Even if you believe that the employee's service time was in March of 2019, he was then returned to the taper job which was also repetitive. As Dr. Krummenacher indicated carpal tunnel does not develop overnight, it takes time.

Dr. Schlafly's opinion was that the entirety of the employee's repetitive work during his time at Meramec Industries was the prevailing factor in the cause of his condition. That this was particularly true of the machine operator's position and the forceful, repetitive work he was required to do. In short, it was not simply that job but the entirety of all of the repetitive work the employee had done over six years, up until the time he developed complaints that were consistent with carpal tunnel syndrome.

For these reasons, the employee's bilateral carpal tunnel syndrome and upper extremity injuries should be found compensable.

It follows that the employee should also be awarded temporary total disability from his last day of work, August 21, 2019, to the present.

Section 287.170.4 RSMo provides that when an employee is terminated from post-injury employment based on post-injury misconduct neither temporary total disability nor temporary partial disability are payable. This section further provides, "the phrase 'postinjury misconduct' shall not include absence from the workplace due to an injury unless the employee is capable of working with restrictions, as certified by a physician (emphasis added)." The employee's physical restrictions and chronic pain due to untreated carpal tunnel syndrome rendered him incapable of performing any job he had previously done for the employer. The employer sent him to no physician at that time to obtain any opinion. Though the employer's witness Mr. Suttenfield testified that the employer could have accommodated the employee's restrictions, he failed to identify a single position that could be performed with one hand, or identify a date or occasion when the employer offered work that accommodated the employee's restrictions. No reasonable employer could be expected to hire the employee for regular employment. The employee's absence from work due to his work-related injury did not constitute disqualifying misconduct under $\S 287.170 .4$ RSMo.

For the above-stated reasons, I dissent from the majority's denial of compensation in this case.

Shalonn K. Curls, Member

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (573) 526-8983

www.labor.mo.gov/DWC

JULY 14, 2021

19-078979 Scan Copy

*Employee . . . . Dwayne K Nevois 13317857 8 83 WOODLAND LAKES 13317858 5 83 WOODLAND LAKES 13317858 5 338 RAMSEY DR 13317858 5 338 RAMSEY DR 13317859 2 338 RAMSEY DR 133 S 11TH ST STE 430 133 S 11TH ST STE 430 133 S 11TH ST STE 430

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Continued

Please visit our website at www.labor.mo.gov/DWC

---

**MISSOURI**

**DEPARTMENT OF LABOR**

**& INDUSTRIAL RELATIONS**

Missouri Division of Workers' Compensation is an equal opportunity employer/program. Auxiliary aids and services are available upon request to individuals with disabilities.

WC-142 (05-21)

AWARD ON HEARING

NLP

Relay Missouri: 800-735-2966

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? No
4. Date of accident or onset of occupational disease: August 23, 2019 (Alleged)
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? No
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 factory worker, at a manufacturing plant developed bilateral carpal tunnel syndrome.
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: Both wrists (alleged)
14. Nature and extent of any permanent disability: None that is compensable
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: None

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Dwayne Nevois

1. Value necessary medical aid not furnished by employer/insurer?
2. Employee's average weekly wages: $\ 586.37
3. Weekly compensation rate: $\ 390.91
4. Method wages computation: By agreement

1. Amount of compensation payable:

None

1. Second Injury Fund liability: Open

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 20 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mark E. Moreland, Esq.

This Workers' Compensation case raises several issues arising out of an alleged workrelated injury in which the claimant, a factory worker, at a manufacturing plant developed bilateral carpal tunnel syndrome. The issues for determination are: (1) Medical causation, (2) Future medical care, and (3) Temporary disability. The Second Injury Fund Claim remains open pursuant to an agreement among the attorneys. The evidence compels an award for the defense.

At the hearing, the claimant testified in person and offered a deposition of Bruce S. Schlafly, M.D. The defense offered testimony from John Suttenfield and Joseph Overton and the following exhibits:

Exhibit A: Report of Injury;

Exhibit B: Claim for Compensation;

Exhibit C: Answer to Claim for Compensation;

Exhibit D: Amended Claim for Compensation;

Exhibit E: Answer to Amended Claim for Compensation;

Exhibit F: Claimant Wage Statement;

Exhibit G: Records from the Division of Workers' Compensation;

Exhibit H: Records of Missouri Baptist Hospital-Sullivan;

Exhibit I: Records of Mercy Services Sullivan (Dr. Remo);

Exhibit J: Records of Signature Orthopedics (Dr. Berni);

Exhibit K: Deposition of Dr. Krummenacher, with attachments;

Exhibit L: Deposition of employee; and

Exhibit M: Unemployment Determination.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2016, because the occupational disease was alleged to have been contracted in Missouri. Any markings on the exhibits were present when offered into evidence.

This 56 -year-old claimant, a factory worker, developed bilateral carpal tunnel syndrome. The claimant worked an 8 -hour shift with a 30 -minute lunch break, and two 15 -minute breaks. His first position at the Meramec plant was as a packer, which he held for 6 years inspecting

shoes to ensure the shoes were the right size, there were no air traps or air bubbles in the shoes, and made sure the size tag on the shoes was correct. Then, he placed the shoes in a box. Some boxes contained 6 pairs of shoes, some 10 pairs of shoes, and others 24 pairs of shoes. After placing the shoes in the box, the claimant gave the box to the shipper. During an average shift while working as a packer, the claimant would inspect and box approximately 200 pairs of shoes. While working in the packer position the claimant had no problems or complaints with either hand or wrist.

Next, the claimant worked 2 to 3 months as a taper. In this position, the shoes came to the claimant who checked the label on the box, taped the lid of the box shut with a taper gun, and put the box on a skid. When the skid was full, the claimant took the skid out. During this interval, the claimant had no problems or complaints with either hand or wrist.

In July 2019, the plant closed for 2 weeks over the Independence Day holiday, as it does every year. When the claimant returned, he successfully bid on a machine operator job in the IP Department, and he worked 30 days in late July and August 2019.

The machine operator job involved operating a molding machine making mats. Initially, the claimant trained on the machine one week with Joe Overton. The machine had to be clamped, such that it was airtight, and no air got in the machine or material spilled out from the sides of the machine. Each machine had 8 clamps. To operate the machine, the claimant cleaned the machine, sprayed a liquid on the machine, pressed a button and the lid on the machine would close. Then, the claimant had to close the 8 clamps, and seal the machine shut, ensuring it was airtight.

To close the clamps on the machine, the claimant used both hands. The claimant primarily used his left hand. He placed his right hand on top of his left hand, and leaned into the machine, placing all of his weight on the clamp, pushing it down with his hands. He testified that it took a great deal of force to completely close the clamps, to make the machine airtight. Once the machine was fully closed, heated material was shot into the machine. The claimant had to wait for the material to cool and harden. Once the material hardened, he had to open the machine using both hands and exerting a great deal of force to open the 8 clamps on the machine. The claimant testified the clamps on each machine had to be opened and closed by hand and that it was very difficult for the claimant to tighten the clamps to completely close them. He had to put his entire weight down on his hands to do so. In 2019, when the claimant performed the machine operator job, he was $5^{\prime} 10^{\prime \prime}$ tall, and weighed 230 pounds.

After the claimant was trained, he was responsible for operating 2 machines on his own with a production quota. The claimant did not know the exact number of mats he was required to make, or the precise quota he had to fulfill. The claimant worked as a machine operator for approximately 30 days. He got taken off the job because he could not get certified on the machine, as he was unable to meet his production quota. During his second week working as a machine operator, the claimant began to experience hand complaints in the form of pain, coldness, and stiffness. The claimant had difficulty completely closing the clamp because he could not get the trigger on the clamp to click shut.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Dwayne Nevois

Injury No.: 19-078979

Joseph Overton testified each line has two machines that make mats. He testified during the period when the claimant worked in the machine operator position, he assisted the claimant with closing the clamps on the machines approximately 50% of the time. Mr. Overton testified the 6 clamps on each machine had to be closed and opened for every mat produced. The machine operator has a quota of 30 rotations in a shift. When 2 machines are running, the machine operator is required to perform 60 rotations in a shift. He testified while working as a machine operator with the claimant, the claimant never mentioned any problems with either his hands or his wrists to him.

On August 16, 2019, the claimant went to the Mercy Baptist Hospital-Sullivan Emergency Room with cysts underneath both armpits and swelling in both hands since waking up that morning. The left hand seemed to be more swollen than the right. The claimant had a sensation of pressure in both hands and believed this might be causing his hands to feel numb. The claimant experienced intermittent numbness in the first 3 fingers of both hands. At times he had trouble making a fist and dropping. A review of systems was positive for shortness of breath, joint swelling in both hands, and abscesses in the left axilla. On exam, the claimant had normal strength, range of motion, and exhibited no edema or deformity. Neurological and sensory exams were normal. Dr. Olusanya diagnosed left carpal tunnel syndrome, and shortness of breath. She placed the claimant in a wrist splint, prescribed Flexeril, and advised the claimant follow up with Dr. Remo in 3 days. (Ex.H.,40-76). The claimant testified that, while treating at the ER in August 2019, he reported his hand problems were due to his work.

On August 20, 2019, the claimant went to Dr. Remo, his primary care physician. The claimant's issues were obesity (BMI 35.0-39.9), smoking addiction, and pre-diabetes. The claimant reported 8/10 lower back pain which began about a year before and was worsening. The claimant had treated with a neurosurgeon for his low back pain and received pain management and an injection. The claimant's back pain radiated down his right lower extremity. The claimant was unable to straighten his back due to pain and this was affecting his work. He reported carpal tunnel syndrome with numbness in the tips of his fingers, especially on the left, and at times could not feel anything on the tips of his fingers. Dr. Remo's physical exam revealed tenderness of the lumbar spine and hands with no edema or redness in either hand. Dr. Remo diagnosed chronic fatigue, daytime somnolence, chronic right-sided low back pain, without sciatica, pain in both hands, and pre-diabetes. The claimant was to undergo an EMG/nerve conduction study. (Ex.I.,2-28). The claimant testified after his consultation with Dr. Remo, he was unable to drive due to his hand complaints and he did not return to work at the plant. Therefore, the claimant spoke with John Suttenfield about obtaining paperwork for FMLA leave.

On August 25, 2019, the claimant returned to the Emergency Room, reporting continued pain from carpal tunnel syndrome. The claimant reported due to his hand and wrist symptoms he was unable to put the leash on his dog. He claimant complained of worsening carpal tunnel pain in the left greater than right hand. He reported 7/10 left wrist pain. The claimant presented with a splint on his left wrist which was tight with swelling to the fingers whenever he wore the splint. The claimant complained of difficulty with normal living due to pain and stated he was unable to take care of himself. A review of systems was positive for bilateral wrist pain and periodic numbness. A physical exam revealed hand edema and tenderness. The claimant had mild swelling to the fingers of the left hand, with tension to the dorsal left hand from a tightly placed

WC-52-R1 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Dwayne Nevois

Injury No.: 19-078979

wrist splint. There was a good radial pulse and sensation was intact. The claimant had a positive Phalen's sign, but good capillary refill. At the ER the claimant was diagnosed with bilateral carpal tunnel syndrome and he received a Toradol injection and Naprosyn and told to follow up with Dr. Remo. (Ex.H.,4-39).

On September 6, 2019, the claimant returned to Dr. Remo with bilateral hand pain. He requested FMLA paperwork. The claimant had not undergone an EMG/nerve conduction study because he could not drive or even lift a glass without pain. He was frustrated since he could not work due to the pain. The claimant's A1C, taken on August 21, 2019, was high at 6.3. Dr. Remo diagnosed pre-diabetes and pain in both hands and prescribed Naprosyn and Tramadol (Ultram). (Ex.I.,29-46). Dr. Remo referred the claimant to Dr. Berni an orthopedic surgeon.

On September 12, 2019, the claimant went to Dr. Berni with bilateral hand numbness and tingling. The claimant reported he did "repetitive work with taping." The claimant reported he was 5'10" tall, and weighed 245 pounds. He had a BMI of 35.15. (Ex.J.,2-7). Dr. Berni examined the claimant and found positive Tinel's, Phalen's, and median nerve compression tests at both wrists. The claimant reported pain that shot up from his wrist towards his elbow. The claimant had negative provocative tests for cubital tunnel syndrome. X-rays of the hands were negative. Dr. Berni diagnosed pain in the right hand, pain in the left hand, and severe bilateral carpal tunnel syndrome. The claimant did not have any obvious thenar atrophy. Dr. Berni opined the claimant would benefit from left endoscopic carpal tunnel release.

For a period of time the claimant moved in with his aunt and uncle, he was unable to drive and could not take care of himself due to hand complaints. During the claimant's deposition on January 13, 2020, the claimant testified he was on Metformin for diabetes/prediabetes at the time of his deposition but testified at the hearing in 2021 that he is not currently taking any medication for diabetes. The claimant testified no care provider ever informed him he was pre-diabetic or diabetic. Recently, the claimant was diagnosed with congestive heart failure.

The claimant testified no doctor gave him any work restrictions or limitations related to his hand condition and complaints. He never provided anyone at the plant with a note from a physician or other care provider stating he could not work due to hand complaints.

The claimant's last day of work was on August 21, 2019. "The claimant was discharged from employment by the above employer August 26, 2019, for misconduct connected with work." See Exhibit M. Since being terminated by the employer claimant has not tried to look for work and does not believe he could do any work given the condition of his hands. At present the claimant is unemployed. After being terminated the claimant applied for, but did not receive unemployment benefits. See Exhibit M.

The claimant completed the 12th grade at St. Charles West High School. After graduating from high school the claimant took classes in small engine repair. The claimant does not have any computer skills and has never worked in an office. He is not familiar with computer programs such as Word, Outlook, or Excel.

John Suttenfield, Director of Human Resources for this employer, testified the employer has a no-call, no-show policy, which is also part of the Union contract. That policy provides for

WC-12-R1 (6-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Dwayne Nevois

Injury No.: 19-078979

automatic termination when an employee fails to show up for work, or call into work, on 3 work days. On August 20, 2019, the claimant asked Suttenfield to prepare paperwork for him to take FMLA leave back problems. The claimant was to pick up the paperwork on August 20, 2019, but did not appear at the plant. Mr. Suttenfield mailed the FMLA paperwork to the claimant. On August 22, 23, and 26, the claimant did not show up for work and did not call anyone with the employer to advise he would not be coming into work. Since the claimant failed to show up on those three days and failed to contact anyone at the plant to advise he would not be coming into work, the employer terminated the claimant's employment, pursuant to employer's no-show, no-call policy.

John Suttenfield testified this employer previously accommodated manufacturing employees at the plant who were under a restriction to perform only one-handed work. While the claimant could not have performed the taper job one handed, there was other work the claimant could have performed at the plant under the restriction of working only with his right hand. John Suttenfield testified the claimant never presented any restrictions from a physician or other care provider regarding his hands and he would have been able to work at the plant under Dr. Schlafly's restriction of performing only one-handed work.

Tyler R. Krummenacher, M.D.

On April 23, 2020, Dr. Krummenacher, an orthopedic hand surgeon specializing in hand and upper extremity surgery, evaluated the claimant, took a medical history, and reviewed the claimant's medical records of Missouri Baptist Hospital-Sullivan, Dr. Berni, Dr. Remo, the report of Dr. Schlafly, and the claimant's deposition. (Ex.K., 5-8,69-75).

At the time of Dr. Krummenacher's evaluation the claimant's chief complaint was bilateral hand pain, numbness, and tingling. The claimant was a 54-year-old left-hand dominant male, who was previously employed at Meramec Industries, in various positions, for a total of 7 years. The claimant did not experience any hand complaints while working as a packer or taper. However, the claimant reported hand complaints after working 2 to 3 weeks as a machine operator. (Ex.K., 7-10,71-75).

After examining the claimant, reviewing his medical records and deposition, and taking diagnostic studies of the claimant's bilateral hands, Dr. Krummenacher diagnosed bilateral carpal tunnel syndrome, left greater than right; possible left cubital tunnel syndrome; possible right cubital tunnel syndrome; and likely complex regional pain syndrome of the left upper extremity. The claimant displayed features of complex regional pain syndrome ("CRPS") in his left upper extremity, as evidenced by severe sensitivity, swelling, sympathetic dysfunction and disuse osteopenia, as seen on X-rays studies. Further testing including a triple-phase bone scan was required to confirm a CRPS diagnosis. Dr. Krummenacher recommended EMG/nerve conduction studies to confirm the diagnoses of carpal tunnel syndrome and cubital tunnel syndrome. Additionally, the claimant's serum thiamine, folate, and Vitamin B12 should be measured to assess for a concomitant polyneuropathy. While it was likely the claimant had bilateral cubital tunnel syndrome and complex regional pain syndrome, the only diagnosis Dr. Krummenacher could make, within a reasonable degree of medical certainty, was that of bilateral carpal tunnel syndrome. (Ex.K.,16-19,71-75).

WC-32-R1 (6-81)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Dwayne Nevois

Injury No.: 19-078979

Dr. Krummenacher opined the primary, prevailing factor in the claimant's development of carpal tunnel syndrome was obesity, with a BMI over 35, and that the claimant's employment was not the prevailing factor causing his carpal tunnel syndrome. Dr. Krummenacher opined it was very unlikely the claimant could develop carpal tunnel syndrome from 2 to 3 weeks of work as a machine operator. This was even less likely if, during his 2 to 3 weeks of working as a machine operator, the claimant received assistance from a co-worker or trainer. (Ex.K.,17-19,71-75). Dr. Krummenacher opined the claimant had multiple non-occupational risk factors for carpal tunnel syndrome, including obesity with a BMI over 35, pre-diabetes or diabetes, and smoking. As to his occupational risk factors, the claimant worked for 6 years as a packer that did not require significant force or repetition. The claimant worked for 3 months as a taper/box handler, lifting boxes weighing 15 to 20 pounds. Dr. Krummenacher opined the claimant's prior positions as a packer and taper were not significant enough, in terms of force or repetition, to cause carpal tunnel syndrome. The claimant worked as a machine operator for two weeks before developing hand and wrist complaints. Dr. Krummenacher opined two weeks in the machine operator position was not a long enough exposure to cause carpal tunnel syndrome, even if the clamps on the mold machine required significant force to close. (Ex.K.,17-20,71-75). Dr. Krummenacher testified the medical literature showed a correlation between BMIs over 30, and the development of carpal tunnel syndrome. (Ex.K.,22-23,41-43,54-57,71-75). Dr. Krummenacher opined that the claimant's work as a machine operator did not accelerate or in any way cause his carpal tunnel syndrome to manifest. He also opined age was a causative factor in those conditions and that older people were more likely than younger people to develop carpal and cubital tunnel syndrome. (Ex.K.,44-45,49-51).

Dr. Krummenacher opined the claimant should avoid any repetitive activity or use of vibratory tools with the left hand and it would be difficult for him to perform the machine operator position given the claimant's lack of grip in the left hand. Dr. Krummenacher opined the claimant has restrictions not caused by his work for this employer. (Ex.K.,18-19,31-33,71-75). Dr. Krummenacher opined the claimant is not at maximum medical improvement and recommended extensive testing to determine the nature and extent of the claimant's upper extremity disorders including an EMG/nerve conduction study, laboratory work, a triple phase bone scan, and possible surgical procedures. However, he opined any need the claimant had for medical treatment or work restrictions had no relationship to the claimant's employment. (Ex.K.,18-21,26-28,71-75).

Bruce S. Schlafly, M.D.

On January 31, 2020, Dr. Schlafly, a hand surgeon, reviewed the claimant's medical records, took a medical history from the claimant, and examined the claimant. As part of the medical history, the claimant reported he fell on the steps at home, striking his left side in December 2019. This fall increased the pain in the claimant's left hand and left upper extremity. The claimant reported the pain and numbness in his left hand were severe and he slept in a recliner to protect his left hand. The claimant had been unable to drive for the past few months due to his left hand condition. (Ex.1,59-63).

Dr. Schlafly diagnosed severe left carpal tunnel syndrome, probable right carpal tunnel syndrome, diffuse stiffness and swelling at the left hand and wrist, and secondary stiffness of the left elbow and left shoulder. An EMG/nerve conduction study would be beneficial to determine

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Dwayne Nevois

Injury No.: 19-078979

whether the claimant, in fact, has carpal tunnel syndrome and to determine the severity of that condition. Dr. Schlafly agreed with Dr. Berni's recommendation of left carpal tunnel release. Following left carpal tunnel release, the claimant's right hand could be re-examined, and a determination made concerning treatment with a right carpal tunnel release. He opined after the left carpal tunnel release, the claimant would require physical therapy for left upper extremity stiffness. (Ex.1,40-43,59-63).

Dr. Schlafly opined the claimant's repetitive work with his hands for this employer, in particular performing the machine operator position which required repetitive and forceful closing of clamps, was the prevailing factor causing his severe left carpal tunnel syndrome and probable right carpal tunnel syndrome and in the claimant's need for treatment, including left carpal release, and post-operative physical therapy for his left upper extremity.

Dr. Schlafly did not have an opinion as to whether the claimant's obesity was a contributing factor causing his carpal tunnel syndrome but opined the claimant's obesity was not the prevailing factor causing his carpal tunnel syndrome. Dr. Schlafly acknowledged diabetes can be a cause of carpal tunnel syndrome. However, he was uncertain whether pre-diabetes could cause that condition. (Ex.1,22-23,30-32).

Given the claimant's current symptoms and need for treatment, Dr. Schlafly believed he was limited to one-handed work, using his non-dominant right hand. However, Dr. Schlafly was unaware of whether one-handed work was available. The claimant had significant disability, particularly in his left hand and left upper extremity, due to carpal tunnel syndrome, but that disability could be reduced with the treatment Dr. Schlafly recommended. (Ex.1,25-26,28-29,59-63).

OCCUPATIONAL DISEASE

An informative legal analysis of occupational diseases pursuant to Missouri law is found in Kelley v. Banta and Stude Const. Co., Inc., 1 S.W.3d 43 (Mo. App. E.D. 1999), from which the following legal principles are cited:

In order to support a finding of occupational disease, employee must provide substantial and competent evidence that he/she has contracted an occupationally induced disease rather than an ordinary disease of life. The inquiry involves two considerations: (1) whether there was an exposure to the disease which was greater than or different from that which affects the public generally, and (2) whether there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort.

Claimant must also establish, generally through expert testimony, the probability that the claimed occupational disease was caused by conditions in the work place. Claimant must prove "a direct causal connection between the conditions under which the work is performed and the occupational disease." However, such conditions need not be the sole cause of the occupational disease, so long as they are a major contributing factor to the disease. A single medical opinion will support a finding of compensability even where the causes of the disease are

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Dwayne Nevois

Injury No.: 19-078979

indeterminate. The opinion may be based on a doctor's written report alone.

Where the opinions of medical experts are in conflict, the fact-finding body determines whose opinion is the most credible. Where there are conflicting medical opinions, the fact finder may reject all or part of one party's expert testimony which it does not consider credible and accept as true the contrary testimony given by the other litigant's expert.

An occupational disease exists under the Act, where a peculiar risk or hazard is inherent in the working conditions, and a disease follows as a natural result. *Moreland v. Eagle Picher Tech.*, 362 S.W.3d 491, 505 (Mo.App.S.D.2012). Whether a particular employment involves a peculiar risk is determined from two criteria: 1) whether there was an exposure to the disease, which was greater than or different from that which effects the public generally; and 2) whether there was a recognizable link between the disease and some distinctive feature of employee's job, which is common to all jobs of that sort. *Id.*; *Smith v. Cap. Reg. Med. Ctr.*, 458 S.W.3d 406, 407 (Mo.App.W.D.2014) (to meet the burden of proof as to causation for an occupational disease claim, employee has to submit medical evidence establishing the probability the working conditions caused the disease).

In this case, all of the evidence compels a conclusion the claimant suffers from bilateral carpal tunnel syndrome and other upper extremity disorders. The etiology of this disorder has no litmus test and may be multifactorial including anatomical factors, gender, chronic diseases such as diabetes, rheumatoid arthritis, obesity, prolonged or repetitive flexing of the wrist, and extensive computer use. In this case, the claimant suffers from obesity, pre-diabetes, and did hand-intensive work as a machine operator. After approximately thirty days into his work as a machine operator the claimant began seeking medical attention for his symptoms of bilateral carpal tunnel syndrome.

Two well-qualified hand surgeons examined the claimant, reviewed his medical records, took a medical history from him, and attempted to determine the etiology of his disorder. Both experts diagnosed substantially the same disorders but arrived at different conclusions pertaining to the etiology. Dr. Schlafly opined the claimant's repetitive work with his hands for this employer, in particular performing the machine operator position which required repetitive and forceful closing of clamps, was the prevailing factor causing his severe left carpal tunnel syndrome and probable right carpal tunnel syndrome, and in the claimant's need for treatment, including left carpal release, and post-operative physical therapy for his left upper extremity. While medical literature had found obesity is a cause of carpal tunnel syndrome, and while the claimant was obese at the time of the doctor's exam, Dr. Schlafly did not have an opinion as to whether the claimant's obesity was a contributing factor causing his carpal tunnel syndrome but opined that it was not the prevailing factor causing his carpal tunnel syndrome. Dr. Schlafly acknowledged diabetes can be a cause of carpal tunnel syndrome. However, he was uncertain whether pre-diabetes could cause that condition. (Ex.1,22-23,30-32).

In contrast, Dr. Krummenacher opined the primary, prevailing factor in the claimant's development of carpal tunnel syndrome was obesity, with a BMI over 35, and the claimant's employment was not the prevailing factor causing his carpal tunnel syndrome. Dr. Krummenacher opined it was very unlikely the claimant could develop carpal tunnel syndrome in 2 to 3 weeks of work as a machine operator. This was even less likely if, during his 2 to 3 weeks

WC-52-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Dwayne Nevois

Injury No.: 19-078979

of working as a machine operator, the claimant received assistance from a co-worker or trainer. (Ex.K.,17-19,71-75). Dr. Krummenacher opined the claimant had multiple non-occupational risk factors for carpal tunnel syndrome, including obesity with a BMI over 35, pre-diabetes or diabetes, and smoking. As to his occupational risk factors, the claimant worked for 6 years as a packer that did not require significant force or repetition. The claimant worked for 3 months as a taper/box handler, lifting boxes weighing 15 to 20 pounds. Dr. Krummenacher opined the claimant's prior positions as a packer and taper were not significant enough, in terms of force or repetition, to cause carpal tunnel syndrome. Dr. Krummenacher opined the claimant's work as a machine operator did not accelerate or in any way cause his carpal tunnel syndrome to manifest. He also opined age was a causative factor in those conditions and that older people were more likely than younger people to develop carpal and cubital tunnel syndrome. (Ex.K.,44-45,49-51).

The burden of proving an entitlement to compensation is on the claimant and he has the burden to establish that his proposition is more likely to be true than not true. Section 287.808, RSMo 2016. In this case, the claimant did not meet his burden to prove more likely than not that the work was the prevailing factor causing his medical condition and disability. The experts in this case is evenly divided and neither is overwhelming.

Given the evidence in this case, the more reasonable conclusion is the etiology of the claimant's bilateral carpal tunnel syndrome is multifactorial to include the claimant's obesity, pre-diabetes, and work at a hand-intensive job as a machine operator for approximately thirty days, and all of these appear to be substantial factors. The claimant's work as a machine operator may have been a triggering factor given the temporal relationship between his work in that position and the first emergency room visit. However, the evidence is inconclusive as to whether any of those factors was more important than any other. The more reasonable conclusion is that none of those factors was more important than any other factor and the claimant's medical disorder resulted from the presence of all of those factors.

FUTURE MEDICAL CARE

Pursuant to Section 287.140.1, an employer is required to provide care "as may be reasonably required to cure and relieve from the effects of the injury." This includes allowance for the cost of future medical treatment. *Pennewell v. Hannibal Regional Hospital*, 390 S.W.3d 919, 926 (Mo. App. E.D. 2013) citing *Poole v. City of St. Louis*, 328 S.W.3d 277, 290-91 (Mo. App. E.D. 2010). An award of future medical treatment is appropriate if an employee shows a reasonable probability that he or she is in need of additional medical treatment for the work-related injury. *Id.* Future care to relieve [an employee's] pain should not be denied simply because he may have achieved [maximum medical improvement]. *Id.* Therefore, a finding that an employee has reached maximum medical improvement is not necessarily inconsistent with the employee's need for future medical treatment. *Id.* Section 287.140.1 states:

> In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance, and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Dwayne Nevois

Injury No.: 19-078979

Section 287.140.1 places on the claimant the burden of proving entitlement to benefits for future medical expenses. Rana, 46 S.W.3d at 622. The claimant satisfies this burden, however, merely by establishing a reasonable probability that he will need future medical treatment. Smith v. Tiger Coaches, Inc., 73 S.W.3d 756, 764 (Mo.App.2002). Nonetheless, to be awarded future medical benefits, the claimant must show that the medical care "flow [s] from the accident." Crowell v. Hawkins, 68 S.W.3d 432, 437 (Mo.App.2001) (quoting Landers v. Chrysler Corp. 963 S.W.2d 275, 283 (Mo.App.1997)).

There is little disagreement as to the medical treatment that the claimant requires for his bilateral upper extremity complaints, because all of the medical providers that attended or evaluated the claimant's upper extremities were in agreement. However, given the denial of the claim for the reasons set forth above, the defense bears no liability for the medical care that is necessary.

TEMPORARY DISABILITY

Compensation must be paid to the injured employee during the continuance of temporary disability but not more than 400 weeks. Section 287.170, RSMo 1994. Temporary total disability benefits are intended to cover healing periods and are unwarranted beyond the point at which the employee is capable of returning to work. Brookman v. Henry Transp., 924 S.W.2d 286, 291 (Mo.App. E.D. 1996). Temporary awards are not intended to compensate the Employee after the condition has reached the point where further progress is not expected. Id.

When an employee is injured in an accident arising out of and in the course of his employment and is unable to work as a result of his or her injury, Section 287.170, RSMo 2000, sets forth the TTD benefits an employer must provide to the injured employee. Section 287.020.7, RSMo 2000, defines the term "total disability" as used in workers' compensation matters as meaning the "inability to return to any employment and not merely mean[ing the] inability to return to the employment in which the employee was engaged at the time of the accident." The test for entitlement to TTD "is not whether an employee is able to do some work, but whether the employee is able to compete in the open labor market under his physical condition." Thorsen v. Sachs Electric Co., 52 S.W.3d 611, 621 (Mo.App. W.D. 2001). Thus, TTD benefits are intended to cover the employee's healing period from a work-related accident until he or she can find employment or his condition has reached a level of maximum medical improvement. Id. Once further medical progress is no longer expected, a temporary award is no longer warranted. Id. The claimant bears the burden of proving his entitlement to TTD benefits by a reasonable probability. Id.

Temporary total disability awards are designed to cover the employee's healing period, and they are owed until the claimant can find employment or the condition has reached the point of maximum medical progress. When further medical progress is not expected, a temporary award is not warranted. Any further benefits should be based on the employee's stabilized condition upon a finding of permanent partial or total disability. Shaw v. Scott, 49 S.W.3d 720, 728 (Mo.App. W.D. 2001). The Missouri Supreme Court ruled that if "additional treatment was part of the claimant's rehabilitative process, then he or she is entitled to TTD benefits pursuant to Section 287.149.1 until the rehabilitative process is complete. Once the rehabilitation process

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ends, the commission then must make a determination regarding the permanency of a claimant's injuries."

The plain language of section 287.149 .1 does not mandate the commission arbitrarily rely on the maximum medical improvement date to deny TTD benefits, if the claimant is engaged in the rehabilitative process. Instead, whether a claimant is engaged in the rehabilitative process is the appropriate statutory guidepost to determine whether he or she is entitled to TTD benefits under the plain language of Section 287.149.1. It is plausible, and likely probable, that the maximum medical improvement date and the end of the rehabilitative process will coincide, thus, marking the end of the period when TTD benefits can be awarded. However, when the commission is presented with evidence, as here, that a claimant has reached maximum medical improvement yet seeks additional treatment beyond that date for the work-related injury in an attempt to restore himself or herself to a condition of health or normal activity by a process of medical rehabilitation, the commission must make a factual determination as to whether the additional treatment was part of the rehabilitative process. If the commission determines the additional treatment was part of the claimant's rehabilitative process, then he or she is entitled to TTD benefits pursuant to section 287.149 .1 until the rehabilitative process is complete. Once the rehabilitation process ends, the commission then must make a determination regarding the permanency of a claimant's injuries. Greer v. Sysco Food Servs., 475 S.W.3d 655, 668-69 (Mo. Banc 2015).

The Court, thus, requires a detailed analysis of the claimant's medical treatment to determine whether the claimant is entitled to temporary total disability benefits. In this case, the claimant is seeking temporary total disability benefits from his last day of work, August 21, 2019, to present, $936 / 7$ weeks. The claimant believes he is unable to work due to his bilateral hand complaints. The claimant testified he has no feeling in his hands, and cannot grip with either hand, in particular, the left hand. He has throbbing pain in both hands, the left worse than the right. Since being terminated from his employment the claimant has not looked for work. The claimant does not believe he could do any work, given the condition of his hands.

However, this claim must be denied, because the claim is not compensable as discussed above. In addition, the claimant may not recover temporary total disability, since no treating or examining physician found he was totally disabled, and unable to return to any reasonable or normal employment or occupation, due to his carpal tunnel syndrome. The forensic medical experts opined the claimant could perform one handed work and the employer was able to accommodate the claimant's limitations. Therefore, the claim for temporary disability benefits must be denied.