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 ha