Cynthia Porter v. St. Louis Post-Dispatch, LLC / Lee Enterprises / CCL Label, Inc. / CCL Industries Corp.

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Employee:** Cynthia Porter

**Injury No. 17-013765**

**Employer:** St. Louis Post-Dispatch, LLC / Lee Enterprises

CCL Label, Inc. / CCL Industries Corp.

**Insurer:** Self-Insurer c/o Parker Services LLC / Sentry Ins. Co. (Post-Dispatch)

Indemnity Ins. Co. of North America / c/o ESIS (CCL Label)

An administrative law judge (ALJ) issued a Temporary or Partial Award in the above-entitled workers' compensation case on December 23, 2021. The employer/insurer filed a timely application for review pursuant to § 287.480 RSMo on January 12, 2022.

Commission Rule 8 CSR 20-3.040 specifies when an application to review a temporary or partial award may be filed. This rule allows a party who feels aggrieved by the issuance of a temporary or partial award by an ALJ to petition the Commission to review the evidence upon the ground that the applicant is not liable for the payment of any compensation.

Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the ALJ in this regard is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

The petitioner's application for review challenges the ALJ's finding that "Claimant's diabetes was under control"¹ as without support in the medical evidence. On the contrary, we note medical expert Dr. Bruce Schlafly's deposition testimony that the employee's diabetes "was well controlled as of the blood test of February 10, 2017."²

This award is only temporary or partial and subject to further order. All parties should be aware of the provisions of § 287.510 RSMo.

The award and decision of Administrative Law Judge Lee B. Schaefer, issued December 23, 2021, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **27th** day of July, 2022.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**


Attest:

**Rodney J. Campbell, Chairman**

**Shalonn K. Curls, Member**

**NOT SITTING**

Kathryn Swan, Member

Secretary

¹ Award, p. 13.

² Transcript, p. 98.

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (800) 775-2667

www.labor.mo.gov/DWC

DECEMBER 23, 2021

17-013765

Scan Copy

@Employee . . . . . CYNTHIA PORTER 5021 MARNE DR HLACK JACK, MO 63033-8527 *Employer . . . . . : ST LOUIS POST DISPATCH LLC 13318548 4 900 N TUCKER BLVD ST LOUIS, MO 63101-1099 *Employer . . . . . : CCL INDUSTRIES CORP 13318550 7 208 SPRING DR ST CHARLES, MO 63303 *Insurer . . . . . : ST LOUIS POST DISPATCH LLC 13318552 1 c/o PARKER SERVICES LLC PO BOX 8032 STEVENS POINT, WI 54481 @Insurer . . . . . : INDEMNITY INS CO OF NO AMERICA c/o KSIS INC PO BOX 6561 SCRANTON, PA 18505-6561 *Insurer . . . . . : INDEMNITY INS CO OF NO AMERICA 13318555 2 c/o KSIS INC PO BOX 6561 SCRANTON, PA 18505-6561 @Insurer Attorney : BRENT M NEUMEYER 505 N 7TH ST STE 2100 ST LOUIS, MO 63101

@Employee Attorney: MARK A CORDES 1 MEMORIAL DR 11TH FLOOR ST LOUIS, MO 63102 *Employer . . . . . : LEE ENTERPRISES 13318549 1 900 N TUCKER BLVD SAINT LOUIS, MO 63101 *Employer . . . . . : CCL LABEL INC 13318551 4 208 SPRING DR ST CHARLES, MO 63303 *Insurer . . . . . : SENTRY INSURANCE COMPANY 13318553 8 1501 N POINT DR PO BOX 8032 STEVENS POINT, WI 54481 *Insurer . . . . . : INDEMNITY INS CO OF NO AMERICA 13318554 5 PO BOX 42065 PHOENIX, AZ 85080 *Insurer Attorney : DAVID S WARE 211 N BROADWAY STE 2500 ST LOUIS, MO 63102

Enclosed is a copy of the Temporary or Partial Award made in the above case.

This award is not a final determination of the issues and the case will be reset to allow an Administrative Law Judge to make a final determination in the case. Any party to the case who feels they are not liable for the payment of any compensation as determined by this award may make an Application for Review of the award 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

Continued TEMPORARY AWARD APPROVAL NLP

17-015765

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 the Commission.

DIVISION OF WORKERS' COMPENSATION

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

WC-181 (05-21)

TEMPORARY AWARD APPROVAL

NLP

Relay Missouri: 800-735-2966

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.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-013765

TEMPORARY AWARD

Employee: Cynthia Porter

Employers: Post-Dispatch, LLC/Lee Enterprises

CCL Label, Inc./CCL Industries Corp.

Additional Party: Second Injury Fund

Insurers: Self-Parker Services LLC/Sentry Ins. Co. (Post-Dispatch)

Indemnity Co. of NA/ c/o ESIS (CCL Label)

Hearing Date: September 29, 2021

Injury No.: 17-013765

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LBS

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: March 6, 2017

1. State location where accident occurred or occupational disease contracted: St. Louis City

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes (Post-Dispatch)

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident happened or occupational disease contracted:

Claimant allegedly sustained an occupational disease over time due to repetitive trauma.

1. Did accident or occupational disease cause death? No

1. Parts of body injured by accident or occupational disease: Bilateral wrists - bilateral carpal tunnel syndrome

1. Compensation paid to-date for temporary disability: None

1. Value necessary medical aid paid to date by employer/insurer? Post-Dispatch -$7,324.97, CCL - None

1. Value necessary medical aid not furnished by employer/insurer? None

WC-32-R1 (6-01)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-013765

1. Employee's average weekly wages: 272.38 (Post-Dispatch)

1. Weekly compensation rate: 181.59 (for Temporary Total Disability from the Post-Dispatch)

1. Method wages computation: Using the Workers' Compensation Statute

COMPENSATION PAYABLE

1. Employer/Insurer liability:

Employer/Insurer, the Post-Dispatch, is ordered to provide the necessary medical care to cure and relieve the effects of Claimant's bilateral carpal tunnel syndrome. As required under the statute, the Post-Dispatch is also ordered to pay temporary total disability for any time Claimant misses from work at the Post-Dispatch while receiving the ordered treatment.

This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

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Issued by DIVISION OF WORKERS' COMPENSATION

injury No.: 17-013765

An evidentiary hearing was held before Administrative Law Judge Lee Schaefer in the above-referenced matter on September 29, 2021. Cynthia Porter ("Claimant") was present and was represented by her counsel, Mark Cordes. Mr. Cordes did not request a fee as this is a Temporary Award for treatment. The Post-Dispatch LLC/Lee Enterprises ("Post-Dispatch") is self-insured, its workers' compensation insurance is managed by Parker Services LLC/Sentry Insurance Company. The Post-Dispatch was represented by David Ware and Maryann Lindsey. CCL Label Inc./CCL Industries Corporation ("CCL") and its insurer, Indemnity Insurance Company of N.A./ESIS, were represented by counsel, Jackson Hedges.

The parties stipulated to the following facts:

1. On or about March 6, 2017, Claimant allegedly sustained an occupational disease arising out of and in the course and scope of her employment due to repetitive trauma;
2. Claimant and Employers were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
3. Claimant was an employee of both Employers;
4. Post-Dispatch received proper notice of Claimant's injury;
5. Claimant filed her Claim for Compensation within the time prescribed by law;
6. On March 6, 2017, Claimant was making an average weekly wage at the Post-Dispatch of $272.38;
7. On March 6, 2017, Claimant was making an average weekly wage at CCL of $572.92;
8. Neither Employer has paid any temporary total disability;
9. Post-Dispatch has paid $7,324.97 in medical benefits, CCL has not paid any medical benefits;
10. Claimant is not alleging a specific accident;
11. Venue for the hearing in this matter is proper at the St. Louis Office of the Missouri Division of Workers' Compensation.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-013765

The issues to be resolved at this hearing are:

1. Did Claimant sustain an occupational disease arising out of and in the course and scope of her employment with either Employer?
2. Is Claimant's bilateral carpal tunnel syndrome ("CTS") medical casually related to her job duties at the Post-Dispatch?
3. Is Claimant's bilateral carpal tunnel syndrome ("CTS") medically casually related to her job duties at CCL?
4. Did Claimant provide adequate Notice of her occupational disease to CCL, as required under the statute?
5. What is the appropriate rate for temporary total disability from the Post-Dispatch?
6. Is either Employer responsible for surgery for Claimant's bilateral CTS?

Claimant offered and had accepted into evidence, the following Exhibits:

- Exhibit 1a: Deposition of Dr. Bruce Schlafly

- Exhibit 1b: CV of Dr. Bruce Schlafly

- Exhibit 1c: Report of Dr. Bruce Schlafly

- Exhibit 2a: Medical records of Dr. Evan Crandall

- Exhibit 2b: CV of Dr. Evan Crandall

Post-Dispatch offered and had accepted into evidence, the following Exhibits:

- Exhibit A: Report of Injury

- Exhibit B: Answer to Claim for Compensation filed by Post-Dispatch

- Exhibit C: Medical records from SSM Cross Keys/Dr. Jessica Smith

- Exhibit D: Deposition of Dr. David Brown

- Exhibit E: Withdrawn by the Post-Dispatch

- Exhibit F: Union Contract: Wages and Hours

- Exhibit G: Wage Statement

CCL offered and had accepted into evidence, the following Exhibits:

- Exhibit I: Deposition of Dr. Mitchell Rotman

- Exhibit II: Report of Dr. Mitchell Rotman

- Exhibit III: Wage Statement from CCL

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Exhibit IV: Answer to Claim for Compensation filed by CCL

Exhibit V: Report of Injury

**Note:** Some of the records submitted at the hearing contain handwritten remarks or other marks on the exhibits. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on September 29, 2021.

On March 6, 2017, Claimant was employed by both the Post-Dispatch and CCL. Claimant currently works full-time for Amazon packing orders, and part-time for the Post-Dispatch.

Claimant began working for the Post-Dispatch in 2000 or 2001. She worked at a machine that placed inserts in the newspapers. In this position, Claimant would grab a large stack of inserts. The stack was approximately 7" thick and required two hands for her to handle. After grabbing the stack of inserts, she would make sure they were stacked evenly, and then she would feed the inserts into the machine. The machine had two heads and was constantly moving very quickly. Claimant worked 5-hour shifts, 4 days a week with occasional overtime. Claimant was paid $12.50 per hour when she began at the Post-Dispatch.

When Claimant first started working at the Post-Dispatch, she worked 40 hours or more a week. However, when she started working at CCL in 2012, she reduced her hours at the Post-Dispatch. Claimant worked over 40 hours a week at CCL. She would work 10 hours of overtime every two weeks.

At CCL, Claimant inspected labels for medicine bottles as they came off of a machine. She would place the good labels in a box and throw the bad labels away. She would only pick up a few labels at a time.

Claimant's work at the Post-Dispatch was more physical than at CCL. She had to move very quickly to keep up with the machine at the Post-Dispatch. The machine ran non-stop and Claimant had to keep up with the machine and make sure the inserts were stacked properly so the machine would not jam.

On March 16, 2017, Claimant was feeding the machine when one of the heads jammed. Claimant's hands began hurting when she pulled the jammed inserts out. She used both of her hands to pull out the inserts. She reported her injury to her supervisor, Shawn Powers. Shawn did not know what to do, so Claimant spoke to her Union representative who had her supervisor fill out a report. Claimant was examined at BarnesCare and then was referred to a specialist. She was placed on light duty.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-013765

Claimant underwent a nerve conduction/EMG test. She was also given splints/braces to sleep in. Claimant was examined by Dr. Crandall on August 23, 2017. Claimant saw Dr. Schlafly on July 9, 2018. Dr. Brown examined Claimant on March 10, 2020, and Dr. Rotman examined Claimant on April 14, 2021.

Claimant currently has pain, aching, numbness, and tingling in her hands. She takes Tylenol for pain. Claimant was told she had carpal tunnel syndrome and needed surgery. Claimant wants the surgery, but did not get it because she thinks one of her Employers should pay for it.

On cross-examination by the Post-Dispatch, Claimant testified her position when she started with the Post-Dispatch was as a "Mailer". She was considered a part-time employee even though she worked more than 40 hours a week. Later, Claimant's position was entitled "Mailer Extra", which was a part-time position. Even as a "Mailer Extra", she worked more than the minimum hours necessary to hold that position.

Claimant was in constant movement while working at the Post-Dispatch. When working as a "Mailer" or "Mailer Extra", she would rotate machines every hour, but she would do the same job at each machine.

Claimant's hand complaints first arose on March 6, 2017, when she had to unjam the machine. She did not have any complaints before that time.

Currently, Claimant works 40 hours a week at Amazon; 8 hours a day, 5 days a week. Claimant does not find the work at Amazon hard. At Amazon, Claimant locates an item, scans the item, and then places the item in a "Jiffy Bag" for shipping. The heaviest item she carries is a large container of laundry detergent.

At CCL, Claimant occasionally had to "fan fold" the labels. The "fan folding" involved folding the labels on a crease and then rotating the labels and folding them again. Claimant did not have a quota of how many labels she had to fan fold in an hour. The "fan folding" was interspersed with other duties and was not done every shift.

After Claimant hurt her hands, she had pain in her hands while working at the Post-Dispatch and CCL. She currently has pain while working at Amazon. Claimant's pain is worse now than when she first hurt her hands. Claimant does not currently have any work restrictions. She never asked for assistance from her co-workers at either the Post-Dispatch or CCL, but sometimes her co-workers at Amazon help if something is too heavy.

Claimant was never disciplined at the Post-Dispatch for being unable to do her job. However, when she was put on light duty, she was assigned the job of mailing papers. In that position, she was supposed to staple address labels onto the papers. The stapler had to be hit really hard to attach the labels, which caused a lot of pain in her hands. Claimant brought in a note from her doctor saying she should not perform that job.

Claimant was diagnosed with diabetes in 2016. The diagnosis was made around the time Claimant had a total knee replacement. She has arthritis in her back and in her thumbs.

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Issued by DIVISION OF WORKERS' COMPENSATION

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Claimant never used insulin, but she took Metformin at one time. Claimant takes medication for high blood pressure and high cholesterol. Claimant has never smoked.

Claimant's hands are worse now than they were in 2017. Her hands become particularly painful when she has to move them a lot. Claimant wakes up at night with her hands aching, numb, and tingling. Claimant wears her splints/braces every night when she sleeps.

On cross-examination by CCL, Claimant testified the work at CCL was easy. At CCL, there was no heavy lifting or gripping. Further, Claimant did not have a quota at CCL.

Claimant did not recall telling her supervisor at CCL about her occupational disease. Claimant did not ask anyone at CCL to provide medical care for her hands.

Treatment Records

Dr. Evan Crandall

(Exhibit 2a)

Claimant first treated at BarnesCare on March 6, 2017. She complained of pain in her right thumb and left hand after feeding papers into a machine at work. Claimant injured her right thumb when she was clearing a jam in a machine. Claimant was referred for a nerve conduction study because the doctor found evidence of carpal tunnel syndrome. When Claimant returned to BarnesCare on April 18, 2017, the doctor noted her nerve conduction test revealed carpal tunnel syndrome in both wrists. Claimant was then referred to Dr. Crandall for further treatment.

On August 22, 2017, Claimant underwent additional Nerve Conduction and EMG tests which revealed relatively severe, right worse than left, carpal tunnel. When Claimant was examined by Dr. Crandall on August 23, 2017, she reported her symptoms were due to her work at the Post-Dispatch, where she had worked for 16 years, 30 to 38 hours a week. Claimant did report her employment with CCL, but reported that work was "easy".

Upon examination, Claimant was found to have positive Tinel's and Phalen's tests on her right wrist. Claimant also had positive Tinel's, Phalen's, and provocative tests on her left wrist. Dr. Crandall noted that based on Claimant's examination and Nerve Conduction studies, she would need to open carpal tunnel releases on both wrists. He further opined that Claimant's work at the Post-Dispatch was the prevailing factor in her symptoms.

Dr. Crandall was then provided with a copy of Claimants' deposition along with her job description from the Post-Dispatch and asked to answer questions posed by an adjuster for the Post-Dispatch. In response to those questions, Dr. Crandall opined that Claimant's carpal tunnel syndrome was not specifically related to the March 6, 2017 incident when she fixed a jam in the machine at the Post-Dispatch. Rather, he noted that a person who had carpal tunnel would experience increased symptoms when performing heavy work, like unjamming a machine. He noted Claimant had carpal tunnel syndrome prior to March 6, 2017. Dr. Crandall also opined Claimant had not reached MMI because she still needed carpal tunnel surgery.

Counsel for the Post-Dispatch then wrote to Dr. Crandall asking him to clarify his causation opinion. Dr. Crandall noted he relied on Claimant's description of her job activities at WC-32-R1 (6-81)

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both the Post-Dispatch and CCL when reaching his opinion regarding causation. He further indicated he could review additional information to determine if his opinion regarding causation changed. Dr. Crandall was then provided with Claimant's job description from CCL. However, Dr. Crandall noted the job description did not contain any quantitative or qualitative information, therefore, he could not determine if that job had risk factors for developing upper extremity conditions.

#### (Exhibit 1a)

Dr. Schlafly examined Claimant on July 9, 2018 at the request of her attorney. Dr. Schlafly's deposition was taken on April 2, 2020.

Claimant reported she first experienced symptoms when she tried to fix a paper jam in a machine at the Post-Dispatch on March 6, 2017. Claimant reported she had worked at the Post-Dispatch since 2001; she worked at a machine putting inserts into newspapers. Claimant reported it was a fast paced job and required the use of both hands. She had to handle thick bundles of inserts and feed them into the machine at a rate greater than one bundle per minute.

Claimant began working part-time at the Post-Dispatch in approximately 2012, at which time she began working at CCL. Her job at CCL was to check labels. At CCL, Claimant did not perform any heavy lifting or gripping. At the time she saw Dr. Schlafly, Claimant was working at Amazon, which required her to place household goods into boxes or jiffy bags.

When Claimant was seen by Dr. Schlafly, she was taking medication for diabetes, high blood pressure and high cholesterol. Dr. Schlafly noted when Claimant saw her primary care doctor on February 10, 2017, her blood work was normal for thyroid and close to normal for diabetes.

Upon examination, Dr. Schlafly found Claimant had positive Phalen's and Tinel's tests in both wrists as well as altered sensation in her index fingers. She could not make a tight fist with either hand and had weak grip strength in both hands.

Dr. Schlafly diagnosed Claimant with bilateral carpal tunnel syndrome. He further recommended that she undergo bilateral carpal tunnel releases. Dr. Schlafly opined that Claimant's work at the Post-Dispatch was the prevailing factor in causing her carpal tunnel syndrome.

On cross-examination by the attorney for the Post-Dispatch, Dr. Schlafly testified he did not have a job description of Claimant's jobs at either the Post-Dispatch or CCL. Dr. Schlafly relied on Claimant's descriptions of her job duties. Dr. Schlafly conceded there was a difference between working full-time with overtime versus working part-time. Dr. Schlafly also agreed Claimant did not notice problems with her hands prior to March 6, 2017. However, Dr. Schlafly did not believe the March 6, 2017 incident was the prevailing factor causing Claimant's carpal tunnel.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-013765

Dr. Schlafly conceded that hypothyroidism could cause carpal tunnel syndrome, however, not mild hypothyroidism such as Claimant had. Genetics could also play a role in the development of carpal tunnel syndrome. Dr. Schlafly agreed that diabetes could cause carpal tunnel syndrome. However, the severity of diabetes, and whether or not it was well-controlled, would determine how much of a role Claimant's diabetes played in the development of her carpal tunnel syndrome. Women in the 40 to 60 age range are more likely to get carpal tunnel than men of the same age. In certain cases, osteoarthritis can also lead to carpal tunnel syndrome. Dr. Schlafly conceded Claimant had risk factors associated with the development of carpal tunnel syndrome.

Dr. Schlafly testified that Claimant's carpal tunnel syndrome developed from cumulative exposure that began while she was working full-time at the Post-Dispatch and continued when she worked part-time. He agreed that sometimes rest, or a reduction in the activity that triggered the carpal tunnel syndrome, could improve the symptoms. However, while Claimant was working part-time, she continued to experience cumulative exposure.

Upon cross-examination by the attorney for CCL, Dr. Schlafly agreed that he relied on the information supplied by the Claimant when reaching his diagnosis and opinion regarding causation. He agreed Claimant reported her job at CCL did not require heavy lifting or heavy gripping. When Dr. Schlafly examined Claimant, she was still working at the Post-Dispatch, but was no longer working at CCL. Dr. Schlafly opined Claimant was probably currently experiencing carpal tunnel symptoms if she had not been treated by surgery.

Dr. Schlafly noted that Claimant's job at the Post-Dispatch was hand intensive. Dr. Schlafly also opined Claimant's work at the Post-Dispatch was the prevailing cause of her carpal tunnel condition. Further, Claimant's job at the Post-Dispatch was the prevailing factor in the need for Claimant to undergo carpal tunnel releases bilaterally. Dr. Schlafly did not believe Claimant's work at CCL was the prevailing factor in Claimant's bilateral carpal tunnel syndrome.

Dr. David Brown

Expert for the Post-Dispatch

(Exhibit D)

Dr. David Brown performed a records review on behalf of the Post-Dispatch and then he evaluated Claimant on March 10, 2020. Similar to the other doctors, Dr. Brown diagnosed Claimant with bilateral carpal tunnel syndrome. Dr. Brown also found that Claimant needed bilateral carpal tunnel releases.

Dr. Brown noted that Claimant's symptoms began in March of 2017. Dr. Brown found Claimant had several risk factors that often lead to the development of carpal tunnel syndrome, including her gender, age, osteoarthritis, weight, and "uncontrolled" diabetes. Dr. Brown opined that based on Claimant's "unambiguous known personal risk factors" for carpal tunnel syndrome, the most prominent one being her diabetes, combined with her work history, Claimant's work at the Post-Dispatch was not the prevailing cause of her carpal tunnel syndrome.

Dr. Brown noted that the more risk factors someone has, the greater the risk that they will develop carpal tunnel syndrome. In reaching his conclusion that Claimant's job at the Post-Dispatch did not cause her carpal tunnel syndrome, Dr. Brown particularly relied on the fact that

WC-32-R1 (6-41)

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Claimant's carpal tunnel syndrome did not develop until after a reduction in the number of hours she worked at the Post-Dispatch. (When Claimant shifted from full-time to part-time in 2011.) He noted that by working fewer hours for the Post-Dispatch, her repetitive activity there had actually decreased.

Dr. Brown testified Claimant's obesity and diabetes were the most likely prevailing causes of her carpal tunnel syndrome; he did not determine which was the most significant. Dr. Brown leaned toward Claimant's diabetes being the more important risk factor, but he found both conditions to be significant. Dr. Brown further testified it was a medical fact that osteoarthritis increases the risk of carpal tunnel. Dr. Brown testified that the "key fact" in this case was that Claimant's carpal tunnel syndrome did not develop until she was working fewer hours.

On cross-examination by Claimant's attorney, Dr. Brown conceded that he obtained all of his information regarding Claimant's job duties from a written job description and Claimant's description of her job duties. Dr. Brown agreed that Dr. Crandall's opinion on causation differed from his. Dr. Brown testified that Claimant's job duties, if they were performed by someone full-time and with no other risk factors, could be a factor in causing carpal tunnel syndrome.

On cross-examination by the attorney for CCL, Dr. Brown conceded Claimant described her work at CCL as "easy". Dr. Brown noted that in Dr. Schlafly's report, Claimant's work at CCL did not include heavy lifting or gripping.

Dr. Mitchell Rotman

CCL's Expert

(Exhibits I & II)

Claimant was examined by Dr. Mitchell Rotman at the request of CCL. Dr. Rotman also diagnosed Ms. Porter with bilateral carpal tunnel syndrome and recommended bilateral carpal tunnel releases. Dr. Rotman testified Claimant described her job duties at the Post-Dispatch as being more difficult and more hand intensive than her job duties at CCL. Dr. Rotman noted Claimant's other risk factors for the development of carpal tunnel syndrome including obesity, diabetes, female gender, and age.

Dr. Rotman testified that neither of Claimant's jobs led to her development of carpal tunnel syndrome. He noted Claimant was only working part-time at the Post-Dispatch, and Claimant's job at CCL was lighter and did not require heavy lifting or gripping.

On cross-examination by Claimant's attorney, Dr. Rotman could not identify one of Ms. Porter's risk factors as being the prevailing factor, stating the combination of risk factors caused her carpal tunnel syndrome. Dr. Rotman testified carpal tunnel syndrome does not go away on its own; it generally progresses. Dr. Rotman testified he was not swayed by the opinions of Dr. Brown, even though they are in the same practice, noting he often treats Dr. Brown's patients after Dr. Brown has decided the carpal tunnel syndrome was not work-related.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-013765

On cross-examination by the attorney for the Post-Dispatch, Dr. Rotman testified that after viewing a video of Claimant's job at the Post-Dispatch and hearing Claimant's description of her jobs, he didn't believe either employment was the prevailing cause of Claimant's carpal tunnel syndrome. However, he then noted that if someone is doing an activity that triggers the symptoms, and they stop or reduce that activity, the symptoms of carpal tunnel would diminish, but the carpal tunnel syndrome would not go away. He testified that carpal tunnel is an aggressive, chronic, idiopathic condition that progresses over time.

RULINGS OF LAW

An occupational disease is an identifiable disease, arising with or without human fault, out of and in the course of the employment. Ordinary diseases of life, to which the general public are exposed outside of the employment, shall not be compensable, except where the diseases follow as an incident of an occupational disease, as defined in Section 287.067. The disease need not to have been foreseen or expected, but after its contraction, it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. §287.067.1. RSMo. An injury by occupational disease is compensable only if the occupational exposure was the prevailing factor causing the medical condition and disability. The "prevailing factor" is the primary factor, in relation to any other factor, causing the medical condition. §287.067.2 RSMo.

Section 287.067.3 states an injury due to repetitive motion is recognized as an occupational disease, for purposes of the Act. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor causing the resulting medical condition and disability. §287.067.3 RSMo.

For an occupational disease to qualify under the Act, the disease must be a natural incident or result of a particular employment, developing gradually from long, continued work in that employment, and serving to attach to that employment, a hazard distinguishing it from the ordinary run of occupations. See, e.g., *Renfro v. Pittsburgh Plate Glass*, 130 S.W.2d 165, 170 (Mo.App. 1939). For a condition to amount to an occupational disease it must be due to causes and conditions inherent in, and characteristic of, the particular employment. *Sanford v. Valier-Spies Milling*, 235 S.W.2d 92, 95 (Mo.App. 1951). To establish a claim for occupational disease, there must be evidence of a direct causal connection between the conditions under which employee performs her work duties, and the alleged occupational disease. *Sellers v. TWA*, 752 S.W.2d 413, 415-416 (Mo.App. W.D. 1988).

Missouri courts recognize that carpal tunnel syndrome is an ordinary disease of life, but can also be an occupational disease, where a job produces a greater exposure. *Hayes v. Hudson Foods*, 818 S.W.2d 296, 300 (Mo.App. S.D. 1991). An employee has the burden of proving her work exposure was the prevailing factor causing their alleged occupational disease. §287.067 RSMo. An employee must establish, through competent and substantial expert medical opinion that their carpal tunnel syndrome was caused by the conditions of her employment. *Kelly v. Banta & Studé Constr.*, 1 S.W.3d 43, 48 (Mo.App. E.D.1999).

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-013765

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.

*(Issues 1, 2, and 3)*

Every doctor who examined Claimant agreed that she had carpal tunnel syndrome. All of the doctors also agreed that she needed bilateral carpal tunnel releases to treat her condition. Drs. Schlafly and Crandall related her condition to her job duties at the Post-Dispatch. While Dr. Crandall later altered his opinion, he never recanted that position¹. Drs. Brown and Rotman found that claimant's conditions of diabetes and obesity were the prevailing factors in the development of her carpal tunnel syndrome.

Claimant was working two jobs at the time she developed carpal tunnel symptoms, however, her job duties at the Post-Dispatch were much more strenuous and fast paced than those at CCL. The Post-Dispatch focuses on the fact that Claimant was working part-time for the Post-Dispatch at the time she developed carpal tunnel symptoms. However, Dr. Schlafly testified that Claimant's cumulative exposure for developing carpal tunnel syndrome increased while working at the Post-Dispatch as time progressed, even after her working hours reduced because she continued to be exposed to the risk unabated.

Claimant testified consistently in her deposition, at Hearing, and when being examined by each doctor, regarding her job duties at both the Post-Dispatch and CCL. Claimant testified her work activities at the Post-Dispatch were more difficult than her work activities at CCL. At the Post-Dispatch, Claimant fed stacks of advertisement inserts into a machine continuously while moving continuously. The stacks were so large that Claimant gripped them with both hands. Claimant had to keep moving to keep up with the continuous flow of newspapers through the machine.

There was a quota for how many inserts Claimant had to feed into the machine during her shift at the Post-Dispatch. She also testified that occasionally the machine would become jammed and she would have to quickly unjam it in order to prevent the machine from shutting down. To unjam the machine, Claimant would grab the inserts and forcefully pull them out. Claimant first noticed symptoms of carpal tunnel syndrome when attempting to unjam a machine.

¹ Dr. Crandall never determined that Claimant's job at the Post-Dispatch was not the prevailing cause in the development of her carpal tunnel, rather, he said he would need "more information about each job which would include an evaluation of the hand movements in frequency and intensity. I could do this by inspecting the jobs in person or by video."

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-013765

while working at the Post-Dispatch. Claimant has continued performing these job duties, now on a part-time basis since 2011.

Claimant testified at hearing her job duties at CCL were easy. Dr. Schlafly, Dr. Brown, and Dr. Rotman all noted Claimant reported to each of them her job duties with CCL were not intensive or difficult. Claimant testified her work at CCL did not involve heavy gripping, heavy lifting, and she did not have a quota she had to meet. She described her job duties as grabbing small 4 inch labels and placing them into a small box. There is no medical testimony or opinion that Claimant's job duties at CCL were the prevailing factor in causing her carpal tunnel syndrome. No evidence was submitted at hearing whatsoever that Claimant's job duties at CCL were even a risk factor for development of carpal tunnel syndrome.

One doctor attributed Claimant's carpal tunnel syndrome to her work at the Post-Dispatch and another doctor initially attributed Claimant's carpal tunnel syndrome to the Post-Dispatch and then asked for additional information which he was never provided (instead the Post-Dispatch chose to send Claimant to a different doctor.) Two doctors attributed Claimant's carpal tunnel syndrome to Claimant's diabetes and obesity. However, neither doctor acknowledged that Claimant's diabetes was under control, that Claimant has never used insulin, and that she had been taken off of all medicine for diabetes because it was under control.

Based on Claimant's description of her job and the more persuasive reports of Drs. Crandall and Schlafly, I find Claimant's job at the Post-Dispatch was the prevailing factor in her development of bilateral carpal tunnel syndrome. CCL is not responsible for Claimant's development of carpal tunnel syndrome.²

The Post-Dispatch is responsible for the medical treatment necessary to cure and relieve the effects of Claimant's bilateral carpal tunnel syndrome.

(Issue 6)

Pursuant to Section 287.140, the employee is entitled to receive all medical treatment which is reasonably required to cure and relieve the employee from the effects of the work-related injury. The Claimant bears the burden in proving all essential elements of the claim. *Moreland v. Eagle Picher Technologies, LLC*, 362 S.W.3d 491, 504 (Mo. App. S.D. 2012). The claimant must provide medical evidence establishing a probability that the work activities caused the disease, although the activities do not need to be the sole cause. *Jacobs v. City of Jefferson*, 991 S.W.2d 693, 698 (Mo. App. W.D. 1999).

As it was previously determined that Claimant's job activities at the Post-Dispatch were the prevailing factor in Claimant's development of carpal tunnel syndrome, the Post-Dispatch is responsible for the necessary treatment to cure and relieve the effects of Claimant's bilateral carpal tunnel syndrome. All of the medical experts agree Claimant requires bilateral carpal tunnel release surgeries to cure and relieve her from the effects of her condition. Therefore, I find that the Post-Dispatch is liable for providing Claimant with the recommended medical treatment.

² Since CCL is not responsible for Claimant's development of bilateral carpal tunnel syndrome, the issue of whether CCL received proper notice is moot (Issue 4).

WC-32-R1 (6-81)

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Article IV of the Union Contract governs wages and hours. It states seven and one-quarter hours shall constitute a day's work, and six and three-quarters hours shall constitute a night's work for all situation holders. The Union Contract states the Post-Dispatch may hire part-time employees. "Said employees shall be known as mailer extras." (Exhibit F) The Post-Dispatch paid Claimant $15.00 per hour. During the period from January 1, 2017 through March 4, 2017, Claimant was paid $2,723.75 in gross wages. (Exhibit G). By performing the math, Claimant's average weekly wage was 272.38 and her rate for TTD is 181.59.

As the issue, as stated at Hearing was only Claimant's TTD rate, this Court will not go beyond that issue to discuss how Claimant's rate for Permanent Partial Disability ("PPD") rate should be calculated.

Claimant's job duties at the Post-Dispatch were the prevailing factor in Claimant's development of bilateral carpal tunnel syndrome. As Claimant's bilateral carpal tunnel syndrome is medically and casually related to Claimant's employment at the Post-Dispatch, the Post-Dispatch is responsible for medical treatment to cure and relieve the effects of Claimant's bilateral carpal tunnel syndrome. If Claimant is unable to work following her surgery, the appropriate rate for TTD is $181.59.

CCL does not have any liability for Claimant's bilateral carpal tunnel syndrome.

I certify that on **12-23-21**, I delivered a copy of the letter and award to the parties to the case. A complete record of the method of delivery and date of service upon each party is obtained with the executed award in the Division's case file.

By **Asp**

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**Made by:**

**Lee B. Schaefer**

Administrative Law Judge

Division of Workers' Compensation