Brian Cox v. Doe Run Company

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

Injury No.: 19-108693

Employee: | Brian Cox |

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record, we find that the award of the administrative law judge (ALJ) denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to $\S 286.090$ RSMo, we affirm the award and decision of the administrative law judge (ALJ) with this supplemental opinion.

The ALJ's March 8, 2022 decision in this case is designated a "Temporary or Partial Award." However, "[a] 'final award' is one which disposes of the entire controversy between the parties." State ex rel. Lester E. Cox Med. Ctr. V. Wieland, 985 S.W.2d 924, 926 (Mo. App. S.D. 1999). Claimant's ${ }^{1}$ appeal to the Commission is proper in this case because the ALJ rendered his March 8, 2022 decision on an issue dispositive of the entire case: whether there was a compensable accident or incident of occupational disease under the law. See 8 CSR 20-3.040.

In the numbered list on page 1 of the award, the ALJ's findings of fact and conclusions of law include:

1. Was there injury or occupational disease compensable under Chapter 287? No
2. Was there an accident or incident of occupational disease under the Law? No

Consistent with those determinations, we strike item number eight in that list and replace it with the following:

1. Did accident or occupational disease arise out of and in the course of employment? No

In his causation analysis, the ALJ noted on page 7 of the award:

Both doctors acknowledged that the duties of the caster position presented a moderate risk of injury to the distal upper extremities as confirmed by the ergonomic assessments. Dr. Schlafly appears to rely on the duties of the caster position to bolster his opinion that Claimant later developed carpal tunnel syndrome. I do not find this credible as Claimant did not report any issues with his hands during the years he worked in the caster position.

(Emphasis added).

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[^0]: ${ }^{1}$ The ALJ's award refers to the employee, Brian Cox, as "Claimant." For consistency, we also use that term in this supplemental opinion.

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Claimant correctly points out that Dr. Schlafly did not review the ergonomic assessment of the caster position prior to issuing his report or being deposed. In his deposition, Dr. Schlafly did not use the term "moderate risk" to describe the prior caster duties. Because the emphasized sentence in the ALJ's award may be read as a finding that Dr. Schlafly reviewed the ergonomic assessment of the previous caster position, we strike that paragraph and replace it with the following two paragraphs:

> Dr. Brown acknowledged that the duties of the caster position presented some risk of injury to the distal upper extremities as confirmed by the ergonomic assessment of the caster position. Dr. Brown determined that information about the caster duties was "irrelevant because [Claimant] hadn't performed those activities in three to four years."

Dr. Schlafly was not provided the ergonomic assessment of the caster position. Dr. Schlafly identified the job duties of a caster that led him to conclude that work caused Claimant's condition, which duties he described as: "Forceful repetitive gripping with the hands using the skimming tool over and over." When Dr. Schlafly attributed Claimant's condition to the "entirety of his employment, both at work with the lead smelter and then the work at the loading dock," Dr. Schlafly relied on the duties of the caster position to bolster his opinion that Claimant later developed carpal tunnel syndrome. That opinion is not credible as Claimant did not report any issues with his hands during the years he worked in the caster position.

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

The March 8, 2022 Award and decision of Administrative Law Judge Bruce Farmer is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 17th day of January 2023.


**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

*Rodney J. Campbell, Chairman*

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

*Kathryn Swap, Member*

Attest:

*Kathryn Swap, Member*

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence, as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge (ALJ) should be reversed.

I disagree with the findings made by the ALJ and adopted by the Commission as to the credibility of claimant's ${ }^{1}$ testimony regarding the onset of symptoms in his hands, and the credibility of the medical expert opinions presented.

The ALJ noted that claimant's medical records do not reference upper extremity symptoms until October 2019. Based on that fact, the ALJ discounted claimant's testimony that his symptoms began in 2015 and erroneously found that testimony to be not credible. I disagree with that credibility finding.

I find credible and persuasive Dr. Bruce Schlafly's expert opinion that in terms of occupational exposure, "there can be cumulative exposure for over a number of years that eventually results in symptoms perceived by the patient." Dr. Schlafly's testimony provides context for understanding why claimant did not seek medical treatment for the symptoms in his upper extremities until 2019. As Dr. Schlafly noted, "individuals vary in terms of sensitivity to symptoms," and "some people are stoic; some people are very sensitive."

When claimant developed symptoms in his hands in 2015, he did not immediately seek treatment; instead, he continued working for employer and dealt with his symptoms by switching hands as needed to perform his work. The delay in seeking medical treatment does not affect the credibility of claimant's testimony. Rather, it speaks to claimant's dedication to performing his job, as well as his individual tolerance of and sensitivity to the symptoms he developed while working for employer. I find credible claimant's testimony that he began experiencing symptoms in his hands in 2015 when he was working as a caster for employer.

While I disagree with the ALJ's credibility finding, I agree with the ALJ that the date of onset of symptoms is significant because claimant's job duties as a caster from December 16, 2013 to January 2, 2017, were more hand-intensive than his later duties working for employer as a loading dock/refinery operator.

Dr. Schlafly rendered an opinion of causation after considering the entirety of claimant's work for employer, including claimant's description of the hand-intensive tasks he performed as a caster. In contrast, employer/insurer's medical expert, Dr. David Brown, categorically ignored those tasks when rendering his causation opinion, testifying claimant's caster work was "irrelevant" to the condition in his upper extremities. For that reason, I find that Dr. Brown's causation opinion lacks credibility. I find credible and convincing Dr. Schlafly's opinion that claimant's work for employer was the prevailing factor and the cause of claimant's bilateral carpal tunnel syndrome. I conclude that claimant met his burden of proving employer/insurer is responsible for providing

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[^0]: ${ }^{1}$ The ALJ's award refers to the employee, Brian Cox, as "Claimant." For consistency, I will also use that term to refer to Mr. Cox in this dissenting opinion.

Improve Brian Cox

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medical treatment for claimant's bilateral carpal tunnel syndrome. I would reverse the ALJ's temporary or partial award and require employer/insurer to provide the medical treatment that claimant needs.

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

Shalonn K. Curls

Shalonn K. Curls, Member

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

www. labor.mo.gov/DWC

MARCH 08, 2022

Scan Copy

\# Denotes that the Division sent a copy of the Award by electronic mail to the email address that the party provided. The Certificate of Service for this document is maintained in the Division's records.

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 (MOIC2567). 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 the Commission.

DIVISION OF WORKERS' COMPENSATION

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

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**MISSOURI DEPARTMENT OF LABOR**

**& INDUSTRIAL RELATIONS**

Missouri Division of Workers' Compensation is an equal opportunity employer/program.

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WC-161 (05-21)

TEMPORARY AWARD APPROVAL

RLP

Relay Missouri: 800-735-2966

Issued by DIVISION OF WORKERS' COMPENSATION

TEMPORARY OR PARTIAL AWARD

Employee: Brian Cox

Injury No.: 19-108693

Dependents: N/A

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Employer: Doe Run Company

Additional Party: None

Insumer: American Zurich Ins. Co. c/o

Gallagher Bassett Services Inc.

Hearing Date: January 19, 2022

Briefs filed: February 11, 2022

Checked by:

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? No

1. Was there an accident or incident of occupational disease under the Law? No

1. Date of accident or onset of occupational disease: September 1, 2019

1. State location where accident occurred or occupational disease contracted: Dent County, Missouri

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

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 ha