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 happened or occupational disease contracted:

Employee's duties included loading dock refinery operator, driving a spotter truck, and operating a forklift.

1. Did accident or occupational disease cause death? No Date of death? N/A

1. Parts of body injured by accident or occupational disease: bilateral upper extremities

1. Compensation paid to-date for temporary disability: 0

1. Value necessary medical aid paid to date by employer/insurer? 0

1. Value necessary medical aid not furnished by employer/insurer? N/A

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1. Employee's average weekly wages: 1,141.83
2. Weekly compensation rate: 761.22 TTD, $514.20 PPD
3. Method wages computation: Stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable: None
2. Future requirements awarded: None

On January 19, 2022, the parties appeared for a hardship hearing in Jefferson City, Missouri. Brian Cox ("Claimant") appeared personally and by counsel, Mark Cordes. The employer and insurer appeared through counsel, Michelle Symank and Caroline French. The parties requested an opportunity to file post-hearing briefs. The record was completed and submitted on February 11, 2022.

The parties stipulated to the following facts:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That the parties agree to have the evidentiary hearing in Cole County;
3. That the claim for compensation was timely filed and proper notice was given;
4. That both the employer and Claimant were covered under the Missouri Workers' Compensation Law at all relevant times;
5. Claimant's average weekly wage was $\ 1,141.83 per week. His rate for permanent partial disability is $\ 514.20, and his rate for temporary total disability is $\ 761.22 per week.
6. The employer paid $\ 0 in medical aid.
7. The employer paid $\ 0 in temporary total disability benefits.

1. Whether Claimant sustained an occupational disease/injury, which arose out of and in the course of his employment.
2. Whether Claimant's employment was the prevailing factor in causing his bilateral upper extremity injuries and any resulting disability.
3. Whether Claimant sustained injuries that will require medical treatment to cure and relieve Claimant of the effects of the injuries.

Claimant testified at the hearing in support of his claim. I take administrative notice of the division's files related to Claimant. Claimant offered the following exhibits, admitted without objection:

1. Dr. Schlafly deposition and attached exhibits

The employer offered the following exhibits admitted without objection:

A. Report of Injury

B. Job Title History Doe Run

C. Peak Ergonomic Analysis - Load Dock Refinery

D. Peak Ergonomic Analysis - Casting

E. Dr. Brown deposition and attached exhibits

F. Dr. Lum medical records

This is a hardship hearing. Claimant seeks an award requiring the employer to provide additional medical treatment for bilateral hand and wrists injuries. Claimant is 34 years old and employed at Doe Run Company since 2012.

According to his employment records, Claimant primarily worked two positions during his employment at Doe Run. From December 16, 2013, to January 2, 2017, Claimant worked in the caster position. From January 2, 2017, to March 2021, Claimant worked as a refinery operation. Ex. B.

In the casting position, hot lead is poured into a mold called "pigs" on an assembly line. A caster then skims the lead to scrape off a layer of film by using a tool with a wooden handle. Claimant would extend his arm and the tool and then pull the tool back toward him. This task was performed continuously during the shift.

Casters then stack the lead and band them together in order to be stamped. A pig weighs anywhere from sixty to one hundred pounds. Casters are required to manually pick up the pigs until they are bundled. Once pigs are bundled, they are moved to the warehouse by forklift. A caster under this job title may work in one of three, or all three, positions during their shift.

Ergonomic analysis of the casting position indicated a moderate risk for injury to the distal upper extremities if the employee spent a majority of time working in the pig casting inspection task; however, given the varied nature of this job title and the tasks performed during the day, this job, as a whole, presented at most a low risk for injury to the distal upper extremities. Ex. D.

As a refinery operator on the loading dock, Claimant would typically spend approximately 4 hours a shift operating a forklift and loading the trucks with the finished product. He would operate the forklift with his right hand and arm and would drive the forklift with his left hand and arm. Claimant would also move the trucks and trailers to the loading dock. Claimant testified that the driving surface was uneven and bumpy, which caused the steering wheel to vibrate. Prior to loading the trucks, Claimant would also paint the lead, which involved using spray paint cans to paint stripes on the loads. He would also place a lead stamp on each load. This involved hitting the stamp or label with a hammer. Claimant testified that he would perform this task 21-22 times for every load. He would complete over 25-30 loads per shift.

Ergonomic analysis of the loading dock position indicates it presents a low degree of risk for injury to the distal upper extremities. There appeared to be no significant exposures for the wrist/hand, vibration, work pace and stress. Ex. C.

Claimant first reported issues with his hands to Dr. Lum, his primary care physician, on October 21, 2019. Claimant established care with Dr. Lum beginning January 30, 2018. Prior to October 21, 2019, Claimant sought treatment from Dr. Lum for low back pain, hypertension, dermatitis, and depression. October 21, 2019, was the first notice of any complaints about his hands or wrists. Claimant stated he thought he had arthritis, and reported "both hands hurt, worse in the morning, worse at night." He said it affected his sleep and he was unable to grip a fishing pole. Dr. Lum noted positive Tinel and Phalen's. Ex. F. Dr. Lum recommended a nerve conduction study.

Issued by DIVISION OF WORKERS' COMPENSATION

The only other treatment Claimant received occurred on November 16, 2020. On that date, Claimant received injections in both elbows.

Experts

Dr. Brown

Claimant notified the employer on October 23, 2019. The employer sent Claimant to Dr. Brown, a board certified hand surgeon. Dr. Brown evaluated Claimant on February 25, 2020. Dr. Brown's deposition was taken on November 12, 2021. Dr. Brown took a medical history and employment history from employee, performed a physical examination, and reviewed an ergonomic job analysis for employee's job duties as a loading dock/refinery operator.

Dr. Brown recommended nerve conduction studies that were performed on the same date. Dr. Phillips reported the studies showed bilateral carpal tunnel syndrome, rather severe in the right hand and moderate in the left hand.

Dr. Brown confirmed a diagnosis of bilateral carpal tunnel syndrome, however, he did not feel his job, or any of the duties described by Claimant or reported in the job analysis, was the prevailing factor in the development of the condition. Thereafter, Dr. Brown reviewed an additional ergonomic job analysis for employee's job duties as a caster/refinery operator and the deposition transcript of employee. Dr. Brown issued an addendum report dated February 18, 2021, indicating the additional information did not change his opinions.

Dr. Brown's deposition was taken on November 12, 2021. He testified employee told him directly, and reported within a patient questionnaire, that his current job role entailed driving a spotter truck or driving a forklift. Dr. Brown further testified employee advised him he would occasionally do other activities such as spray paint a line or several lines on orders, or place a stamp on an order, but the majority of his job as a loading dock/refinery operator entailed either driving a spotter truck or forklift.

Dr. Brown testified his review of the ergonomic analysis specific for employee's position as loading dock/refinery operator revealed two significant findings, which informed his opinions. First, Dr. Brown testified the job analysis was consistent with the job description provided by employee in that it reflected that a majority of what employee did in this role was operate either a spotter truck or forklift. Second, Dr. Brown testified the assessment of the ergonomic analysis of the job presented a low risk for injury to the distal upper extremities. Dr. Brown testified, based on the job description and the ergonomic analysis, he did not believe the job duties as a loading dock/refinery operator posed an occupational risk factor for either carpal tunnel syndrome or cubital tunnel syndrome.

Dr. Brown testified he subsequently reviewed an ergonomic analysis for the position of caster, or casting, as well as employee's deposition testimony. Dr. Brown reported employee first developed symptoms in September 2019, which would have been three years after he last worked as a caster. Although the position of caster presented some occupational risk factor in his job duties, Dr. Brown testified this information was irrelevant because employee had not performed those duties in three or four years.

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Issued by DIVISION OF WORKERS' COMPENSATION

Dr. Schlafly, a board certified hand surgeon, also evaluated Claimant. The evaluation took place on June 9, 2020. Dr. Schlafly's deposition was taken on September 29, 2021. Dr. Schlafly took a medical history and employment history from employee, performed a physical examination, and reviewed an ergonomic job analysis for employee's job duties as a loading dock/refinery operator on this date. Dr. Schlafly also reviewed the nerve conduction study and Dr. Brown's report.

Dr. Schlafly diagnosed Claimant with bilateral carpal tunnel syndrome, lateral epicondylitis of the right elbow, and mild lateral epicondylitis of the left elbow. Dr. Schlafly recommended bilateral carpal tunnel releases and cortisone injections at the lateral epicondyles of the elbows. Dr. Schlafly opined Claimant's work at Doe Run was the prevailing factor and the cause of his bilateral carpal tunnel syndrome and lateral epicondylitis of his elbows.

Dr. Schlafly further opined the entirety of Claimant's employment was the cause of the diagnoses. Regarding the casting work, Dr. Schlafly noted Claimant did forceful repetitive gripping with the hands using the skimming tool repeatedly for a period of several years. As far as the loading dock work, Dr. Schlafly noted the diagnoses were primarily related to the exposure to vibration when employee was operating the spotter truck at least two hours per day.

Section 287.140 .1 provides, in part, that "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." Claimant bears the burden of proof on this issue. Rana v. Landstar TLC, 46 S.W.3d 614, 622 (Mo. App. 2001).

An employer is required to provide medical care only if "the evidence establishes a reasonable probability that additional medical treatment is needed and, to a reasonable degree of medical certainty, that the need arose from the work injury." ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 53 (Mo. App. 2007). See also Lawson v. Ford Motor Co., 217 S.W.3d 345, 351 (Mo. App. 2007) (need for medical treatment must flow from the accident). An employer may not be ordered to provide medical treatment for non-work related injuries or conditions. Bowers v. Hiland Dairy, 132 S.W.3d 260, 270 (Mo. App. 2004).

Section 287.020.3(1) sets forth the statutory test for medical causation applicable to this claim, and provides, in relevant part:

An injury by accident is compensable only if the accident 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.

Issued by DIVISION OF WORKERS' COMPENSATION

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 employee in a workers' compensation case has the burden to prove a causal connection between the injury and the job. Section 287.808; *Royal v. Advantica Rest. Group, Inc.*, 194 S.W.3d 371, 376 (Mo. App. 2006) (citations omitted). "Medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause." *Lingo v. Midwest Block & Brick, Inc.*, 307 S.W.3d 233, 236 (Mo. App. 2010).

The development of carpal tunnel syndrome and other occupational diseases are medical conditions not within common knowledge treated by physicians specializing in the treatment of upper extremities. A claimant must present credible medical evidence to support a finding that carpal tunnel syndrome arose out of his employment and that his occupational exposure was the prevailing factor in causing both the resulting medical condition and disability.

Here, two qualified physicians offer different causation opinions. Both doctors are board certified orthopedic surgeons specializing in hand surgery. Both doctors agree on Claimant's diagnosis - bilateral carpal tunnel syndrome. Both doctors believe that Claimant needs additional treatment including surgery. Dr. Schlafly believes that Claimant's work activity caused the need for further treatment. Dr. Brown believes that Claimant's condition is unrelated to his work activity.

After careful review of the evidence, I find that Claimant has not met his burden of proof. I find Dr. Brown's opinion credible and based on a more thorough review and analysis of Claimant's work and medical history.

While Claimant testified at the hearing that he began having issues with his hands in 2015, he did not seek treatment until October 21, 2019. Then, he reported pain in both hands to his primary care physician. Notably, Claimant reported to both IME doctors that his condition started in 2019. Ex. E, Dr. Brown's report ("September of 2019"); Ex. 1, Dr. Schlafly's report ("in 2019"). In light of the doctors' reports, I find Claimant's testimony regarding the onset of pain is not credible.

This is significant because Claimant's job duties as a caster were more hand intensive than his later duties as a loading dock/refinery operator. Claimant worked as a caster from December 16, 2013, to January 2, 2017. By the time Claimant reported pain in his hands, he had not worked in that position for two years and nine months.

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.

Both doctors also acknowledged that the loading dock/refinery operator position presented a low risk of injury to the distal upper extremities as confirmed by the ergonomic assessment. Dr.

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Schlafly opined that Claimant's exposure to vibration when he was operating the spotter truck at least two hours per day caused the condition in combination with his duties as a caster years earlier.

Dr. Brown testified credibly that there is no medical evidence to suggest the act of driving increases the risk of developing carpal tunnel syndrome. Dr. Brown credibly pointed out the activity of driving has been studied and measured, and the amount of vibration from driving is not significant enough to cause damage to the peripheral nerves.

More importantly, I find that Dr. Brown is more credible in evaluating Claimant's entire work history. I find, per Dr. Brown, that Claimant did not exhibit any CTS symptoms while working as a caster and his work as a caster had no effect on his CTS diagnosis almost three years later. Notably, Dr. Schlafly did not opine on whether Claimant's condition was caused by the loading dock/refinery operator duties alone.

Dr. Brown's credible testimony supports a finding that Claimant's work duties were not the prevailing factor in the development of bilateral carpal tunnel syndrome.

Claimant failed to meet his burden of proof. Claimant's request for medical treatment is denied.

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I certify that on Mar 08 2022 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By: __________________________

Made by: __________________________

Bruce Farmer

Administrative Law Judge

Division of Workers' Compensation