Thursday, September 17, 2009

Repetitive trauma - benefits denied

Cubital tunnel

Claimant worked for Triumph Foods.  He claims he would trim fat from meat and developed symptoms in his arm and hand.  He describes pain from his shoulder to his hand.   He was subsequently hired at La Costa. Jack v Triumph Foods , 2016 MO WCLR Lexis  ___ (April 15, 2016). 

Dr. Prostic regarded the work at Triumph to cause cubital tunnel syndrome and he recommended further studies.  When Dr. Prostic re-examined him after claimant worked for another employer her diagnosed bilateral carpal tunnel syndrome and recommended further studies. 

Dr. Wilkinson examined him and found no objective findings to explain his reports of pain in his arms and legs.  He assigned zero disability and found no need for further treatment. 

"Dr. Prostic does not convincingly explain how Claimant’s work for Employer could have caused the carpal tunnel condition he diagnosed in 2014 when Claimant did not have carpal tunnel in 2012, and Claimant had not worked for Employer since 2011."

Dr. Prostic identifies no findings of cubital tunnel exam on his second evaluation. 

ALJ  Miner
Experts:  Prostic, Wilkinson

No proof overhead activities aggravated cervical spinal disease
Claimant failed to prove overhead lifting and turning his head during the last 5 1/2 months of employment aggravated his prior cervical disc disease.  The ALJ noted the MRI studies were essentially identical.  "If Claimant's work from November 5, 2002 to April 21, 2003 "aggravated" or "progressed" the "degenerative changes" to any significant degree, why does the May 21, 2003 MRI not evidence such "aggravation" or "progression"? And perhaps equally importantly, why did Claimant tell all the health care providers that his symptoms were from the March 6, 2001 accident? The evidence and logic all lead to the conclusion that the there was no appreciable "aggravation" or "progression" of Claimant's underlying degenerative cervical spine changes due to the work."  The case involved a claim for SIF benefits after the employer paid a settlement.  Smith v Curators of the University of Missouri, 2014 MO WCLR Lexis 315 (Nov. 21, 2014).
ALJ Dierkes
Atty:  Allen, Herman
Experts:  Volarich

No proof welding duties were prevailing factor in cervical disc
Claimant failed to prove that "flipping" his welding helmet up to 500 times a day caused his cervical radiculopathy and subsequent two level fusion.  Claimant was a career welder and developed that work had caused his carpal and cubital tunnel syndrome.  Claimant's expert contends he needed revision surgery because the first fusion did not resolve his arm symptoms.
ALJ  Lane
Atty: Finley, Frayne
Experts: Howard, Volarich
Treater:  Garcia

No proof subluxation flows from repetitive climbing
Claimant in a Fund liability claim established that climbing activities may have aggravated her knee but they were not the prevailing factor and relied upon expert opinion that patellar tilt does not arise from over-use.  Smith v BF&B Enterprises, 2013 MoWCLR Lexis 154 (August 20 2013).
ALJ  Carlisle
Atty Hoener, Hudson
Experts:  Poetz, Cantrell

Repetitive trauma and prosthesis failure
Claimant required a replacement prosthesis but failed to establish the need arose from an accident at work or from repetitive trauma, according to a court of appeals decision which affirmed a previous denial of benefits. Robbins v Webco, 369 S.W.3d 787 (Mo. App. 2012).  Claimant alleged his prosthesis broke at work, he used it more at work, and his exposure at work was greater than away from work. His job involved regularly lifting heavy components.

The court of appeals noted the statute allows compensation for injury to prosthesis but claimant failed to prove he had an accident. No expert attributed the prosthesis failure to an accident. The prosthesis had reached the end of its expected life span. Claimant further asserted he had greater exposure at work than at home and as a result he had a repetitive trauma. The court noted based on its standard of review it would not disturb the Commission's finding that exposure was not greater at work based on conflicting testimony from the claimant in his deposition that he used his prosthesis "all the time" away from work and other testimony that he "rarely" used it. The court declined to reach the issue if 287.067.3 allowed such a cause of action for repetitive wear and tear to an unrelated prosthesis.

Atty: Alberhasty, Love, Corburn

Inconsistent clinical findings
The commission reversed an award for future medical care for carpal and cubital tunnel, finding the opinion of claimant's expert less credible because his diagnosis was not supported by EMG studies or some other clinical findings.  The case flowed from a 2003 accident with "liberal" construction.   The commission reduced claimant's award from 25% of the elbow  to 10% for a crush injury to the hand and found no future medical treatment flowed from the accident.   The ALJ improperly awarded PPD when claimant had not reached MMI.  Callahan v Booksource, 2012 Mo WCLR Lexis 120 (June 19, 2012)
ALJ  Ruth
Atty:  Burke, Cero
Experts:  Strecker, Schlafly

Dual claim of accident/occupational disease
The administrative law judge awarded disability finding claimant established two compensable claims to the same shoulder pleading alternate theories of accident and occupational disease. The Commission, however, reversed, finding only a compensable accident contrary to causation opinions of claimant's experts.  Woods v EFCO, 2012 Mo WCLR  (2-1-12)
ALJ  House
Atty:  Carlton, Johnson, Hammers
Expets: Hartman, Swaim

Short employment not work related
Claimant failed to demonstrate her work duties represented the prevailing factor in her carpal tunnel when she worked only about 6 weeks and reported right handed symptoms within 3 days.  The ALJ found the claimant "not credible."  She had additional risk factors associated with BMI and hepatitis.  The employer's expert indicated that obesity-related carpal tunnel might produce unilateral symptoms.  Evans v Manpower, 2012 MO WCLR 80.  (April 5, 2012)
ALJ Tilley
Atty:  Heckemeyer
Experts:  Brown, Schlafly

Claimant described worsening arm symptoms after 6 weeks on the job, but failed to persuade the Division that his carpal and cubital tunnel surgeries flowed from his work. Claimant identified a two-year history of symptoms, but a prior employer is not identified in the award. Butler v Faultless Linen, DOLIR 8-19-10.
ALJ: Lane
Atty: Thurmer, Evans
Experts: Schlafly, Byler
Treater: Bagwe

Lack of distinctive job feature defeats carpal tunnel
Pro se claimant worked as a secretary for 3 years until 1989, she quit work for unknown reasons, and she underwent carpal tunnel releases in 2004-2005. In a 2010 hearing she requested future medical and disability she failed to produce either medical evidence or lay testimony identifying a distinctive feature of her job causing carpal tunnel. Grant v Anheuser Busch, DOLIR 4-8-10.

Pregnancy defeats causation of carpal tunnel
HR employee failed to prove carpal tunnel arose from computer activities due to chronology of symptoms occurring late in pregnancy mostly after bedrest restrictions. Bosch v Reuters, DOLIR 2-4-10. Dr. Sudekum further testified that claimant's work activities represented a triggering activity but not a high risk.

Prior diagnosis defeats claim
Claimant failed to prove her 2001 dequervain's flowed from her employment, when she was diagnosed and treated for same condition with a previous employer. Claimant attempted to assert her symptoms became broader and worse. Treadwell v Lutheran Home for the Aged, DOLIR 1-14-10.

Fry station operator fails to prove carpal tunnel prevailing factor
Claimant's medical expert Dr. Poetz testified that the condition was "from work" but failed to clearly indicate work was the prevailing factor, resulting in a failure in claimant's burden of proof. Both experts agreed that claimant's body mass index and gender were also "factors" to explain the carpal tunnel onset shortly after claimant began employment. Judge Kohner concluded claimant had established a 30% disability, based on Dr. Poetz' finding and did not identify any disability assessment from employer's expert Dr. Brown. Candace Fry v. Christian Foods, DOLIR 11-4-09.

Telemarketer fails to prove work caused cubital tunnel syndrome
A pro se claimant failed to prove that her cubital tunnel syndrome arose from 4 years of part-time employment as a telemarketer when her expert lacked sufficient detail about her specific job duties despite an expert medical opinion from Dr. Paff that her condition arose from work. Dr. Corsolini concluded he could not identify a work-related diagnosis for claimant's non-specific pain and noted normal NCV studies. Claimant's prior medical expert Dr. Bennoch concluded he could not find a work-related condition either. Claimant's medical history was significant for progressive fibromyalgia. The case was an "old law" case, dating back to a 1997 onset. Claimant found subsequent employment working for a personal injury attorney after the telemarketing job. The Division noted motions to withdraw of multiple previous attorneys. Dobbs v MCI, DOLIR 10-22-09. Wilson.

Firefighter fails to prove work prevailing factor in back condition
A firefighter with 26 years experience and history of prior lumbar surgery established that he sustained further permanent partial disability from falling in a pond which required more therapy. He claimed, unsuccessfully, that he was permanently and totally disabled or he had an occupational disease as reflected by multiple reported back injuries. The court noted claimant had introduced evidence from an expert, Dr. Lichtenfeld, that his condition arose from work, but found it less persuasive than testimony from Dr. Chabot and Dr. Cantrell, who noted prior degenerative conditions. Claimant, in addition to receiving an award of 12 1/2% PPD from Judge Landolt, also received an award of nearly $12,000 from the second injury fund because of a prior shoulder problem, ringing in his ears, and a prostate problem he stated was industrially disabling because he had to take more bathroom breaks. The court noted the claimant had a duty to establish with a probability that his condition arose from work.The cases are James Andrews v City of Glendale, DOLIR 6-24-09. (sob 11-10-09, ed 93219)

Audio technician fails to prove work prevailing factor in carpal tunnel
Claimant alleged carpal tunnel, but failed to establish that work was the prevailing factor. Claimant asserted that he didn't "put it together" that work caused his condition until after his initial surgery. He had worked 17 years as an audio technician and that his job duties place his hands in cocked up positions to operate audio boards during business meetings. Claimant provided no history of occupational concerns when treated by Dr. Kitchens. Claimant provided a history that he played as a bass player, drove motorcycles, and had diabetes. ALJ Ottenad denied benefits based on the expert opinion of Dr. Ollinger who found claimant's diabetes and obesity (233 pounds) represented risk factors and that Dr. Ollinger had a better understanding of claimant's job duties.The case is Wolin v Swank Audio Visuals, affirmed 3-0 on 9-1-09.

Carpal tunnel from stuffing envelopes denied
Claimant failed to establish that stuffing envelopes and similar duties represented the prevailing factor in her development of carpal tunnel syndrome, due to other risk factors including diabetes, obesity, hypertension, and menopause, in a decision affirmed by the Commission, McCarthy v Concentra Health Care, DOLIR 10-6-09. Commissioner Hickey authored an extensive dissent that risk factors alone do not defeat causation, in the absence of evidence that the claimant had some clinical evidence of the condition from such risk factors. He further concluded the statute under strict construction has abrogated compensation for occupational disease under the 2005 amendments back to pre-1931 law, due to repeated statutory reference only to "injury", in what appears to be almost an amicus curiae for the next post-Mo Alliance challenge.

Carpal tunnel claim denied

A forklift operator failed to prove his job duties caused carpal tunnel in his non-dominant left hand when he described an insidious onset of symptoms to his treating physicians and had other risk factors of severe arthritis and congenital abnormalities. Enderlee v Legget & Platt, 2012 Mo. WCLR Lexis 101 (May 2, 2012). Claimant's expert was not a hand specialist and he attributed the condition to operating a forklift, depressing an elevator button about 25 times a day and "probable" vibration. The Commission affirmed 2-1.
ALJ Tilley
Atty: Weiss, Voigt
Experts, Woiteshek, Sudekum

laimant failed to prove that labeling, scanning over 600 seats per shift was a prevailing factor to her bilateral carpal and cubital tunnel syndrome. Both experts agreed claimant performed repetitive duties but Dr. Crandall concluded such activities were not sufficiently hand intensive to satisfy OSHA criteria. Judge Kohner criticized both Drs. Crandall and Schlafly for not citing scientific studies addressing causation of carpal tunnel and considered the OSHA criteria vague. The parties had stipulated to disability and the employer asserted a "credit" of nearly $12,000 and submitted the case solely on causation. The Commission affirmed 2-1, with a dissent criticizing the job video as an inaccurate representation. The case is Gordon v Lear Corporation, 2009 MO WCLR Lexis 77.

No carpal tunnel from driving bus
Claimant, 63, failed to prove operating a bus for 12 years represented the cause of his bilateral carpal tunnel syndrome. Claimant had a history of diabetes and the employer expert, Dr. Crandall, testified that the activity was not of such intensity to cause the disease. The case is Noman v Bistate Development, 2009 Mo. WCLR Lexis 130.

Nurse fails to prove work prevailing factor in rotator cuff tear.
A registered nurse failed to prove a repetitive trauma injury to her shoulder in 2006 caused a rotator cuff tear, based on testimony from Dr. Stuckmeyer, due to lack of credibility from inconsistent medical histories. Claimant stated since she was sore after work she thought that work caused her condition, but medical records did not identify a work origin. Brooks v Research Medical Center, 2009 Mo WCLR Lexis 66.

Nurse fails to prove work prevailing factor in herniated discs.
A 48 year old certified nurse's aide with prior symptoms failed to prove her repetitive job activities caused her herniated disc.  Thomas v Pemiscot County, 2014 MO WCLR Lexis 26 (Feb. 26, 2014).
ALJ Kasten
Atty:  Turnbow
Experts:  Volarich, Robson, England, Dolan

Delay in treatment and calcific findings defeat causation of rotator cuff tear
A 43 year old city trash truck operator failed to convince a judge that she developed repetitive trauma and rotator cuff tear to her shoulder, from operating a lift lever in a trash truck for four months in 2004, according to a recent decision affirmed unanimously by the commission. The case is Lytle v City of St. Louis, DOLIR 7-25-11. Claimant postponed treatment for nearly two years and a 2006 arthrogram did not identify a tear subsequently repaired in 2007. Calcification suggested other traumatic origin, according to the employer's expert.  affirmed without opinion.   2012 Mo. App. Lexis 375 (3-20-12). 

ALJ: Tackes
Atty: Hoener, Goeddel
Experts: Schlafly, Kostman
Treater: Perry, Kinsella

No carpal tunnel from dispatching
A police dispatcher employed about 6 years failed to prove his dispatching duties caused his carpal and cubital tunnel syndrome, in a decision affirmed 2-1 by the Commission in Martin v City of St. Ann, 2010 Mo WCLR Lexis 22.  The dissenting commissioner concluded that ALJ Percy unduly focused only on claimant's keyboarding activities and found Dr. Volarich had a better understanding of dispatching duties, noting that Dr. Volarich had found dispatching duties as a cause of carpal tunnel in previous cases. Dr. Volarich did not find claimant's motorcycle activities defeated causation.

No radial tunnel syndrome from housekeeping
A one year employee failed to establish she had radial tunnel syndrome flowing from performing job duties.  The medical experts disagreed regarding the diagnosis of radial tunnel syndrome and the ALJ found the claimant's expert relied upon an inaccurate job description to find causation.    Patterson v Aramark Family Services, 4-11-2013, 2013 Mo WCLR Lexis 69. 
ALJ  Landolt
Atty: Weigley, Amsler
Experts:  Sudekum, Rotman

Mechanic work not prevailing factor to total knee
Claimant worked 27 years as a mechanic standing on concrete, climbing platforms, etc. and underwent a chondroplasty of the knee and was told he may need a total knee replacement. The employer successfully defended the case, when work was merely a triggering factor and not a substantial factor in the cause of the condition. Claimant's expert Dr. Musich relied upon an incomplete medical history. ALJ Boresi found employer expert Dr. Kostman more persuasive, noting the impact of a prior surgery, a valgum deformity, and findings of arthritis in the opposite knee, and lack of history of bending, squatting or similar activities.The case was affirmed 3-0 by the Commission,  Portell v GKN Aerospace, 2009 Mo WCLR Lexis 106.

Chrysler employee failed to prove worked prevailing factor in back condition
In a similar claim, claimant alleged occupational disease resulting in a herniated disc from working at Chrysler since 1995. ALJ Hart adopted Dr. Chabot's conclusion that claimant's condition arose from progressive degeneration, noting the absence of specific accidents and a reported worsening of symptoms while claimant was off work for a heart condition. The Commission affirmed the case 2-1, Wallace v Chrysler, 2009 MO WCLR Lexis 125.

Cleaning crew employee failed to prove work as prevailing factor in back condition
Claimant failed to demonstrate performing various cleaning duties and emptying trash for several years produced bulging discs and piriformis syndrome, as asserted by her expert.  The ALJ denied benefits noting symptoms were more consistent with degenerative disc disease while made her not ideally suited for the job.  A dissenting commissioner indicated that claimant's subjective symptoms were persuasive despite the lack of objective findings on any MRI studies.  Claimant was noted with significant psychiatric comorbidities related experiences in the Bosnian war.  Kadric v Centaur Building Services, DOLIR (incorrectly dated by the Commission as "7"-28-2013), affirmed without opinion 2014 MO App Lexis 266 (March 11, 2014). 
ALJ Wenman
Atty:  Niesen, Mohan
Experts:  Musich, Lange

Two weeks back on job is not new repetitive trauma claim
The Commission reversed an award of benefits issued by Judge Lane, finding a misapplication of the old "aggravating" factor instead of the new statutory "prevailing" factor standard to a claimant seeking further surgery for a frozen shoulder, when she reported a new injury right after returning to work from a prior clavicle surgery. Claimant failed to prove increased shoulder pain after dumping trash was the prevailing cause of any need for ongoing medical treatment, when she had been back to work less than two weeks, had ongoing shoulder symptoms, used the shoulder in a guarded fashion, and expert testimony attributed her current diagnosis of frozen shoulder flowing from a previous clavicle surgery based on findings of callus formation. Claimant had retained Dr. Sedgwick who identified several possible causes and concluded surgery would only decisively determine the cause. The Commission considered Dr. Sedgwick's conclusions less persuasive. The 2-1 holding cites Gordon and the importance of specific radiological or operative findings to differentiate prevailing and aggravating factors while applying the new definition of accident. The case is Huskic v Mo Baptist, 2009 MO WCLR Lexis 115.

Claimant driver fails to prove causation - brief employment duration
Claimant failed to prove his work duties operating a truck briefly caused his myofascial shoulder pain, based on defense opinion from Dr. Cantrell. Claimant stated he experience symptoms within a week, and was fired shortly after reporting problems. The employer stated the truck was one-year old and found no defects in the seat, as alleged by the claimant.  v Arom Inc., 2009 MO WCLR Lexis 72.

Machine operator failed to show rotator cuff work related
In Suljo Cuskic v True Mfg., 1009 MO WCLR Lexis 55., a Bosnian claimant failed to demonstrate that job duties as machine operator caused his rotator cuff tears from repetitive trauma, based on testimony from Dr. Rotman. Dr. Rotman originally found the conditions work related, but reversed his opinion after reviewing a videotape depiction. The claimant asserted he spent 70% of his time doing over-head work, contrary to the video. Commissioner Hickey concluded that the videotape was not an accurate representation of claimant’s job activities regarding the scope and pace of his duties, and suggested ALJGorman may have required too high of a burden of proof regarding causation. (Oral arguments 11-10-09, ED 92944).

Lifting bags - benefits denied
Claimant failed to prove her repetitive job duties in a mail room for a few months lifting heavy bags in 2002 was a substantial factor in her disputed C4-c7 fusion performed in 2005 by Dr. Hadi. Claimant had undergone a previous cervical fusion, and continued to treat periodically for neck symptoms a few months leading up to her employment. Her previous medical conditions included fibromyalgia and prior to her employment she had applied for social security in part because of persistent neck symptoms.

ALJ Mahon awarded claimant 15% disability for her low back, diagnosed as spondylosis and/or protrusion, and treated with ESI, based on a 15% rating furnished by Dr. Koprivica. ALJ Mahon observed some of the experts were not fully informed about claimant's medical history. Dr. Koprivica opined that claimant had segment degeneration as a result of the prior surgery. A dissenting Commissioner concluded claimant had established her neck condition was a compensable injury. The case is Brown v Mo Department of Corrections, DOLIR 5-18-10.
Attorneys: Plattner, Harris, Rowe
Experts: Koprivica, Batchu
Treater: Hadi
ALJ: Mahon