Tuesday, September 1, 2009

Repetitive trauma - benefits awarded




Claimant established that he became disabled from carpal tunnel in September 2013 and that Tarlton, his employer at the time,  was liable under the last exposure rule when he reported after working about six weeks operating a jack hammer and other equipment that his hands were killing him.  Sharp v Tarlton; C. Rallo Contracting, 2015 MO WCLR Lexis 15 (Feb. 10, 2015). 

The employer argued that thee job activities did not cause carpal tunnel, and if they did it was the previous employer's liability because he was diagnosed with carpal tunnel before he was hired.   The ALJ  concluded that diagnosis and discussion of surgical options prior to his employment did not control liability because claimant did not previously miss work or was unable to perform his job and that a mere diagnosis did not make the condition disabling. Claimant asserted that he was unaware of the prior diagnosis or recommendations and felt he had a pinched nerve.   Claimant testified he performed the duties of previous employment without difficulty. 

The ALJ found no persuasive evidence that claimant's prior employment was the prevailing factor in any disabling medical condition, and Tarlton's expert provided inconsistent opinions what work activities could ever cause carpal tunnel. He  criticized expert opinion that questioned the relationship of work activities and carpal tunnel that "runs afoul of years of accepted case law and learned medical literature."

ALJ  Ottenad
Atty:  Christianson, Patterson, Schmittdiel
Experts:  Schlafly, Rotman


Claimant established CNA duties for 12 years of changing duties, pushing an shifting patients was a prevailing factor in her bilateral carpal tunnel syndrome and overcame defenses that her obesity was a greater risk factor or she failed to establish her activities were sufficiently repetitive. The employer's expert was unable to diagnose CTS based on normal nerve conduction studies and questioned if the activities of a CNA could ever been sufficiently repetitive to represent a prevailing factor.  The award included about $18,000 in medical bills.   Warren v Alexian  Bros. Landsdowne Manor, 2014 MO WCLR Lexis 136 (Nov. 26, 2014).
ALJ:  Wenman
Atty:  Hale, Tobin
Experts:  Crandall
Treater:  Schlafly



The court of appeals affirmed an award for carpal tunnel syndrome. Brune v Johnson Controls, ED 101924 (Mo App. 2015).  2015 MO App. Lexis 231 (3-10-2015)

Claimant worked at D&H where he developed problems with his hands and wrists and then went to work at Johnson Controls in the assembly department for 7 years.  He developed bilateral carpal tunnel syndrome. 

The ALJ ordered a temporary award for treatment for carpal tunnel syndrome against Johnson Controls.  The Commission relied upon expert opinion of Dr. Schlafly. The court concluded that carpal tunnel is a known occupational disease and was not idiopathic in this case as asserted by claimant's expert.   Johnson Controls was the last employer to expose claimant to the risk of an occupational disease before he filed his claim in 2005.

The employer argued that the claimant failed to prove causation and the three month exception did not apply because claimant also had filed a claimant against D&H within 36 days of the time he started at Johnson Controls.  The court deferred to the commission to resolve causation disputes between competing experts. The court applied the pre-reform standard of the last exposure rule of "for which a claim is made" (now "prior to evidence of disability") and found no other employment leading up to the claim within the 3 month period.  The court considered a prior claim against D&H irrelevant because the only "claim" before it was against Johnson Controls.  

The court noted appellant's brief had deficiencies which it identified as "numerous", and lacked  "analytic value" by not fully applying the framework for sufficiency of evidence appeals.  The court declined to reframe a dispute between experts as a dispute of law to avoid its deference to the commission on findings of fact. 

Atty:  Christianson, Green
Experts:  Schlafly, Rotman
Judge:  Hess


A Burger King employee who states she spent 99% of her time working the food counter established her carpal tunnel flowed from her work, despite expert testimony from Dr. Crandall that claimant's work was not sufficient to reach proposed OSHA standards. The ALJ reviewed a DVD and concluded causation was "obvious" and ordered treatment in a temporary award. Kitchen v Mid-America Hotel Corp., DOLIR 10-14-10.


The Commission affirmed an award of 30% of each elbow to a 63 year old file clerk who developed carpal and cubital tunnel syndrome right before her retirement.  The ALJ described the duties as:  "Claimant used the database to locate  the file, or tube of drawings, and retrieved the file or drawings for the customer. When the customers finished with the files or drawings, they placed them in a basket for Claimant to re-file. The drawings were stored in three foot tubes, and Claimant rolled them up to return them to the tube. The file cabinets were very full, and it took a lot of force to pull files out.  During the last three to four years Claimant worked for Employer, she also helped transfer information into the new database. When she was not waiting on customers, she manually moved all inappropriately stored information out of the database and put it into the correct spot in the new database. In addition, Claimant worked on the project to scan drawings into a digital format. She slowly fed the drawings into the scanner, similar to copying a piece of paper."
In reaching the conclusion, the ALJ noted claimant produced an expert opinion which she found more persuasive than a causation opinion from a hand surgeon or from an ergonomist who observed claimant perform her duties.  Claimant sought reimbursement only of out-of-pocket expenses of treatment not paid by her group insurance.  Szigeti v Metropolitan Sewer District, 2014 Mo WCLR Lexis 112 (Sept. 16, 2014). 
ALJ:  Hart
Atty:  Cordes, Hilliker
Experts:  Woiteshek, Crandall, Zuccarello
Treater:  Howard

Claimant's work 9 years as a customer service representative at a gas company caused her carpal tunnel when she typed 90% or more of the time, based on a recent Commission decision, endorsing the opinion of claimant's family medicine expert and rejecting a causation opinion of a hand surgeon who considered keystrokes inadequate. Judge Vacca indicated keystroke data was unreliable arising from a subsequent less intensive job after claimant had already developed symptoms and dismissed the entire idea of keystroke analysis as not generally accepted in the medical community. Judge Vacca awarded 25% of each wrist, noting employer's expert Dr. Crandall did not tender a rating or alternative cause and sharply criticized his conclusions as "ridiculous" that the profession could not cause carpal tunnel.  Fink v Laclede Gas, DOLIR 11-3-09.

See also
 Dobbs v Jefferson Memorial Hospital, DOLIR 6-24-10.   Dr. Crandall, the employer's expert, reviewed a job description and testifies that claimant's job is not associated with carpal tunnel: "a histology technician can’t get carpal tunnel syndrome."

A customer service rep who answered phones for ATT received a temporary award for bilateral carpal tunnel, based on complaints that her symptoms began within a year of her employment. The administrative law judge noted claimant reported the height of the keyboard and absence of a wrist pad put "stress" on her arms, unlike other jobs where she performed similar duties. Claimant denied prior carpal tunnel syndromes during earlier periods of obesity that approached 400 pounds. The employer's expert based its denial on insufficient exposure to cause carpal tunnel based on an an OSHA report. Claimant answered 50-55 calls a day. Claimant stated she never counted keystrokes, but the administrative law judge concluded the estimate by defense expert of 155 keystrokes per customer was "unrealistic." The former employee noted that her expert spent more time with her and had better eye contact during the exam. Eaton v ATT, DOLIR 3-9-11.

ALJ Murphy
Atty: Evans, Taylor
Experts: Schlafly, Olinger
Treater: Deisher


A driver who asserts full-time duties driving a disability van and securing wheelchairs with straps caused carpal tunnel was supported by evidence and not against overwhelming evidence despite contrary medical opinions.  Harris v Bi-State Development, 2014 Mo. App. Lexis 295 (March 18, 2014).  The Commission reversed the original denial of benefits.
Experts:  Koo, Crandall, Schlafly
Treater:  Schlafly

The Commission reversed a denial of benefits to a driver for carpal tunnel, noting risk factors from driving and grasping wheelchairs for transportation.  Claimant had numerous risk factors unrelated to employment. Harris v Bi-State Development Agency,  2013 Mo WCLR Lexis 162 (August 23, 2013)
ALJ Carlisle
Experts:  Margolis, Crandall
Treater:  Schlafly

Claimant worked 16 years driving a bus and established opening a door during 89 daily stops was the prevailing factor in her shoulder bursitis and need for treatment in a temporary award.  The only orthopedist to testify related to the condition to arthritic spurring and os acromialeChrismer v First Student, 2012 Mo WCLR 12 (Feb. 8, 2012)
ALJ  Schaefer
Atty:  Christianson, Wright
Experts:  Lichtenfeld, Emanuel



Claimant's testimony and opinion from his retained expert that his job duties lifting 20-40 drums a day established with reasonable probability that his work duties caused cubital tunnel syndrome, despite a job analysis and video that suggested his activities were less intense. Administrative law judge Vacca awarded 35%, the rating from claimant's expert, and on his own awarded disfigurement although it was not stipulated issue at hearing.  McDonald v Bi-State Development Agency, DOLIR 9-29-09.


The Commission affirmed an award that claimant's job duties as a casino worker such as turning a key and moving chairs were a cause in her carpal tunnel and awarded treatment and found the claimant's description of job activities more accurate than a job description provided by the employer.  Slusarczyk v Ameristar Casino, 2013 Mo WCLR Lexis 190 (Sept. 26 2013).


Claimant in a temporary award established that typing police reports for five years caused her carpal tunnel and Guyon's canal entrapment.  The Commission concluded the employer failed to produce other credible potential causes or persuasive medical evidence the condition more likely arose from sleep position. Lane v City of Independence, 2013 Mo WCLR Lexis 138 (August 1, 2013).
ALJ McKeon
Atty:  Wieland, Deane
Expert:  Stuckmeyer, Rosenthal

The Commission found claimant's typing duties a prevailing factor in her bilateral carpal tunnel, affirming a temporary award for benefits, despite other risk factors such as gender, weight, and age. The Commission majority modified an award, that erroneously applied an older and easier causation standard of "substantial factor." A dissenting Commissioner found exposure insufficient and less than a typical typist based on a medical history that claimant was a "hunt and peck" typist, despite her testimony that she was a "hunt and peck" typist only some of the time. Vrabel v Aramark Services, DOLIR 2-23-11.

ALJ Vacca
Experts: Rotman, Howard, Brown


The Commission affirmed a temporary award for carpal tunnel as a result of hand intensive activities involving jackhammering.  The ALJ felt the defense doctor relied upon a less accurate history regarding the extent of these duties and was not credible when he first found the condition related and then changed his opinion after reviewing a job description.  Phillips v the Doe Run Company, 2013 MO WCLR Lexis 166 (August 30, 2013). 
ALJ Robbins
Atty:  Corrigan, Symank
Experts:  Schlafly, Brown


The Commission awarded benefits for bilateral carpal tunnel syndrome to a prison guard who opened and closed locks 95-200 times a day.  The ALJ found repetitive trauma to both wrists, rejecting a defense that claimant's condition more likely arose from obesity.  The  surgeon attributed claimant's right carpal tunnel to a single traumatic event rather than repetitive trauma and disputed causation on the left side.   Cerutti v Mo Dept of Corrections, DOLIR 3-28-2013.  The Commission affirmed the award, after correcting a typographic error concerning the body part. 
ALJ  Kasten
Atty:  Van Camp, Johnson, Nelson
Experts:  Schlafly, Strecker, Brown
Treater:  Strecker



Claimant worked periodically in the fabrication department for 1/2 year and developed epicondylitis and radial synovitis.  The ALJ found the employer's expert had incomplete information about claimant's job duties although an ergonomic study was in evidence.  The employer denied claimant's case based on "outside" activities although its expert was unable to conclude activities such as bow hunting caused the condition.  The Commission found the report of the employee's expert was not a model of clarity or precision.   Mortimer v Harley-Davidson, 2013 MO WCLR Lexis 239 (Dec. 23, 2013)
ALJ Meiners
Atty Stacker, House
Experts:  Poppa, Lingenfelter


Claimant worked as a housekeeper for 21 months and cleaned 8-10 apartments a day and established her work duties to be the prevailing factor in her carpal tunnel and epicondylitis in a temporary award.  A hand expert found the work contributed to her condition, but she had other health risk factors. Shrinkle v the Fountains of West County, 2012 MoWCLR 17 (Feb. 8, 2012).
ALJ  Lane
Atty:  Fox, McHugh
Experts:  Schlafly, Brown



Claimant asserts he operates a pedal with his foot to cut parts while working for the defendant for about a year. ALJ Kasten awarded 7 1/2% PPD and found claimant established a work-related condition: "I find that the employee’s work activities and job duties was the prevailing factor in causing the resulting medical conditions and disability of tenosynovitis of the right ankle and Achilles tendon; disorder of the synovium, tendon and bursa; overuse syndrome of the right Achilles tendon; overuse peripheral nerve injury; and overuse tendonitis of the right foot." Dr. Burke, the employer's expert, found no objective findings on exam. Dr. Berkin, claimant's expert, had assessed 15% disability. The case is Bartlett v Siegel Roberts Automotive, DOLIR 9-1-09


Claimant asserts working 10 years as a sales manager caused her to develop plantar fasciitis from working on concrete, stocking, climbing on ladders and standing tip-toes.  The employer disputed the extent of activities on her feet and relied upon an expert opinion from a foot specialist that plantar fasciitis was idiopathic.  The ALJ awarded benefits and found that claimant's intervening fracture did not diminish her right to claim TTD benefits following surgery.  Reisa v Kellogg Co., 2015 Mo WCLR Lexis 99.
ALJ  Ottenad,  Experts:  Woiteshek, Aubuchon



Claimant alleged occupational disease to her left shoulder resulting in bursitis and possible tendon tear, arising from manufacturing surgical cushions (Omnis), a job that required her to remove them from molding and kneed them to soften them. Judge Ruth granted a temporary award for benefits, noting the presence of a degenerative type 3 acromion, documentation of some tendonitis findings in the past, and job duties that did not involve overhead work did not preclude recovery. Judge Ruth concluded defense expert, Dr. Milne, was found to over-rely on the absence of overhead duties to deny causation, noting that overhead duties were the more common etiology. The case is Chepely v Meramec Group, DOLIR 7-1-09.

A career 32 year employee developed rotator cuff tears from lifting and attaching light weight plastic car parts, reversing a denial of benefits by the ALJ.  The Commission suggests a shoulder surgeon relied upon arbitrary standard  not based on research that claimant  needed to handle heavier items or perform more overhead activity before considered the injury as  work related.  Buchanan v SRG Global, 2014 Mo WCLR Lexis 134 (Nov. 21, 2014)
ALJ: Strange
Atty:  Heckelmeyer, Shelledy
Experts:  Woiteshek, Emanuel

Claimant established occupational disease to both shoulders from repetitive lifting as a result of 30 year career as a sheet metal worker resulting in rotator cuff tears.  The Fund contested occupational disease and argued that no fund liability attaches for occupational disease.   The ALJ suggested claimant follow up care with Dr. Yamaguchi and noted vocational testimony that claimant's long union membership might be an impediment to apply for work with a non-union employer.  Skornia v American Mechanical, 2012 Mo. WCLR Lexis 113 (June 6, 2012)
ALJ  Boresi
Atty:  Christianson, Lassa, Barnard
Experts:  Emanuel, Lichtenfeld, England, Dolan

Job activities lifting carpet bunks, 40% overhead work, up to 70 pound boxes at 6 foot height found to be prevailing factor in friction of bone against rotator cuff.  Employer offered no evidence of equal exposure outside of work.  Gilligan v Bass Pro, 2011 MOWCLR LEXIS 212.
ALJ  Holden
Atty:  Wise
Experts:  Schlafly

The administrative law judge awarded 65% disability for a twice operated left shoulder, allegedly injured from repetitive job duties.  Claimant received a PTD award against the Second Injury Fund because she had prior restrictions, and required a "multitude" of medications.  She had prior settlements on both wrists and her back.  The Fund offered no medical experts to contest the allegations. Powell v General Motors Corp., DOLIR 7-19-2011. 
ALJ Gorman
Atty: Rauscher, Daiber
Experts:  Hanaway, England, Blaine, Nogalski


A career 30 year maintenance supervisor established his varied job duties caused a rotator cuff tear in a 2-1 decision, reversing a denial of benefits by the ALJ.  Bowyer v Mineral Area Community College, 2013 Mo WCLR Lexis 145, August 8, 2013. 
ALJ  Robbins
Atty:  Butler, Kraft
Experts:  Ralph, Nogalski



Claimant establishes repetitive work caused cervical disc protrusion and ALJ rejects neurosurgeon opinion that cervical pathology required an accident.  Award includes nearly $70,000 in disability benefits and about $40,000 in medical bills mostly from a pain clinic.  Buffington v Hubell Killark Electric, 2015 MO WCLR Lexis 31 (April 9, 2015)  Future medical was denied. 
ALJ Landolt
Atty:  Niessen, Herschell
Experts:  Volarich, Crandall


Claimant is a  36 year old terminated forklift operator who was awarded treatment in a temporary award for his neck for a condition that was essentially never treated, and became worse after he stopped working. Harris v Penske Trucking, 2015 Mo WCLR Lexis 13 (Feb. 10, 2015)

The ALJ indicated the case revolved around competing causation opinions of two neurosurgeons and adopted the opinion of claimant's expert that the worker turned his neck frequently on a daily basis for 4 years and this activity was a "mechanical mechanism" to narrow the foramina and cause a cervical  disc to become displaced.  The ALJ regarded claimant's symptoms about the neck as credible even though it found no medical evidence to support claimant's other "total body' complaints.

This Award "contemplates the medical causal connection of the C4-5 disc displacement,  and the effects/complaints caused by that displacement." The ALJ notes this included an award for surgery for 'displacement' but not necessarily for disc herniation.   The claimant had a disc 'bulge' when he stopped working for the employer and the employer argued that a 'bulge' was  a degenerative condition and disputed liability for a disc herniation and radiculopathy  identified at the same level about 2 years later.   The employer's expert appears to indicate that looking behind on a daily basis would not herniate a disc.
Atty:  O'Sullivan, Lemp
Experts:  Matz, Berkin, Kitchens


Claimant established that working as a carpenter and handling heavy drywall in a 2008 claim was the prevailing factor in his c6-7 disc herniation, resulting in a temporary award for further treatment.  Claimant's expert indicated that a disc herniation usually takes a traumatic event but related the condition to repetitive trauma.    The medical records did not identify an accident or a precipitating  event.  The ALJ concludes the herniation arose from repetitive trauma. 

The ALJ criticizes the defense expert:  "Dr. Chabot repeatedly justifies his causation opinion with the lack of medical documentation of a work injury or duty causing complaints in 2008. Claimant cannot be held accountable to report he had sustained an occupational disease until a medical expert has made a causal connection between the medical condition and a work-related activity. Claimant was not diagnosed with an occupational disease until well after his 2008 treatment."

Claimant satisfied his notice obligation by telling his employer he would treat his symptoms outside the worker's comp system, and he had no duty to report a repetitive trauma until after a physician told him the condition flowed from his job. Meadows v John Bender, 2012 Mo WCLR Lexis 137 (July 3, 2012)
ALJ Hart  (affirmed 2-0)
Atty:  Barnett, Weller
Experts:  Volarich, Chabot
Treater:  Weatherington


A 57 year old claimant alleges that overhead duties pulling electrical wire aggravated his cervical disc disease. Judge Allen concluded the claimant was not "anywhere near" totally disabled, but award 10% disability. Lewis Daniels v VR&S Electric, DOLIR 4-29-10.


Claimant's job involved putting took plates onto the line and put them into a machine, and she handled about 1000 plates her hour for several years.  Her employer told her she had to treat on her own and she received injections in her shoulder for 'chronic pain syndrome' and reported she was unable to use her arm.  She was diagnosed with a labrum tear, carpal tunnel and a neck injury.  An expert conclude she required surgical consultation for her neck and shoulder.  The ALJ ordered treatment and found the employer never offered claimant any care, that someone other than the claimant checked her FMLA form as "not work related" and they fired claimant for reporting to work 5 minutes late when her power was out.  The employer's expert was disregarded because he provided no opinion about repetitive activity other than to conclude claimant did not have a specific accident or identify a mechanism of injury.  The employer was ordered to provide further care in the temporary award along with about $24,000 in back unpaid disability benefits concerning claimant's loss of income after the employer fired her.  Fatting v Johnson Control Batteries, 2015 Mo WCLR Lexis 17 (Feb. 13, 2015).

The Commission affirmed without an additional opinion. This is a similar rationale used for rejecting defense testimony in Harris v Penske Trucking, 2015 Mo WCLR Lexis 13 (Feb. 10, 2015).
ALJ  Miner
Atty:  Kelly, Bates
Expert:  Hopkins, DiStefano


Claimant established repetitive trauma opening car hoods 150+ times daily during an inspection job for about 4 months caused the need for a C4 fusion, rejecting the employer's contention that claimant's pain complaints were coincidental and flowed from a prior C5-C7 nonunion. Claimant asserts she worked 2 years after the prior surgery and had new pain complaints after the inspection job. The administrative law judge awarded permanent total disability benefits against the second injury fund. Batton v Daimler Chrysler, DOLIR 8-12-10.

But See Basler v Bausch Lomb, DOLIR 3-3-10. (failed to prove "persistent flexion" caused need for neck fusion.)


EMT work found to be the prevailing factor in an inoperable rotator cuff repair and disc herniation IN a 2-1 decision, reversing a denial of benefits.  Yarbrough v Rural Metro Ambulance, 2013 Mo WCLR Lexis  143   The employer offered medical testimony disputing accident and finding claimant's condition more likely due to aging, smoking and genetics.  The Commission the expert, however, incongruously apportioned some permanent disability to work and another defense expert had not ruled out occupational disease as a cause.   Claimant contends he was mostly asymptomatic following a previous fusion at the same disc level. 
ALJ  Kasten
Atty: Thoenen, Heckemeyer
Experts:  Woiteschek, Randolph, Colle


Claimant's job duties lifting 300-400 cases of soda contributed to claimant's need for a 2 level lumbar fusion performed by Dr. Trecha and worsened his degenerative spondylosis, resulting in an award of 40% PPD. Judge Herschel rejected the contention that claimant, 53, was permanently totally disabled since he had "manageable" work restrictions and was able to work on part-time basis. Claimant's assertion that work-hardening and therapy caused additional injuries to his neck and abdomen (hernia) were denied, however, as unwarranted "leaps of faith" when claimant failed to introduce contemporaneous medical record and relying upon expert testimony 3 years later from Dr. Cohen. The case is Daly v Powell Distributing, 9-1-09.

Claimant described back symptoms after carrying a ladder and using a rope to lift loads weighing more than 40 pounds, although apparently did not report a specific event to his employer. Claimant had a history of limited treatment in the past for his back, but the employer did not establish a prior annular tear. ALJ Fowler found the employer waived its right to direct care and ordered care through a specific doctor selected by claimant. Miller v Cornerstone Services, DOLIR 9-28-10.
ALJ: Fowler
Experts: Poppa

claimant established permanent total disability arising from a disputed repetitive trauma to his back, knees and shoulder from climbing on a sweeper several times a day.  Claimant was a 34 year employee until the company closed and moved to China.  Braggs v Federal Mogul, DOLIR 8-17-11. 
ALJ Carlisle
Atty:  Wolfe, Osborne
Treater:  Yamaguchi
Experts:  Cohen, Cantrell