TEMPORARY AWARD ALLOWING COMPENSATIONJudge Angie Heffner. A Temporary and Partial Award was issued...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

TEMPORARY AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge

with Supplemental Decision) Injury No.: 16-074252 Employee: Shawna Beard Employer: Harley-Davidson Motor Co., Inc. Insurer: Trumbull Insurance Company This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Employer filed a timely application for review to the Labor and Industrial Relations Commission on July 17, 2017. After briefing by the parties, the Commission heard oral argument on November 29, 2017. We have reviewed the evidence, read the briefs, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission modifies the award and decision of the administrative law judge. Preliminaries Hearing was conducted on May 4, 2017, before Worker’s Compensation Administrative Law Judge Angie Heffner. A Temporary and Partial Award was issued by Judge Heffner on July 10, 2017. The administrative law judge concluded as follows with regard to the issues presented by the parties: (1) Employee’s bilateral carpal tunnel syndrome is an occupational disease arising out of and in the course of her employment; (2) Employer is responsible for providing medical care to treat Employee’s bilateral carpal tunnel syndrome; (3) Employee is entitled to temporary total disability benefits beginning on September 23, 2016, and until such time as she is able to return to work; and (4) Employee is entitled to costs in the amount of $2,223.90 under § 287.560 RSMo for Employer’s unreasonable defense and conduct. Employer’s timely application for review alleges the administrative law judge erred: (1) in finding that employee proved that her work was the prevailing factor in causing her carpal tunnel syndrome; (2) in discounting the testimony of employer’s Human Resources witnesses; (3) in awarding temporary total disability where there were no written work restrictions in the record; and (4) in awarding costs under § 287.560 RSMo. We also note that employer’s briefing of the issues for review suggests bias by the Administrative Law Judge, although the source for this allegation, and nature of alleged bias is not clear. Employee’s responsive brief raised the issue of increasing the award of costs and requested the Commission sanction employer by striking its brief for non-compliance with Commission regulations. For the reasons set forth below, we modify the Award and Decision of the Administrative Law Judge, only on the issue of costs awarded.

Injury No.: 16-074252 Employee: Shawna Beard

- 2 - Discussion We adopt the Findings of Fact and Rulings of Law as stated in the Temporary and Partial Award issued by Administrative Law Judge Angie Heffner on July 10, 2017, except as modified and supplemented herein. Causation - Prevailing Factor

We agree with the administrative law judge’s determination that Dr. Anne Rosenthal’s opinion dated December 5, 2016, was thorough, credible, and persuasive. Dr. Rosenthal’s opinion was that work performed at Harley-Davidson was the prevailing factor in employee’s bilateral carpal tunnel syndrome. Her opinion is supported by objective medical findings including Dr. Sivakoti Katta’s review and examination following EMG/NCV testing. Dr. Rosenthal’s opinion is also supported by her detailed review of job duties and employee’s prior history. Furthermore, Drs. Katta and Rosenthal recommend surgery for bilateral carpal tunnel syndrome and identify restrictions. Drs. Rosenthal and Katta’s restrictions are completely consistent with the diagnosis and recommended treatment.

We note the diagnosis by appellant’s doctor, Dr. Brett A. Miller, of “bilateral hand pain, possible carpal tunnel syndrome.” (Hearing record at page 121) This further buttresses the employee’s medical evidence. However, like the administrative law judge, we do not find Dr. Miller’s opinion to be credible or persuasive in other respects. He appears to rest his conclusion that this 37-year-old female’s condition is “idiopathic” on the notion that “seven months is certainly not long enough to develop carpal tunnel syndrome from a job.”1 (Hearing record at page 121) We are unaware of any medical literature or legal limitation which sets a minimum level of temporal exposure in repetitive motion work to prove causation of an injury.2

Dr. Miller’s report indicates he has “been coming to the Harley-Davidson plant on sight (sic) since January” and that he “has toured the plant on multiple occasions.” (Hearing record at page 122) He further indicated his familiarity with various job stations including the employee’s. While the administrative law judge may have failed to appreciate the level of Dr. Miller’s familiarity with the plant’s operations and nature of duties, the fact remains that Dr. Miller does not say employee was not exposed to the risk at the plant. Dr. Miller also fails to explain why he deemed it appropriate to release employee to full duty when he believed she may have been suffering from carpal tunnel syndrome.

Temporary Total Disability Finding - Employability

Employer asserts that the judge erred in finding employee was (temporarily) totally disabled because of the lack of written medical restrictions. Employer asserts that it was merely employee’s choice not to return to work.

1 Dr. Miller also inaccurately identifies the length of exposure as seven months. Employee worked at the facility doing this work from January 2016 through September 23, 2016, although she was employed by a temporary agency for the first two months. 2 Section 287.067.3 RSMo provides that a repetitive motion injury is compensable if the occupational exposure was the prevailing factor in causing both the medical condition and disability. Subsection (8) merely states if the exposure is less than three months and the evidence shows exposure with the immediate prior employer was the prevailing factor in causing the injury, liability shifts to the prior employer; a circumstance inapplicable to this case.


- 3 - An employee’s testimony about their ability to work is competent evidence and is a valid basis upon which to make an employability determination.3 Employee’s credible testimony about the nature of her work duties, which Dr. Rosenthal correctly summarized as “repetitive hand intense work” (Hearing record at page 114) was uncontroverted in the record.

Employee credibly described her symptoms and the inability to perform tasks that require repetitive hand movements, including driving and other daily activities involving continued use of the hands. (Transcript at page 43) Dr. Rosenthal acknowledged reasonable restrictions for a patient with diagnosed carpal tunnel syndrome would include not engaging in repetitive hand motion activities and she added the restriction of wearing wrist splints. Employee’s medical providers have recommended bilateral carpal tunnel surgery.

Cumulatively, all these factors show that employee is not employable in the open labor market at this time. We doubt that any employer would hire employee knowing that she was in imminent need of surgery and would be expected to be absent for a lengthy period or severely limited in any work activity while she’s in the recovery period.

Credibility Issues

We defer to the administrative law judge’s findings of credibility in all respects. Employee was consistent in all material portions of her testimony and reports of injury throughout this proceeding. We reject employer’s assertion that employee’s testimony in this proceeding was “evasive.” (Transcript at 72-73 and Appellant brief at page 15)

Employer’s Human Resources witnesses added little to the picture. Both indicated they were not involved in and not familiar with worker’s compensation practices and policies within the plant.

The thrust of Mary Kloker’s testimony was merely that she had no recollection of certain events.

It appears that Amanda Thibodeau’s testimony was offered to dispute employee’s assertion that she informed employer of restrictions. We find claimant credible that she did inform employer in a phone conversation that occurred on September 26, 2016, immediately after a lengthy examination and diagnosis by her primary care provider.4 There is no requirement in the law that employee provide employer with a written statement of restrictions. Therefore, whether Ms. Thibodeau’s or employee’s memory is faulty regarding the conversation adds very little to analysis.

In certain other respects, we find Ms. Thibodeau’s testimony less credible. Ms. Thibodeau was asked by employee’s counsel, “was it your experience that employees who need surgery are able to fully perform their jobs?” Ms. Thibodeau responded, “Yes,” without

3 Pruett v. Federal Mogul Corp., 365 S.W. 3d 296, at page 309 (Mo. App. S.D. 2012). Beard testified in detail about the nature of the duties and her inability to perform tasks, (Transcript pages 20-30, 43-44), and in her deposition at pages 265-271 of the hearing record. 4 We understand that employer’s counsel is attempting to discredit the credibility of employee’s testimony through raising this difference in recollection by employer’s witness. We are simply not convinced that it has much bearing on the credibility issue. We note another assertion by employer that employee’s credibility is diminished because of a default judgment in a bankruptcy claim in which fraud was alleged against employee. It deserves some weight in our consideration. However, employee’s testimony on this issue and her forthright admission about the circumstances is believable.


- 4 - equivocation, hesitation or elaboration to this question. (Transcript, page 98) This reflexive answer appears to have been delivered with minimal consideration of the actual question. In our view, this diminishes her credibility as a witness. It is hard to reconcile her statement that employee told her that she needed surgery on her hands, yet there was no further discussion about work restrictions, and Ms. Thibodeau apparently felt no obligation as an employer representative to inquire in this regard. Ms. Thibodeau simply told her to “follow the process.” (Transcript, page 96) Employee filed her Claim for Compensation with the Division of Workers’ Compensation on September 30, 2016. Employer has never offered employee accommodated work.

Costs

Employee’s counsel acknowledged at oral argument that employer would have had a reasonable basis for defending the claim as a result of Dr. Miller’s opinion. The basis for employee’s argument for an award of costs is for unreasonable conduct by employer’s counsel in the deposition of employee.

In our view, some of employer’s counsel’s conduct at the employee’s deposition was improper, ranging from unprofessional to unethical.5 Likewise, some of employer’s counsel’s written statements in his brief, border on accusations against the judge and opposing counsel. There is no place for name-calling and gratuitous comments of this nature in the profession of law.6

However, under a strict construction reading of the statute, employee has not provided enough to establish employer pursued an unreasonable defense of a claim. We are not convinced that employer should be punished for his counsel’s bad behavior under section 287.800 RSMo where employer had a reasonable basis to defend. The statute provides for assessment of costs where a proceeding is “brought, prosecuted, or defended without reasonable ground.” (§ 287.560 RSMo) and we are to exercise this discretion with caution.7 Employer’s position in opposing the claim was defensible. It was the methods and conduct of employer’s counsel that were deplorable. We conclude, therefore, that employee is not entitled to $2,223.90 in costs from employer by reason of employer’s defending this claim without reasonable grounds pursuant to § 287.560 RSMo.

Additional Issues Raised By the Parties

Employer suggests the administrative law judge’s award is the result of bias. No basis for the alleged bias was explained. In our careful review of the record, we see no evidence of bias as a motivation for the Award. An additional point made by employer is the practice of counsel preparing proposed awards for submission to the administrative law judge. This is a 5 We are referring to hearing record pages 272, 310, 311, 314 and 326 from the Employee deposition of March 30, 2017. 6 We refer to the Appellant’s brief at pages 11, 12, 13, 21, 23, and 25. We further take administrative notice of Rule of Professional Conduct 4-8.2(a) adopted by our Missouri Supreme Court: A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office. 7 The standard set forth in Sickmiller was whether the employer’s refusal to provide benefits was egregious or outrageous. Sickmiller v. Timberland Forest Prods., 407 S.W.3d 109, at page 119, (Mo. App. S.D.2013). Citing Wilson v. C.C. Southern, Inc. the court noted the Commission should exercise the award of costs “with great caution and only when the case for costs is clear and the offense egregious." Wilson v. C.C. Southern, Inc., 140 S.W.3d 115, at page 120 (Mo. App. W.D. 2004) .


- 5 - matter for the discretion of the administrative law judge. We perceive nothing inherently improper in this practice, with the permission or direction of the judge.

Employee suggests an additional sanction of striking Appellant’s Brief is warranted because employer’s counsel submitted additional attachments to its brief, thereby exceeding the 30-page limit. We decline to strike Appellant’s Brief. We see the submission of the additional pages attached to the 29-page brief as a request to submit additional evidence. Because Appellant has not filed a proper motion to submit additional evidence, we decline to review the Attachments A and B.

Award We modify the award and decision of the administrative law judge. We conclude that employee has suffered a compensable injury by occupational disease in the form of bilateral carpal tunnel syndrome. Employee is not entitled to an award of costs under § 287.560 RSMo. In all other respects, we adopt the award of the administrative law judge, as supplemented herein. This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo. The Award and Decision of Administrative Law Judge Angie Heffner, issued July 10, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision. Given at Jefferson City, State of Missouri, this 28th day of December 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION John J. Larsen, Jr., Chairman VACANT Member Attest: Curtis E. Chick, Jr., Member Secretary

Issued by DIVISION OF WORKERS’ COMPENSATION Employee: Shawna Beard Injury No. 16-074252

WC-32-R1 (6-81) 1

TEMPORARY AND PARTIAL AWARD

Employee:

Shawna Beard Injury No. 16-074252

Employer:

Harley-Davidson Motor Co., Inc.

Additional Party:

N/A

Insurer:

Trumbull Ins. Co. c/o Gallagher Bassett Services

Hearing Date:

May 4, 2017 Checked by: AH/pd

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes

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

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

4. Date of accident or onset of occupational disease: September 21, 2016

5. State location where accident occurred or occupational disease was contracted: Kansas City, Platte County, Missouri

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

7. Did employer receive proper notice? Yes

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

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

10. Was employer insured by above insurer? Yes

11. Describe work employee was doing and how accident occurred or occupational disease contracted: While in the course and scope of her employment, Employee performed repetitive job duties and developed pain, numbness, and tingling in her hands and wrists.

12. Did accident or occupational disease cause death? No

13. Part(s) of body injured by accident or occupational disease: Left Wrist and Right Wrist

14. Nature and extent of any permanent disability: Undetermined


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

16. Value necessary medical aid paid to date by employer/insurer? Unknown

17. Value necessary medical aid not furnished by employer/insurer? Unknown

18. Employee's average weekly wages: $518.25

19. Weekly compensation rate: $345.50

20. Method wages computation: Stipulation

21. Amount of compensation payable: Temporary total disability benefits from September 23, 2016 through the date of this award and continuing until Claimant reaches maximum medical improvement.

Number of weeks from September 23, 2016 to June 26, 2017 is 39 weeks and 3 days:

39.3 x $345.50 =

22. Future requirements awarded: Medical Treatment to cure and relieve the effects of bilateral carpal tunnel syndrome.

23. Costs awarded: $2,223.90

The compensation awarded to the Employee shall be subject to a 25% lien in favor of Mr. Jason Iezzi of Boyd, Kenter, Thomas & Parrish, LLC, for reasonable and necessary attorney’s fees plus expenses, immediately due, under § 287.260.1 R.S.Mo.


WC-32-R1 (6-81) 3

FINDINGS OF FACT AND RULINGS OF LAW

Employee:

Shawna Beard Injury No. 16-074252

Employer:

Harley-Davidson Motor Co. Inc.

Additional Party:

N/A

Insurer:

Trumbull Ins. Co. c/o Gallagher Bassett Services

Hearing Date:

May 4, 2017 Checked by: AH/pd

On May 4, 2017, Employee and Employer appeared for a hardship Hearing. The Division had jurisdiction to hear this case under section 287.110. The Employee, Shawna Beard (“Employee” or “Claimant”), appeared through her attorney, Jason Iezzi. The Employer, Harley-Davidson Motor Co. Inc. (“Employer”), and the Insurer, Trumbull Ins. Co. (“Insurer”), appeared through counsel, Mr. Tom Billam.

STIPULATIONS

1. On or about September 21, 2016, Employer was operating subject to Missouri’s Workers’ Compensation Law with its liability fully insured by Trumbull Insurance Company.

2. Shawnee Beard was an employee at Harley-Davidson on September 21, 2016.

3. Employee’s contract of employment was made in Missouri.

4. Employee notified the Employer of the injury within the time allowed by law.

5. Employee’s claim was filed within the time allowed by law.

6. Employee’s average weekly wage is $518.25 resulting in a compensation rate of $345.50 for temporary total and permanent partial disability benefits

7. Employer has provided some medical treatment, but the cost of the medical treatment is unknown at Hearing.

8. Employer has not paid any temporary total disability benefits.

ISSUES

1. Whether Employee sustained an occupational disease arising out of and in the course of her employment;


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2. Whether Employer is responsible for providing future medical treatment for the alleged injuries;

3. Whether Employer is responsible for providing Employee with temporary total disability benefits from the last day she worked until she is able to return to work; and

4. Whether Employer must reimburse to the Employee the cost of this proceeding for defending the claim without reasonable grounds pursuant to section 287.560.

Employee testified on her own behalf and presented the following exhibits, all of which were admitted into evidence:

Exhibit A Claim for Compensation

Exhibit B Report of Dr. Anne Rosenthal

Exhibit C Medical Records

Exhibit D Expenses

Exhibit E Claimant’s Deposition

Exhibit F Request for Statements

Employer presented the following exhibits, which were admitted into evidence:

Exhibit 1 Submission of Dr. Brett A. Miller Report

Exhibit 2 Claim for Compensation

Exhibit 3 Employee Report of Injury of 9/21/16

Exhibit 4 Initial Medical Records from LifeStyle Center

Exhibit 5 Harley-Davidson Early Intervention Program Notes

Exhibit 9 Complaint from U.S. Bankruptcy Court Case 16-21830

Exhibit 10 Court Order from U.S. Bankruptcy Court Case 16-21830

Employer presented the following exhibits, which were excluded from evidence based on objections from counsel for Claimant:

Exhibit 6 Root Cause Incident Investigation Report

Exhibit 7 Wellness Check Forms

Based on the entire record, Employee’s credible testimony, records entered into evidence, and the applicable law in the state of Missouri, I find that: (1) Employee’s bilateral carpal tunnel syndrome qualifies as an occupational disease arising out of and in the course of her employment; (2) Employer is responsible for providing medical care to treat Employee’s bilateral carpal tunnel syndrome; (3) Employee is entitled to temporary total disability benefits beginning on September 23, 2016, continuing through the date of this Award and until such time as she is able to return to work; and (4) Employee is entitled to costs in the amount of $2,223.90 under section 287.560 for Employer’s unreasonable defense and conduct.


WC-32-R1 (6-81) 5

FINDINGS OF FACT

On September 21, 2016, Claimant had been working at Employer’s plant for approximately nine months. At the Hearing, she testified about what this work entailed. She first started working at Employer’s plant through a temporary employment agency in January of 2016. At the time, she worked on Line 1. This required her to work at various stations: building foot pegs, wiring harnesses, and wiring throttle cables. She described this work as hand-intensive, though she always rotated between stations throughout her shift. She continued performing this work for about two months, typically working at least 40 hours per week.

In March of 2016, she was hired as a casual employee. As Employee explained, this meant that she became an employee of Harley-Davidson, but was ineligible for certain benefits enjoyed by full-time employees. At the time, Employee also began working on Line 2, which included four stations: heat shields, foot pegs, air cleaner covers, and fuel tanks. According to Employee, Line 2 was much more hand-intensive than Line 1. She testified in great detail about what this entailed.

Employee testified that, of the four stations on Line 2, working on heat shields and foot pegs put the most stress on her hands. While installing the foot pegs, for instance, Employee had to use her hand to guide the peg into place. This required her to apply great force with her hand. She then had to insert screws to hold the peg into place, another hand-intensive task. Likewise, with heat shields, she had to hold the shield in place with her hand while using her other hand to drill. The hand-intensive nature of installing heat shields and foot pegs was more problematic because she worked those stations most often.

Claimant explained that, because heat shields and foot pegs required more extensive training, fewer employees were able to perform those jobs. As a result, Claimant sometimes had to perform the same, hand-intensive task for an entire shift. This exacerbated the problems she had with her hands. While working on Line 2, Claimant’s hands progressively worsened.

Claimant testified that shortly after beginning on Line 2 she developed pain, numbness, and tingling in her hands. These symptoms progressively worsened in the months that followed. Claimant usually rested and iced her hands on the weekends, or she would shake her hands out at work, and the numbness would go away. She continued to cope with her hands in this manner until September 2016.

In September of 2016, Claimant temporarily moved away from Line 2 to work on installing fenders. Much like Line 2, this was hand-intensive work. She testified that on September 21, 2016 her numbness and tingling would not go away. When she was not able to cope with her symptoms any longer, Claimant reported the injuries to a supervisor.

According to Employee, once she reported her symptoms to a supervisor on September 21, she was sent to a medical facility located in Employer’s plant. The nurse at the medical facility iced her wrists and gave her ibuprofen. When she returned to work the next day, her symptoms returned. Claimant went to the plant medical facility again where she received conservative treatment again. This treatment did not resolve her symptoms. Claimant was also sent to Employer’s Early Intervention Program that day, which records show was September 22, 2016.


WC-32-R1 (6-81) 6

Claimant testified that at the Early Intervention Program (“EIP”) appointment her symptoms did not go away. She further testified that two HR representatives from Employer came to the appointment. When it became clear that her symptoms were not going away, according to Claimant, the HR representatives told her that casual employees could not be accommodated. Instead, casual employees with restrictions are placed in back in the pool. Claimant interpreted this to mean that she would be laid off.

Employer called two of its employees to testify about Employer’s discussions with Claimant at the EIP. Mary Kloker and Amanda Thibedeau both testified that they met Claimant at her EIP appointment on September 22. Both employees testified that Claimant looked upset, but both denied that they discussed whether casual employees are accommodated according to Employer’s policies.

The next day when Claimant’s symptoms persisted, she was sent to Dr. Brett A. Miller. He noted that she was likely suffering from carpal tunnel syndrome, but concluded that it was not work-related. Dr. Miller opined that she simply had not been working at Employer’s plant long enough to develop carpal tunnel syndrome. He characterized her injury as idiopathic carpal tunnel syndrome, but nevertheless noted that it was “[s]afe for her to work full duty.”

Claimant testified that Dr. Miller met with her for no more than 10 minutes, and he never asked about her job duties. Claimant’s testimony is likely credible on this subject, since Dr. Miller’s only mention of Claimant’s job duties states that “[s]he’s done different jobs.” According to Claimant, Dr. Miller advised her to seek treatment on her own.

I do not find Dr. Miller’s opinion to be credible or persuasive. Though Dr. Miller noted that Claimant was likely suffering from carpal tunnel syndrome, he still released her to work full-duty at a hand-intensive job. Had Dr. Miller inquired about Claimant’s specific job duties, perhaps he could have offered a more reliable opinion. Dr. Miller’s report failed to even list the specific line on which Claimant worked or which jobs she performed most often. Dr. Miller’s failure to gain even a basic understanding of Claimant’s job duties renders his opinion unreliable.

That same day following the appointment with Dr. Miller, Claimant sought treatment on her own. She was unable to get an appointment until the following Monday. On September 26, she visited her personal physician. There, she met with Linda Salazar, a registered nurse, for about 30 minutes. Ms. Salazar spoke with Claimant in depth about her job duties. Her report notes that Claimant “[w]orks on an assembly line at Harley Davidson” and is “unable to grip things by end of shift.” Ms. Salazar also noted that Claimant’s job “requires her to use her hands for 10 [hours].” Based on Claimant’s job description and symptoms, Ms. Salazar concluded that Claimant sustained work-related, bilateral carpal tunnel syndrome. Claimant testified that Ms. Salazar told her to avoid repetitive activities with her hands. However, the medical record of this examination with Salazar does not include this restriction.

Claimant testified that, minutes after the visit with Ms. Salazar, she called and spoke with someone in Employer’s HR department about the restriction and work-related diagnosis. At this point, according to Claimant, she was told that her restrictions would not be accommodated because she was a casual employee. She was told that she was thus placed back in the pool, which Claimant testified she equated to being terminated.


WC-32-R1 (6-81) 7

Ms. Thibedeau, Employer’s HR representative, disputed this account. She testified that she never spoke with Claimant about restrictions or whether her restrictions would be accommodated.

Two days after visiting with Ms. Salazar, Claimant underwent an EMG performed by Dr. Sivakoti Katta. His EMG report notes that: Claimant’s symptoms began in March 2016; the symptoms worsened recently; the symptoms were reported to Employer; and “she has been released from her work…” According to Dr. Katta’s report, the EMG confirmed that Claimant has bilateral carpal tunnel syndrome. She was referred for a carpal tunnel release, but since undergoing the EMG, Claimant has not received any further medical treatment.

On September 30, two days after undergoing the EMG, the Claim for Compensation was filed.

In December of 2016, Claimant underwent an IME with Dr. Anne Rosenthal. Claimant testified that she spoke to Dr. Rosenthal at length about her job duties for Employer. Indeed, Dr. Rosenthal’s report notes that Claimant was working on Line 2 for Employer, assembling foot pegs, heat shields, gas tanks, and air cleaner covers. Dr. Rosenthal further noted in her report that Claimant’s symptoms began in March 2016 and worsened over time. Claimant told Dr. Rosenthal that she reported the symptoms once her hands went numb and the numbness did not go away. According to the history Claimant gave Dr. Rosenthal, she visited her personal care physician shortly after Dr. Miller told her that her carpal tunnel syndrome was not work-related. Once Ms. Salazar gave her restrictions, Claimant informed Employer of the restrictions and was then laid off.

After obtaining an extensive history from Claimant, examining Claimant, and reviewing her medical records, Dr. Rosenthal concluded that Claimant is suffering from work-related bilateral carpal tunnel syndrome. The work being performed for Employer “was the prevailing factor in her bilateral carpal tunnel syndrome.” Dr. Rosenthal reasoned that, having seen employees perform Claimant’s job before, she knows that it is the type of repetitive, hand-intensive work that can cause carpal tunnel syndrome. She further reasoned that Claimant had no prior issues with her hands or any medical problems which would predispose her to developing carpal tunnel syndrome. In her report, Dr. Rosenthal also concluded that Claimant needs to undergo a bilateral carpal tunnel release.

In response to Claimant’s counsel’s question:

“5. What are your opinions as it concerns the Employee’s current restrictions? Specifically, are the restrictions necessary and appropriate? Would you impose additional restrictions, or do you agree with the restrictions set forth in the medical records?”

“With regard to her current restrictions of no repetitive use of either hand, these are necessary and appropriate. I would also add the restriction of wearing bilateral wrist splints.” Ex. B (emphasis added)

I find Dr. Rosenthal’s opinion to be thorough, credible, and persuasive. Unlike Dr. Miller, Dr. Rosenthal spoke with Claimant about her job duties at length. She also questioned Claimant about prior work and hobbies that could have contributed to her condition. The fact that Dr. Miller did not obtain this information renders his opinion unreliable. Dr. Rosenthal’s report


WC-32-R1 (6-81) 8

specified that Claimant worked on Line 2 and correctly listed the stations she worked at. Dr. Miller’s report, on the other hand, simply states that Claimant has “done different jobs.” He concluded that Claimant’s job did not cause her injury, but offered no explanation for what outside factor might have caused her injury. Dr. Miller’s opinion lacks even basic information about Claimant’s job. His opinion is neither thorough nor reliable. Therefore, I adopt Dr. Rosenthal’s opinion.

Likewise, I find Claimant’s testimony to be credible. At the Hearing, Claimant provided the same timeline for her injury and termination as in her deposition. She also provided this same timeline to Ms. Salazar, Dr. Katta, and Dr. Rosenthal. This consistency throughout the record renders her opinion credible. Claimant testified that she reported her symptoms when she could no longer tolerate them. Then after treatment at Employer’s on-site medical facility was unsuccessful, she saw Dr. Miller, who diagnosed her with carpal tunnel syndrome but informed her it was not vocationally related. The following Monday, Claimant visited her personal physician where she was diagnosed with work-related carpal tunnel syndrome and, according to Claimant’s testimony, given restrictions of no repetitive hand activity. She also testified that she called Employer’s HR department to report the restrictions and she was told that, as a casual employee, her job restrictions would not be accommodated. I find this testimony to be credible.

Employer’s HR representatives disputed Claimant’s testimony that she was told Employer would not accommodate work restrictions of causal employees. Neither of Employer’s witness testified as to what the Employer’s policy actually is relating to casual employees and work restrictions. Further, neither of these witnesses administers or handles workers’ compensation claims for Employer. Ms. Thibodeau testified that she was the HR representative who spoke with Claimant on the phone when she called following her appointment with Salazar. The witness advised Claimant to call another employee and to follow the process for workers’ compensation and did not discuss anything further. I am not persuaded by the testimony by either of Employer’s witnesses.


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RULINGS OF LAW

Under Missouri law, claimants bear the burden of proving all the essential elements of a workers’ compensation claim. Grime v. Altec Indus., 83 S.W.3d 581, 583 (Mo. Ct. App. W.D. 2002). While claimants are not required to prove the elements of their claims with “absolute certainty,” they must establish the elements by reasonable probability. Sanderson v. Porta-Fab Corp., 989 S.W.2d 599, 603 (Mo. Ct. App. E.D. 1999) (internal citations omitted).

1. Claimant developed her bilateral carpal tunnel syndrome as a result of her repetitive, hand-intensive job duties at Harley-Davidson.

“An occupational disease due to repetitive motion is compensable only if the occupational exposure is the prevailing factor in causing both the resulting medical condition and disability.” MO. REV. STAT. § 287.067.3. Prevailing factor means the primary factor in relation to any other causative factor. § 287.067.3. Ordinary deterioration caused by aging or normal day-to-day activities is not compensable. § 287.067.3.

Appellate courts have interpreted these statutes to mean that employees are required to provide substantial and competent evidence that they have contracted “an occupationally induced disease rather than an ordinary disease of life.” Kelley v. Banta & Stude Const. Co., 1 S.W.3d 43, 48 (Mo. Ct. App. 1999). This inquiry involves two considerations:

(1) whether there was an exposure to the disease which was greater than or different from that which affects the public generally, and (2) whether there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort. Id. (internal citations omitted). To establish this link, “there must be evidence of a direct

causal connection between the conditions under which the work is performed and the occupational disease.” Smith v. Capital Region Med. Ctr., 412 S.W.3d 252, 259 (Mo. Ct. App. W.D. 2013) (quoting Vickers v. Mo. Dept. of Public Safety, 283 S.W.3d 287, 292 (Mo. Ct. App. W.D. 2009)).

The causal link must be established with medical evidence. When an employee “’seeks compensation for carpal tunnel syndrome, he or she must submit a medical expert who can establish a probability that working conditions caused the disease.’” Cook v. Missouri Highway & Transportation Comm'n, 500 S.W.3d 917, 926 (Mo. Ct. App. 2016) (quoting Decker v. Square D Co., 974 S.W.2d 667, 669 (Mo. Ct. App. 1998)). As the Smith court explained:

working conditions … need not be the sole cause. Even where the causes of the disease are indeterminate, a single medical opinion relating the disease to the job is sufficient to support a decision for the employee.

Smith, 412 S.W.3d at 259.

When evaluating such medical opinions, appellate courts have noted that an expert’s opinion may be less credible if it summarily dismisses other possible causes of an injury without


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being aware of the circumstances regarding such other possible causes. Bond v. Site Line Surveying, 322 S.W.3d 165, 172 (Mo. Ct. App. W.D. 2010). Moreover, though a medical opinion is required, testimony from a “claimant or other lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of the disability, especially when taken in connection with or where supported by, some medical evidence.” Dudley v. City of Des Peres, 72 S.W.3d 134, 137 (Mo. Ct. App. 2002) (citing Ford v. Bi-State Dev. Agency, 677 S.W.2d 899, 903-904 (Mo. Ct. App. E.D. 1984)).

In this case, conflicting medical opinions were submitted. I find Dr. Rosenthal’s opinions to be credible, thorough, and persuasive. Dr. Rosenthal spoke with Claimant about her job duties at length. She also questioned Claimant about prior work, prior medical conditions, and hobbies that could have contributed to her condition. Dr. Rosenthal’s report specified that Claimant worked on Line 2, and correctly listed the stations she worked at. Dr. Rosenthal also reviewed the EMG report from Dr. Katta. Based on all of this information, Dr. Rosenthal concluded that Claimant’s work was the prevailing factor in causing her to develop bilateral carpal tunnel syndrome.

Dr. Miller’s report, on the other hand, ignored or did not consider much of the information Dr. Rosenthal relied on. While Dr. Rosenthal noted the precise stations Claimant worked at, Dr. Miller’s report simply states that Claimant has “done different jobs.” There is nothing to suggest that Dr. Miller questioned Claimant about any prior problems with her hands, her hobbies, or any conditions which might have predisposed her to developing carpal tunnel syndrome. Instead, he concluded that Claimant’s condition was not work-related without any explanation as to what outside factor might have caused her injury. Because Dr. Miller’s opinion failed to consider all of the information available and failed to establish any other possible causes of the injury, his opinion is not credible.

Claimant’s testimony at the Hearing and at her deposition bolsters Dr. Rosenthal’s report and conclusions. She testified that, before working for Employer, she never experienced problems with her hands—she never performed any hand-intensive work and she did not engage in hand-intensive hobbies. Her problems first started when she began working on Line 2 for Employer. This is what she told each medical provider she treated with, except for Dr. Miller, who did not obtain a sufficient history in his report. Claimant further testified that she began experiencing numbness in March 2016, which she coped with by shaking out her hand or taking ibuprofen. At first, the numbness came and went. But her condition progressively worsened. When it reached the point that her numbness would not go away, she notified Employer and sought medical treatment. I find her testimony to be credible and persuasive.

During cross-examination, Employer attempted to impeach Claimant’s credibility by submitting records from a U.S. Bankruptcy Court case. Claimant was sued for falsely obtaining $691 in unemployment benefits. She explained that she thought she could claim unemployment benefits until she received her first paycheck. This episode merely establishes that Claimant lacks detailed knowledge about the unemployment process. But lack of knowledge about the unemployment process does not equate to dishonesty. On the contrary, the fact that Claimant did not contest the case and repaid the benefits shows that this was an honest mistake.

At the Hearing, Employer failed to produce any evidence to indicate an outside factor which might have contributed to the development of Claimant’s carpal tunnel syndrome. The


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only evidence Employer produced was Dr. Miller’s bare conclusion that work did not cause her condition.

Therefore, based on Dr. Rosenthal’s opinion, the evidence available in the record, and Claimant’s testimony at the Hearing, I find that Claimant’s repetitive work duties were the prevailing factor in causing her to develop bilateral carpal tunnel syndrome.

2. Employer is responsible for providing future medical treatment, including carpal tunnel releases, to cure and relieve Claimant from her work-related carpal tunnel syndrome.

The Workers’ Compensation Act provides that:

In addition to all other compensation paid to the employee under this section, the employee shall receive and 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. § 287.140.1. “Once a compensable injury is found, the inquiry turns to the calculation of

compensation or benefits to be awarded.” Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 517 (Mo. Ct. App. W.D. 2011). This compensation includes medical treatment. Id. at 517-18 (citing § 287.140). “The legal standard for determining an employer's obligation to afford medical care is clearly and plainly articulated in section 287.140.1 as whether the treatment is reasonably required to cure and relieve the effects of the injury.” Id. at 518 (emphasis original).

Given that Claimant’s work was the prevailing factor in causing her bilateral carpal tunnel syndrome, I further find that Claimant is entitled to future medical treatment as set forth by Dr. Katta and Dr. Rosenthal. Both doctors concluded that Claimant will need to undergo bilateral carpal tunnel releases to cure and relieve her from the effects of her carpal tunnel syndrome. These were the only doctors who commented on whether Claimant needs future treatment. Dr. Miller simply released her from care when he opined that her carpal tunnel syndrome was not work-related. In other words, no evidence has been presented to suggest that Claimant does not need bilateral carpal tunnel releases. Therefore, Employer is responsible for providing the treatment set forth by Dr. Katta and Dr. Rosenthal, whose opinions on this matter I find to be credible and persuasive.

3. Employer is responsible for providing Claimant with temporary total disability benefits.

Under the Workers’ Compensation Act, TTD benefits “shall be paid throughout the

rehabilitative process.” § 287.149.1. The Supreme Court has noted that “TTD benefits should be awarded only for the period before the employee can return to work.” Greer v. SYSCO Food Services, 475 S.W.3d 655, 666 (Mo. 2015) (internal quotations omitted). A claimant’s disability is total, rather than partial, if the claimant is unable to return to any employment. § 287.020.6.


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The question is whether any employer, in the reasonable course of business, would reasonably be expected to employ the claimant in his or her present physical condition. Cooper v. Medical Ctr. Of Independence, 955 S.W.2d 570, 575 (Mo. Ct. App. W.D. 1997) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003)). “It is clear that a claimant is capable of forming an opinion as to whether she is able to work, and her testimony alone is sufficient evidence on which to base an award of temporary total disability.” Pruett v. Federal Mogul Corp., 365 S.W.3d 296, 309 (Mo. Ct. App. S.D. 2012) (internal citations omitted). An employee’s ability to perform occasional or light duty work does not disqualify the employee from obtaining TTD benefits. Cooper, 955 S.W.3d at 575.

Here, Claimant testified that she developed symptoms which prevented her from working on September 21, 2016. Until that time, she worked through the pain and numbness. Since that day, however, she testified that she has been unable to work. Dr. Rosenthal opined that restrictions of no repetitive use of either hand are necessary and appropriate. Claimant testified that Salazar restricted her from performing hand-intensive work, however, there is no written documentation in the record. Dr. Rosenthal and Dr. Katta both felt that Claimant needs to wear wrist splints. Based on these restrictions, Dr. Rosenthal concluded that Claimant is unable to return to her employment.

Conversely, Dr. Miller opined that, despite her bilateral carpal tunnel diagnosis, it would be “[s]afe for her to work full duty.” He instead instructed Claimant to seek treatment on her own, which implies that she was suffering from an injury which required further treatment. Dr. Miller noted that Claimant should continue the measures she was taking, but Claimant consistently testified that such measures were no longer sufficient. Because Dr. Miller diagnosed Claimant with carpal tunnel syndrome but also concluded that she is safe to perform hand-intensive work, his opinion is inconsistent and not credible.

Moreover, aside from Dr. Miller releasing her from care, there is no evidence in the record to suggest that Claimant has been able to work since she developed carpal tunnel syndrome. She has performed temporary, odd-lot jobs, such as attending a filming of American Ninja Warrior, but this does establish that she is capable of gainful employment.

Employer argues that it is not required to pay TTD benefits during this time period because Dr. Miller does not find her carpal tunnel syndrome to be work-related, therefore they are not obligated to provide any workers’ compensation benefits. Additionally, Employer points out that there is no written work restriction of no repetitive use of either hand from Salazar, Rosenthal or Katta even though Rosenthal adopts this restriction in her independent medical evaluation. Finally, Employer argues that they did not have notice of her work restrictions.

On September 21, 2016, Claimant notified Employer that her hands were numb and painful. She was then sent to Employer’s medical facility, where she received ice and ibuprofen. The next day, her symptoms had not resolved. When she notified her supervisor, she was again sent to undergo treatment at Employer’s plant.

On September 23, with Claimant’s symptoms still unresolved, Employer sent her to Dr. Miller. He diagnosed her with carpal tunnel syndrome, but concluded that it was not work-related. He thus instructed her to seek treatment on her own.


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On September 26, Claimant sought treatment on her own with her personal physician. Claimant testified that, during this appointment, Ms. Salazar diagnosed her with work-related, bilateral carpal tunnel syndrome and restricted her from performing any hand-intensive work. According to Claimant’s testimony, she then communicated this restriction to Employer’s HR department. Employer contends that it was never notified of this restriction. While Claimant’s testimony contradicts such an argument, the argument itself is irrelevant to whether Employer is obligated to pay TTD benefits.

In essence, Employer argues that it was not provided sufficient notice, and thus it is not responsible for providing TTD benefits. This argument lacks merit.

The Workers’ Compensation Act requires claimants to provide written notice of their injuries to employers within 30 days of the injury date. § 287.420. For occupational disease claims, claimants have 30 days from the date of diagnosis to provide written notice. Id. Such notice must include the time, place, and nature of the injury, and the name and address of the person injured. Id. “The notice to the employer is intended to give the employer a timely opportunity to investigate whether an accident occurred and, if it did, to promptly furnish medical attention to the employee to minimize the injury.” Pattengill v. Gen. Motors Corp., 820 S.W.2d 112, 113 (Mo. Ct. App. 1991) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003)). A claimant is not required to report each consequence of a given injury to an employer. Martin v. Lindburg Cadillac, 772 S.W.2d 12, 13 (Mo. Ct. App. 1989).

Employer’s focus on the timeline of events seeks to impose a notice requirement not found anywhere in the Act. On the day of her injury, Claimant filled out a written “EMPLOYEE REPORT OF INJURY,” which included Claimant’s name and address, the time of her injury, the place of her injury, and the nature of her injury. This report alone satisfies the notice requirement of § 287.420. Then, within a week of her carpal tunnel diagnosis, the Claim for Compensation was filed with the Division. The Claim included her address, the date of injury, the place of injury, and the nature of her injury. What is more, it included a demand for TTD and future medical treatment, thus putting Employer on notice that Claimant’s injury was significant enough to warrant medical treatment and TTD.

I find that Claimant provided sufficient notice of her injury. Claimant filled out a report of injury and submitted her Claim within the 30-day notice period. Once she complied with that provision, she fulfilled her statutory requirement. As the Martin opinion noted, employees are not required to report each medical consequence of a given incident. Claimant provided the necessary written notice, and Employer did not provide accommodated work to an employee who had been diagnosed with bilateral carpal tunnel syndrome. At any point after it received the Claim or Dr. Rosenthal’s report, Employer could have offered accommodated work to Claimant. It did not.

Based on the relevant testimony and medical evidence, I find that Claimant has been temporarily and totally disabled since September 23, 2016, and will continue to be disabled until it is determined that she is at maximum medical improvement from her work-related injuries.


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4. Claimant is entitled to costs of 2,223.29 under section 287.560.

The Workers’ Compensation Act provides “that if the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them.” MO. REV. STAT. § 287.560. The “whole cost of the proceedings” has been defined “to include everything the innocent party expended in the proceeding … including her attorney fees.” Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 252 (Mo. 2003) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003).

At Claimant’s deposition, I find that Employer has defended this claim without reasonable ground for its actions.

Prior to the Hearing, counsel for Claimant filed a Motion to Quash and Motion for a Protective Order. The Notice of Continued Deposition, filed April 3, 2017 by counsel for Employer, scheduled Claimant’s continued deposition for April 7, 2017, less than 7 days later. The parties met informally at the Division regarding the varied Motions, and counsel for Employer, Mr. Tom Billam, admitted that the Notice was defective. In this instance, Employer defended the claim without reasonable grounds. More troubling, however, was the basis for the Motion for a Protective Order.

On April 12, 2017, I appointed a Discovery Master because of the parties’ inability to facilitate completion of discovery after reviewing counsels’ motions and learning of Mr. Billam’s unreasonable and unprofessional behavior during Claimant’s deposition. For instance, Mr. Iezzi ended the deposition prematurely after the following exchange, starting at p. 103:

6 MR. IEZZI: Tom, do we need to take a 7 break. It looks like you've removed your glasses and 8 looks like you're not doing okay. We can take a 9 break -- 10 MR. BILLAM: I'm doing fine. I'm just 11 -- I'm just controlling my anger. I'm fine. We 12 don't need a break. I need her to listen, understand 13 plain English language and answer a few questions. 14 MR. IEZZI: Tom, it doesn't appear to 15 me that you're controlling your anger very well. 16 MR. BILLAM: Are you bleeding on the 17 floor? I'm controlling my anger then. 18 MR. IEZZI: Is that a threat? 19 MR. BILLAM: If I get angry, something 20 will happen. You will know it then. I don't have an 21 anger issue. 22 MR. IEZZI: This deposition -- 23 MR. BILLAM: I'm controlling


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24 everything. What? 25 MR. IEZZI: We're going off the p. 104 1 record. This deposition is over.

This exchange illustrates Mr. Billam’s unreasonable behavior toward both Claimant and her counsel. He demeaned Claimant by remarking that she needed to understand plain English language, and he made unprofessional and inappropriate statements to opposing counsel.

In many parts of the deposition’s passages, Mr. Billam’s questioning of the Claimant was repetitive and derisive. During one sequence, Mr. Billam repeated the same question eight times in a row, only stopping the barrage of repetitive questioning to twice tell Claimant to “Answer the question.” In response to an objection, Mr. Billam told opposing counsel to “shut the hell up.” Mr. Billam offered variations of this comment, twice telling Employee’s counsel to “hush up.” Mr. Billam also told opposing counsel: “Bite me.”

Mr. Billam did not limit his unreasonable and unprofessional behavior to repetitive questioning. At one point, he asked Claimant: “Did anybody ask you to breathe that day?” When Claimant provided an answer Mr. Billam did not like, he posed the following question: “Really?” Later in this exchange, he repeated the same demeaning question: “Answer the question. That is really what you’re trying to tell me?” Mr. Billam scolded Claimant as well: “Ma’am, listen to this question, okay? You obviously don’t want to answer the other question so we’re going about it this way.” Shortly thereafter, he further scolded Claimant: “a deposition is not a time for you to make speeches. A deposition is for you to answer the question.” There is no reasonable basis for engaging in this type of behavior. As Employer’s chosen representative, Mr. Billam’s conduct is attributable to Employer as well.

I find Mr. Billam’s behavior at Claimant’s deposition constitutes an unreasonable defense of the claim. The cost of the proceedings related to the Claimant’s deposition and subsequent legal services provided by Mr. Iezzi must be assessed against Employer. The only question that remains is the actual cost of the deposition and subsequent legal services. To that end, Claimant submitted an exhibit which totaled the expenses and attorney’s fees for this proceeding. According to the exhibit and supporting documents, the expenses relating to the deposition equaled $223.90. Meanwhile, counsel for Claimant spent 10 hours litigating at Claimant’s deposition and following the deposition prior to hardship hearing. At $200 per hour, this would equal $2,000.00 in attorney’s fees. Employer did not submit any evidence to contradict these expenses.

I find that the expenses listed in Claimant’s Exhibit D, including attorney’s fees, are fair and reasonable. Therefore, $2,223.90 is assessed against Employer for defending this claim without reasonable grounds during the Claimant’s deposition and subsequent motions.

In light of the award being temporary, the case shall remain open as provided by law. Similarly, all issues not resolved herein shall be deferred pending further hearing.

Any past due compensation or benefits awarded herein shall bear interest as provided by law.


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____________________________________ Angie Heffner Administrative Law Judge Division of Workers’ Compensation

TEMPORARY AWARD ALLOWING COMPENSATIONJudge Angie Heffner. A Temporary and Partial Award was issued...

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