Court of Appeals of Missouri, Western District, Third Division
FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
Before: Victor C. Howard, Presiding Judge, Lisa White
Hardwick, Judge and Edward R. Ardini, Jr., Judge
C. HOWARD, JUDGE
Wickam appeals and the Missouri State Treasurer as custodian
of the Second Injury Fund ("SIF") cross appeals the
Final Award of the Missouri Labor and Industrial Relations
Commission ("Commission") finding SIF liability for
permanent partial disability. The Commission considered Mr.
Wickam's right shoulder injury, sustained at work on
August 17, 1999, to be a disability that pre-existed his
primary injury, carpal tunnel syndrome, which did not become
disabling until November 1, 2001. The Commission found that
the confluence of "(1) a diagnosis of clearly
work-related repetitive trauma in the form of carpal tunnel
syndrome; (2) clear clinical evidence of impairment in the
form of numbness of the upper extremities; and (3) a need for
medical treatment in the form of carpal tunnel release
surgery" shown in Mr. Wickam's expert's report
of November 1, 2001, established a "compensable
injury" as of that date.
Wickam asserts that the Commission erred in determining
November 1, 2001 to be the date of disability for the carpal
tunnel syndrome, arguing the date should be September 12,
2003, and December 22, 2003, because those dates were
"when Mr. Wickam was no longer able to work due to his
need for carpal tunnel surgery, " which he argues is the
proper test for when an injury becomes compensable for
purposes of SIF liability. SIF also contends that the
Commission erred in determining November 1, 2001 to be the
date of disability for the carpal tunnel syndrome, but argues
the date should be November 6, 2000, because Mr. Wickam
"had numbness and tingling in his hands, was treated for
these complaints and had confirmed disability with his hand
at work as early as August and September, 1999, and received
a diagnosis of carpal tunnel syndrome on November 6,
judgment is reversed and remanded.
Wickam worked in truck driving and heavy equipment operation
from the 1970s to April 18, 2003. During that time, he did
work requiring repetitive motions of the upper extremities to
continuously manipulate levers, gear shifts, and steering
wheels. Mr. Wickam obtained these various jobs, which were
sometimes short-term in nature, through his local union hall.
August 17, 1999, while working for Republic Services, Mr.
Wickam's earth mover got stuck and a push cab that was
helping release the earth mover jerked and threw him as the
machinery was freed, causing shoulder pain within a few days.
Mr. Wickam consulted Dr. Craig Satterlee for treatment of his
shoulder injury, and in his report, Dr. Satterlee noted Mr.
Wickam's complaints of numbness in the right hand and
ordered an EMG to rule out a brachial plexus injury. The EMG,
performed November 6, 2000, revealed moderate to severe
carpal tunnel syndrome in Mr. Wickam's right upper
Wickam's medical expert, Dr. P. Brent Koprivica,
evaluated Mr. Wickam on November 1, 2001, for the 1999 right
shoulder injury, and also examined his bilateral upper
extremities. Dr. Koprivica's report noted the November
2000 EMG and opined that Mr. Wickam was suffering from
bilateral carpal tunnel syndrome, that his activities as a
heavy equipment operator were a substantial factor in causing
the condition to develop, and that he needed further
electrodiagnostic studies and treatment in the form of
surgical decompression of both upper extremities.
September 12, 2003, Dr. Leslie Thomas performed right carpal
tunnel release surgery on Mr. Wickam. On September 24, 2003,
an EMG revealed that Mr. Wickam also had moderately severe
left carpal tunnel syndrome. Dr. Thomas performed left carpal
tunnel release surgery on Mr. Wickam on December 22, 2003. On
September 29, 2004, Dr. Thomas determined that Mr. Wickam had
reached maximum medical improvement, and rated each upper
extremity as having a generalized 5% residual deficit. Mr.
Wickam settled his claim against Republic Services for the
primary injury of carpal tunnel syndrome consistent with a
rating of 18% permanent partial disability ("PPD")
affecting the body as a whole.
Koprivica issued another report on Mr. Wickam on October 12,
2004, in which he reiterated his opinion that Mr. Wickam
suffered at least moderately severe bilateral carpal tunnel
syndrome as a result of his work activities operating heavy
equipment and driving trucks. Dr. Koprivica again opined that
these activities were a substantial factor in causing the
bilateral carpal tunnel syndrome. The Commission found that
Dr. Koprivica's causation opinion was not contradicted by
any other expert medical opinion evidence and not inherently
incredible, and credited it as such, though deeming the 18%
PPD rating from Mr. Wickam's settlement with Republic
Services as appropriate for the carpal tunnel syndrome,
rather than Dr. Koprivica's opinion of a 20% rating.
Commission discussed Mr. Wickam's numerous preexisting
conditions, beginning with the right shoulder injury
sustained August 17, 1999, and treated by Dr. Bruce Scully
from August to October 1999. Mr. Wickam was diagnosed with
bursitis of the right shoulder and Dr. Scully restricted him
from any work over shoulder height, prescribed medications
and physical therapy, injected the right shoulder, and
recommended range of motion and strengthening exercises.
mentioned previously in connection with the background of Mr.
Wickam's carpal tunnel, Mr. Wickam also saw Dr. Satterlee
for additional treatment of his shoulder. Dr. Satterlee
diagnosed a rotator cuff tear, recommended surgery, and
performed a right total shoulder replacement on December 6,
2000. Dr. Satterlee released Mr. Wickam as having reached
maximum medical improvement of the right shoulder on June 7,
2001, with a permanent lifting restriction of 50 pounds. The
Commission found that Mr. Wickam's settlement of this
claim against Republic Services for the shoulder injury to be
persuasive evidence and thus found Mr. Wickam suffered a 50%
PPD of the right shoulder as of June 7, 2001.
Commission discussed testimony from Dr. Allan Schmidt, a PhD
psychologist that Mr. Wickam suffers from attention deficit
hyperactivity disorder (impulsive type) and a personality
disorder (not otherwise specified and with
obsessive-compulsive features) resulting in permanent partial
psychological disability. The Commission found that Mr.
Wickam's "disorganized and discursive"
testimony, as well as his "similar presentation when
evaluated by his vocational expert, Mary Titterington"
provided significant support to Dr. Schmidt's diagnosis
based on his description of the symptoms resulting from those
conditions. The Commission therefore deemed that Mr. Wickam
suffered a preexisting psychological disability of 10% of the
body as a whole, a condition that would have been present
from early birth or childhood, and at the time of the primary
Commission also considered Mr. Wickam's claimed
preexisting disability referable to sleep apnea. Mr. Wickam
first sought evaluation and treatment for excessive fatigue
and weight gain from Dr. Raghavendra Adiga on April 5, 1999,
and a sleep study was ordered due to Dr. Adiga's
impression that Mr. Wickam was most likely suffering from
obstructive sleep apnea, among other possible conditions.
Subsequent to this initial sleep study, Mr. Wickam did not
follow up or seek additional treatment although his symptoms
continued, and eventually bothered him at work. On May 1,
2003, Mr. Wickam consulted Dr. Lisa Mansur for his complaints
of severe sleepiness, which he dealt with by sleeping on his
lunch breaks and stopping to nap during his commute to ...