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Wickam v. Treasurer of State of Missouri

Court of Appeals of Missouri, Western District, Third Division

September 20, 2016

JAMES WICKAM, Appellant-Respondent,
v.
TREASURER OF THE STATE OF MISSOURI - CUSTODIAN OF THE SECOND INJURY FUND, Respondent-Appellant,

         APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

          Before: Victor C. Howard, Presiding Judge, Lisa White Hardwick, Judge and Edward R. Ardini, Jr., Judge

          VICTOR C. HOWARD, JUDGE

         James 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.

         Mr. 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, 2000."

         The judgment is reversed and remanded.

         Background

         Mr. 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.

         On 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 extremity.

         Mr. 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.

         On 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.

         Dr. 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.

         The 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.

         As 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.

         The 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 injury.

         The 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 ...


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