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Cook v. Missouri Highway and Transportation Commission

Court of Appeals of Missouri, Southern District, First Division

October 25, 2016

LISA COOK, Claimant-Respondent,
v.
MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Employer-Appellant.

         APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

         AFFIRMED.

         This is a consolidated appeal in which the Missouri Highway and Transportation Commission (Employer) appeals from two final awards of workers' compensation benefits to Lisa Cook (Claimant) for carpal tunnel syndrome of her right and left wrists, respectively. The Labor and Industrial Relations Commission (Commission) determined that Claimant was permanently and partially disabled from her bilateral carpal tunnel syndrome as an occupational disease. The Commission also ordered Employer to pay for Claimant's disfigurement after surgery, temporary total disability and past medical treatment. On appeal, Employer contends: (1) the Commission erred in determining that Claimant's claims were not barred by the statute of limitations because she sustained an injury that was reasonably discoverable more than two years prior to the filing of her claims; (2) the Commission erred by deciding to credit the testimony of Claimant's expert on medical causation because the expert's opinion was based on incorrect knowledge of Claimant's medical history; and (3) the Commission erroneously awarded past medical expenses because Claimant testified that her medical bills were satisfied by Employer. Finding no merit in any of these contentions, we affirm.

         Factual and Procedural Background

         At the time of the December 2014 hearing in this matter, Claimant was 55 years old. She had begun working for Employer in August 1997 when she was hired as a senior secretary in the traffic department, a position which she kept through 2011. Claimant's duties required her to spend 85-90% of her time at the computer performing data-entry work. Claimant described her data-entry work as involving typing letters, preparing permits, revising/updating reports, entering employee time sheet data, preparing requests for money for permit applications, preparing monthly budget reports, recording vehicle mileage, making hotel reservations, notifying district offices of permit expirations, providing clerical support for the maintenance department, performing product research, and handling email communications for the office. Her duties also included CPR instruction.

         Claimant testified that she was first seen by a medical provider for wrist problems in 2005 when she saw her personal physician, Dr. Colleen Hunter-Pearson. The doctor noted that Claimant's work involved repetitive movements of the wrist and that Claimant suspected she had bilateral carpal tunnel syndrome. Dr. Hunter-Pearson referred Claimant to Dr. A. B. Chaudhari, who ordered a nerve conduction study that was performed at Southeast Missouri Hospital in December 2005. The nerve conduction study revealed normal findings. Dr. Chaudhari told Claimant that she did not have carpal tunnel syndrome. Neither Dr. Hunter-Pearson nor Dr. Chaudhari told Claimant that they had made any diagnosis of the condition of her wrists, and neither doctor indicated to her that her wrist problems were somehow related to her work. She was treated with anti-inflammatory medication and physical therapy for her neck.

         Claimant was next seen for problems with her wrists in September 2007 when Employer referred her to St. Francis Medical Center (SFMC). At the time, Claimant complained of wrist pain and swelling, which had been brought on by additional data-entry requirements that her supervisor had asked her to perform by entering old permits into the computer system. Dr. Glen Cooper at SFMC diagnosed Claimant with extensor tendinitis of wrists, right greater than left; tendinitis right elbow; and over-use tendinitis. She was treated with splints and anti-inflammatories. Claimant was seen at SFMC during four visits, the last of which was in November 2007, at which time her wrists were "pain free" and the swelling had resolved. During her 2007 treatment at SFMC, no doctor diagnosed Claimant with carpal tunnel syndrome.

         In late 2010 and early 2011, Claimant began to experience pain, numbness, weakness and burning in her wrists and hands, which caused her to wake up at night. During 2011, the problems with her wrists continued to worsen, with her symptoms greater in the right wrist than the left. In September 2011, Claimant filed a Field Injury Report for the injury to her right wrist.

         In October 2011, Employer sent Claimant to be examined by Dr. R. Evan Crandall. Dr. Crandall ordered another nerve conduction study performed on her right wrist only, which was done by Dr. Daniel Phillips that same day. This second nerve conduction study was positive for moderately severe right carpal tunnel syndrome. Based on the results of this study, Dr. Crandall diagnosed Claimant with moderate to severe carpal tunnel syndrome for the right wrist only. Dr. Crandall was the first doctor who told Claimant that he diagnosed either of her wrists with carpal tunnel syndrome. Dr. Crandall indicated that Claimant's work could be a risk factor for her right carpal tunnel syndrome, but opined that it was not a work-related injury. The doctor instead relied on Claimant's medical risk factors related to carpal tunnel syndrome, including hypertension, age, gender and menopause.

         In November 2011, Claimant filed a Field Injury Report for injury to her left wrist. This was based on the fact that she was having symptoms in the left wrist similar to those she had had in the right wrist, specifically "numbness, tingling, burning sensation, weakness, " although the symptoms were not as severe. At that time, Employer had someone take a 45-minute video of Claimant at work, wherein she was asked to show examples of each type of work that she performed. The video did not record or reflect how much time she spent doing each task. In addition, Employer put a ghost key counter on Claimant's keyboard from November 18 - December 9, 2011, to measure the number of key strokes she made. Claimant testified that counting the key strokes during that period was not an accurate reflection of her normal work requirements because: (1) the period included holidays; and (2) during that time, those she worked for were either out hunting or were not working on jobs because it was the winter season.

         On January 10, 2012, Claimant filed separate claims for carpal tunnel syndrome in each wrist and arm. In early 2012, Employer denied any additional treatment or evaluation for problems with Claimant's wrists.

         In October 2012, Claimant saw Dr. Victoria Kubik in Springfield, Missouri. Dr. Kubik noted that Claimant worked for Employer, does "a lot of typing and has been doing that for 15 years." Dr. Kubik diagnosed Claimant with bilateral carpal tunnel syndrome and prescribed carpal tunnel release surgeries. Because Claimant was taking care of her father at that time and did not want to be away from him for an overnight stay in Springfield for the surgeries, she sought a physician in the St. Louis area for further treatment.

         In November 2012, Claimant was seen by Dr. Bruce Schlafly. He also diagnosed bilateral carpal tunnel syndrome and recommended surgical releases, which he performed for the right wrist in late November 2012 and for the left wrist in mid-December 2012. Claimant testified that she was off work from November 28 through December 5, 2012, after the first surgery, and from December 18 through January 2, 2013, after the second surgery. Claimant testified that the release surgeries provided her with substantial relief in both wrists by eliminating the numbness and greatly reducing the pain that she experienced.

         As of the date of the hearing, Claimant had occasional sharp, stabbing pain in her wrists when she was lifting and when her wrists were in an awkward position, along with numbness in her right forearm and decreased strength in both wrists. The carpal tunnel injuries affected Claimant's ability to use her wrists in the following ways: (1) she experienced decreased strength and range of motion; (2) her wrists tired more easily; (3) she was limited in performing her duties as a CPR instructor for Employer; (4) her gardening activities were limited; and (5) she was unable to pick up her grandchildren since the wrist injuries. Claimant has approximately 2˝ scars at each wrist from the surgeries.

         Dr. Schlafly's deposition was received in evidence on Claimant's behalf. Dr. Schlafly testified that Claimant's repetitive work duties during her employment for Employer were the prevailing factor in causing her to develop bilateral carpal tunnel syndrome, which he treated with carpal tunnel release surgeries. Dr. Schlafly rated Claimant's permanent disability from her work injuries at 25% of each hand at the wrist level. Dr. Schlafly further testified that his treatment of Claimant's work injuries was reasonable and necessary and that the bills for the surgeries that he performed, from the various providers, were also reasonable and necessary.

         Dr. Crandall's deposition was received on Employer's behalf. Dr. Crandall testified that he would not defer to the surgeon who performed the carpal tunnel release surgery on Claimant's left wrist as to whether there was an impingement at the carpal tunnel. Dr. Crandall would not confirm a diagnosis of carpal tunnel syndrome in that wrist. He reiterated that the prevailing factor in causing carpal tunnel in her right wrist was a combination of Claimant's medical risk factors. Dr. Crandall also testified that as of November 6, 2007, following her treatment for tendinitis, Claimant did not have any evidence of carpal tunnel syndrome in her wrists.

         After the hearing, the ALJ found that: (1) Claimant's employment with Employer was the prevailing factor causing her bilateral carpal tunnel syndrome; (2) her claims were filed within the time allowed by law; and (3) she provided proper notice of the occupational diseases to Employer. The Employer was directed to pay Claimant previously incurred medical aid, temporary total disability payments, and 20% permanent partial disability plus one week of disfigurement for each wrist. The Commission affirmed the ALJ's awards for each wrist through supplemental opinions. Employer appealed both awards and filed a motion to consolidate, which this Court granted. Additional facts will be included below as we address Employer's three points on appeal challenging the timeliness of the claims, medical causation and award of past medical expenses.

         Standard of Review

         We will review the findings and conclusions of the Commission and the ALJ as adopted by the Commission. Harness v. Southern Copyroll, Inc., 291 S.W.3d 299, 303 (Mo. App. 2009). The scope of our review is set forth under § 287.495.1 RSMo (2000).[1]We review only questions of law and may modify, reverse, remand for rehearing, or set aside the award when the Commission acted without or beyond its power, the award was procured by fraud, the facts do not support the award, or the award is not supported by sufficient competent evidence in the record. Id. "A court must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003); see also Mo. Const. art. V, § 18.[2] This is because an award "contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence." Hampton, 121 S.W.3d at 223. Such an award will be rare. Id.; see Roberts v. Missouri Highway & Transp. Comm'n, 222 S.W.3d 322, 331 (Mo. App. 2007).

         We defer to the Commission's factual findings and recognize that it is the Commission's function to determine the credibility of witnesses and the weight to be given to their testimony. Underwood v. High Road Indus., LLC, 369 S.W.3d 59, 66 (Mo. App. 2012). "[C]onflicting medical theories present a credibility determination for the Commission to make." Armstrong v. Tetra Pak, Inc., 391 S.W.3d 466, 470 (Mo. App. 2012). Therefore, the Commission's decision as to which of the various medical experts to believe is binding on this Court. Id. at 471. We will not substitute our judgment on issues of fact where the Commission acts within its powers, even if we would arrive at a different initial conclusion. Underwood, 369 S.W.3d at 66; see Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012) (when evidence would warrant either of two opposed findings, the reviewing court is bound by the Commission's findings; it is irrelevant that there is supportive evidence for the contrary finding). We review questions of law de novo. Underwood, 369 S.W.3d at 66.

         Discussion and Decision

         Point 1

         Employer's first point maintains that Claimant's claims are barred by the statute of limitations. Section 287.430 generally requires a claim for workers' compensation to be filed "within two years after the date of injury[.]" § 287.430 RSMo (2000); see § 287.020.3(1) (defining "injury" to be "an injury which has arisen out of and in the course of employment"). "An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter." § 287.067.3.[3] In cases of occupational disease, the statute of limitations shall not begin to run "until it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure[.]" ยง 287.063.3. The question as to when an "injury has been sustained related to such exposure" of repetitive motion becomes "reasonably ...


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