temporary award allowing compensation · january 2000, july 2000, february 2003, and april 2006 and...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

Injury No.: 12-067125 Employee: Laverne Shegog Employers: SSM Health Care St. Louis Insurer: Self Insured Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the briefs, heard the parties’ arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge (ALJ). We adopt the findings, conclusions, decision, and award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below Preliminaries The parties asked the administrative law judge to resolve the following issues: (1) occupational disease arising out of and in the course of employment; (2) medical causation; (3) future medical treatment; and (4) statute of limitations.

The administrative law judge separately addressed the employee’s claims of occupational disease consisting of carpal tunnel syndrome and de Quervain’s tenosynovitis. He determined as follows:

Carpal Tunnel Syndrome

1. The employee was not employed by this employer when she was diagnosed with carpal tunnel syndrome in January 2000, July 2000, February 2003, and April 2006 and previously received a workers’ compensation settlement following her claim against another employer for bilateral carpal tunnel syndrome.

2. The employee’s work activities for this employer in 2011 and 2012 were not the prevailing factor causing her medical condition of bilateral carpal tunnel syndrome.

3. An employer is not required to furnish medical treatment for a non-work related injury, therefore future medical is denied.

Injury No.: 12-067125 Employee: Laverne Shegog

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4. The issue of the statute of limitations is moot because no claim for compensation ever arose.

De Quervain’s Tenosynovitis

1. The employee developed left de Quervain’s tenosynovitis while working for the employer. The employee developed right de Quervain’s tenosynovitis after she stopped working for employer. The employee’s left de Quervain’s tenosynovitis was negative by 2015.

2. Based on the weight of the credible evidence in the record, including medical opinions of Dr. Schlafly, Dr. Brown and Dr. Dysarz, the employee’s work as a housekeeper for employer was not the prevailing factor causing her bilateral de Quervain’s tenosynovitis.

3. The employee is in need of further medical treatment to cure and relieve the effects of her upper extremities diagnoses however the employer is not required to furnish such treatment because employee’s employment for this employer was not the primary factor causing either her bilateral carpal tunnel syndrome or her bilateral de Quervain’s tenosynovitis.

Employee filed a timely application for review with the Commission alleging the administrative law judge’s award was erroneous in that:

1. The ALJ’s finding that the employee’s recurrent carpal tunnel syndrome in 2012 was a continuation of the exact same injury she had in 2004 is inconsistent with the uncontradicted evidence that after conservative treatment the employee was relatively symptom free until and after additional exposure to hand intensive work she had with the employer in 2011-2012 caused additional occupational injury to her wrists no longer treatable with conservative measures.

2. The ALJ erred in relying on the testimony of Dr. Dysarz in support of his finding that the housekeeping duties employee performed could not have caused carpal tunnel syndrome because Dr. Dysarz’s opinion lacked any substantial foundation.

3. The ALJ unfairly discredited the employee’s testimony based on her imperfect recollection of all of her medical records prior to her 2004 injury and the employee’s


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inability to understand some of the words used to question her during the hearing.

Having reviewed the evidence and considered the whole record, we find the ALJ’s analysis relating to the employee’s carpal tunnel syndrome occupational disease claim supported by competent and substantial evidence and made in accordance with the Missouri workers’ compensation law. We therefore affirm and adopt the ALJ’s findings and award relating to this issue.

We modify the ALJ’s award only with respect to his analysis and findings relating to the employee’s de Quervain’s tenosynovitis occupational disease claim. We address the following issues relating to employee’s de Quervain’s tenosynovitis claim:

1. Occupational disease arising out of and in the course of the employee’s employment with this employer.

2. Medical causation.

3. Application of the statute of limitations.

4. Employer’s liability to provide future medical treatment.

Discussion Beginning around 1999, more than a decade before her employment with employer, employee sought treatment for intermittent pain and swelling in her hands.1 On April 6, 2004, Dr. David Strege diagnosed employee with bilateral carpal tunnel syndrome.2 In April 2006, Dr. Bruce Schlafly found that employee’s repetitive work as a full time housekeeper for St. Louis University from November 2000 through April 2, 2004, was the substantial and prevailing factor in the aggravation of mild underlying preexisting carpal tunnel syndrome, resulting in permanent partial disability to her right and left hands at the level of the wrist.3 On October 24, 2006, a Division of Worker’s Compensation ALJ approved a compromise settlement between employee and her prior employer for permanent partial disability involving “any and all aggravating incidents occurring during the course of employment involving the hands, wrists, elbows, and shoulders to date of approval of this settlement (emphasis added)”.4

After a time of unemployment, employee performed housekeeping work for two successive employers from 2006 until April 2011. She elected to avoid surgery and treated her carpal tunnel syndrome by wearing hand splints. The employee testified that during this time her work duties were lighter and that her wrists were “okay because of the splints that I was wearing.”5

1 Transcript, 167. 2 Id. 151. 3 Id. 170-171. 4 Id. 152. 5 Id. 9-10.


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The employee was no longer wearing splints and was experiencing no problems with her hands and wrists when she began working for employer as an aide performing housekeeping services in its environmental services department in April 2011. The employee worked full time as a housekeeper for employer from April 2011 until December 2012. The employee testified that 90% of her job duties involved as a housekeeper involved using her hands, including flipping mattresses, pulling out floor boards, “high dusting” and wiping down furniture including bed springs, mopping, cleaning toilets and “pulling trash.”6

Beginning around the end of October to November 2011, the employee began to feel discomfort in her right and left hand that included a feeling of numbness and tingling, as though her hands were sleeping, accompanied by some pain. The employee took Motrin for the pain but her symptoms continued to worsen. In December employee complained to her supervisor Pat Keys about pain in her hands. On January 25, 2012, supervisor sent employee to employer’s emergency room (ER). The ER wrapped employee’s right hand with a bandage and prescribed Naproxen. When employee later inquired about workers’ compensation coverage, employer’s representative Chris Givens told employee “she didn’t think it was a Workman’s Comp case and that I should see a doctor on my own.”7 The employee consulted Dr. Dysarz, a board-certified hand surgeon, on March 21, 2012. At that time, she complained of “tingling, swelling in my fingers, my wrist, my fingers…swelling up, [and a] burning sensation in my fingers all the way up to my elbow.”8

In a letter documenting his examination of the employee on March 21, 2012, Dr. Dysarz noted, “A left Finkelstein test was clearly positive for DeQuervain’s tenosynovitis.”9 Dr. Dysarz subsequently noted evidence of employee’s left de Quervain’s tenosynovitis on numerous occasions over a lengthy period of time.10

On July 13, 2012, Dr. Dysarz noted that the employee’s left de Quervain’s symptoms had improved somewhat following a Kenalog injection several months prior but remained unresolved due to her inability to keep her left wrists splinted and rested. That day, Dr. Dysarz reinjected employee’s left first dorsal extensor tendon compartment with Kenalog and prescribed a thermoplastic splint for the employee to wear constantly. He advised employee that she might require a left first dorsal extensor tendon compartment release in the future. On October 12, 2012, Dr. Dysarz noted that the employee chose not to address her left de Quervain’s tenosynovitis when she had open right carpel tunnel release surgery on September 28, 2012.11

When deposed, Dr. Dysarz initially testified that de Quervain’s tenosynovitis “is a common cause of spontaneous wrist pain that we see in patients. Sometimes they use their hands a lot, sometimes they have minimal use of their hands, and there isn’t really 6 Transcript, 5-6. 7 Id. 13. 8 Id. 14. 9 Id. 68. 10 See Dr. Dysarz’s handwritten notes dated March 21, 2012, April 20, 2012, July 13, 2012, October 12, 2012, and November 9, 2012; all noting positive left Finkelstein’s test results. Id. 71-75. 11 Id. 70.


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one thing that we can relate it to.”12 Dr. Dysarz acknowledged that many doctors disagree with his opinion that people performing housekeeping and janitorial services are not going to develop de Quervain’s tenosynovitis from that work. He stated, “[I]t’s a controversial subject.”13

Dr. Dysarz later testified that employee’s particular job was not a prevailing causative factor in the development of her left DeQuervain’s tenosynovitis because her work did not include “a lot of repetitive heavy gripping or resisted thumb abduction or adduction (emphasis added).”14 Dr. Dysarz took no history from the employee about the actual work she performed in her housekeeping work for employer. He based his opinion about the employee’s job duties on about a half hour of direct observation of housekeeping workers at employer’s facility and employer’s job descriptions.

In a report summarizing his examination of the employee on February 6, 2014, Dr. Bruce Schlafly noted that although the Finkelstein test for de Quervain’s tendonitis15 was negative at each of the employee’s wrists, she “has some tenderness at the first dorsal extensor tendon compartment of the left wrist, and there is some thickening present at this tendon sheath.”16 Based on his examination and objective findings, Dr. Schlafly diagnosed mild de Quervain’s tendonitis of the employee’s left wrist. Dr. Schlafly testified he considered the employee’s repetitive work with her hands and wrists as a housekeeper for employer to be the prevailing cause of her left de Quervain’s tendonitis. Dr. Schafly noted that at the time of the employee’s prior diagnosis of carpal tunnel syndrome in 2003, there was no diagnosis of de Quervain’s. Dr. Schlafly recommended treatment consisting of a de Quervain’s tendon sheath release of employee’s left wrist.

At employer’s request, hand surgeon Dr. David M. Brown examined the employee on June 16, 2015. In the course of his one-time independent medical evaluation, Dr. Brown found, based on employee’s complaints of right sided radial wrist pain, “symptoms and findings suggestive of a diagnosis of right deQuervain’s tenosynovitis.”17 Dr. Brown’s report stated, “With regards to [employee’s] history of de Quervain’s tenosynovitis of the left wrist, today she does not complain of pain over the radial dorsal aspect of the left wrist and her examination is negative for de Quervain’s tenosynovitis of the left wrist.”18 Dr. Brown’s June 16, 2015, report infers that the employee’s occupational activities could have originally caused her condition of left de Quervain’s tenosynovitis.

12 Id. 201. 13 Id. 230-231. 14 Id. 233-234. 15 Dr. Schlafly uses the term “tendonitis” rather than “tenosynovitis” in his diagnosis of the employee’s de Quervain’s. (Transcript 109, 144-146). For purposes of this award, we consider the terms “de Quervain’s tenosynovitis” and “de Quervain’s tendonitis” synonymous and use them interchangeably. 16 Id. 158. 17 Id. Employer’s Exhibit 2, 332. 18 Id.


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Conclusions of Law Occupational disease arising out of and in the course of employment Section 287.067 provides, in pertinent part:

1. In this chapter the term “occupational disease” is hereby defined to mean…an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

. . . 3. An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The “prevailing factor´ is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

Based on the employee’s credible testimony, we find that the vast majority of her job duties as a housekeeper in employer’s environmental department from April 2011 to December 2012 involved using her hands, including flipping mattresses, pulling out floor boards, “high dusting” and wiping down furniture including bed springs, mopping, cleaning toilets and “pulling trash.”19 Dr. Bruce Schlafly, board certified hand and orthopedic surgeon, testified that employee’s work with her hands in her job for employer during this time period was the prevailing factor in development of de Quervain’s tendonitis of her left wrist. Dr. Francis Dysarz, also a board certified hand surgeon, generally opined that repetitive hand motion has no relationship to de Quervain’s tenosynovitis. He subsequently testified, based on job descriptions employer provided and informal observation of other housekeeping worker at employer’s facility, that the employee’s work could not have

19 Transcript, 5-6.


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caused de Quervain’s tenosynovitis because her job duties did not involve repetitive heavy gripping, resisted thumb abduction, or adduction. Dr. Dysarz’s assumptions regarding employee’s job duties appear inconsistent with the employee’s credible testimony and employer’s description of the employee’s position, which lists “reaching, groping, fingering, and/or feeling” as a “frequent” physical requirement of her job.20 We find that employee’s work as a housekeeper in employer’s environmental department from April 2011 to December 2012 involved exposure to an occupational disease resulting from repetitive motion that was greater and different from that which affects the public generally. We further find, based on the medical opinion of Dr. Schlafly, a recognizable link between the employee’s condition of left de Quervain’s and the repetitive hand motions involved in her job which is common to all housekeeping and janitorial work.

Medical causation As we have found, when employee began working for employer in April 2011 she was no longer wearing splints to work and was having no problems with her hands and wrists. Pain and swelling in employee’s hands and wrists did not reoccur until the end of October to November 2011. There is no evidence that employee was diagnosed with de Quervain’s tenosynovitis prior to Dr. Dysarz’s examination of March 21, 2012. Dr. Schlafly’s 2006 report includes no finding of de Quervain’s tendonitis. Employer does not suggest that employee’s prior settlement with another employer seven years prior to her employment with employer was based on any diagnosis other than a bilateral carpal tunnel syndrome. As we have found, the employee’s specific job duties, common to housekeeping and janitorial work generally, involved a greater and different exposure to repetitive hand motion than that which affects the public generally. We credit Dr. Bruce Schlafly’s opinion that employee’s work with her hands in her job for employer from April 2011 to December 2012 was the prevailing factor in development of de Quervain’s tendonitis21 of her left wrist. Dr. David Brown noted no complaints and made no clinical findings consistent with a left de Quervain’s tenosynovitis when he examined employee on June 16, 2015. In his report, Dr. Brown describes this condition as “resolved.” Dr. Brown does not specifically address, however, whether it is possible to rule out the continued existence of a left de Quervain’s tenosynovitis based on a one-time, negative clinical presentation. In the absence of clear medical testimony in this regard, and particularly in view of the fact that Dr. Dysarz and Dr. Schlafly have repeatedly found evidence of a left de Quervain’s tenosynovitis over a long period of time, we are not now persuaded that this condition has, in fact, completely resolved.

20 Transcript, Employer’s Exhibit 4, 273-278. 21 Dr. Schlafly uses the more general term “tendonitis” when referring to employee’s de Quervain’s tenosynovitis in both his testimony and report (Transcript 109, 144). For purposes of our consideration of the medical opinions relating to the employee’s claim in this case, we find no substantial difference between the terms tendonitis and tenosynovitis and use them interchangeably.


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Statute of Limitations As we have found, employee first learned of her left de Quervain’s tenosynovitis diagnosis on March 21, 2012, at which time she was employed by employer and exposed to the risk of occupational disease consisting of repetitive hand motion in her work as a housekeeper in employer’s environmental services department. Employee’s claim for compensation for occupational disease in her wrists and hands due to repetitive duties filed June 25, 2012, was therefore timely pursuant to § 287.063.3 which provides that the statute of limitations in a case of occupational disease shall not begin to run until it becomes reasonable discoverable and apparent that an injury has been sustained due to such exposure and § 287.430, which requires that a claim be filed within two years after the date of injury. The employee’s March 21, 2012, claim alleging injury due to de Quervain’s tenosynovitis is not barred by the statute of limitations.

Employer’s liability to provide future medical treatment Section 287.140. RSMo provides, in relevant part, as follows:

1. 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. If the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense. . .

. . .

In Jefferson City Country Club v. Pace, 500 S.W.3d 305 (Mo. App. 2016), the court stated:

It is not necessary for a claimant to provide conclusive evidence as to what future medical treatment will be needed; rather, the claimant must demonstrate a ‘reasonable probability’ that future medical treatment will be necessary due to her work related injury. ‘An employer is required to compensate for future medical care only if ‘the evidence establishes a reasonable probability that additional medical treatment is needed and, to a reasonable degree of medical certainty, that the need arose from the work injury. ’ Id. at 317 (Mo. App. 2016) (citations omitted).

Employee testified at hearing that she experiences continuing pain and numbness in her left wrist. Employee’s treating physician Dr. Dysarz recommended a repeat cortisone injection, splinting or a surgical release of employee’s tendon compartment to address employee’s persistent discomfort in her left wrist to address her left de Quervain’s tenosynovitis.” Board certified hand and orthopedic surgeon Dr. Bruce Schlafly recommended further treatment of the employee’s left de Quervain’s tendon consisting of a sheath release of the employee’s left wrist. By this evidence, we find the employee has demonstrated a reasonably probability that she will require additional medical treatment for her left de Quervain’s tenosynovitis condition.


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Award We modify the ALJ’s award. Employer is hereby ordered to refer the employee to a doctor of its choosing to determine whether employee currently manifests any evidence of left de Quervain’s tenosynovitis, and, if so, to provide medical treatment to cure and relieve employee from the effects of this condition. 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 assessing the nature and extent of the employee’s permanent disability can be made. All parties should be aware of the provisions of § 287.510 RSMo. This award is subject to a lien in favor of Kurt C. Hoener, attorney at law, in the amount of 25% for necessary legal services rendered. The award and decision of ALJ Edwin J. Kohner, issued November 14, 2016, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award. Given at Jefferson City, State of Missouri, this 14th day of November 2017.

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

Issued by DIVISION OF WORKERS' COMPENSATION

Revised Form 31 (3/97) Page 1

AWARD

Employee: Laverne Shegog Injury No.: 12-067125 Dependents: N/A Before the Division of Workers’ Employer: SSM Health Care St. Louis Compensation Department of Labor and Industrial Additional Party: Second Injury Fund (Open) Relations of Missouri Jefferson City, Missouri Insurer: Self Insured Hearing Date: September 29, 2016 Checked by: EJK

FINDINGS OF FACT AND RULINGS OF LAW 1. Are any benefits awarded herein? No 2. Was the injury or occupational disease compensable under Chapter 287? No 3. Was there an accident or incident of occupational disease under the Law? No 4. Date of accident or onset of occupational disease: January 25, 2012 (Alleged) 5. State location where accident occurred or occupational disease was contracted: St. Louis 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? No 9. Was claim for compensation filed within time required by Law? No 10. Was employer insured by above insurer? Self-insured 11. Describe work employee was doing and how accident occurred or occupational disease contracted:

The claimant, a housekeeper, suffered bilateral carpal tunnel syndrome and de Quervain’s tenosynovitis. 12. Did accident or occupational disease cause death? No Date of death? N/A 13. Part(s) of body injured by accident or occupational disease: Both arms (Alleged) 14. Nature and extent of any permanent disability: Not determined 15. Compensation paid to-date for temporary disability: None 16. Value necessary medical aid paid to date by employer/insurer: None

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Laverne Shegog Injury No.: 12-067125

WC-32-R1 (6-81) Page 2

17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: $439.01 19. Weekly compensation rate: $292.68 20. Method wages computation: By agreement

COMPENSATION PAYABLE

21. Amount of compensation payable: None 22. Second Injury Fund liability: Open TOTAL: None 23. Future requirements awarded: None Said payments to begin immediately and to be payable and be subject to modification and review as provided by law. The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Kurt C. Hoener, Esq.


WC-32-R1 (6-81) Page 3

FINDINGS OF FACT and RULINGS OF LAW: Employee: Laverne Shegog Injury No.: 12-067125 Dependents: N/A Before the Division of Workers’ Employer: SSM Health Care St. Louis Compensation Department of Labor and Industrial Additional Party: Second Injury Fund (Open) Relations of Missouri Jefferson City, Missouri Insurer: Self Insured Checked by: EJK/

This workers’ compensation case raises several issues arising out of an occupational disease claim in which the claimant, a housekeeper, suffered bilateral carpal tunnel syndrome and de Quervain’s tenosynovitis. The issues for determination are (1) Occupational Disease arising out of and in the course of employment, (2) Medical Causation, (3) Future medical treatment, and (4) Statute of Limitations. The evidence compels an award for the defense. At hearing, the claimant testified in person and offered the following exhibits:

Claimant’s Exhibit 1: Medical records of SMM St. Mary’s Health Center dated January 25, 2012 Claimant’s Exhibit 2: Medical records of Dr. Francis Dysarz, dated March 21, 2012 thorough November 9, 2012 Claimant’s Exhibit 3: Medical records of SSM St. Mary’s Health Center – Physical therapy dated July 19, 2012 and August 2, 2012 Claimant’s Exhibit 4: Report of Dr. Bruce Schlafly dated February 6, 2014 Claimant’s Exhibit 5: Deposition of Dr. Bruce Schlafly dated October 29, 2015 Claimant’s Exhibit 6: Medical records of Dr. David Strege dated February 26 2013 Claimant’s Exhibit 7: Stipulation for compromise Settlement related to the claimant’s prior carpal tunnel claim bearing Injury Number 04-37591.

The Employer submitted the following exhibits: Employer’s Exhibit A: Medical records and report of Dr. Bruce Schlafly Employer’s Exhibit B: Deposition of Dr. Francis Dysarz dated September 1, 2016 Employer’s Exhibit C: Deposition of Dr. David Brown dated April 22, 2016. All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2005, because the alleged occupational disease was alleged to have been contracted in Missouri. Any markings on the exhibits were present when offered into evidence.


WC-32-R1 (6-81) Page 4

SUMMARY OF FACTS

This 56 year old claimant, a housekeeper, suffered bilateral carpal tunnel syndrome and de Quervain’s tenosynovitis. In April 2011, this employer hired the claimant as a housekeeper cleaning patient rooms and public areas including waiting rooms and restrooms. Her duties consisted of flipping mattresses, pulling out beds, wiping bedsprings, mopping, dusting, changing sheets on beds, emptying trashcans weighing up to twenty pounds, and cleaning showers, sinks, and toilets. She testified that she used her hands for 90% of her job duties at for this employer.

Prior to working for this employer, the claimant held prior positions as a housekeeper for American Staffing, Washington University, and St. Louis University. She also sorted mail as a temporary worker for the United States Postal Service in the late 1990s.

The claimant testified that the Post Office employed her seasonally in the late 1990s

during the holidays and that her job duties at the Post Office included lining up mail on a conveyor belt and sorting it into different boxes. Between 2001 and April 2, 2004, the claimant worked for St. Louis University as a housekeeper cleaning entrances, offices, classrooms and restrooms, mopping and emptying trash, and wiping down chalkboards. She reported to Dr. Schlafly that “she left her position at St. Louis University because she was having problems with her hands. She later worked for about eight months as a housekeeper at Washington University, but she says that the problems with her hands were already present when she took the position at Washington University, where she worked for about eight months. See Exhibit A. She testified that her job duties at St. Louis University were “not as heavy” as those at this employer. She later worked for American Staffing.

She testified that she did not have any problems or any treatment for her hands before

2003 and that she did not have any problems with her wrists between 2006 and 2011. The claimant denied having any problems with her hands or wrists when she first began working for this employer. However, she also testified that in October or November 2011, she began experiencing discomfort in her hands with numbness, tingling, and pain. She testified that her symptoms had significantly worsened by December 2011, and she reported them to her supervisor, Pat Keys. On January 25, 2012, the claimant went to SSM St. Mary’s Emergency Department after being referred by her supervisor. See Exhibit 1. At that time, she reported that she had been suffering left wrist pain for six weeks with no prior injury to her left wrist. See Exhibit 1. The record revealed, “No injury recalled but reports increased pain in left wrist with work activities.” See Exhibit 1. She was diagnosed with left wrist pain, possibly related to strain, carpal tunnel, or arthritis and released from care. See Exhibit 1. Subsequently, this employer advised it did not believe her condition was work related and instructed her to treat on her own. On March 21, 2012, the claimant went to Dr. Dysarz and reported tingling, swelling in her fingers and wrists, and burning from her fingers through her elbows. Dr. Dysarz noted that she had a several year history of left intermittent radial wrist pain. See Exhibit 2. A physical exam revealed a positive left Finklestein test demonstrating de Quervain’s tenosynovitis and right carpal tunnel syndrome. See Dr. Dysarz deposition, page 9. X-rays were unremarkable.


WC-32-R1 (6-81) Page 5

See Exhibit 2. Dr. Dysarz recommended a left thumb splint to be worn constantly. See Exhibit 2. On April 20, 2012, Dr. Dysarz administered a Kenalog injection into the right carpal tunnel and the left first dorsal compartment. See Exhibit 2. On June 1, 2012, she advised Dr. Dysarz that the “right carpal tunnel injection helped some.” See Exhibit 2. On July 13, 2012, she underwent a second injection on the left wrist first dorsal compartment. See Exhibit 2. She testified that although she received some relief from the injections, her symptoms returned. She testified that she had never received injections or undergone physical therapy related to her wrists before working for this employer. On August 24, 2012, Dr. Dysarz scheduled the claimant for a right carpel tunnel release on September 28, 2013. See Exhibit 2. The claimant filed a claim for compensation on September 4, 2012. On September 28, 2012, Dr. Dysarz performed a right carpal tunnel release. See Exhibit 2. The claimant was off work for six weeks after the surgical procedure. See Exhibit 2. At the follow up appointment on October 12, 2012, Dr. Dysarz noted she was healing well without infection. See Exhibit 2. She testified that she was subsequently released back to full duty work on November 12, 2012, but shortly thereafter, in December 2012, her employer terminated her employment. On May 10, 2013, Dr. Dysarz advised Dr. Spiro that he spoke to the claimant on May 10, 2013, and she reported that she was having no problem with her right wrist and the surgical results were “excellent.” See Dr. Dysarz deposition, Exhibit 3. He indicated that she complained of continued discomfort in her left wrist and stated it was likely due to de Quervain’s tenosynovitis. See Dr. Dysarz deposition, Exhibit 3. Dr. Dysarz opined that “the usual duties of a housekeeper or janitor could be considered the predominant causative factor of carpal tunnel syndrome within reasonable medical certainty.” See Dr. Dysarz deposition, Exhibit 3. The claimant testified that she had no recollection of telling him the results of her surgery were “excellent.”

Regarding her current complaints, she testified that she has lost strength in her right wrist causing her to drop things and suffers a loss of power in her right wrist and occasional pain. She advised that she suffers daily numbness, weakness, and pain in her left wrist. She currently takes Motrin to ease her symptoms. She testified that she was previously diagnosed with hypertension and is borderline diabetic.

She testified that after leaving this employer, she worked at Cardinal Ritter Institute from

September 2013 to April 2014 as a housekeeper and the St. Louis Galleria Mall from September 2014 to August 2016 as a housekeeper. At Cardinal Ritter, her job duties included watching, bathing, and dressing patients and dusting and cleaning restrooms. She testified that she left Cardinal Ritter after a conflict with her supervisor. While working at the St. Louis Galleria Mall, she was responsible for stocking and cleaning restrooms, entrances, and spills around the mall. She testified she was terminated by the St. Louis Galleria Mall after a conflict with her manager. She is currently unemployed.

Pre-Existing Conditions

The claimant testified that she began experiencing problems with her wrists and hands while working at St. Louis University in 2003. She advised that she would experience numbness


WC-32-R1 (6-81) Page 6

and tingling with pain and swelling in her hands that would awaken her at night. The claimant filed a workers’ compensation case against St. Louis University alleging bilateral carpal tunnel syndrome due to repetitive job duties with a corresponding injury date of March 31, 2004. See Exhibit 7.

On February 26, 2003, Dr. Strege examined the claimant and took a medical history that

the claimant had been experiencing numbness and tingling in both hands “for several years” and that the pain in her hands had been “off and on for years.” See Exhibit 6. The claimant reported that she had previously used cock splints but they had failed to relieve her symptoms. See Exhibit 6. Dr. Strege also reported that the claimant smoked a half pack of cigarettes a day. See Exhibit 6. Physical examination of her hands revealed a positive median nerve compression test bilaterally and a positive Tinel’s sign bilaterally. See Exhibit 6. Dr. Strege diagnosed bilateral carpal tunnel syndrome but noted the claimant was not interested in undergoing surgery. See Exhibit 6. Instead, she opted to splint her hands. See Exhibit 6. She testified that following her appointment with Dr. Strege, she slept and worked in her splints and her symptoms subsequently improved.

The claimant testified that on April 25, 2006, she presented to Dr. Schlafly for an Independent Medical Evaluation related to her workers’ compensation claim against St. Louis University. Dr. Schlafly authored a report in conjunction with that evaluation. See Exhibit A. Dr. Schlafly noted that the claimant left her employment at St. Louis University because of problems with her hands. He indicated that while working at the Post Office in the late 1990s, she noticed pain in her hands but did not seek medical attention because her symptoms improved when her seasonal employment ended. See Exhibit A.

Dr. Schlafly reported that he had the chance to review medical records from St. Louis

County Department of Health dating back to 1996. See Exhibit A. He specifically noted that on August 17, 1998, the claimant presented to the St. Louis County Department of Health complaining of pain, swelling, and numbness in the first two fingers of the right hand that had been ongoing for two years. He indicated that the claimant again presented to the St. Louis County Department of Health on November 11, 1999, and was diagnosed with carpal tunnel syndrome. Dr. Schlafly also discussed records dated January 11, 2000 and July 31, 2000, which demonstrated a history of carpal tunnel syndrome and complaints of swelling in the fingers. The July 31, 2000, record specifically discussed the claimant’s employment at the Post Office and the repetitive job duties involved in the work. Dr. Schlafly noted that three records from the St. Louis County Department of Health documented repeated instances of blood testing for arthritis, prescriptions for anti-inflammatory medications, and swelling throughout the hands and fingers. See Exhibit A.

The claimant lacked any recollection of the complaints related to her hands between 1998

and 2000 or the visits to the St. Louis County Department of Health. After reviewing Dr. Schlafly’s April 25, 2006 report, she continued to dispute the medical history reported by Dr. Schlafly.

The claimant testified that she had no independent recollection of treating with Dr. Tracy

and the physicians at ESSE Healthcare in 2003. Dr. Schlafly indicated that the claimant sought treatment with Dr. Tracy in January and February of 2003 and complained of problems in her


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hands since 1999, which became more severe during her tenure at St. Louis University. See Exhibit A. It was noted that the claimant complained of tingling in her fingers, was diagnosed with probable carpal tunnel syndrome, and was referred to Dr. Strege, a hand surgeon.

She testified that in February 2003, Dr. Strege examined her for numbness and tingling in

both hands for years. Dr. Strege diagnosed bilateral carpal tunnel syndrome, right worse than left, and recommended the use of wrist splints and anti-inflammatory medication. See Exhibit 6. The claimant testified that she underwent nerve studies at that time and was diagnosed with bilateral carpal tunnel syndrome following the nerve studies.

The claimant testified that she did not wish to undergo surgery while treating with Dr.

Strege but could not continue treatment after leaving St. Louis University because she lost her health insurance. She acknowledged that when she terminated treatment with Dr. Strege, she was wearing wrist splints every day and night but continued to experience heaviness, burning, soreness, and tingling in her hands. She specifically admitted that these symptoms never completely went away and that she continued to have problems with her hands while employed by Washington University in 2005.

The claimant next treated with Dr. Ollinger on January 17, 2005. See Exhibit A. Dr.

Ollinger diagnosed bilateral carpal tunnel syndrome but opined that her employment duties as a housekeeper at St. Louis University were not the cause of the condition. He noted that, at that time, she was a forty-four year old obese female who smoked. He concluded that she had symptoms of bilateral carpal tunnel syndrome prior to her employment as a housekeeper at St. Louis University. The claimant testified that she did remember being evaluated by Dr. Ollinger.

She testified that she could not recall whether Dr. Schlafly recommended surgery in 2006.

In his report, Dr. Schlafly noted that wearing wrist splints did not help the claimant’s symptoms. See Exhibit A. He performed a physical exam which revealed a positive Phalen’s test for carpal tunnel syndrome at the right wrist and a questionably positive Tinel’s sign over the median nerve of the right wrist. Phalen’s test on the left wrist was borderline for carpal tunnel syndrome but no Tinel’s sign over the medium nerve was produced. Pressure over the median nerve of each wrist produced mild tingling extending to the forearms.

The claimant conceded that in his April 2006 report, Dr. Schlafly diagnosed bilateral

carpal tunnel syndrome. See Employer’s Exhibit A, Medical Records from Dr. Bruce Schlafly. Dr. Schlafly opined that she did have symptoms of bilateral carpal tunnel prior to working at St. Louis University and specifically discussed the seasonal work she performed at the Post Office. However, he concluded that her employment as a housekeeper at St. Louis University was the substantial and prevailing factor causing the carpal tunnel diagnosis. He opined that “in view of the duration of her symptoms, [he thought] she would probably require carpal tunnel release.” He assessed a 27.5% permanent partial disability to her right hand at the level of the wrist and a 22.5% permanent partial disability to her left hand at the level of the wrist, due to the bilateral carpal tunnel syndrome. He also indicated that she had a 5% pre-existing disability in each wrist due to the intermittent symptoms of carpal tunnel prior to her employment at St. Louis University.


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On October 24, 2006, the claimant settled her workers’ compensation claim against St. Louis University in Injury Number 04-037591 on the basis of a 15% permanent partial disability of the right wrist and a 10% permanent partial disability of the left wrist. See Exhibit 7.

Dr. Francis Dysarz, M.D.

The claimant first presented to Dr. Dysarz, a Board Certified hand surgeon, on March 21,

2012, complaining of a several year history of left intermittent radial wrist pain and right hand numbness and tingling. See Exhibit 2. Physical examination revealed a positive left Finklestein test and a positive right forearm compression test. Dr. Dysarz prescribed a left thumb spica splint and recommended the claimant wear it constantly. He advised her to follow up in a month.

The claimant returned to Dr. Dysarz on April 20, 2012. See Exhibit 2. At that time, she

underwent cortisone injections in the right carpal tunnel and the first dorsal extensor tendon compartment of the left wrist. On June 1, 2012, he noted improvement in her left wrist symptoms. When the claimant returned on July 13, 2012, Dr. Dysarz repeated the cortisone injections at the right carpal tunnel and the first dorsal extensor tendon compartment of the left wrist. On August 24, 2012, Dr. Dysarz indicated that the claimant would undergo right carpal tunnel release. However, it was noted that she did not wish to undergo surgery for her mild left de Quervain’s tenosynovitis. The claimant presented for right carpal tunnel release on September 28, 2012. She reported to Dr. Dysarz for the last time on October 2, 2012, for suture removal. She was released back to full duty work on November 12, 2012. See Exhibit 2.

On May 10, 2013, Dr. Dysarz reported that the claimant had, “some persistent discomfort

in her left wrist which is likely due to de Quervain’s tenosynovitis.” See Dr. Dysarz deposition, Exhibit 3. He opined that that condition should be treated with either a repeat cortisone injection and splinting or surgery. See Dr. Dysarz deposition, Exhibit 3. Dr. Dysarz also opined, “[T]he usual duties of a housekeeper or janitor could not be considered the predominant causative factor of carpal tunnel syndrome within reasonable medical certainty, based on my 14+ years of experience as a hand and upper extremity surgical specialist.” See Dr. Dysarz deposition, Exhibit 3.

On September 16, 2013, Dr. Dysarz, the claimant’s treating physician, reviewed the claimant’s medical records and job description and opined, “[H]er work as a housekeeper in the environmental services department was not the prevailing causative factor for her development of de Quervain’s tenosynovitis and right carpal tunnel syndrome within reasonable medical certainty.” See Dr. Dysarz deposition, Exhibit 5.

Dr. Dysarz testified that he was not retained to treat the claimant by the Employer or Insurer in her workers’ compensation case. See Dr. Dysarz deposition, pages 8-9. Dr. Dysarz testified that the claimant had suffered left dorsal wrist pain and right hand numbness and tingling for several years prior to her initial appointment with his office. See Dr. Dysarz deposition, page 9. He explained that he had extensive familiarity with the claimant’s job duties because he had previously spent time observing housekeepers for this employer while personally working in the hospital. See Dr. Dysarz deposition, pages 12-13, 45-46. Based on his knowledge of the job description, Dr. Dysarz opined that he did not believe the claimant’s duties at SSM were the prevailing factor causing her right carpal tunnel syndrome or left de Quervain’s


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tenosynovitis. See Dr. Dysarz deposition, pages 12-13. He specifically explained that the housekeepers at SSM did not use heavy equipment, vibrating tools, or vacuums and that their job duties generally required that they hold their hands in a neutral position, or a position of function, that would not stress or compress the median nerve. See Dr. Dysarz deposition, page 49. He furthered that the claimant was not expected to engage in a lot of repetitive heavy gripping or thumb abduction and adduction, and therefore, objectively, the duties could not have caused de Quervain’s tenosynovitis. See Dr. Dysarz deposition, pages 49-50.

He testified that the claimant’s job description required “frequent” lifting, carrying,

pushing, and pulling up to 50 pounds and that frequent was not defined in the description. See Dr. Dysarz deposition, pages 42-43. However, he testified that those activities were not typically causative factors for carpal tunnel syndrome. See Dr. Dysarz deposition, page 44. He opined that many factors led to the development of carpal tunnel syndrome and stated that it was possible for the symptoms to manifest independently, without a specific reason. See Dr. Dysarz deposition, page 17. In regard to de Quervain’s tenosynovitis, he opined that it commonly caused spontaneous wrist pain in patients regardless of how hand intensive their jobs were. See Dr. Dysarz deposition, page 17. He ultimately opined that there were multiple factors that could have caused the claimant’s injuries. See Dr. Dysarz deposition, page 18.

He testified that some patients diagnosed with carpal tunnel syndrome could experience

relief of their symptoms through conservative measures. See Dr. Dysarz deposition, pages 30-31. He conceded that sometimes, symptoms of carpal tunnel could return following conservative treatment, if a patient was exposed to additional repetitive work. See Dr. Dysarz deposition, pages 30-31.

Dr. Bruce Schlafly, M.D.

Dr. Schlafly, an orthopedic hand surgeon, first evaluated the claimant in April 2006 related to her 2004 workers’ compensation claim against St. Louis University. See Dr. Schlafly deposition, page 24. At that time, she complained of pain and tingling in her hands and wrists and described intermittent tingling in the right index, long, and ring fingers and the left index and long fingers. See Exhibit A. She reported to Dr. Schlafly that she had worked part-time at the Post Office in the late 1990s and noticed some trouble with pain in her hands. See Exhibit A. She indicated that her symptoms lessened when her seasonal employment ended but after working at St. Louis University as a housekeeper for a year, her symptoms forced her to seek medical attention. See Exhibit A. She described her job duties at St. Louis University to include dusting, sweeping, and mopping of stairs, halls, and bathrooms. See Exhibit A.

In 2006, Dr. Schlafly noted that the claimant was 5’3” and 165 pounds. See Exhibit A.

Physical examination revealed a positive Phalen’s test for carpal tunnel syndrome at the right wrist, with a questionably positive Tinel’s sign over the median nerve of the right wrist. See Exhibit A. He noted that he did not find a Tinel’s sign over the left wrist but a Phalen’s test for carpal tunnel syndrome was borderline at the left wrist. See Exhibit A. Pressure over the median nerve of each wrist produced mild tingling extending into the fingers. See Exhibit A.

At that time, Dr. Schlafly diagnosed bilateral carpal tunnel syndrome and advised that she

would probably require carpal tunnel release. See Exhibit A. He opined that although the


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claimant had symptoms prior to her employment at St. Louis University, the prevailing factor in the development of her carpal tunnel syndrome was her employment at St. Louis University as a housekeeper. See Exhibit A. He assessed a 27.5% permanent partial disability to her right hand at the level of the wrist and a 22.5% permanent partial disability to her left hand at the level of the wrist, due to the bilateral carpal tunnel syndrome. See Exhibit A. He also indicated that she had a 5% pre-existing disability in each wrist due to the intermittent symptoms of carpal tunnel prior to her employment at St. Louis University. See Exhibit A.

Dr. Schlafly reevaluated the claimant on February 6, 2014. See Exhibit 4. She advised

him that after her initial evaluation in 2006, she did not undergo carpal tunnel release because she felt her symptoms were controlled by the use of wrist splints. See Exhibit 4. She indicated she had minor symptoms in her hands when she began working at SSM but in late 2011, she developed swelling, tingling, throbbing pain, and numbness. See Exhibit 4. She reported that Dr. Dysarz performed right carpal tunnel release on September 28, 2012, and her symptoms improved. See Exhibit 4. In regards to her left hand, she stated she did not have the money to undergo surgery and therefore continued to wear a splint and soak her left hand and wrist. See Exhibit 4.

Dr. Schlafly noted that the claimant was 5’2” and 170 pounds at the time of the 2014

evaluation. See Exhibit 4. He testified that she took medication for high blood pressure, smoked on occasion, and was borderline diabetic. A physical examination revealed a one-inch longitudinal scar on the proximal palm of the right hand from the carpal tunnel release. She had a positive Tinel’s sign at the median nerve of the left wrist. Phalen’s test was positive at the left wrist and negative at the right wrist. The Finkelstein test for de Quervain’s tendonitis was negative bilaterally, but tenderness was noted at the first dorsal extensor tendon compartment of the left wrist. Pressure over the median nerve of the left wrist produced tingling in the hand. See Exhibit 4.

Based on his evaluation, Dr. Schlafly diagnosed right carpal tunnel syndrome treated with

right carpal tunnel release, left carpal tunnel syndrome, and mild de Quervain’s tendonitis of the left wrist. See Exhibit 4. He recommended she undergo left carpal tunnel release and a de Quervain’s tendon sheath release of the left wrist. He opined that the claimant’s repetitive work with her hands and wrists as a housekeeper at SSM was the prevailing cause of her bilateral carpal tunnel syndrome and de Quervain’s tendonitis of the left wrist. He opined that she had a 30% permanent partial disability of each hand at the level of the wrist but concluded that 10% of the permanent partial disability of the left wrist and 15% permanent partial disability of the right wrist was pre-existing. See Exhibit 4.

Dr. Schlafly testified that at her 2014 evaluation, the claimant had less grip strength in her

hands than in 2006 but conceded that such a measurement was subjective because it required the patient’s cooperation. See Dr. Schlafly deposition, pages 20, 31. He testified that he did not diagnose left de Quervain’s tendinitis in 2006. See Dr. Schlafly deposition, pages 20, 31. He opined that following his evaluation of her in 2006, the claimant’s symptoms improved with splints and changing employment. See Dr. Schlafly deposition, pages 18-19. He opined that the right carpal tunnel release performed in 2012 provided substantial relief of the right carpal tunnel syndrome. See Dr. Schlafly deposition, pages 20, 31. He opined that the claimant’s high blood


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pressure, obesity, diabetic condition, and age could have caused her injuries. See Dr. Schlafly deposition, page 23.

He testified that the importance of a complete medical and employment history when

making diagnoses, but he testified that he was unaware of how long the claimant worked at Executive Management Services after leaving St. Louis University and that he did not know whether she was employed between her jobs at Employment Management Services and SSM. See Dr. Schlafly deposition, page 25. Dr. Schlafly testified that when he evaluated the claimant in 2006, she complained of pain, swelling, numbness, and intermittent tingling in her hands dating back to the late 1990s. See Dr. Schlafly deposition, page 25. He testified that the claimant was diagnosed with carpal tunnel syndrome in 1999, eleven and a half years prior to her employment at SSM. See Dr. Schlafly deposition, page 25. He testified that when she was diagnosed with carpal tunnel syndrome in January 2000, July 2000, February 2003, and April 2006, she was not employed by SSM. See Dr. Schlafly deposition, page 26. He testified that the February 2003 carpal tunnel diagnosis was verified by nerve conduction studies. See Dr. Schlafly deposition, page 26.

Dr. Schlafly testified that after his 2006 evaluation, he diagnosed bilateral carpal tunnel

syndrome and opined that the claimant’s employment at St. Louis University was the substantial and prevailing factor of the aggravation of the preexisting carpal tunnel syndrome. See Dr. Schlafly deposition, pages 28, 29. In regard to the exact same diagnosis in 2014, he testified that the prevailing factor of the bilateral carpal tunnel syndrome was the claimant’s employment for this employer. See Dr. Schlafly deposition, pages 28, 29. He testified that in 2006, five years prior to her employment with this employer, he opined that the claimant would ultimately require surgical intervention to treat her symptoms. See Dr. Schlafly deposition, page 29. He testified that the claimant’s symptoms and complaints in 2006 were consistent with her complaints at her evaluation in 2014. See Dr. Schlafly deposition, pages 30-31. He testified that his examinations in 2006 and 2014 both revealed a positive Phalen’s sign on the left and tingling in the left hand after pressure was exerted on the median nerve. See Dr. Schlafly deposition, page 31. He testified that before her work for this employer, the claimant was suffering minimal symptoms of carpal tunnel in her hands but that he did not know the specific complaints she had during that time. See Dr. Schlafly deposition, page 30.

Dr. David Brown, M.D.

On June 16, 2015, Dr. Brown, a Board Certified hand surgeon, examined the claimant

and took a verbal history that she worked as a housekeeper for this employer from April 2011 through December 2012. See Dr. Brown deposition, pages 6, 7. The claimant reported her job duties and reported that in January of 2012, she noted numbness and tingling in both hands. See Dr. Brown deposition, pages 7, 8. At the time of her examination, she complained of numbness, tingling, and nocturnal paresthesias in her left hand. See Dr. Brown deposition, Exhibit 2. She denied any numbness or tingling in the right hand but complained of pain over the radial dorsal aspect of the right wrist. She advised Dr. Brown that the pain over the radial aspect of the right wrist began a month prior to her carpal tunnel release. The claimant reported that she was 5’2” and 145 pounds. See Dr. Brown deposition, Exhibit 2.


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Physical examination revealed good active range of motion in the digits of both hands, negative Tinel’s sign over the ulnar nerve bilaterally, negative compression test/elbow flexion test bilaterally, negative Tinel’s sign over the right carpal tunnel, positive Tinel’s sign over the left carpal tunnel, tenderness over the radial dorsal aspect of the right wrist, positive Finklestein test on the right, negative Finkelstein test on the left, and negative Watson’s test bilaterally. See Dr. Brown deposition, page 9. X-rays demonstrated moderate degenerative changes at the base of the thumbs and trapeziometacarpal joint, which was found to be consistent with moderate osteoarthritis. See Dr. Brown deposition, page 9.

Based on the with carpal tunnel syndrome diagnosis and surgery recommendation eight

years prior to employment with this employer, the medical records, his discussion with the claimant regarding her job duties, his findings on physical exam, and the results of the diagnostic studies, Dr. Brown opined that the claimant’s employment with this employer was not the prevailing factor of her bilateral carpal tunnel syndrome or right de Quervain’s tenosynovitis. See Dr. Brown deposition, pages 11, 12. He opined that she was at maximum medical improvement regarding her right carpal tunnel syndrome but would likely need left carpal tunnel release, as previously recommended, to treat the left carpal tunnel syndrome. See Dr. Brown deposition, pages 11, 12. Dr. Brown also diagnosed right de Quervain’s tenosynovitis but concluded that her employment with this employer was not the prevailing factor. See Dr. Brown deposition, pages 11, 12. He found no evidence of de Quervain’s tenosynovitis in the left wrist and released her to full duty work.

Dr. Brown testified that the claimant had chronic bilateral carpal tunnel syndrome dating

back to at least 2003. See Dr. Brown deposition, page 18. He specifically denied the allegation that he had diagnosed “recurrent” carpal tunnel syndrome. See Dr. Brown deposition, page 18. He opined that because the condition was established and confirmed through electrodiagnostic studies at least eight years prior to her employment at SSM, her work at SSM could not have been the prevailing cause of her condition. Id. He explained that at the time of his June 16, 2015 evaluation, there was no evidence that the claimant had left de Quervain’s tenosynovitis. See Dr. Brown deposition, page 9. He stated that although she needed left carpal tunnel release and treatment for right de Quervain’s tenosynovitis, such treatment would not be causally related to her employment at SSM. See Dr. Brown deposition, pages 11-12. Dr. Brown opined that the objective evidence demonstrated that the claimant suffered chronic bilateral carpal tunnel syndrome dating back to 2003, with symptom onset beginning in 1998.

Dr. Brown opined that symptoms of carpal tunnel syndrome could wax and wane over

time and that patient’s complaints could be relieved through conservative treatment. See Dr. Brown deposition, pages 15-16. He testified that, in certain cases, working as a janitor or housekeeper could cause carpal tunnel syndrome, but opined that such a situation was not applicable to the claimant’s diagnosis because she was clearly diagnosed with bilateral carpal tunnel syndrome years prior to her employment at SSM. See Dr. Brown deposition, pages 18-20.

COMPENSABILITY A claim for compensation due to a repetitive trauma injury is recognized as an

occupational disease and compensability is to be determined under Section 287.067, RSMo. Supp. 2007, which defines occupational disease as an “identifiable disease arising with or


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without human fault out of and in the course of employment.” The statute furthers that, “[o]rdinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the disease follows an incident of occupational disease as defined in this section.” Id. An occupational disease due to repetitive motion is only compensable if “the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The ‘prevailing factor’ is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, progressive degeneration of the body caused by aging or by the normal activities of day-to-day living is not compensable.” Section 287.067.3, RSMo Supp. (2007).

“In order to support a finding of occupational disease, employee must provide substantial

and competent evidence that he has contracted an occupationally induced disease rather than an ordinary disease of life.” Kelley v. Banta and Stude Const. Co. Inc., 1 S.W.3d 43 (Mo. App. E.D. 1999). Two considerations are required by this inquiry: “(1) whether there was an exposure to the disease that 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.

The claimant has the burden to prove causation of an occupational disease. Townser v.

First Data Corp., 215 S.W3d 237, 241 (Mo. App. E.D. 2007). The claimant is required to establish, “generally through expert testimony, the probability that the occupational disease was caused by conditions in the workplace,” and a “direct causal connection between the conditions under which the work is performed and the occupational disease.” Kelley, 1 S.W.3d at 48. Questions of causation are issues of fact to be decided by the Commission. Sanderson v. Porta-Fab Corp., 989 S.W.2d 599 (Mo. App. 1999). “Where the opinions of medical experts are in conflict, the fact-finding body determines whose opinion is most credible. Where there are conflicting medical opinions, the fact finder may reject all or part of one party’s expert opinion which it does not consider credible and accept as true the contrary testimony given by the other litigant’s expert.” Kelley, 1 S.W.3d at 48.

All of the physicians in this case agree that the claimant has carpal tunnel syndrome.

Carpal tunnel syndrome is a known occupational disease. Wiele v. National Supermarkets, 348 S.W.2d 142 (Mo. App. 1997). Since the decision on compensability hinges on the medical causal relationship, the credibility of the medical experts is the crucial deciding factor. Gordon v. Lear Corp., 2009 WL 1448987 (Mo. Lab. Ind. Rel. Com.).

The statutory standard for compensability is as follows: An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable. Section 287.067.3, RSMo Supp. 2005.


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Carpel Tunnel Syndrome

The objective facts in this case are that the claimant had very hand intensive work activities while working for other employers from 1998 to 2004. She was not employed by this employer when she was diagnosed with carpal tunnel syndrome in January 2000, July 2000, February 2003, and April 2006. Notably, the condition was confirmed in February 2003 by a nerve conductions study. In addition, the claimant previously received a workers’ compensation settlement following her claim against St. Louis University for bilateral carpal tunnel. See Exhibit 7. Dr. Schlafly, the claimant’s expert, previously diagnosed the claimant with bilateral carpal tunnel in 2006 and opined at that time that her employment with St. Louis University was the prevailing factor in the diagnosis and the condition. However, despite a nearly indistinguishable list of complaints, almost identical physical exam, and similar conclusion, he opined that her employment with this employer was the prevailing factor in the carpal tunnel syndrome.

This employer hired the claimant in April 2011, as a housekeeper. The claimant testified

that she began experiencing discomfort in her hands with numbness, tingling, and pain in October or November 2011, and that the symptoms had significantly worsened by December 2011. The three hand surgeons that provided expert forensic medical opinion evidence in this case opined that the claimant’s medical condition predated her employment with this employer by many years. It is difficult to reconcile the forensic medical evidence and the objective evidence in this case with a finding that the claimant’s work for this employer in 2011 and 2012 was “the primary factor, in relation to any other factor, causing both the resulting medical condition.” The more logical conclusion is that the claimant’s prior work activities were the prevailing factor causing her medical condition and that this employer bears no liability for the “ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living ”

The claim against this employer is that her work activities as a housekeeper for this

employer in 2011 and 2012 caused pain, numbness, tingling, and weakness in her hands and wrists. She specifically focused on the repetitive nature of her job activities, as well as the grip and flexion required to mop, dust, sweep, clean beds, and pull trash. She testified that she used her hands for 90% of her job duties and that all activities required heavy use of both hands. The claimant described the specific duties required by her job including, wiping down bedsprings, changing sheets on beds, emptying trashcans weighing up to twenty pounds, and cleaning showers, sinks, and toilets.

Dr. Dysarz treated the claimant in 2012 and opined that the claimant’s injuries were not causally connected to her job duties as a housekeeper for this employer. Dr. Schlafly took a medical history and examined the claimant. Dr. Brown also took a medical history, reviewed prior records, examined the claimant, and evaluated diagnostic studies. Both Dr. Brown and Dr. Schlafly were provided medical records and information regarding the claimant’s complaints of pain, tingling, and numbness in her hands and wrists beginning in 1998. Dr. Schlafly had the unique ability to review his own notes from 2006 related to his prior evaluation of the claimant for carpal tunnel. However, based on a conglomeration of factors, Dr. Brown concluded that the claimant’s diagnoses were chronic in nature and unrelated to her employment for this employer. Despite the medical records, diagnoses dating back to 1999, prior nerve tests, and history, Dr.


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Schlafly found that her injuries and need for treatment were related to her employment for this employer. Dr. Brown’s testimony continuously stressed that the objective evidence demonstrated chronic bilateral carpal tunnel syndrome dating back to 2003, with symptom onset beginning in 2003.

The claimant was not employed by this employer when she was previously diagnosed with carpal tunnel syndrome in January 2000, July 2000, February 2003, and April 2006. Notably, the condition was confirmed in February 2003 by a nerve conductions study. In addition, the claimant previously entered into a workers’ compensation settlement following her claim against St. Louis University for bilateral carpal tunnel. Furthermore, Dr. Schlafly, the claimant’s expert, previously diagnosed the claimant with bilateral carpal tunnel in 2006 and specifically opined at that time that her employment with St. Louis University was the prevailing factor in the diagnosis and the condition. However, despite a nearly indistinguishable list of complaints, almost identical physical exam, and similar conclusion, he opined that her employment at SSM was the prevailing factor in the carpal tunnel syndrome.

Although his opinion regarding the prevailing factor of the claimant’s injuries had

changed, Dr. Schlafly testified that her symptoms, complaints, and physical exam in 2006 and 2014 were almost identical. Dr. Schlafly’s 2014 conclusions do not account for the findings of Dr. Strege, The St. Louis County Department of Health, Dr. Tracy, and Dr. Ollinger, and his own 2006 opinion on causation. Dr. Schlafly 2014 opinions regarding the causation of the claimant’s carpal tunnel are not based on the objective medical evidence. However, Dr. Schlafly’s 2006 findings appear to be consistent with the objective medical facts and the other forensic medical evidence.

Dr. Brown’s evaluation of the claimant’s medical history, prior jobs, and chronic

complaints of pain, swelling, and tingling, strongly demonstrates that the claimant’s injuries significantly pre-dated her employment for this employer. Additionally, Dr. Dysarz’s personal familiarity with the claimant’s job duties as a housekeeper for this employer and his testimony regarding those duties, provide evidence that her diagnoses were not related to her employment for this employer. He opined that the housekeepers for this employer did not use heavy equipment, vibrating tools, or vacuums and that their job duties generally required that they hold their hands in a neutral position that would not stress or compress the median nerve.

The claimant testified that she did not have any symptoms in her hands between 2006 and

2011 but her testimony conflicts with prior inconsistent medical histories from a variety of medical providers. Throughout her testimony, she challenged medical records, statements of her treatment providers, and repeatedly provided contradictory explanations of her symptom history. For example, she initially testified that she did not have any problems with her hands prior to 2003 and denied having problems with her upper extremities when she began working for this employer in 2011. However, after reviewing Dr. Schlafly’s 2006 report, she testified that the records indicated she had treated prior to 2003 and that after her 2006 settlement, her symptoms never completely went away. The claimant’s veracity is diminished based on the prior inconsistent statements in the medical records.

The claimant contends that she is entitled to recovery related to the same conditions

twice, once in 2004 and once in 2012. However, both the Commission and the Court of Appeals


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have declined to extend benefits to claimant’s who file duplicative claims alleging the same repetitive trauma injury. See Miller v. U.S. Airways Group, Inc., 316 S.W.3d 462 (Mo. Ct. App. 2010). In Miller, just as in this case, the claimant first experienced pain in her upper extremities in 2002 and was diagnosed with carpal tunnel syndrome at that time. Id. In 2003, the symptoms intensified and she requested medical treatment from her employer because she believed the condition was work related. Id. The claimant underwent five weeks of conservative treatment and was released to full duty work. Id. She continued to do the same job activities, but in 2006 and early 2007, she began experiencing increased discomfort in her hands. Id. The claimant then filed three separate workers’ compensation claims, for carpal tunnel syndrome, dated 2004, 2007, and 2007. Id. at 464. All of the claims gave the exact same description of the alleged injury. Id.

At the hearing in the Miller case, the defense presented evidence from two physicians

who concluded that the claimant’s carpal tunnel syndrome dated back to 2002. Id. The Administrative Law Judge denied the 2007 claims because they alleged the same injury, bilateral carpal tunnel syndrome, that she had received treatment in 2004 and for which she had a claim pending. Id. The Commission affirmed the denial of the claims and found the claimant did not sustain “a new and distinct injury in 2007 because her repetitive trauma stemmed from the same bilateral carpal tunnel syndrome that she was treated for in 2003.” Id. The Appellate Court affirmed explaining that “[t]he worsening of Miller’s symptoms in late 2006 or early 2007 did not establish a new injury of repetitive trauma. The medical evidence, as well as Miller's allegations on her three workers' compensation claim forms, clearly established that the repetitive trauma was a continuing symptom of her carpal tunnel syndrome that was originally diagnosed in 2002 and treated in 2004. Because Miller's 2007 claim alleged injuries resulting from the same occupational disease alleged in her pending 2004 claim, she was not entitled to pursue duplicative claims. We find no error in the Commission's denial of the 2007 claim on this basis.” Id.

The claimant’s bilateral carpal tunnel condition was not resolved or cured after she

settled her 2004 claim. In fact, Dr. Schlafly never concluded that she had reached maximum medical improvement following his 2006 diagnosis. Here, just as in Miller, the claim must be denied.

In addition, “An occupational disease does not become a compensable injury until the

disease causes the employee to become disabled by affecting the employee's ability to perform his ordinary tasks and harming his earning ability.” Garrone v. Treasurer of State of Mo., 157 S.W.3d 237, 241-42 (Mo. App. E.D. 2004) (citing Feltrop v. Eskens Drywall & Insulation, 957 S.W.2d 408, 413 (Mo. App. W.D. 1997); Coloney v. Accurate Superior Scale Co., 952 S.W.2d 755, 759–60 (Mo. App. W.D. 1997)). It is possible for an employee to have experienced symptoms of and be diagnosed with an occupational disease before the time it becomes disabling and thus compensable. Id. The logical inference is that the prior settlement demonstrates that the claimant suffered damage to her earning capacity and permanent partial disability from her bilateral carpal tunnel syndrome from many years before she began working for this employer.

De Quervain’s Tenosynovitis

In this case, the claimant also alleges that she developed bilateral de Quervain’s tenosynovitis as a result of her work duties for this employer. In regard to that condition on her left side, the claimant testified that she had a several year history of left intermittent radial wrist


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pain. Dr. Schlafly diagnosed de Quervain’s tenosynovitis despite the fact that his physical examination demonstrated a negative Finkelstein test on each wrist. Dr. Schlafly based that his diagnosis on the claimant’s subjective tenderness at the first dorsal extensor of the left wrist rather than any objective evidence. Dr. Brown reported and testified that he found absolutely no evidence of left de Quervain’s tenosynovitis on physical examination. Dr. Dysarz diagnosed the claimant with the condition on the left side, but adamantly denied the implication that the diagnosis was work related. Rather, he opined that her job duties for this employer could not have been the prevailing factor causing the left De Quervain’s tenosynovitis because her job did not require her to engage in repetitive heavy gripping or thumb abduction or adduction. He ultimately opined that multiple factors, unrelated to the claimant’s employment for this employer, could have caused the condition.

The claimant’s records do not provide evidence of a diagnosis of work related right de

Quervain’s tenosynovitis until June 16, 2015, over two years after the claimant left this employer’s employment. Dr. Dysarz’s treatment notes do not provide evidence of the condition during his treatment of the claimant which occurred during the employment with this employer. The claimant testified that following her carpal tunnel release, she did not work from September 28, 2012, through November 12, 2012. In December 2012, she was terminated by SSM.

When the claimant discontinued treatment with Dr. Dysarz in October 2012, he

diagnosed left De Quervain’s tenosynovitis but did not find evidence of right de Quervain’s tenosynovitis. See Exhibit 2. He opined that the condition was not related to her work for this employer. See Exhibit 2.

When she went to Dr. Schlafly on February 6, 2014, over a year after the claimant left this

employment, he also failed to diagnosis the condition on the right side and specifically reported that physical examination revealed a negative Finkelstein test bilaterally. See Exhibit A. However, he diagnosed left de Quervains tenosynovitis based on “some tenderness at the first dorsal extensor tendon compartment of the left wrist … and some thickening present at this tendon sheath.” See Exhibit A.

On June 16, 2015, two and a half years after her employment with this employer ended,

Dr. Brown evaluated the claimant and concluded that she did not have left de Quervain’s tenosynovitis but did have right de Quervain’s tenosynovitis. Dr. Brown noted that none of the medical records supported an onset of symptoms prior to his appointment. Although the claimant alleged she began experiencing pain in her right wrist in January 2012, Dr. Brown opined that there was no record of any pain in the radial dorsal aspect of the right wrist in Dr. Dysarz’s treatment records. Based on those findings, he concluded that her employment with this employer was not the prevailing factor in the diagnosis.

Based on the evidence in the record, the claimant developed left de Quervain’s

tenosynovitis while working for this employer in 2012, based on Dr. Dysarz’s report. In 2014, over a year after the claimant left this employment, Dr. Schlafly’s physical examination revealed a negative Finkelstein test bilaterally but had other symptoms of the condition on the left side. See Exhibit A. He opined that this condition was work-related, but did not segregate out any specific amount of disability or economic loss as a result of this condition. See Exhibit A. In 2015, Dr. Brown examined the claimant and concluded that she did not have left de Quervain’s


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tenosynovitis but did have right de Quervain’s tenosynovitis. Assuming the veracity and competence of the three highly skilled surgeons, the claimant developed left de Quervain’s tenosynovitis while working for the employer, but the condition was negative by 2015. In addition, the claimant developed right de Quervain’s tenosynovitis years after she stopped working for this employer.

Based on the weight of the credible evidence in the records, including the medical

opinions offered by Dr. Schlafly, Dr. Brown and Dr. Dysarz, the claimant’s work as a housekeeper for this employer was not the prevailing factor causing her bilateral de Quervain’s tenosynovitis. Therefore, the defense must prevail and the claim for compensation is denied.

Regarding the claimant’s bilateral carpal tunnel syndrome, the objective evidentiary facts

and the forensic medical evidence demonstrate that during the late 1990s and throughout the 2000s, the claimant was advised by multiple physicians that she would need to wear splints and alter her work because of the medical condition in her hands. The claimant testified that she left her employment with St. Louis University due to problems with her hands. Her settlement in her 2004 case combined with Dr. Schlafly’s 2006 forensic medical opinions compels a finding that the claimant’s work for prior employers was the prevailing factor causing her medical condition in her hands. Thus, the claimant’s working conditions for this employer in 2011 and 2012 were not the prevailing factor causing her medical condition. Based on the weight of the evidence, the claim is denied.

FUTURE MEDICALTREATMENT

Pursuant to section 287.140.1, an employer is required to provide care “as may

reasonably be required to cure and relieve from the effects of the injury.” This includes allowance for the cost of future medical treatment. Pennewell v. Hannibal Regional Hospital, 390 S.W.3d 919, 926 (Mo. App. E.D. 2013) citing Poole v. City of St. Louis, 328 S.W.3d 277, 290-91 (Mo. App. E.D. 2010). An award of future medical treatment is appropriate if an employee shows a reasonable probability that he or she is in need of additional medical treatment for the work- related injury. Id. Future care to relieve [an employee's] pain should not be denied simply because he may have achieved [maximum medical improvement]. Id. Therefore, a finding that an employee has reached maximum medical improvement is not necessarily inconsistent with the employee's need for future medical treatment. Id.

The Workers' Compensation Act requires employers “to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee's employment[.]” § 287.120.1. This compensation often includes an allowance for future medical expenses, which is governed by Section 287.140.1. Rana v. Landstar TLC, 46 S.W.3d 614, 622 (Mo. App. 2001). Section 287.140.1 states:

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.

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While an employer may not be ordered to provide future medical treatment for non-work

related injuries, an employer may be ordered to provide for future medical care that will provide treatment for non-work related injuries if evidence establishes to a reasonable degree of medical certainty that the need for treatment is caused by the work injury. Stevens v. Citizens Mem'l Healthcare Found., 244 S.W.3d 234, 238 (Mo. App. 2008); see also Bowers v. Hiland Dairy Co., 132 S.W.3d 260, 270 (Mo. App. 2004) (claimant must present “evidence of a medical causal relationship between the condition and the compensable injury, if the employer is to be held responsible” for future medical treatment). Conrad v. Jack Cooper Transport Co., 273 S.W.3d 49, 52 (Mo. App. W.D. 2008). Application of the prevailing factor test to determine whether medical treatment is required to treat a compensable injury is reversible error. Id. at 521.

Section 287.140.1 places on the claimant the burden of proving entitlement to benefits for

future medical expenses. Rana, 46 S.W.3d at 622. The claimant satisfies this burden, however, merely by establishing a reasonable probability that he will need future medical treatment. Smith v. Tiger Coaches, Inc., 73 S.W.3d 756, 764 (Mo.App.2002). Probability means founded on reason and experience which inclines the mind to believe but leaves room for doubt.” Cook v. Sunnen Products Corp., 937 S.W.2d 221, 223 (Mo. App. 1996).Nonetheless, to be awarded future medical benefits, the claimant must show that the medical care “flow [s] from the accident.” Crowell v. Hawkins, 68 S.W.3d 432, 437 (Mo. App. 2001) (quoting Landers v. Chrysler Corp. 963 S.W.2d 275, 283 (Mo. App. 1997).

The claimant in this case seeks benefits from this employer in the form of a left carpal tunnel release and treatment for bilateral de Quervain’s tenosynovitis. Dr. Dysarz recommended the claimant undergo a left carpal tunnel release and either a repeat cortisone injection and splinting or surgery for the left de Quervain’s tenosynovitis. However, Dr. Dysarz specifically opined that neither her injuries nor her need for treatment were at all related to her employment with this employer.

Dr. Schlafly concluded that the claimant’s right hand and wrist were at maximum medical

improvement but recommended she undergo left carpal tunnel release to relieve the left carpal tunnel syndrome symptoms. He advised that if she were to have surgery on the left wrist, she should also undergo a de Quervain’s tendon sheath release of the left hand. He testified that all of the treatment was reasonable and necessary to cure the effects of the injuries the claimant sustained through her employment with this employer.

Dr. Brown opined that the claimant was at maximum medical improvement related to her

right carpal tunnel syndrome and release. He advised that, as previously recommended, she should undergo electrodiagnostic studies on the left hand and ultimately have left carpal tunnel release performed. Dr. Brown did not recommend any treatment related to the claimant’s left wrist but did indicate that she may benefit from a conservative treatment program consisting of wearing a thumb spica splint, taking nonsteroidal anti-inflammatory medication, and undergoing a steroid injection on the right wrist. He specified that her employment with this employer was not the prevailing factor in her injuries and therefore, the treatment was also unrelated.

All of the physicians agree the claimant is in need of further treatment on her upper

extremities, and the forensic medical opinions demonstrate that the requested treatment is

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reasonable and necessary to cure and relieve the effects of the claimant’s upper extremity diagnoses. However, an employer is not required to furnish such treatment for a non-work related injury. As discussed above, the claimant’s employment for this employer was not the primary factor, in relation to any other factor, causing both the resulting medical conditions, bilateral carpal tunnel syndrome or bilateral de Quervain’s tenosynovitis and the disability from those conditions. Therefore, no benefits are awarded because the claim is not compensable.

STATUTE OF LIMITATIONS

Section 287.430 sets the time for the filing of a claim of workers’ compensation benefits.

Section 287.430 provides, in pertinent part: [N]o proceedings for compensation under this chapter shall be maintained unless a claim therefor is filed with the division within two years after the date of injury or death, or the last payment made under this chapter on account of the injury or death, except that if the report of the injury or the death is not filed by the employer as required by section 287.380, the claim for compensation may be filed within three years after the date of injury, death, or last payment made under this chapter on account of the injury or death.

Section 287.063.3 sets forth when the statute of limitations begins running for an occupational disease claim and states that the statute of limitations “shall not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure.” “In Missouri, the statute of limitations in an occupational disease case begins running when: (1) an employee is no longer able to work due to the occupational disease; (2) an employee must seek medical advice and is advised that she can no longer work in the ‘suspected employment’; or (3) an employee experiences some type of disability that is compensable.” Rupard v. Kiesendah, 114 S.W. 3d 389, 394 (Mo. App. 2003), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). “The standard for beginning the running of the statute of limitations, as developed in the cases, requires (1) a disability or injury, (2) that is compensable. Compensability, as noted, turns on establishing a direct causal connection between the disease or injury and the conditions under when the work is performed. Logically, an employee cannot be expected and certainly cannot be required to institute a claim until he has reliable information that his condition is the result of his employment. Just as logically, given that there must be competent and substantial evidence of this link, the claimant is entitled to rely on a physician's diagnosis of his condition rather than his own impressions.” Sellers v. Trans World Airlines, Inc., 752 S.W.3d 413 (Mo. App. 1988), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). The defense argued in its brief that the claimant’s 2012 claim is barred by the statute of limitations:

The defense must prevail on this argument. All of the elements required for accrual of the claim of occupational disease were established in 2004. At that

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time, the claimant knew her upper extremity issues were related to repetitive job tasks. She reported this condition to St. Louis University, who she was then employed by, and advised them it was work-related. She even testified and told multiple treatment providers that she understood diagnoses in 1999, 2000, 2003, and 2006, were the result of repetitive work activities and not any activity she was engaging in outside of work. Further, she has undergone medical treatment since 1998 for her upper extremities including diagnostic procedures, medication, medical devices, and even discussions with care providers about surgery. Based on the foregoing, the claim for compensation filed for repetitive trauma on June 25, 2012 is plainly time barred as it relates to the same “injury” the claimant previously filed a claim for in 2004. Specifically, the 2012 claim alleges the same occupational disease and work related conditions that manifested themselves in the late 1990s and early 2000’s and led to the 2004 claim. If “injury” in a repetitive trauma case was intended to mean that injury occurs each instance of work-related exposure, then the Legislature would have made that clear in its 2005 amendments by providing for accrual of an occupational accident claim on the last day of exposure. However, accrual occurs when it becomes reasonably discoverable and apparent that an injury related to work has occurred. RSMo. 287.063.3 Supp. (2005). An injury occurred, and became reasonably discoverable and apparent, back in 2004 with the diagnosis of work-related bilateral carpal tunnel syndrome and the claimant cannot overcome the statutory mandate by arguing that new ‘injuries’ were suffered on and after March 31, 2004, the date of her prior workers’ compensation claim. In fact, the claimant admitted her symptoms never completely went away and neither her experts nor the Employer’s experts concluded that new medical conditions or injuries had been sustained. The uncontroverted medical evidence demonstrates that the medical condition for which the claimant sought treatment for after January 25, 2012, was identical to the medical condition diagnosed and treated in 1999, 2000, 2001, 2003, and 2006. See defense brief.

However, since the claim in this case is not compensable, the issue is moot, because no claim for compensation ever arose. Made by: __________________________________ EDWIN J. KOHNER Administrative Law Judge Division of Workers' Compensation

temporary award allowing compensation · january 2000, july 2000, february 2003, and april 2006 and...

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