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Shorten v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

December 22, 1995

NICKY SHORTEN Appellant
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          Submitted: November 1, 1995

          ORDER ON APPEAL

          MIKE McCARTER JUDGE.

         Summary: Claimant appealed decision of DOL hearing examiner that claimant had not proved her alleged carpal tunnel syndrome was an occupational disease.

         Held: Hearing examiner's decision was not clearly erroneous in view of the probative, reliable and substantial evidence in the record. The fact that claimant may have suffered from carpal tunnel syndrome does not prove that her syndrome was caused, in whole or in part, by occupational factors. She had a prior history of hand problems, her job involved less repetitive hand motion than she claimed, and the medical evidence did not establish a causal connection.

         Topics:

         Occupational Disease: Causation. From the fact that claimant may have suffered from carpal tunnel syndrome it does not follow that her syndrome was the consequence, in whole or in part, of occupational factors. She had a prior history of hand problems, her job involved less repetitive hand motion than she claimed, and the medical evidence did not establish a causal connection.

         Occupational Disease: Proximate Cause. From the fact that claimant may have suffered from carpal tunnel syndrome it does not follow that her syndrome was the consequence, in whole or in part, of occupational factors. She had a prior history of hand problems, her job involved less repetitive hand motion than she claimed, and the medical evidence did not establish a causal connection.

         Medical Conditions: Carpal Tunnel Syndrome. From the fact that claimant may have suffered from carpal tunnel syndrome it does not follow that her syndrome was the consequence, in whole or in part, of occupational factors. A claimant must show that the CTS arose from or was aggravated by employment and that the last injurious exposure occurred as a result of the last employment. Here, claimant had a prior history of hand problems, her job involved less repetitive hand motion than she claimed, and the medical evidence did not establish a causal connection.

         The appellant, Nicky Shorten (claimant), claims she suffers from occupationally related carpal tunnel syndrome (CTS). In Findings of Fact; Conclusions of Law; Final Order, issued August 8, 1995, the Department of Labor and Industry denied her claim. This appeal followed that decision.

         Factual and Procedural Background

         1.The Claim

         After ten years of unemployment, on February 1, 1993, claimant took a job as a temporary receptionist for TOS & Associates (TOS). Claimant worked for TOS until May 28, 1993. Her duties during that time were described by the Department's hearing examiner as follows:

The claimant's work duties consisted of answering the telephone, greeting customers, photocopying tax information, photocopying and assembling tax returns, and preparing an average of two or three invoices a day, with a range from zero to five or seven. The claimant did minimal typing, and limited keyboard activities as few key strokes were required for simple invoices and small company payrolls. Limited keyboard entry was also required due to software programs performing much of the calculations. The claimant's typing skills were limited. TOS handled six or seven payrolls covering up to 23 employees for the largest client firm (Rose's Cantina). She also ran a ten-key calculator on a limited basis.
From February 1 through April 15 approximately 40% of the claimant's work was photocopying. . . . after April 16, the claimant had some additional tasks, such as filing, checking statements for a construction company and reading large check books. She occasionally ran errands like bank deposits. (Exs. 1-3, Testimony of N. Shorten and T. Swindle).

(Findings of Fact 3 and 4.)

         Immediately following her termination of employment, claimant filed a written claim for compensation stating that "when using the calculator, computer, and typewriter [at work] my wrists and hands started hurting me, going numb, making it hard for me to control them." (Ex. 2.) The claim was submitted to the State Compensation Insurance Fund, which insured TOS. The State Fund denied liability under the Workers' Compensation Act but advised claimant's attorney that it was conducting an investigation into the possibility that she may suffer from an occupational disease.

         2.Occupational Disease Medical Panel Examinations and Reports

         On September 2, 1993, the State Fund denied liability for claimant's condition as an occupational disease but referred her claim to the Department of Labor and Industry. The Department then directed the claimant to an examination by Dr. Pius Baggenstos, who is a board certified neurosurgeon and a member of the Montana Occupational Disease Panel. The doctor examined claimant in November 1993, and concluded:

1.Mrs. Nicky Shorten is not suffering from an occupational disease.
2. This patient does not have typical carpal tunnel syndrome which is a compressive neuropathy at the carpal tunnel area.
3.It seems to me that this patient could have a peripheral neuropathy related to ischemic necrosis and demyelination secondary to rheumatory arthritis and lupus erythematosus which was diagnosed by Dr. Elton Adams, rheumatologist, in Great Falls.

(Ex. 4.) In reaching his opinions Dr. Baggenstos reviewed all medical reports in the Department file.

         Pursuant to section 39-72-602(b), MCA, the claimant requested and underwent a second examination by Dr. Dana Headapohl, Medical Director of the Occupational Health Department, St. Patrick Hospital in February 1994. Following examination, Dr. Headapohl responded to specific questions asked by the Department:

1. Is the claimant suffering from a disease that is the result of her employment (occupational disease)?
No, the claimant is currently not suffering from a disease that is the result of her employment. At the time of her employment by TOS & Associates she did have an exacerbation of symptoms but her current symptoms are totally unrelated.

(Ex. 5.)

         The request for a second examination triggered the appointment of a third physician as panel chair. § 39-72-602(2)(b), MCA. At the request of the Department, Dr. William Shaw, who is board certified in occupational medicine, served as the chair. He reviewed the medical records of the claimant and discussed the case with Drs. Baggenstos and Headapohl. To a reasonable degree of medical certainty Dr. Shaw concluded:

1)Mrs. Shorten appears to suffer from a Raynaud's syndrome of unknown etiology. Her condition does not appear ...

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