Ritchie v. Silgan Containers Mfg. Corp.

625 S.W.3d 787

Karen RITCHIE, Respondent,

v.SILGAN CONTAINERS MANUFACTURING CORP. and Travelers Casualty Ins. of America, Appellants.

WD 84123

Missouri Court of Appeals, Western District.

OPINION FILED: May 25, 2021

Mav Hooman Mirfasihi, Kansas City, MO, for respondent.

Samantha N. Benjamin-House, Kansas City, MO, for appellants.

Before Division Three: Gary D. Witt, Presiding Judge, Edward R. Ardini, Jr., Judge and W. Douglas Thomson, Judge

Gary D. Witt, Judge

Silgan Containers Manufacturing Corporation ("Silgan") and its insurer, Travelers Casualty Insurance of America (collectively "Appellants"), appeal the Final Award Allowing Compensation ("Award") of the Labor and Industrial Relations Commission ("Commission") finding Karen Ritchie ("Ritchie") sustained a compensable work-related injury, finding her to be permanently and totally disabled and awarding her statutory damages for disfigurement of her elbow. Ritchie was further awarded $25,456.66 for uncompensated past medical expenses and was found to be eligible for future medical expenses. Appellants argue the Award is not supported by substantial evidence and that Ritchie's claims were barred for lack of a timely notice of injury. We affirm and pursuant to section 287.160.3 we note the Award is subject to ten percent interest per annum on Ritchie's weekly benefit payments attributable to her permanent total disability beginning thirty days from the ALJ's original award on October 16, 2019.¹

Factual and Procedural Background²

From 2009 through July 17, 2017, Ritchie was employed by Silgan as either a Fork Lift Operator or later as an Inspector. In her capacity as a Fork Lift Operator, Ritchie was primarily responsible for loading and unloading trucks, preparing boxes and lids for the production line, and making boxes and lids. Ritchie worked twelve-hour shifts and operated the fork lift for approximately nine hours each shift. In operating the fork lift, Ritchie used her right hand and arm to move levers that raise and lower the arms of the lift and used her left hand to continuously turn the steering wheel more than 1,000 times in each direction during her shift. While she was employed by Silgan, Ritchie began to suffer pain in her left elbow. Ritchie is right-hand dominant.

On May 10, 2014, Ritchie was working in her garden at home and fell and sustained a fractured wrist. Ritchie was treated by Dr. Daniel Smith ("Dr. Smith"), who placed her wrist in a cast. On November 1, 2014, the pain in Ritchie's left elbow, which preceded her wrist injury, became intolerable, and Ritchie experienced sharp shooting pains, which began at her left elbow and radiated down her left arm to her left ring finger and left small finger. Ritchie sought treatment from Dr. Smith on November 10, 2014. At that time, Dr. Smith noted that:

Ms. Ritchie returns six months post fracture of the left wrist. The patient continues to have a constant ache and shooting pain in that wrist. She drives a forklift and has had some pain that actually gets nauseous. She describes a burning pain and dysesthesias in multiple fingers.

Dr. Smith also noted that Ritchie had a subtle Madelung deformity of the wrist.³ Dr. Smith recommended Ritchie undergo an MRI and an EMG.

Following these tests, Dr. Smith evaluated Ritchie on January 9, 2015. During that visit, Dr. Smith gave Ritchie an elbow injection of methylprednisolone /bupivacaine mixture, and Dr. Smith recommended that Ritchie wear a tennis elbow strap. Dr. Smith noted that Ritchie was working many hours, which could be contributing to Ritchie's pain. Ritchie was again evaluated by Dr. Smith on October 30, 2015 after a second EMG was performed. Dr. Smith diagnosed Ritchie with cubital tunnel syndrome and noted that "[Ritchie] is trying to change her job and this may help her out as far as decreasing some of the stress on the elbow." Shortly after this appointment, Ritchie applied for the position of Inspector, which was granted.

Dr. Smith performed two surgeries to treat Ritchie's injuries. The first surgery occurred on February 25, 2016, and was described by Dr. Smith as a "left cubital tunnel release [and] modified Bosworth [procedure]." The second surgery occurred on March 31, 2016, and consisted of an exploration and excision of adhesions of the left ulnar nerve. Ritchie used FMLA leave and short-term disability leave following these surgeries, and returned to Silgan as an Inspector on May 16, 2016. On July 11, 2016, Ritchie was evaluated by Dr. Smith who recommended another EMG because Ritchie continued to complain of left elbow pain along the ulnar nerve.

The following day, Ritchie provided written notice of her injury to Silgan's Human Resources Manager, Amy Cohorst ("Cohorst"). Cohorst sent Ritchie to a local hospital, who then referred Ritchie back to Dr. Smith. Dr. Smith performed another EMG. Dr. Smith opined the ulnar nerve had returned to normal following the two surgeries.

On December 23, 2016, Ritchie began receiving treatment from Dr. Jeffrey Bradley ("Dr. Bradley"). Dr. Bradley ordered an MRI of the left elbow and another EMG. Dr. Bradley opined the MRI demonstrated: (1) mild ulnar neuritis ; (2) the ulnar nerve was transposed to just anterior to the epicondyle; (3) chronic inflammatory changes; (4) mild soft tissue edema; (5) mild common flexor origin tendinopathy ; (6) mild edema and denervation of the flexor carpi ulnaris muscle. Dr. Bradley opined that Ritchie did not suffer from complex regional pain syndrome. Dr. Bradley recommended pain management as a treatment and advised that another surgery was an option but that surgery was risky and may not result in any additional benefit.

Dr. Bradley performed a third surgery on February 24, 2017, which Dr. Bradley described as a left ulnar nerve decompression with submuscular transposition. Ritchie's condition did not improve. Dr. Bradley recommended the following work restrictions related to Ritchie's left arm: (1) no lifting more than one pound; (2) no pushing, pulling, or gripping; and (3) no use of vibratory equipment. Silgan did not have a position that could accommodate these restrictions, and Silgan terminated Ritchie on July 17, 2017. At some point, Ritchie applied for short-term disability, and at that time, Dr. Bradley opined Ritchie had left cubital tunnel syndrome and also opined that Ritchie's injury was not related to her work with Silgan.

On September 26, 2017, Ritchie was evaluated by Dr. Ernest Neighbor ("Dr. Neighbor"). Dr. Neighbor diagnosed Ritchie with complex regional pain syndrome, lateral epicondylitis, and cubital tunnel syndrome. Dr. Neighbor opined that Ritchie's use of her left hand in operating the forklift was the prevailing factor causing these diagnoses. In addition to the restrictions recommended by Dr. Bradley, Dr. Neighbor opined that Ritchie required "the ad-lib ability to change postures in order to rest her arm" and the ability to nap during the day, which were necessary due to Ritchie's occupational disease. The ability to nap during the day was necessitated to her loss of sleep at night due to being awakened two to three times each night from pain in her arm and the drowsiness caused by the pain medications she needed to treat her arm.

On May 2, 2018, Ritchie was evaluated by Dr. James Zarr ("Dr. Zarr"). Dr. Zarr agreed with Dr. Bradley's restrictions and opined that Ritchie sustained 25% permanent partial disability to her left elbow. Dr. Zarr noted that "I am not exactly certain what the ‘prevailing factor’ is for [Ritchie's] ulnar nerve pain. Employment activities are a possibility." Dr. Zarr also opined that Ritchie will require medications on a long-term basis. Subsequently on May 15, 2019, Dr. Zarr amended his report to state that he believed Ritchie's work was not the prevailing factor in causing Ritchie's elbow pain.

Ritchie was also evaluated by Michael Dreiling ("Dreiling") and Terry Cordray ("Cordray") to determine whether Ritchie was able to compete in the open labor market. Dreiling opined that Ritchie was unable to return to any employment given her extensive work restrictions and that Ritchie was not a realistic candidate to pursue formal retraining services. Dreiling concluded that Ritchie was permanently totally disabled. Cordray opined that Ritchie could compete in the open labor market and was a good candidate for vocational rehabilitation or community college.

On October 14, 2016, Ritchie filed a Claim for Worker's Compensation Benefits with the Division of Workers' Compensation. An Administrative Law Judge ("ALJ") conducted a hearing on August 16, 2019. During the hearing, Ritchie testified that she had incurred $59,732.15 in uncompensated medical expenses. However, Ritchie only introduced medical bills demonstrating she had incurred $25,456.66 in medical expenses representing those which arose after she provided notice to her employer of her work-related injury.

On October 16, 2019, the ALJ entered his final award concluding that: (1) Ritchie sustained an occupational injury which rendered her permanently totally disabled finding Ritchie was unable to compete in the open labor market; (2) Ritchie provided timely notice of her injury to Silgan; (3) Ritchie's claim for compensation was not barred by the statute of limitations. The ALJ awarded Ritchie permanent total disability benefits of $861.04 each week from July 17, 2017, continuing for the remainder of Ritchie's life; $25,456.66 for uncompensated medical expenses; future medical treatment related to Ritchie's injury; and $451.02 per week for twelve weeks for damages relating to the disfigurement to the right elbow in the total amount of $5,412.24.

Appellants filed a timely Application for Review with the Commission. The Commission affirmed the ALJ's findings of facts and conclusions of law. However, the Commission amended the ALJ's award finding that Ritchie's weekly payments for permanent total disability benefits should have been effective on May 2, 2018, which was the date of...