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Jonathan MIRFASIHI, Appellant, v. HONEYWELL FEDERAL MANUFACTURING & TECHNOLOGIES, LLC, Respondent.
Jonathan Mirfasihi appeals the final award of the Labor and Industrial Relations Commission (“Commission”) denying his claim for workers’ compensation benefits. Mirfasihi asserted he sustained a thumb injury in the course and scope of his employment at Respondent Honeywell Federal Manufacturing & Technologies, LLC. After conducting a hearing, an administrative law judge found Mirfasihi sustained a compensable injury and awarded him over $22,000.00 in benefits. The Commission reversed, finding Mirfasihi failed to demonstrate that his work duties were the prevailing factor causing his thumb injury. Finding no error, we affirm the Final Award Denying Compensation issued by the Commission.
Factual and Procedural Background
Mirfasihi began working for Honeywell in 1984 as an electrical engineer, and for the last 15 years of his employment he held the position of program manager. His duties as program manager included “writ[ing] proposals to get funding,” “writ[ing] reports,” “put[ting] presentations together,” and “oversee[ing] the other people who work[ed] under [him].” Mirfasihi spent “about 75” to “85 percent” of his time at work on the computer.
“[S]omewhere in [the] time frame” of “December of 2016, January of 2017,” Mirfasihi began to experience pain in his left hand. On March 15, 2017, Mirfasihi reported “this problem” to his manager. At the direction of Honeywell, Mirfasihi saw Dr. Steelman on May 3, 2017. Mirfasihi reported that he “awakens with no pain, then pain occurs as his workday progresses” and his pain was associated “with using the keyboard space bar with his left thumb.” Mirfasihi had “noticed restricted flexion and extension of his thumb as well as some triggering.”1 X-rays of Mirfasihi's left hand revealed osteoarthritis “at the 1st CMC joint with mild subluxation” and “mild to moderate degenerative changes in the DIP joints 1-5.”2 Dr. Steelman concluded that “the most likely cause of [Mirfasihi's] symptoms [was] the osteoarthritis, not his work-related activities, i.e., keyboard use.” Dr. Steelman recommended Mirfasihi follow up with his primary care physician. Based on this information, Honeywell did not accept Mirfasihi's claim as compensable and did not pay for any future medical care relating to his left thumb.
Mirfasihi retired from Honeywell on May 12, 2017 and three days later began employment with Argonne National Laboratory as a program manager. At Argonne, his duties were “[p]retty much” the same as at Honeywell, although he spent a “little bit less” time on the computer.3
On July 5, 2017, Mirfasihi filed a claim for compensation with the Division of Workers’ Compensation, asserting that he had sustained a “left hand and left thumb repetitive motion injury or disease” on March 15, 2017 while employed by Honeywell as a program manager. Specifically, Mirfasihi asserted that he “was exposed to repetitive motion disease/cumulative trauma” and that “[a]s a direct, proximate, and prevailing factor of his repetitive work duties, [he] suffered left hand and left thumb repetitive motion injury or disease thereby directly causing permanent partial disability, temporary total disability, and past and future medical bills.”
In September 2017, Mirfasihi was examined by Dr. Maugans at Rockhill Orthopaedics. Mirfasihi reported that his thumb had “been bothering him for about six months now,” there was “no injury to it,” and “[i]t just kind of slowly came on out of the blue.” Dr. Maugans observed that Mirfasihi could not “fully extend” his left thumb and it did “catch a little bit when he [flexed] it down and he [was] sore right over the A1 pulley.” Dr. Maugans found, based on X-rays of the left hand, that Mirfasihi had “very minimal degenerative changes at the CMC and MP joints there, overall though things look[ed] well aligned.” Dr. Maugans assessed Mirfasihi as having “left trigger thumb,” and gave him “a steroid injection in the left thumb A1 pulley.”
Approximately six weeks later, Mirfasihi again saw Dr. Maugans. Mirfasihi reported that “the injection helped for maybe a month,” but now his thumb was “just as sore as it ha[d] been.” He stated that he was unable to “fully straighten out the thumb due to pain and stiffness there.” Mirfasihi declined another steroid injection and instead opted to “move forward with surgical intervention.”
Mirfasihi underwent a “left thumb A1 pulley release” surgery in January 2018.4 He took two weeks off of work at Argonne—without pay—to recover from the surgery. He participated in physical therapy; his symptoms improved and he was discharged from care. After surgery Mirfasihi's thumb no longer “triggered,” but he did not have a full range of motion in his thumb and he reported some residual soreness.
At the request of his counsel, on September 1, 2018, Mirfasihi underwent an examination by Dr. Neighbor, an orthopedic surgeon. Dr. Neighbor reviewed Mirfasihi's medical records,5 conducted a physical examination, took X-rays of his left hand, and took “a history of injury and current symptom status.” After completing the examination, Dr. Neighbor made the following findings:
[Mirfasihi] received shots and it was better for a couple of weeks and then the problem came back. On 1/13/2018, he had a surgical release of the pulley. Currently, he has to use his right hand to open a jar. He states that he is unable to pick up his laptop with his left hand.
On physical examination, he has 70 degrees of motion of the MP joint and equal. At the CMC joint was equal, but extension at the IP joint showed 40 degrees on the right, but only 5 degrees on the left.
Pinch tests were performed at a level of 27 on the right and on 3 separate occasions, he showed only 13, a 50% decrease on the left. X-rays showed osteoarthritis in the 1st CMC joint and mild subluxation and small osteophytes were present at the 1st CMC joint.
The diagnosis for the injury suffered by Mr. Mirfasihi due to the prevailing factor of the 3/15/17 work injury is an aggravation of the osteoarthritis of the joints and a trigger thumb at the A1 pulley in the left hand.
In my opinion, as a result of the injury on 3/15/17, Mr. Mirfasihi sustained a permanent partial disability of the left hand of 25%. This is based primarily on the loss of pinch strength.
As a result of the 3/15/17 work injury, Mr. Mirfasihi was off work for a couple of weeks following the initial injection and then also needed a couple of weeks following the release of the trigger thumb.
The medical bills that [were] forwarded to me, I believe are reasonable, necessary and caused by the 3/15/17 work injury. The cost of the anti-inflammatory type medications needed due to the 3/15/17 work injury would be estimated at $500 per year. Due to the 3/15/17 work accident, Mr. Mirfasihi more likely than not will need additional surgery on the CMC arthritis and post operative care, including physical therapy, would be estimated to be $25,000.
At the request of Honeywell's counsel, on July 11, 2019, Mirfasihi underwent an examination conducted by Dr. Walker, also an orthopedic surgeon. Dr. Walker reviewed Mirfasihi's medical records, took a patient history, conducted a physical examination, and took X-rays of Mirfasihi's left hand and thumb. The X-rays showed “mild to moderate thumb CMC, MP, and IP joint osteoarthritic change.” Dr. Walker made the following findings:
The records indicate that Mr. Mirfasihi previously had a left trigger thumb or flexor tenosynovitis at the A1 pulley. He had the appropriate treatment and has now recovered with a very good result after surgical treatment of this problem. Mr. Mirfasihi is at maximum medical improvement for his previous trigger thumb symptoms. He has sustained 2% permanent partial disability of the left thumb related to his previous trigger thumb symptoms and diagnosis. I do not expect him to require or benefit from any additional treatment for this problem. Mr. Mirfasihi's job related activities at Honeywell are not consistent with being the prevailing cause of his previous left trigger thumb symptoms and his job activities are unlikely to be related in any way to this diagnosis. Mr. Mirfasihi's left thumb MP joint arthritic change may be a contributing factor for the trigger thumb diagnosis due to enlargement of the MP joint and capsule and the surrounding osteoarthritic inflammation.
Mr. Mirfasihi is currently having some residual symptoms including pain, stiffness, and pinch/grip weakness related to osteoarthritis of the thumb CMC joint, MP joint, and IP joint․ Mr. Mirfasihi's work related activities at Honeywell are not consistent with being the prevailing cause of his thumb osteoarthritis and his work related activities are unlikely to be related to the osteoarthritic diagnosis at all.
At his deposition, Dr. Walker was asked whether “hitting the spacebar” was “something that would cause the type of issues that Mr. Mirfasihi had,” and he replied:
It just doesn't make any sense medically that that would -- those activities would cause those diagnoses․ To hit the spacebar really requires very little, if any, excursion of the tendon. That's all related more to the CMC joint motion and not MP or IP joint motion. And it's an extremely low force activity, as well.
Dr. Walker testified that he did not believe Mirfasihi's “office work” “would have had any significant influence on his osteoarthritis” and his “keyboarding” would not have been a factor “in his trigger thumb phenomenon.”
On November 8, 2019, the parties appeared for a hearing before an administrative law judge with the Workers’ Compensation Division (“ALJ”). Mirfasihi was the only witness to testify at the hearing. Mirfasihi testified that he “spent about 80 percent, 85 percent” of his time at work on the computer. Although he was right-handed, he used his left thumb to press the space bar when typing. He stated that he pressed the space bar with his thumb hundreds or thousands of times a day. Additionally, he stated that “[a]bout 20 percent, 25 percent” of his job required traveling. When he traveled he was required to bring his laptop, “which usually [he] put in a briefcase[.]” He carried his briefcase in his left hand. Mirfasihi testified that he also transported his briefcase to and from work at Honeywell when he was not traveling.
Due to the nature of his work, Mirfasihi had “top secret” security clearance. Mirfasihi stated that in order to get to his desk at Honeywell, he passed through one “regular” door and three “secure” doors. He had to “badge in” to pass through the secure doors. He used his right hand to “badge in” and his left hand to open the door. The secure doors were “much heavier than average doors.” Mirfasihi passed through the set of secure doors when he arrived at work, went to lunch, went to meetings, and left work. He estimated that he passed through the set of secure doors two to four times a day.
When asked which of his job duties caused him pain in his left hand, Mirfasihi replied “typing on the computers,” “carrying [his] briefcase,” “picking up and carrying [his] suitcase” when traveling, and “opening doors in and out.”
The ALJ admitted various exhibits into the record, including Mirfasihi's medical records and bills, Dr. Neighbor's examination findings, Dr. Neighbor's deposition transcript, Dr. Walker's examination findings, Dr. Walker's deposition transcript, and Mirfasihi's deposition transcript.
On January 10, 2020, the ALJ issued an award finding that Mirfasihi “sustained an occupational disease on March 15, 2017, arising out of and in the course of his employment,” involving his “[l]eft upper extremity at the hand and thumb.” The ALJ found that “[a]t least 75% of [Mirfasihi's] job duties consisted of work on the computer preparing reports and presentations where he would use the space bar button with the left thumb of his hand several thousand times per day,” Mirfasihi had “to use his left hand to grip when opening and shutting four sets of very heavy doors that required government security clearance just to get to his office daily,” and Mirfasihi “was also required to carry a briefcase daily that contained his laptop and his client files,” which “was regularly carried in his left hand.” The ALJ concluded that these “repetitive job duties were the prevailing factor that caused [Mirfasihi's] occupational disease on March 15, 2017.” The ALJ found credible the testimony of Dr. Neighbor and Mirfasihi, noting Mirfasihi “was consistent in his answers throughout his testimony and his testimony corresponded with what had been recorded by his treating and examining physicians.” The ALJ determined Mirfasihi was entitled to compensation from Honeywell as follows:
The employer shall pay to Employee 10% permanent partial disability to the left hand which equates to 17.5 weeks at $477.33 a week for a total of $8,353.28. The employer shall pay to Employee $1,822.54 for unpaid temporary total disability owed from January 23, 2018 to February 6, 2018. The employer shall pay to employee the sum of $11,293.00 as and for medical expenses employee incurred for treatment of his injuries. The employer shall also pay to Employee additional benefits of 2 weeks for disfigurement to Employee's left hand equating to $954.66.
Honeywell appealed by filing an application for review with the Commission. On October 7, 2020, the Commission issued a Final Award Denying Compensation, reversing the decision of the ALJ.9 The Commission found that “[a]t the hearing before the administrative law judge on November 8, 2019, [Mirfasihi] for the first time explained other aspects of work that might have contributed to his triggering thumb,” including use of his left hand to carry his briefcase and traveling through three sets of heavy secure doors. The Commission found that because “there [was] no record of [Mirfasihi] informing Dr. Steelman, Dr. Maugans, Dr. Neighbor, or Dr. Walker about opening heavy security doors or carrying a briefcase as possible causes of the triggering thumb,” there was no “expert opinion as to the cause or effect” of these actions. The Commission found that Mirfasihi's speculation “that such activities contributed to [his] triggering thumb ․ without medical support from an expert [was] not persuasive.” Thus, the Commission concluded that “the only work duty at issue in this matter that was reviewed and analyzed by a medical expert [was Mirfasihi's] use of the keyboard.”
Unlike the ALJ, the Commission found Dr. Walker's opinion to be more persuasive than that of Dr. Neighbor:
We find persuasive the opinion from Dr. Walker that [Mirfasihi's] work duties of typing were not the prevailing factor causing his medical condition of trigger finger in his left thumb. Dr. Walker explained the mechanism that primarily causes trigger finger, such as heavy gripping or squeezing. He further explained that the mechanism required to strike the spacebar with a left thumb would not result in triggering thumb. On the other hand, Dr. Neighbor did not provide any explanation to support his general opinion that [Mirfasihi's] work was the prevailing factor causing his medical condition. We do not find Dr. Neighbor's opinion persuasive.
The Commission noted that Dr. Neighbor “did not see the records from Dr. Steelman” and “did not elaborate further” when he opined Mirfasihi's condition was caused by repetitive motion in his left hand.
The Commission concluded that Mirfasihi “failed to meet his burden that his work duties with employer were the prevailing factor resulting in or causing [his] medical condition of triggering thumb,” and thus he did not “establish that he suffered a compensable injury by occupational disease arising out of and in the course of his employment.” In light of its determination, the Commission found that “[a]ll other issues of temporary total disability benefits, past medical expenses, future medical benefits, and disfigurement compensation [were] moot.”
Mirfasihi appeals, asserting four claims of error.10 In Points I, III, and IV, Mirfasihi asserts the Commission “erred in theorizing [he] failed to meet his burden that his work duties” caused his trigger thumb. In Point II, Mirfasihi asserts the Commission “erred in theorizing that it did not have any expert opinion as to cause and effect of [his] actions of opening heavy security doors or carrying a briefcase with his left hand.” Because our disposition of Point II is relevant to the other points, we address that point first. Additional facts are set forth in our analysis.
Standard of Review
This Court's scope of review is prescribed by section 287.495.1, which permits us to modify, reverse, remand for rehearing, or set aside the Commission's award upon “the following grounds and no other”: (1) the Commission acted without or in excess of its powers, (2) the award was procured by fraud, (3) the facts found by the Commission do not support the award, or (4) there was not sufficient competent evidence in the record to warrant the making of the award.
“We examine the record as a whole to determine if the award is supported by sufficient competent and substantial evidence, or whether the award is contrary to the overwhelming weight of the evidence.” Nivens v. Interstate Brands Corp., 585 S.W.3d 825, 831 (Mo. App. W.D. 2019) (internal marks omitted). “We review the award objectively and not in the light most favorable to the award.” Id. “[W]e review issues of law, including the Commission's interpretation and application of the law, de novo.” Id. However, “[w]e defer to the Commission's findings as to weight and credibility of testimony and are bound by its factual determinations.” Cheney v. City of Gladstone, 576 S.W.3d 308, 314 (Mo. App. W.D. 2019). “The Commission, as the finder of fact, is free to believe or disbelieve any evidence.” Id.
“The weight afforded a medical expert's opinion is exclusively within the discretion of the Commission.” Beatrice v. Curators of Univ. of Mo., 438 S.W.3d 426, 435 (Mo. App. W.D. 2014). “Furthermore, where the right to compensation depends on which of two medical theories should be accepted, the issue is peculiarly for the Commission's determination.” Id.; Kuykendall v. Gates Rubber Co., 207 S.W.3d 694, 706 (Mo. App. S.D. 2006) (“The acceptance or rejection of medical evidence is for the Commission.”). “We will uphold the Commission's decision to accept one of two conflicting medical opinions if such a finding is supported by competent and substantial evidence.” Kuykendall, 207 S.W.3d at 706 (internal marks omitted). “We will not overturn the Commission's determination regarding conflicting medical opinions, unless it is against the overwhelming weight of the evidence.” Id.
Before we address Mirfasihi's claims on appeal, we set forth the legal framework governing whether an employee suffers a compensable injury under Chapter 287.
An employer “shall be liable ․ to furnish compensation ․ for personal injury or death of the employee by accident or occupational disease arising out of and in the course of the employee's employment.” § 287.120.1. An “occupational disease” is “an identifiable disease arising with or without human fault out of and in the course of the employment.” § 287.067.1. “Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease[.]” Id. “An injury due to repetitive motion is recognized as an occupational disease[.]” § 287.067.3.
“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.” Id. “The ‘prevailing factor’ is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.” § 287.067.2, .3. “Ordinary, gradual deterioration, or progressive deterioration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.” Id.
In applying these statutory provisions, Missouri courts have held that “[t]o support a finding of occupational disease, an employee must provide substantial and competent evidence that [he has] contracted an occupationally induced disease rather than an ordinary disease of life.” Greenlee v. Dukes Plastering Serv., 75 S.W.3d 273, 277 (Mo. banc 2002). “In order to show a recognizable link between the disease and the job, a claimant must produce evidence establishing a causal connection between the conditions of employment and the occupational disease.” Cheney, 576 S.W.3d at 315 (internal marks omitted). “This evidence must be medical evidence and must establish a probability that working conditions caused the disease, although they need not be the sole cause.” Id. (internal marks and emphasis omitted). “The determination of whether an accident is the ‘prevailing factor’ causing an employee's condition is inherently a factual one.” Beatrice, 438 S.W.3d at 435.
In his second point, Mirfasihi asserts the “Commission erred in theorizing that it did not have any expert opinion as to cause and effect of Mr. Mirfasihi's actions of opening heavy security doors or carrying a briefcase with his left hand, because it misstated the record, in that Dr. Walker opined heavy or repetitive gripping, squeezing that requires high force along the tendons and high excursion or travel of the tendons is a risk factor of trigger thumb.”11 We disagree, and find that the record contained no expert opinion that Mirfasihi's work activities of opening secure doors or carrying his briefcase caused or contributed to his medical condition, and thus, the Commission did not “misstate the record.”
In support of this point, Mirfasihi points to Dr. Walker's response at his deposition when asked to explain “what can cause a triggering phenomenon, either in the thumb or in fingers, just generally.” Dr. Walker replied:
And so trigger finger or trigger thumb is one of the most common things we see, affects many people of all walks of life, often incidental onset. Things that can increase risk factors for trigger fingers or trigger thumb, any inflammatory conditions, rheumatoid arthritis, rheumatologic conditions, gout has been implicated, diabetes can be a risk factor. Those are common medical conditions. The heavy or repetitive gripping, squeezing that requires high force along the tendons and high excursion or travel of the tendons can be a risk factor․”
(emphasis added). Contrary to Mirfasihi's assertions, this testimony was not medical expert evidence “as to cause and effect of [Mirfasihi's] actions of opening heavy security doors or carrying a briefcase with his left hand.”
Although Dr. Walker described possible risk factors of trigger thumb to include the type of gripping or squeezing “that requires high force along the tendons and high excursion or travel of the tendons,” he did not consider or opine whether Mirfasihi's actions of opening secure doors or carrying his briefcase resulted in that type of gripping or squeezing. Medical evidence, not merely the speculation of a lay person such as Mirfasihi, was necessary to establish that these actions could be risk factors for trigger thumb because they required “high force along the tendons and high excursion or travel of the tendons.” See Beatrice, 438 S.W.3d at 435 (“Medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause.”). Furthermore, Dr. Walker did not otherwise define “heavy” or “repetitive” gripping, and because Mirfasihi never reported to Dr. Walker—or any other medical provider—that opening secure doors or carrying his briefcase caused him pain or triggering, there was no opportunity for a medical provider to consider or state an opinion as to whether these specific activities constituted the type of “heavy or repetitive gripping [or] squeezing” that could have caused his trigger thumb, as Mirfasihi speculates.
In light of the above, we find the Commission did not err “in theorizing that it did not have any expert opinion as to cause and effect of Mr. Mirfasihi's actions of opening heavy security doors or carrying a briefcase with his left hand.” The facts found by the Commission support the final award. See Angus v. Second Injury Fund, 328 S.W.3d 294, 300 (Mo. App. W.D. 2010) (“The question of causation is one for medical testimony, without which a finding for claimant would be based upon mere conjecture and speculation and not on substantial evidence.” (internal marks omitted)).
Point II is denied.
In his first point, Mirfasihi asserts the “Commission erred in theorizing [he] failed to meet his burden that his work duties caused his trigger thumb.” He asserts that “a work accident can be the prevailing factor in causing an injury sustained due to the aggravation of preexisting, asymptomatic degenerative condition” and that the Commission both failed to consider “his asymptomatic osteoarthritis becoming symptomatic due to the work injury” and disregarded the opinion of Dr. Walker—which it found persuasive—“conced[ing] the osteoarthritis was now symptomatic, and could be ․ contributing to the trigger thumb.” We struggle to understand Mirfasihi's argument. Although he asserts the Commission failed to properly consider the effects of his “work accident” and “work injury,” the Commission expressly found that he did not suffer an accident or occupational disease arising out of and in the course of his employment. In other words, the Commission found no “work accident” or “work injury” occurred.
To the extent Mirfasihi is arguing the Commission failed to consider whether his work duties caused or aggravated his osteoarthritis, we find such assertions are not supported by the record. The Commission expressly found persuasive Dr. Walker's findings that Mirfasihi's joint tenderness and stiffness were likely arthritis-related but that his work activities “were not the prevailing factor causing [his] trigger fingering in his left thumb or his osteoarthritis.” Additionally, the Commission noted that Dr. Neighbor opined Mirfasihi's work duties aggravated his osteoarthritis, but “did not find the opinion of Dr. Neighbor persuasive.” Thus, the Commission did consider whether Mirfasihi's osteoarthritis was caused or aggravated by his work duties, but simply found that it was not.
To the extent Mirfasihi is arguing the Commission disregarded persuasive evidence from Dr. Walker that his osteoarthritis contributed to his trigger thumb, we find this argument misses the mark. Whether Mirfasihi's osteoarthritis contributed to his trigger thumb is not relevant to his argument; rather, Mirfasihi must demonstrate that his work activities caused his medical condition. See Cheney, 576 S.W.3d at 315 (the claimant must establish “a causal connection between the conditions of employment and the occupational disease”). As described above, Dr. Walker specifically found that Mirfasihi's work activities did not cause his osteoarthritis or trigger thumb, and the Commission did not find credible Dr. Neighbor's opinion to the contrary. Proving that his osteoarthritis contributed to his trigger thumb, without proving that working conditions caused his osteoarthritis or trigger thumb, would not establish Mirfasihi suffered an accident or occupational disease arising out of and in the course of his employment.
Point I is denied.
In his third point, Mirfasihi argues the “Commission erred in theorizing [he] failed to meet his burden that his work duties with Employer caused his trigger thumb, because it ignored favorable opinions of Dr. Walker, in that the Commission cannot ignore uncontroverted testimony.” Specifically, Mirfasihi asserts “the Commission ignored the following three separate opinions of Dr. Walker in issuing its Award:”
1. Mr. Mirfasihi's preexisting condition or left thumb MP joint osteoarthritis may be a contributing factor for the trigger thumb diagnosis.
2. “Osteoarthritis in the hand and fingers has an unknown single specific cause․ Oftentimes, it's accumulated aging process AND usage throughout a lifetime.”
3. [“]Trigger finger or thumb is one of the most common things we see․ The heavy OR repetitive gripping, squeezing that requires high force along the tendons and high excursion or travel of the tendons can be a risk factor of [trigger thumb].”
(emphasis supplied by Mirfasihi) (citations to the record omitted).
However, the Commission did not “ignore” the opinions of Dr. Walker cited above; rather, it is Mirfasihi who ignores Dr. Walker's express finding that his work activities did not cause his osteoarthritis or trigger thumb. In light of this finding, and as previously discussed, Dr. Walker's opinion that Mirfasihi's osteoarthritis may have contributed to his trigger thumb (the “first” opinion cited above) provides no support for Mirfasihi's contention that his work duties caused his medical condition. Similarly, Dr. Walker's opinion that oftentimes osteoarthritis is the result of accumulated aging and usage throughout a lifetime (the “second” opinion) does not support Mirfasihi's claim, given that Dr. Walker expressly found Mirfasihi's computer usage was not the type of “usage” that would cause his medical condition. As to the “third” of Dr. Walker's opinions cited by Mirfasihi, as we discussed in relation to Point II, Dr. Walker's testimony that certain types of “heavy or repetitive gripping [or] squeezing” could be risk factors for trigger thumb did not constitute medical evidence establishing that Mirfasihi's work activities caused or contributed to his medical condition.
The Commission did not “ignore” the “favorable” opinions of Dr. Walker cited above; rather the opinions—when considering the entirety of Dr. Walker's findings, including his finding that Mirfasihi's work duties did not cause his medical condition—were just not favorable to Mirfasihi, and did not provide support for his claim.
Point III is denied.
In his fourth point, Mirfasihi argues the “Commission erred in theorizing [he] failed to meet his burden that his work duties with Employer caused his trigger thumb, because it disregarded undisputed and uncontroverted testimony of Mr. Mirfasihi, in that the Commission may not arbitrarily disregard or ignore competent, substantial, and undisputed evidence of witnesses not impeached or base its findings on conjecture or its own opinion.”
In support of this point, Mirfasihi cites to his “undisputed and uncontroverted” testimony describing the repetitive activities he performed at work with his left hand and that he had “no complaints, limitations or restrictions with his left hand prior to working for” Honeywell. While we agree this testimony was not controverted by any witness, it did not establish causation. As we have stated numerous times, medical evidence was required to establish causation here, and thus Mirfasihi's description of his work activities and symptoms, while undisputed by any other witness, was insufficient to prove his claim.12 Additionally, we note that in its final award the Commission cited to Mirfasihi's testimony describing his work activities and symptoms. We, therefore, disagree with Mirfasihi that the Commission disregarded his testimony and that such testimony established his work duties caused his medical condition.
Mirfasihi additionally argues in this point—although he does not include this issue in his point relied on—that the Commission's finding that he “failed to meet his burden that his work duties were the prevailing factor resulting in or causing his medical condition of trigger thumb, is not probative and no reasonable mind could believe the Commission's proposition on the record as a whole.” He asserts “there is no record that anything but Mr. Mirfasihi's occupational duties caused his medical condition.” This is a mischaracterization of the record. Both Dr. Steelman and Dr. Walker concluded that something other than Mirfasihi's occupational duties caused his medical condition. To the extent Mirfasihi suggests Honeywell bore a burden to establish the non-occupational cause of his condition, such an argument would be contrary to the law, as the burden to prove the cause of his medical condition rested entirely with Mirfasihi. See Kersey v. Autry Morlan, Inc., 388 S.W.3d 644, 650 (Mo. App. S.D. 2013) (“It was Claimant's burden to prove that the accident was the prevailing factor in causing his [medical condition]” and “Employer was not obligated to disprove Claimant's case or establish that another noncompensable event caused Claimant's injuries.”).
Point IV is denied.
We affirm the Final Award Denying Compensation issued by the Commission.
1. “Triggering” is a type of tendonitis. “[I]t can be anything from just pain at that location, to pain and slight catching, to actual locking[.]”
2. “[T]he joint closest to the thumbnail is the IP joint [(which Dr. Steelman referred to as the ‘DIP’ joint)], the next more proximal joint is the MP joint, and ․ the next joint back towards the wrist is the CMC joint.”
3. Mirfasihi retired from Argonne National Laboratory in July 2018, and after that date was no longer employed.
4. An “A1 pulley release” is a surgery “designed to open up the pulley to make the tunnel larger ․ so the tendon can more freely move in and out.”
5. Dr. Neighbor did not appear to review the records from Dr. Steelman's examination. Dr. Neighbor stated that the “medical records which [he] reviewed indicate that [Mirfasihi] was first seen at RockHill orthopedics [sic] 9/28/2017,” and he does not reference any visit with Dr. Steelman.
6. The record reflects that Mirfasihi only received one steroid shot.
7. At his deposition, Dr. Neighbor clarified what he believed to be the cause of Mirfasihi's work injury:Q. [by Mirfasihi's counsel] Based on reasonable medical certainty, was the repetitive motion of intense computer use, including keyboard pressing, pushing, and using the mouse repeatedly, and shuffling and thumbing through papers at work, the prevailing factor and the cause of Mr. Mirfasihi's repetitive motion injury, need for treatment and surgical release of the pulley in the left hand ․?A. [by Dr. Neighbor] Yes.
8. The record does not reflect that Mirfasihi took time off of work to recover after he received the steroid injection.
9. One of the three Commission members filed a dissenting opinion.
10. “Beginning January 1, 2006, only administrative law judges, the commission, and the appellate courts of this state shall have the power to review claims filed under this chapter.” § 287.801, RSMo. All statutory references are to the Revised Statutes of Missouri 2016.
11. As stated above, our review of the Commission's final award is limited to the four grounds described in section 287.495.1, however none of Mirfasihi's points relied on challenge the Commission's award on those statutorily enumerated grounds. Be that as it may, in the argument sections of Points I and II, Mirfasihi appears to argue the facts found by the Commission do not support the award and in the argument sections of Points III and IV he appears to argue there was not sufficient competent evidence in the record to warrant the making of the award. Although a claim on appeal is not properly preserved unless included in the point relied on, we nonetheless exercise our discretion to address the merits of his claims. See Cmty. Bank of Raymore v. Patterson Oil Co., 463 S.W.3d 381, 387 n.5 (Mo. App. W.D. 2015) (noting that an argument “not included within the points relied on is not preserved for appeal,” but nonetheless exercising discretion to address the merits of the appellant's unpreserved claims).
12. We do not mean to suggest that the Commission was required to believe Mirfasihi's testimony simply because it was uncontroverted. “The Commission, as the finder of fact, is free to believe or disbelieve any evidence.” Cheney, 576 S.W.3d at 314. Although Mirfasihi's testimony was not disputed by any witness, the Commission noted that Mirfasihi never reported to medical providers that opening security doors or carrying a briefcase caused him pain, and did not raise these issues until the hearing before the ALJ.
EDWARD R. ARDINI, JR., JUDGE
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Docket No: WD 84136
Decided: March 30, 2021
Court: Missouri Court of Appeals, Western District.
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