Rudy Clemoens v. DST Output

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: January 26, 2004.
5. State location where accident occurred or occupational disease was contracted: Jackson 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? Not applicable - Occupational Disease
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant lifts, pulls and pushes heavy items repetitively and has done so for the past 11 years as part of his job duties.
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: low back
14. Compensation paid to-date for temporary disability: None.
15. Value necessary medical aid paid to date by employer/insurer? None.
16. Value necessary medical aid not furnished by employer/insurer? None
17. Employee's average weekly wages: $\$ \ 640.00
18. Weekly compensation rate: $\ 426.67 for temporary total disability

1. Method wages computation: By agreement

20.Amount of compensation payable:

Employer is to provide medical treatment to relieve back pain claimant experiences and any temporary benefits that may become due. SEE FINDINGS OF FACT AND RULINGS OF LAW

TOTAL: undetermined

Employee: Rudy Clemoens Injury No: 04-005399

Dependents: N/A

Employer: DST Output

Insurer:Liberty Mutual Insurance Company

Additional Party: N/A

Hearing Date: November 21, 2005 Checked by: RSM/lh

At the hearing, the parties stipulated:

1) that from January 26, 2004, DST Output was an employer operating under the provisions of the Missouri workers' compensation law and that their liability under said law was fully insured by Liberty Mutual Insurance Company;

2) that from December 2002 through January 26, 2004, Rudy Clemoens was an employee of DST Output and was working under the provisions of the Missouri workers' compensation law;

3) that the average weekly wage for purposes of this temporary hearing was $\ 640, and that the applicable rate for temporary total disability is $\ 426.67 per week.

The primary issue to be determined in this case is whether Rudy Clemoens sustained injury by accident or occupational disease arising out of and in the course of his employment with DST Output. The Claimant 's pleadings constitute a claim for accident, series of accidents or occupational disease. The Employer contends that if the claim is ultimately found compensable and is found so on the basis of an accident then Employer is also asserting a notice and statute of limitations defense. The evidence presented at the hearing consisted of the Claimant's testimony, numerous medical records and the deposition testimony of Dr. Theodore Sandow, and the exhibits attached thereto. Employer and Insurer's evidence consisted of the deposition testimony of Rudy Clemoens and the deposition testimony of Dr. Jeffery MacMillan, and the exhibits attached thereto.

Rudy Clemoens, the Claimant in this case, commenced employment with DST Output in 1993. DST Output was described by the Claimant as a company who does mass mailings. For the past seven years, the Claimant has been a supervisor in the warehouse and prior to that he worked in the warehouse as a puller. During his first four years of employment with DST, he had to lift overhead 70 pounds at least 20 times a day. He worked five days a week, eight hours a day and for about six weeks a year worked six days a week, twelve hours a day. In addition to lifting 70 pounds overhead, the physical duties of Claimant's job as a puller involved bending, lifting and stooping.

Claimant was promoted to the position of supervisor four years after he commenced employment at DST. As a supervisor, he oversees approximately 15 employees who are pullers. Although Claimant has many more supervisory activities and must walk around inspecting and making sure the work is being performed properly, he still has to pick up the slack when a crewmember is absent. Therefore, while his physical activities have lessened somewhat over the past seven years, he testified that he rarely has a full crew and often does have to pitch in doing the work of a puller. While the lifting has changed over the years to a maximum of 50 pounds instead of 70 pounds, I find that the Claimant is essentially involved in the same type of duties he was as a puller. While there may be a day or two every week or so where the Claimant does not have to actually do the job of a puller, I find that most days of most weeks he is involved in the same type of physical activities that he has been since he began employment with DST.

Having listened to the Claimant's testimony and having reviewed his deposition testimony as well as the medical records and medical depositions in this case, I find that the Claimant is a credible witness. Although the Claimant admittedly has difficulty remembering dates, his overall testimony is quite truthful and believable. Based on the evidence presented, I find that the Claimant first experienced pain in his back sometime in 2000. He went to his family doctor at that time complaining of pain in his low back going down his leg. He described his pain as having been ongoing for several months at that time.

On June 23, 2001, the Claimant went to see Dr. Merck who was the head of a pain center. The Claimant sought treatment from Dr. Merck for his low back pain, which he described as having gone on for two years. Dr. Merck's plan was to proceed with a series of steroid epidural injections to Claimant's low back. Dr. Merck ordered an MRI of the Claimant's lumbar spine in 2001, which demonstrated degenerative disc disease at L2-3, L4-5, and L5-S1. Dr. Merck saw Mr. Clemoens again on December 5, 2002, with a continued history of low back pain and again recommended some epidural steroid injections. The Claimant continued to seek treatment.

The first MRI was performed on June 25, 2001. Another one was performed on February 11, 2004. I find based on the deposition testimony of Dr. Sandow and Dr. MacMillan that there was basically no difference between those two MRIs. According to the Claimant's doctor, the MRIs showed no significant advancement between the two films. Therefore, Dr. Sandow testified that he could not say that there has been a progression of the degeneration of the Claimant's back from 2001 to 2004 when the second MRI was taken.

Based on the evidence presented, I find the Claimant's back pain was bad enough to seek treatment

from a doctor for the first time in June of 2000, when he visited with his family doctor. At that time, he gave a history of back pain and tingling down his right leg for approximately four months. Some time after he saw Dr. Frank in 2000 and when he first saw Dr. Merck at the Pain Center on June 23, 2001, the Claimant suffered an incident at work which literally brought him to his knees in pain. Although he doesn't remember exactly what occurred, he testified that he just bent down to check something on one of the racks and when he got back up, he experienced pain so intense that it brought him to his knees. He attempted to bend down to do something or observe something and when he had tried to raise up is when he felt the excruciating pain. He testified that he did not report this episode to his employer. Claimant went to Dr. Merck at the Pain Center on his own in June of 2001 and again in December of 2002. The Claimant testified that Dr. Merck put the Claimant on a 15 pound lift limit and that the employer accommodated as much as possible, but the Claimant still had to get the job done. Therefore, I find the Claimant still had to do repetitive lifting, bending and twisting. The Claimant was confused, however, as to whether or not this happened between June of 2000 and June of 2001, or whether it happened in December of 2002. The record is simply unclear as to when this event occurred. Claimant did testify that in 2003 he filled out an incident report and that his claim was denied. He sought the services of an attorney and a claim was filed in early 2004. Claimant testified and I find in accordance with his testimony that the one thing that makes his symptoms much better and makes him feel better is being away from work. The Claimant testified that in June of this year he took a seven-day vacation and that he had a great deal less pain when he wasn't working.

As was stated previously, Employee's claim for compensation can be construed to allege a specific accident, a series of accidents, or an occupational disease. The evidence demonstrates that the Claimant did have a couple of isolated events which caused particular distress and symptoms to the Claimant but the evidence also demonstrates that the Employee's constant repetitive lifting, pushing, and pulling may have contributed to or caused his alleged injury. So long as a claimant proves that he has an injury which is job related, the courts have held that it does not matter whether the cause of the injury was a single event or a progressive injury, which resulted from repeated constant exposure to on-the-job hazards. The only requirement is that the injury be job related. See Smith v Climate Engineering, 939 S.W.2d 429 (Mo.App. 1996); Kintz v. Schnucks Market, 889 S.W.2d 121 (Mo.App. 1994). I find that the evidence in