Ronald Bryant v. Color Art Printing, Inc.

I submit this concurring opinion to disclose the fact that I was previously employed as a partner in the law firm of Evans and Dixon. While I was a partner, the instant case was assigned to the law firm for defense purposes. I had no actual knowledge of this case as a partner with Evans and Dixon. However, recognizing that there may exist the appearance of impropriety because of my previous status with the law firm of Evans and Dixon, I had no involvement or participation in the decision in this case until a stalemate was reached between the other two members of the Commission. As a result, pursuant to the rule of necessity, I am compelled to participate in this case because there is no other mechanism in place to resolve the issues in the claim. Barker v. Secretary of State's Office, 752 S.W.2d 437 (Mo. App. 1988).

Having reviewed the evidence and considered the whole record, I join in and adopt the award and decision of the administrative law judge denying benefits.

William F. Ringer, Chairman

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based upon my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge is in error and should be reversed.

Employee requested a hardship hearing seeking a temporary award of medical treatment for a torn medial meniscus and temporary total disability. The administrative law judge denied all benefits in a final award after concluding that employee failed to meet his burden of proving medical causation.

In this case, employee testified about how he injured himself. He explained that he never had any acute injury to his knee before the work accident. Three witnesses at work remember the events surrounding the work accident. Employer's expert testified that the mechanism of injury described by employee could have caused the medial meniscus tear. However, because other medical records suggest that employee suffered some chronic knee problems, Dr. Haupt could not state within a reasonable degree of medical certainty, that the accident caused the tear.

As this matter was before the administrative law judge on a request for a temporary award seeking medical treatment, the standard of proof for causation was not reasonable certainty but, rather, reasonable probability.

"To obtain an award for temporary disability and medical aid, the claimant must prove the injury's cause by a reasonable probability." Loepke v. Opies Transp., 945 S.W.2d 655, 660 (Mo. App. 1997), quoting Downing v. Willamette Industries, Inc., 895 S.W.2d 650, 655 (Mo. App. 1995). Dr. Haupt's belief that the accident could have caused the medial meniscus tear combined with the evidence that employee had no acute knee injury before the work accident is sufficient to satisfy this standard.

Medical opinion testimony, as here, "which speaks in terms of likelihood rather than certainty, is admissible and probative." Dean v. St. Luke's Hosp., 936 S.W.2d 601, 605 (Mo.App. 1997). "Such testimony, particularly when combined with other credible evidence of a nonmedical character, can be enough to support an award . . . " Id.; see Miller v. Penmac Pers. Servs., Inc., 68 S.W.3d 574, 580 (Mo. App. 2002) (quoting Wright v. Sports Associated, Inc., 887 S.W.2d 596, 600 (Mo. banc 1994)) ("'Cautious or indefinite expert testimony on medical causation combined with lay testimony can provide sufficient competent evidence to support causation of injury."').

Elliott v. Ind. W. Express, 118 S.W.3d 297, 301-302 (Mo. App. 2003).

"'Probable means founded on reason and experience which inclines the mind to believe but leaves room for doubt.'" Thorsen v. Sachs Elec. Co., 52 S.W.3d 611, 620 (Mo. App. 2001) (citations omitted).

I believe employee has shown a reasonable probability that the work accident caused his medial meniscus tear. I would award medical treatment for the injury and any related temporary total disability.

For the foregoing reasons, I must dissent from the award of the majority of the Commission.

John J. Hickey, Member

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? Yes.
4. Date of accident or onset of occupational disease: on or about May 1, 2004
5. State location where accident occurred or occupational disease contracted: St. Louis County.
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? 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 happened or occupational disease contracted: Claimant on skids, but does not know on what day the accident occurred.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: N/A
14. Compensation paid to-date for temporary disability: $\ 0
15. Value necessary medical aid paid to date by employer/insurer? $\ 1,565.85
16. Value necessary medical aid not furnished by employer/insurer? $\ 0

The matter of Ronald Bryant ("Claimant") proceeded to hearing on August 30, 2005, at the Division of Workers' Compensation in the City of St. Louis to determine whether Claimant sustained a compensable accident and injury. Attorney Susan Brown represented Claimant. Attorney Jeff Proske represented Color Art Printing, Inc. ("Employer"), and its Insurer, Corporate Claims Management. Because Claimant is seeking a temporary award, the Second Injury Fund, although a party, did not participate in this hearing. Implicitly, Employer requested a final award.

Although the parties are uncertain about the exact date of the alleged injury, they agreed that on or about May 1, 2004, Claimant sustained an accidental injury. At the time Claimant earned an average weekly wage of $\ 1,084.40, which corresponds to rates of compensation of $\ 662.55 for total disability benefits and $\ 347.05 for permanent partial disability benefits. Employer paid $\ 1,565.85 in medical benefits. Employment, venue, and timeliness of the claim were not at issue.

The issues to be determined are:

1. Did Claimant provide proper notice under the Missouri Workers' Compensation law; and
2. Is Claimant's medical condition causally related to his accident?

Employer agreed that if Claimant's claim is found to be compensable, he has a right to treatment and other benefits under the workers' compensation law. This includes medical treatment to cure and relieve the effects of his injury.

Claimant is a 62-year-old gentleman who retired in December 2004 after eighteen years as a stitcher operator for Color Art Printing, Inc., in Crestwood. Claimant's most recent job was a stitcher operator. This involved the set-up, running, and caring for the stitcher machines, which were used to put books together. He ran the binding machines.

On a date in the first half of May, Claimant sustained an injury while performing his duties. Specifically, he was working the 627 stitcher, and had to walk around the machine to the other side. In the process of doing so, he stepped on some paper that was hanging off skids left too close to the end of the machine. In doing so, he slipped and while he was falling his right knee hit an iron post at the end of the 279 stitcher. The post is an iron post that is approximately 5 by 5 inches. Claimant had been having problems with skids of paper being placed too close to the end of the machine, and had previously complained and attempted unsuccessfully to remedy the situation. After he fell on this particular day, he got very aggravated, and went to the office where several supervisors are located, including Rodney, Schlumper, and Koppman. Claimant testified he raised hell for about five minutes because he was very frustrated with the problem of having the paper too close to the machine. He told Rodney he was shutting the machine down and was going to clear the space so he could perform his work properly. He told his supervisors that he had bumped his knee. However, he did not say he was hurt. N