This forty-eight year old claimant worked as a warehouse worker for twenty years. He previously worked for National Foods for fifteen years before his employer laid him off in 1995. In November 1995, this employer hired him as a warehouse worker where he worked until July 1998. He stopped working in July 1998 allegedly due to the effects of heat exhaustion. His warehouse duties with the employer primarily involved shipping and
receiving, wherein he would operate an "order picker" in the warehouse to retrieve merchandise. This employer hired him as a "warehouseman" and promoted him to "lead associate" in December 1997, which involved the same job duties in addition to supervision of several employees. The claimant testified that his job duties involved a lot of walking and standing, along with lifting, stooping, reaching and crouching. He described the warehouse as "hot", though the temperature would vary. He described his general work atmosphere as stressful with lots of daily pressure and deadlines.
More specifically, the claimant described his job duties of "filling orders" and "replenishment". When filling orders, he would review a purchase order/invoice. He would then determine the quantity and location of the item so it could be retrieved in the warehouse and prepared for shipment. When handling replenishment, he would restock items in the warehouse so that the "pickers" could continue to fill orders. He testified that replenishment was heavier work and that he would often work up high on his "order picker" near the ceiling, where it was hotter. He testified that he performed replenishment activities over the last few weeks of his employment in July 1998. He testified that he worked longer hours during his last weeks of employment due to a shortage of workers.
The physical demands for the claimant's position required that in an eight hour day, an employee stands for eight hours, walks for five hours, lifts 51 to 100 pounds frequently ( 34-66 % of the time), lifts over 100 pounds occasionally ( 0 33 % of the time), climbs occasionally ( 0-33 % of the time) and stoops and crouches frequently ( 34-66 % of the time). See Exhibit S. An employee also frequently reaches above shoulder height. See Exhibit S. The position description involves "Heavy work: Lifting 100 lbs. maximum with frequent lifting and/or carrying of objects weighing up to 50 lbs." See Exhibit S. The position also requires: "Verying (sic) temperature in workplace" and "Continuous activity - cannot leave work area during working hours, except assigned breaks." See Exhibit S. The specific duties require that an employee "must routinely be able to lift, pull, press, bend, twist and carry up to 60 lbs." In addition, he "must be able to perform strenuous work in varying temperature conditions." See Exhibit S.
The claimant received two fifteen minute breaks and a forty-five minute lunch with no further breaks during overtime. There were no work/rest cycles and no instructions on how to work in hot conditions, but the claimant knew that he had to keep hydrated.
The warehouse is a large cinder block building with an aluminum roof and two small exhaust fans in the 30 feet high ceiling. The warehouse was not air-conditioned. There were both a receiving and a separate shipping dock. The claimant testified that conditions on the dates of his injury were like an oven and that it was hotter inside the building than outside. He testified that another employee brought a thermometer to work the previous year but was told to remove it or he would be fired. On that date, the temperature in the building was eight degrees hotter than the outside temperature.
The maximum temperatures during the period July 6 through July 9, 1998 were in excess of 90 degrees. On July 9, 1998 the temperature at 3:00 p.m. was 90 degrees and at midnight the outside temperature was still 81 degrees and the humidity had risen significantly over the claimant's shift. See Exhibit Q.
On the last date he was able to work, claimant was working on replenishment, which is heavier labor than order picking. He used an order picker, which is a large machine with forks to hold wooden pallets. He would stand on a platform, which would go up 25 feet. He spent 70-75 % of the time on the order picker. It was hotter closer to the roof. The outside temperature had been ninety degrees or above every day on the week of July 6, 1998.
In the four days during the week of his injury, the claimant worked 50 to 55 hours. He worked from 3:00 p.m. until the work was complete for the day. The employer was short workers, and the claimant worked overtime most of the time. One day during the week of the injury, he was still at work when the sun came up. For the twoweek period ending on July 10, 1998, he worked 80 regular hours and 9.25 overtime hours. See Exhibit W. He also received 8 hours of paid holiday for July 4 when he did not work. He was not able to work on July 10 at his 3:00 p.m. shift. Therefore, he worked 89.25 hours in eight days. This period of long hours in high heat made this week different than others.
On the date he last worked, the shift supervisor, Mike Pope, was on vacation. The claimant and two other
lead associates ran the shift but were short on crew.
The claimant began feeling ill on the evening of July 9, 1998. He continued working until about 1:00 or 1:30 a.m. on July 10, 1998. At that time, he felt hot, had a headache, stomach pain, blurred vision, lightheadedness, trouble concentrating. He was sweating profusely and threw up in the rest room. He feared he would faint or that something serious was happening to him. He had never felt anything like that before.
There were a couple of hours of work left to do but he paged the other two lead associates and told them that he was overheated and sick and that he had to leave. He sat in his air-conditioned car for about fifteen minutes feeling disoriented and lost. He wondered what was happening and if he could make it the short distance to his home. Eventually, he drove home, took off his wet clothes and took a cold cloth to his face and arms. He went to bed and basically stayed there through the weekend except to use the bathroom. He had diarrhea and abdominal pain on Saturday. He called in sick Friday, July 10 and Monday, July 13. He reported that he had overheated at work the previous week and he felt terrible when he called in sick on Monday.
On Tuesday, July 14, 1998, the claimant returned to work and worked for fifteen or twenty minutes. He told his supervisor, Mike Pope, that that he had overheated at work and that he was still sick from July 9-10. Mike Pope told him to go to a doctor immediately but did not tell him to go to a particular doctor.
On July 14, 1998, the claimant went to Dr. Allen at MedFirst and reported a headache, nausea, feeling lightheaded, dizzy, difficulty focusing, abdominal pain, tiredness and weakness, confusion and trouble thinking. She prescribed rest and some blood tests.
On July 20, 1998, the claimant went to Dr. Eidelman, who reported, "He works under a lot of heat and warm environment, no ventilation and right now the weather is about 100 degrees. He came here four days ago and Dr. Allen saw him. She thought he had heat exhaustion, which I agree with her." See Exhibit B. Dr. Eidelman ordered a barium contract enema to rule out diverticulitis at Missouri Baptist Hospital, which was negative. See Exhibit B. A blood test indicated an exposure to Epstein Barr virus but it was not active. See Exhibit B.
The claimant went to a hematologist (Dr. Alves) and a neurologist (Dr. Friesenhahn), and underwent additional blood tests, a spinal tap and an MRI, which were essentially normal. Dr. Alves first discussed with claimant that he thought that his symptoms might be caused by depression manifesting itself with somatic symptoms at his consultation on August 21, 1998. See Exhibit B.
Dr. Hicks examined the claimant on September 3, 1998, and the claimant has continued to receive treatment from Dr. Hicks for more than seven years. He continued to see Dr. Hicks and paid for the visits because he felt Dr. Hicks was helping him. He now sees Dr. Hicks through Medicare.
The claimant notified his employer that he was diagnosed with heat exhaustion occurring at work. The claimant continued to notify the employer of his medical treatment, but he stopped when his employer discharged him from employment.
The claimant currently takes Lexapro, Trileptal and Lamictal for his symptoms. The claimant testified that he suffers from depression, short and long term memory problems, headaches, nausea, chronic diarrhea, sleep problems, confusion, low energy, lack of motivation and sweating. He testified that he is nervous and anxious.
The claimant applied for and received both short and long term disability from the Hartford Insurance Company. In the process of applying for disability benefits, he dealt with the employer's human resources department. The Hartford terminated the claimant's disability payments in 2000 because his Social Security disability payments were greater than his Hartford payments. At the time of his injury, the claimant had 112 hours of unused vacation.
The claimant's day now consists of trying to get motivated to get up, coffee, news, medication, feeding the cat if he can remember to, trying to plan the days activity, lunch, probably 2 to 3 hours of chores over a day and then it is time for dinner. Overall, his days just seem to slip by without him being able to accomplish much at all. It
takes a couple of days to cut the grass because he gets hot. The claimant no longer feels like doing anything that he used to enjoy like golf, biking, camping, sporting events, fishing, floating, movies or dinner. He played golf once since the injury but got overheated and had to stop. He can read, write, do basic math, do laundry, cook, clean and does about eighty percent of his own shopping. Most of his friends have moved on. If he could he would most definitely return to work.
The claimant now has occasional difficulty lifting and has back pain in cold weather. He testified that these problems did not affect his work; he worked through the pain in his foot or back. The employer presented no evidence of a poor attendance record. The claimant did not recall ever calling in sick to this employer because of his foot or back. He had no medically imposed lifting restrictions for this employer. He has no braces and has not worn a back belt since he last worked. No surgery was ever recommended for his back. He had never had heat exhaustion before 1998.
The claimant applied for a promotion with this employer in spring 1998, but the employer selected anther applicant for the position. He testified that was told that he was not selected for the position because he would hold employees to too high a standard. The claimant was disappointed that he did not receive the promotion. He does not recall discussing it with Dr. Hicks, but he recalls that he realized that he should begin to look for another job with more potential when things slowed down at work.
The claimant incurred past medical bills in the sum of $\ 14,859.90 that he related to the occurrence. Dr. Hicks testified that these expenses were necessarily incurred as a result of his injury and reasonable in amount. The claimant paid for some of the medication and some of the medical bills out of his pocket. Medicare now pays part of Dr. Hicks' treatment and Dr. Hicks provides samples of medication. He also testified that the claimant needed future medical treatment and to be followed by a psychiatrist and receive daily medication.
Dr. Smith examined the claimant on June 2, 2005, and Dr. Hogan examined the claimant on June 15, 2005. The claimant served a deposition subpoenas on the employer's Custodian of Personnel and Payroll records. The employer's human resources director, Nancy Puzniak, received the subpoena and contacted the legal department for instructions. At their request, she copied the personnel, workers' compensation, disability and medical files and forwarded them to the legal department in Colorado. The legal department forwarded some records to the attorneys for the parties. The employer's human resources director testified that not all of the documents that she sent to the legal department were included in the material sent to the attorneys and that some things were obviously missing that should have been there. She was instructed not to attend the deposition. The claimant's attorney did not cancel the deposition and made a record that no one attended on behalf of the employer.
Dr. Hicks
Dr. Hicks, board certified psychiatrist, first examined the claimant on September 3, 1998, after a referral from Dr. Allen and took a medical history as follows: The claimant had been having difficulty since going home from work in mid July with heat exhaustion. He had been working long hours in a warehouse with no air conditioning and poor ventilation when he became ill. He complained of sleep disturbance, nausea, weight loss, fatigue, poor motivation and interest, problems with concentration and memory, headaches and poor visual acuity. He reported that he had been hospitalized in 1984 for emotional disturbance associated with his divorce and had taken medication for a few weeks thereafter. Otherwise, he reported that he was in general good health and had a stable work history. He had worked as a warehouseman for twenty years, the last two and one-half at his current job. Other specialists evaluated the claimant with a lumbar puncture and MRI without significant pathology. He acknowledged that he had trouble tolerating heat in previous work efforts. He reported that the summer work hours had been longer in the intense heat. See Dr. Hicks' deposition, pages 11, 12. Dr. Hicks diagnosed:
Axis I: adjustment disorder, recent work stress, major depression, single episode, moderate, possible post-traumatic stress disorder;
Axis II: obsessive-compulsive personality disoder;
Axis III: heat exhaustion;
Axis IV: struggle with disability from work; and
Axis V: global assessment of function of 50 with the highest level in the past year of 75. See Exhibit E-1.
On September 24, 1998, Dr. Hicks noted that the claimant still had heat symptoms with sudden sweatiness, headaches and lightheadedness. Dr. Hicks continued to treat the claimant through May 20, 2005. The claimant's symptoms remained the same, and Dr. Hicks' diagnosis continued to be heat exhaustion, major depression, single episode, and post-traumatic stress disorder throughout his treatment. He testified that the claimant still has sudden sweatiness, headache and light-headedness. Dr. Hicks testified that this was a psychological condition that triggers a physiological response and the reason he has the diagnosis of post-traumatic stress disorder. Dr. Hicks prescribed numerous medications, outpatient program services and ECT (electroconvulsive shock therapy). The claimant did not wish to undergo the ECT, and the medications did not prove very effective.
Dr. Hicks diagnosed major depression with symptoms of depressed mood, markedly diminished interest in formerly pleasurable activities, feelings of worthlessness, diminished ability to concentrate and recurrent thoughts of heat and being exposed to heat. On March 26, 2004, Dr. Hicks' assessment of the claimant's condition included:
Axis I adjustment disorder with work stress, dysthymic disorder with atypical features, major depression, single episode, moderate, possible posttraumatic stress disorder,
Axis II obsessive/compulsive personality disorder,
Axis III heat exhaustion,
Axis IV moderate disabled and financial problems, and
Axis V GAF of 50. See Exhibit E-6.
He opined that the claimant had disabling limitations with intermittent fatigue, physical distress, inability to engage in vocational rehabilitation, and that the work conditions were a substantial factor in the cause of his medical condition and resulting permanent total disability. He also opined that the claimant's prognosis for significant recovery was very poor. He gave a global assessment of function at 50/50 (range 0 to 100).
Dr. Hicks opined that the work conditions on July 9 and 10, 1998, were a substantial factor causing the claimant's heat exhaustion and that the heat exhaustion was a substantial factor causing the major depression, single episode, and posttraumatic stress disorder. Dr. Hicks considered other stressors in the claimant's life but that did not change his opinions. In addition, he testified that the claimant was unable to work since July 10, 1998, and that he was permanently and totally disabled. See Dr. Hicks' deposition, page 51. Further, he testified that he did not believe that the claimant was being deceptive in his presentation and that the physical and psychological limitations were the result of the heat exhaustion at work. See Dr. Hicks' deposition, page 109-111. The claimant is limited by intermittent fatigue and physical distress and the inability to engage in vocational rehabilitation. Dr. Hicks testified that he has "actually been somewhat of an advocate for him for both the short term disability and the workers' comp case." See Dr. Hicks' deposition, page 98.