Nancy Clayton v. Langco Tool and Plastics, Inc.

accident and medical causation.

"The fundamental purpose of the Workers' Compensation Law is to place upon industry the losses sustained by employees resulting from injuries arising out of and in the course of employment. The law is to be broadly and liberally interpreted, extending its benefits to the largest possible class. Questions as to the right of an employee to compensation are resolved in favor of the employee." Cochran v. Industrial Fuels \& Resources, Inc., 995 S.W.2d 489, 492 (Mo.App. S.D. 1999).

Competent and substantial evidence supports a finding that employee suffered an injury on October 26, 1999. However, the administrative law judge found that employee did not have a work related accident on that day. There is no dispute that employee reported this injury to her supervisor and was instructed to complete an incident report. However, there is conflict over the contents of the Report of Injury, more specifically the reference to the "mat" as the cause of employee's injury. Employee testified that she mentioned the mat as a source of discomfort, but reported a pop in her back after bending down to pick up a crate as the cause of her injury. The pop in employee's back was not noted in the Report of Injury; however, the report was prepared and signed by employee's manager, not employee. Employee was never given the opportunity to review the Report of Injury or verify its contents for accuracy. It is important to note that employee testified that she completed a handwritten account of the injury but this was never admitted into evidence.

The administrative law judge found employee lacked credibility due to the fact that employee gave varying accounts of her injury to her initial treating physicians. The exact detail in employee's medical histories did vary, but this does not necessarily make employee not credible. A variation in some detail would be expected, especially considering employee's medical histories were taken over the course of several years and by different physicians. The medical histories show that whether or not employee made specific reference to the pop in her back, she did divulge the aspects of her job that were the source of her back injury, whether it was lifting, twisting, and turning or reaching repetitively forward and upward. She also consistently reported an onset of symptoms that occurred following the October 1999 injury.

The fact that employee did not report low back pain that radiated across her hips and down her left leg prior to her October 1999 work injury, shows that the condition did not predate the work injury. Therefore, the administrative law judge's suggestion that employee's injury could have been caused by an auto accident at age 16 is not plausible. The administrative law judge further cites a strain in employee's back while deer hunting as a potential source of injury. However, Dr. Varna's records of November 26, 2001 state that employee may have strained her back while deer hunting, but no specific trauma was noted. At this point, employee was already diagnosed with the herniated disc at L3-4 and recommended surgery. Therefore, any subsequent strain was not the cause of employee's back injury. Employee was suffering from an ongoing condition that could have been aggravated by other activities. This does not negate, but if anything reinforces the fact that she already had an established back condition.

The administrative law judge found that employee's back condition was not medically causally related to the alleged accident. However, employee has established through the testimony of Dr. Palen that the work injury sustained on October 26, 1999, was the substantial factor in the cause of employee's back injury. Dr. Palen's testimony was persuasive as he gave a thorough and reasonable explanation for the expert medical opinion he rendered. Dr. Palen based his opinion on employee's medical history and his examinations of employee. Most significantly, an MRI taken after the October 1999 injury showed a herniated disc at L3-4 and surgery was recommended by Dr. Ritter. Dr. Palen agreed with this assessment and the need for further treatment, specifically the surgery recommended by Dr. Ritter. Employee's medical record does not contain any evidence of a herniated disc prior to October 26, 1999. This reinforces claimant's credibility along with the fact that prior to the October 26, 1999 work injury, employee never complained of symptoms identical to those reported immediately following her work injury, but did so consistently thereafter.

Therefore, employee has met her burden by establishing that she suffered a work-related injury on October 26, 1999 and that her back condition is medically causally related to the work-related injury. Accordingly, I would reverse the decision of the administrative law judge and award compensation.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission to deny

Employee: Nancy Clayton

Injury No. 99-139203

Employer: Langco Tool and Plastics Inc.

Additional Party: N/A

Insurer: Fremont Insurance Co./ Missouri Insurance Guaranty Association

Hearing Date: December 5, 2005

Checked by: LK/kh

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? No.
4. Date of accident or onset of occupational disease? N/A
5. State location where accident occurred or occupational disease contracted: N/A
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? No.
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: N/A.
12. Did accident or occupational disease cause death? No.
13. Parts of body injured by accident or occupational disease: N/A.
14. Nature and extent of any permanent disability: N/A.
15. Compensation paid to date for temporary total disability: $\ 3,480.53.
16. Value necessary medical aid paid to date by employer-insurer? $\ 4,118.91
17. Value necessary medical aid not furnished by employer-insurer? N/A.
18. Employee's average weekly wage: $\ 259.19

1. Weekly compensation rate: $\ 172.79.
2. Method wages computation: By agreement.
3. Amount of compensation payable: N/A

TOTAL: $\ 0.00

Second Injury Fund liability: Future requirements awarded: N/A.

Said payments to begin (see findings) and be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: N/A.

On December 5, 2005, the employee, Nancy Clayton, appeared in person and by her attorney, Steve Taylor for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Julie Petraborg. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a summary of the evidence and the findings of fact and rulings of law, are set forth below as follows:

1. On or about October 26, 1999, Langco Tool and Plastics, Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was fully insured by Fremont Insurance Company/Missouri Insurance Guaranty Association.
2. On or about October 26, 1999, Nancy Clayton was an employee of Langco Tool and Plastics, Inc. and was working under the Workers' Compensation Act.
3. The employer had notice of the employee's alleged accident.
4. The employee's claim was filed within the time allowed by law.
5. The average weekly wage was $\ 259.19. The rate of compensation is $\ 172.79.
6. The employer-insurer has paid a total of $\ 4,118.91 in medical aid.
7. The employer-insurer has paid a total of $\ 3,480.53 in temporary total disability payments representing $201 / 7$ weeks of compensation. The time period covered was October 26, 1999 though March 14, 2000.

1. Accident
2. Medical Causation
3. Claim for previously incurred medical including Medicaid lien
4. Claim for additional or future medical aid
5. Nature and extent of permanent partial disability

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Medical records

B. Dr. Campbell's medical records

C. The 2003 deposition of Dr. Palen

D. The 2005 deposition of Dr. Palen

Employer-insurer's Exhibits

1. Letter from Dr. Ritter dated January 10, 2000 with correspondence from adjuster
2. Medical records of Dr. Campbell
3. Correspondence from Missouri Southern Healthcare dated December 16, 2005
4. Medical records of Missouri Southern Healthcare
5. Medical records of Kneibert Clinic
6. Medical records of Dr. Varma
7. Deposition of Dr. Lange
8. Medicaid Lien dated November 4, 2005

Judicial notice of the report of injury was taken.

WITNESSES: Nancy Clayton (Employee)

BRIEFS: The employer-insurer filed its brief on January 19, 2006. The employee filed her brief on January 20, 2006.

When the employee was 16 year old, she was involved in a car accident and injured her low back.

The employee's testimony concerning the alleged accident was as follows: She worked for the employer for 6 months on several different machines including a leveling foot machine and a door scuff machine. The leveling foot machine job included lifting 80 pound crates of bolts onto a table two or three times a day. The job required bending, twisting, and stooping. Part of the job entailed putting bolt in slots, which required reaching overhead. She had to stand on crates t