Terry Penberthy v. United Parcel Service

Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed. I believe the administrative law judge erred in concluding that employee failed to meet the burden of proof on the issues of accident and medical causation.

The administrative law judge called employee's credibility into question because he believed that employee gave incomplete medical histories to health care providers and provided less than complete testimony at hearing. However, claimant's testimony at hearing was consistent with the initial report he gave employer which was documented in the Report of Injury. Employee consistently reported symptomology, including severe back pain that radiated down through his left buttock and into his left leg. Employee's account of the work-related injury on September 4, 2003 was unwavering. For this reason, I find employee to be credible and worthy of belief.

Employee has the burden of proving all the essential elements of a claim for workers' compensation benefits by reasonable probability, not absolute certainty. McDermott v. City of Northwoods Police Dep't, 103 S.W.3d 134, 138 (Mo. App. E.D. 2002). Employee must prove not only that the accident arose out of and in the course of his employment, but that the alleged injury was directly caused by the accident. Landers v. Chrysler Corp., 963 S.W.2d 275, 279 (Mo. App. E.D. 1997) (overruled on other grounds).

The administrative law judge found that employee failed to prove that he suffered an accident on September 4, 2003. However, competent and substantial evidence shows that employee did suffer an accident, as on that day, an unforeseen identifiable event produced objective symptoms of an injury. The specific event that was the cause of employee's injury was the moving of a dolly. The objective symptoms produced as a result of his injury included an onset of pain that radiated into his left buttock and down his left leg. Employee promptly reported his injury to employer which resulted in the completion of a Report of Injury. The Report of Injury clearly stated that the employee's injury occurred while he was pulling and lifting a dolly to align it to a trailer. Employee testified that working with such equipment was part of his regular job duties for employer.

A pre-existing but non-disabling condition does not bar recovery of compensation if a job-related injury caused the condition to escalate to the level of disability. Avery v. City of Columbia, 966 S.W.2d 315, 322 (Mo. App. W.D. 1998) (overruled on other grounds). Therefore, aggravation of a pre-existing condition is a compensable injury if employee establishes a direct causal link between his job duties and the aggravated condition. Smith v. Climate Engineering, 939 S.W.2d 429, 433-34 (Mo. App. E.D. 1996) (overruled on other grounds). Employee may do so by showing that the performance of his usual and customary duties lead to a physical breakdown or change in pathology. Bennett v. Columbia Health Care, 80 S.W.3d 524, 529 (Mo. App. W.D. 2002) (overruled on other grounds); Smith, 939 S.W.2d at 436.

The administrative law judge found that employee did not prove his injury was clearly work related and therefore was not compensable. However, employee's injury arose out of and in the course of his employment. Employee was required to move equipment with the use of a dolly as a part of his regular job duties. Therefore, employee's injury resulted when he was in the course of performing his usual and customary work duties. As a result of his injury, employee experienced a change in his condition. Employee began to report a significantly higher level of pain immediately following his injury on September 4, 2003.

In addition to the physical breakdown evidenced by the record, a change in pathology was established by the contrast in the MRIs taken on August 22, 2003 and September 8, 2003, as noted by both Dr. Kitchens and Dr. Hanaway. An MRI of employee's back performed on August 22, 2003 showed a herniated disc at the L4-L5 level. Dr. Kitchens opined that the MRI performed on August 22, 2003 showed a smaller herniation than the MRI performed after the accident on September 8, 2003. Dr. Hanaway concurred, stating that the September 8, 2003 MRI showed a more prominent herniation. In addition, employee was recommended back surgery which had never been recommended prior to his injury.

If substantial evidence exists that employee's pre-existing condition did not impede his work performance, then sufficient competent evidence would warrant a finding that the disability was caused by the aggravation of a preexisting condition, Messex v. Sachs Elec. Co., 989 S.W.2d 206, 214-15 (Mo. App. E.D. 1999), and that the preexisting condition was not disabling. Furthermore, disability sustained by the aggravation of a pre-existing nondisabling condition caused by a work-related accident is compensable even though the accident would not have caused the injury in a person without the condition. Kelley v. Banta \& Stude Constr. Co., 1 S.W.3d 43, 48 (Mo.

The record shows that employee had a history of back related problems, most notably, a herniated disc at the L4L5 level and pain that radiated through his left lower extremity. However, employee's work-related injury clearly caused his established back condition to worsen. Employee's pain level increased considerably after his injury which prevented him from performing the job duties that he had been able to perform without difficulty prior to his injury. Not only was employee unable to perform his regular job duties after his injury, but he was unable to perform duties even when restricted to a light level of work. In addition, prior to his work-related injury on September 4, 2003, employee's condition was not severe enough to require surgery. It was only after his workrelated injury that back surgery was medically necessary. Although employee was not asymptomatic prior to his injury, he was able to perform his regular job duties up and until his injury on September 4, 2003. This supports a finding that employee's pre-existing condition was neither disabling nor an impediment to his performance. Competent and substantial evidence supports the fact that employee was suffering from a pre-existing nondisabling condition that was aggravated by his September 4, 2003 work injury.

Therefore, employee has met his burden by establishing that he suffered a work-related injury on September 4, 2003 and that his 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 compensation.

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? No
4. Date of alleged accident or onset of occupational disease: September 4, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis County, MO
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

1. Did accident or occupational disease arise out of and in the course of the employment? No
2. Was claim for compensation filed within time required by Law? Yes
3. Was employer insured by above insurer? Yes
4. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee alleges a low back injury after using a dolly to align a converter with a double tractor-trailer.
5. Did accident or occupational disease cause death? No
6. Part(s) of body injured by accident or occupational disease: Alleged as lumbar spine
7. Nature and extent of any permanent disability: None
8. Compensation paid to-date for temporary disability: None
9. Value necessary medical aid paid to date by employer/insurer? $\ 2,459.71

Employee: Terry Penberthy

Injury No.: 03-090656

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 984.20
3. Weekly compensation rate: $\$ 656.13 / \ 347.05
4. Method wages computation: Stipulated

1. Amount of compensation payable: None
2. Second Injury Fund liability: None

A hearing was held regarding the above referenced Workers’ Compensation claim by the undersigned Administrative Law Judge on December 9, 2005. Attorney Harry J. Nichols represented Terry Penberthy (Claimant). United Parcel Service, (Employer) was insured by Liberty Mutual Fire Insurance Company, and represented by Attorney Maureen L. Cary. At the conclusion of testimony the record remained open until December 16, 2005, to allow Claimant to produce itemized medical bills from Cardinal Neurosurgery \& Spine, Inc., (Dr. Kitchens) and Missouri Baptist Medical Center, and to allow Employer’s response (Exhibit G). The case was formally submitted on January 9, 2006. Hearing venue is correct, and jurisdiction properly lies with the Missouri Division of Workers’ Compensation.

Prior to the start of the hearing the parties identified the followin