Michael Olden v. MiTek Industries, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-173492

Employee: Michael Olden

Employer: MiTek Industries, Inc.

Insurer: Specialty Risk Services

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: September 28, 2000

Place and County of Accident: St. Louis County

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated October 19, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge John K. Ottenad, issued October 19, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 9^{\text {th }} \qquad$ day of February 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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: (allegedly) September 28, 2000
5. State location where accident occurred or occupational disease was 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? 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 occurred or occupational disease contracted: Claimant was employed as a District Sales Manager for Employer and allegedly suffered a heart attack after returning from a business trip.
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: (allegedly) Body as a Whole—Heart
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

Employee: Michael Olden

Injury No.: 00-173492

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 1,923.00
3. Weekly compensation rate: $\ 599.96 for TTD/ $\ 314.26 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable: None

1. Future requirements awarded: None

Said payments to begin immediately and to 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 any TTD benefits awarded during medical care hereunder in favor of the following attorney for necessary legal services rendered to the claimant: William K. Meehan.

On June 29, 2006, the employee, Michael Olden, appeared in person and by his attorney, Mr. William K. Meehan, for a hearing for a final award on his claim against the employer, MiTek Industries, Inc., and its insurer, Specialty Risk Services. The employer, MiTek Industries, Inc., and its insurer, Specialty Risk Services, were represented at the hearing by their attorney, Ms. Heidi Jennings. The Second Injury Fund is a party to this case and was represented at the hearing by Assistant Attorney General Gregg Johnson. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of facts and rulings of law, are set forth below as follows:

1) Michael Olden (Claimant) has alleged an accidental injury claim with a date of injury of September 28, 2000.

2) Claimant was an employee of MiTek Industries, Inc. (Employer).

3) Venue is proper in the City of St Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage of $\ 1,923.00, resulting in applicable rates of compensation of $\ 599.96 for total disability benefits and $\ 314.26 for permanent partial disability (PPD) benefits.

7) Employer has not paid any benefits to date.

1) Did Claimant sustain an accident?

2) Did the accident arise out of and in the course of employment?

3) Are Claimant's injuries and continuing complaints medically causally connected to his alleged injury at work on or about September 28, 2000?

4) Is Claimant entitled to past TTD benefits from the date of injury until the date of maximum medical improvement?

5) What is the nature and extent of Claimant's permanent partial or permanent total disability attributable to this accident?

6) What is the liability of the Second Injury Fund?

7) Is there a credit due the third party STD/LTD carrier (Hartford Life \& Accident) for payments made, if compensability is determined in favor of Claimant?

The following exhibits were admitted into evidence:

A. Medical treatment records from Missouri Baptist Medical Center

B. Certified medical treatment records from Nicholas Couchoukos, M.D.

C. Medical treatment records from Ali Mehdirad, M.D.

D. Medical treatment records from Scott Johnson, M.D.

E. Medical treatment records from St. Joseph Hospital

F. Medical treatment records from Mary Ellen Kleinhenz, M.D.

G. Medical treatment records from SSM Rehabilitation

H. Certified medical treatment records from St. John's Mercy Medical Center

I. Curriculum Vitae for Stephen Schuman, M.D.

J. Deposition of Stephen Schuman, M.D., with attachments, dated August 24, 2005

1. Deposition of Keith Mankowitz, M.D., with attachments, dated September 30, 2005
2. Letter from Ali Mehdirad, M.D. dated April 16, 2001
3. Deposition of Michael Olden taken on May 22, 2006
4. Deposition of Roxanne Olden taken on May 22, 2006
5. Certified medical treatment records from Family Medicine WestMercy Medical Group
6. Records from Metro West Fire Protection District dated September 28, 2000
7. Compilation of medical treatment records from various providers
8. Claimant's personnel records from Employer
9. Claimant's Long Term Disability records from Hartford Life \& Accident Insurance Company

Nothing presented at the time of hearing

Note: Exhibit 1 was admitted with objections contained in the record. Unless otherwise specifically noted below, the objections are overruled and the testimony fully admitted into evidence.

Based on a comprehensive review of the substantial and competent evidence, including Claimant's testimony, the expert medical opinions and depositions, the medical treatment records, and the testimony of the other witness, as well as my personal observations of Claimant and the other witness at hearing, I find:

1) Claimant is a 61-year-old individual who was last employed as a District Sales Manager for Employer. He worked for Employer from January 14, 1985 until September 28, 2000, the day of his heart attack. His job there involved a great deal of travel, since he was responsible for maintaining customer relationships and supervising other sales reps in the field in Indiana, Ohio, Missouri, Texas and Kansas. Claimant took multi-day trips at least one week out of every month. He also supervised five technicians doing development. Claimant described his job as a position of responsibility and he said there was pressure on him to maintain the accounts. He testified that he worked 110-115 hours per week. (In other records submitted at hearing, Claimant apparently reported working approximately 60 hours per week.)

2) Claimant denied any prior treatment for, or diagnosis of, heart disease. He did admit, however, going to the doctor about a year before the heart attack with similar complaints. He was having pains down the arms and into the shoulders. Claimant said the doctor told him to buy Maalox for acid reflux. Claimant said that over the course of that year, he had occasional acid reflux treatment. Claimant admitted on cross-examination that he did have chest pain for about 2 years prior to the heart attack on September 28, 2000. He said the chest pain would radiate to his arms. One month prior to the heart attack this pain was not relieved by the Maalox. Then two weeks prior to the heart attack, he was getting shortness of breath.

3) The medical records from Family Medicine West-Mercy Medical Group (Exhibit 5) show treatment Claimant had for accidents and complaints to various parts of his body prior to the heart attack. The records also contain a report of heartburn symptoms over the last several months on February 16, 1999 and a finding of elevated blood pressure on November 15, 1995.

4) Claimant testified that his last business trip for Employer lasted 2 or 3 days and involved stops in multiple locations, including Dallas, Texas, Meridian, Mississippi, and Atlanta, Georgia. He flew into each of these locations and rented cars there to get to the customers he had to meet. He was carrying a soft briefcase with a laptop in it that weighed about 45 pounds and a hanging bag with his clothes. All total he estimated the bags weighed 60 pounds. He testified that during this trip he experienced crushing pains in his chest and a little nausea. He got some Maalox that helped temporarily. He also described chest pain with exertion such as walking to and from the rental car and the gate at the terminal. Claimant said that his schedule included 4 calls in Texas, and one major client in Meridian.

5) When he was asked whether there was anything extraordinary or unusually stressful about this trip as compared to his other business trips, Claimant responded his friend had been fired and he was taking over these new markets from his friend. He was meeting new clients and making calls on these clients with whom he had not done business in the past.

6) On his flight back to St. Louis on September 28, 2000, Claimant said he felt very ill. He described pain in his chest and a burning sensation in his heart. He said he vomited in the airport and at home. Despite the complaints he said he was having, he drove by St. John's Hospital on his way home from the airport, but did not stop there. He said that he did stop at a drug store to get more Maalox. He said he took a shower which relaxed him considerably and then laid down and tried to go to sleep. He said he slept for about an hour but then was unable to sleep through the night. At about 9:00 p.m., Claimant told his wife to call 911 because the pain had become very severe and he also had pain shooting down his arms and legs.

7) Claimant's wife, Roxanne Olden, also testified at the hearing that her husband worked a lot, and traveled at least one week out of every mo