John Blackburn v. J & J Steel, Inc.

The administrative law judge found that employee failed to prove that his work accident of July 30, 2002, resulted in the injury to his cervical spine for which he had two surgeries and for which he still has complaints. However, competent and substantial evidence shows that employee did suffer a cervical spine injury on that date and that his subsequent surgeries and continuing disability are a direct result of that injury.

By clearly overstepping the bounds of her authority, the administrative law judge found employee's testimony that the bar struck him in the neck and then the back incredible. This was in part based on her belief that employee was well aware of the anatomy and correct medical terminology of the human back due to a previous back injury in 1989.

In Wright v. Sports Associated, Inc., 1994 Mo. App. LEXIS 79 (Mo.App. 1994), the Court of Appeals for the Western District held that administrative law judge did not have the authority to substitute her opinion on a matter beyond the common understanding. Similar to the instant case, employee in Wright suffered an injury to his lower cervical spine. Id. at *3. The administrative law judge attempted to rely on the "well-known proposition that an individual who suffers a herniated disc in his neck as a result of a traumatic event will have some immediate, noticeable symptoms and that the symptoms will be in the area of the body consistent with a herniated disc in the neck, i.e., in the upper extremities or the neck area." Id. at *8. The administrative law judge believed that the determination of the cause of the employee's injury was within the understanding of the lay person, and therefore that expert medical testimony was not required. Id. at *10. The court disagreed. "The question of whether the symptoms related by [employee] were necessarily inconsistent with the diagnosis of a herniated disc is not a matter of common understanding among lay persons." Id. at *14.

Such is the situation here where the administrative law judge overstepped her bounds and used her own opinion that employee's cervical spine injury could not have been caused by the accident because employee consistently referred to the accident as the result of the pry bar striking him in the upper back or thoracic back. Clearly, the determination of whether employee's description of where the bar struck him and whether or not it could have caused his cervical spine injury is only for a medical expert to determine. As such, it is inconceivable that the administrative law judge would make a credibility determination from the same information. As a lay person, she is not qualified to determine whether employee's cervical spine injury was caused by the pry bar striking employee's upper back. Hence it is axiomatic that she is also unqualified to determine whether employee is credible or not based on those same statements.

Furthermore, employee should not be discredited for not knowing the exact spot the pry bar struck him on his back. Employee is a layman construction worker with no special medical knowledge. It is not surprising that he could not positively identify whether the pry bar struck him between his lower cervical spine and upper thoracic spine, areas of the spine which are within a few inches of one another in an area of his body that he cannot see.

I also find employer's handling of the situation suspicious and indicative that it was aware employee needed medical treatment. Immediately after the grizzly bar fell on employee's upper back a Supervisor's Report of Injury was completed. That report clearly stated that the bar struck employee's upper back between the shoulder blades. Employee declined medical treatment at the time of the accident, but sought medical treatment from the emergency room the next day. During the emergency room visit, employee complained of upper back pain. On August 30, 2002, employer laid-off employee. Employer never approved medical treatment for employee. Suspiciously, for some unbeknownst reason, employer did not file a report of injury until November of 2002, nearly four months after employee's work accident and three months after it laid him off.

It is undisputed that the grizzly bar struck employee in his back. The symptoms produced as a result of accident, primarily intense pain, prevented employee from performing his job duties which he had performed prior to his injury. Employee never sought treatment for neck problems prior to his injury. After his injury and unfortunate layoff, employee sought care from multiple physicians for his cervical injury at his own expense. This revealed that he had a disk protrusion at C6-7 and a bulging disk at C5-6. Subsequently, employee had two surgeries in an attempt to correct this problem. However, employee is still in a great deal of pain and unable to perform any work.

Employee was asymptomatic prior to his work injury on July 30, 2002. Dr. Koprivica testified that he believed employee's work incident on July 30, 2002, was a substantial factor in causing his cervical condition. Dr.

Koprivica, along with Dr. Koenig, found that employee was permanently and totally disabled.

Therefore, I would find that employee has met his burden by establishing that he suffered a work-related injury on July 30, 2002, and that his cervical 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

Employee: John Blackburn

Injury No. 02-114293

Dependents:

Before the

DO

DIVISION OF WORKERS'

COMPENSATION

Employer: J \& J Steel, Inc.

Department of Labor and Industrial

Relationship of Missouri

Jefferson City, Missouri

Industrial Party: Second Injury Fund

Insurer: Liberty Insurance Company

Hearing Date: September 20, 2006

Checked by: HDF/cs

1. Are any benefits awarded herein? No. Claimant failed to prove that the accident and injury of 7/30/2002 resulted in the injury to his cervical spine, a work-related injury.
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. Yes.
4. Date of accident or onset of occupational disease: June 30, 2002.
5. State location where accident occurred or occupational disease was contracted: Jefferson City, 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.
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 occurred or occupational disease contracted: (See award.)
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: Thoracic and cervical spine.

1. Nature and extent of any permanent disability:
2. Compensation paid to-date for temporary disability: None.
3. Value necessary medical aid paid to date by employer/insurer? Some.
4. Value necessary medical aid not furnished by employer/insurer?
5. Employee's average weekly wages:
6. Weekly compensation rate: $\ 649.32 ptd, ttd; $\ 340.12 ppd.
7. Method wages computation: By agreement.

1. Amount of compensation payable: None.
2. Second Injury Fund liability: No.

TOTAL:

1. Future requirements awarded: None.

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on September 20, 2006. Memoranda were due by October 6, 2006.

The parties stipulated that on or about the 30th day of July, 2002, the claimant was in the employment of J & J Steel, Inc.; the claimant sustained an injury by accident; the accident arose out of and in the scope of employment; the employer was operating under the provisions of the Missouri workers' compensation law; the employer's liability was insured by Liberty Insurance Company; the employer had notice of the injury and a claim for compensation was filed within the time prescribed by law; the rate of compensation on the date of accident was 649.32 per week for temporary total and permanent total disability benefits, 340.12 per week for permanent partial disability benefits; no temporary disability benefits have been paid to the claimant to date; some medical aid has been provided.

The issues to be resolved by hearing include 1) the causation of the injury alleged, 2) the liability of the employer/insurer for past and future medical treatment, 3) the liability of the employer/insurer for past temporary total disability benefits, 4) the liability of the Second Injury fund, and 5) the nature and extent of permanent disability.

The claimant, John Mark Blackburn, testified that on July 30, 2002, while working for J & J Steel, Inc., he was lying down on his chest and stomach on the ground assisting in the placement of concrete panels when a pry bar fell on him striking him in the neck and then the back. Mr. Blackburn filled out a report of injury shortly after the accident describing the injury as being to his "upper back" and stating that "grizzle bar hit between shoulder blades." Mr. Inghram, Mr. Blackburn's supervisor, noted on the report that a similar accident could be prevented by no longer propping pry bars on the panels.

The following day Mr. Blackburn went to the emergency room at St. Mary's Hospital. The "triage" note reflects that Mr. Blackburn "states injured self at work yesterday when steel bar hit T-spine." There is further mention of the July 30, 2