Ricky Tharp v. Pepsi Bottling Group Inc.

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. We have reviewed the evidence, read the briefs of the parties, heard oral arguments and considered the whole record. Pursuant to section 286.090 RSMo, the Commission reverses the temporary award and decision of the administrative law judge dated January 25, 2007, and in lieu thereof the Commission issues its final award. The temporary award and decision of Administrative Law Judge Karen Fisher, is attached hereto solely for reference.

The dispositive issue is whether or not the employee sustained an injury due to an accident arising out of and in the course of employment. Section 287.120.1 RSMo. The administrative law judge concluded that the employee sustained an injury due to an accident arising out of and in the course of his employment. The Commission disagrees with this conclusion and reverses the award. I. Factual Summary A. Witnesses for Employee

1. Employee, Ricky Tharp

Employee began working for employer as a loader in November, 2004; employee's job required him to operate a forklift, retrieve various soft drink products, and load the products on trucks; the product was located on pallets approximately six feet in height, and two pallets high.

On April 15, 2005, employee was working with a co-employee, Bruce Morgan, another loader; employee was using a forklift loading apple juice; employee recalls parking the forklift in the warehouse near the stacks of apple juice, then getting off the forklift and grabbing the apple juice with his hands, but cannot recall any subsequent event; employee's next memory is coming to, either in the warehouse or in the ambulance; employee does not know what occurred on April 15, 2005, as he has no knowledge of how he got on the floor, how the product got on the floor, whether he hit anything, whether anything fell on him, and there were no witnesses to the event.

On direct examination employee admitted he had a history of suffering migraine headaches beginning at age 17 or 18; the migraines would occur once or twice a year on average and were of such significance that he could not tolerate light or sound and at times had to "hole up in a room"; sometimes the migraines were of such severity that he sought medical treatment; prior to April 15, 2005, employee had blacked out on numerous occasions over the years but always associated the blackouts with his migraines.

Employee recalled two occasions when he passed out without suffering a migraine; in 1995, employee was struck in the head with a cheater bar and was knocked unconscious; medical records indicated he was found unconscious on the floor; employee was taken to a hospital and eventually a cyst was removed from his skull.

Employee was involved in a motor vehicle accident in 1997; he was knocked unconscious; he was treated at a hospital and the medical records from the hospitalization reveal employee had a seizure while he was there.

In the year 2005, prior to April 15, 2005, employee consulted a family physician, Dr. Smith, concerning his migraines, and Dr. Smith referred employee to Dr. Robbie for treatment; Dr. Robbie prescribed several medications for his migraine condition.

Employee testified that the blackouts he has suffered since April 15, 2005, are different than those he had before; employee described the blackouts since April 15, 2005, to include shaking uncontrollably, wetting himself, drooling, followed by exhaustion and confusion.

On cross-examination employee admitted he does not know what happened on April 15, 2005; employee admitted to his history of migraines and passing out on several occasions; employee admitted that his history of headaches and dizzy spells worsened after he was rendered unconscious by the cheater bar episode in 1995; employee admitted that he was diagnosed with syncopal episodes in 1995; employee admitted that he consulted Dr. Smith of his own volition on February 24, 2005, with a history of passing out three times in the preceding three days; employee admitted the diagnosis was headaches with syncopal episodes and that Dr. Smith referred him to Dr. Robbie, a neurologist.

Employee consulted Dr. Robbie March 1, 2005, and employee's history given Dr. Robbie was that he had a history of migraines and syncopal episodes since the age of 17 and these episodes had gotten progressively worse over the last several months; the medical records of Dr. Robbie indicated a history from employee that there were times over the preceding years when employee would pass out without having a headache.

1. Witness, Amy Tharp, wife of employee

As of the trial date Mrs. Tharp had been married to the employee for five years; she has no knowledge of what occurred on April 15, 2005; Mrs. Tharp recalled employee having migraines quite often prior to April 15, 2005; Mrs. Tharp also recounted that employee would have episodes periodically before April 15, 2005; Mrs. Tharp did not notice employee convulsing, drooling, or wetting himself due to any other prior syncopal episodes.

1. Witness, David Evans

David Evans is a firefighter and paramedic for Metro Emergency Transport System; Mr. Evans responded to a call to the Pepsi warehouse in Joplin, Missouri, on April 15, 2005; Mr. Evans described arriving at the scene and finding a man lying near a forklift with soft drink containers everywhere; the observations of Mr. Evans upon his arrival were that a person was supine on the warehouse floor, his head was near the rear wheels of a forklift and bottles of soft drinks were scattered around him; much of the product had been pushed aside so that there was space to stand next to the forklift and the individual was not verbally responsive; "there were bottles and a flat" on him, and some of the product had to be removed from him; the "flat" made an indentation on his chest; and Mr. Evans noted that the only physical injury was a chest indentation from the "flat".

On cross-examination Mr. Evans admitted there were maybe a half dozen Pepsi employees at the scene of the accident when he arrived; nobody knew what happened; Mr. Evans admitted he did not find bruising, redness, discoloration or hemorrhaging; Mr. Evans further admitted there were no external signs of trauma other than a place around his right shoulder indicating a checkerboard pattern, from the

flat; however, Mr. Evans does not know how it occurred or what happened.

1. Dr. Arthur Daus

Dr. Daus is a neurosurgeon who initially treated employee when employee was hospitalized subsequent to the event occurring April 15, 2005; Dr. Daus diagnosed employee as suffering from a delayed posttraumatic seizure disorder and post-concussive syndrome; it was the opinion of Dr. Daus that employee sustained a head injury on April 15, 2005, substantially contributing to employee's condition.

On cross-examination, Dr. Daus testified that he was aware of employee's history of boxing but had no information about prior occasions when employee had been knocked unconscious; employee advised Dr. Daus that he did have a 20 year history of migraines, sometimes associated with syncopal episodes; Dr. Daus was also aware that employee had a history of passing out on occasions over the years without any connection to a headache; Dr. Daus was of the opinion that prior to April 15, 2005, there were two separate reasons which occasioned employee's history of passing out: syncope associated with migraine headaches and syncope without headache caused by an undiagnosed and unexplained cardiovascular condition.

On further cross-examination Dr. Daus admitted that he assumed as true a history he found in treating medical records that some products fell on the employee and hit him on April 15, 2005; Dr. Daus conceded that if this history were proven to be inaccurate his medical opinions and conclusions would be questionable; Dr. Daus agreed there were other possibilities as to what occurred on April 15, 2005, including that employee simply passed out where he was found unconscious; and given employee's history of passing out, Dr. Daus agreed that it was a reasonable possibility that employee could pass out and fall unconscious at any time anywhere.

B. Employer's Witnesses

1. Witness, Wade Kinney

Mr. Kinney is a warehouse employee of employer; Mr. Kinney did not see how the employee got on the floor, how the product got on the floor, nor does Mr. Kinney have any knowledge of how the alleged incident occurred.

When Mr. Kinney arrived at the scene he saw employee laying on the floor, near the forklift, and laying on top of some bottles of Mug Rootbeer; none of the product or pop bottles or the pallet was on the employee.

1. Witness, Bruce Morgan

Mr. Morgan is also a warehouse employee; when Mr. Morgan arrived at the scene of the incident, the forklift was running; the employee was curled up on the floor, near the forklift, unconscious; there was no product on him; rather, employee was lying on top of spilled product; and witness Morgan does not know what happened.

1. Witness, Richard Filarski

Mr. Filarski was the night supervisor on April 15, 2005; when Mr. Filarski arrived at the scene of the accident he observed the forklift, some bottles of 20 oz . Mug Rootbeer on the floor, as a top pallet of rootbeer had fallen to the floor, and employee laying prone with his chest on a case or two of product; there was no product on top of employee.

1. Witness, Stacey Lortz

Ms. Lortz is an administrative assistant for the employer at the plant in Joplin; part of her job duties are

to report injuries on behalf of the employees to the employer; when Ms. Lortz arrived at the scene of the accident where employee was found, she saw employee lying face down on the floor, approximately two feet from the forklift with product around him; there was no product on top of employee.

1. Witness, Alan Gouge

Mr. Gouge is the productability supervisor for the employer; Mr. Gouge was not on the premises at the time of employee's event; subsequently, Mr. Gouge spoke with employee about the incident but employee could not remember what occurred or what happened; Mr. Gouge conducted an investigation in an attempt to determine what had occurred, but there were no witnesses to the event and no determination could be made as to what happened.

1. Dr. Ahmed Robbie

Dr. Robbie is a board certified neurologist; Dr. Robbie began treating employee on March 1, 2005; when employee presented to Dr. Robbie on March 1, 2005, his history included symptoms of headaches and passing out since age 17, and symptoms had become more frequent and severe in the preceding few months; sometimes employee would have syncope connected with a migraine, and others were pure syncope, without a migraine.

After this initial visit Dr. Robbie's differential diagnoses were migraines, a cardiogenic source of the problems, as well as seizures; employee's history of boxing was relevant as boxing can cause passing out and seizures; and Dr. Robbie prescribed medication including an anti-seizure drug.

Dr. Robbie also saw and treated employee while he was hospitalized at Freeman Hospital on April 17, 2005; Dr. Robbie examined employee and the results were the same as they had been on March 1, 2005; employee had several syncopal episodes while hospitali