Steven Stroup v. Nordyne Incorporated

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 January 7, 2008, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Gary L. Robbins, issued January 7, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 11th day of July 2008. LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member Attest:

- Did accident or occupational disease arise out of and in the course of the employment? No

- Was claim for compensation filed within time required by law? Yes

- Was employer insured by above insurer? Yes

- Describe work employee was doing and how accident happened or occupational disease contracted: The employee alleges he injured his neck due to repetitive trauma while working for Nordyne.

- Did accident or occupational disease cause death? No

- Parts of body injured by accident or occupational disease: Neck and body as a whole

- Nature and extent of any permanent disability: None determined

- Compensation paid to date for temporary total disability: $\ 0

- Value necessary medical aid paid to date by employer-insurer: $\ 0

- Value necessary medical aid not furnished by employer-insurer: None claimed

- Employee's average weekly wage: $\ 415.20

- Weekly compensation rate: $\ 276.80

- Method wages computation: By agreement

- Future requirements awarded: None

Said payments shall be payable as provided in the statement of the findings of fact and rulings of law, and shall be subject to modification and review as provided by law. No payments are ordered in this case.

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: No fees are ordered.

On September 17, 2007, Steven Lee Stroup, the employee, appeared in person and by his attorney, Kimberly A. Heckemeyer for a hearing for a final award. Its attorney, John P. Kafoury, represented the employer-insurer at the hearing. At the request of the parties the record was left open in order for the parties to submit additional records from Dr. Pyland. The parties submitted the additional information and the case was closed on October 9, 2007. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. 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 the statement of the findings of fact and rulings of law, are set forth below as follows:

- The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and liability was fully insured by Nordyne Incorporated as a self-insured corporation.

- On or about the date of the alleged accident or occupational disease the employee was an employee of Nordyne Incorporated and was working under the Workers' Compensation Act.

- The employee's claim was filed within the time allowed by law.

- The employee's average weekly wage was $\ 415.20 per week. His rate for all purposes is $\ 276.80 per week.

- The employer-insurer paid $\ 0 in medical aid.

- The employer-insurer paid $\ 0 in temporary total disability benefits.

- Whether on or about December 16, 2004 the employee sustained an accident or occupational disease that arose out of and in the course of his employment?

- Whether the employer received proper notice of the employee's accident?

- Whether the employee's injury was medically causally related to his accident or occupational disease?

- Whether the employer-insurer should be required to provide additional or future medical care?

- Whether the employer-insurer should be required to provide permanent partial disability benefits?

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A-Medical records in ten parts:

1. Orthopedic Associates
2. River City Imaging
3. St. Francis Pain Management
4. Physicians Alliance Surgery Center
5. PARC
6. Poplar Bluff Regional Medical Center
7. Ozark Physical Therapy
8. Cape Neurological Associates
9. St. Francis Regional Medical Center

10.Orthopedic Associates

B-Operational Method Sheet/OMS for a Grill/Jacket Bender

C-Deposition of Raymond F. Cohen, D.O.

Employer-Insurer's Exhibits

1. Deposition of Robert Bernardi, M.D.

Partial Chronology/Critical Dates- (the Court highlighted relevant dates throughout the body of the award as the relationship of dates is viewed as being important in understanding the decision made by the Court. The Court also highlighted some of the statements made by the employee).

December 2004-the date that the employee listed as his date of accident or occupational disease on his claim form. December 16, 2004-at trial, during direct examination, this is the date that the employee testified that he first noticed problems with his neck and upper extremity.

January 25, 2005-Dr. William P. Thorpe, M.D., performed the employee's third surgery on his right knee.

February 24, 2005-the date that the employee testified that he woke up with neck pain.

February 26, 2005-the date the employee first sought medical care for his neck and/or shoulder.

September 28, 2005-date when the employee first saw Dr. Ray and the date he claims he first became aware that his injury was job related.

October 4, 2005- Dr. Joel Ray, M.D., performed a cervical fusion surgery on the employee.

October 28, 2005-at trial, this is the date that the employee claims that he first notified his employer of his injury

November 4, 2005-the date the employee filed his claim with the Division of Workers' Compensation. The employee claimed that he injured his neck, shoulder, back and body as a whole due as he subjected himself to extraordinary strain while operating a "Grill Jack Bender" machine in the process of manufacturing air conditioning jackets.

December 8, 2005-the employer-insurer filed an answer denying the employee's claim.

Mr. Stroup/the employee began working at Nordyne, Incorporated in 2002. He testified that prior to his employment at Nordyne, he never had any medical problems with his neck or upper extremities. The employee also testified about

other injuries and surgeries that he had prior to his employment at Nordyne. In 1995, the employee had right knee surgery due to non-work related activities. Dr. William P. Thorpe performed that surgery. In 1997 he had a second knee surgery that was also performed by Dr. Thorpe. He also had a right wrist ganglion cyst surgery before he began employment at Nordyne. He indicated that he took a pre-employment physical before he began employment with Nordyne and they knew of these pre-existing problems.

Mr. Stroup described his job duties while working for Nordyne. He testified that he began working on a Grill Jacket Bender in 2003. He described this machine as one that took metal wire and bent it into a fence type structure that was used to make a grill that was installed around air-conditioning units that Nordyne manufactured. In 2003, Nordyne changed the process and instead of making a wire fence grill, full metal jacket grills were made out of a solid piece of sheet metal. He indicated that the full metal jacket grill was made out of a piece of sheet metal that was more difficult to work with due to size and bulk. He testified that weight was not a significant factor.

The employee described the process in working with the sheet metal. He said that he picked the sheet metal sheet up off the floor and slid it into the Grill Jacket Bender that was about shoulder level, engaged the machine and then removed the material from the machine and stacked it. He indicated that he did this about 35-40 times an hour. He further testified that the largest sheet metal sheets measured $40 \times 92$ inches, and this size is what made them difficult to carry. He indicated that he had to use his back and upper body to carry the sheets and this caused stress and tension in his body. On direct examination, Mr. Stroup claimed that he operated the Grill Bender Machine by himself for most of the time, and although he asked for help in carrying the long jackets, he only got help when he got behind. He further testified that he rarely got behind.

On direct examination, Mr. Stroup testified that December 16, 2004 was the date that he first noticed problems with his neck and upper extremity. He listed December 2004 as his date of injury when he filed his claim with the Division of Workers' Compensation on November 4, 2005. The employee indicated that he did not file his claim until after he had talked to an attorney. On cross-examination Mr. Stroup testified that he worked on the grill jacket bender machine in 2002, 2003, 2004 and 2005 and that job caused tension and stress to his neck. He says that he knew right off the bat that the stress and tension was from lifting at Nordyne. He testified that he did not report the knee pain or the neck problems to Nordyne in December 2004, as he knew that the plant would close for two weeks and he could recover. He said that he took two weeks off and returned to work in January 2005, but was experiencing right knee pain. Mr. Stroup further testified that he began having knee pain in 2004 that gradually got worse. He testified that he had right knee pain on December 16, 2004, and at that time his pain level was 8.

The employee indicated that he did not report the neck injury to Nordyne until October 28, 2005. September 28, 2005 is the first date that the employee testified that he saw Dr. Ray and October 4, 2005 is the date that Dr. Ray performed neck surgery.

Mr. Stroup indicated that he began g