Scott Eiken v. Harley Davidson Motor Co.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-039816

Employee: Scott L. Eiken

Employer: Harley Davidson Motor Co.

Insurer: American Casualty Co.

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated February 24, 2009. The award and decision of Administrative Law Judge R. Carl Mueller, issued February 24, 2009, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 1^{\text {st }}$ day of September 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Scott L. Eiken

Injury No: 04-039816

Dependents: N/A

Employer: Harley Davidson Motor Co.

Additional Party: N/A

Insurer: American Casualty Co.

Hearing Date: January 26, 2009

Checked by: RCM/cm

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: April 27, 2004
5. State location where accident occurred or occupational disease was contracted: Kansas City, Platte County, Missouri
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: Employee was lifting a wheel assembly from assembly line when he felt pain in his back.
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: Body as a whole
14. Nature and extent of any permanent disability: Three percent (3\%) - body as a whole
15. Compensation paid to-date for temporary disability: $\ 15,806.25
16. Value necessary medical aid paid to date by employer/insurer? $\ 23,771.34
17. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: $\ 650.80
2. Weekly compensation rate: $\ 433.87 TTD; $\ 347.05 PPD
3. Method wages computation: By Stipulation
4. Amount of compensation payable:

Medical Expenses

Medical Already Incurred $\ 23,771.34

Less credit for expenses already paid. $\ 23,771.34)

Total Medical Owing $\ 0.00

Temporary Disability

28 and 6/7 weeks (04/28/2004 through 11/02/2004) $\ 11,652.51

Less credit for benefits already paid. $\ 15,806.25)

Total TTD Owing (Credit due Employer) $\ 4,153.74 )

Permanent Partial Disability

3 % whole body disability ( .03 x 400 weeks) x $\$ 347.05 / week \ 4,164.60

Total Award: $\ 10.86

1. Second Injury Fund liability: N/A
2. Future requirements awarded: None

The compensation awarded to the claimant shall be subject to a twenty-five percent (25\%) lien totaling $\ 2.72 in favor of Kevin Kruse, Attorney, for reasonable and necessary attorney's fees pursuant to Mo.Rev.Stat. §287.260.1.

Employee: Scott L. Eiken

Injury No: 04-039816

Dependents: N/A

Employer: Harley Davidson Motor Co.

Additional Party: N/A

Insurer: American Casualty Co.

Hearing Date: January 26, 2009

Checked by: RCM/cm

On January 26, 2009, the employee and employer appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The employee, Mr. Scott L. Eiken, appeared in person and with counsel, Kevin Kruse. The employer appeared through attorney, Samantha Benjamin-House. The Claimant did not file a claim against the Second Injury Fund. The primary issue the parties requested the Division to determine was whether Mr. Eiken is permanently and totally disabled. For the reasons noted below, I find that the disability Mr. Eiken suffered attributable to his April 27, 2004 injury is three percent (3\%) to his body as a whole.

The parties stipulated that:

1. On or about April 27, 2004 ("the injury date"), Harley Davidson Motor Co. ("Harley Davidson") was an employer operating subject to Missouri's Workers' Compensation law with its liability fully insured by American Casualty Co.;
2. Claimant was Harley Davidson's employee working subject to the law in Kansas City, Platte County, Missouri;
3. Claimant sustained an accident arising out of and in the course of his employment;
4. Claimant both notified Harley Davidson of his injury and filed his claim within the time allowed by law;
5. Claimant earned an average weekly wage of $\ 650.80 resulting in a compensation rate of $\ 433.87 for temporary total and $\ 347.05 for permanent partial disability compensation;

1. Harley Davidson provided Claimant with medical care costing $\ 23,771.34; and,
2. Harley Davidson provided Claimant with temporary total disability benefits totaling $\ 15,806.25 for 36.43 weeks from April 28, 2004 through January 7, 2005.

The parties requested the Division to determine:

1. Whether Claimant suffered any disability and, if so, the nature and extent of the Employee's disability and whether the employee is permanently and totally disabled?
2. Whether Harley Davidson must reimburse the Claimant for medical expenses totaling $\ 644.49 ?
3. Whether Harley Davidson must provide the Claimant with additional medical care?
4. Whether Claimant received a TTD overpayment of $\ 9,111.48 for which the employer/insurer should receive a credit?

Claimant testified on his own behalf and called Lisa Eiken as a witness. Claimant's Exhibits A, B, C, D, H and I were admitted into evidence without objection; Exhibits E and F were admitted into evidence with objection; and, Exhibit G was not admitted into evidence. The Claimant's Exhibits are as follows:

Exhibit A - Deposition, Timothy Frey, D.O., January 8, 2009

Exhibit B - Deposition, James S. Zarr, M.D., January 20, 2009

Exhibit C - Deposition, Gregory E. Walker, M.D., January 19, 2009

Exhibit D - April 21, 2004 Offer of Employment

Exhibit E - June 11, 2004 Letter of Termination ${ }^{1}

Exhibit F - Reason for Termination { }^{2}

Exhibit G - Prescription Expenses { }^{3}$

Exhibit H - Dr. Walker (60-day letter)

Exhibit I - Dr. Lemons (60-day letter)

[^0]

[^0]: ${ }^{1} Objection: Irrelevant; overruled.

{ }^{2} Objection: Irrelevant; overruled.

{ }^{3}$ Objection: no foundation; sustained

Harley Davidson called witnesses Dustin Smith and Leonora Vestal and presented the following exhibits all of which were admitted into evidence without objection except for Exhibit 9 which was admitted into evidence with objection:

Exhibit 1 - Deposition, Jeffery Wayne Brown, January 21, 2009

Exhibit 2 - Dr. Ciccarelli (60-day letter)

Exhibit 3 - Deposition, David Ebelke, M.D., January 9, 2009

Exhibit 4 - Deposition, Michael J. Dreiling, January 19, 2009

Exhibit 5 - Deposition, George Harris, PhD., January 22, 2009

Exhibit 6 - Deposition, Terry Cordray, January 22, 2009

Exhibit 7 - Deposition, John Pro, M.D., January 20, 2009

Exhibit 8 - Job Task Description

Exhibit 9 - Social Security File ${ }^{4}$

Based on the above exhibits and testimony of the witnesses, I make the following findings. Claimant is a married, 39-year-old male, who lives with his wife and five children in Parkville, Missouri. He received his high school diploma in 1989. Claimant was employed with Harley Davidson for about one week when he sustained a work-related accident.

Claimant is morbidly obese. He is six feet, one inch tall and weighs four hundred fiftyfive pounds. Claimant has weighed in excess of three hundred eighty-five pounds since the age of twenty-one. Prior to his accident, Claimant has suffered from various health conditions including sleep apnea, hypertension, fatty infiltration of the liver, gastroesophageal reflux disease and irritable bowel syndrome. Claimant's personal treating doctor, Dr. Frey, counseled him to lose weight for several years prior to the date of accident. Several doctors who have evaluated or treated Claimant since his April 27, 2004 work-related accident have indicated that Claimant's obesity is hindering his recovery and, as a result, his ability to work.

On April 21, 2004, Claimant was offered a "Production Technician I" assembly position at the Harley Davidson plant in Kansas City, Missouri. See, Claimant's Exhibit D. His job included lifting wheels weighing from twenty-eight to thirty-eight pounds off the assembly line, attaching a rubber tire component and valve stem to the wheels, and returning them to the line, in a repetitive fashion thirty times per hour. Based on the testimony of his supervisor, Dustin Smith, I find that Claimant struggled physically to keep up with the job prior to the date of accident.

On April 27, 2004, Claimant was working on the wheel assembly line and felt a sharp pain in his low back. The next day Claimant tried to work but due to the pain was only able to work two hours, then went to the emergency room. He was diagnosed with a muscular strain in his back, was given an injection and instructed to follow up with Corporate Care.

Claimant underwent an MRI on May 11, 2004. This first MRI was "suboptimal and nondiagnostic". See, Employer's Exhibit 2 at 30. For that reason, Claimant underwent a second MRI on May 12, 2004. The radiologist noted that the second MRI was "severely compromised due to large body habitus". Id. The second MRI report notes:

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[^0]: ${ }^{4}$ Objection: irrelevant and no foundation; overruled.

WC-32-R1 (6-81) Eiken-04-039816.doc

There appears to be focal herniated nucleus pulposus of L3-4 with extrusion of disc material posterior to the L3 vertebral body. This is very poorly seen on images provided and is seen best on the sagittal T1 and axial T1 weighted images. Clinical correlation should be made since the quality of the images is extremely limited. This abnormality is not clearly identified on the axial T2 images obtained. However, the T2 images are of less quality than the T1 weighted images due to lack of signal to noise. The remainder of the disc levels are unremarkable. No neuroforaminal narrowing is noted. (Emphasis added)

Id.

Corporate Care ordered Claimant undergo physical therapy and referred him to David K. Ebelke, MD. Dr. Ebelke's curriculum vitae is contained in Employer's Exhibit 3 at pages 26-33 and documents that he is a spine surgeon certified by the American Board of Orthopaedic Surgery. Dr. Ebelke devotes ninety-nine percent of his work to treating patients. See, Employer's Exhibit 3 at deposition page 4, lines 15-19 (exhibit page 2), and 26. Dr. Ebelke diagnosed Claimant with a lumbar sprain/strain. Dr. Ebelke found that Claimant was experiencing some muscle spasm in the lumbar region, but appeared to present some symptom magnification. At his January 9, 2009 deposition, Dr. Ebelke testified, in reference to the Claimant and the second MRI:

Right now I can state within a reasonable degree of medical certainty he does not have a disk herniation; and I can also state back then, when I reviewed that scan, within a reasonable degree of medical certainty, that was not a disk hern