Dennis Payne v. Thompson Sales Company

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 December 9, 2008, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Victorine R. Mahon, issued December 9, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 17th day of September 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed and employee should be awarded past medical expenses, future medical care, and temporary total disability benefits.

First, there is no question that employee suffered a disc herniation requiring surgical repair. However, it is my opinion, based upon the medical records, testimony provided, and other evidence presented that employee met his burden of proof regarding causation. In addition, employer failed to show that it was prejudiced by employee's failure to provide written notice of his injury within thirty days following the accident. Therefore, it is my opinion that employee should be awarded past medical expenses, future medical care, and temporary total disability benefits.

The administrative law judge found that employee was injured while shoveling ice on November 17, 2006, but did not find an accident as defined by statute. However, the administrative law judge gave no reasons or rationale for this inconsistent finding.

The word "accident" is defined by section 287.020.2 RSMo. as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift...."

In this case, employee was working at the direction of employer, shoveling and clearing employer's premises of ice and snow when he sustained a sudden and unexpected jolt of pain. The pain caused employee to go down on his right knee for a second or two. Tammy Gibson, Jennifer Gibson, and Ryan Payne, all corroborated employee's testimony that following this work-related accident, he suffered severe pain leading up to his emergency room visit in December 2006.

The administrative law judge did "not believe [employee was] lying about having been hurt while shoveling", but she was not persuaded that the incident was the cause of employee's subsequently identified ruptured disc or the need for the surgery on January 6, 2007. The administrative law judge listed the following in support of her belief: "1) [Employee] did not immediately seek treatment, 2) he continued to work without interruption for a period of six weeks, 3) he did not make complaints of continued pain to most of his coworkers or any supervisors, 4) he did not ask for medical assistance, and 5) he sought no accommodation in his job." The most important thing to note about the administrative law judge's "support" is that none of her fabricated criteria are dispositive in determining whether someone incurred a work-related accident. If the administrative law judge found that employee was "hurt" on November 17, 2006, it is only logical to conclude that that incident caused employee's injuries; especially when there was no subsequent event listed in the record that could have caused the injuries and when you consider Dr. Koprivica's opinions.

In Dr. Koprivica's professional opinion, employee tore the annulus of his herniated disc on November 17, 2006. Dr. Koprivica testified that after the accident occurred, employee rested and the symptoms of the annular tear subsided, but employee had continued discomfort which he likened to a pulled muscle. As the disc material leaked from the annulus, the disc material became large enough to put pressure on the nerve root, causing employee to seek medical attention at the emergency room on December 27, 2006, and the disc herniation shown on the MRI of January 1, 2007.

In addition to finding that employee did not suffer a compensable injury, the administrative law judge also found that employee failed to provide his employer with timely notice as required by section 287.420 RSMo.

Section 287.420 provides, in part:

No proceeding for compensation for any accident under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty day after the accident, unless the employer was not prejudiced by failure to receive the notice.

Employee concedes that he did not provide written notice of the injury to employer until January 12, 2007, more than thirty days following the accident. However, under section 287.420, the required timely notice is not required unless employer can show it was prejudiced by not receiving the notice.

Dr. Koprivica's testimony did not rise to the contention, as stated in the administrative law judge's award, that "immediate medical intervention for cervical disc injuries can provide knowledge to protect against further progression of the disc herniation." Dr. Koprivica actually testified that medical treatment of disc herniations needs to occur within 12 weeks of the injury and that the treatment in this case was right in line with what should have occurred. In addition, it was not until after Christmas 2006 that employee's pain became unbearable, and the condition was duly reported to employer on December 28, 2006. There was no evidence employer was prejudiced by failure to receive written notice of the injury within thirty days, or before December 17, 2006, which was on a Sunday, December 18, 2006. Therefore, the fact that employee failed to provide written notice within thirty days following the accident is irrelevant.

For the foregoing reasons, employee is entitled to past medical expenses, future medical care, and temporary total disability benefits. As such, I would reverse the award of the administrative law judge and award employee medical care and permanent partial disability benefits.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

John J. Hickey, Member

Employee: Dennis Payne

Injury No. 06-126435

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependants: Not Applicable

Employer: Thompson Sales Company

Additional Party: Second Injury Fund

Insurer: Missouri Automobile Dealers Association

Medical Fee Dispute: 06-01167 - Dismissed

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: Alleged November 17, 2006.
5. State location where accident occurred or occupational disease was contracted: Alleged Springfield, 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? No.
8. Did accident or occupational disease arise out of and in the course of the employment? No.
9. Was claim for compensation filed within the 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: Claimant alleged an injury to his neck while shoveling ice on employer's premises.
12. Did accident or occupational disease cause death? No. Date of death? Not Applicable.
13. Part(s) of body injured by accident or occupational disease: Neck.
14. Compensation paid to-date for temporary disability: None.
15. Value necessary medical aid paid to date by employer/insurer? None.
16. Value necessary medical aid not paid by employer/insurer? None.
17. Value of necessary medical aid paid to date by employer/insurer? None.
18. Employee's average weekly wages? $\ 457.52.
19. Weekly compensation rate: $\ 305.01 (TTD)/ $\ 305.01 (PPD).
20. Method of computation: By agreement.

1. Amount of compensation payable: None.