Harry Darlington v. Harrah's North Kansas City LLC and Harrah's Enter Promus Co.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-131234

Employee: Harry M. Darlington

Employers: 1) Harrah's North Kansas City LLC

2) Harrah's Enter Promus Co.

Insurers: 1) Old Republic Insurance Company

2) Zurich American Insurance Co.

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

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 April 6, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Robert B. Miner, issued April 6,2009 , is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 4^{\text {th }}$ day of February 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Harry M. Darlington

Injury No.: 07-131234

Employer: Harrah's North Kansas City LLC and Harrah's Enter Promus Co.

Insurer: Old Republic Insurance Company and Zurich American Insurance Co.

Additional Party: The Treasurer of the State of Missouri as Custodian of the Second Injury Fund

Hearing Dates: December 18, 2008, January 6, 2009, and January 20, 2009.

Checked by: RBM

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: Repetitive through August 29, 2007.
5. State location where accident occurred or occupational disease was contracted: Alleged: North Kansas City, Clay 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? Not determined.
8. Did accident or occupational disease arise out of and in the course of the employment? No.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee alleged that he repetitively lifted supplies and pushed and pulled carts and dollies that allegedly caused repetitive trauma to his low back and left leg.
2. Did accident or occupational disease cause death? No.
3. Part(s) of body injured by accident or occupational disease: Alleged: back and left leg.
4. Nature and extent of any permanent disability: Not determined.
5. Compensation paid to-date for temporary disability: None.
6. Value necessary medical aid paid to date by employer/insurer? None.
7. Value necessary medical aid not furnished by employer/insurer? Not determined.
8. Employee's average weekly wages: $\ 524.01.
9. Weekly compensation rate: $\ 349.36 for temporary total disability and for permanent partial disability.
10. Method wages computation: By agreement of the parties.

1. Amount of compensation payable:

Unpaid medical expenses: None.

No weeks of temporary total disability (or temporary partial disability).

No weeks of permanent partial disability from Employer.

No weeks of disfigurement from Employer.

1. Second Injury Fund liability:

No weeks of permanent partial disability from Second Injury Fund.

1. Future requirements awarded: None.

Claimant's entire claim against Employer/Insurer and The Treasurer of the State of Missouri as Custodian of the Second Injury Fund is hereby denied.

Employee: Harry M. Darlington

Injury No.: 07-131234

Employer: Harrah's North Kansas City LLC and Harrah's Enter Promus Co.

Insurer: Old Republic Insurance Company and Zurich American Insurance Co.

Additional Party: The Treasurer of the State of Missouri as Custodian of the Second Injury Fund

Hearing Dates: December 18, 2008, January 6, 2009, and January 20, 2009.

A final hearing was held in this case on Employee's claim against Employer on December 18, 2008, January 6, 2009, and January 20, 2009. Employee, Harry M. Darlington, ("Claimant") appeared in person and by his attorney, Mark E. Kelly. Employer, Harrah's North Kansas City LLC, ("Employer") and Insurer, Old Republic Insurance Company ("Insurer") appeared by their attorney, John R. Fox. Scott Bradshaw, Risk and Safety Manager of Employer also appeared. The parties agreed at the beginning of the hearing that alleged Employer, Harrah's Enter Promus Co., and alleged Insurer, Zurich American Insurance Co., should be dismissed from this case. The Second Injury Fund is a party to this case but was not represented at the hearing since the parties agreed to bifurcate the Second Injury Fund claim. Mark E. Kelly requested an attorney's fee of 25 % from all amounts awarded.

At the time of the hearing, the parties stipulated to the following issues:

1. On or about August 29, 2007, Harry M. Darlington ("Claimant") was an employee of Harrah's North Kansas City LLC ("Employer") and was working under the provisions of the Missouri Workers' Compensation Law.
2. On or about August 29, 2007, Employer was an employer operating under the provisions of the Missouri Workers' Compensation Law and was insured by Old Republic Insurance Company ("Insurer").
3. Claimant's Claim for Compensation was filed within the time allowed by law.

1. The average weekly wage was $\ 524.01 and the rate of compensation is $\ 349.36 per week for temporary total disability and also for permanent partial disability.
2. No compensation had been paid by Employer for temporary disability.
3. No medical aid had been paid or furnished by Employer.
4. Alleged Employer, Harrah's Enter Promus Co., and alleged Insurer, Zurich American Insurance Co. should be dismissed from this case.

The parties agreed that there were disputes on the following issues:

1. Whether on or about August 29, 2007, Claimant sustained an injury by accident or occupational disease arising out of and in the course of his employment for Employer.
2. Whether Claimant's current condition is medically causally related to the alleged work injury of August 29, 2007.
3. What is Employer's liability, if any, for past medical expenses in the alleged amount of $\ 15,163.85 ?
4. What is Employer's liability, if any, for future medical aid?
5. What is Employer's liability, if any, for permanent partial disability benefits?
6. What is Employer's liability, if any, for past temporary total disability benefits for the alleged period August 30, 2007 through February 1, 2008?
7. What is Employer's liability, if any, for interest?

At the beginning of the hearing, Claimant offered the following exhibits which were admitted in evidence without objection:

B-Deposition of John Woodford taken on December 16, 2008.

C-Deposition of Gary Robertson taken on December 16, 2008.

D-Harrah's Casino personnel file.

F-Medical records of Kearney Family Chiropractic Center.

G-Medical records of The Liberty Clinic.

H-Medical records of Neurosurgery P.A.

I-Medical records of Liberty Hospital.

J-Medical records of Northland PT \& Rehab Services.

K-Medical Records of Liberty Orthopedic Associates, P.C.

M—Records of Prudential Insurance Company.

P—LeBeau-Prudential email.

Q—FMLA file.

In addition, Claimant offered Exhibit A—Deposition of Claimant taken on October 28, 2008, Exhibit E-Medical Report of Dr. Michael Poppa dated June 12, 2008, and Exhibit L-Medical Expense Summary, to which Employer/Insurer's attorney objected. The objections to these exhibits were taken under advisement.

Claimant called the following witnesses: Claimant, Scott Bradford, and Jennifer LeBeau.

Employer/Insurer called the following witnesses: Tim Jordan, John Woodford, and Scott Bradshaw. Employer/Insurer offered the following exhibits that were admitted in evidence without objection:

2-Job Safety Training file.

3-Income analysis report.

4-Employee check history.

5-Time edit report.

6-Time record historical display.

8-Calendar of Employee's attendance.

9-Deposition of Dr. John Pazell taken on December 11, 2008.

10-Liberty Clinic medical records.

12-Prudential Telephone Claim Submission pamphlet.

13-60 day letter regarding Dr. Pazell report with report and medical records.

In addition, Employer/Insurer offered Exhibit 16, OSHA logs, to which Claimant's counsel objected. Exhibits 16 was admitted in evidence over the objections.

Based on a comprehensive review of the substantial and competent evidence, including the testimony of the witnesses, the expert medical opinions and deposition, the medical records, the exhibits admitted in evidence, and my personal observations of Claimant at the hearing, I find:

Claimant was born on September 10, 1951. He graduated from high school in 1969. He took a computer course in 1968. At the time of the hearing, he was working part-time driving vehicles.

Claimant worked for Employer from August 8, 2005 until August 29, 2007 as a warehouse clerk. He processed and delivered orders for food products, unloaded trucks, inventoried product, and cleaned up freezers. At times, he pulled product and put it on a non-motorized four-wheel cart or a two-wheel dolly. He occasionally used forklifts. There were usually five employees doing the same job as Claimant at one time at Employer. Claimant testified that ninety-eight percent of the time that he lifted at Employer, he lifted alone.

The heaviest items Claimant delivered at Employer were 80-pound prime ribs. He stacked up to four of those on a two-wheel dolly. He delivered prime ribs two-to-three times per week. He also delivered other items including 25 pound turkeys, 10 pound roast beefs and 20-pound hams. The heaviest weight he moved on the dolly was 320 pounds consisting of four prime ribs. On average, the fully loaded dollies he used weighed about 125 pounds. He also delivered sixteen cases of water on a cart that weighed about 225 pounds. He sometimes walked up to five minutes delivering product. The floor surface in the warehouse where he worked was concrete. The bar area at the casino was carpeted. It was difficult to push the four-wheel flatbed cart on the carpeting.

Claimant generally worked four ten-hour days each week at Employer. He worked occasional overtime. He estimated that he moved or pulled product eight hours of the ten hours each day. Exhibit N, a job summary description of warehouse clerk Claimant obtained off the internet, accurately reflected his job duties at Employer, except the requirement of having a California driver's license and working in temperatures over 115 degrees.

Claimant testified he had low back pain and severe sciatica down his left leg to his foot that began on Thanksgiving Day 2005. He had pain in the back of his left thigh to his left knee. It went away after two days. He did not know what it was. He had never had pain there before August 2005.

Claimant testified that in 2006, the pain in his left leg would go away for two or three days and then come back in a month. He stated that by June 2007, he had pain in his leg and back all the time. He testified that in June 2007 he learned that his back caused pinching of a nerve in his leg. Claimant said he took no prescription pain medication for his back while working at Employer. He occasionally took ibuprofen.

Claimant did not miss any time from work during the summer of 2007. The first day of work that he missed was August 31, 2007. That was the only day of work he missed in his two years