Michael Gibbons v. The Quaker Oats Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-171511

Employee: Michael G. Gibbons

Employer: The Quaker Oats Company

Insurer: Self-Insured

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 September 30, 2009. The award and decision of Administrative Law Judge Lisa Meiners, issued September 30, 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 $20^{\text {th }}$ day of May 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Michael G. Gibbons

Injury No. 99-171511

Dependents: N/A

Employer: The Quaker Oats Company

Insurer: Self-Insured

Additional Party: N/A

Hearing Date: September 2, 2009

Checked by: LM/1h

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: December 7, 1999.
5. State location where accident occurred or occupational disease was contracted: St. Joseph, 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: While in the course and scope of employee's work, employee attempted to remove a 350-pound vacuum pump resulting in an injury of his low back and right leg.
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: Permanent Total Disability.
15. Compensation paid to-date for temporary disability: -0-.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Michael Gibbons

1. Value necessary medical aid paid to date by employer/insurer? $11,224.60.

1. Value necessary medical aid not furnished by employer/insurer? $11,333.73.

1. Employee's average weekly wages: N/A.

1. Weekly compensation rate: $578.48/$303.01.

1. Method wages computation: Stipulation.

COMPENSATION PAYABLE

1. Amount of compensation payable: The employer is liable to employee for permanent total benefits

of $578.48 per week for Claimant's lifetime. The Employer is liable to Claimant for temporary total

disability benefits from December 14, 1999 to March 15, 2000 and January 19, 2001 to June 4, 2002

as well as outstanding medical expenses of $11,333.73.

1. Future requirements awarded: Employer is to provide employee with additional medical care

required to cure and relieve the symptoms related to the injury of December 7, 1999.

Said payments to begin as of the date of the award and to be payable and be subject to modification and

review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all

payments hereunder in favor of the following attorney for necessary legal services rendered to the

claimant: Mr. Mike Knepper.

Employee: Michael G. Gibbons

Injury No. 99-171511

Dependents: N/A

Employer: The Quaker Oats Company

Insurer: Self-Insured

Additional Party: N/A

Hearing Date: September 2, 2009

Checked by: LM/1h

On September 2, 2009, the parties appeared for hearing. Michael Gibbons, the Claimant, appeared in person with Counsel Mike Knepper. The Employer, Quaker Oat Company, and its insurer, Old Republic Company Insurance was represented by Kevin Johnson.

The parties stipulated to the following:

1) That Employee was an employee and working subject to the law in St. Joseph, Missouri;

2) That the Employer and Insurer was Old Republic Insurance Company;

3) That there was a change of venue to Kansas City;

4) That the Claimant has complied with the statute of limitations;

5) That the Employer has paid $\ 11,224.60 in medical expenses and no temporary total disability benefits;

6) That the wage rates are $\$ 578.48 / \ 303.01.

The issues to be resolved by this hearing are as follows:

1) Whether the Employee sustained an accident arising out of and in the course of his employment on December 7, 1999;

2) Whether the Employee provided notice as required by law;

3) Whether the Employer is liable to Claimant for past temporary total disability benefits from December 14, 1999 to March 15, 2000, and from the period of January 19, 2001 to June 4, 2002;

4) Whether the Employee sustained any disability and, if so, the nature and extent of the disability;

5) Whether the Employer is liable to the Employee for past medical expenses in the amount of $\ 26,848.17

6) Whether the Employer is liable to the Employee for future medical care as a result of the December 7, 1999 accident; and, lastly,

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Michael Gibbons

Injury No. 99-171511

7) Whether the Employer complied with the Temporary Award issued April 30, 2001, and if not, should the medical expenses be doubled under $\S 287.510$.

Based on the evidence and testimony, I find the following: On December 7, 1999, Claimant attempted to remove/unhook a vacuum pump from a motor while in the course and scope of his employment with Quaker Oats. Claimant credibly testified that he felt a hot burning sensation of his right buttock and right lower extremity as he attempted to slide the 350 pound vacuum pump. Indeed, Carl Williams, a co-worker of Claimant, observed Claimant hobbling immediately after Claimant attempted to move the pump.

Mr. Williams informed their supervisor that Claimant sustained an accident. Indeed, the transcript of the temporary hearing and Temporary Award reveal two other co-workers observed Claimant removing the heavy pump the evening of December 7, 1999. That evening Claimant finished his shift thinking he sustained a mere muscle strain.

Several days later, co-employee Williams saw Claimant's right leg collapse and Claimant fall while at work. At that time, Claimant informed co-workers he needed medical treatment because his right leg "did not work" and he had a large lump the size of a golf ball on his right buttock. Claimant thought the large lump was cancer and did not associate his current complaints with the work activity of December 7, 1999.

The parties request this award address whether Claimant sustained an injury by accident that arose out of and in the course of his employment with Quaker Oats on December 7, 1999. I find based on the testimony and evidence presented that Claimant sustained an accident when he attempted to unhook and move a 350 pound vacuum pump on December 7, 1999. The lay testimony presented at the temporary hearing of April of 2001, as well as Carl Williams' and Claimant's testimony lead to this finding.

The Employer argued and presented evidence that moving a 350 pound vacuum pump did not cause the chronic right piriformis syndrome along with right leg sciatica diagnosed by the majority of physicians. The Employer presented the testimony and reports of Dr. Michael Poppa and a Dr. Quintero. Although Dr. Poppa diagnosed Claimant with piriformis syndrome, he found the lifting incident did not cause the piriformis syndrome. Instead, Dr. Poppa diagnosed Claimant's piriformis syndrome as idiopathic. Dr. Poppa then assessed a 5 percent permanent partial disability due to a work-related soft tissue injury superimposed upon his pre-existing condition.

The Employer also presented a neurologist, Dr. Quintero. Dr. Quintero also opined Claimant had a pre-existing history of right buttock and leg pain and that Claimant's current condition had an insidious onset. Although the majority of physicians diagnosed piriformis syndrome, Dr. Quintero is the only one to disagree with this diagnosis. Instead, Dr. Quintero suggests Claimant has a psychogenic process such as somatoform, conversion disorder or malingering.

Claimant on the other hand presented the testimony of Dr. Crislip, Dr. Abrams and Dr. Koprivica who all found the lifting incident of December 7, 1999, was a substantial contributing factor to Claimant's current piriformis syndrome with right leg radiculopathy. The Claimant also presented a psychologist, Dr. Schmidt, who diagnosed Claimant with depression as a result of the chronic pain syndrome from the work-related injury of December 1999. Schmidt did not believe Claimant suffered from a conversion disorder or was malingering. Dr. Schmidt assessed a 20 percent permanent partial disability as a result of depression. Another physician, Dr. Freeman, also found the lifting incident exacerbated Claimant's piriformis syndrome.

I find that the Employer's experts' opinions lack credibility and are against the weight of the evidence. Moreover, Dr. Quintero wrote Claimant has a psychogenic process in his report but on cross-examination denied diagnosing Claimant with the very opinions written in his report. As such, I find his written opinion inconsistent with his deposition testimony as well as his overall opinion against the weight of all the experts' opinions.

Indeed, Claimant since the lifting incident of December 7, 1999, has chronic debilitating back and right leg pain not experienced prior to the last work injury. Since December 7, 1999, Claimant's right leg gives out causing him to fall on various occasions and as a result doctors prescribed a cane and knee brace. Claimant can sit not more than 30 minutes without changing positions and his standing tolerance is approximately 20 minutes. Lastly, Claimant worked full time without restrictions prior to December 7, 1999. Based on the evidence presented, I find the piriformis syndrome and right leg radiculopathy causally related to the lifting incident of December 7, 1999. Indeed, this finding is based on Drs. Abrams, Crislip, Koprivica and Freeman. As such, I find the lifting incident was a substantial contributing factor causing an exacerbation of the piriformis syndrome and right leg complaints.

I also find Claimant had occasional non-disabling symptoms of his low back and right leg prior to December 1999. Indeed, there are only two medical records, one from 1994, and one from 1998 admitted that reveal Claimant experienced lumbar radiculitis prior to December 7, 1999. This leads me to find that Claimant worked full time without hindrances or obstacles regarding his low back and right leg prior to December 1999. This finding also comports with Dr. Mujica and Dr. Cathcart that Claimant had some pre-existing symptoms.

The Employer argues that Claimant did not provide notice pursuant to Missouri Statute 287.420.

§287.420 "Written notice of injury to be given to employer exceptions. No proceedings for compensation 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, have been given to the employer as soon as practicable after the happening thereof bu