Anton Kloepfer v. John Bender, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-022088

Employee: Anton Kloepfer

Employer: John Bender, Inc.

Insurer: Sea Bright Insurance 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 18, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge John K. Ottenad, issued December 18, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 21^{\text {st }}$ day of July 2010.

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 Worker's Compensation Law, I believe the decision of the administrative law judge (ALJ) should be reversed and employee should be awarded past medical expenses, past temporary total disability benefits, future medical care, and permanent partial disability benefits.

The findings of fact and stipulations of the parties were accurately recounted in the award of the ALJ and I adopt the same to the extent they are not inconsistent with this dissent.

The ALJ and the majority found that employee failed to meet his burden of proof to show that he sustained an accident in the course and scope of his employment, or that his neck and left arm complaints are medically causally related to any alleged accident.

As the ALJ correctly stated in his award, this injury took place in 2008, therefore, this case falls under the purview of the post-2005 amendments to Missouri Workers' Compensation Law. The statutory sections relevant to this case are listed below.

Section 287.120.1 RSMo (2005) provides, in pertinent part:

Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee's employment....

Section 287.020.2 RSMo (2005) defines accident 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. An injury is not compensable because work was a triggering or precipitating factor.

Lastly, section 287.020.3(1) RSMo (2005) provides, in pertinent part:

An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. 'The prevailing factor' is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

The ALJ largely based his conclusion that employee failed to meet his burden of proof on a finding that employee did not provide credible testimony. The ALJ reasoned that he did not find employee's testimony credible because, after reviewing the entire record, he discovered differences and discrepancies in employee's testimony and statements, ranging from differences in the date of injury, to different descriptions of the injury, to different explanations of the effect the injury had on his ability to work, to different descriptions of his complaints and their onset.

After having reviewed the entire record myself, I find these alleged "differences and discrepancies" to be either nonexistent or irrelevant. In any event, I do not find that the ALJ's conclusion with regard to employee's credibility is supported by the substantial weight of the evidence.

With regard to the date of the accident, it is clear from the record that employee consistently stated that the accident occurred on February 18, 2008. The ALJ misconstrued various statements and medical records in arriving at the conclusion that employee contradicted himself on said issue.

The ALJ notes that when employee was seen by Dr. Weis on February 25, 2008, he wrote down "2/23/08" in response to "Date of Injury/Date Symptoms First Appeared" on the medical history form completed upon arriving at Dr. Weis' office. The ALJ took issue with the fact that employee did not specifically reference the February 18, 2008, incident involving his neck. However, as employee argued in his brief, the ALJ failed to give proper consideration to the circumstances surrounding employee's completion of this form.

Employee completed this form prior to being seen by Dr. Weis. This is vital because it was not until after employee was examined by Dr. Weis that he first came to learn that the burning pain in his left bicep was being caused by a disc problem in his neck. Therefore, employee's responses on the aforementioned form must be viewed in the proper light. At the time employee completed said form, employee was seeking treatment for severe burning in his left arm and bicep. Employee understood that this symptom "First Appeared" on Saturday, February 23, 2008. This was a symptom that was different and much more severe than anything he had felt during the week. Further, this was a symptom which employee understood was related to his shoulder and arm as evidenced by the fact that he identified his "shoulder" as the body part for which he was seeking treatment. Therefore, I do not find there is any true discrepancy regarding the date of accident to employee's neck because employee's answers on the form were clearly in reference to his shoulder and arm, not his neck. When employee completed the form he did not correctly assess the medical causation because he had not been seen by Dr. Weis yet and did not know that his neck injury was the actual cause of his bicep pain. Accordingly, employee was stating what he believed he may have done to his shoulder or arm to result in the severe arm and bicep pain, thinking that he perhaps pulled a tendon or muscle. To that end, employee believed that his arm was hurting from carrying tools up and down stairs and lifting drywall.

The second date discrepancy that the ALJ noted involved St. John's Corporate health records. Employee was seen at St. John's on February 28, 2008. The records indicate that the date of injury was reported as being February 10 or 11, 2008. This was obviously a mistake in either the recording of the date by St. John's or by employee getting his Mondays mixed up. In any case, this "discrepancy" is irrelevant because at this point the Report of Injury had already been made and correctly stated that the date of the ceiling drywall incident involving his neck was Monday, February 18, 2008. In fact, the very same medical record from St. John's which contains this mistaken

February 10 or 11 reference even identifies the "DOI/DOA" as "2/18/2008." In addition, even if there was some confusion about the date, it was certainly clarified at the time of the March 7, 2008, recorded statement in which employee confirmed that the date of accident involving his neck was February 18, 2008. Further, employee testified that he is certain this is the correct date, and his wife testified and substantiated the same based on her knowledge that it was the Monday of the week that they attended a certain dinner function.

Given all the evidence which consistently identifies the date of accident to employee's neck as February 18, 2008, I find that the ALJ's use of the above-listed records for the purpose of discounting employee's credibility is unwarranted. I find that the accident occurred on February 18, 2008, and that this conclusion is supported by the sufficient weight of the evidence.

In finding that employee was not credible, the ALJ also found discrepancies in employee's description of how the injury occurred. While there may be slight discrepancies in employee's description of the accident, to say that said discrepancies discount employee's credibility is preposterous.

Employee testified that he was installing ceiling drywall with a co-worker and was on a ladder and stretch board while working with a 10-12 foot piece of drywall which weighed about 100 pounds. Employee described having his end up with his hands above his head and his neck in a tilted position. The co-worker was flexing/pushing the sheet up and down and moving it around a lot in order to get his end between a soffit and the ceiling. Employee testified that the coworker thrusted very hard on the last attempt, resulting in pressure on employee's end, which caused his neck to be wrenched. Similarly, the Report of Injury indicates that employee was hanging ceiling drywall and felt pain in his neck when the partner flipped drywall.

The next history is in the St. John's records in which employee states that he was working with another gentleman installing ceiling drywall, and was putting it up when the other man kind of rolled it and his neck was jerked to the left. Also, in employee's March 7, 2008, recorded statement he indicated that he was on a ladder and stretch board and wrenched his neck putting up ceiling drywall when his partner rolled or flipped the sheet. In Dr. Chabot's report dated April 21, 2008, it is noted that employee strained his neck while moving sheets of drywall. Lastly, Dr. Robson's record dated May 1, 2008, noted that employee was hanging drywall and working overhead when the drywall gave way and he strained his neck.

Despite the aforementioned consistent descriptions of the accident, the ALJ decided to rely heavily on the previously discussed description employee gave to Dr. Weis in finding employee not credible. As stated earlier, the description employee wrote on the initial form was filled out prior to employee seeing Dr. Weis and, therefore, employee did not know at that time that his bicep and shoulder pain was medically caused by his neck injury. It is only logical for a layperson that had pain in their bicep to try to think back about how they had used that arm and assume, in employee's situation, that

"carrying in tools up and down flights of stairs" and "lifting drywall" is what caused said pain. The average person would not make the connection between severe bicep pain and a neck injury.

In finding that employee was not credible, the ALJ also found that employee's statements concerning the effect the accident had on his ability to work were contradictory. Once again, I find that the ALJ misunderstood the context in which employee's statements were made and, therefore, incorrectly assessed employee's credibility.

The ALJ cited employee's recorded statement wherein employee stated that after the February 18, 2008, accident, "there was no problem working." The ALJ found that this statement was "flatly contradictory" to employee's testimony that for the remainder of the week he was only able to continue working with small pieces of drywall.

The ALJ does not have a basis to conclude that these two statements are "flatly contradictory." It is too much of a stretch to conclude that employee's statement that "there was no problem working" meant that he could fully perform all aspects of his job. It is more logical, considering the whole record, to conclude that when employee made said statement he meant that he was able to complete smaller tasks and that employer had smaller tasks avail