Stanley Fischer v. AmerenUE

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-131219

Employee: Stanley Fischer

Employer: AmerenUE

Insurer: Self-Insured

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 July 30, 2010, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge John Howard Percy, issued July 30, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 19^{\text {th }}$ day of April 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

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: N/A
5. State location where accident occurred or occupational disease was contracted N/A
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? N/A
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Self-insured
11. Describe work employee was doing and how accident occurred or occupational disease contracted: N/A
12. Did accident or occupational disease cause death? N/A Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer? None claimed
2. Employee's average weekly wages: $\ 1,207.60
3. Weekly compensation rate: $\ 696.97 TTD/ $\ 365.08 PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses None

Weeks of temporary total disability/(or temporary partial disability) None

weeks of permanent partial disability from Employer None

1. Second Injury Fund liability: Open

TOTAL:

None

1. Future requirements awarded: None

Said payments to begin 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Claimant: Stanley Fischer

Dependents: N/A

Employer: AmerenUE

Additional Party: Second Injury Fund (left open)

Insurer: Self-insured

Injury No. 05-131219

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JHP

A hearing in this proceeding was held on March 30, 2010. The record was left open for 30 days to allow Claimant to submit additional evidence. The record was closed on April 29, 2010. Both parties submitted proposed awards, the latter of which was received on May 6, 2010.

The parties stipulated that on or about October 28, 2005:

1. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
2. the employer's liability was self-insured;
3. the employee's average weekly wage was $\ 1,207.60; and
4. the rate of compensation for temporary total disability was $\ 696.97 and the rate of compensation for permanent partial disability was $\ 365.08.

The parties further stipulated that:

1. no compensation has been paid; and
2. employer has not paid any medical expenses.

The issues to be resolved in this proceeding are:

1. whether claimant sustained an accident on or about October 28, 2005;
2. whether, in the alternative, claimant developed an occupational disease due to repetitive trauma prior to October 28, 2005;
3. if the employee sustained a work-related accident or developed an occupational disease by his work-related activities, whether he sustained an injury as a result of the accident or occupational disease;
4. whether the employee complied with the notice requirements of Section 287.420 Mo. Rev. Stat. (2006 Supp.);
5. if the employee sustained a compensable injury, whether he is entitled pursuant to Section 287.170 Mo. Rev. Stat. (2000) to compensation for temporary total

disability for any periods of time subsequent to the alleged accident or the development of an occupational disease; and

1. if the employee sustained a compensable injury, whether and to what extent employee sustained any permanent partial disability which would entitle him to an award of compensation.

The employee has the burden of proving that he or she was injured as a result of an accident which "arose out of" and "in the course of" his or her employment. Section 287.120.1 Mo. Rev. Stat. (Supp. 2006); Trammel v. S \& K Industries, Inc., 784 S.W.2d 209 (Mo. App. 1989); Barnes v. Ford Motor Co., 708 S.W.2d 198 (Mo. App. 1986); Westerhold v. UnitogHolden Mfg. Co., 707 S.W.2d 456 (Mo. App. 1986); Garrett v. Industrial Commission, 600 S.W.2d 516 (Mo. App. 1980); Hawkins v. Emerson Elec. Co., 676 S.W.2d 872 (Mo. App. 1984). The quantum of proof was changed by statutory amendment in 2005 from "reasonable probability" to "more likely to be true than not true." Section 287.808 Mo. Rev. Stat. (2006 Supp.).

Amendments made to Section 287.020.2 Mo. Rev. Stat. (Supp. 2006) in 2005 completely revised the definition of "accident". Accident is now defined to mean "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." In Subsection 10 of Section 287.020 the legislature stated that it was its intent "to reject and abrogate earlier caselaw interpretations on the meaning of or definition of 'accident' ..." Thus the 2005 amendments appear to have eliminated accidents caused by "gradual and progressive injuries resulting from repeated exposure to on-the-job hazards" and accidents caused by "normal or usual strains". Section 287.020.2 repealed the prior "clearly work related" test. ${ }^{1}$

The 2005 amendments do not define "unusual strain" except to indicate that it must be identifiable by time and place of occurrence and produce "at the time objective symptoms of an injury caused by a specific event during a single work shift." In State ex rel. Hussman-Ligonier Co. v. Hughes, 153 S.W.2d 40 (Mo. 1941), the Supreme Court held that the injury itself did not constitute proof of "accident". Id. at 42. In Crow v. Missouri Implement Tractor Co., 307 S.W. 2d 401 (Mo. 1957) the Supreme Court held that an "unusual or abnormal strain" could be

[^0]

[^0]: 1 Under pre-2005 caselaw "accident" also included "gradual and progressive injuries resulting from repeated exposure to on-the-job hazards," Westerhold v. Unitog-Holden Mfg. Co., 707 S.W.2d 456, 458 (Mo. App. 1986), and a "physical breakdown or change in pathology" resulting from the performance of the usual and customary duties of the employee, Rector v. City of Springfield, 820 S.W.2d 639, 642, (Mo. App. 1991). The Supreme Court's decisions in Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781 (Mo. 1983) and Wynn v. Navajo Freight Lines, Inc., 654 S.W.2d 87 (Mo. 1983) dispensed with the previous requirement for proof of an abnormal or unusual strain in order to establish an accident and allowed proof of a normal or usual strain to suffice. Repetitive trauma could also constitute an accident. Kintz v. Schnucks Markets, Inc., 889 S.W.2d 121 (Mo. App. 1994); Sansone v. Joseph Sansone Const. Co., 764 S.W.2d 751 (Mo. App. 1989). As long as the injury was clearly job related, it was compensable. Wolfgeher, supra at 785 . It is likely that all of the foregoing caselaw interpreting the meaning of "accident" have been abrogated. Injuries due to repetitive motion are now recognized as occupational diseases by Section 287.067.3 Mo. Rev. Stat. (2006 Supp.).

classified as an accident, even though it was not preceded by a slip or fall. Id. at 405. Numerous subsequent decisions discussed what facts constituted an "abnormal strain". See cases discussed in Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781, 783-84 (Mo. 1983). Eventually, the courts developed a narrow rule that "[o]nly where the strain is accompanied by a slip or fall, or where the strain is unexpected or abnormal, will the injured person be deemed to have sustained an 'accident'." Id at 784. Subsequently, the Supreme Court's decisions in Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781 (Mo. 1983) and Wynn v. Navajo Freight Lines, Inc., 654 S.W.2d 87 (Mo. 1983) dispensed with the previous requirement for proof of an abnormal or unusual strain in order to establish an accident and allowed proof of a normal or usual strain to suffice. The appellate courts will have to decide whether the 2005 amendments have adopted the pre-Wolfgeher definition of "unusual strain" or some other meaning for that phrase.

The "trier of fact must make his or their decision upon the whole record, must consider all the evidence and may not arbitrarily disregard any evidence in the record." Barnes v. Ford Motor Co., supra at 200. The trier of fact determines the weight and credibility of the evidence. Weeks v. Maple Lawn Nursing Home, 848 S.W.2d 515, 516 (Mo. App. 1993); Barnes at 200; Roberts v. Sharp Bros. Const. Co., 599 S.W.2d 91 (Mo. App. 1980). The testimony of a witness may be disbelieved even if there is no contradictory or impeaching testimony. Smart v. Chrysler Motors Corp., 851 S.W.2d 62, 64 (Mo. App. 1993); Hutchinson v. Tri-State Motor Transit Co., 721 S.W.2d 158, 161-2 (Mo. App. 1986); Barrett v. Bentzinger Brothers, Inc., 595 S.W.2d 441, 443 (Mo. App. 1980). The uncontradicted testimony of the employee may even be disbelieved. Montgomery v. Dept. of Corr. \& Human Res., 849 S.W.2d 267 (Mo. App. 1993); Weeks at 516. The trier of facts may even base its findings solely on the testimony of the employee. Pendergrass v. Killian Const. Co., 891 S.W.2d 166 (Mo. App. 1995).

Stanley Fischer, Employee herein, testified that he has been employed with AmerenUE for approximately 30 years and has been a traveling operator since 2000. He described his job as requiring him to go from substation to substation where he operates electrical switches on the side of roads or under streets, as is the case in downtown St. Louis. He described having to lift a 45 pound "extendo-stick" that can reach up to 35 feet in order to reach distribution switches. He indicated that he lifts the stick and looks up at the stick to confirm that the stick catc