Dennis Seifner v. Excel Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-146219

Employee: Dennis Seifner

Employer: Excel Corporation (Settled)

Insurer: Insurance Company of the State of Pennsylvania/ Specialty Risk Services (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

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 3, 2010, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued December 3, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $22^{\text {nd }}$ day of July 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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 to be March 24, 2003.
5. State location where accident occurred or occupational disease was contracted: Alleged to be Marshall, Saline 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? Yes.
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? No longer applicable.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee alleges that his work duties were a substantial factor in the cause of a thoracic disc herniation.
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: N/A.
14. Nature and extent of any permanent disability: None.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? None.

Employee: Dennis Seifner

1. Value necessary medical aid not furnished by employer/insurer? None.
2. Employee's average weekly wages: $\ 483.15.
3. Weekly compensation rate: $\ 322.25.
4. Method wages computation: Stipulation.

1. Amount of compensation payable from Employer: N/A.
2. Second Injury Fund liability: None.

The evidentiary hearing in this case was held on October 6, 2010 in Marshall. Claimant, Dennis Seifner, appeared personally and by counsel, Jerry Kenter; Employer, the Second Injury Fund appeared by counsel, Assistant Attorney General Jacinda Thudium. The claim against Employer, Excel Corporation, was settled by stipulation approved on April 2, 2009. The parties requested leave to file post-hearing briefs, which leave was granted. The case was submitted on November 18, 2010. The hearing was held to determine the following issues:

1. Whether Claimant sustained an accident or occupational disease arising out of and in the course of his employment with Excel Corporation on or about March 24, 2003;
2. Whether the work-related accident or occupational disease of March 24, 2003 (if found to have been sustained) was the cause of any or all of the injuries and conditions alleged by Claimant;
3. The liability, if any, of the Second Injury Fund for permanent partial disability benefits or permanent total disability benefits; and
4. The effect, if any, on Second Injury Fund benefits of unemployment compensation benefits paid to Claimant.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Saline County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;

1. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
2. That Claimant's average weekly wage is $\ 483.15, resulting in compensation rates of $\$ 322.25 / \ 322.25; and
3. That the notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation herein.

The evidence consisted of the testimony of Claimant, Dennis Seifner, as well as the deposition testimony of Claimant; the deposition testimony and report of Dr. John A. Pazell; the deposition testimony and report of Dr. James A. Stuckmeyer; the deposition testimony and reports of Terry Cordray, a vocational rehabilitation counselor; certain records from the Missouri Division of Employment Security; correspondence; stipulations for compromise settlement in Injury Nos. 91-142778, 94-134196, 02-114050 and 03-146219. Also in evidence were a significant amount of medical records (Exhibits E and F). An objection was made to the admission of pages 98-101 of Exhibit E. Those pages consisted of a narrative report of Dr. Marvin Ross dated July 17, 2004. As that report was clearly generated for litigation purposes only, was not a "medical record", and was not submitted pursuant to $\S 287.210 .7$, it is hearsay. The objection to pages 98-101 of Exhibit E was and is sustained, and those pages are not admitted into evidence.

Claimant was 47 years of age at the time of the hearing. He was born on June 14, 1963. He was 39 years of age when he last worked. He worked as a welder and in the construction industry initially. On October 2, 1991, Claimant had a fall which resulted in multiple injuries, the most significant of which was a right elbow fracture. Claimant settled his workers' compensation claim for the 10-2-91 accident for 16.5 % of the body as a whole "referable to back, neck and right arm". Claimant testified that he was advised by his physicians not to return to construction work. Claimant testified that he took a position as a meat-cutter at the Tyson plant in Marshall in April 1992. (This plant was later purchased and managed by Excel Corporation. Claimant worked in the same plant from April 1992 through March 24, 2003.) He testified that he then bid onto a fork lift operator position.

On August 15, 1994, while working as a forklift driver, Claimant sustained an accident, causing injury to his neck, low back and right shoulder. Claimant underwent a discectomy and fusion at C4-5 with instrumentation on December 14, 1994, and a right shoulder surgery

Employee: Dennis Seifner

Injury No. 03-146219

(subacromial decompression and rotator cuff debridement) on August 18, 1995. Claimant settled his workers' compensation claim for the 8-15-94 accident for " 18 % of the body as a whole, with reference to the upper extremities and neck".

On February 26, 2003, Claimant filed a claim for compensation in Injury No. 02-114050. That claim alleged injury to: "cervical spine and aggravation of prior symptom free condition in neck and left shoulder". The description as to how the injury occurred was:

While in the scope of his employment, the employee was assigned the repetitive job of scanning (with a hand held gun) inventory, stocking racks with fork lift and making repetitive trips and bouncing and being jarred on concrete floor while doing his job and physically throwing boxes of meat over his head.

The "date of accident/occupational disease" was shown on the claim as "8-5-02". The claim was made against Excel Corporation. On December 17, 2002, Claimant underwent C6-7 discectomy and fusion with instrumentation.

Claimant settled his claim against Excel Corporation in Injury No. 02-114050 by stipulation approved on October 4, 2004. The settlement represented " 21 % of the body as a whole (back, neck and bilateral upper extremities and shoulders)". The settlement recited that 8 $3 / 7$ weeks of temporary total disability("TTD") benefits had been provided to Claimant.

At some point after the December 17, 2002 neck surgery, Claimant returned to work on a light duty basis. In both his hearing testimony and his deposition testimony, Claimant could not remember when he returned to work after the 12/17/02 surgery. On page 21 of Exhibit A (transcript of the deposition of Dr. James Stuckmeyer) Claimant's counsel stated "we believe it (return to work) was early 2003, January or early February." There are some strong indications that Claimant returned to work on February 14, 2003. Exhibit K is Excel Corporation's internal COMMUNICATION SLIP dated 2-13-03 advising that Dr. Vale had released Claimant to light duty. As noted above, the date of surgery was 12/17/02, and Excel paid Claimant 8 3/7 weeks of TTD benefits. The period 12/17/02 through 2/13/03 is 59 days, or $83 / 7$ weeks. It is for these reasons that I suspect that Claimant returned to work on 2/14/03. However, as noted below, Claimant advised Dr. Vale on 2/13/03 that he was "in the cafeteria wiping down tables and emptying ash trays". This suggests that Claimant was doing some light duty work prior to 2/14/03, but only in the cafeteria. Claimant testified that he was first put on cafeteria duty only, and was later put on the production line, putting stickers on packages and pulling defective packages off the line. He testified that he probably placed as many as 800 stickers per day and pulled 25 to 30 defective packages off the line. Although Claimant's testimony was confusing and often self-contradictory, it appears that Claimant's work day (after February 13, 2003) was split between the cafeteria and the production line.

Claimant also testified that he had no problems or complaints while he was doing the cafeteria duty only. He testified that his problems occurred "while on the line", i.e., the production line. It is difficult to believe that Claimant started working on the production line any earlier than February 14, 2003.

As noted above, Claimant has not worked since 3/24/03. On March 22, 2005, Claimant filed his claim for compensation in this case. That claim alleged injury to "back and body as a whole". The "DATE OF ACCIDENT OR OCCUPATIONAL DISEASE" was listed as: "On or about 3-24-03, and over 8 years before. Last day at work 3-24-03." The description of how the injury occurred was as follows:

Employee, while in the course and scope of his employment performed tasks which were a substantial factor in either causing direct injury or aggravation of pre-existing condition so as to make such become sym