Garry Session v. The Boeing Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-065306

Employee: Garry Session

Employer: The Boeing Company

Insurer: Indemnity Insurance Company of North America

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 February 23, 2011. The award and decision of Administrative Law Judge John A. Tackes, issued February 23, 2011, 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 $\qquad 18^{\text {th }} \qquad$ day of August 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Garry Session

Departments: N/A

Employer: Boeing Company

Additional Party: SIF (Open)

Insurer: Indemnity Ins. Co. of North America

Hearing Date: November 16, 2010

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JAT

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: July 21, 2006
5. State location where accident occurred or occupational disease was contracted: Saint Louis County
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: Claimant lifted and carried a heavy cable.
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: Lower back
14. Nature and extent of any permanent disability: 10 % of the BAW (low back)
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient for maximum PPD rate
3. Weekly compensation rate: $\ 376.55 (PPD)
4. Method wages computation: Stipulation

1. Amount of compensation payable:

40 weeks of permanent partial disability from Employer $\ 15,062.00

1. Second Injury Fund liability: Nothing herein; Claim open

TOTAL:

$\mathbf{\$ 1 5 , 0 6 2 . 0 0}$

1. Future requirements awarded: None

Said payments to begin immediately 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 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Joseph Montecillo

Employee: Garry Session

Departments: Two daughters

Employer: Boeing Company

Additional Party: SIF (Open)

Insurer: Indemnity Ins. Co. of North America

Hearing Date: November 16, 2010

Injury No.: 06-065306 \& 06-109564

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JAT

On November 16, 2010, a hearing in this Matter was held in the City of Saint Louis at the Division of Workers' Compensation by Administrative Law Judge John A. Tackes. Claimant, Garry Session, appeared in person and by his attorney, Joseph Montecillo, for a hearing requesting a final award on his claims against the employer, Boeing, and its insurer, Indemnity Insurance Company of North America. The Second Injury Fund is a party to the claim. The Fund did not appear at the hearing and the claim remains open. The Employer and its Insurer were represented by attorney Terry Mort. Richard (Rick) Miller testified on behalf of the Employer/Insurer.

Stipulations \& Issues:

The parties stipulated to the following:

1. On or about July 21, 2006, Claimant sustained an injury by accident arising out of and in the course of his employment.
2. Claimant was an employee of Employer pursuant to Chapter 287 RSMo.
3. Venue is proper in Saint Louis, Missouri.
4. Employer received proper notice of the claim.

1. Claimant filed the claim within the time allowed by law.
2. The average weekly wage at the date of injury was sufficient for a permanent partial disability rate (PPD) of $\ 376.55. Temporary total disability (TTD) is not at issue.
3. Employer paid $\ 0.00 TTD or medical expenses.

The sole issue to be determined is:

1. Nature and extent of PPD

The parties stipulated to the following:

1. Date of alleged injury is September 25, 2006.
2. Claimant was an employee of Employer pursuant to Chapter 287 RSMo.
3. Venue is proper in Saint Louis, Missouri.
4. Employer received proper notice of the claim.
5. Claimant filed the claim within the time allowed by law.
6. The average weekly wage at the date of injury was sufficient for a permanent partial disability rate (PPD) of $\ 376.55. Temporary total disability (TTD) is not at issue.
7. Employer paid $\ 0.00 TTD or medical expenses.

The issues to be determined are:

1. Accident
2. Arising out of and in the course of employment
3. Medical causation
4. Nature and extent of PPD

Only evidence necessary to support the award will be summarized. Any objections not expressly ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, those markings were made prior to being made part of this record, and were not placed thereon by the Administrative Law Judge.

Claimant offered the following exhibits, which were received into evidence:

A. Dr. Berkin IME repot

B. Dr. Stillings Deposition

C. Claimant's letters from January/February 2004*

D. Police report from March 2004*

E. Injury and Illness report

* Exhibits C and D were entered over objections to relevance and hearsay.

Employer offered the following exhibits, which were received into evidence:

1. Dr. Hurford Deposition
2. Mr. Bassett Deposition
3. Division Records (DWC) 05-005048
4. Dr. Musich medical report
5. Claim for compensation 06-109564
6. Claim for compensation 06-065306

All objections not expressly ruled upon in this award are overruled to the extent they conflict with this award.

Based on the competent and substantial evidence presented at hearing, as well as my personal observations of Claimant at hearing, I find:

Claimant is a long term employee of Employer where he began work in June, 1980. Prior to this he worked five years with another company after technical training to work in a machine

shop. Claimant worked with Employer as a tool and die maker. He made the tools used to build the airplanes.

Accident dated July 21, 2006

Claimant was in the shop at work on July 21, 2006 picking up debris when he leaned over to get a heavy cable when he felt his back go out. He was treated in-house at the medical facility by a physician and received physical therapy for several months. He was sent to a specialist, Dr. Hurford, where he was treated with oral medication, no injections, and no surgery. In November 2009, Claimant was diagnosed by the authorized treating physician with left-side posteralateral disc protrusion at L5-S1. Claimant was released from treatment January 18, 2007 with a 3\% rating for permanent disability referable to his low back.

On March 21, 2007, Claimant was evaluated by Shawn Berkin, D.O., who rated his PPD for the July 21, 2006 injury at 15 % of the low back. This is in addition to preexisting low back disability. Claimant continues to complain of pain in his low back and pain radiating down his left leg. Claimant sustained a low back strain with protruding disc and radiating symptoms as a result of the July 21, 2006 injury.

In 2005, Claimant sustained a back injury which he settled with Employer (Injury No. 05005048 ) for 3.5 % of the body as a whole referable to the low back.

Incident dated September 25, 2006

On Friday, September 22, 2006, Claimant had a conversation with a co-worker (Rick Miller) regarding the subject of an email in the possession of Mr. Miller. The conversation was personal and not related to work. The topic of the conversation was race. Claimant and Mr. Miller are of different racial/ethnic backgrounds. There is nothing to indicate that the conversation was anything other than a normal discussion between two co-workers. Mr. Miller asked Claimant if he wanted him to bring in the email so Claimant could see it. Claimant agreed that this would be okay. The next day Mr. Miller brought in the email and placed it on Claimant's tool box. The purpose of doing this was informational in connection with their previous conversation and not intended to threaten or intimidate Claimant. Mr. Miller is also a tool and die maker and works in the same department with Claimant.

On Monday, September 25, 2006, Claimant reported to work and found the document where Mr. Miller had placed it. The document contains racial slurs and derogatory statements against persons of many ethnic backgrounds including those of European, African, and Asian descent. It is general in nature and not directed at Claimant personally in any way. Claimant testified that he was offended and threatened by the contents of the document. He reported the document to a supervisor and named Mr. Miller as the person who gave it to him. Mr. Miller admitted he had given the document to Claimant and said he had no intention of offending or threatening Claimant. Claimant admitted he was relieved to find out Mr. Miller had put the document on his tool box because he did not have any problems with Mr. Miller.

Previous incidents described by Claimant are not addressed in this Award because they are not the subject of this claim.

Claimant was seen by Dr. Wayne Stillings (Psychiatrist) for an IME on March 28, 2007. He diagnosed Claimant with an aggravation of a preexisting bipolar disorder, and paranoid disorder. He rated Claimant with 40 % PPD referable to the body as a whole because of mental injury sustained as a result of the September 25, 2006 incident.

Dr. Greg Bassett testified on behalf of Employer. He diagnosed Claimant with an adjustment disorder and that Claimant is predisposed to take situations that are not extraordinary and characterize them as threatening. Dr. Bassett also diagnosed Claimant with preexisting depressive disorder and a propensity for paranoia. He rates the PPD from the email incident at 4\% BAW and preexisting disability (PPD) at 2\% BAW. He opined that Claimant sustained no appreciable difference in function as a result of the events of September 25, 2006.

Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented and the applicable law, I find the following:

On July 21, 2006, Claimant sustained an injury by accident at work which resulted in a disability that is permanent in nature and partial in degree to the area of his low back. Claimant continues to complain of pain, tightness, and periodic muscle spasms. He also experiences pain extending into his leg and limited motion. I find that the accident resulted in a permanent disability over and above his preexisting disability at the level of the lumbosacral spine and that the accident on July 21, 2006 was the prevailing factor in causing the current disability. Based on the diagnoses, objective findings, and Claimant's ongoing complaints (low back), I find that the disability which results from the accident on July 21, 2006 is 10 % PPD referable to the body as a whole.

The incident of September 25, 2006 was not caused by the actions of Mr. Miller who merely did what he had already told Claimant what they had agreed he was going to do. Claimant should already have been on notice of what the contents or nature of the document before he received it based on the conversation he had with his coworker. On its face there was no threat, intimidation directed specifically at Claimant. If he took it that way it was done in spite of the letters content rather than because of it.

The expert medical opinions of Drs. Stillings and Bassett are not persuasive. The percentage of disability therefore is not given any weight in this award. The medical evidence

does not support the findings of the experts as to disability or functional limitation. The ratings are based on the subjective information provided by Claimant rather than objective findings of disability.

Furthermore, Dr. Bassett's conclusions assume a predisposition of paranoia by Claimant and his conclusions accept the claimant's characterization of the incident as being somehow extraordinary, though Dr. Bassett admits it is likely that the situation was not extraordinary to anyone else. At best, Dr. Bassett's describes a minor diagnosis triggered by the incident, which is not evidence of a compensable injury. An injury is not compensable because work was a triggering or precipitating factor. V.A.M.S. 287.020.2

The claimant has not demonstrated a compensable injury under section 287.020.3(5). The terms "injury" and "personal injuries" shall mean violence to the physical structure of the body. V.A.M.S. 287.020.3(5) The Claimant has the burden of proving all essential elements of the claim and must establish medical causation. Hayes v. Hudson Foods, Inc., 818 S.W.2d 296 (Mo.App. 1991).

The claimant has not demonstrated a mental injury under section 287.120.8. The testimony of the claimant is not credible, and the testimony of Rick Miller and a review of the document itself, does not demonstrate extraordinary work stress. Mental injury resulting from work-related stress does not arise out of and in the course of the employment, unless it is demonstrated that the stress is work related and was extraordinary and unusual. The amount of work stress shall be measured by objective standards and actual events._V.A.M.S. 287.120.8.

The exceptions for "traumatic events" in E.W. vs. Kansas City Missouri School District 89 S.W.3d 527, 172 (W.D. 2002) Jones v. Washington University, 199 S.W.3d 793 (E.D. 2006) are not applicable. Claimant did not describe a traumatic event comparable to the events in these cases. There was no physical contact or physical assault, and the facts do not rise to the level of trauma.

Further, the exceptions to the mental stress section of the statute are not part of the statute and are born out of case law. This case law creates a judicial construct which predates the 2005 amendments to the statutes and predates the mandate of strict construction in 287.800.1. That provision reads:

Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly. V.A.M.S. 287.800 .1

Now that the statute is to be strictly construed, previous case law which creates constructs beyond the plain language of the statute can no longer apply. Berra v. Danter, 299 S.W.3d 690, 696 (Mo.App.2009). I find the evidence in this case does not demonstrate an injury in accordance with the plain language of Section 287.020.3(5), and does not demonstrate a mental injury from work stress within the plain language of Section 287.120.8.

Claimant sustained a compensable injury to his low back on July 21, 2006 resulting in 10 % permanent partial ( 40 weeks) or $\ 15,062. Claimant did not sustain a compensable injury resulting from the incident on September 25, 2006.

Date: $\qquad$

John A. Tackes

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest

Naomi Pearson

Division of Workers' Compensation