Bill Wengler v. Nomax, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-123162

Employee: Bill Wengler

Employer: Nomax, Inc.

Insurer: New Hampshire Insurance Co. - Chartis Claims, Inc.

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 13, 2010, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Suzette Carlisle, issued December 13, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 31^{\text {st }} \qquad$ day of August 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Hearing Date: September 16, 2010

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was Theurer an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: Alleged October 7, 2008
5. State location where accident occurred or occupational disease was contracted: St. Louis 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? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant alleged he developed a herniated cervical disc from repetitive work activities.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Alleged cervical spine injury, body as a whole
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

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[^0]: ${ }^{1}$ Division Workers' Compensation records show the Claimant's name as" Bill Wangler" however he testified that his name is "Bill Wengler." The record will be adjusted to reflect Mr. Wengler's testimony.

1. Value of necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 369.72

Weekly compensation rate: $\ 246.48 - Permanent Partial Disability and Temporary Total Disability

1. Method wages computation: Stipulated

1. Amount of compensation payable:

NONE

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: James Parrot

Employee: Bill Wengler

Injury No.: 08-123162

Dependents: N/A

Employer: Nomax, Inc.

Additional Party: N/A

Insurer: New Hampshire Insurance Co.Chartis Claims, Inc.

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: SC

A hearing was held at the Missouri Division of Workers’ Compensation (DWC), St. Louis office at the request of Bill Wengler (Claimant), on September 16, 2010, pursuant to Section 287.450 RSMo (2005). ${ }^{2}$ Claimant seeks medical treatment. Attorney James Parrot represented Claimant. Attorney Hugh O’Sullivan represented Nomax, Inc. (Employer) and New Hampshire Insurance Company c/o Chartis Claims, Inc. (Insurer). Venue is proper and jurisdiction lies with the DWC. The record remained opened until September 23, 2010 for Employer to submit Exhibit 2, which was submitted on September 20, 2010. The Second Injury Fund is not a party to the case.

Claimant's Exhibits A-I and Employer's Exhibits 1 and 2 were admitted without objection. Any notations contained in the Exhibits were present when admitted. Any objections contained in the depositions but not sustained in this award are overruled.

The parties stipulated that on or about October 7, 2008:

1. Claimant was employed by the Employer in St. Louis County in Missouri; ${ }^{3}$
2. Claimant and Employer operated under the Missouri Compensation Law;
3. Insurer fully insured Employer's liability;
4. A Claim for Compensation was timely filed;
5. Claimant's average weekly wage was $\ 369.72, resulting in a compensation rate of $\ 246.48 for both Temporary Total Disability (TTD) and Permanent Partial Disability (PPD);
6. Employer paid no TTD or medical benefits; and
7. If Claimant does not prevail, the parties request a final award

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[^0]: ${ }^{2}$ All references in this award are to the 2005 Revised Statues of Missouri unless otherwise stated.

${ }^{3}$ All references in this award to the Employer also include the insurer.

Parties identified the following issues for disposition:

1. Did Employer receive proper notice of an alleged work injury?
2. Is Claimant's disc herniation at C5-C6 medically and causally related to his work activities?
3. Is Employer liable for medical expenses totaling $\ 2,144.90 ?
4. Is Employer liable for past TTD totaling $\ 6,162.00 from April 1, 2010 to the present totaling for 25 weeks?
5. Is Employer liable for future medical care?
6. If causation is not found, what is the nature and extent of Employer's liability, if any, for PPD?

Claimant gave proper notice of an alleged work injury but did not meet his burden to show his work activities were the prevailing factor that caused a herniated disc at C5-C6, and the need for treatment. All other issues are moot.

1. At the time of the hearing, Claimant was 53 year old, five feet six inches tall, and married for nearly 29 years. Claimant lives with his wife and two grandchildren. Claimant has smoked a pack of cigarettes a day for the past 30 years.
2. In June 1995, Claimant worked through a temporary agency on an assembly line, as a machine operator with no history of cervical injuries at that time.
3. Around 2004, Employer hired Claimant as a printer through an employment agency. Claimant worked on three printing machines; the value cloth, flat pack, and the vistashem/clean machines. Claimant's testimony regarding the operation of the machines is discussed below:
4. Claimant was assigned mainly to either the flat pack or value cloth machine which he operated the entire day. Claimant worked 40 hours a week, five days a week, 8-1/2 hours per day, with two 15 minute breaks and one 30 minute lunch. His maximum exposure to any machine was 7.5 hours per day. There was no limit on Claimant's ability to walk around, get a drink or turn off the machine during a shift.
5. Claimant testified Exhibit B accurately reflects the setup of the value cloth machine he operated. Claimant took the photos of the work station. Exhibit B shows the cushioned chair, with adjustable height. He controlled the height of the chair and his distance from the machine. To print cloths Claimant reached his arms up to the right, looked up and took a stack of 100 cloths out of the box located on a table and set them on the platform

to be printed at chest level. A pink ball lowered to the ink tray in front of Claimant and printed cloths. Claimant completed 15 to 20 boxes of value cloths per shift. The value cloth machine operated by foot pedal or an automatic switch.

1. A box of 100 value cloths weighed less than a pound, and an individual cloth is essentially weight less.
2. After printing, Claimant reached up to pull the cloth off the machine, one at a time, with both hands, reached forward to pull them apart, and restack cloths on a lower platform. He looked down to restack as neatly as possible. He repeated the process every couple of seconds, thousands of times per day. Claimant reached over and placed stacks of completed cloths into the original package.
3. Between October 2007 and October 2008, Claimant testified he completed between 1,500 and 2,000 value cloths per day. Ms. Theurer, Claimant's supervisor, expected 2,000 to 3,000 value cloths to be stamped per shift.
4. He worked both machines as needed. He may work on the value cloth a week, and then not work for a while. Claimant believed the value cloth contributed to his neck problems.
5. Claimant photographed Exhibit C which demonstrates the flat pack machine Claimant operated, with boxes on the left and right, and a cushioned, adjustable chair on rollers. The flat pack is a contact lenses holder. The chair was an adjustable height and could be moved as needed to produce the required flat packs. The cardboard box on the left was at his mid abdomen, adjacent to the wheel, and the wheel was in front of Claimant at his lap. The box to Claimant's right sat near the edge of the wheel. Claimant had control of the height of the chair in relation to the flat pack machine, boxes, and wheel. A box of flat packs weighed six to ten pounds.
6. Claimant placed the box of material on the platform parallel to his left shoulder, turned his head to the left, reached with his left hand, picked up two to seven unprinted flat packs, and placed them on the flat pack wheel, located in front of him about waist high.
7. Claimant turned his head to the right and swept printed flat packs into a box on the floor to his right. He replaced the completed flat packs on the wheel. If flat packs fell on the floor, Claimant picked them up and placed them in the box. He repeated the process all day. Ms. Theurer expected 5,000 to 6,000 printed flat packs per day and sometimes she pushed for 7,000 . Before symptoms started, Claimant averaged 4,000 to 5,000 flat packs per day. ${ }^{4}$ He has produced 5,000 to 6,000 flat packs on more than one occasion.
8. Claimant rotated operation of the machines with co-employee Adnan Nalic, who primarily worked the value cloth machine.

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[^0]: ${ }^{4}$ During Claimant's deposition, he testified he was asked to produce 3,000 to 5,000 flat packs per day. However, at hearing he testified that Ms. Theurer increased the amount of flat packs to be prepared after his symptoms developed, but his production remained constant. The Claimant's deposition is not in evidence.

1. The flat packs did not typically become stuck in the machine. The machine ran on an automatic switch. Claimant had no limitation on his ability to turn off the machine, walk, or get a drink, as long as he produced.
2. In mid August 2008 Claimant moved his family from the Swiss Chalet Apartments to a residence on Horn. To obtain sympathy from Ms. Theurer and avoid work, Claimant lied and told Ms. Theurer he fell down the steps while moving a washing machine.
3. In September or October 2008, Claimant began to feel right arm numbness and informed Ms. Thayer about the condition. Claimant worked four years before symptoms began. In the year leading up to his symptoms, Claimant operated the flat pack, value cloth,