Ronald Armstrong v. Tetra Pak, Inc.

The definition of "accident" was significantly changed in 2005. Section 287.020.2 RSMo and related subsections read, as follows:

1. The word "accident" as used in this chapter shall 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. 3. (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. 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.

Since legislative changes in 2005, we must also consider the following interpretative guides contained in § 287.020.10 RSMo:

In applying the provisions of this chapter, it is the intent of the legislature to reject and abrogate earlier case law interpretations on the meaning of or definition of "accident", "occupational disease", arising out of", and in the course of the employment" to include, but not be limited to, holdings in: Bennett v. Columbia Health Care and Rehabilitation, 80 S.W.3d 524 (Mo. App. W.D. 2002); Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo.banc 1999); and Drewes v. TWA, 984 S.W.2d 512 (Mo.banc 1999) and all cases citing, interpreting, applying, or following those cases.

Lastly, §§ 287.800.1 RSMo and 287.800.2 RSMo, respectively, provide, as follows:

287.800. 1. 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.

1. Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, and the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts.

Pursuant to these statutes, in order for employee to establish a compensable case, he must have proven he sustained an injury due to an accident. Accordingly, we look first to see if employee met his burden of proving that he suffered 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.

Employee testified regarding numerous medical problems that pre-existed May 12, 2010. But employee testified that as of May 12, he was not suffering from any pain in his shoulder or right upper extremity. He further testified credibly that during the course of performing a rush job at work on that date, he reached and stretched above shoulder level and felt a sharp, deep pain in his right shoulder. Employee believed the pain would go away; but, when it had not gone away by the following day and he was unable to work, employee reported it to his supervisor, Brian Fowler. Mr. Fowler confirmed that employee had reported this incident approximately the day after it occurred. Consequently, based on these facts, we conclude that employee did suffer an accident at work.

Employee also established that he suffered from an injury to his right shoulder. To show that the injury arose out of and in the course of employment, though, § 287.020.3(1) required employee to prove that the "accident was the prevailing factor in causing both the resulting medical condition and disability." That same statute defines "the prevailing factor" as "the primary factor, in relation to any other factor, causing both the resulting medical condition and disability." And, as indicated in the administrative law judge's award, the more credible evidence shows that employee's shoulder complaints are predominately degenerative in nature and not primarily due to the May 12, 2010, accident.

Accordingly, since employee has not proved that his May 12, 2010, accident was the prevailing factor in causing both his medical condition or any disability, the administrative law judge's decision to deny him benefits from employer and the Second Injury Fund should be affirmed.

Based on the most persuasive evidence and except as set forth above, we affirm the award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued June 29, 2011, and award no compensation in the above-captioned case.

Given at Jefferson City, State of Missouri, this $\qquad 8^{\text {th }} \qquad$ day of March 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Ronald Armstrong

Injury No. 10-039435

Dependents: N/A

Employer: Tetra Pak, Inc.

Insurer: Travelers Indemnity Company of America

Appearances: Kimberly Heckemeyer, attorney for employee.

Steve Larson, Attorney for the employer/insurer.

Hearing Date: March 29, 2011 Checked by: LCK/rf

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 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? 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 happened or occupational disease contracted: N/A.

1. Did accident or occupational disease cause death? No.
2. Parts of body injured by accident or occupational disease: N/A.
3. Nature and extent of any permanent disability: N/A.
4. Compensation paid to date for temporary total disability: None.
5. Value necessary medical aid paid to date by employer-insurer: $\ 2,403.27.
6. Value necessary medical aid not furnished by employer-insurer: N/A.
7. Employee's average weekly wage: $\ 645.59
8. Weekly compensation rate: $\ 433.06 for temporary total disability.
9. Method wages computation: By agreement.
10. Amount of compensation payable: None.
11. Second Injury Fund liability: None.
12. Future requirements awarded: None.

On March 29, 2011, the employee, Ronald Armstrong, appeared in person and with his attorney, Kim Heckemeyer, for a hearing for a temporary award. The employer-insurer was represented by its attorney, Steve Larson. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issue, together with the findings of fact and rulings of law, are set forth below as follows:

1. Tetra Pak Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Travelers Indemnity Company.
2. On or about May 12, 2010 Ronald Armstrong was an employee of Tetra Pak Inc. and was working under the Missouri Workers' Compensation Act.
3. The employer had notice of the employee's alleged May 12, 2010 accident.
4. The employee's claim was filed within the time allowed by law.
5. The average weekly wage was $\ 649.59. The rate of compensation for temporary total disability is $\ 433.06 per week.
6. The employer-insurer paid medical expenses of $\ 2,403.27.
7. The employer-insurer did not pay any temporary total disability.

1. Accident.
2. Medical causation.
3. Additional medical treatment.
4. Temporary total disability.

A. Report of Dr. Woiteshek

B. Dr. Woiteshek's Curriculum Vitae

C. Medical Records

1. Medical Records of Dr. Lehman
2. Medical Records of St. Francis Medical Center Occupational Medicine Clinic
3. Flyer from Armstrong Fitness Center
4. Return to Work form of Dr. Rodriguez dated October 18, 2010
5. Newspaper photo of the employee with martial arts students
6. Medical records of Dr. Park

WITNESSES: Ronald Armstrong, the employee. Brian Fowler for the employer-insurer.

BRIEFS: The employee filed his brief on May 2, 2011. The employer-insurer filed its brief on April 29, 2011.

The employee is 46 years old. After graduating from Charleston High School, he worked at Town \& Country as a cashier and stocker from 1983 until 1987. In 1987 he started working at Triangle Wire \& Cable. He was a lead person and was in charge of other co-workers. In 1995, the employee started a martial arts business on the side giving lessons to students until 2007.

The employee testified that he had a work related left ulnar nerve transposition by Dr. Lents in 1996. In 2001, he had a work related neck injury and had a fusion by Dr. Gocio. After being released he did not have any pain or numbness in his shoulders or upper extremities. He returned to work full duty. In 2003 the employee had a work related left hip injury. Dr. Johnst