Russell Burt v. Reckitt Benckiser

(Affirming Award and Decision of Administrative Law Judge by Supplemental Opinion)

Injury No.: 10-009704

Employee: Russell Burt

Employer: Reckitt Benckiser

Insurer: Liberty Mutual Insurance Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. ${ }^{1}$ Having reviewed the evidence, read the briefs, heard oral argument, and considered the whole record, the Commission finds that the award of the administrative law judge (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the ALJ dated December 20, 2011, as supplemented herein.

The ALJ found that employee "has failed to carry his burden of proof that he experienced an injury by accident arising out of and in the course of employment since he, in fact, experienced an idiopathic cause resulting in the injury he experienced."

While we agree with the ALJ's determination that employee failed to carry his burden of proof that he experienced an injury by accident arising out of and in the course of employment, we disagree with the ALJ's determination that he failed to meet this burden because he experienced an idiopathic cause resulting in the injury he experienced. The ALJ's reasoning is chronologically incorrect.

The Court in Taylor v. Contract Freighters, Inc., 315 S.W.3d 379 (Mo. App. 2010), provides that an analysis of whether the injury resulted from an idiopathic cause is unnecessary when the claimant has failed to prove that he/she has experienced an injury by accident arising out of and in the course of employment. Id. at 381. The chronologically correct analysis of claims for which an employer defends on the ground that there was an idiopathic cause is as follows:

- Did employee sustain an accident arising out of and in the course of employment?

- If so, did the accident result in personal injuries?

- If so, did employer prove the injuries resulted directly or indirectly from idiopathic causes?

- If so, the injuries are not compensable under Chapter 287.

In this case, employee does not remember any of the circumstances surrounding his fall. There were no witnesses to the fall and the only firsthand account of the incident was from Ms. Hanners, who saw employee sliding down the stairs just after the fall had occurred.

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2009 unless otherwise indicated.

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Based on the foregoing, we find that employee has failed to prove that his injury did "not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life." § 287.020.3(2)(b) RSMo. This finding is dispositive and, therefore, an analysis as to whether employee's injuries resulted directly or indirectly from an idiopathic cause would be improper.

We affirm the award of the ALJ as supplemented herein.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued December 20, 2011, is attached hereto and incorporated herein to the extent it is not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $\qquad 20th \qquad$ day of June 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Russell Burt

Injury No.: 10-009704

Dependents: N/A

Employer: Reckitt Benckiser

Additional Party: N/A

Insurer: Liberty Mutual Insurance Co.

Hearing Date: October 24, 2011

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: VRM/ps

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? Yes.
4. Date of accident or onset of occupational disease: Alleged February 12, 2010.
5. State location where accident occurred or occupational disease was contracted: Springfield, Greene 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: Employee, a production worker, was climbing stairs when he fell.
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: Alleged head/body as a whole.
14. Nature and extent of any permanent disability: None.

1. Compensation paid to-date for temporary disability: None.
2. Value necessary medical paid to date by employer/insurer? $\ 3,235.29.
3. Value necessary medical aid not furnished by employer/insurer? Undetermined.
4. Employee's average weekly wages: $\ 1,385.72.
5. Weekly compensation rate: $\ 807.48 TTD / \$422.97 PPD.
6. Method wages computation: Stipulation.

1. Amount of compensation payable: None.
2. Second Injury Fund liability: None.
3. Future requirements awarded: None.

The parties appeared before the undersigned Administrative Law Judge for a Final Hearing on October 24, 2011, in Springfield, Greene County, Missouri. Russell Burt (Claimant) appeared in person and with his attorney, Randy Alberhasky. Employer, Reckitt Benckiser, and its insurer, Liberty Mutual Insurance Co., appeared by their attorney, Jerry Harmison. The Second Injury Fund is not a party to this proceeding. Molly Horras appeared as the corporate representative for Employer.

The parties stipulated to the following facts: (1) On February 12, 2010, Claimant Russell Burt was employed by Reckitt Benckiser, an entity fully insured with Liberty Mutual Insurance Company. On that date, Employer was operating subject to, and Claimant was working under, the Missouri Workers’ Compensation Law. (2) On February 12, 2010, Claimant was hurt while at work. The employment and injury occurred in Greene County, Missouri. Venue and jurisdiction is appropriate in Springfield, Missouri. (3) The Claim for Compensation was filed within the time prescribed by § 287.430 RSMo. Claimant provided timely notice as required by $\S 287.420$ RSMo. (4) Claimant’s average weekly wage was $\ 1,385.72, resulting in a workers’ compensation rate of $\ 807.48 for TTD and $\ 422.97 for PPD. (5) Employer/Insurer provided no temporary total disability benefits. (6) Employer/Insurer provided medical benefits to the Claimant in the amount of $\ 3,235.29.

The parties stipulated that the sole issues to be resolved by this hearing are, as follows:

(1) Whether Claimant's accident arose out of and in the course of employment with the Employer on February 12, 2010?

(2) Whether the claimed accident of February 12, 2010, caused the injuries and disabilities for which benefits are now being claimed?

(3) Whether the Employer/Insurer must pay for certain past medical care expenses in the total amount of $\ 17,080.00 ?

(4) Whether Claimant is entitled to temporary total disability compensation for three weeks commencing February 12, 2010?

(5) Whether Claimant is entitled to any permanent partial disability benefits?

(6) If the case is found compensable, whether Employer/Insurer are entitled to a reduction of 50 percent of all benefits pursuant to $\S 287.120 .6$ RSMo Cum Supp. 2005, for Claimant's violation of Employer's drug abuse policy?

(7) If this case is found compensable, whether Claimant is entitled to a 15 percent increase of compensation benefits pursuant to $\S 287.120 .4$ RSMo Cum Supp. 2005, for Employer's alleged violation of a safety statute?

Claimant offered the following exhibits, which were admitted:

A. Cheshire Medical Center, 44 pages certified 03/11/2010.

B. Citizens Memorial Hospital, 106 pages, certified 06/21/2010.

C. Citizens Memorial Hospital Pleasant Hope Family Medical, 23 pages certified 06/21/2010.

D. Dr. Neely and Deckard, 4 pages certified 10/11/2011.

E. Regional Foot \& Ankle Clinic, 8 pages certified 04/02/2010.

F. St. John's Hospital, 92 pages certified 03/29/2010.

G. St. John's Clinic Occupational Medicine West Kearney, 35 pages certified 03/10/2010.

H. St. John's Regional Health Center, 6 pages certified 09/14/2010. \$16,914.00

I. St. John's Clinics, 1 page certified 09/21/2010. \$ 166.00

J. Dr. Shane L. Bennoch report, dated 07/09/2010.

K. Claim, 03/04/2010.

L. Answer, Second Injury Fund, 03/09/2010.

M. Answer, Employer/Insurer, 05/10/2010.

N. Order of Dismissal of Second Injury Fund claim, 05/20/2011.

O. Amended Answer, Employer/Insurer, 10/01/2010.

P. Letter from Insurer denying claim, 03/17/2010.

Q. RSMo Section 287.210 letter, 08/06/2010.

R. Disclosure of medical records, 09/16/2010.

S. Disclosure of medical records, 09/16/2010.

T. 12 photographs of accident scene at employee's work place.

Employer/Insurer offered the following exhibits, which were admitted into evidence:

1. Deposition - Russell Burt, 11/24/2010, with attached exhibits.
2. Medical Report - Dr. Scott Galligos, filed 6/6/2011.
3. Employer's Drug/Alcohol Free Work Place Program.

The Administrative Law Judge also took administrative/official notice of the Missouri statute entitled "Openings to be Guarded," set forth in §292.050 RSMo.

On the morning of February 12, 2010, 64-year-old Marguriette Hanners was working the production line "four" at the Springfield, Missouri facility of Reckitt Benckiser, Inc., where containers of mustard are manufactured. Claimant also worked that morning on production line "six." On the morning of February 12, 2010, she saw bottles backing up under the sealer on Line 6 , and they were starting to smoke. As she went to clear the jam she heard a noise and then observed Claimant, in a horizontal position on his back, sliding down the stairway on Line 6. Claimant's body slid down to the lower platform where the stairway makes a turn. Claimant's head was hanging down the stairs. His body appeared lifeless.

Ms. Hanners paged a "Code Blue" to summon help. She also called over to Erick Dunn so he could come help Claimant. She then observed Claimant's body begin to jerk real badly before he went limp. She affirmed that she provided a handwritten statement to this effect on February 15, 2010, which is contained in Employer/Insurer's Exhibit 1, as deposition Exhibit 2.

Claimant is 43 years old. He has only a 10th grade education. He is married with three children. His prior employment includes industrial-type jobs. He began working for Reckitt Benckiser, Inc. in October 2008. He is a maintenance mechanic. He runs a product line and performs trouble shooting activities. The lines run 24 hours per day, every day of the week. He is responsible for assuring that the line runs properly, restocking as needed. The line takes about three minutes to walk. Claimant had begun working the third shift in December 2008 or January 2009. The third shift typically would start at 11:00 p.m. and end at 7:00 or 7:30 a.m. If there is

overtime work, which Claimant has voluntarily accepted in the past, the extra hours are often put at the beginning of the shif