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 shift rather than at the end, so that the shift starts earlier.

Even though he had worked the third shift for more than one year prior to his work accident, Claimant said he had problems sleeping during the day. His shifts commence on Sunday through Thursday evenings.

Claimant went to work during the evening of Thursday, February 11, 2010. He intended to climb stairs to a platform to check the date coder at the top of the Line 6 stairway. Claimant recalls looking at a co-worker's clock posted on a tool box on Friday morning, February 12, 2010. It was 6:40 a.m. This is Claimant's last memory of the event that led to his injury. He does not recall going up the stairs, does not recall looking at the date coder machine, and does not recall falling down the stairs. He does not know if he reached the platform at the top of the stairs. The next thing he remembers is being on the concrete floor with people around him. He opened his eyes and heard a co-worker, Keith Wright, telling him not to move. He affirmed on direct examination that he did not see any smoke rising from Line 6.

Over the next few days, Claimant only remembers bits and pieces. He recalls talking to a physician at St. John's Hospital, he recalls a nurse providing him prescription medication, and he recalls seeing his wife. His memory became clearer about the time he was ready to be discharged from the hospital.

Claimant had two instances of passing out when he was about 10 years of age. Claimant told no one of these experiences when they occurred.

Currently, Claimant has about one headache per month, for which he takes over the counter medication. These have diminished with the passage of time. He also suffers from degenerative disc disease in his low back and was symptomatic before February 12, 2010. He said it was difficult to differentiate between the prior back pain and any current pain that might be attributable to his fall. His neck is painful and pops with certain movements. He has short-term memory loss and must make notes to remember things for long durations.

Subsequent to the incident on February 12, 2010, Employer dismissed Claimant from his job when Claimant tested positive for marijuana. While Claimant contended he should have been entitled to participate in a rehabilitation program, he conceded that he already was on a "last chance" due to a disciplinary problem prior to his positive drug screen. Claimant said he was fully aware of Employer's substance abuse policy prohibiting employees from being under the influence of non-prescribed controlled drugs, as set forth in Employer/Insurer's Exhibit 3.

Claimant seeks three weeks of temporary total disability after the fall at work. He contends that he was unable to work for that time period, and then found a job with Reddy Ice in the early summer 2010. He conceded in deposition, however, that he drew unemployment both before and after his employment with Reddy Ice.

Claimant identified the medical bills in Exhibits H and I as relating to his fall at Reckitt Benckiser, Inc. On cross-examination, he affirmed that Exhibit H does show adjustments pursuant to an insurance contract. In deposition, Claimant said he had health insurance coverage

at Reckitt Benckiser, and was allowed to keep the coverage until the end of February, despite his mid-month termination.

Claimant contends that his fall at work is compensable, but he has given varying versions as to what may have been the impetus for his fall. In a telephone message left for Stacy Richardson at Reckitt Benckiser sometime after the work incident, Claimant opined that he believed he passed out and fell on February 12, 2010, as a result of consuming a certain energy drink he had consumed at work. Medical records of February 12, 2010, quote Claimant as saying, "I guess I passed out and fell down the stairs." Two days later, on February 14, 2010, Dr. Tim Fredrick related that Claimant advised that he had only two hours of sleep between two 12-hour work shifts. The hospital discharge records diagnose Claimant with syncope, possibly related to lack of sleep. Claimant's time sheets, however, indicate that each of Claimant's two shifts immediately prior to the incident were only nine hours in duration (Exhibit 1, Depo. Ex. 3). Claimant testified in deposition that he was off work between shifts at least 12 hours. I find the deposition and Employer's records credible as to the hours Claimant was working in the week preceding his injury.

Regarding the positive drug screen, Claimant admitted that he had smoked marijuana at a Super Bowl party the preceding Sunday on February 7, 2010. Claimant admitted that the Super Bowl usually kicks off at approximately 5:15 in the afternoon and lasted in excess of three hours. And even though he had been drinking alcohol and had smoked marijuana, he still reported to work at 10:30 p.m. the evening of February 7, 2010. The fall at work occurred on Friday morning.

Dr. Shane Bennoch examined Claimant and rendered a causation opinion favorable to the Claimant's case. He opined that Claimant's accident on February 12, 2010, "was the prevailing cause of the injury to the patient's head, neck and low back with resulting impairment." (Exhibit J \& J1, p. 16). In Dr. Bennoch's opinion, Claimant "fell while coming down the stairs and was knocked unconscious when he landed at the bottom."

Despite his opinion that Claimant's work was causally related to the injuries Claimant sustained, Dr. Bennoch admitted in his report that Claimant remembered nothing about the accident. In fact, Claimant had been admitted to the hospital for three days without remembering anything until shortly prior to his discharge. Dr. Bennoch confirmed that the St. John's emergency room records of February 12, 2010, indicate Claimant was admitted to the hospital with a "diagnosis of syncope and collapse," and that the discharge diagnosis of February 14, 2010, was "syncope and collapse, underlying cause of syncope is probably lack of sleep."

Dr. Bennoch opined that Claimant had a 10 percent permanent partial disability to the whole body attributable to his neck and head. He assigned a five percent permanent partial disability to the whole body attributable to his lumbosacral ligamentous strain. Dr. Bennoch noted that Claimant's dizziness had resolved, his neck pain had improved, his headaches were improving, and Claimant had experienced low back pain in the past.

Dr. Scott Galligos analyzed Mr. Burt's history and physical examination, as well as reviewed the past medical records, and Claimant's deposition transcript. Dr. Galligos recognized that Claimant had given at least three scenarios as to the cause of his fall, yet he admitted that he has no recollection of the events. Dr. Galligos said it was "pure assumption by Dr. Bennoch to conclude that the claimant fell while going down the stairway. It is equally possible that Mr. Burt had a syncopal event or seizure." (Ex. 2). As Dr. Galligos noted, Claimant had a family history of seizures, as well as his own syncopal episodes, as indicated in the initial health inventory of February 15, 2010.

Indicating that Claimant has an extensive, ongoing history of low back pain since the age of 18, Dr. Galligos noted that Claimant had degenerative disc disease, which was the source of Claimant's pain. The CT scan of the cervical spine was performed to rule out cervical trauma, but no neck pain or tenderness was noted. The CT scan of the neck revealed only degenerative changes. Claimant indicated that neck pain occurred approximately one month after the initial injury. Regarding the contention of headaches and dizziness, Claimant affirmed that the dizziness resolved.

Based on all the information in this case, Dr. Galligos opined that there were a number of other contributing factors affecting Claimant's current symptoms of memory loss, headache, and dizziness. This included preexisting psychological illness, prior head injury, and chronic pain with degenerative changes in the cervical spine, which can lead to headache. Dr. Galligos did believe Claimant suffered a concussion in the fall, but the residuals are more likely associated with emotional issues, chronic pain, and a psychological overlay which are perpetuating his symptoms.

I find witness Hanners credible. I find Claimant generally credible, although I also find that Claimant has no memory of climbing the stairs or of falling. I am convinced that Claimant does not know why he fell. There is no evidence to support the contention that Claimant fell because of an unguarded platform. There is no evidence that Claimant slipped on the steps or lost his balance on the stairs. I find that there were no witnesses who actually saw Claimant fall, but there is a witness who saw Claimant jerking, as if he was having a seizure. I find that Claimant suffered a syncopal episode and that is what caused him to fall. While Claimant may have passed out or fainted due to a lack of sleep, Claimant had not been working extraordinarily long hours the week of his injury. If Claimant fainted due to lack of sleep, such reason is not work related.

I find that Dr. Bennoch's causation opinion is based on speculation, and is not credible for that reason. I find Dr. Galligos' opinion credible and more persuasive than any contrary opinion provided by Dr. Bennoch.

Section 287.020 RSMo Cum Supp. 2005, prescribes the standard for determining whether Claimant sustained an injury by accident within the course and scope of employment for which he may obtain Workers' Compensation benefits. That provision reads in applicable part 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 any injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.
2. (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.

(2) An injury shall be deemed to arise out of and in the course of employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does 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.

(3) An injury resulting directly or indirectly from idiopathic causes is not compensable.

The plain language of the above statute precludes an award of Workers' Compensation benefits for an injury resulting directly or indirectly from an idiopathic condition. An idiopathic condition is a cause personal or innate to the individual, such as a physical defect or disease. Huffmaster v. Am. Rec. Prods., 180 S.W.3d 525, 529 (Mo. App. E.D. 2006). In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true. § 287.808 RSMo Cum Supp. 2009.

It is pure speculation as to where Claimant was located on the stairs when he first began to fall. There is no evidence that he slipped or that he fell because of a lack of a guard. Claimant has failed to prove that his fall was related to the fact that he was on stairs. Rather, there is evidentiary support demonstrating that Claimant fell as a result of an idiopathic condition.

Medical records indicate that Claimant fell because he suffered a syncopal event. The term "syncope" refers to "fainting" or a "transient loss of consciousness due to inadequate blood flow

to the brain." Taber's Cyclopedic Medical Dictionary 1930 (17 ${ }^{\text {th }}$ ed. 1989). The history of his work shifts leading up to the date of injury, as well as Claimant's past medical history (two previous syncope episodes), and a family medical history of seizures as indicated in the initial health inventory of February 15, 2010, suggests that Claimant's syncopal event was unique to him, and was not related to the conditions of employment. Even if sleep deprivation was the culprit causing Claimant's syncope, as suggested in the hospital discharge records, such fact is not related to Claimant's job because Claimant was not working extraordinarily long hours. He had a 12-hour interval between his last two shifts. His preceding shift was only nine hours. If Claimant only had two hours of sleep preceding his work shift on February 11, 2010, the cause was personal to Claimant and not the result of his work with Employer.

In Gary Ahern v. P\&H, LLC, 254 S.W.3d 129 (Mo. App. E.D. 2008), the employee was a carpenter who fell off a roof when he experienced an idiopathic cause (a seizure). The Ahern decision was a case of first impression. The Court noted that in 2005 the legislature amended $\S 287.020 .3$ RSMo, by adding sub-section (3). The Court indicated that the General Assembly intended to reject and abrogate earlier case law interpretations. The Court proceeded to verify the definition "idiopathic" to mean "peculiar to the individual, innate." The Ahern Court noted that the statutory changes indicate "injuries resulting directly or indirectly from idiopathic causes are not wholly work related."

The Court rejected the employee's argument that the Commission erred in applying § 287.020.3 (3) RSMo, because under the "increased risk analysis," his claim would be compensable, relying on the prior case of Alexander v. D. L. Sutton Motor Lines, 851 S.W.2d 525 (Mo. banc 1993), wherein the claimant became dizzy and fell from a raised platform on which he was required to work. In finding compensation proper in the Alexander case, the Supreme Court had indicated that a causal connection existed between the employee's injury and his work because his work place contributed to, or increased the risk, of his accident. While the facts of the Alexander case are similar to the Ahern case, in light of the legislature's 2005 amendment, the Court could not apply Alexander's holdings. Since the 2005 statutory changes abrogated earlier case law interpreting the meaning of the definition of "accident," "occupational disease," "arising out of," and "in the course of employment," the holding in Alexander is no longer valid. Even though Alexander was not specifically abrogated by name, the meaning or definition of "arising out of," was changed by the legislature. Therefore, the employee's increased risk analysis failed.

Similarly in the instant case, based on the above cited statute and case law, Claimant 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. The mere fact that Claimant was on stairs does not create the causal connection in this case. Claimant's Claim for Compensation, like the employee in Ahern, must fail.

This case also differs from Taylor v. Contract Freighters, Inc., 315 S.W.3d 379, 382-83 (Mo. App. S.D. 2010), in which a truck driver suffered injuries in a vehicular accident which occurred while the driver was experiencing an episode of coughing. The appellate court said that coughing and sneezing are experiences so common to the general public that they could not be determined to be "idiopathic" experiences unique to the employee. In the instant case, unlike coughing or sneezing, the precipitating incident (syncope) can hardly be considered common to most people in the general population. I find and conclude that the syncopal incident was unique

Issued by: DIVISION OF WORKERS' COMPENSATION

Employee: Russell Burt

injury No. 10-009704

or innate to Claimant. Under the post-2005 version of § 287.020.3 (3) RSMo, the claim is not compensable.

Although the parties have raised numerous issues, the above findings and conclusions are dispositive. Therefore, I do not address the additional issues raised.

Made by: /s/ Victorine R. Mahon

Victorine R. Mahon

Administrative Law Judge