Jayson Brockhouse v. Shelton Construction & Services, Inc.

Improvee: Jayson Brockhouse

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alleges the following: 1) Employee provided proper notice of the May 30, 2008, accident to employer; 2) Employer had actual notice of the accident; 3) If employer did not have notice of the accident, it was not prejudiced by the same; and 4) Employee met his burden of proof with respect to medical causation. Employee also argued that the ALJ erred in excluding from evidence multiple x-rays employee offered at the final hearing.

Employer filed an Answer to employee's Application for Review and also requested that the Commission dismiss the Application for Review. Employer alleged that the Application for Review failed to comply with 8 CSR 20-3.020(3) (A) because it does not specifically state the reason employee believes the findings and conclusions of the ALJ are not properly supported. On April 4, 2012, the Commission issued an order denying employer's request to dismiss the Application for Review.

We note that for reasons unexplained the transcript to the March 8, 2010, hardship hearing is not available for our review. However, the exhibits admitted into evidence at the hardship hearing are available and were incorporated into the transcript of the December 7, 2011, final hearing.

In a letter dated May 16, 2012, the Commission informed both employer and employee that the hardship hearing transcript is not available and requested that the parties inform the Commission if the absence of the March 8, 2010, testimony deprives the Commission of evidence necessary to its review. Both employer and employee responded by affirmatively stating that the absence of the March 8, 2010, testimony will not deprive the Commission of evidence necessary to its review.

**Findings of Fact**

On May 30, 2008, employee used his hard hat to "tap" his coworker, Seth Waters, on his head; Mr. Waters was wearing a hard hat at the time. Mr. Waters retaliated by using his hard hat to do the same to employee; employee was also wearing a hard hat when Mr. Waters retaliated. Employee alleges that after Mr. Waters hit him on top of his head with his hard hat that he experienced immediate neck pain and headaches.

Approximately five days after the hard hat incident, employee presented to Dr. Hale's office on June 4, 2008, with a chief complaint of fever and lung symptoms with his chest feeling full. He described wheezing, coughing, chills, and nausea. He also reported that an electric current had gone through his feet two weeks ago, and that he had had right elbow pain since being struck by the electric current. Employee further noted that he was hit on the back of his head with a hard hat on the Friday before; however, he had full range of motion and did not complain of neck pain. Employee was diagnosed with a fever and cough. Employee returned to Dr. Hale's office the following day, June 5, 2008, for a follow-up visit with respect to the fever and cough. The doctor noted that employee had a decreased cough at that time and was not having any pain. Employee's neck exhibited full range of motion. He was assessed with a resolving fever.

Employee last worked for employer on July 23, 2008.

Injury No.: 08-105050

On June 4, 2009, more than one year after the hard hat incident, employee had x-rays performed, which showed mild degenerative changes at the C6-7 disc space level. No recent or destructive pathology was found. The MRI performed on June 8, 2009, revealed broad-based disc bulges causing probable clinically significant lateral recess narrowing and cord signal changes at C5-6 and C6-7. An MRI of the brain, also taken June 8, 2009, revealed no significant abnormalities.

Dr. Pineda evaluated employee on June 16, 2009, and explained that the June 2009 MRI demonstrated fairly significant disc disease at C5-6 and C6-7. The x-ray report reflects under history "Neck pain. Pain for 15 years after being kicked over the head." Dr. Pineda recommended therapy, and instructed employee to avoid falls, including avoiding the use of ladders.

Prior to the May 30, 2008, incident, employee suffered several injuries to his neck or back. We find that the facts regarding employee's prior neck or back injuries were accurately recounted in the award of the ALJ and are adopted and incorporated by the Commission herein.

On November 5, 2009, Dr. Volarich performed an independent medical evaluation of employee. Dr. Volarich opined that the work accident of May 30, 2008, was the prevailing or primary factor causing the disc herniations at C5-6 and C6-7. Dr. Volarich recommends that employee undergo cervical epidural steroid injections to see if it helps his symptoms. Dr. Volarich opined that as a result of the May 30, 2008, injury employee sustained 65% permanent partial disability of the body as a whole rated at the cervical spine.

Even though employee conceded to having been seen at Heartland Chiropractic Clinic for cervical and thoracic pain on 26 separate visits between September 14, 2007 and December 7, 2007, Dr. Volarich's report does not reference any of employee's treatment for this period.

Dr. Doll evaluated employee on January 20, 2010. Dr. Doll thoroughly reviewed employee's medical history and his ongoing complaints. Dr. Doll concluded that any need for further treatment or restrictions would not be the result of the work accident of May 30, 2008. He opined that the work incident was not the prevailing factor or substantial factor in the medical causation for the significant multi-level degenerative condition of the cervical spine, chronic neck pain, and current associated symptomology, including neck pain, limited motion, and diffuse pain and paresthesias of the extremities. Dr. Doll opines that those findings are unrelated to the May 30, 2008, injury and instead are related specifically to employee's preexisting, multi-level degeneration of the cervical spine, including disc osteophyte complexes at C5-6 and C6-7, chronic neck pain, and chronic pain paresthesias of his extremities.

Dr. Doll does relate a diagnosis of head contusion and mild cervical strain to the May 30, 2008, work injury, with the caveat that this is assuming that the incident occurred as employee asserts. However, Dr. Doll finds that there is no need for further medical treatment related to the May 30, 2008, incident, and rates employee's disability as a result of the incident at 0 %.

Section 287.420 RSMo provides, in relevant part:

No proceedings for compensation for any accident under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the accident, unless the employer was not prejudiced by failure to receive the notice.

The ALJ found that the credible evidence shows that employee did not provide the required notice to employer. The ALJ further found that employer did not have actual notice of the accident. Finally, the ALJ found that employee failed to meet his burden of proving that employer was not prejudiced by its failure to receive notice.

In arriving at said conclusions, the ALJ relied heavily on the hardship hearing testimony of employer's witnesses, Dennis Killday and Mike Paalher. Said testimony was incorporated into the final hearing, but as mentioned above, the transcript from the hardship hearing is not available for our review. In light of the foregoing, we find that the record is insufficient for the Commission to properly review and rule on the ALJ's findings with respect to the issue of notice. Therefore, we confine our findings to the only other issue before us, medical causation.

An injury under Missouri Workers' Compensation Law is compensable "only if the accident was the prevailing factor in causing both the resulting medical condition and disability...." Payne v. Thompson Sales Co., 322 S.W.3d 590, 592 (Mo. App. 2010), citing § 287.020.3 RSMo.

The Court in Brundige v. Ingelheim, 812 S.W.2d 200 (Mo. App. 1991) held that "[m]edical causation, not within the common knowledge or experience, must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause." Id. at 202.

Contrary to our determination with regard to the issue of notice, we find that the record is sufficient, even without the hardship hearing testimony, to rule on the issue of medical causation. While the issue of notice required a thorough review of employer's witnesses' hardship hearing testimony, the issue of medical causation is predominantly dependent on a review of the medical opinions. Among other exhibits and testimony, the medical records, reports, and expert testimony were all included and incorporated within the record before us. For the foregoing reasons, we find that we have properly

reviewed the ALJ's findings with respect to medical causation in accordance with Missouri Workers' Compensation Law.

With that said, we fi