| FINAL AWARD ALLOWING COMPENSATION (Reversing Award and Decision of Administrative Law Judge) |
| Employee: | Alan Holeman |
| Employer: | Hussman Corporation |
| Insurer: | Travelers Indemnity Company of America |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund |
| This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the briefs, heard the parties’ arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we reverse the award and decision of the administrative law judge. |
| Introduction |
| The parties submitted the following issues for determination by the administrative law judge:(1) whether employee sustained an accident arising out of and in the course of employment on or about August 24, 2009; (2) whether the alleged accident is the medical cause of employee’s injury and disability; (3) whether employer is liable to reimburse or pay the employee’s past medical expenses of up to $159,933.60; (4) whether employee is entitled to temporary total disability benefits; (5) nature and extent of employee’s permanent disability; and (6) Second Injury Fund liability. In addition, employer indicated that if employee was alleging an occupational disease, employer wished to raise the issues of notice and statute of limitations with respect to that theory of the case. Employee, meanwhile, indicated that he was alleging injury by accident, not occupational disease.The administrative law judge concluded that employee sustained an accident arising out of and in the course of employment, but that employee’s accident is not the prevailing factor in causing both the resulting medical condition and disability.Employee filed a timely Application for Review with the Commission alleging the administrative law judge erred: (1) in crediting Dr. Kitchens over Dr. Kennedy as to the issue whether employee’s accident is the prevailing factor in causing employee’s neck injury and disability; (2) in declining to award employee permanent total disability benefits; (3) in declining to award temporary total disability benefits; and (4) because the result reached by the administrative law judge leaves no remedy for an employee that sustains an accident in the course and scope of employment where the employee has a preexisting condition to the same area of the body.For the reasons set forth herein, we reverse the administrative law judge’s award and decision. |
| Findings of Fact |
| Employee worked for employer for over 30 years. In 1996, employee suffered a cervical spine injury while working for employer. Employer sent employee to Dr. David Kennedy, |
who performed an anterior cervical microdiscectomy with fusion to treat a herniated C4-5 disk. Dr. Kennedy released employee to return to work in June 1997 with permanent restrictions intended to avoid pain, aggravation, or worsening of his condition. These restrictions included no lifting greater than 30 pounds, and only occasional overhead lifting, not to exceed once or twice per hour. Employee settled his claim against employer for the 1996 cervical spine injury for 20\% permanent partial disability of the body as a whole.
Following his 1996 neck injury, surgery, and release from care, employee suffered from some ongoing pain, but was able to manage this condition with prescription medications. Employer honored employee's restrictions and permitted him to perform work that did not involve repetitive or overhead lifting. From 1997 to August 2009, employee never missed any work due to neck or radicular pain. He also routinely passed medical evaluations in connection with his duties for the U.S. Army National Guard. Employee was able to hunt, fish, camp, cut the grass, go to drag races, and help his wife around the home while adhering to his permanent restrictions.
Employee had been working on "Line 34," performing a task that involved spraying glue, taping, caulking, and drilling holes in pieces of Styrofoam. This was not overhead work and did not violate employee's permanent work restrictions as imposed by Dr. Kennedy. On August 24, 2009, employee's supervisor, Kenneth Hatcher, moved employee from Line 34 to a new position on "Line 7," which required employee to take aluminum coils out of a crate, lift them up, and place them onto a jig. Employee was then required to lock the coils in place on the jig. Employee estimated the coils weighed between 10 and 20 pounds individually. This work was done on a repetitive basis.
We note that the testimony from employee and two coworkers, Charles Sullivan and Robert Phelps, conflicts with that provided by Mr. Hatcher as to whether the Line 7 job required employee to lift the coils overhead or merely to chest height. We find the testimony on this point from employee, Mr. Sullivan, and Mr. Phelps more persuasive than that from Mr. Hatcher. Accordingly, we find that the Line 7 work required employee to lift the coils overhead.
Employee realized that the work on Line 7 would violate his permanent work restriction against lifting overhead repetitively. Employee reminded Mr. Hatcher of his permanent work restrictions, and even showed him a written copy of those restrictions. Mr. Hatcher replied, "It is what it is," and instructed employee to start working on Line 7. Employee did as he was told. At about 10:00 or 11:00 a.m., employee felt a sudden and sharp pain in his neck while lifting the coils. Employee also experienced pain in his low back. Employee informed Mr. Hatcher of his pain. Mr. Hatcher wrote off employee's complaints on the basis that employee just wasn't used to that type of work. Mr. Hatcher instructed employee to continue working.
Once again, employee did as he was told and returned to Line 7. Employee finished his 10 hour shift that day performing the repetitive overhead lifting. Employee estimated that he lifted between 190 and 270 coils during his shift; we note that this means employee's work on Line 7 caused him to violate Dr. Kennedy's restrictions between 17 and 25 times each hour he worked that day (190-270 coils / 10 hours = 19-27 overhead lifting incidents per hour; Dr. Kennedy's restriction was no more than twice per hour).
When employee got home, he was in pain. Employee took pain pills and muscle relaxers and reclined.
The next day, employee was again assigned to Line 7. Employee performed the work for the first couple of hours; he was in pain the entire time. At some point, Mr. Hatcher took employee off Line 7 and allowed him to do a job placing coils at a slower pace. At about 11:00 a.m., employee's arm started shaking. Mr. Hatcher noticed this and assigned employee to a different task.
The next morning, Mr. Hatcher assigned employee to a job that didn't involve any overhead lifting. On August 31, 2009, employee went to see the company nurse to tell her what happened, but she wasn't in. Employee went to see her the next day. The nurse put ice on employee's neck and had him lie down for about 45 minutes. She then sent him back to work. Employee returned to see the nurse again the next day. The nurse again put ice on employee's neck and had him lie down. When the nurse told employee to return to work, employee told the nurse he thought he should see a doctor. The nurse told employee he would need to see his own doctor.
Employee initially received conservative treatments with Dr. McDermot, Dr. Feinberg, and Dr. Kennedy. Ultimately, Dr. Kennedy performed a fusion surgery at the C4-5, C5-6, and C6-7 levels on February 4, 2010. Dr. Kennedy placed employee on increased permanent restrictions including no lifting more than 10 pounds; no overhead lifting; sit, stand, and walk on an alternating basis; and little or no bending, stooping, twisting, or climbing.
Employee testified he missed work on September 3, 2009, and December 11, 2009, in connection with the acute onset of neck symptoms on August 24, 2009. Employee believes his last day working for employer was January 22 or 23, 2010. The parties stipulate that employee reached maximum medical improvement on July 6, 2010. Given employee's credible testimony, we find that employee missed work on September 3, 2009, December 11, 2009, and from January 22, 2010, until he reached maximum medical improvement on July 6, 2010, referable to pain and treatment for his cervical spine condition.
Following the events of August 2009 and subsequent cervical spine treatment and surgery, employee suffers from ongoing pain for which he takes between three and four prescription pain pills and muscle relaxers per day. Employee limits his activities and has a generally sedentary lifestyle. To relieve his neck pain, employee lies down three to four times per day for up to 40 minutes at a time. Employee no longer goes fishing, hunting, or to the races.