Charles Rogers v. Dial Corporation

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. ${ }^{1}$ We have read the briefs, reviewed the evidence, and considered the whole record. We find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law, as modified herein. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge.

The administrative law judge found employee sustained a hernia arising out of and in the course of his employment. Employer/insurer appealed arguing; 1) the administrative law judge erred in ruling that employee satisfied his burden of showing a medical-causal relationship between his alleged accident, hernia and need for surgery; and, 2) the administrative law judge erred in awarding past medical expenses in the amount of $\ 7,519.25

We modify the award of the administrative law judge as set forth herein.

The administrative law judge issued an award on January 7, 2013. On page 1 of the award, the administrative law judge answered "No" to question 8, "Did accident or occupational disease arise out of and in the course of employment?" The content of the administrative law judge's decision made plain that the administrative law judge found that employee's injury by accident arose out of and in the course of employment. On January 24, 2013, employer/insurer filed an Application for Review. On January 28, 2013, the administrative law judge issued a purported corrected award that changed the answer to question 8 to "Yes." The purported correction is ineffective because the administrative law judge issued the correction after employer/insurer filed its Application for Review. "[T]he legislature extended an ALJ the complete authority to determine a claim upon original hearing and ... this authority is not extinguished until twenty days passes or until the Commission's exclusive authority is triggered by an application for review filed pursuant to either section 287.470 or section 287.480."2 To be clear, we answer question 8 to state that employee's injury by accident arose out of and in the course of his employment.

[^0] [^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2007, unless otherwise indicated. ${ }^{2}$ Thomas v. Treasurer, 326 S.W.3d 876, 880 (Mo. App. 2010).

We will address employer's first point as we consider whether employee satisfied § 287.195 RSMo. The administrative law judge failed to make findings regarding the elements of proof mandated by $\S 287.195$ RSMo in claims for compensation based upon hernias. That section provides:

In all claims for compensation for hernia resulting from injury arising out of and in the course of the employment, it must be definitely proved to the satisfaction of the division or the commission:

(1) That there was an accident or unusual strain resulting in hernia;

(2) That the hernia did not exist prior to the accident or unusual strain resulting in the injury for which compensation is claimed.

We must make additional findings relative to the above elements of proof.

The parties agree a conveyor gearbox weighing in excess of 200 pounds hung from the right side of a conveyor. The gearbox was threaded upon a shaft that turned the conveyor belt. On the date of employee's alleged injury, a problem arose with the conveyor and the gearbox had to be moved. There is conflicting evidence regarding why the gearbox had to be moved, but the parties agree the gearbox was stuck and would not move. Employee alleges he sustained his hernia while attempting to un-stick the gearbox.

According to employee, someone installed the gearbox the previous day but did not properly lock the gearbox down. When the conveyor belt was powered on, the gearbox became unseated from its bearing and the gearbox and shaft shifted 5 to 6 inches out of center. Employee testified the end-goal on the date in question was to shift the gearbox back into position and properly lock it down so gearbox was centered on the shaft. According to employee's supervisor Bruce Baget, on the date in question a gear in the gearbox stripped. Mr. Baget believed the end-goal of the gearbox project was to remove the gearbox from the shaft upon which it was threaded so employer could transfer the gearbox off-site for repair. As will be seen, this difference between employee's end-goal and Mr. Baget's end-goal is significant.

We believe that on the morning of his injury, employee and a co-worker were charged with reseating the gearbox, as described by employee. The gearbox was stuck and employee and his co-worker had difficulty getting the gearbox to move. The workers spent about 2 hours trying to loosen the gearbox from its stuck position. During this time, employee spent most of that time standing on the frame of the conveyor maneuvering a 5 -foot pry bar to exert force on the gearbox in an effort to free the gearbox from its stuck position. Employee's supervisor, Mr. Baget, stopped by the machine two or three times and attempted to move the gearbox without success.

Employee testified that he moved the pry bar against the gearbox "any kind of way you could" to try to loosen the gearbox. One method employee tried was alternatively leaning back and forward in an effort to pull and push the pry bar with his body weight.

Employee testified that while he was trying this out-and-back maneuver he experienced "a sharp pain in [his] belly."

Mr. Baget testified of this method, "it can't be done like that." Explaining further, Mr. Baget explained employee "would have no leverage to do this" and employee would not have had a place to put his left foot so employee could center himself with the gearbox. Consequently, Mr. Baget concluded the only way employee could have been moving the pry bar was side-to-side across the front of his body.

We are not persuaded by Mr. Baget's opinion regarding what maneuvering would accomplish the project's goal because the direction of the force exerted to achieve the worker's ultimate goal (gearbox completely on shaft) was different than the direction of the force that would have been exerted to achieve what Mr. Baget thought the worker's goal was.

It may be true, as Mr. Baget testified, that employee could not have successfully removed the gearbox from the shaft using the out-and-back method (i.e. "it can't be done like that"). But, if true, that fact would not render employee's version of events implausible. Employee was not trying to remove the gearbox from the shaft at the time of his injury. Further, employee did not testify that he was successful in dislodging or moving the gearbox using the out-and-back method; employee testified only that the out-and-back method is what he was trying at the time of the onset of his belly pain.

We find that at the time employee experienced the acute onset of pain in his abdomen, he was exerting significant force on the pry bar by alternately leaning his body weight forward into the pry bar (away from his body) and using his body weight to pull back on the pry bar (toward his body). We find that the event constituted an accident.

Dr. Musich believes that the work incident on June 4, 2008, was the prevailing factor in causing employee's acute abdominal trauma, pain, and bulging that physicians diagnosed as a reducible umbilical hernia. Dr. Musich does not believe employee suffered from any significant pre-existing disability referable to his abdominal wall or intestinal contents.

In reaching her opinion, Dr. Shockley accepted Mr. Baget's theory that employee could only have been maneuvering the pry bar side-to-side to exert force on the gearbox, as Mr. Baget demonstrated to her. That is, Dr. Shockley assumed employee was maneuvering the pry bar in a side-to-side manner when he experienced the onset of pain. Dr. Shockley opined that using that side-to-side motion, employee could not have been exerting sufficient force to cause a hernia. We have accepted employee's testimony that he was moving the pry bar out and back when he experienced the onset of pain. Consequently, Dr. Shockley's opinion about the amount of force employee would have exerted in a side-to-side maneuver is of little assistance to us.

For the forgoing reasons, we find the testimony of Dr. Musich is more persuasive than the testimony of Dr. Shockley. We find that employee sustained an accident resulting in

hernia on June 4, 2008. Employee testified that he did not have pain in his abdomen before he experienced the pain in his abdomen while using the pry bar. Dr. Musich testified that his examination did not reveal a chronic abdominal wall injury. Employee's medical records do not reveal a history of abdominal wall injury or hernia. We affirm the administrative law judge's finding that employee sustained an injury by accident arising out of and in the course of his employment. We find that employee has definitively proven to our satisfaction that he sustained an accident June 4, 2008, resulting in hernia on June 4, 2008, and, that his hernia did not exist prior to the June 4, 2008, accident. We find the employee has proven the elements of $\S 287.195$.

The record confirms that the parties stipulated that the amount of unpaid past medical expenses is $\ 190.00. Employee concedes as much in his brief. We modify the award of past medical expenses due from employer/insurer to employee from $\ 7,519.25 to $\ 190.00.

We modify the award and decision of the administrative law judge as set forth herein.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

The January 7, 2013, award and decision of Administrative Law Judge Joseph E. Denigan is attached and incorporated by this reference to the extent it is not inconsistent with our findings, conclusions, award and decision herein.

Given at Jefferson City, State of Missouri, this $2^{\text {nd }}$ day of August 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

John J. Larsen, Jr., Chairman

James Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: June 4, 2008
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 was hustling about an above-grade mounted gearbox using a pry bar to disengage it from the conveyor drive axle.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or