Ricky Bisch v. City of University City

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 09-065775

Employee: Ricky Bisch

Employer: City of University City

Insurer: St. Louis Area Insurance Trust

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 $\S 287.480$ RSMo. We have reviewed the evidence, read the briefs, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we reverse the award and decision of the administrative law judge.

The parties submitted the following issues for determination by the administrative law judge: (1) accident; (2) injury arising out of and in the course of employment; (3) notice; (4) medical causation; (5) past temporary total disability from July 20, 2009, through August 12, 2009, September 28, 2009, through October 13, 2009, and November 18, 2009, through December 15, 2009; (6) nature and extent of permanent partial disability; and (7) Second Injury Fund liability.

The administrative law judge concluded that employee failed to meet his burden to demonstrate that an injury by accident occurred.

Employee filed a timely Application for Review with the Commission alleging the administrative law judge erred in concluding employee did not sustain an accident because: (1) employee's expert and a treating podiatrist placed compensability upon the employer; and (2) the award misinterprets the testimony provided by employee's expert.

For the reasons set forth herein, we reverse the administrative law judge's award and decision.

Employee works for employer as a janitor. On June 27, 2009, employer required employee to work an overnight shift stripping and refinishing floors in preparation for an important event on employer's premises. Nobody was available to help employee perform this task. In order to finish the job, employee spent an entire 13-hour shift on his feet. Employee's tasks involved going to get water, adding stripper to the water, emptying the water, using a scrubber to clean the floors, buffing the floors, dry mopping the floors, and waxing the floors. Employee did not stop working until about 1:00 or 2:00 a.m.

After employee finished his duties, he sat down for about five minutes. When he stood back up, he felt excruciating pain in the center of his right foot toward the heel.

Employee hadn't noticed any pain in his foot over the course of his shift; employee explained that he had been focused on completing the job and wasn't thinking about anything else.

Because it was a weekend, none of employee's supervisors were available. On the following Monday, employee told his supervisor, Kurt Wright, that he'd hurt his right foot stripping the floors and that he needed to see a doctor. Mr. Wright told employee that he would get him to a doctor, but Mr. Wright then busied himself with other tasks. Employee made several more requests for treatment. Mr. Wright told employee that he'd filed some paperwork, but there was no response from the work comp people. So, employee saw his own personal physician, Dr. Shetty, who sent him to a podiatrist, Dr. Amy Schroeder, on July 21, 2009. Dr. Schroeder diagnosed plantar fasciitis and provided a Kenalog/lidocaine injection, power step inserts, and a night splint. Dr. Schroeder also issued off-work slips covering the period of July 20, 2009, to August 12, 2009.

Employee continued to request that employer provide him with treatment. On August 3, 2009, employer sent employee to its authorized physician, Dr. Cynthia Byler. Dr. Byler examined employee, diagnosed plantar fasciitis, and came to the conclusion employee's right foot problems were the product of a tiny heel spur. Based on Dr. Byler's opinion, employer denied employee's request for treatment.

From September 28, 2009, through October 13, 2009, employee was off work on Dr. Schroeder's orders. On November 18, 2009, Dr. Julie Stewart performed an endoscopic surgery to correct the plantar fasciitis. Following the surgery, Dr. Stewart took employee off work for 6-8 weeks, but employee testified (and we so find) that he was able to go back to work on or about December 15, 2009.

Employee's work causes his right foot to be swollen and painful sometimes, and he has trouble navigating stairs. About every two weeks, employee rolls a bottle of ice water under his right foot to reduce pain and swelling. Employee also takes Aleve.

Employer presents the expert medical testimony of Dr. Byler, who believes that employee's work activity was not the prevailing factor causing his plantar fasciitis, but instead that employee's obesity and a tiny posterior heel spur are the prevailing factors in causing that condition.

Employee presents the expert medical testimony of Dr. Shawn Berkin, who believes that the accident that occurred in June 2009 when employee was working on his feet stripping floors for up to 13 hours was the prevailing factor causing employee to suffer plantar fasciitis in his right foot. Dr. Berkin rated that condition at 30\% permanent partial disability of the right lower extremity at the level of the ankle.

Dr. Berkin also opined, on cross-examination, that employee's plantar fasciitis didn't develop all in one day of work, but instead developed over time, as employee was on his feet a lot at work. Notably, however, Dr. Berkin did not revise his opinion (provided multiple times in both his report and on direct examination) that the 13-hour shift

employee spent on his feet was the prevailing factor causing plantar fasciitis. It thus appears to us that Dr. Berkin believes that employee's spending a lot of time on his feet at work was a factor in causing his plantar fasciitis, but that the 13-hour shift employee spent on his feet was the prevailing factor causing him to suffer plantar fasciitis.

After careful consideration, we find more persuasive the testimony and opinions from Dr. Berkin. Specifically, we find most persuasive Dr. Berkin's opinion that employee's working on his feet stripping floors for 13 hours was the prevailing factor causing employee to suffer plantar fasciitis in his right foot and associated disability.

The administrative law judge concluded that employee did not sustain an accident. We disagree. Section 287.020.2 RSMo provides, as follows:

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 an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

We have found, based on employee's testimony, that on or about June 27, 2009, employee worked a 13-hour shift on his feet, after which he sat down for five minutes, and that upon rising, employee felt excruciating pain in his right foot. We are persuaded that these facts satisfy each of the foregoing criteria for an "accident," because employee (1) suffered an unexpected traumatic event or unusual strain (working on one's feet for 13 hours) (2) identifiable by time and place (June 27, 2009, at employer's premises) (3) that produced, at the time, objective symptoms (pain in employee's right foot) of an injury (plantar fasciitis) caused by a specific event (working on one's feet for 13 hours) (4) during a single work shift.

We acknowledge the argument that the gradual trauma employee suffered during his 13-hour shift makes this an occupational disease case, and that employee's claim must thereby fail because he has pleaded an injury by accident. Applying strict construction, we find nothing in the Missouri Workers' Compensation Law that compels an injured worker to elect either an accident or occupational disease theory of compensability in order to recover benefits. In theory, at least, this would produce an absurd result wherein an injury may be determined to be equally due to work-related trauma and work-related repetitive trauma but recovery be denied.

For purposes of resolving this case we simply conclude that when evidence in the record establishes that work-related, repetitive trauma may have caused asymptomatic structural weakness or damage to a body part but the employee experiences a sudden onset of disabling symptoms at work due to the performance of job duties during a single shift, the employee has satisfied the burden of proving an accidental injury.

We conclude that employee suffered an accident for purposes of $\S 287.020 .2$.

Improve: Ricky Bisch

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Section 287.020.3(1) RSMo sets forth the standard for medical causation applicable to this claim and provides, in relevant part, as follows:

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.

We have found persuasive and adopted the testimony from Dr. Berkin that the June 2009 accident is the prevailing factor causing employee to suffer right plantar fasciitis. We conclude that the accident is the prevailing factor causing both the resulting medical condition of right plantar fasciitis and permanent partial disability to the extent of 10 % of the right lower extremity at the 160 -week level.

The parties dispute whether employee proved that his injuries arose out of and in the course of employment for purposes of $\S 287.020 .3(2)$ RSMo, which provides, as follows:

An injury shall be deemed to arise out of and in the course of the 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.

We have already determined that the June 2009 accident is the prevailing factor in causing employee's injuries; thus employee has satisfied subsection (a) above. With respect to subsection (b), we note that the courts have recently interpreted the foregoing language to involve a "causal connection" test that employees must satisfy in order to prove that an injury has arisen out of and in the course of the employment. Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504, 510-11 (Mo. 2012). The Johme court held that an employee who fell and suffered injuries while making coffee "failed to meet her burden to show that her injury was compensable because she did not show that it was caused by risk related to her employment activity as opposed to a risk to which she was equally exposed in her normal nonemployment life." Id. at 512.

Advancing Johme, employer argues that we should find that the hazard or risk that resulted in employee's injuries is that of standing up after sitting down for five minutes. We are not persuaded. Nothing in the Johme case suggests we should view workplace injuries in a vacuum so microscopically focused that we ignore the reality of what actually happened to the employee. We find that employee's injuries resulted from the risk of working a 13-hour shift on one's feet. We note that the record contains no evidence that

would support a finding that workers would have been equally exposed to that hazard or risk outside the employment in normal nonemployment life. We conclude, therefore, that employee's injuries arose out of and in the course of employment.

Section 287.420 RSMo sets forth the requirements for the notice employees must provide employers regarding a work injury, and provides, in relevant part, as follows:

No proceedings for compensation for any accident under this chapter shall be mai