Zola Marshall v. R. J. Reynolds Tobacco

Employee is 5'11" in height and as of February 2007, she weighed 225 pounds. Her job duties, as reported to Dr. Swaim and recounted in her testimony, consisted of travelling to various locations where cigarettes were sold, checking and changing the arrangement of various cigarette displays, and installing promotional signs, posters, and banners. Employee drove 200 miles per week, servicing 8 to 10 locations per day. Employee normally spent about 30 minutes at each location. Employee's work involved occasional handling of signs weighing up to 50 pounds, but she estimated that most of the things she lifted at work weighed less than 25 pounds. Employee's duties required her to frequently stoop, squat, kneel, and climb stools and ladders, but employee did not specify the duration of such activities or explain what portion of a typical store visit involved such activities. Employee did testify that if she was doing a "reset" she could be on her hands and knees for up to 2 or 3 hours, but she did not specify how often this occurred.

Employee's treatment records from February 2007 make no reference to knee problems, although they note ongoing back problems, for which employee was in need of ongoing care. A note from Lee's Summit Family Care dated May 7, 2007, is the first treatment record referencing employee's right knee. The note records a history of pain and swelling for 2 weeks associated with walking. On May 15, 2007, employee complained of pain with sitting and reported she was on her feet a lot at work. On May 18, 2007, employee reported to the surgeon Dr. Go that she had been experiencing right knee pain off and on since mid-March 2007 after using a restroom with a low seat. At the hearing before the administrative law judge, employee testified that her right knee "just started hurting" in 2007. Transcript, page 31.

As noted above, Dr. Swaim is the only medical expert to testify in this matter regarding the issue of causation. Dr. Swaim's causation opinion, that repetitive weight bearing on the right knee in a flexed position is the likely cause of employee's joint pathology, is not inherently unpersuasive. But employee's descriptions of her job duties, as recounted in her testimony and as provided to Dr. Swaim and the treating physicians, are non-specific with regard to the frequency or duration of activities involving repetitive weight bearing with the right knee in a flexed position. Employee also provided the treating physicians with contradictory accounts regarding both the timing of the onset of her symptoms and the events and activities precipitating those symptoms.

Ultimately, Dr. Swaim's opinions are entitled to no more credence than the testimony from employee upon which said opinions necessarily rely. We find that employee is not a credible historian. We therefore find, after careful consideration, that Dr. Swaim's testimony is without adequate foundation, and we do not accept or adopt it. We conclude that employee's occupational exposure was not the prevailing factor in causing the resulting medical conditions and disability claimed herein.

Because employee's failure to prove that she sustained a compensable primary injury by occupational disease is fatally dispositive of her claim against the Second Injury Fund, we discern no need to consider the moot issues of notice, statute of limitations, or permanent total disability, and we hereby disclaim the administrative law judge's findings, analysis, and conclusions referable to each of those issues.

We affirm and adopt the award of the administrative law judge, as supplemented herein.

The award and decision of Administrative Law Judge Emily Fowler, issued August 1, 2013, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $28^{\text {th }}$ day of March 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Zola Marshall

Injury No: 07-135912

Dependents: N/A

Employer: RJ Reynolds Tobacco (Settled)

Additional Party: Treasurer of Missouri as Custodian of the Second Injury Fund

Insurer: ACE American Insurance (Settled)

Hearing Date: June 3, 2013

Briefs Filed: July 8, 2013

Checked By: ESF/cy

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? No
4. Date of accident or onset of occupational disease: May 23, 2007
5. State location where accident occurred or occupational disease was contracted: Jackson 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? No
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? No
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Working doing signage and promotional work at various retail outlets for cigarettes and noticed her right knee felt sprained and swelling
12. Did accident or occupational disease cause death? No

Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Zola Marshall

1. Part(s) of body injured by accident or occupational disease: right knee
2. Nature and extent of any permanent disability: none
3. Compensation paid to-date for temporary disability: 0
4. Value necessary medical aid paid to date by employer/insurer? Unknown
5. Value necessary medical aid not furnished by employer/insurer? Unknown
6. Employee's average weekly wages: $\ 564.15
7. Weekly compensation rate: $\$ 376.10 / \ 376.10
8. Method wages computation: based on evidence at hearing
9. Amount of compensation payable: None
10. Second Injury Fund liability: None
11. Future requirements awarded: N/A

Employee: Zola Marshall

Injury No: 07-135912

Dependents: N/A

Employer: RJ Reynolds Tobacco (Settled)

Additional Party: Treasurer of Missouri as Custodian of the Second Injury Fund

Insurer: ACE American Insurance (Settled)

Hearing Date: June 3, 2013

Briefs Filed: July 8, 2013

Checked By: ESF/cy

On June 3, 2013, the parties appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The employee, Zola Marshall, appeared in person, and with counsel, Diane Baker. The Second Injury Fund appeared through Assistant Attorney General, Laura Van Fleet. There was no appearance on behalf of the Employer and Insurer as the claim between the Employer and the Employee has previously been settled.

The parties stipulated to the following:

1. That the Employer, R.J. Reynolds, was an employer operating under and subject to the provisions of Missouri Workers' Compensation Law, and was fully insured by ACE American Insurance;
2. That Zola Marshall was its employee and working subject to the law in Jackson County, Missouri;
3. That the Employer has paid temporary total disability compensation in the amount of $\ 0.00 and medical care costing $\ 0.00.

The parties requested the Division to determine:

1. Whether or not Claimant suffered an occupational in the course and scope of employment;
2. The average weekly wage and applicable compensation rates;

1. Whether proper notice was given to the employer;
2. Whether the claim was filed in time;
3. The nature and extent of permanent disability;
4. Causation of her disability;
5. The liability of the Second Injury Fund.

The Employee, Zola Marshall, testified in person and offered the following exhibits, all of which were admitted into evidence without objection:

A. Claim for Compensation

B. Answer of SIF

C. Settlement with Employer/Insurer

D. RJ Reynolds Employee Incident Report

E. Employee's W-2 for 2007 RJ Reynolds

F. Certified records of Rustici Chriopractic

G. Records of Lee's Summit Hospital

H. Records of Lee's Summit Family Care

I. Records of Dr. Zarr

J. Records of St. Joseph Medical Center

K. Records of Mayo Clinic as of Aug. 28, 2006

L. Records of Mayo Clinic as of Aug. 13, 2010

M. Certified records Laser Spine Institute

N. Certified records Rockhill Orthopedic (Drs. Go and Dugan)

O. Certified Records Liberty Hospital

P. Certified Records Liberty Orthopedic

Q. Settlement with Employer/insurer in Inj. \#06-065456

R. Deposition of Truett Swaim, MD

S. Deposition Michael Dreiling, Vocational expert

T. Original claim for compensation filed 10/20/09

U. Report of Injury filed 11-2-09

V. Wage Statement

The Second Injury Fund did not call any witnesses and offered the following exhibits, all of which were admitted into evidence without objection:

1. Rockhill Orthopedic Records
2. Award of case 06-065456
3. 2010 Deposition of Claimant
4. Lee's Summit Family Care Records

Claimant (Zola Marshall) is a 58 year old female. Ms. Marshall worked for RJ Reynolds (Employer) from 1988 to 2007 with a brief