Billy Tabor v. Clinton Schreiber Foods, Incorporated

Employee: Billy Tabor

Employer: Clinton Schreiber Foods, Incorporated

Insurer: Zurich American Insurance Group

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

Employee filed three claims for compensation alleging various injuries sustained during his employment with employer. The administrative law judge issued three awards denying compensation. Even though employee's claims involved different facts and theories of injury, the awards issued by the administrative law judge were, in all material respects, identical. Employee filed timely Applications for Review in each claim.

On March 1, 2013, the Labor and Industrial Relations Commission (Commission) issued orders finding that the administrative law judge failed to properly address the issues involved in the individual claims, and remanding the cases to the administrative law judge with directions to issue separate awards with specific findings.

On November 20, 2013, employee filed a "Petition to Reconsider the Commission's Order and Requesting the Commission Issue a Final Award." Employee alleges the administrative law judge failed to act on the Commission's orders of remand because the administrative law judge believed the remands were improper. Employee requests that the Commission review the record and issue awards disposing of his claims. The Commission has not received any response by employer or the Second Injury Fund to employee's motion.

The Code of Judicial Conduct for Missouri Workers' Compensation Administrative Law Judges states that "[a] worker's compensation administrative law judge shall dispose of all judicial matters promptly, efficiently, and fairly."1 More than one year has passed since we issued our remand order. The record reveals no action taken in response to our order. The administrative law judge's reasons for taking no action in response to our remand order do not appear of record. The administrative law judge in the instant matter did not dispose of this matter promptly. He did not dispose of it at all.

Employee's motion of November 20, 2013, suggests the administrative law judge decided he did not have authority to take the action we directed. If the suggestion is true, it does not explain why the administrative law judge did nothing in response to our remand order. We believe the Code of Judicial Conduct direction that administrative law judges dispose of matters promptly required the administrative law judge to take some action in response to our remand order long before the passage of an entire year,

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[^0]: ${ }^{1}$ Code of Judicial Conduct for Missouri Workers' Compensation Administrative Law Judges, Canon 3.5

en if that action was merely an order expressing his belief that he had no authority to comply with our order.

We continue to be of the opinion that our order of remand herein was a proper exercise of our authority under $\S 287.610 .5 RSMo, which specifically states that " [t]$ he labor and industrial relations commission may remand any decision of an administrative law judge for a more complete finding of facts." However, in the interest of providing the parties with a resolution in this matter, and because the administrative law judge has failed to take any action whatsoever to give effect to our orders of remand, we will conduct a review on the merits, despite the difficulty presented by the administrative law judge's original failure to fulfill his statutory duty under $\S 287.460 .1$ RSMo to render an award "together with a statement of the findings of fact, rulings of law and any other matters pertinent to the question[s] at issue." See also Stegman v. Grand River Reg'l Ambulance Dist., 274 S.W.3d 529 (Mo. App. 2008), discussing the needless burden upon the administrative and judicial system that results where, as here, an administrative law judge declines to fulfill his duty under the law.

Accordingly, we hereby set aside our order of remand dated March 1, 2013, and take up this matter pursuant to our jurisdiction under $\S 287.480$ RSMo.

At the hearing, the administrative law judge identified the following issues: (1) accident; (2) the need for future medical care; (3) the nature of permanent disability; and (4) the liability of the Second Injury Fund.

The administrative law judge determined as follows: (1) it appears that employee's work for employer is not the prevailing factor ${ }^{2} in causing employee's current disability to his upper extremities, { }^{3} neck, { }^{4}$ or back; (2) employee is not entitled to any permanent partial disability from employer; and (3) there is no Second Injury Fund liability. The administrative law judge did not address the issue of accident. Nor did he address the issue whether employer is required to provide future medical care to employee.

As noted above, employee filed a timely Application for Review challenging the administrative law judge's findings and conclusions. For the reasons set forth herein, we deny employee's claim for compensation with this separate opinion.

On October 29, 2004, employee was moving a pallet full of cheese in the course of performing his duties for employer, when he felt a pop and experienced pain in his low back. Employee reported the accident to employer but did not receive authorized treatment, so he sought care on his own at the Golden Valley Memorial Hospital emergency room, where attending physicians diagnosed an acute lumbar strain and prescribed Toradol and Norflex. Employee followed up with Dr. Wetzel every few

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[^0]: ${ }^{2}$ This claim involves an injury by accident alleged to have occurred on October 29, 2004. We note that the "prevailing factor" standard of compensability did not become law in Missouri until August 28, 2005.

${ }^{3} Employee does not allege injury to his upper extremities herein.

{ }^{4}$ Employee does not allege injury to his neck herein.

weeks until March 14, 2005; the last record shows employee as "clinically better," and "asymptomatic at this time," with only occasional stiffness in the low back. See Transcript, pages 1333-36.

Employee's medical experts, Drs. Truett Swaim and P. Brent Koprivica, did not identify any permanent partial disability as having resulted from the event of October 29, 2004, nor did they address the issue whether there is a reasonable probability that employee will need future medical treatment as a result of the event of October 29, 2004.

Employer's medical expert Dr. Terrence Pratt found the 2004 event significant enough to opine that, together with a later aggravation employee suffered in 2006, employee's work activities are the prevailing factor in causing aggravation to his low back and potentially resulting in a disc protrusion seen on a December 5, 2006, MRI. Employer's medical expert Dr. Eden Wheeler believes employee's 25 years of heavy labor for another employer caused his low back problems. Drs. Pratt and Wheeler did not address the issue of future medical treatment.

The treatment record, as noted above, does not support a finding that employee suffered any permanent partial disability as the result of the event on October 29, 2004. Especially given the failure on the part of employee's experts to address the issue, and because Dr. Pratt lumped the 2004 injury together with a later 2006 injury and did not identify or rate any permanent partial disability as resulting from the 2004 event, we find that employee did not suffer any permanent partial disability as a result of the event on October 29, 2004.

Given the failure on the part of all medical experts to address the issue of future medical care, and given employee's failure (in his brief) to direct us to any other evidence supporting a finding that there is a reasonable probability that employee will need future medical treatment as a result of the accident, we find that employee has failed to meet his burden of proof with respect to this issue. We find that there is not a reasonable probability employee has a need for future medical care flowing from the 2004 event.

The version of § 287.020.2 RSMo applicable to this claim provides, in relevant part, as follows:

The word "accident" as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen identifiable event or series of events happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury.

We have found that on October 29, 2004, employee was moving a pallet full of cheese in the course of performing his duties for employer, when he felt a pop and experienced pain in his low back. We conclude that employee suffered an "accident" for purposes of the foregoing definition.

Section 287.140.1 RSMo provides for an award of future medical treatment where the employee can prove a reasonable probability that he has a need for future medical treatment that flows from the work injury. Conrad v. Jack Cooper Transp. Co., 273 S.W.3d 49, 51-4 (Mo. App. 2008). We have found that employee failed to meet his burden of proof with respect to this issue, and that there is not a reasonable probability that employee has a need for future medical care flowing from the accident of October 29, 2004. We conclude employee is not entitled to future medical care.

Section 287.190 RSMo provides for the payment of permanent partial disability benefits in connection with a compensable work injury, but we have found that employee did not sustain any permanent partial disability as a result of the accident of October 29, 2004. We conclude that employer is not liable for permanent partial disability benefits.

Section 287.220.1 RSMo provides for Second Injury Fund liability where an employee who suffers from preexisting disability suffers "a subsequent compensable injury resulting in additional permanent partial disability." There is no "subsequent compensable injury resulting in additional permanent partial disability" herein, thus the issue of Second Injury Fund liability is moot.

Employee's claim for compensation is denied. Employee is not entitled to permanent partial disability benefits from the employer or from the Second Injury Fund. Employee is not entitled to future medical benefits.

The award and decision of Administrative Law Judge Mark Siedlik, issued April 12, 2012, is attached solely for reference and is not incorporated by this decision.

Given at Jefferson City, State of Missouri, this $\qquad 30^{\text {th }} \qquad$ day of April 2014.

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Billy Tabor

Injury Nos: 04-117102

Dependents: N/A

Employer: Clinton Schreiber Foods Incorporated

Additional Party: The Second Injury Fund

Insurer: Zurich American Insurance Group

Hearing Date: January 27, 2012

Briefs Submitted: February 29, 2012

Checked by: MSS/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. Claimant merely suffered aggravation of underlying degenerative and preexisting conditions.
4. Date of accident or onset of occupational disease: October 29, 2004
5. State location where accident occurred or occupational disease was contracted: Clinton, Henry 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? 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: The employee alleged his injuries occurred from performing repetitive tasks of