Billy Tabor v. Clinton Schreiber Foods, Incorporated

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 06-102519

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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even 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 § 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 § 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 § 287.480 RSMo.

At the hearing, the administrative law judge identified the following issues: (1) accident;² (2) whether the accident arose out of and in the course and scope of employment; (3) medical causation; (4) the need for future medical care; (5) the nature and extent of permanent disability; (6) the liability of the Second Injury Fund; and (7) whether Second Injury Fund liability attaches to an occupational disease.

The administrative law judge determined as follows: (1) it appears that employee's work for employer is not the prevailing factor in causing employee's current disability to his upper extremities, neck, 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 specifically address the issue of accident or occupational disease.

As noted above, employee filed a timely Application for Review challenging the administrative law judge's findings and conclusions. Pursuant to § 286.090 RSMo, we reverse the award and decision of the administrative law judge for the reasons set forth herein.

Employee worked for employer from May 5, 2003, to November 13, 2006. From February to November 2006, employee worked a position that required him to perform a task known as "changeovers." This task required employee to reach into a machine and lift out and replace a suction cup device in order to prepare the line for a new product. Employee credibly testified (and we so find) that this task required him to lift

² We note that employee's claim for compensation alleges injuries by repetitive motion, i.e., by occupational disease, and does not allege an accident.

awkwardly with his arms extended in front of him. Employee experienced pain when he performed this task, which he was required to do multiple times per shift. The suction devices weighed between 20 and 45 pounds.

Employee alleges he suffered repetitive cumulative injury to his neck and low back performing the changeover task. It is uncontested that employee suffered from preexisting problems referable to his neck and low back. Employee suffered a low back injury around 1998 that improved with physical therapy, but also left him with ongoing pain sufficient to occasionally cause him to miss work. A February 11, 2000, MRI revealed diffuse spondylitic changes and degenerative disc disease from C4-5 to C7-T1. In 2003, employee settled a workers' compensation claim against a former employer that alleged injury to his back and neck (and also his bilateral upper extremities) for 20% permanent partial disability of the body as a whole.

Employee credibly testified (and we so find) that his duties for employer, and specifically the daily task of performing changeovers, caused an increase in his back and neck pain so severe that he was unable to continue working after November 2006. Employee reported the injury, but employer did not provide treatment, so he sought it on his own. On November 27, 2006, and December 5, 2006, cervical and lumbar MRIs revealed diffuse degenerative changes in the cervical spine, as well as a bulging disc at C3-4; and an L4-5 herniation and diffusely bulging disc at L3-4 in the lumbar spine. On December 4, 2006, employee saw Dr. Roller, who diagnosed lumbar facet syndrome and prescribed facet blocks. Employee underwent a course of facet blocks, epidural injections, radiofrequency ablation, and physical therapy for his low back pain through March 15, 2007.

Employee's evaluating expert Dr. P. Brent Koprivica opined that employee's degenerative disease clearly preexisted his employment with employer, but that employee's repetitive work with employer is the prevailing factor leading to progression of these conditions and additional impairment; Dr. Koprivica identified an occupational disease consisting of repetitive injury to the cervicothoracic and lumbar regions. Employee also presented expert medical testimony from Dr. Truett Swaim, who opined that employee's cumulative occupational trauma was the prevailing factor in aggravating a preexisting lumbar condition and causing development of the L4-5 disc herniation and L3-4 disc bulging, which Dr. Swaim rates at 25% permanent partial disability of the body as a whole, as well as causing employee to develop additional permanent partial disability referable to his cervical condition to the extent of 20% permanent partial disability of the body as a whole.

Employer's evaluating expert Dr. Terrence Pratt opined that employee's work for employer would be the prevailing factor in causing aggravation of employee's underlying degeneration and possibly the L4-5 disc protrusion. The record also contains a report from employer's evaluating expert Dr. Stephen Reintjes, who opined that employee was suffering from cervical spondylosis that predated his October 2006 injury, and that there was no significant change between the 2000 and 2006 cervical MRIs. Dr. Reintjes did not provide any opinion whether the L4-5 lumbar herniation predated 2006. Employer also provides the expert medical testimony of Dr. Eden Wheeler, who opined that because

Employee had back and neck problems before, she could not say employee's work for employer is the prevailing factor in his current complaints. Dr. Wheeler cited a deposition wherein employee testified that his problems in 2006 were the "same only worse," and also pointed to employee's weight gain and the diagnostic studies showing degenerative conditions.

Unlike Dr. Swaim, Dr. Wheeler did not specifically address the changeover activity, or offer any opinion regarding the effect performing this activity might have on employee's preexisting low back and neck condition, and instead provided a generalized opinion that because employee had preexisting problems, his work for employer can't be seen to prevail in causing any of his current problems.

After careful consideration, we find more persuasive the opinions from Drs. Koprivica and Swaim. We specifically adopt the opinion from Dr. Swaim that employee's cumulative occupational trauma was the prevailing factor in aggravating his preexisting lumbar condition and causing development of the L4-5 disc herniation and L3-4 disc bulging, as well as aggravating and causing employee to develop additional permanent partial disability referable to his preexisting cervical spine condition.

We find that employee reached maximum medical improvement for these injuries on March 15, 2007. Dr. Swaim opined that employee needs ongoing conservative treatment for his cervical and lumbar spine injuries, including medications, pain management, and injections. We find persuasive and adopt this opinion from Dr. Swaim.

In the related claim designated as Injury Number 06-119870, we found that employee suffered the following preexisting permanent partially disabling conditions of ill-being referable to his 2000 injuries: a 10 % permanent partial disability of the body as whole referable to employee's neck pain, a 10 % permanent partial disability of the body as a whole referable to employee's low back pain, and a 10 % permanent partial disability of each wrist referable to bilateral carpal tunnel syndrome. We also found that employee suffered a 5 % preexisting permanent partial disability of the body as a whole referable to attention deficit disorder. We hereby adopt and incorporate those findings herein.

Employee was 51 years old at the time of the last injury. Employee credibly testified (and we so find) that he now suffers from neck and low back pain which prompts him to change positions every 20 to 30 minutes. Employee was taking Hydrocodone to manage this pain, but it stopped working, so now he takes Tramadol. Employee's bilateral carpal tunnel syndrome causes problems with numbness in his h