Gregory Byrd v. Hussmann Refrigeration

Injury No.: 10-081006

This workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by § 287.480 RSMo. ${ }^{1}$ We have read the briefs, reviewed the evidence and considered the whole record. Pursuant to § 286.090 RSMo, we modify and supplement the administrative law judge's award and decision denying compensation as set forth below.

On page 4 of the administrative law judge's award, the administrative law judge recites that "Employer's first notification that a work accident occurred was when the claim was filed on October 8, 2010." To be clear, employer had actual knowledge that on February 2, 2010, an incident occurred that ended with employee supine on the floor of employer's premises, after which an ambulance transported employee to the hospital. Further, employer conducted an investigation, which included inspecting the equipment employee was operating just before the incident and contacting the hospital to inquire about employee's treatment. For these reasons, we clarify the administrative law judge's finding, thusly: Employer did not receive written notification that employee alleged he sustained a February 2010 injury by accident arising out of and in the course of employment until employee filed his claim for compensation on October 8, 2010.

Employee alleges that he fell from the Hyster he was driving when the Hyster battery died and the Hyster suddenly jerked to a stop. The administrative law judge was not convinced by employee's testimony in this regard. Neither are we. Our review of the evidence convinces us that it is at least equally likely that employee's fall from the Hyster was the result of an idiopathic syncopal event unrelated to his employment.

For the forgoing reasons, we affirm the administrative law judge's conclusion that employee did not carry his burden of proving he sustained an injury by accident arising out of and in the course of his employment.

Under these circumstances, it is not necessary for us to address employer's argument that employee's claim is barred by the statute of limitation found in § 287.430 RSMo. Accordingly, we do not adopt the administrative law judge's findings or conclusions regarding whether employee's claim was filed within the period set forth in § 287.430 RSMo.

We attach hereto and incorporate herein the October 1, 2013, award and decision of Administrative Law Judge Margaret D. Landolt. We affirm and adopt the administrative

[^0] [^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2009, unless otherwise indicated.

law judge's findings, conclusions, award and decision to the extent they are not inconsistent with our findings, conclusions, award and decision set forth herein.

Given at Jefferson City, State of Missouri, this $17^{\text {th }}$ day of June 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Gregory Byrd

Injury No.: 10-081006

Dependents: N/A

Before the

Employer: Hussmann Refrigeration

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Industrial Party: Second Injury Fund

Insurer: Travelers Casualty \& Surety Co.

Hearing Date: July 3, 2013

Checked by: MDL

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: Alleged February 2, 2010
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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? N/A
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: Claimant alleged he was operating a hyster when the battery ran out and stopped abruptly and caused him to fall to the ground.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: 0
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? 0

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: N/A
4. Method wages computation: N/A

1. Amount of compensation payable:
2. Second Injury Fund liability: No

TOTAL:

1. Future requirements awarded: None

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Employee: Gregory Byrd

Departments: N/A

Employer: Hussmann Refrigeration

Additional Party: Second Injury Fund

Insurer: Travelers Casualty \& Surety Co.

Injury No.: 10-081006

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

A hearing was held on July 3, 2013 at the Division of Workers' Compensation in the City of St. Louis, Missouri. This case was tried concurrently with Injury No. 10-112426 which is the subject of a separate award. Gregory Byrd ("Claimant") was represented by Ms. Melissa Pantazi. Hussmann Refrigeration ("Employer") and its insurer Travelers Casualty \& Surety Co. were represented by Mr. Hans Amann. Although the Second Injury Fund ("SIF") is a party to this case, pursuant to the agreement of the parties the claim against the SIF shall remain open, and the SIF did not participate in the hearing. Ms. Pantazi requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about February 2, 2010 Claimant was an employee of Employer; venue is proper in the City of St. Louis, Missouri; Claimant's rate of compensation is $\ 422.97 for Permanent Partial Disability ("PPD") benefits; and Employer has paid no benefits.

The issues to be determined are whether Claimant sustained an accidental injury arising out of and in the course of employment on or about February 2, 2010; whether Employer received the requisite notice of the injury; medical causation; liability of Employer for past medical benefits in the amount of $\ 6,462; liability of Employer to provide future medical treatment; what is the nature and extent of PPD sustained by Claimant; whether the claim is barred by the statute of limitations; and what is the appropriate rate for Temporary Total Disability ("TTD") benefits.

Claimant is a 52 year old man who has worked for Employer since 1995. Claimant drives a hyster, and worked 40 hours a week on the second shift. On February 2, 2010 he was paid $\ 19.85 per hour. A hyster is a machine which moves cases of goods around a warehouse. The base of the hyster is a platform upon which Claimant would stand to drive the hyster. The hyster is battery operated, and has a foot pedal. The foot pedal makes the hyster go, and if you take your foot off the pedal it stops.

Claimant testified on February 2, 2010 he was driving the hyster at work and was retrieving boxes when the indicator light began to blink indicating the battery was running low. Claimant testified the hyster abruptly ran out of power which caused it to stop suddenly, and he was thrown from the vehicle and knocked unconscious. Claimant testified he landed on the concrete floor and hit his left side. Some of his co-workers saw him fall. Claimant testified he was not dizzy before he fell, but was dizzy after he fell. He testified he did not lose consciousness until after he fell.

Claimant's co-worker Ray Moore testified on behalf of Claimant. Mr. Moore was working with Claimant at the time of the accident. Mr. Moore testified he was driving a car to the dock when he saw Claimant driving the hyster and the hyster locked and threw Claimant off. He saw Claimant was knocked unconscious. Just before the accident Claimant was fine and wasn't having any physical problems. Claimant did not complain to him about feeling faint or dizzy that day. Mr. Moore testified he saw the hyster jerk before it stopped, and if the battery on the hyster is low it will lock, jerk, and throw someone off. Because Mr. Moore and Claimant work the second shift, sometimes the workers who work the first shift fail to charge up the hysters before the second shift arrives.

Mr. Chris Orr testified on behalf of Employer. Mr. Orr is Employer's Environmental Health and Safety Manager. His job is to insure OSHA compliance, perform accident investigation, and injury prevention. Mr. Orr was not at Employer's premises when the February 2, 2010 accident occurred, and was not at the hospital after it happened. After the February 2, 2010 accident Claimant did not contact him to request follow up treatment. Employer's first notification that a work accident occurred was when the claim was filed on October 8, 2010. Mr. Orr testified the hyster was inspected immediately after the accident and was found to be free of damage or defects. Mr. Orr testified in order for the hyster to stop abruptly, you would have to remove your foot from the pedal. Mr. Orr does not know if the Hyster was fully charged or not at the time of the accident.

An incident report was completed by Employer. The incident report indicates Claimant had fallen off of a "stocker" and was lying in the last shipping aisle. Claimant was conscious and was conversing with others who were trying to assist him. Claimant was transported by ambulance to DePaul Hospital.

The Ambulance records indicate Claimant was lying supine on the floor alert and oriented with mild confusion. Claimant's co-workers reported they came around the corner and saw Claimant lying on the ground about one foot from his hydraulic lift. Claimant first reported he remembered falling, but later said he did not remember anything that happened. He reported pain in the back of his head. Claimant reported feeling dizzy when he reported to work.

The records of DePaul Hospital indicate Claimant was found lying on the floor at work, and Claimant had no memory of what happened. He reported feeling dizzy most of the day. He complained of pain in his neck and left flank. He denied recent illness or new medication. Claimant gave a history of feeling dizzy all day. He indicated he started to feel like he might pass out and he went to the bathroom to sit down, and the next thing he knew he was on the floor. He reported being put on a new blood pressure medication the week before. Claimant was diagnosed with syncope and collapse, and renal insufficiency. A CT scan of Claimant's head

showed volume loss and white matter changes worse than expected for age, and right maxillary sinusitis, but no acute intracranial abnormality. A CT of his cervical spine showed no fractures, but mild disc space narrowing at C2-3, and moderate disc space narrowing at C3-4, C4-5 and C56. On October 4, 2010, an x-ray of Claimant's left hip was performed that revealed lucency at the left femoral head. The report asked to correlate if there was the possibility of avascular necrosis or direct traumatic injury.

Claimant testif