Jerry Murray v. Unilever United States, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 13-082412

Employee: Jerry Murray

Employer: Unilever United States, Inc.

Insurer: Insurance Company of the State of PA

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 30, 2014, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued December 30, 2014, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $24^{\text {th }}$ day of April 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Jerry Murray

Injury No. 13-082412

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Unilever United States, Inc.

Additional Party: None

Insurer: Insurance Company of the State of PA

Appearances: Mike Moroni, attorney for the employee.

Matthew Barnhart, attorneys for the employer/insurer.

Hearing Date: September 30, 2014 Checked by: LCK/rf

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? N/A
5. State location where accident occurred or occupational disease contracted: N/A.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Undetermined.
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.

On September 30, 2014, the employee, Jerry Murray, appeared in person and with his attorney, Mike Moroni, for a temporary or partial award. The employer-insurer was represented at the hearing by their attorney, Matthew Barnhart. The parties agreed on certain undisputed facts and identified the issue that was in dispute. These undisputed facts and issue, together with a summary of the evidence and the findings of fact and rulings of law, are set forth below as follows:

1. Unilever United States, Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Insurance Company of the State of PA.
2. On or about October 10, 2013, Jerry Murray was an employee of Unilever United States, Inc. and was working under the Workers' Compensation Act.
3. The employee's claim was filed within the time allowed by law.
4. The employer-insurer paid no medical aid.
5. The employer-insurer paid no temporary disability.

1. Accident.

1. Medical records of Cape Radiology.
2. Medical records of Express Care.
3. Medical records of Ferguson Medical Group.
4. Medical records of Regional Brain \& Spine.
5. Report of Dr. Woiteshek.
6. Withdrawn.
7. Acknowledgement of Claim form dated November 8, 2013.

A. Report of Injury dated December 9, 2013.

B-1. Photograph of the area where the alleged event took place.

B-2. Photograph of the area where the alleged event took place.

B-3. Photograph of the area where the alleged event took place.

B-4. Photograph of the area where the alleged event took place.

B-5. Photograph of the area where the alleged event took place.

B-6. Photograph of the area where the alleged event took place.

B-7. Photograph of the area where the alleged event took place.

C. Email sent by Angela McAfee dated October 18, 2013.

D. Email sent by Angela McAfee dated December 7, 2013.

E. Acknowledgement of Claim form from Division of Workers’ Compensation dated January 15, 2014, and Answer to Claim for Compensation and Acknowledgement of Answer form dated January 22, 2014.

Joint Exhibits:

1. Acknowledgment of Claim form and request for insurer information dated November 8, 2013, and returned envelopes.
2. Notice of lien of workers’ compensation benefits and returned envelope.
3. Notice of Pre-Hearing dated November 13, 2013, and returned envelope.

Judicial Notice of the contents of the Division file for the employee was taken.

Jerry Murray, Rodney Tidey, Shawn Clinton, Doyle Burgess and Angela McAfee.

The employee filed his proposed Award on October 27, 2014. The employer-insurer filed their proposed Award on October 30, 2014.

The employee testified that he was born in 1962 and lives in East Prairie. He started working at Unilever on July 7, 2013, in the mix room as a material handler. His job included disposing or recycling product which were in 30-32 or 55 gallon drums. The barrels usually contained mixed product that was waste or out of date.

The employee testified that on October 9, 2013, his shift started at 6:00 p.m. and ended at 6:00 a.m. on October 10, 2013. That night was busy and there were several 55-gallon barrels and 30-32-gallon barrels that were to be disposed of. Normally a pump was used to empty the barrels but the pump had been out of service the last four days. Employer Exhibit B-3 is a photograph of the pump that was used to drain the barrels that were usually on pallets. The materials would be pumped out of the barrel into the waste machine.

The employee testified that since the pump was broken they had to manually dump at least five 55 -gallon barrels containing waste into the waste machine. Employer Exhibit B-5 is the machine they dumped the waste into. Since the pump was not working, they took the barrels off the pallets, slid them to the edge, leaned them against the vat machine, and lifted them manually into the waste vat. The picture shows that the pallet was close to the edge of the machine but normally the pallets of barrels were further away than the pictures depict. The

waste was typically 4-5 inches from the top, and when the barrels were leaned some of the waste would spill out. The employee and another employee Rodney Tidey were dumping the last barrel which had an indentation or bend at the top. They leaned the barrel over and both started to pick the barrel up. The employee was on the left side of the barrel and Rodney Tidey was on the right side of the barrel. The employee's left arm was on the bottom edge of the barrel and his right arm was at the top edge as they were picking it up. As they started to lift, the front of the top part began to slide off the machine. Mr. Tidey released his side of the barrel to go to the front to pull it back on the machine to keep the barrel from falling off. At that point all of the liquid went to the back part of the barrel and the employee was holding the full weight of the barrel. The employee felt pain in his shoulder and it felt like a pulling of the muscle. He got a tingling sensation in his arm and neck. He did not think about it at the time but continued working. The accident happened at 1:00 a.m. He did not tell anyone about the incident that night because he did not think about being injured since there was so much going on and they were behind.

Rodney Tidey testified that he started working at Unilever on June 3, 2013, and worked with Jerry Murray in material handling. October 10, 2013, was the only time that he and the employee lifted barrels. They were dumping a pallet of molded strawberries. They had to tip the barrels over to dump the content into the melting vat. Employer Exhibit B-6 shows the silver melting vat. The barrels were 55 gallons and were heavy with some weighing up to approximately 200 pounds. They were almost full and contained 40-50 gallons of product. He did not remember if one of the barrels had a bend or dent in it. It may have but he does not recall. Mr. Tidey remembers lifting the barrels with the employee. Mr. Tidey stated that they were lifting the barrels and not using the pump because he thought it would be quicker to lean them over and dump them.

Mr. Tidey testified that on October 10, 2013, they were working with the black barrels pictured in Exhibit B-1. The material was about three inches above the top ring. When they were reworking the material the barrels were on the pallet. The pallet and barrels were about as close to the machine as what is shown in Employer Exhibit B-5. In order to dump the product into the vat, they tipped the barrel, rolled it onto the ledge and then tipped the barrel over which put some of the material into the vat prior to picking up the barrel. During the work shift of October 9-10, 2013, the employee never suggested that he hurt himself. Mr. Tidey has not had any contact with the employee since October 10, 2013.

Mr. Tidey testified that he did not know if the pump was not working. He dumped the barrels manually because he wanted to save time and not go find a pump. He was not sure if there was a pump with a red tag on it in that area. They usually kept red tag items across the hall to be fixed. He was in a hurry because it was shut down night; and there are generally more buckets those nights. He did not want to leave the next crew a mess. That is the only time he performed that job manually. Afterwards, the employer talked to him about the accident and there was an operational procedure learning to show what not to do. The pump should have been used instead of manually lifting 55-gallon drums.

The employee testified that when he got off work at 6:00 a.m. he went home and told his wife what happened and that his arm was bothering him. He ate breakfast, took a hot shower and

went to sleep around 8:00 a.m. When he woke up at 3:00 p.m. on Wednesday, October 10 he had a bad headache and did not think he could go to work. He called into work and spoke to Shawn who was the mix room supervisor. He told Shawn that he hurt his neck and shoulder but did not explain in detail what happened and did not specifically say it was work related. He told Shawn that he was having problems with headaches and pain in his neck and shoulder; and could not come into work on that shift which started at 6:00 p.m. on Wednesday, October 10 and ended at 6:00 a.m. on Thursday, Octobe