Donna Blyzes v. General Motors Corporation

- 2 -

be incidental to and not independent of the relation of employer and employee. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging shall not be compensable, except where the deterioration or degeneration follows as an incident of employment.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing the injury; and

(b) It can be seen to have followed as a natural incident of the work; and

(c) It can be fairly traced to the employment as a proximate cause; and

(d) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life;

(3) The terms "injury" and "personal injuries" shall mean violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body, such as artificial dentures, artificial limbs, glass eyes, eyeglasses, and other prostheses which are placed in or on the body to replace the physical structure and such disease or infection as naturally results therefrom. These terms shall in no case except as specifically provided in this chapter be construed to include occupational disease in any form, nor shall they be construed to include any contagious or infectious disease contracted during the course of the employment, nor shall they include death due to natural causes occurring while the worker is at work.

As noted by the administrative law judge, employee provided expert medical testimony from Dr. Jerry Meyers, who opined that employee's 20-year period of working on employer's assembly line was the prevailing and a substantial factor causing her to develop osteoarthritis requiring bilateral total knee replacements, as well as a traumatic injury to the right knee requiring meniscectomy, with continuing symptoms and impairment. We, like the administrative law judge, do not find Dr. Meyers's testimony sufficiently persuasive to satisfy employee's burden of proof, for the following reasons.

Employee testified at the hearing before the administrative law judge that she performed many different jobs and duties for employer during her lengthy tenure. Employee served as a secretary in the personnel department; worked on a factory line putting on rear doors; worked in the chassis department lifting shocks and axles; worked in the body shop doing unspecified tasks; performed a job requiring her to get in and out of vans, sit on a pad, and run cables through vans; drove cars off the line to a lot on employer's premises; did a front shock job using a heavy machine to compress shocks; installed left front doors; and worked on a cleaning crew. Employee failed, however, to establish a consistent timeline for these

Various duties and positions. For example, employee initially testified that she worked in the chassis department "after 2006," *Transcript*, page 198, but later suggested that she "only" worked in the chassis department for six weeks from March to May 2004. *Transcript*, page 302. Similarly, employee initially testified she performed the job running cable through vans starting in 2004, *Transcript*, page 188, but later suggested she began this job in 2011 after being taken out of the chassis department. *Transcript*, page 210. The ambiguities with regard to the timing and duration of the chassis department jobs are particularly troubling, in that employee seemed to suggest that this work contributed to her claimed bilateral knee injuries more than any other of her duties for employer. It may have been that employee worked in the chassis department on several different occasions, but on this record, it is far from clear.

More importantly, employee failed to sufficiently describe the physical exertions or (alleged) repetitive traumas she experienced while working in these various duties and positions. It is not surprising, then, that Dr. Meyers rendered his opinions in a vague and generalized way, identifying employee's entire tenure (or, rather, an unspecified 20 years of it) as the causative trauma causing employee to suffer osteoarthritis. Dr. Meyers's report suggests he believed that employee worked as a repair person in a body shop, and that her duties in this position involved removing and replacing parts, welding, working with vibrating power air tools, applying hoists, doing heavy lifting, engaging in frequent bending, squatting, and walking, and working on her knees; that in 2000 employee changed to installing doors; that in 2002 employer moved employee to an unspecified more rigorous job for six weeks that caused her to suffer increasing knee pain and swelling, then moved her back to door assembly; and that in 2009 employer removed employee from her (unspecified) old job to a new position installing doors, but that employer then removed her from this job. Dr. Meyers's timeline does not match employee's, and it is wholly unclear from this record to what extent Dr. Meyers understood the work involved in her various positions and the physical exertions they required.

We are not unsympathetic to the fact that employee obviously has a very poor memory, and we recognize the difficulty in cataloguing the various duties she performed for employer over a span of nearly 27 years of employment. But given the widely varied nature of employee's assignments and duties for employer, we would expect medical testimony in her occupational disease claim to address the various physical exertions or repetitive traumas attendant to employee's different assignments and duties, and to describe the contribution of each to employee's claimed occupational injury of bilateral osteoarthritis. This is because we must determine whether there is a recognizable link between employee's work exposures and the disease of osteoarthritis. *Kelley v. Banta & Stude Constr. Co.*, 1 S.W.3d 43 (Mo. App. 1999). In our view, Dr. Meyers's testimony does not adequately explain how employee's work for employer was a factor (let alone a substantial one) in causing her to suffer the claimed injuries. We conclude, therefore, that employee's work was not a substantial factor causing her to suffer bilateral osteoarthritis of the knees, and affirm, for this reason, the award of the administrative law judge.

Additionally, we disclaim the administrative law judge's reference to information that was apparently derived from his own *sua sponte* perusal of materials from the Mayo Clinic, as the parties agree that no such evidence was offered or admitted into the record.

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

The award and decision of Administrative Law Judge Edwin J. Kohner, issued August 8, 2014, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 27^{\text {th }} \qquad$ day of May 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am convinced that the decision of the administrative law judge should be reversed in favor of an award of permanent partial disability benefits and future medical care.

Under the version of Chapter 287 governing this claim, the law is to be "liberally construed as to the persons to be benefited," Lawson v. Lawson, 415 S.W.2d 313, 318 (Mo. App. 1967), with the aim of "extend[ing] benefits to the largest possible class and resolv[ing] any doubts as to the right of compensation in the employee's favor." Sage v. Talbot Indus., 427 S.W.3d 906, 912 (Mo. App. 2014). I concur with the majority to the extent that I agree that employee's testimony is somewhat confused and contradictory with regard to the timing and duration of her various positions and work duties for employer. It appears to me that employee's testimony at the hearing suffered from an unfortunate combination of her poor memory as well as a rather disorganized and confusing presentation by her trial counsel. I disagree, however, that this circumstance alone warrants a rejection of her claim. Rather, to the extent that we have doubts about employee's right to compensation, we should resolve them in her favor.

Employee worked for employer for 27 years. For most of that time, she was working on her feet in employer's factory, building cars. Although she rotated to various positions on the assembly line, the record is clear enough that, for 27 years, employee was lifting heavy items and standing and walking constantly on employer's concrete floors. In addition, employee presented credible and essentially uncontradicted testimony that, on a number of occasions, employer required her to perform job duties that violated the physical restrictions assigned by her treating physicians with regard to her knees.

Combined with the testimony from Dr. Meyers, the foregoing is enough for me. Of course it would h