Donna Blyzes v. General Motors Corporation

The Second Injury Fund filed a timely application for review with the Commission alleging the administrative law judge erred: (1) because employee failed to prove she suffered an accident or occupational disease related to the date of injury of September 9, 2009; (2) because employee failed to prove that her work was the cause of her knee condition; (3) because employee failed to prove that she had permanent disability associated with the date of injury of September 9, 2009; and (4) because employee failed to prove that disability from the alleged September 9, 2009, accident or occupational disease combines with some preexisting condition to create Second Injury Fund liability.

For the reasons set forth herein, we reverse the administrative law judge's award and decision.

Employee worked for employer for nearly 27 years performing a variety of tasks. 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; 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 appears to advance three different theories of injury herein. First, employee alleges that, on or about September 9, 2009, she was working on a left front door install job when her body was frozen and her knees were frozen, and she experienced pain so severe that she had to call her husband to take her home from the plant. Transcript, pages 202-04. Alternatively, employee alleges that, on or about September 9, 2009, she tripped over a study guide, the leg of which was protruding out, and fell to the floor, landing on her knees and body. Transcript, pages 304-05. Finally, employee's brief filed with the Commission in this matter argues, in the alternative, that she suffered an unspecified injury to her knees by occupational disease culminating on or about September 9, 2009.

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. ${ }^{1}$ But Dr. Meyers did not identify any accident occurring on or about September 9, 2009, nor did he describe any traumatic event consistent with employee's testimony regarding her knees and body being frozen or tripping over a study guide and landing on her knees.

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[^0]: ${ }^{1}$ We have addressed Dr. Meyers's testimony regarding the 20-year theory of occupational exposure in employee's companion claim designated as Injury No. 04-148011, and found it lacking persuasive force to establish a compensable injury by occupational disease in that claim.

Given that employee suffered from preexisting bilateral osteoarthritis in her knees requiring total knee replacements, we would expect the medical testimony from her expert to apportion the disability (if any) referable to her claimed additional injury by accident on September 9, 2009, but employee has failed to present such evidence. We find, therefore, that employee did not suffer any medical condition or disability as a result of an accident on or about September 9, 2009.

Nor do we find Dr. Meyers's testimony sufficiently persuasive to establish that employee suffered any new injury by occupational disease culminating on or about September 9, 2009. Dr. Meyers did not address any new injury occurring after employee's total knee replacement surgeries, ${ }^{2}$ but limited his testimony to identifying the injuries he believed caused employee to need those surgeries. It appears that Dr. Meyers did not consider or address any new injury or disability occurring after employee's total knee replacement surgeries. Given employee's complex medical and surgical history with regard to her knees, we find the absence of persuasive expert medical testimony on this topic to be fatal to employee's claim for injury by occupational disease. Accordingly, we find that employee did not suffer any medical condition or disability by occupational disease culminating on or about September 9, 2009.

We deem the issue of medical causation to be dispositive. Employee alleges that an accident or occupational exposure caused her to suffer an injury occurring or culminating on or about September 9, 2009.

Section 287.020.3(1) RSMo provides, in relevant part, as follows:

An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

Section 287.067.2 RSMo provides, in relevant part, as follows:

An injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

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[^0]: ${ }^{2}$ We note that it is somewhat unclear from employee's multiple claims for compensation (combined with her rather confused and contradictory testimony at the hearing before the administrative law judge) which of her claimed injuries correlate to this claim for compensation. However, at oral argument in this matter, employee's counsel made clear that this claim does not include the total knee replacements.

We have found that employee did not suffer any medical condition or disability as a result of any accident or occupational disease occurring or culminating on or about September 9, 2009. We conclude that the claimed accident and/or occupational exposure are not the prevailing factor causing employee to suffer any identifiable medical condition or disability.

We reverse the award and decision of the administrative law judge. Employee has failed to satisfy her burden of proof with respect to the issue of medical causation. For this reason, we deny the claim.

All other issues are moot.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued August 8, 2014, is attached solely for reference.

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

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: September 9, 2009
5. State location where accident occurred or occupational disease was contracted: St. Charles 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? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Self-Insured
11. Describe work employee was doing and how accident occurred or occupational disease contracted: The employee alleged that her employer refused to honor restrictions given by a doctor and her job was outside of her restrictions and that eventually her legs and feet swelled up causing severe pain.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Both knees
14. Nature and extent of any permanent disability: 51 / 2 % permanent partial disability to the right knee, 25 % permanent partial disability of the left knee plus 10 % for multiplicity
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: $\ 884.00

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donna M. Blyzes

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 1,177.28
3. Weekly compensation rate: $\$ 784.85 / \ 422.97
4. Method wages computation