Barbara Head v. Harley-Davidson

1. An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion 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.

In her testimony, employee does describe unusual strains occurring at work on a single date sometime during the first week of December 2014. Specifically, employee described an event wherein a machine malfunctioned and jerked her left arm/shoulder. Her testimony in this regard appears to have been the administrative law judge's basis for concluding that employee's injury was the product of an "accident," as that term is defined by statute. ${ }^{1}$ Employee also, however, described repetitive trauma while lifting and manipulating motorcycle gas tanks weighing approximately 25 pounds. Employee's duties required her to repetitively lift such tanks and place them in another machine that wasn't working correctly, such that employee had to push and/or pull with her left arm to forcibly rotate the tanks.

Employee also presents the expert medical opinion of Dr. Rosenthal, an orthopedic physician with specialized experience in upper extremity pathology, who believes that employee's performance of her work duties was the prevailing factor causing her left shoulder injury. In portions of her report, Dr. Rosenthal does describe employee's shoulder injury in terms that are suggestive of an isolated event, or "accident" theory of injury. The doctor also refers, however, to her own personal experience and observations treating individuals working for employer, and identifies employee's performance of her job duties as placing her at increased risk for the suspected pathology. Specifically, Dr. Rosenthal states that employee's job "is repetitive and hand and upper extremity intense and is the type of job that can cause shoulder impingement and rotator cuff tears, labral tears and biceps tendonitis." Transcript, page 71. In our view, the identification by both employee and Dr. Rosenthal of a specific event accompanied by the sudden onset or increase of left shoulder pain does not preclude us from crediting the otherwise persuasive evidence that employee's job duties placed her at increased risk for developing a gradual onset repetitive motion injury by occupational disease, as the specific event may simply have been the first occasion on which employee was able to feel and recognize the gradual deterioration that had been taking place within her left upper extremity.

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[^0]: ${ }^{1}$ Section 287.020.2 RSMo states, in relevant part, as follows: "The word 'accident' as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift."

All rights reserved.

Injury No.: 14-105392

Employee: Barbara Head

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Ultimately, after careful consideration, we discern no compelling basis to second-guess the administrative law judge's finding that Dr. Rosenthal provided the more persuasive testimony in this matter with regard to the issue of causation. We additionally find persuasive evidence that employee has sustained an injury due to repetitive motion. Specifically, we conclude, especially in light of Dr. Rosenthal's persuasive, first-hand experience treating individuals working for employer, that employee's left shoulder injury had its origin in a risk connected to her employment, and flowed from that source as a rational consequence. We conclude that employee's occupational exposure was the prevailing factor causing her to suffer the resulting medical condition and any disability that may be referable thereto.

For the foregoing reasons, we conclude the claim is compensable.² Employee is entitled to, and employer/insurer are hereby ordered to provide, that treatment that may reasonably be required to cure and relieve the effects of employee's left upper extremity injury, including, but not limited to, the diagnostic studies recommended by Dr. Rosenthal, and any further treatment as indicated thereby.

Correction

The second sentence of the first paragraph on page 4 of the administrative law judge's award states as follows: "Head performs activities in the Finesse Rotation which is a plant department." We hereby correct the foregoing to read, instead, as follows: "Head works in employer's paint department, referred to throughout the record as 'Finesse Rotation.'"

Conclusion

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

The award and decision of Administrative Law Judge Paula A. McKeon, issued July 19, 2016, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

² In 2005, our legislature removed from § 287.067 a prior reference to the various requirements for accidental injuries set forth under §§ 287.020.2 and 287.020.3 RSMo. The obvious import of this amendment was to remove from our analysis the requirements set forth under those sub-sections, including the much-discussed "unequal exposure" test, see Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012). For this reason, we have not applied the unequal exposure test to this claim. See Lankford v. Newton Cnty., No. SD34269 (Jan. 17, 2017).

Given at Jefferson City, State of Missouri, this 1st day of February 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Barbara Head

Injury No. 14-105392

Employer: Harley-Davidson

Insurer: Trumbull Insurance Company

Additional Party: N/A

Hearing Date: June 30, 2016

Checked by: PAM/pd

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: December 9, 2014.
5. State location where accident occurred or occupational disease was contracted. Kansas City, Platte County, Missouri.
6. Was above employee in the 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? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While working on 17 softail tanks and low rider tanks on laser, Head injured her left shoulder.
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: left upper extremiy
14. Compensation paid to-date for temporary disability: None.

1. Value necessary medical aid paid to date by employer/insurer? N/A
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: $\$ 632.00 / 451.02$
4. Method wages computation: By agreement.

Future medical care: See Findings of Fact and Rulings of Law.

The compensation awarded to the Claimant shall be subject to a 25 percent lien in the amount of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Steffanie Stracke

Employee: Barbara Head

Injury No. 14-105392

Employer: Harley-Davidson

Insurer: Trumbull Insurance Company

Additional Party: N/A

Hearing Date: June 30, 2016

Checked by: PAM/pd

On June 30, 2016, the Employee and Employer appeared for a temporary hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The Employee, Barbara Head, appeared in person and with counsel Steffanie Stracke. The Employer, Harley-Davidson, appeared through counsel, Tom Billam.

The parties stipulated to the following:

1. That on or about December 9, 2014, Harley-Davidson was an employer operating subject to Missouri Workers' Compensation law with its liability fully insured by Trumbull Insurance Company;
2. That Head was its employee working subject to the law in Kansas City, Platte County, Missouri;
3. That Head notified Employer of her injuries and filed her claim for compensation within the time allowed by law; and
4. That Head's compensation rate is $\$ 632.00 / \ 451.02

1. Whether Head sustained accident/occupational disease arising out of and in the course of her employment; and
2. Whether Head's work duties were the prevailing cause of her left shoulder condition.

Barbara Head is a 52-year-old finesse worker at Harley-Davidson. Head performs activities in the Finesse Rotation which is a plant department. Over the course of her 13 years in that department, Head testified that she would work at one of four positions that would change on a weekly basis.

In early December 2014, Head experienced shoulder pain. Head attributes the pain to a period of work on December 2, 3 or 4 when she was working on 17 softtail tanks on a laser. It was a larger number of tanks than normal. Head would have to grab the tanks with her left arm to pull off a rack. The tanks weighed approximately 22 pounds. Once the tank was on the machine, she would have to spin the machine mechanism. Head testified that the spin mechanism was unusually tight, causing her to use her left arm to apply more pressure; coupled with the larger than normal tanks, she noticed her shoulder was sore. In addition, Head testified that while using a stand-up fixture which locks a tank into place with a foot pedal the mechanism did not lock and caused the tank to lunge forward which tugged her left arm in a jerking manner.

Head went to the plant nurse on December 9, 2014. Head reported her shoulder was very sore due to working on a large number of softail and low rider tanks on a laser. A report of injury was completed. She requested and was given ice packs and Ibuprophen. She continued to work. Head thought she would see how her shoulder felt before asking for additional care. Head also filled out a report of injury noting the date of injury as 12/2,3,4/2014? 7:30 to leave.

Head reported back to the nurse's station on 12/10, 12/11/ 12/12 with left shoulder discomfort and requesting ice packs. Head returned 12/16, 12/17, 12/19, 12/23, 12/24, 1/6, 1/7, $1 / 8,1 / 10,1 / 13$. Head consistently sought ice and medication through the plant clinic through January 2015. Head had a reduction of symptoms due to avoiding activities that aggravated her pain and complying with modification suggestions made by "Chris" at Harley-Davidson.

By May 2015, Head's left shoulder complaints had returned. She again presented numerous times to the health clinic seeking ice and medication in May, June and July of 2015.

Dr. Ritter, Medical Director for Harley-Davidson, did a review of Head's symptoms and complaints. This review was not in conjunction with any physical examination of Head or even a consultation. Dr. Ritter attributes all of Head's complaints to underlying degenerative process. He acknowledges she has a possible underlying impingement or rotator cuff pathology but does not feel it is work-related.

Dr. Rosenthal evaluated Head in November 2015. Dr. Rosenthal, who has extensive experience in evaluation and treating Harley-Davidson employees, determined that Head's work activities as reported on December 9, 2014 were the direct, proximate and prevailing factor in causing her left shoulder injury, need for medical treatment and resulting disability. Dr. Rosenthal recommends evaluation by a shoulder surgeon, X-rays and MRI.

Dr. Hall evaluated Head in December 2014. Dr. Hall feels that Head may have impingement and/or mild AC arthrosis. However, Dr. Hall does not believe any of her

symptoms are work-related. He attributes her symptoms to age and deconditioning. He does not find work to be the prevailing factor in her left shoulder condition.

Head seeks medical evaluation with a shoulder surgeon for diagnosis, care and treatment of her left shoulder condition.

The parties dispute accident and/or occupational disease. Section 287.020.2 RSMo provides:

"The word 'accident' as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective work symptoms of an injury caused by a specific even during a single work shift."

When Head reported to the Harley-Davidson health clinic on December 9, 2014, she specifically states the activities she was performing. She indicates she was doing an unusually large amount of softtail tanks and the "low rider on lazer." Her testimony has been consistent. Her activities were unusual and produced objective symptoms for which she sought treatment. She did list three different dates, which is confusing but not contradicted by any evidence offered by the employer. Accordingly, I find Head sustained an accident as defined by §287.020.2 RSMo.

There is also a dispute regarding medical causation. Section 287.020.3(1) RSMo provides:

"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."

While there are contradictory opinions regarding whether Head's work activities were the prevailing factor, I find Dr. Rosenthal's report to be more persuasive. Dr. Rosenthal clearly, accurately and credibly sets forth the basis for her opinions. Her prior experience with HarleyDavidson including reviews of job descriptions and observations of employees working at the plant enhance her findings.

Based on Head's testimony, medical records and reports, I find that Head sustained an accident or series of accidents which arose out of and in the course of her employment with Harley-Davidson which resulted in injury to her left shoulder. The employer and insurer are directed to provide medical treatment as necessary to cure and relieve the effects of her injury consistent with Dr. Rosenthal's report and recommendations.

This award is subject to an attorney's fee in the amount of 25 percent in favor of Steffanie Stracke.

Made by: $\qquad$

Paula A. McKeon

Administrative Law Judge

Division of Workers' Compensation