Henry Chester v. Sonoco Products Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 12-106559

Employee: Henry L. Chester

Employer: Sonoco Products Company

Insurer: Ace American Insurance Company

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 January 11, 2017, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Robert B. Miner, issued January 11, 2017, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 8^{\text {th }} \qquad$ day of September 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Henry L. Chester Injury No.: 12-106559

Employer: Sonoco Products Company Additional Party: None

Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri

Insurer: Ace American Insurance Company

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: June 5, 2012.
5. State location where accident occurred or occupational disease was contracted: Alleged: Chillicothe, Livingston 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? No.
8. Did accident or occupational disease arise out of and in the course of the employment? Employee failed to prove he sustained an accident or occupational disease arising out of and in the course of the employment.
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: Employee alleged he injured his back while lifting bags.
12. Did accident or occupational disease cause death? No.

1. Part(s) of body injured by accident or occupational disease: Alleged: back.
2. Nature and extent of any permanent disability: Not determined.
3. Compensation paid to-date for temporary disability: None.
4. Value necessary medical aid paid to date by employer/insurer? None.
5. Value necessary medical aid not furnished by employer/insurer? None.
6. Employee's average weekly wages: $\ 921.82.
7. Weekly compensation rate: $\ 614.55 for temporary total disability and $\ 425.19 for permanent partial disability.
8. Method wages computation: By agreement of the parties.

1. Amount of compensation payable: None. Employee's entire claim against Employer and Insurer is denied.
2. Second Injury Fund liability: None. No claim was made against the Second Injury Fund.
3. Future requirements awarded: None.

No attorney fee is awarded to claimant.

Employee: Henry L. Chester

Injury No.: 12-106559

Employer: Sonoco Products Company

Additional Party: None

Insurer: Ace American Insurance Company

Hearing Date: October 19, 2016

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Checked by: RBM

A final hearing was held in this case on October 19, 2016 in Chillicothe, Missouri on Employee's claim against Employer. Employee, Henry L. Chester, appeared in person and by his attorney, Daniel P. Dennis. Employer, Sonoco Products Company, and Insurer, Ace American Insurance Company, appeared by their attorney, Thomas V. Clinkenbeard. The Second Injury Fund is not a party in this case. Daniel P. Dennis requested consideration of his attorney fee be deferred. It was agreed that post-hearing briefs would be due on November 29, 2016.

At the time of the hearing, the parties stipulated to the following:

1. On or about June 5, 2012, Henry L. Chester ("Claimant") was an employee of Sonoco Products Company ("Employer") and was working under the provisions of the Missouri Workers' Compensation Law.
2. On or about June 5, 2012, Employer was an employer operating under the provisions of the Missouri Workers' Compensation Law and was fully insured by Ace American Insurance Company ("Insurer").
3. Claimant's Claim for Compensation was filed within the time allowed by law.
4. The average weekly wage was $\ 921.82, the rate of compensation for temporary total disability is $\ 614.55 per week, and the rate of compensation for permanent partial disability is $\ 425.19 per week.
5. No compensation has been paid by Employer/Insurer for temporary disability.

1. No medical aid has been paid or furnished by Employer/Insurer.
2. Any Award in favor of Claimant is subject to outstanding child support liens.

The parties agreed that there were disputes on the following issues:

1. Did Claimant sustain an injury by accident arising out of and in the course of his employment for Employer on or about June 5, 2012?
2. Is Claimant's current condition medically causally related to the alleged work injury of June 5, 2012?
3. What is Employer's liability, if any, for additional medical aid?
4. Did Claimant provide notice of his alleged accident as required by law?

Claimant testified in person. In addition, Claimant offered the following exhibits which were admitted in evidence without objection:

1-MRI report dated July 18, 2012

2-Sonoco Plastics Absence Detail

3-Separation Notice dated 7-31-13

Lovell Mentzer and Denise Belcher testified on behalf of Employer. In addition, Employer offered the following exhibits which were admitted in evidence without objection:

C—Color photographs

D-Color photographs

E-Employment records

F-Deposition of Troy Bennett

Court's Exhibit 1, Missouri Department of Social Services Statement of Arrears and Notices of Lien on Workers' Compensation Benefits, was admitted in evidence without objection.

This case was set for final hearing based on Employer's attorney's Request for Hearing-Final Award filed in this case. At the beginning of the hearing, Claimant's attorney orally requested the Court determine Claimant's request for additional medical

aid. The attorneys agreed that if the Court finds Claimant did not prove he sustained a compensable injury by accident arising out of and in the course of employment, a final award would be issued, but if Claimant proved he sustained a compensable injury by accident arising out of and in the course of employment, and proved he needed additional medical treatment due to a compensable accident, a temporary award would be issued.

Any objections not expressly ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, those markings were made prior to being made part of this record, and were not placed thereon by the Administrative Law Judge.

The Post-Hearing briefs have been considered.

Claimant testified that in mid-June 2012, he was working for Employer dumping bags. Employer makes plastic TV trays. Claimant was trying to keep up with the line when he felt something pop in his back. He alleged that the accident occurred on June 5, 2012 while lifting bags weighing between 50 and 100 pounds. He had pain while lifting. He testified he lifted fifty and seventy-five bags before the pain started. He thought he strained a muscle. He got some icy hot. He got worst each day after that.

Claimant did not think much of it at the time. He did not report it to a supervisor at the time because he did not think much about it

Claimant testified he went to a doctor because his legs were going out and sometimes got numb. He sometimes got pain that felt like bone on bone. The doctor ordered an MRI of Claimant's lower back. An MRI was done on July 18, 2012.

Claimant did not take time off work for a health-related injury prior to June 2012. Claimant took vacation days at the end of the year in 2012.

Claimant testified he notified his supervisor regarding his back injury when he realized he was not getting any better, and he was given time off for sick leave on June 10, 2013. Claimant then took some short term leave in June 2013. His legs were going out then. Employer gave him time off work for about six weeks in 2013. He went to a doctor and had nine epidural shots in 2013, three series of three shots. The first three shots helped, but the others did not help.

Claimant testified that he was arrested on July 21, 2013 and incarcerated until November 13. He was terminated by Employer in mid July 2013. Exhibit 3 is a Separation Notice dated July 31, 2013 relating to his termination. Claimant had been out

on FMLA and was to have returned to work on July 29, 2013. However, he did not return to work then because he was in jail.

Claimant has not worked any where since his termination. He testified that he is on disability from the State of Missouri. He testified that he has not improved since June 2012 .

Claimant has had no treatment for his back other than the MRI, epidurals, pain pills, and back braces. He had not had any physical therapy.

Claimant testified surgery on his low back was recommended in 2015, but surgery could not be done because of his heart. No other treatment was recommended for him after the July 2012 MRI besides an epidural and surgery.

Claimant testified he believed he notified Employer that he had injured his back. He testified that he had walked around hobbling for five to six months and he talked to his supervisors about hobbling. He said he thought he had done whatever was required of him. He testified he assumed his injury had been reported to Workers' Compensation because he received short term disability and he had discussions weekly with the HR lady. He does not know why a Workers' Compensation Report of Injury was not made to the State.

Claimant testified his back pain has worsened. The pain is relieved by moving around. He is not able to stand for more than twenty to thirty minutes. He testified a doctor gave him restrictions of no lifting. He testified he could not do a lot of walking. He could not work for Employer. He sees a doctor once a month. He is trying to get his heart issue straightened out.

Claimant testified that Troy Bennett was his floor supervisor and Lavelle Mentzer was supervisor of his department.

Claimant testified on direct examination that he never had back pain before the June 2012 injury. He stated that he never had treatment with a chiropractor before then. Claimant testified on cross examination that he saw a chiropractor at Cole Family Chiropractic Clinic, and the first appointment may have been on March 9, 2012. He told them then he had right hip and low back pain.

Claimant took a day off to go to a chiropractor after June 2012. He went for a wellness exam and stretched his back one time. The first doctor Claimant saw was Dr. Chris Hulett, who he saw before December 12, 2012 for blood pressure.

Claimant admitted he did not report to his supervisor at the time of the injury. Claimant agreed that by August 2012, he had not told anyone at Employer that his back pain was work-related. He said he was trying to take care of it himself.

Claimant continued to work regular duty after June 5, 2012 until the last day he worked for Employer. He said his condition worsened as he continued to work. He understood