Thomas Penning v. Harley Davidson

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 13-046307

**Employee:** Thomas Penning

**Employer:** Harley Davidson

**Insurer:** Trumbull Insurance Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge awarding compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge (ALJ) with this supplemental opinion.

No doctor was deposed. Obviously, there are differences of opinion regarding the precise nature of employee's work-related injury. We find credible employee's testimony that leading up to May 13, 2013, he was fully able to perform the duties of strenuous manual labor without significant symptoms or impairment referable to his right wrist, that he was essentially asymptomatic with respect to his right wrist and not in need of medical care.

The employee clearly sustained an accident on May 13, 2013, resulting in the immediate onset of severe, disabling, and unprecedented symptoms for which he required and received authorized care.

The employee's authorized treating physician Dr. Bagby, an orthopedist, diagnosed a scaphoid fracture. This diagnosis was supported by multiple radiological studies including x-rays on June 28, 2013, July 12, 2013, and July 29, 2013. The latter studies (contrary to assertions in employer/insurer's brief) were interpreted by Dr. Bagby as demonstrating a "healing" fracture, a diagnosis clearly consistent with a recent, acute injury. (Transcript, 296, 298, 307).

We give careful consideration to Dr. Toby's thoughtful analysis of this case. Although there may be some confusion as to whether Dr. Toby's opinions were based, in part, on a mistaken understanding regarding the length of time that passed from the date of accident to performance of the CT scan on August 14, 2012, we are convinced that Dr. Toby's opinions were well-informed.

Injury No.: 13-046307

Employee: Thomas Penning

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We note Dr. Toby agrees it's possible that employee's work-related injury of May 13, 2013, made a previously asymptomatic scaphoid nonunion unstable. (Transcript, 278-279, 283). Thus, although Dr. Toby and Dr. Grimm disagree with regard to the precise nature of injury sustained, both opinions corroborate employee's reported sudden onset of severe, disabling and persistent symptoms of pain and numbness following the May 13, 2013, injury.

Based upon the employee's credible testimony and after careful review of the medical evidence, we find that employee's May 13, 2013, accident was the prevailing factor causing injury due to a change in the pathology of employee's scaphoid producing an immediate, unprecedented condition of pain and related disability that necessitated all treatment provided to date as described in the record before us.

Employer's medical expert recommended a carpal tunnel release be performed in conjunction with the fusion procedure involving employee's right wrist because postoperative swelling would likely aggravate employee's carpal tunnel syndrome. Because we find the fusion procedure was necessitated by painful symptoms caused by employee's accidental work injury, the need for carpal tunnel release is identified as compensable pursuant to the holding in Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. 2011).

In any event, Dr. Grimm stated that swelling caused by the May 13, 2013, trauma was the prevailing factor causing employee's carpal tunnel syndrome. We note that post-traumatic swelling of the right wrist was observed by Dr. Bagby three months post-injury. We find employee's May 13, 2013, injury was the prevailing factor causing carpal tunnel syndrome.

Sufficiency of Pleadings

Employer/insurer also urge that no claim for carpal tunnel syndrome can be sustained herein because said condition was not specifically pled. This argument is without merit. Claims for compensation need not contain the formal elements of a civil petition. A sense of fairness requires only that the employer be advised of the nature of the claim. We find the pleadings herein are sufficient because the employer's medical expert was fully aware of employee's overall condition, medical evidence regarding causation was admitted without objection, and employer is not shown to have been surprised, misled, or unprepared to meet any issue presented. See Groce v. Pyle, 315 SW2d 482, 492-493 (Mo. App. 1958).

Objection to ALJ's Ruling on Submission of Proposed Award

Employer's application for review also alleges the ALJ erred in overruling its objection to the employee's submission of a proposed award.

We note that 8 CSR 50-2.010 (14) provides that "Hearings before the division shall be simple, informal proceedings." 8 CSR 50-2.010 (14) (C) provides, in pertinent part, "On the request of any party and on order of the administrative law judge, a brief may be

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submitted, which must be filed within the time set by the administrative law judge. . . ." In this case, the January 10, 2017, hearing transcript reflects the ALJ's request for submission of trial briefs on February 10, 2017. (Transcript, 82).

Employer/insurer's application for review cites no basis for its objection to the employee's alleged submission of a "proposed Award". We find nothing in the record before us documenting either the employee's alleged submission of a proposed award, the reasons for employer/insurer's objection, or the ALJ's ruling on this issue. In that employer's brief fails to address this issue, we deem employer/insurer to have abandoned this allegation of error in the ALJ's award.

Employer/insurer's application for review doesn't challenge the ALJ's award of temporary total disability or future medical care other than on bases disposed of by our analysis, supra.

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

The award and decision of Administrative Law Judge Angie Heffner, issued March 21, 2017, is attached and incorporated by this reference.

The Commission further approves and affirms 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.

Given at Jefferson City, State of Missouri, this 25th day of April 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Thomas Penning Injury No. 13-046307

Employee: Thomas Penning Injury No: 13-046307

Employer: Harley Davidson

Insurer: Trumbull Insurance Company c/o TPA Gallagher Bassett Services

Additional Party: N/A

Hearing Date: January 10, 2017

Checked by: $\mathrm{AH} / \mathrm{lh}$

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: May 13, 2013.
5. State location where accident occurred or occupational disease was contracted. Kansas City, Platte 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? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: During the course and scope of his employment, Employee was using his hands to push down with pressure on a motorcycle part to assemble it when he felt his right wrist pop and felt immediate pain in his right wrist.
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: Right wrist.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Thomas Penning

Injury No. 13-046307

1. Nature and extent of any permanent disability. 30% of the right upper extremity referable the wrist.

1. Compensation paid to-date for temporary disability: $7,802.18.

1. Value necessary medical aid paid to date by employer/insurer? $2,331.91.

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: 998.05.

1. Weekly compensation rate: 666.04/$433.58.

1. Method wages computation: Parties stipulate.

**COMPENSATION PAYABLE**

Amount of compensation payable:

Employer is ordered to pay Claimant:

21.60 weeks of temporary total disability at a reduced rate of $341.04 to reflect an offset due to the short-term disability benefits paid during the time period.

35% of the right upper extremity referable the wrist or 61.25 weeks of permanent partial disability at Claimant's compensation rate of 433.58 totaling 26,556.78.

1. Future requirements awarded:

Employer is ordered to provide future medical treatment to cure and relieve the employee from the effects of a work related injury as it pertains to his right scaphoid fracture.

Said payments to begin as of the date of this award and to be payable and be subject to modification and review as provided by law.

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

Employee: Thomas Penning

Injury No: 13-046307

Employer: Harley Davidson

Insurer: Trumbull Insurance Company c/o TPA Gallagher Bassett Services

Additional Party: N/A

Hearing Date: January 10, 2017

Checked by: AH/lh

On January 10, 2017, the parties appeared for a final hearing. The Employee, Thomas Penning ("Claimant"), appeared in person and through counsel, Josh Perkins. The Employer/Insurer ("Harley" or "Employer") appeared through Tom Billam. The parties stipulated to the following:

1. That on May 13, 2013, Harley Davidson was an Employer operating under the provisions of the Missouri Workers' Compensation Law and that the liability under said law was fully insured by Trumbull Insurance Company;
2. That on May 13, 2013, the Claimant was an employee of Harley Davidson;
3. That Claimant notified Employer of his injury and timely filed a Claim for Compensation;
4. That Claimant's average weekly wage was $\ 998.05 resulting in $\ 666.04 rates for temporary total and $\ 433.58 for permanent partial disability payments;
5. That Employer provided Claimant with temporary total disability from June 13, 2013 through September 4, 2013 totaling $\ 7,802.18; and
6. That Employer paid $\ 2,331.91 in medical expenses.

The parties requested the Division to determine:

1. Whether the Employee sustained an accident arising out of and in the course of employment;
2. Whether the alleged accident caused the disability the Employee claims;
3. Whether the Employee is entitled to temporary total disability benefits from September 5, 2013 until February 10, 2014;
4. Whether the Employer must provide Employee with medical care in the future; and
5. Whether the Employee suffered any disability and, if so, the nature and extent of the Employee's disability.

Claimant offered the following exhibits which were admitted without objection: