Michael Barnett v. Harley Davidson

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 15-065149

**Employee:** Michael Barnett

**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.

Employer's application for review alleges the following errors in the ALJ's award:

1. No medical opinion exists that alleged specific work activity was the prevailing factor to cause Claimant's disc herniation in his neck.
2. ALJ ignored medical treatment records that never mentioned work activity.
3. ALJ erred in choosing to "disregard" Barkdale [sic] testimony that contradicted Claimant.
4. ALJ failed to provide credit against TTD for STD [short-term disability] benefits Claimant admittedly received.

Preliminarily, we note that employer/insurer's brief does not comply with Commission rule 8 CSR 20-3.030(5)(C) which provides "The brief of the party requesting the application for review shall contain a fair and concise statement of acts without argument (emphasis added)." Despite this deficiency, we elect to consider the merits of employer/insurer's application for review.

Dr. Alexander Bailey performed an independent medical examination of the employee on July 28, 2016. Dr. Bailey describes the employee as "exceptionally honest" and forthright with respect to "his condition, timeline, and his complaints." Dr. Bailey notes the employee performs repetitive activities at work and concedes "a possibility of a significant contributing effect of Harley Davidson work." Dr. Bailey's July 28, 2016 report indicates repeatedly that medical causation is a very difficult issue with regard to which he is unable to reach a conclusion based on a reasonable degree of medical

1 Transcript, 359-360.

2 Transcript, 360.

Injury No.: 15-065149

Employee: Michael Barnett

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certainty. Dr. Bailey's subsequent report of September 9, 2016, again notes it is very difficult to make a determination within a reasonable degree of medical certainty with respect to causation.³

Relying specifically (and apparently primarily) on an absence of any mention of repetitive work activities in records made available to him for review, Dr. Bailey concludes "there is a 51% plus chance that this is a personal medical condition from a prevailing factor standard." Dr. Bailey also relies on employer's job description.⁵ The ALJ (and we) instead rely on the employee's credible description of his job duties. We agree with the ALJ's finding that employer's printed job description "misses the human mechanics involved." Dr. Bailey concludes that the employee's condition "appears to be primarily degenerative in nature."⁷

We note that a layperson's opinion with respect to medical causation, especially in the context of a repetitive trauma claim, is of little value. The mere fact that the performance of job duties is painful certainly does not establish causation. By the same token, employee's failure to appreciate or describe a work-related etiology is of little or no value in determining medical causation.

We note, however, that the employee's earliest treatment records (chiropractic notes referencing treatment on September 14, 2015) do in fact document that employee identified the performance of his job duties as the cause of his symptoms. Dr. Terry's history states that employee notes his "previous and current episode always aggravated w/work duties."⁸

On August 19, 2015, employer authorized an initial examination of the employee by registered nurse Mary Olson. Ms. Olson's report specifically states that employee, reporting pain in his right shoulder, right arm, and the right side of his neck, "thinks it may be from repetitive use at work." Nurse Olson noted employee demonstrated how some of his work duties were performed.¹⁰

The next day, August 20, 2015, the employee reported muscle spasms at work, associated onset of symptoms with learning a new job and specifically stated his belief that performance of work duties is the cause.¹¹ Employer referred employee to "job coaching."¹²

---

³ Id. 350.

⁴ Id. 351.

⁵ Id. Employer/Insurer's Exhibit 5, 395.

⁶ Award, 7.

⁷ Transcript, 351.

⁸ Id. Employer/Insurer's Exhibit 2, 378.

⁹ Id. Claimant's Exhibit E, 313.

¹⁰ Id.

¹¹ Transcript, Claimant's Exhibit E, 316.

¹² Id. 317.

Injury No.: 15-065149

Employee: Michael Barnett

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Initial treatment records from the College Park Family Care Center dated August 28, 2015, provide a description of the employee's job duties, stating, "His job involves building engines for Harley Davidson. He does lifting, reaching overhead, manipulating machinery and parts."13

Dr. Hopkins found that the employee sustained repetitive injuries over a period of time as an assembler and that work injury was the direct and prevailing factor for the employee's current medical condition, surgery, and permanent partial disability. Dr. Hopkins certainly could have been more thorough in his analysis but one cannot say his opinions are merely conclusory. He specifically relies on a review of extensive medical records, a credible history provided by the employee, and his physical examination. It is also important to note that Dr. Bailey doesn't really refute Dr. Hopkins' opinions. Their differences of opinion are, in effect, relatively minor differences with regard to the degree of causation and/or the degree of medical certainty with which an expert opinion can be rendered.

Employer/insurer also take issue with the language used by Dr. Hopkins to express his conclusions. However, imposing a "magic words" test upon medical testimony in disregard of the testimony's plain meaning violates the dictate of the Missouri Supreme Court in *Malam v. Dep't of Corr.*, 492 S.W.2d 926 (Mo. 2016).14 "[T]he words a medical expert uses ... are often important, not so much in and of themselves, but as a reflection of what impression such witness wishes to impart." *Malam* at 930, citing *Mayfield v. Brown Shoe Co.*, 941 S.W.2d 31, 36 (Mo. App. 1997). We are convinced that Dr. Hopkins's opinions as expressed sustain the employee's burden of proof.

Based on all the evidence, the employee's testimony, opinions of Dr. Hopkins and opinions of Dr. Bailey to the extent they support, in part, the opinions of Dr. Hopkins, we find the final award of the ALJ is fully supported with respect to the issues of medical causation and permanent partial disability.

Employer/insurer allege the ALJ erred in choosing to disregard testimony of employer's witness, Ethan Barksdale, with respect to the employee's job duties. Mr. Barksdale, employer's senior manufacturing engineer, testified based on his review of employer's generic job description. He conceded that he never worked on employer's engine assembly line and had no knowledge of whether or not the machinery employee worked on was in need of repair. With respect to this issue, we defer to the ALJ's credibility determination.

Employer/insurer's brief challenges the period of time for which the ALJ awarded temporary total disability benefits. However, employer/insurer's application for review

13 *Id.* Claimant's Exhibit D, 185; Claimant's Exhibit E, 330.

14 *Treasurer of Mo. v. Majors*, 506 S.W.3d 348, 353 (Mo. App. 2016).

Injury No.: 15-065149

Employee: Michael Barnett

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alleges only "ALJ failed to provide credit against TTD for STD benefits Claimant admittedly received." We find employer failed to preserve the issue of the time period of temporary total disability in its application for review.

We further find that employer failed to clearly raise the issue of its entitlement to a credit for temporary total disability based on employee's receipt of short-term disability benefits at the hearing. At the inception of the hearing, the ALJ characterized the issue of temporary total disability as "whether the employer is liable to the employee for past temporary total disability benefits running from August 21, 2015 to December 22, 2015, at a weekly rate of $602.11."15

Section 287.270 provides, in pertinent part, "No savings or insurance of the injured employee, nor any benefits derived from any other source than the employer or the employer's insurer for liability under this chapter, shall be considered in determining the compensation due hereunder."

As stated in *Ellis v. Western Electric Co.* 664 S.W.2d 639, 643 (Mo. App. 1984), "Payments from an insurance company or from any source other than the employer or the employer's insurer for liability for Workmen's Compensation are not to be credited on Workmen's Compensation Benefits." *Id.* citing *Homan v. American Can Company*, 535 S.W.2d 574, 576 (Mo.App. 1976).

Employer produced no records documenting the source of any payments to employee for short-term disability benefits. Employee's admission on cross-examination that he "got paid roughly $300 a week"16 through a short-term disability insurance carrier as a union benefit is hardly a basis for determining what, if any credit may be due.

We conclude that employer failed to meet its burden of proving entitlement of a credit against temporary total disability benefits based on employee's receipt of short-term disability benefits.

**Conclusion**

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

The award and decision of Chief Administrative Law Judge Lisa Pottenger, issued June 23, 2017, is attached and incorporated to the extent not inconsistent with this supplemental opinion.

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

15 Transcript, 3-4.

16 *Id.* 57.

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

Given at Jefferson City, State of Missouri, this **1st** day of May 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: Michael Barnett

Injury No: 15-065149

Employee: Michael Barnett

Injury No: 15-065149

Employer: Harley Davidson

Insurer: Trumbull Insurance, Co.

Hearing Date: May 1, 2017

Checked by: LP/lh

1. Are any benefits awarded herein? Yes.

1. Was the injury or occupational disease compensable under Chapter 287? Yes.

1. Was there an accident or incident of occupational disease under the Law? Yes.

1. Date of accident or onset of occupational disease: August 4, 2015.

1. State location where accident occurred or occupational disease was contracted: Kansas City, Platte County, Missouri.

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.

1. Did employer receive proper notice? Yes.

1. Did accident or occupational disease arise out of and in the course of the employment? Yes.

1. Was claim for compensation filed within time required by Law? Yes.

1. Was employer insured by above insurer? Yes.

1. Describe work employee was doing and how accident occurred or occupational disease contracted: While working in the course and scope of employment, Claimant performed shoulder level and overhead repetitive activities assembling motorcycles and injured his cervical area at C5-6.

1. Did accident or occupational disease cause death? No. Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Cervical spine.

1. Compensation paid to date for temporary disability: None.

1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Michael Barnett

Injury No. 15-065149

1. Value necessary medical aid paid to date by employer/insurer: Employer has provided medical care in its on-site health clinic. Employer has not provided and paid for any medical treatment outside of its on-site health clinic. The Employer is not liable for past medical expenses as outline in Exhibit E, p. 54.

1. Employee's average weekly wages: 903.17.

1. Weekly compensation rate: 602.11/464.58.

1. Method wages computation: Parties stipulate.

1. Amount of compensation payable: The Employer is liable to Claimant for 25 percent permanent partial disability body as a whole referable to the cervical spine or 46,458.00, as well as past temporary total disability at a weekly rate of 602.11 from August 21 to December 22, 2015.

1. Future requirements awarded: None

COMPENSATION PAYABLE

Said payments to begin as of 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 25 percent lien in the amount of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Bill Spooner

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Michael Barnett

Injury No: 15-065149

Employer: Harley Davidson

Insurer: Trumbull Insurance, Co.

Hearing Date: May 1, 2017

Checked by: LP/lh

On May 1, 2017, the parties appeared for hearing. The Employee, Michael Barnett, appeared in person and with counsel, Bill Spooner. The Employer, Harley Davidson, through its insurer, Trumbull Insurance Company, c/o Gallagher Bassett, was represented by Tom Billam.

STIPULATIONS

The parties stipulated to the following:

1. That the Employer was operating subject to Missouri Workers' Compensation law on August 4, 2015;
2. That Trumbull Insurance Company was their insurer;
3. That jurisdiction is proper in the State of Missouri;
4. That Mr. Barnett was their employee;
5. That Mr. Barnett provided proper notice and filed his claim within the time allowed by law;
6. That the average weekly wage was 903.17, which made the compensation rates for temporary total disability 602.11 and permanent partial disability $464.58.

ISSUES

The issues to be tried by this award are:

1. Whether Claimant sustained an injury of his cervical spine due to occupational exposure that occurred within the course and scope of his employment on August 4, 2015; and included within this issue is medical causation;
2. Whether Claimant sustained any disability and, if so, the nature and extent of that disability;
3. Whether the Employer is liable to the Employee for past temporary total disability benefits from August 21, 2015 to December 22, 2015;
4. Whether the Employer is liable to the Employee for past medical expenses in the amount of $1,379 as outlined in Exhibit E, page 54.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Michael Barnett

Injury No. 15-065149

Mr. Barnett is a 51-year-old, right-hand dominant engine assembler at Harley Davidson. Claimant has worked on Harley's assembly lines for approximately 12 years. During the time period of August 2014 to August 2015, he worked assembling engines on the RPT line. Claimant worked the majority of the time on two stations of the RPT line. He worked many hours during the above year since there were few employees trained to work on the two stations of the RPT line. Claimant's job tasks using the manipulator required lifting above shoulder level to grab the manipulator pulling it down to approximately waist to shoulder height. He then used the manipulator to torque four screws/bolts into the engine. Claimant credibly testified that the manipulator at his station was worn and old causing him to engage his upper extremities more when he aligned the torque machine with the bolts.

Claimant also worked on another station of the RPT line that required Claimant to use his upper extremities. He had to reach equipment overhead, use his upper extremities to install the timing chain and to tighten the bolts. Claimant held his neck at an awkward 45-degree angle while using his upper arms to install the timing chains. He then reached overhead to grab the torque equipment.

Claimant worked on approximately 75 to 80 engines 10 hours a day from August 2014 to August 2015. Claimant, based on the Court's observation, was forthcoming and earnest while testifying. Claimant stated that performing on the RPT line caused discomfort of his neck and right upper extremity.

Claimant first noticed symptoms in 2011 when he developed numbness of his right hand into his fingers and then thumb. On November 3, 2011, he saw a Dr. Strong one time. At that time Dr. Strong diagnosed Claimant with lateral epicondylitis. Dr. Strong noted Claimant had occasional neck pain and discomfort but nothing consistent. Claimant thereafter continued to work full time between 2011 to August of 2015, and on occasion received minimal chiropractic care. Beginning August 2014, Claimant noticed symptoms of headaches with radiating pain into his right upper extremity as he performed his daily work duties required of the RPT line. His symptoms improved on days off but returned once his work week began. Claimant from August 2014 to August 2015 felt symptoms progress to a burning sensation of his neck and gradual loss of grip strength and dexterity of his right hand. He continued to "tough it out".

On August 4, 2015, Claimant noted increased pain symptoms of neck and right arm while using the manipulator and performing other job duties on that day. He continued to work on the RPT line until he found the pain from his neck and right shoulder into his right hand unbearable. Eventually on August 19, 2015, Claimant reported the injury to his employer. He recalled that day since the pain of his neck and arms intensified to the point he could not put on socks. He filled out the date of incident as August 4, 2015, when his pain level increased while using the DC guns and manipulator.

The Employer/Insurer sent him to the on-plant nurse, Mary Olson, on August 19, 2015. The medical note reveals Claimant "had no specific incident or injury to the right shoulder and does not know what caused the pain but thinks it may be from repetitive use at work." Nurse Olson informed Claimant that "due to having no mechanism of injury he may be referred to his

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Michael Barnett

Injury No. 15-065149

primary care physician for evaluation and treatment." Claimant was then informed his claim will be reviewed by a causation team.

Thereafter, Claimant, based on Nurse Olson's referral to his primary care physician, sought treatment for his neck and right shoulder through his private health insurance. Initially Claimant received prescription medications for his right shoulder/neck complaints but without relief. Dr. O'Boynick diagnosed Claimant with cervical radiculopathy, cervical disc displacement and cervical spondylolisthesis. Dr. O'Boynick also recommended epidural injections based on a right sided herniated cervical disc at C5-6. Claimant underwent epidural injections of the cervical area without relief. Eventually, Claimant underwent a C5-6 anterior cervical microdiskectomy with fusion plate fixation due to a C5-6 disc herniation. (Exhibit D, page 41, operative report)

Claimant returned to work on December 23, 2015, after taking approximately three and a half months off to treat for his cervical symptoms. Claimant continues to work for Harley Davidson but does not perform work at station 4 to avoid the overhead activities.

The Claimant and Employer and Insurer request this award address whether Claimant sustained an occupational injury of his neck due to repetitive exposure that occurred within the course and scope of his employment up to and including August 4, 2015. The Employer contends that Claimant's neck condition was not causally related to Claimant's work activities performed on the RPT line. Employer argues Claimant's work was not repetitive enough to cause an occupational injury of his cervical spine and failed in meeting his burden of proof with Dr. Hopkins' independent medical evaluation. Indeed, Claimant has the burden to prove all essential elements of a claim, including causation. *Decker v. Square D Company*, 974 S.W.2d 667, 670 (Mo. App. 1998). When a worker seeks compensation for repetitive exposure, he must submit a medical expert who can establish the probability that working conditions cause the disease. *Id.* A claimant's medical expert in an occupational disease case must establish within a "reasonable probability" that the disease was caused by conditions in the work place. *Pippin v. St. Joe Minerals Corp.*, 799 S.W.2d 898, 902 (Mo.App. 1999).

Section 287.067.1 and 3 states:

1) "Occupational disease" is defined as an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

3) 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

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Michael Barnett

Injury No. 15-065149

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.

To prove an occupationally induced disease rather than an ordinary disease of life involves two considerations: (1) Whether there was an exposure to the disease which was greater than or different from that which affects the public generally; and (2) whether there is a recognizable link between the disease and some distinctive feature of employee's job which is common to all jobs of that sort. *Townser v. First Data Corp.*, 215 S.W.3d 241, 242, (Mo.App. 2007). Flexions, lifting overhead, pulling things, using your upper extremities for 10 hours a day 5 days a week are unusual conditions and if they inhere in an employment task being performed by an employee, they expose the employee who performs them to a risk not shared by the public generally and to which the employee would not have been exposed outside of employment, and thus qualify for compensation pursuant to the law. *Collins v. Neevel Luggage Manufacturing Company*, 481 S.W.2d 548, 555 (Mo.App. 1972). I find Claimant's job duties as an employee in the RPT line exposed him to a greater risk than the general public in that he performs far more repetitive motions of his upper extremities and movements with his shoulders and neck than those exposed outside his occupation.

Claimant presented the report of Dr. William Hopkins, a board certified orthopedic surgeon. Dr. Hopkins opined Claimant sustained occupational repetitive injuries over a period of time as an engine assembler up to and including August 4, 2015. Dr. Hopkins found that the prevailing factor of Claimant's cervical radiculopathy and resulting disabilities were his work duties. He assessed Claimant with a 38 percent permanent partial disability due to the residual effects of the work-related occupational exposure.

The Employer presented two reports from orthopedic surgeon, Dr. Alexander Bailey. On July 28, 2016, Dr. Bailey stated, "I cannot state within a reasonable degree of medical certainty that this is personal nor can I state within a reasonable degree of medical certainty that this is work related." (See Employer's Exhibit 1.) Then on September 9, 2016, Bailey was asked again to opine a causal relationship with Claimant's job activities and the neck condition. Dr. Bailey found the degenerative findings longstanding, but the C5-6 herniation difficult to date. Dr. Bailey found Claimant's neck condition as a 51 plus chance as a personal medical condition from a prevailing factor standard based on the MRI showing degeneration and Claimant not mentioning work relatedness in his treating medical records.

I find Claimant was exposed to repetitiveness, such as overhead activities with his upper extremities and holding his neck in an awkward position that occurred within the course and scope of his employment while working for Harley Davidson. I find the prevailing factor of Claimant's herniated disc at the C5-6 level related to his work activities. Indeed, the operative report reveals that the preoperative diagnosis was herniated disc at the C5-6 level and the operative report reveals a fusion was performed due to the herniated disc.

I disregard Employer's witness, Ethan Barksdale, regarding Claimant's job duties since Mr. Barksdale never used the manipulator in the RPT line. Instead, he testified from a generic

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Michael Barnett

Injury No. 15-065149

job description that does not accurately describe how Mr. Barnett performed his job duties. I find a mere printed out description misses the human mechanics involved.

I also find Dr. Hopkins' report more persuasive than Dr. Bailey's. Dr. Bailey issued two separate yet somewhat inconsistent reports. Although Dr. Bailey opines all of Claimant's neck condition as degenerative longstanding and personal, he could not date the herniated disc, the very disc that I find is work related. Dr. Bailey also finds Claimant's neck condition as personal because medical records made no mention of repetitive work activities. However, records dated close in time to August 4, 2015 clearly state Claimant reported the injury as work related. As such, I disregard Dr. Bailey's opinion and find the work duties Claimant performed at Harley Davidson the prevailing factor of Claimant's cervical herniated disc at the C5-6 level.

I also find based on Claimant's testimony and Dr. Hopkins' report that Claimant sustained a 25 percent permanent partial disability body as a whole due to the occupational exposure injuries on or about August 4, 2015. Claimant has limited range of motion of his neck and continues with numbness and tingling and pain of his right hand as a result of the repetitive exposure. The Employer is liable to the Claimant for 100 weeks or $46,458.00.

I also find Claimant was temporary totally disabled in the open labor market from August 21, 2015 to the date of maximum medical improvement, December 22, 2015. Claimant was under active medical care for a large herniated disc that impinged on his spinal cord from August 21 to December 22, 2015. Claimant credibly testified he was in immense pain that radiated into his right upper extremity. As such, I find during the time period of August 21 to December 22, 2015, Claimant was unable to work in the open labor market while under active medical care due to the residual effects of the herniated cervical disc. The Employer is liable to Claimant for past temporary total disability benefits from August 21, 2015 to December 22, 2015.

The Claimant requests reimbursement for past medical expenses in the amount of $1,379 from K.C. Core. The medical records from the chiropractor appear to reference the neck but also note most of the treatment involved manipulation of thoracic spine. I cannot find the chiropractic treatment and following expenses were related to the work-related injuries. Additionally, I cannot find the chiropractic care was directed or overseen by a medical provider so I cannot consider chiropractic treatment in this instance with these facts as medical treatment. The Employer is not liable to the Claimant for past medical expenses.

The Employer is liable to Claimant for 25 percent permanent partial disability body as a whole referable to the cervical spine or 46,458.00, as well as past temporary total disability at a weekly rate of 602.11 from August 21 to December 22, 2015.

This award is subject to an attorney's lien for services rendered by Bill Spooner in the amount of 25 percent.

7

MNKOI 0000811657

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Michael Barnett

Injury No. 15-065149

I certify that on 6/23/17, I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By GP


Made by

Lisa Pottinger

Chief Administrative Law Judge

Division of Workers' Compensation