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).

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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 oc