Cathy MacFedries v. General Cable Corporation

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 15-034728

**Employee:** Cathy MacFedries

**Employer:** General Cable Corporation

**Insurer:** American Zurich 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 reviewed the evidence, read the briefs, and considered the whole record, we find that the award of the administrative law judge (ALJ) denying 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 ALJ with this supplemental opinion.¹

The employee worked as a recorder at the time of her May 21, 2015, injury. Her work involved wrapping and labeling reels of wire in preparation for shipment, inputting information about the wire into a computer, and transporting the reels of wire to employer's shipping department. She used a sit-down fork truck off and on during the day to flip over stack reels of wire that weighed at most about 175 pounds.

In this case, the employee injured her right knee as she swung her right leg up onto a concrete step. As the ALJ noted, "there was no testimony that there was anything about the step itself that caused her to injure her right knee. In fact, the testimony is that as she stepped up, Ms. MacFedries felt a pop in her right knee accompanied by pain (emphasis added)".² Unlike an earlier work injury on June 4, 2014, employee's injury in this case bore no identified relationship to her duties operating a forklift.

Section 287.020.2 RSMo defines "accident" as "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."

Section 287.020.3(2) RSMo further provides:

> An injury shall be deemed to arise out of and in the course of the employment only if:

¹ The ALJ's award denying compensation is incorrectly titled "Temporary or Partial Award." This clerical error did not affect the rights of the parties and it does not affect our ability to properly review this matter.

² Award, p. 7

-2-

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

In *Johme v. St. John's Mercy Healthcare* 366 S.W.3d 504 (Mo. banc 2012) the Missouri Supreme Court interpreted § 287.020.2(2)(b) as requiring an employee to prove that his or her injury "was caused by [a] risk related to her employment activity as opposed to a risk to which she was equally exposed in her 'normal nonemployment life' (emphasis added)." *Id.* at 512.

We find the employee in this has failed to show that the risk source of her injury was work-related or that she could have avoided the risk outside of her employment. See *Young v. Boone Elec. Coop.* 462 S.W.3d 783 (Mo. App. 2015).

We affirm and adopt the award of the ALJ as supplemented herein.

The August 17, 2017, award and decision of Administrative Law Judge Hannelore D. Fischer is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this **14th** day of June 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Cathi MacFedries

Injury No. 15-034728

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: General Cable Corporation

Additional Party: N/A

Insurer: American Zurich Insurance Company

Hearing Date: June 27, 2017

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: HDF/scb

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: N/A
5. State location where accident occurred or occupational disease was contracted: N/A
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: See award
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: N/A
14. Compensation paid to-date for temporary disability: N/A
15. Value necessary medical aid paid to date by employer/insurer? N/A
16. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: Not at issue
2. Weekly compensation rate: Not at issue
3. Method wages computation: Not at issue

1. Amount of compensation payable: -0-

Each of said payments to begin immediately and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on June 27, 2017. Memoranda were submitted by July 14, 2017.

The parties stipulated that on or about May 21, 2015, the claimant, Cathy MacFedries, was in the employment of General Cable Corporation. The employer was operating under the provisions of Missouri's workers' compensation law; workers' compensation liability was insured by American Zurich Insurance Company. The employer had notice of the injury; a claim for compensation was timely filed. No temporary disability benefits have been paid to the claimant to date; no medical aid has been provided.

The issues to be resolved by hearing include 1) the occurrence of an accident, 2) whether the alleged accident arose out of and in the course of employment, 3) medical causation of the injuries alleged, 4) the liability of the employer/insurer for past medical expenses in the amount of $3,037.31, and 5) the liability of the employer/insurer for additional medical treatment. Injuries to the back and right knee are alleged.

The claimant, Cathy MacFedries, was born in 1954, and graduated from high school in 1972. Ms. MacFedries received no additional education or training after high school graduation. Ms. MacFedries testified that Alcan and General Cable Corporation are the same entity and that Alcan was sold to General Cable Corporation. Ms. MacFedries began working for Alcan in 1999, and is still employed with General Cable Corporation as of the date of hearing. Ms. MacFedries said that Alcan makes wire in a wide variety of sizes. Ms. MacFedries testified that while she worked in different positions for Alcan and General Cable Corporation, both the June 4, 2014 and May 21, 2015 accidents, respectively, allegedly occurred while she was employed as a recorder.

On June 4, 2014, Ms. MacFedries was working for Alcan and was rushed because she "had a lot of wire coming at her" and she stepped up into a sit down forklift by kicking her leg out and onto the machine when she heard a pop in her right knee accompanied by tremendous pain. The forklift was about 18 inches from the ground. When Ms. MacFedries reported her injury, her supervisor took her to the emergency room at Bothwell Hospital. Ms. MacFedries saw

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cathy MacFedries

Injury No. 15-034728

Dr. Eldenburg and was then transferred to the care of Dr. White. Ms. MacFedries said that she started limping after the accident which caused her to have low back pain. Ms. MacFedries testified that she also received medical treatment for her right knee and back from Dr. Reinsel at the Missouri Orthopedic Institute, Dr. Drymalski, Dr. Komes, also of the Missouri Orthopedic Institute, Dr. Choma and Dr. Aggarwal.

Ms. MacFedries testified that she was injured at work again, this time while with General Cable Corporation, on May 21, 2015. Ms. MacFedries testified that she injured her right knee as she swung her right leg up onto a concrete step when she had popping in the right knee accompanied by pain. (The brief of the claimant, on page 16, refers to "the steps [Ms. MacFedries] fell on"; there is no evidence that Ms. MacFedries fell on any steps.) Ms. MacFedries described the step as 18 inches from front to back or horizontally; there is no evidence indicating the height or rise of the step. The step is depicted in Claimant's Exhibit C as part of a safety warning advising people to act safely and to use hand rails and grab bars as part of an effort to use all available safeguards. Ms. MacFedries described the right knee pain as worse and accompanied by shooting pain and numbness and tingling in her legs after the 2015 alleged accident in comparison to after the 2014 accident. The following day, Ms. MacFedries' sister-in-law took her to Boone Hospital in Columbia, Missouri. Ms. MacFedries was treated with her right knee in a boot for about six weeks after the alleged 2015 accident. Ms. MacFedries testified to the physicians and treatment she received after May of 2015 for the right knee and low back.

After the May 21, 2015 alleged accident Ms. MacFedries changed her work hours to an eight-hour day rather than working the 12-hour day shift she had up until that time.

Ms. MacFedries testified that her right knee and back problems have gotten worse in the last six months, with the knee problems worse than the low back.

Ms. MacFedries testified that she had back pain as early as 2008 and again in 2010. Medical records reflect that Ms. MacFedries complained of low back pain to her family physician, Dr. Eldenburg, as early as 2008, and that in 2010 she again complained to Dr. Eldenburg of low back pain which was then followed by an MRI reflecting mild lumbar scoliosis with a grade I spondylolisthesis of L4 on L5, with foraminal encroachment due to bony changes bilaterally at L4-5, as well as multiple degenerative disc changes.

Dr. Richard White saw Ms. MacFedries as a referral from Dr. Eldenburg from August of 2014 through June of 2015. In his final report of June 24, 2015, Dr. White notes that Ms. MacFedries said that with regard to the alleged May 21, 2015 accident Ms. MacFedries said that "she reinjured her knee. [Ms. MacFedries] states that she really wasn't doing anything and did not have a fall. [Ms. MacFedries] states she was simply going up the stairs and felt something and had pain." (Dr. White, Exh 3) Dr. White concludes that Ms. MacFedries' "knee issues are related to degenerative change. ...she would not have the same knee issues, if she did not have issues going on with radicular symptoms into her leg. ...getting a good result in her knee would rely on having musculature to rehabilitation. This is difficult wi