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 with her issues going on her low back. Saying that, we will refer her to one of our joint replacement doctors for consideration for possible knee replacement, as well. "(Dr. White, Exh 3)

WC-32-R1 (6/81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cathy MacFedries

Injury No. 15-034728

Dr. Thomas Reinsel saw Ms. MacFedries as a referral from Dr. White for back pain in March of 2015; Dr. Reinsel noted Ms. MacFedries' history of spondylolisthesis which was aggravated by the June 2014 knee injury. Dr. Reinsel performed an epidural steroid injection at the L5-S1 level.

Dr. Mark Drymalski saw Ms. MacFedries as a referral from Dr. Eldenburg in April of 2015 for an "exacerbation of her chronic low back pain with lumbar radiculitis from degenerative foraminal stenosis." Dr. Drymalski referred to Ms. MacFedries as suffering a new right knee injury on May 21, 2015. Dr. Drymalski also noted the history five years previous to 2015 of chronic back pain treated with five lumbar epidurals. In his June of 2015 notes, Dr. Drymalski states that he believes Ms. MacFedries' back condition to be a degenerative condition. Dr. Drymalski performed another epidural steroid injection at the L5-S1 level for Ms. MacFedries on June 25, 2015. An MRI ordered by Dr. Drymalski and performed on April 29, 2015 and compared to a 2010 MRI includes the "impression" that an "L5-S1 right foraminal zone disc protrusion and facet osteoarthritis producing moderate/severe right-sided foraminal stenosis... is new or has progressed from the 2010 comparison MRI." The "impression" also states that "multilevel degenerative disc disease and facet osteoarthritis at other levels with grade 1 anterolisthesis of L4 on L5 ... is not significantly changed from the 2010 MRI." (Exh A p414)

Dr. Kevin Komes saw Ms. MacFedries in June of 2015, and opined that Ms. MacFedries was suffering from arthritis in her right knee unrelated to either the June 2014 or May 2015 work activities. Dr. Komes opined that back pain was due to Ms. MacFedries' unusual gait.

Dr. Ajay Aggarwal saw Ms. MacFedries on July 15, 2015 regarding her right knee pain. Dr. Aggarwal described the right knee pain as the result of "lateral compartment bone on bone arthritis." (Dr. Aggarwal, Exh A-10)

Dr. Choma saw Ms. MacFedries in August of 2015 and described her as having lumbar degenerative scoliosis as well as lumbar degenerative spinal listhesis. Dr. Choma believes that the majority of Ms. MacFedries' problems are coming from the degenerative spinal listhesis at L4-5, and that these symptoms are not work related.

Dr. James Stuckmeyer evaluated Ms. MacFedries on February 23, 2016 and issued a report based thereon on April 4, 2016. Dr. Stuckmeyer noted Ms. MacFedries' history of kicking her leg up and down to get on and off the forklift and having her right knee pop on June 4, 2014, and of stepping sideways onto a step and kicking her leg and feeling a pop in her right knee on May 21, 2015. Dr. Stuckmeyer opined that Ms. MacFedries injured her back on June 4, 2014, as the result of an altered gait due to her right knee injury and opined that treatment ranging from additional pain management to decompression, instrumentation and fusion is appropriate to treat the back condition. Dr. Stuckmeyer acknowledged that Ms. MacFedries had prior problems with her low back, that she had epidural steroid injections prior to June 4, 2014 to treat her low back pain and that she was taking meloxicam at the time of the June 4, 2014 accident to control her back pain. Dr. Stuckmeyer noted that an MRI scan from 2010 reflected degenerative L4-5 spondylolisthesis as well as central stenosis at L4-5 with facet arthropathy. Dr. Stuckmeyer added that the need for additional treatments specific to the lumbar spine as described "flows from the two workplace injuries occurring on June 4, 2014 and May 21, 2015." However, Dr. Stuckmeyer's discussion of Ms. MacFedries' back complaints focuses solely on the difference between Ms. MacFedries'

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cathy MacFedries

Injury No. 15-034728

condition before the June 4, 2014 injury and after the June 4, 2014 injury, with no discussion at all of any role the May 21, 2015 injury played in Ms. MacFedries' back. Dr. Stuckmeyer specifically states that it is the June 4, 2014 accident that is causing Ms. MacFedries' symptoms of low back pain with radiculopathy.

With regard to the right knee, Dr. Stuckmeyer opined that the treatment provided for the June 4, 2014 injury is appropriate and that the second, May 21, 2015, injury caused a progression of degenerative arthritis to the point that a knee replacement is appropriate. Dr. Stuckmeyer refers to the proposed knee replacement as being "the result" of these two workplace accidents. (Dr. Stuckmeyer, Exh F) However, Dr. Stuckmeyer referred to the August 18, 2014 MRI of the right knee as revealing irregularities in the body of the meniscus which "could have attributed" (sic) to the right knee symptoms. (Dr. Stuckmeyer, Exh F)

Dr. Everett Wilkinson, Jr., D.O., evaluated Ms. MacFedries on August 10, 2016, and issued a report based on that evaluation on September 2, 2016; Dr. Wilkinson testified by deposition on January 9, 2017, on behalf of General Cable Corporation. Dr. Wilkinson opined that Ms. MacFedries' "current low back symptoms are related specifically to her chronic degenerative joint disease and most specifically the L4-L5 spondylolisthesis. This specific type of problem was not caused by either of the injuries either in 2014 or 2015 while she was at work. The prevailing factor in this matter is actually the history of degenerative disease." (Dr. Wilkinson report, Exh 1)

Dr. Wilkinson did not believe that the alleged accident of May 21, 2015, was the prevailing factor in causing Ms. MacFedries' right knee complaints; Dr. Wilkinson cited the 2014 right knee injury and the symptoms which followed as well as the similarity in symptoms both before and after the May 21, 2015 injury in identifying the 2014 injury as the cause of Ms. MacFedries' right knee complaints. Dr. Wilkinson did say that he did not expect the degenerative meniscus and arthritis and osteoarthritis reflected in the August 2014 MRI of the right knee to have developed in the two months since the June 2014 injury.

APPLICABLE LAW

RSMo Section 287.020.2 The word "accident" as used in this chapter shall mean 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. An injury is not compensable because work was a triggering or precipitating factor.

RSMo Section 287.020.3(1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

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

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

W.C-32-81 (6-81)

Page 6

**Employee:** Cathy MacFedries

**Injury No.:** 15-034728

(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.

"An injury will not be deemed to arise out of employment if it merely happened to occur while working but work was not a prevailing factor and the risk involved here, walking, is one to which the worker would have been exposed equally in normal non-employment life. The injury here did not occur because Mr. Miller fell due to some condition of his employment. He does not allege that his injuries were worsened due to some condition of his employment or due to being in an unsafe location due to his employment. He was walking on an even road surface when his knee happened to pop. Nothing about work caused it to do so. The injury arose during the course of employment, but did not arise out of employment. Under sections 287.020.2, .3, and .10 as currently in force, that is insufficient. Miller v. Missouri Highway and Transportation Commission, 287 S.W.3d 671 (Mo. banc 2009) where Mr. Miller was working with his Missouri Highway and Transportation Commission crew repairing a section of road and injured his knee while walking briskly to his truck to obtain repair material when he felt his knee pop followed by pain in the knee.

The claimant, Cathy MacFedries, has failed to sustain her burden of proof that she was injured in an accident arising out of and in the course of employment. Ms. MacFedries injured her right knee while stepping up onto a step; 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. Ms. MacFedries injured her right knee while in the course of her employment, but not arising out of the employment. As in Miller, there was no work-related risk to which Ms. MacFedries was not equally exposed in her nonemployment life.

All other issues raised for resolution are hereby rendered moot.

I certify that on 8-17-17 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: __________________________

Made by: __________________________

HANNELORE D. FISCHER

Administrative Law Judge

Division of Workers' Compensation

WC-32-R1 (6-81)

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