Dale Nivens v. Interstate Brands Corporation

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 07-002739

**Employee:** Dale Nivens

**Employer:** Interstate Brands Corporation

**Insurer:** Missouri Private Sector Industrial Self-Insurance Gurantee Fund

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled 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 and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated September 15, 2017. The award and decision of Administrative Law Judge Hannelore D. Fischer, issued September 15, 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 **20th** day of August 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

Reid K. Forrester, Member

**NOT SITTING**

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

Employee: Dale Nivens

Dependents: N/A

Employer: Interstate Brands Corporation

Additional Party: Treasurer of the State of Missouri

Custodian of the Second Injury Fund

Insurer: Corporate Claims Management

Hearing Date: July 19, 2017

Injury No.: 07-002739

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? 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: January 15, 2007

1. State location where accident occurred or occupational disease was contracted: Cole 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: See Award

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: Left wrist

1. Nature and extent of any permanent disability: 25% left wrist

1. Compensation paid to-date for temporary disability: $7,090.92

1. Value necessary medical aid paid to date by employer/insurer? $35,503.13

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1. Value necessary medical aid not furnished by employer/insurer? - 0 -
2. Employee's average weekly wages: ---
3. Weekly compensation rate: 516.78 for temporary total disability 376.55 for permanent partial disability
4. Method wages computation: By agreement

1. Amount of compensation payable: 25% left wrist = $16,474.06
2. Second Injury Fund liability: No
3. Future Requirements Awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to 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: Rudolph Veit.

**Injury No. 07-002739**

**Before the**

**DIVISION OF WORKERS' COMPENSATION**

Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

**Checked by: HDF/scb**

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on July 19, 2017. Memoranda were submitted by August 11, 2017.

The parties stipulated that on or about January 15, 2007, the claimant, Dale Nivens, was in the employment of Interstate Brands. The claimant sustained an injury by accident; the accident arose out of and in the course of employment. The employer was operating under the provisions of Missouri's workers' compensation law; workers' compensation liability was insured by the Missouri Guaranty Association. The employer had notice of the injury. A claim for compensation was timely filed. The applicable rate of compensation is 516.78 per week for temporary total disability benefits and 376.55 per week for permanent partial disability benefits. Medical benefits have been paid in the amount of 35,503.13. Temporary disability benefits have been paid in the amount of 7,090.92.

The issues to be resolved by hearing include 1) whether the accident was the prevailing factor in causing the injury to the right knee, 2) the nature and extent of permanent disability, and 3) the liability of the Second Injury Fund.

The claimant, Dale Nivens, was born in 1948, and was 69 years old as of the date of hearing. Mr. Nivens graduated from Helias High School in 1966, and graduated from Lincoln University with a bachelor of science in agriculture degree in 1971.

Mr. Nivens' work history includes over two years with MoorMan Feeds selling feed and livestock products, followed by six years in beer sales and delivery at Fechtel. While working for Fechtel Mr. Nivens injured his back while lifting beer kegs into a cooler; Mr. Nivens wore a back brace after that and had daily pain. Mr. Nivens testified that the work became "too hard" and that he switched jobs to work for Von Hoffman Press. Mr. Nivens worked in the shipping department for Von Hoffman Press for two years following his work for Fechtels. Mr. Nivens testified that he would lift up to 100 pounds at Von Hoffman Press. In October of 1981, Mr. Nivens began work for Interstate Brands as a driver and salesman. Mr. Nivens' work for Interstate Brands included delivering bread via a 54-pound two wheeler, which weighed about

Issued by DIVISION OF WORKERS' COMPENSATION

Enployee: Dale Nivens

Injury No. 07-002739

250 pounds when loaded; Mr. Nivens would push the two wheeler up ramps and pull it backwards to get it where he wanted. Mr. Nivens reported the lifting requirement at Interstate Brands to be about 50 to 60 pounds. Mr. Nivens complained of constant back pain for which he took Tylenol.

Mr. Nivens testified that he injured his back in 1977 while working for Fechtel. Mr. Nivens injured his back again in 1989 while working for Butternut Bread (a precursor to Interstate Brands) when he slipped getting in or out of a truck. When asked about another back injury in 2001, Mr. Nivens responded that he could not recall a specific accident but that his back pain was ongoing.

Mr. Nivens had problems with his right knee dating back to 1986, when he injured his right knee while working for Interstate Brands. Mr. Nivens said that he saw Dr. Galbraith for his right knee and that a tear of the anterior horn was diagnosed. Mr. Nivens had no surgery on the right knee until after his 2008 work injury. An MRI of the right knee performed on April 1, 2005, reflects a high grade sprain of the lateral collateral ligament and a tear of the anterior horn of the lateral meniscus.

Prior to 2007, beginning in around 2003, Mr. Nivens suffered from a cardiac condition, which Mr. Nivens described as atrial fibrillation. Mr. Nivens was on Coumadin for this condition and did not have a pacemaker or defibrillator. Mr. Nivens described shortness of breath with exertion and the need to take smaller loads as the result of his heart condition. Mr. Nivens also referred to fluid retention in his lower extremities making it difficult to squat or get on his knees. Mr. Nivens described this as a vascular condition and said that his legs would swell and he would need to put his legs up at night. Mr. Nivens testified to wearing support stockings due to the swelling in his legs after a 2009 pulmonary embolism and deep vein thrombosis. Mr. Nivens said that he would not have been able to return to the job he performed for Fechtel after he had his cardiac complications.

On January 15, 2007, Mr. Nivens was delivering bread for Interstate Brands when he fell on the ice in front of the Rainbow Market, hitting his left wrist and right knee as well as his chest. Mr. Nivens had surgery on his left wrist with Dr. Guinn in Lee's Summit to repair a tear in the triangular fibro cartilage complex ligament and a partial scapholunate ligament tear. Mr. Nivens was released from Dr. Guinn's care on February 19, 2008, with a permanent disability rating of six percent of the left wrist. Mr. Nivens testified that he was released without restrictions pertaining to the left wrist. Mr. Nivens stated that he had constant pain in his right knee after the accident, but stated that he had had constant pain in the right knee before the accident as well.

Mr. Nivens testified that as a result of the left wrist injury he has pain bending the left wrist forward or backward and has trouble lifting heavier objects. Mr. Nivens does not believe that he could do cashier type work because of the constant use of the left wrist nor could he return to the lifting type work he was performing for Fechtel.

On February 7, 2008, Mr. Nivens injured his right knee again while pushing a transport rack full of trays when a wheel locked up causing Mr. Nivens to wrench his right knee and fall. Mr. Nivens received medical treatment from Dr. Acosta who referred him to Dr. Snyder.

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**Employee:** Dale Nivens

**Injury No.:** 07-002739

Mr. Nivens believes he had a torn meniscus and something loose on his patella; an MRI showed evidence of a meniscus tear, degenerative arthritis in the patellofemoral joint, and a possible loose body. Dr. Snyder operated on the right knee in June of 2008, performing a partial lateral meniscectomy and removal of a loose body from the patella. Mr. Nivens felt that Dr. Snyder's surgery improved the status of the right knee but did not completely address the looseness in the kneecap. Mr. Nivens testified that he was released to full duty work after the surgery to the right knee. Dr. Snyder opined that Mr. Nivens had a seven percent permanent disability of the right knee. In August of 2010, Mr. Nivens testified, he saw Dr. Lutz in St. Louis on his own to obtain a second opinion regarding treatment and left the appointment feeling that there was no additional appropriate treatment for the condition of his right knee.

An MRI ordered by Dr. Bal showed mild narrowing of the medial knee joint, a complex tear of the medial meniscus, a small radial tear of the posterior horn, truncations of the body and anterior horn of the lateral meniscus, three compartment osteoarthritis with cartilage loss and chondromalacia, and patellar subluxation with asymmetric cartilage loss. In July or August of 2011, however, Dr. Bal repaired the knee; Mr. Nivens wants to be reimbursed his $488.89 in out of pocket costs and would like to be held harmless from recourse his health insurer may have for costs it expended in regard to Dr. Bal's surgery. In his deposition testimony, Mr. Nivens stated that he never sought authority from Interstate Brands of their workers' compensation carrier to treat with Dr. Bal.

Mr. Nivens returned to Interstate Brands in July of 2008, but had an assistant who loaded the racks of bread products, drove the delivery truck, and handled the store deliveries. Mr. Nivens said that he voluntarily retired due to his inability to do his work for Interstate Brands on his own as the result of the back, right knee, and left wrist injuries. Mr. Nivens said that he has been receiving social security benefits since July of 2008.

In 2009, according to Mr. Nivens, he was diagnosed with a tendon rupture of the left ankle and plantar fasciitis in both feet. Mr. Nivens testified to surgeries and pulmonary emboli and deep vein thrombosis in his legs. It is since that time that he has been wearing the support stockings to help with the swelling in his legs.

Dr. Raymond Cohen evaluated Mr. Nivens on June 9, 2009, June 19, 2012, and January 2, 2015, and issued reports pertaining to those evaluations on the dates of the respective evaluations, as well as several supplemental reports. Dr. Cohen was deposed twice, on April 15, 2014, and again on June 29, 2015. In his April 2014 deposition Dr. Cohen testified that he believed Mr. Nivens to have a permanent disability of 50 percent of the left wrist and 10 percent of the right knee attributable to the 2007 accident and injury and an additional disability of 55 percent of the right knee as the result of the 2008 accident. Dr. Cohen's report of June 19, 2012, however, refers to an increased disability of the right knee after the second surgery of 65 percent of the knee attributable to the 2008 accident. Dr. Cohen opined that Mr. Nivens has a disability preexisting 2007 of 35 percent of the body attributable to his cardiac condition. Dr. Cohen opined to Mr. Nivens' permanent and total disability as the result of his 2008 accident and his preexisting disabilities.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Dale Nivens

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In his 2015 deposition, Dr. Cohen noted that Mr. Nivens has disability preexisting his 2007 and 2008 accidents of 15 percent of the body referable to the lumbar spine and five percent of the right knee. Dr. Cohen remained steadfast in his opinion regarding Mr. Nivens' permanent and total disability as the result of his 2008 accident combined with his preexisting disabilities.

Dr. O. Allen Guinn opined to a permanent disability of six percent of Mr. Nivens' left wrist as the result of the accident and injury of January 15, 2007. Dr. Guinn noted that Mr. Nivens' chief complaint when he last saw him on May 20, 2008 for a disability rating was due to the irritation of the ulnar nerve by a dissolvable suture which would take additional time to dissolve.

Dr. Michael Snyder performed surgery on Mr. Nivens' right knee on June 10, 2008; Dr. Snyder performed a right knee partial lateral meniscectomy, a debridement and chondroplasty of the patellofemoral joint and a lateral release. Dr. Snyder opined to a permanent disability of seven percent of the knee. Dr. Snyder released Mr. Nivens from treatment on November 24, 2008. When Dr. Snyder last saw Mr. Nivens on December 28, 2009, he noted that Mr. Nivens complained of his right kneecap feeling like it would pop out. Dr. Snyder diagnosed Mr. Nivens with some lateral subluxation of the patella. Dr. Snyder recommended bracing, rehabilitation, and anti-inflammatory medication.

Dr. David Clymer, orthopedic surgeon, testified by deposition that he evaluated Mr. Nivens on February 8, 2016, and authored a report pertaining to that examination on the same date. Dr. Clymer felt that the right knee MRI taken in 2008 did not differ significantly from the MRI taken of the right knee in 2005; the 2008 MRI revealed "some evidence of tearing and abnormality of the lateral meniscus as well as some other areas of generalized degenerative wear" without clear evidence of a new injury. (Er Exh C, p15,111-14) Dr. Clymer opined that the arthroscopic surgery performed by Dr. Bal in 2011 "demonstrates evidence of a more generalized degenerative process with more medial meniscus damage than lateral meniscus damage." (Er Exh C-2) Dr. Clymer attributed the findings from Dr. Bal's surgery to be consistent with a gradual progressive degenerative process related to Mr. Nivens' age and morbid obesity rather than with workplace events. Dr. Clymer went on to state that although Mr. Nivens may at some point need a knee replacement, the need for such treatment would come from the degenerative process in Mr. Nivens' right knee; Dr. Clymer said that the 2007 and 2008 work accidents are not the "primary and prevailing factor" in Mr. Nivens' potential need for a knee replacement in the future. (Er Exh C-2) Dr. Clymer cited Mr. Nivens' weight and the aging process and the passage of time as the cause of the degeneration of the right knee and the need for additional medical treatment. Dr. Clymer did assign a permanent disability of five percent of the right knee attributable to the 2007 and 2008 accidents in equal amounts.

Benjamin Hughes, vocational rehabilitation counselor, testified by deposition that he evaluated Mr. Nivens' medical records, doctors' reports and depositions in an effort to determine Mr. Nivens' employability in the open labor market. Mr. Hughes issued his report pertaining to Mr. Nivens' employability on December 16, 2015. Mr. Hughes noted that Mr. Nivens' treating physicians, Dr. Guinn for the left wrist and Dr. Snyder and Dr. Bal for the right knee, gave him no work restrictions; only Dr. Cohen imposed permanent work restrictions on Mr. Nivens. Dr. Cohen imposed restrictions on the left wrist, the right knee, and pertaining to Mr. Nivens' prior cardiac condition. Mr. Hughes pointed out that Mr. Nivens has no restrictions at all.

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Issued by DIVISION OF WORKERS' COMPENSATION

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regarding his right upper extremity. Mr. Hughes opined that, considering Dr. Cohen's restrictions on Mr. Nivens' cardiac condition, left wrist, and right knee, that Mr. Nivens is employable in a large range of sedentary to light positions. Mr. Hughes cited office cleaning, storage facility rental clerk, sales attendant, ticket sales, alarm monitor work, and parking lot attendant as positions for which Mr. Nivens would be qualified. Mr. Hughes testified that looking at the left wrist and right knee injuries and their respective restrictions individually that Mr. Nivens would have an even greater number of positions to which he has access.

Gary Weimholt, vocational rehabilitation consultant, testified by deposition twice, with regard to his evaluation of Mr. Nivens on November 24, 2009. Mr. Weimholt concluded that considering Mr. Nivens' condition of his left wrist, right knee, and cardiac condition that he has "a total loss of access to the open competitive labor market and is totally vocationally disabled from employment." (Clmt exh 5, exh 3) However, in his November 4, 2015 deposition testimony, Mr. Weimholt said that Mr. Nivens' permanent total disability status was either the result of a combination of disabilities or due to the last injury alone. In his second deposition on December 2, 2016, Mr. Weimholt was confused by the order of the injuries, initially claiming that Mr. Nivens' last work related injury was the left wrist injury rather than the right knee injury; Mr. Weimholt maintained that Mr. Nivens' permanent total disability was caused by a combination of his injuries.

Terry Cordray, certified rehabilitation counselor, testified by deposition that Mr. Nivens is not precluded from participation in the open labor market as the result of his 2007 and 2008 work-related accidents.

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.

RSMo Section 287.220.2 All cases of permanent disability where there has been previous disability due to injuries occurring prior to January 1, 2014, shall be compensated as provided in this subsection. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen

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percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of the second injury fund.

AWARD

The claimant, Dale Nivens, has failed to sustain his burden of proof that the accident of January 15, 2007, was the prevailing factor in causing the current condition of Mr. Nivens' right knee. Mr. Nivens testified that he fell on January 15, 2007, and injured his left wrist and his right knee. Mr. Nivens had surgery on his left wrist. Mr. Nivens complained that he had pain in his right knee both before and after the January 15, 2007 accident. There is no medical report indicating a change in the condition of Mr. Nivens' right knee as the result of the January 15, 2007 accident and injury.

Mr. Nivens has sustained his burden of proof that he has a permanent disability of 25 percent of the left wrist as the result of the January 15, 2007 accident and injury. Mr. Nivens testified credibly with regard to the limitations he now has in his left wrist as the result of the 2007 accident and injury to the left wrist. There was no evidence of increased pain or an increase in limitations as the result of the January 15, 2007 accident and injury to the right knee.

Mr. Nivens has failed to sustain his burden of proof that he has permanent disability resulting from the combination of his 2007 left wrist injury and preexisting disabilities. Mr. Nivens

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provided evidence of a prior low back injury, a prior right knee injury, and a prior cardiac condition; however, none of these conditions were significant enough to be a hindrance or impediment to employment where Mr. Nivens testified that for years he was able to perform the significantly strenuous work at Interstate Brands while only using Tylenol for back pain and slightly modifying the manner in which he made deliveries to minimize exertion. There was no testimony that Mr. Nivens was under any medical restrictions at the time of his 2007 accident and injury relative to his prior back, right knee, or cardiac condition. Thus the Second Injury Fund is not liable for benefits in this case.