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 tr