Dale Nivens v. Interstate Brands Corporation

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 08-102662

**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

DISSENTING OPINION FILED

Reid K. Forrester, Member

CONCURRING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Worker's Compensation Law, I am not able to conclude that the employee in this case, Dale Nivens, is permanently and totally disabled based due to a combination of his primary injury and preexisting disabilities.

The employee lacks credibility. His testimony at hearing as to preexisting knee and back complaints is inconsistent with his prior testimony as well as his earlier reports to treating doctors.¹ Employee testified he retired because he could not perform his job in a knee brace Dr. Snyder prescribed.² However, the Second Injury Fund's brief notes that Dr. Snyder's records indicate he did not order a knee brace until September 22, 2008.³ This date is after July 28, 2008, employee's last day of work as cited in his Social Security Disability Award.⁴

The employee has a heart condition which has gradually deteriorated. However, employee's heart condition was asymptomatic and not shown to be disabling prior to his work injury in this case or in companion case No. 07-002739.

Vocational experts Benjamin Hughes and Terry Cordray credibly opined that employee is currently employable in the open labor market. Mr. Cordray identified more than twenty job postings in close proximity to employee's residence that match employee's education, skills, and limitations. These opportunities included package and passenger delivery driver, cashier, customer service and loan specialist and call center representative.⁵

The employee admitted he voluntarily retired from his employment in late 2008 with full pension benefits. He currently receives 1,400.00 per month in retirement income in addition to 1,700.00 per month in Social Security Disability income.

The credible, competent and substantial evidence in the record supports the conclusion that employee is not permanently and totally disabled.

Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

---

1 See Transcript 83-85, 243, 316, 542, 1091, 1296, 1359, 1960.

2 Id. 1845-1846.

3 Id. 299, Petitioner's Brief of the Missouri State Treasurer, as Custodian of the Second Injury Fund, p. 5.

4 Id. 1014.

5 Transcript, 2115-2116.

Employee: Dale Nivens

I submit this concurring opinion to disclose the fact that I had a social relationship with the employee as a classmate during high school. I had no actual knowledge of this case. Recognizing that there may exist the appearance of impropriety because of my past acquaintance with employee, I wish to state that I had no involvement or participation in the decision in this case until a stalemate was reached between the other two members of the Commission. As a result, pursuant to the rule of necessity, I am compelled to participate in this case because there is no other mechanism in place to resolve the issues in the claim. *Barker v. Secretary of State's Office*, 752 S.W.2d 437 (Mo. App. 1988).

Having reviewed the evidence and considered the whole record, I join in the decision to affirm the award of the administrative law judge in all respects.

*Curtis Chick*, Member

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.: 08-102662

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: February 7, 2008

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: Right knee

1. Nature and extent of any permanent disability: 35% right knee

1. Compensation paid to-date for temporary disability: $1,304.05

1. Value necessary medical aid paid to date by employer/insurer? $16,815.18

WC-32-R1 (6-81)

Page 1

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 and permanent total disability 389.04 for permanent partial disability
4. Method wages computation: By agreement

1. Amount of compensation payable: 35% knee = $21,786.24
2. Second Injury Fund liability: 56 weeks differential between PPD and PTD = 7,153.44 Ongoing benefits at 516.78 per week from December 22, 2009 forward
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.

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on July 19, 2017. Memoranda were submitted by August 24, 2017.

The parties stipulated that on or about February 7, 2008, 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 and permanent total disability benefits and 389.04 per week for permanent partial disability benefits. Medical benefits have been paid in the amount of 16,815.18. Temporary disability benefits have been paid in the amount of 1,304.05.

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 liability of the employer/insurer for past medical expenses, 3) the liability of the employer/insurer for future medical expenses, 4) the nature and extent of permanent disability, and 5) the liability of the Second Injury Fund (permanent total disability is alleged).

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,

Emplovee: Dale Nivens

Injury No. 08-102662

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 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 th