Jennifer Lana v. Oldcastle, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 17-022682

**Employee:** Jennifer Lana

**Employer:** Oldcastle, Inc.

**Insurer:** Liberty Mutual Insurance Corporation

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 parties' briefs, and considered the whole record, we find that the Temporary Award of the administrative law judge allowing 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 Temporary Award and decision of the administrative law judge with this supplemental opinion.

The administrative law judge cited numerous facts in setting forth the evidence beginning on Page 4 of the Award, starting with the second full paragraph ("Taking into consideration the documentary evidence..."). We adopt all the facts stated from page 4 - page 7, up to the heading "Findings" to be our own findings of fact.

The administrative law judge found claimant's testimony to be credible. We adopt that finding. Therefore, where the administrative law judge recites evidence by reference to the claimant's testimony, we adopt claimant's testimony as stated therein to be our findings of fact.

We further find that when claimant was placed on cuber operator duty, it was not considered a light duty work.² The formal job description for the position includes lifting up to 125 pounds as a minimum requirement. Transcript page 41.³

Employer terminated employee post-injury, after she had worked light duty from April 2017 until January 17, 2018. Employer's theory of misconduct included, in part, its prohibition on "frequent absenteeism." Employer identified only the following absences: January 8, 2018, when employee visited Dr. Rosenthal; January 11, 2018, when employee called in for a family emergency; January 12, 2018, when employee called in because her car didn't start; January 15, 2018, when employee called in because of a medical need. Employee had leave time to cover the absences.

The administrative law judge cited numerous conclusions of law as set forth under the heading "Findings" beginning on Page 7 of the Award, starting with the third full paragraph. To avoid any

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¹ Section 286.090 RSMo, requires that in every appeal coming before the commission, a written statement giving the commission's findings of fact and conclusions of law on the matters at issue shall be prepared.

² At page 4 of the Award, second full paragraph, the administrative law judge indicates "claimant was placed on a lighter duty of a cuber operator ... a more physically demanding position." We believe this is a typographical error and eliminate the reference to "a lighter" duty.

³ The evidence shows that employee began the cuber operator position full-time on the same day as she was injured, April 4, 2017. While we have carefully considered the employer's assertion that it was unlikely this repetitive motion injury could develop in such a short time, credible medical opinion establishes that work exposure was the prevailing cause.

Injury No.: 17-022682

Employee: Jennifer Lana

- 2 -

confusion, we adopt the administrative law judge's "Findings" section of the Award as our own Conclusions of Law. We further conclude as set forth below.

Section 287.170.4 RSMo provides, in relevant part:

If the employee is terminated from post-injury employment based upon the employee's post-injury misconduct, neither temporary total disability nor temporary partial disability benefits under this section or section 287.180 are payable. . . . . . . post-injury misconduct shall not include absence ... due to an injury unless the employee is capable of working with restrictions, as certified by a physician.

We conclude that employer did not prove employee's termination was for post-injury misconduct under § 287.170.4. Employee is entitled to temporary partial disability benefits, as stated in the Temporary Award of the administrative law judge.

**Conclusion**

We affirm and adopt the Temporary Award of the administrative law judge as supplemented and corrected herein.

This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo.

The award and decision of Administrative Law Judge Mark Siedlik, issued September 4, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm 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 15th day of March 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Implyyee: Jennifer Lana

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

I do not believe the employee has proven a compensable injury under the Missouri Workers' Compensation Law for which the employer is liable. I find the opinion of Dr. Dana R. Towle to be more persuasive on the issue of causation. After viewing a video of the work station activities, Dr. Towle opined that employee's brief full-time work as a cuber operator was not the cause of her right lateral epicondylitis.

Because I believe Dr. Towle's assessment is most persuasive, and given the one day exposure to the full-time job duties and the evidence that employee's lifting activities were infrequent, I do not believe employee has proven the work exposure was the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

I would reverse the administrative law judge's temporary award on all grounds and find employee is not entitled to compensation from the employer.

I respectfully dissent.

Reid K. Forrester, Member

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jennifer Lana

Injury No: 17-022682

TEMPORARY AWARD

Employee: Jennifer Lana

Injury No: 17-022682

Dependents: N/A

Employer: Oldcastle, Inc.

Insurer: Liberty Mutual Insurance Corporation

Additional Party: N/A

Hearing Date: July 10, 2018

Checked by: MSS/drl

FINDINGS OF FACT AND RULINGS OF LAW

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: April 4, 2017

1. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson 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: Claimant was pushing and lifting cinderblocks on assembly line and suffered injury.

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jennifer Lana

Injury No: 17-022682

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 upper extremity.

1. Nature and extent of any permanent disability: Undetermined

1. Compensation paid to date for temporary disability: $-0-

1. Necessary medical aid paid to date by employer/insurer? $3,320.00

1. Medical aid not furnished by employer/insurer: Undetermined

1. Employee's average weekly wage: 1,146.02 per week per stipulation of the parties

1. Weekly compensation rate: 764.05 for temporary total disability

1. Method wages computation: By Agreement

COMPENSATION PAYABLE

1. Compensation to claimant as follows: Medical treatment to her right upper extremity, past temporary total and temporary partial disability, and if determined to be unemployable during her course of treatment, the employer/insurer is ordered to pay temporary total disability during that time.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Michael Haight.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jennifer Lana

Injury No: 17-022682

Employee: Jennifer Lana

Injury No: 17-022682

Dependents: N/A

Employer: Oldcastle, Inc.

Insurer: Liberty Mutual Insurance Corporation

Additional Party: N/A

Hearing Date: July 10, 2018

Checked by: MSS/drl

This case comes on for hearing on July 10, 2018, where the employee and employer appeared for a hardship hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The employee, Jennifer Lana, appeared in person with her counsel, Mr. Michael Haight. The employer/insurer appeared through their counsel, Ms. Kelsy Allison. The Second Injury Fund was not a party to this case. At the conclusion of evidence on July 10, 2018, the parties were allowed 20 days to issue or file post-trial briefs or proposed awards, the last of which were received July 30, 2018.

The parties presented issues requesting the Division to determine whether the employee sustained a repetitive motion injury and/or an occupational disease arising out of and in the course and scope of her employment with Oldcastle, Incorporated, whether the employee's work was the prevailing factor in causing her medical condition and disability, the liability of the employer for medical treatment, the liability for both past temporary partial disability and past and future temporary total disability benefits.

The parties entered into the following stipulations:

1. On or about April 4, 2017, "the alleged date of injury", Oldcastle, Incorporated, was an employer working subject to the Missouri Workers' Compensation Law within its liability fully insured by Liberty Mutual Insurance Company;
2. Jennifer Lana was its employee working subject to the law in Kansas City, Jackson County, Missouri;
3. Jennifer Lana notified Oldcastle of her injury and filed her claim within the time allowed by law;
4. Oldcastle has provided medical care to date with expenses totaling $3,320.00.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jennifer Lana

Injury No: 17-022682

The issues to be resolved at this hearing include:

1. Whether the employee sustained a repetitive motion injury and/or occupational disease arising out of her employment with Oldcastle, Incorporated;
2. Whether the employee's work was the prevailing factor in causing her alleged medical condition and disability;
3. The liability of the employer for medical treatment; and
4. The liability of the employer for both past temporary partial and past as well as future temporary total disability benefits.

The evidence at trial consisted of the testimony of the claimant in person and the following exhibits, which were all admitted without objection.

The Claimant offered the following exhibits:

- A Job Description

- B Worksite Photos

- C Employer Attendance Policy

- D Texts between Employee and Employer

- E Independent Medical Evaluation - Rosenthal

The Employer offered the following exhibit:

- 1 60 Day Letter, Dr. Towle's 11-15-17 Report

Taking into consideration the documentary evidence presented and the testimony of the claimant, I find that the claimant had been an employee of Oldcastle from October 2016 until January of 2018. The company manufactures cinderblocks of varying sizes and weights. The claimant in her regular job prior to the date of her injury was a machine operator. At some point the claimant was placed on a lighter duty of a cuber operator which, as she testified, is a more physically demanding position. The cuber operator position requires the worker to grasp up to four cinderblocks at a time while they are on a rolling conveyor belt. The operator must then rotate the blocks 90 degrees and push them down the line. The claimant testified each cinder block weighs between 25 and 36 pounds depending on the size being made. The claimant testified the conveyor line could become full of blocks at any given time, so the operator would have to forcefully push to move the line forward to the place where the cinderblocks could be palletized.

The claimant testified, in addition to manipulating and moving the cinderblocks down the rolling conveyor, defective blocks would have to be picked up and thrown into a dumpster behind the operator. This would require the claimant to grasp, lift, and throw the full weight of

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jennifer Lana

Injury No: 17-022682

each block. The claimant testified this occurred multiple times throughout each and every day. The claimant testified that as defective cinderblocks accumulated in the dumpster, the operator would have at her work station a hammer and would have to physically break the blocks down to allow more material to accumulate within the dumpster. The claimant testified this is an activity that would take place throughout the day with the forcibly breaking of defective cinderblocks within the dumpster.

The claimant testified she was allowed one 30-minute lunch break and no periodic breaks throughout the day regardless of the shift being 8 or 12 hours. The claimant testified that following her full shift of duties on April 4, 2017, claimant developed symptoms in her right elbow. The symptoms became severe overnight and she reported them to her employer. The employer directed authorized medical treatment, which was provided through an occupational clinic where the diagnosis of lateral epicondylitis was provided. The claimant was referred by the employer and insurer to an upper extremity specialist, Dr. Dana Towle.

Dr. Towle, after reviewing the claimant's work activities, subjective complaints, and objective examination findings, provided a diagnosis of lateral epicondylitis of the right elbow. Dr. Towle recommended a steroid injection pending approval by the employer's workers' compensation carrier. This approval was provided and injections were performed. The claimant was provided no long-term relief and Dr. Towle then recommended surgical relief of the claimant's right elbow. Dr. Towle in a report of July 13, 2017, indicated a 75% chance of improvement with surgical intervention.

In the period of time before surgery was scheduled to relieve the claimant's lateral epicondylitis condition, the employer and insurer provided Dr. Towle with additional records, job description, and a video purported to be the job tasks of the claimant. Dr. Towle then concluded that the act of sliding and turning cinderblocks for only 4 to 5 hours could not have been the cause of her elbow condition. Dr. Towle indicated that if the claimant had been picking up and carrying the blocks, then this "most certainly" would have been the cause.

The claimant testified that the video presented for Dr. Towle to review showed only a small portion of her daily tasks and certainly went well beyond the 4 to 5 hours per day as Dr. Towle was led to believe. The claimant further testified that the full measure of her job duties did include the lifting and forcefully breaking of defective cinderblocks throughout the day, all of which were done for a minimum of 8 hours per day and sometimes up to 12 hours per day with a 30-minute break as the only rest period.

The claimant was examined by Dr. Anne Rosenthal, who reviewed the claimant's history of complaints, her treatment to date, and performed her examination, after which she authored a report. Dr. Rosenthal was allowed to review the formal job description and the work video, the same material provided to Dr. Towle. Dr. Rosenthal was provided a more thorough and accurate

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jennifer Lana

Injury No: 17-022682

description of the job tasks directly from the claimant. Dr. Rosenthal concluded that the work activities in question were the primary factor, in relation to any other factor, in causing the claimant's right lateral epicondylitis. Dr. Rosenthal made treatment recommendations similar to those provided by Dr. Towle and also assessed temporary work restrictions. The conclusions reached by Dr. Rosenthal, which were based on a more inclusive job description than that provided by Dr. Towle, I believe are more credible and entitled to more weight than the opinion of Dr. Towle. I find that, based on the evidence presented and the explanations by the above-mentioned doctors, that the prevailing factor for the claimant's right epicondylitis condition and need for treatment is the employment with the employer and insurer. The claimant currently remains in need of reasonable and necessary medical treatment and the employer and insurer are directed to provide that treatment.

The claimant has alleged that during the period of her light duty, accommodated work for the employer and insurer, she was moved off the production line and given primarily left-handed work duties. The claimant alleges that in the period of time for which she was on light duty, she was limited to 40 hours per week and suffered a significant reduction in her weekly earnings as a result of her industrial injuries and move to light duty. The evidence presented indicate the difference between the claimant's weekly pre-injury wage of 1,146.02 and her regular 40-hour accommodated position wage of 734.00 amounts to a $412.02 difference which, when determining whether temporary partial disability is due, results in additional wages of $274.69 per week due and owing. The claimant was required to work in that light duty, accommodated duty for reduced pay from April 10, 2017, through January 16, 2018. I find that for that period of time, the claimant is entitled to temporary partial disability benefits in the amount of $11,067.26, covering the period of April 10, 2017, through January 16, 2018.

The claimant was terminated from employment on January 17, 2018. The employer's allegation over the termination was the claimant's no call/no show for three consecutive workdays. The claimant acknowledged receipt of the employee's handbook wherein "[A]n employee absent from work without notification to their supervisor for three (3) consecutive workdays will result in an automatic termination." Claimant's Exhibit C. The claimant testified that, according to that policy, notification must be provided to the absent worker's supervisor at least one hour prior to the start of the shift if the worker is going to be absent or report to work late. The claimant in this matter admits missing three consecutive workdays. The claimant provided convincing evidence that she had met the notification requirements for two of those three days missed. The claimant provided a printout of texts submitted to her supervisor, which established she had provided both notice and reason for one absence a full hour before her shift and, for another, the night before she was to work. It would appear that applying the employer's own policy, the claimant did not engage in post-injury misconduct that would justify termination. The claimant alleges that, as such, her actions would not give rise for forfeiting her right to temporary total disability benefits pursuant to §287.170.4. The claimant's explanation and testimony regarding the absences was testimony submitted without any rebuttal or further

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jennifer Lana

Injury No: 17-022682

explanation by the employer and insurer.

The claimant, in her current condition, remains in need of treatment pursuant to both the opinions of Dr. Towle and Dr. Rosenthal, although Dr. Towle had been provided incomplete information which caused the opinion to be changed to one of a not work-related nature. Having found that information provided to Dr. Towle to be incomplete and inaccurate, one must assume that Dr. Towle's opinion, if supplied complete and accurate information, would remain as before that the claimant was in need of surgical intervention. The claimant testified on cross-examination that she had applied for and was denied unemployment benefits in the period after her termination from the employer and insurer.

There is no evidence to suggest that the claimant's medical condition is changed to the point where she is able to effectively compete in the open labor market and, therefore, must be assumed to continue to be temporarily and totally disabled pending medical treatment and recovery.

FINDINGS

In a workers' compensation claim, the Employee bears the burden of proof to show that their injury was compensable. *Johme v. St. John's Mercy Healthcare*, 366 S.W.2d 504 (Mo. Banc 2012). To meet this burden, employee must prove that each factual proposition upon which his claim rests is more likely to be true than not true. R.S.Mo § 287.808. I find, in reviewing the evidence and testimony presented and the lack of rebuttal of the claimant's credible testimony, that the employee has met her burden of proof that her work activities of April 4, 2017, were the prevailing factor in causing injury to her right elbow. I find the medical evidence in the form of the reports and opinions of Dr. Towle and Dr. Rosenthal to be consistent in the claimant's need for surgical intervention. Where I find the opinion and recommendation of Dr. Rosenthal more credible and appropriate is that Dr. Towle was provided incomplete information as to the job description and video tape of a demonstration of the claimant's actual duties which caused Dr. Towle to form the opinion that the surgical recommendation which had previously issued was withdrawn, concluding the work activities demonstrated and described were not the prevailing factor for the claimant's need for treatment. I find adequate proof has been brought forward to show that Dr. Towle was not provided all of the information of the claimant's job activities and conclude the claimant is entitled to the treatment previously recommended.

I find the claimant also has proved her entitlement to temporary partial disability for the period of time for which the claimant was placed on accommodated light duty from April 10, 2017, through January 16, 2018, and suffered a diminished rate of pay to the extent that she is now entitled to 274.69 per week for the above-mentioned period of time, a total of 11,067.26.

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jennifer Lana

Injury No: 17-022682

The claimant's medical condition has not changed and the claimant is still in need of medical treatment from her industrial injury. I find the claimant's termination for cause as previously discussed was inappropriate inasmuch as the claimant had demonstrated to have met the employer's policy regarding unexcused absences. To that end, the claimant is entitled to continue temporary total disability benefits from the date of her termination on January 17, 2018, forward until the claimant has received the necessary medical treatment and the claimant is again deemed employable in the open labor market.

I find the employer is responsible to provide the medical treatment as recommended by the medical experts in this case, and to the extent the treatment would require the claimant to be off work for any period of time, I find the claimant's temporary total disability benefits which are due from January 17, 2018, to continue until such time as the claimant is released from medical care. The claimant is to be paid benefits at a weekly compensation rate of $764.05 per week.

This award is subject to an attorney's lien of 25 percent of sums recovered in favor of Michael Haight for his legal services rendered.

This case is to be returned to the open docket pending the final disposition of this case.

I certify that on 9-4-18, 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 ______ [Signature]

Made by: __________________________

Mark Siedlik

Administrative Law Judge

Division of Workers' Compensation

By ______ [Signature]

OF WORKERS' COMPENSATION

MADE BY: __________________________