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

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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.

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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 Wor