Robert Davis v. Walgreens

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No. 13-104740**

**Employee:** Robert L. Davis

**Employer:** Walgreens

**Insurer:** American Zurich Insurance Company

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge awarding 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 award and decision of the administrative law judge with this supplemental opinion.¹

The administrative law judge's twenty-eight page award includes the following references to this Commission's decision relating to employee's application for unemployment compensation:

- I find with regard to Claimant's termination, that his subsequent appeal to the Labor [and] Industrial Relations Commission who reversed the Unemployment [sic] Security Administrative Law Judge and found that the Claimant was unjustly terminated is significant. The Court recognizes and takes judicial notice [of] the Labor and Industrial Relations Decision with regards to the reasons for the Claimant's termination being unfounded and not justified.²

¹ Paragraph four on page twenty-one of the administrative law judge's award incorrectly states:

> [T]he courts have explicitly held that the statutory requirement is not applicable to claims of injury by occupational disease. *Endicott v. Display Techs*, 77 S.W.3d 612, 616 (Mo. 2002). Therefore, I must conclude that this claim is not barred by any failure to provide notice to the employer of the employee's injuries. (emphasis added)

Legislative changes to § 287.420, RSMo, enacted in 2005, superseded the Supreme Court's holding in *Endicott*, *supra*. The administrative law judge's award correctly cites and properly applies the current version of § 287.420. The inclusion of the above-quoted statement in the award, apparently the result of administrative error, does not affect our ability to review the administrative law judge's award in this matter.

² Award, pp. 18, 22.

Injury No. 13-104740

Employee: Robert L. Davis

- 2 -

Section 288.215 of the Missouri Employment Security Law provides, in pertinent part:

1. Any finding of fact, conclusion of law, judgment or order made by an appeals tribunal, the labor and industrial relations commission or any person with the authority to make findings of fact or law in any proceeding under this chapter shall not be conclusive or binding in any separate or subsequent action not brought under this chapter, and shall not be used as evidence in any subsequent or separate action not brought under this chapter, before an arbitrator, commissioner, commission, administrative law judge, judge or court of this state or of the United States, regardless of whether the prior action was between the same or related parties or involved the same facts (emphasis added).

Pursuant to this statutory mandate, we disregard employee's Exhibit UU, admitted without objection at hearing, and disavow the administrative law judge's findings relevant to employee's claim for unemployment benefits.

We consider the administrative law judge's statements regarding the Commission's decision regarding employee's unemployment claim extraneous to her factual findings regarding employee's credibility in describing continuing pain and problems attributable to his physical disabilities and psychological conditions, as well as her ultimate legal conclusions regarding the issues of accident by occupational disease, notice, medical causation of employee's right lateral epicondylitis, right carpal tunnel syndrome, major depression, anxiety and somatic symptom disorder, past medical, temporary total disability, employee's average weekly wage and compensation rate, employer's responsibility for permanent disability, the Second Injury Fund's liability for permanent total disability and employee's entitlement to future medical treatment.

With respect to employer's contention that, pursuant to § 287.120.9, employee's psychological disability did not arise out of and in the course of his employment because it resulted from employer's good faith discharge and is therefore not compensable, we affirm the administrative law judge's finding that:

[T]he Claimant's psychological conditions of somatic pain disorder and severe major depressive disorder [are] proximately and casually related to the occupational diseases that he acquired on a repetitive basis up to and including December 12, 2013, as well as the injury the Claimant sustained to his low back on April 6, 2013 (emphasis added).3

The above revisions to the administrative law judge's award do not detract from her legal reasoning or her correct analysis of the evidence in the record.

3 Id. p. 21.

We affirm and adopt the award of the administrative law judge as supplemented herein.

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.

The award and decision of Administrative Law Judge Emily S. Fowler, issued June 12, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad$ day of August 2019.


LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member


Attest:


Injury No. 13-104740

Employee: Robert L. Davis

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 Workers' Compensation Law, I find employee Robert L. Davis sustained no physical disability related to an occupational disease as of December 12, 2013. Employee's separately alleged psychological disability stemmed from employer's good faith discharge action on December 12, 2013. As a result, § 287.120.9 RSMo shields employer from compensability. Employee should be awarded no compensation in connection with this claim.

Employee claims an occupational disease up to and including December 12, 2013, involving his right hand, wrist, elbow, arm, psyche and body as a whole based on daily repetitive work duties including, but not limited to, lifting, gripping, grasping, pulling and loading stock.

Pursuant to his independent medical examination of employee on August 22, 2016, Dr. Joseph F. Galate stated:

> In regards to [employee's alleged] right arm and hand pain, I do not have any direct evidence that his employment was the direct cause of him developing lateral epicondylitis nor mild carpal tunnel syndrome on the right. I did not find any particular injuries or trauma that was the prevailing factor in the patient developing either one of those conditions. Patient complains of intermittent symptoms in his right lateral elbow and his fingers and sometimes his thumb [but] has not followed up with Dr. Humphrey in regards to these issues.

In addition, Dr. Alexander Bailey, pursuant to his independent medical examination on April 6, 2013, stated:

> I am highly concerned about the patient's clinical presentation of being Waddell's positive and exaggerated pain behaviors and nonorganic pain behaviors.

At this time, based on causal relationship, I see no reason to limit the patient's overall work function as it relates to a work injury of 04/06/2013 or a repetitive use injury while employed at Walgreen's. I believe from a work-related condition standpoint the patient may work a regular physical demand level. If there are any self-perceived limitations, they are related to his degenerative condition and personal medical in deference to a work-related condition [and or] injury while employed at Walgreen's. . . . he can work a

*Transcript, 1417.*

Injury No. 13-104740

Employee: Robert L. Davis

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regular duty status and if there are any limitations they are personal in nature.

Using all available information including x-rays, MRIs and physical examination, ...I have no definitive clinical information to identify this patient to have sustained a work injury of 04/06/2013 or a repetitive use injury as it relates to his employment at Walgreen's. There are simply no clinical facts that can definitively state that this is a work injury either from an acute basis or a repetitive use issue basis (emphasis added).5

The majority allows nearly two years of past temporary total compensation benefits for employee's upper extremity complaints, although employee's treating physicians never stated employee was incapable of working during this period. Furthermore, in claiming unemployment benefits from December 14, 2013, though April 26, 2014, employee necessarily represented during that time that he was able and available to work.

The majority assesses 25% permanent partial disability for psychological disability resulting from depression and somatic pain disorder associated with his alleged occupational disease of December 12, 2013.

In its decision relating to employee's companion claim in Injury No. 13-104631, the majority found that employee sustained 5% permanent partial disability to the body as a whole due to the psychological impact of his alleged April 6, 2013, work injury.

The majority assesses psychological disability in both cases based exclusively on the opinion of psychologist Dr. James Jackson. Dr. Jackson's objectivity is suspect because Dr. Koprivica considers Dr. Jackson to be his employee. Dr. Jackson conceded approximately 40% to 50% of his practice involves referrals from either Dr. Koprivica or attorneys who have consulted Dr. Koprivica.

In estimating employee's work-related psychological disability, Dr. Jackson assessed 20% of the body as a whole for depression that developed following employee's separation from employment with employer. Dr. Jackson identified a number of "stressors," including loss of income and loss of self-esteem that related to employee's discharge. On cross-examination, however, Dr. Jackson was unable to specifically identify what portion of employee's depression was attributable to his employment separation. When a medical condition results from one of two causes, only one of which would be employer's responsibility, the burden of proof has not been met. Griggs v. AB Chance, 503 S.W.2d 697 (Mo. App. 1973).

Section 287.120.9 RSMo provides "A mental injury is not considered to arise out of and in the course of an employment if it resulted from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or any similar action taken in good faith by the employer (emphasis added)."

5 Transcript, 1408.

Injury No. 13-104740

Employee: Robert L. Davis

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Absolutely no competent evidence supports a finding that employer's December 12, 2013, discharge, prompted by complaints of harassment by coworkers, and taken only after progressive discipline, was in bad faith. Pursuant to § 287.120.9, psychological disability arising from an employer's good faith termination is not compensable. The employee herein is entitled to no compensation for his alleged work-related psychological disability.

**Subjective v. Objective Findings**

Section 287.190.6(2) provides that, in determining issues of compe