Mary Kling v. Quaker Window Products Company

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 15-063862**

**Employee:** Mary Kling

**Employer:** Quaker Window Products Company (settled)

**Insurer:** Missouri Employers Mutual Insurance Company (settled)

**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 December 18, 2019, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Hannelore D. Fischer, issued December 18, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 21st day of September 2020.

---

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

---

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

**Attest:**

Secretary

**Injury No. 15-063862**

I have read the parties' briefs and 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 that employee sustained a compensable injury due to occupational disease resulting from repetitive motion and trauma during ten-hour shifts standing on concrete at employer's window manufacturing company from 2013 to 2015.

Employee settled her claim against employer/insurer in this matter on May 14, 2019, for $5,918.00 based on twenty percent permanent partial disability consisting of ten percent of each foot at the 110-week level.

Notwithstanding employer/insurer's settlement of employee's primary claim, the administrative law judge found that employee "failed to sustain her burden of proof that she sustained an injury caused by her employment at Quaker." *Award, p. 6.* In support of this conclusion, the administrative law judge found employer/insurer's independent medical examination physician Dr. Joshua Nadaud was more credible than employee's expert Dr. Raymond Cohen.

Dr. Nadaud, a foot specialist, spent only approximately twenty to thirty minutes evaluating employee. He did not know how many days a week employee worked; how long employee worked during her shifts; or how long employee worked for employer leading up to the alleged injury. Dr. Nadaud acknowledged that employee may indeed have bilateral plantar fasciitis. However, he ordered X-rays of employee's feet despite admitting in his deposition that plantar fasciitis was a soft tissue injury that would not show up on an X-ray.

Dr. Nadaud testified that more likely than not employee's work put her at no further risk of getting plantar fasciitis versus her activities outside of work. His report stated, "[Employee's] job description does not put her at any higher risk of developing plantar fasciitis than normal activities of daily living." *Transcript, 1209.* This opinion lacks credibility because it is not reasonable to believe that employee's non-work activities of daily life involved standing on concrete for ten hours a day four or five days a week.

Dr. Nadaud further based his medical causation opinion on the fact that employee "noted that she did not have a specific incident or work accident or work injury that led to this pain that she described." *Id.* Dr. Nadaud alluded to a lack of injury by "accident" (i.e. specific place, time, and trauma) as the reason why employee's condition was not work-related at the same time he admitted that he considered employee's disease as "idiopathic" and knew of no activity that would have caused it. *Transcript, 1194.* Based upon Dr. Nadaud's deposition testimony it appears he would never find medical causation of a plantar fasciitis diagnosis in a workers' compensation case.

Dr. Nadaud's opinion relating to the issue of medical causation is irrelevant and/or purposefully misleading because employee's claim did not allege an accident but rather a chronic occupational disease injury.

Neurologist Dr. Raymond Cohen evaluated employee for her bilateral foot complaints through the end of her employment on April 28, 2015. The record includes his June 15, 2016, report. *Transcript, 835.* Unlike Dr. Nadaud, Dr. Cohen was aware of the duration

*Source: https://www.industrydocuments.ucsf.edu/docs/ghgj0236 MNKOI 0000740508*

Employee: Mary Kling

Injury No. 15-063862

- 2 -

of employee's employment and described specific aspects of employee's job, stating, "... she did do a lot of standing at work on mats which were very worn out and really didn't do much cushioning." Dr. Cohen cited treatment records that demonstrated a gradual onset of employee's condition over time with severe worsening.

Dr. Cohen's report incorrectly alluded to an employer requirement that employee wear steel-toed boots. In fact, employee testified employer only required that she wear shoes that covered her heel and toe. However, absolutely nothing in Dr. Cohen's report indicates that he relied on "steel-toed boots" as a factor in formulating his medical causation opinion. Such is logical in that what is above one's feet (i.e. a steel toe) is obviously irrelevant to a condition afflicting the base of one's feet: plantar fasciitis. The administrative law judge's contention to the contrary is not supported by substantial evidence because it ignores Dr. Cohen's recitation of gradual onset of employee's condition over time with severe worsening of symptoms.

Employee's condition of bilateral plantar fasciitis clearly medically causally related to her job duties from 2013-2015 involving repetitive motion and trauma five days a week for ten-hour shifts standing on concrete. Based on disability from this injury, in combination with employee's qualifying preexisting conditions, consistent with the criteria of 287.220.3 RSMo as discussed in *Cosby v. Treasurer of Missouri*, 579 S.W.3d 202 (Mo. banc, 2019), employee is entitled to an award of permanent total disability against the Second Injury Fund.

Because the majority finds otherwise, I respectfully dissent.

Shalonn K. Curls, Member

Employee: Mary Kling

Injury No. 15-063862

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Quaker Window Products Company (previously settled)

Address: Department of Labor and Industrial

Reid

Reid

Jefferson City, Missouri

Address: Treasurer of the State of Missouri

Custodian of the Second Injury Fund

Insurer: $\quad \mathrm{N} / \mathrm{A}$

Hearing Date: November 4, 2019

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: Alleged April 28, 2015
5. State location where accident occurred or occupational disease was contracted: Alleged Cole County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? N/A
11. Describe work employee was doing and how accident occurred or occupational disease contracted: See Award
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Alleged feet
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 392.46
3. Weekly compensation rate: $\ 261.64
4. Method wages computation: By agreement

1. Amount of compensation payable: Employer previously settled.
2. Second Injury Fund liability: No
3. Future Requirements Awarded: None

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on November 4, 2019. Memoranda were submitted by December 6, 2019 .

The parties stipulated that on or about April 28, 2015, the claimant, Mary Kling, was in the employment of Quaker Windows (Quaker). The claimant's average weekly wage was $\ 392.46, with a corresponding compensation rate of $\ 261.64 for all benefits.

The issues to be resolved by hearing include 1) the liability of the Second Injury Fund, 2) the occurrence of an accident, 3) the causation of the injuries alleged, and 4) whether the alleged accident arose out of and in the course of employment.

The parties stipulated that the claim against the employer/insurer in the present claim settled based on 10 percent of each foot at the 110 week level; the parties did not agree that this represents the extent of disability resulting from the alleged April 28, 2015 injury in the pending claim against the Second Injury Fund.

Similarly, the parties stipulated to a settlement of 12.5 percent of the body referable to the neck as the result of a January 28, 2015 accident and injury (15.29747) and to a settlement of 25 percent of the left shoulder as the result of an April 29, 2014 accident and injury (14.31066); the parties did not agree that the settlements represent the extent of disability resulting from the January 28, 2015 and April 29, 2014 injuries in the pending claim against the Second Injury Fund.

The claimant, Mary Kling, testified that she was 54 years old as of the date of hearing. Ms. Kling obtained her GED after quitting school in the $8^{\text {th }}$ grade. The only other formal education that Ms. Kling received was a secretarial course that she took at Linn Technical College in the late

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mary Kling

Injury No. 15-063862

1980's. After quitting school in the 8th grade, Ms. Kling worked for McDonalds for two or three years at the front counter, taking orders and handling the register. After the completion of her coursework at Linn Technical School, Ms. Kling worked as a data entry operator for approximately a year. This was followed by work at a book distribution center and then by work at a nursing home. In the mid 1990's Ms. Kling went to work for a pork processing facility where she cut meat; Ms. Kling testified that she developed carpal tunnel syndrome in her right hand as a result of this work and had surgery for her carpal tunnel complaints. Subsequent employment includes work at a nursing home and again at McDonalds and then at Wal-Mart followed by another stint at McDonalds. In 2013, Ms. Kling started work at Quaker, putting together double pane windows. Ms. Kling was on her feet for her work at Quaker and worked 40-plus hours a week. Ms. Kling described her 2014 left shoulder injury and her 2015 neck injury, both sustained at Quaker.

Ms. Kling testified that she developed bilateral foot complaints when her shoes started breaking down. Ms. Kling said that her feet felt worse after she got new shoes. Ms. Kling last worked at Quaker in April of 2015 due to the pain in her feet. Ms. Kling testified to bilateral plantar fasciitis as the condition in her feet. Ms. Kling applied for social security disability benefits in 2016 and was denied benefits; however, Ms. Kling has been the recipient of social security disability benefits since January of 2019.

Ms. Kling testified by deposition taken on March 25, 2016, that she quit working for Quaker because it was "torture" for her to stand on her feet ten hours per day. Ms. Kling said that while working at Quaker that she experienced a burning and tingling pain in her feet as well as swelling, but that it has only become a constant pain in the last three to four months before her deposition was taken. Ms. Kling testified that with the possible exception of Betty, a quality control supervisor, she never told anyone at Quaker that she thought her work at Quaker was responsible for her bilateral foot pain. Ms. Kling testified that Quaker had no shoe requirements for her other than that her toes and heels had to be covered.

Dr. Joshua Naduad, MD, testified by deposition on August 8, 2018, that he is an orthopedic surgeon, with a specialty in the foot and ankle and lower extremity. Dr. Naduad evaluated Ms. Kling on February 20, 2018. Ms. Kling reported to Dr. Naduad that her foot pain began between Thanksgiving and Christmas of 2014 or 2015. (Given the claim for compensation which refers to an April 2015 injury date I will assume that Ms. Kling is referring to the inception of pain in late 2014.) Dr. Nadaud diagnosed bilateral plantar fasciitis in Ms. Kling's feet and opined that her condition was not caused by her work for Quaker. Dr. Nadaud described plantar fasciitis as an idiopathic condition, or one without a known cause, and said that standing on concrete does not cause extra stress to the soft tissue of the plantar fascia.

Dr. Raymond Cohen, neurologist, evaluated Ms. Kling on December 4, 2015, and issued a report based on the evaluation as well as his review of medical records on June 15, 2016. Dr. Cohen understood Ms. Kling to be required to wear steel-toed boots for her work at Quaker. Dr. Cohen summarized Dr. Klamet's treatment of Ms. Kling's feet for plantar fasciitis and tarsal tunnel syndrome between May 8, 2015, and September 21, 2015. Dr. Cohen diagnosed bilateral plantar fasciitis. Dr. Cohen concluded that the diagnosed bilateral plantar fasciitis is a direct result of a

WV-22-011 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mary Kling

Injury No. 15-063862

work-related occupational disease (repetitive trauma disorder) up through April 28, 2015, and that the prevailing factor in causing Ms. Kling's disability is her work-related occupational disease (repetitive trauma disorder) up through April 28, 2015.

RSMo Section 287.220.33. (1) All claims against the second injury fund for injuries occurring after January 1, 2014, and all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014, shall be compensated as provided in this subsection.

(2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund. Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(i) A direct result of active military duty in any branch of the United States Armed Forces; or

(ii) A direct result of a compensable injury as defined in section 287.020; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter; or

(b) An employee is employed in a sheltered workshop as established in sections 205.968 to 205.972 or sections 178.900 to 178.960 and such employee thereafter sustains a compensable work-related injury that, when combined with the preexisting disability, results in a permanent total disability as defined under this chapter.

(3) When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself.

(4) Compensation for benefits payable under this subsection shall be based on the employee's compensation rate calculated under section 287.250.

RSMo Section 287.020.3(2) An injury shall be deemed to arise out of and in the course of the employment only if: (b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

WCL2-8116-011

Page 5

**Employee:** Mary Kling

**Injury No.:** 15-063862

RSMo Section 287.808 The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation under this chapter is on the employee or dependent. In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true.

A claimant's injury is compensable in workers' compensation only if it arose out of and in the course of her employment. *Porter v RCPS, Inc.,* 402 SW3d 161 (Mo App SD 2013).

A workers' compensation claimant bears the burden of proof to show that the injury was compensable in workers' compensation. *Johme v St. John's Mercy Healthcare,* 366 SW3d 504 (Mo banc 2012).

The claimant, Mary Kling, has failed to sustain her burden of proof that she sustained an injury caused by her employment at Quaker. Ms. Kling complained of bilateral foot pain that was later diagnosed as bilateral plantar fasciitis. The only foot specialist to opine with regard to the cause of Ms. Kling's bilateral plantar fasciitis is Dr. Nadaud; Dr. Nadaud stated that Ms. Kling's bilateral plantar fasciitis could not have been caused by her work at Quaker which required her to stand on concrete. Dr. Cohen, a neurologist, stated that Ms. Kling was required to wear steel-toed boots at Quaker and that it was Ms. Kling's employment at Quaker which caused her bilateral plantar fasciitis. Ms. Kling testified in her deposition that she had her choice of footwear for her work at Quaker as long as her toes and heels were covered. Dr. Cohen never elaborated on exactly what it was about Ms. Kling's employment that caused the development of plantar fasciitis. Since Dr. Cohen relied on a material misstatement of fact, Ms. Kling's required steel-toed footwear, and never explained the connection between the work at Quaker and the plantar fasciitis further, Dr. Cohen's opinion in this case is of little value. Dr. Nadaud is found more credible in his opinion that Ms. Kling's employment at Quaker did not cause her bilateral plantar fasciitis.

All other issues presented for resolution are hereby rendered moot.

I certify that on 10-18-19 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 __________________________

**Name:** HANNELORE D. FISCHER

**Administrative Law Judge**

**Division of Workers' Compensation**

*WC-32-83 (b-81)*