Thomas Runyan v. Woodbridge Corporation

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-036868

**Employee:** Thomas Runyan

**Employer:** Woodbridge Corporation

**Insurer:** American Zurich Insurance Company

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 November 19, 2019. The award and decision of Administrative Law Judge Margaret D. Landolt, issued November 19, 2019, 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 **12th** day of November 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

**DISSENTING OPINION FILED**

Reid K. Forrester, Member

**S. Viki Curls**

Shalonn K. Curls, Member

Attest:

Secretary

Employee: Thomas Runyan

Injury No. 15-036868

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 the 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 the employee has failed to prove that his alleged February 5, 2015, work injury was the primary factor, in relation to any other factor, that caused his medical condition and disability. Section 287.020.3 RSMo.

Employee, a forklift driver, alleged that on February 5, 2015, he felt a sudden pop and excruciating pain in his chest when he turned in his seat to check behind him while rushing to move two loads of dunnage. Employee then started grabbing his chest. Employer's production manager Eric Schulte called 911 and requested an ambulance only because he knew that employee had previously suffered a heart attack and had two stents due to heart trouble.

The ambulance took employee to the hospital where he remained overnight in order to have a nuclear stress test and full cardiac workup. Employee left the hospital less than thirty-six hours later with discharge instructions allowing him to resume normal activity. He returned to work and continued to perform his work duties without restrictions for a year and a half after the accident. Employee had no problem performing his normal work duties until he retired in December 2016, accepting employer's voluntary buyout.

Employee did not report a work-related injury on the day of the alleged accident; employer was not even aware employee was making a workers' compensation claim until several weeks if not months after.

The administrative law judge failed to consider that virtually if not all of the treatment employee received after his alleged injury was to rule out a heart attack for his non-work related cardiac condition, as opposed to employee's claimed musculoskeletal injury. She erred in failing to find that because employee's claim did not allege cardiac disability his treatment for cardiac issues as opposed to costochondritis should not have been deemed compensable. Even after employee's February 5-6, 2015, hospitalization, he received no medical treatment for costochondritis and has never taken any pain medication for this condition.

Section 287.140 obligates an employer to "provide such medical ... and hospital treatment ... as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury [emphasis added]." Because employee's condition cannot be considered to have flowed from his work injury, Tillotson¹ has no application. The administrative law judge's award of post-injury medical treatment in the amount of $8,788.58 should be reversed.

In addition, the administrative law judge's award of 12.5% permanent partial disability based on costochondritis—a soft tissue injury—is unjust, especially in the context of the absence of treatment for this alleged injury. Employee offered no testimony that he has given up any daily activities or hobbies. He merely testified he is cautious and thoughtful about how he bends down, looks backward, and lifts objects. Any

1 Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. 2011).

MNKOI 0001610577

Injury No.: 15-036868

Employee: Thomas Runyan

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reasonable person of employee's age of sixty-five years would likely exercise such precautions.

At most, employee is entitled to an award of permanent partial disability of 5% of the body as a whole for right sided costochondritis, consistent with Dr. Andrew Wayne's evaluation.

Because the majority finds otherwise, I respectfully dissent.

Reid K. Forrester, Member

Issued by DIVISION OF WORKERS' COMPENSATION

**Employee:** Thomas Runyan

**Injury No.:** 15-036868

**Dependents:** N/A

**Employer:** Woodbridge Corporation

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**Employer:** Woodbridge Corporation

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**Additional Party:** N/A

**Employer:** American Zurich Insurance Co.

**Injury Date:** September 24, 2019

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**Employer Name:** Dr. James R. Runyan

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

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**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

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**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

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**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

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**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

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**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

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**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

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**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 1200 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**Address:** 120 West 4th Street, New York 11, N.Y. 10026

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

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**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

**E-mail address:** jrunyan@award.org

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the 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: Mr. Evan J. Beatty

Revised Form 31 (3/97) Page 3

**Employee:** Thomas Runyan

**Dependents:** N/A

**Employer:** Woodbridge Corporation

**Additional Party:** N/A

**Insurer:** Zurich American Insurance Company

**Injury No.:** 15-036868

**Before the Division of Workers' Compensation**

**Department of Labor and Industrial Relations of Missouri**

**Jefferson City, Missouri**

**Checked by:** MDL

A hearing was held on September 24, 2019, at the Division of Workers' Compensation in St. Charles, Missouri. Thomas Runyan ("Claimant") was represented by Evan J. Beatty and Woodbridge Corporation ("Employer"), and its insurer American Zurich Insurance Company, were represented by William Lemp. Mr. Beatty requested a fee of 25% of Claimant's award.

The parties stipulated that on or about February 5, 2015, Claimant sustained an accidental injury arising out of and in the course of employment; Claimant was an employee of Employer; venue is proper in St. Charles County, Missouri; and Claimant's Permanent Partial Disability ("PPD") rate is $451.02. The parties further stipulated Employer has paid no Temporary Total Disability ("TTD") or medical benefits. The issues to be determined by hearing are nature and extent of PPD and whether Employer is liable for past medical benefits of $8,788.58.

Claimant is currently 65 years of age, and retired from Woodbridge Corporation in December, 2016 after almost 30 years of employment. Employer manufactures car, van, and truck seats for automobile assembly plants. Claimant operated a forklift 48 hours a week, 8 to 12 hours a day. The operation of the forklift required him to go forward and backward, and when he went backward, he rotated his body in order to see behind the forklift. For a period of time leading up to February 5, 2015, Employer was operating at 110% of capacity and therefore, Claimant's work became much faster and his hours increased.

On February 5, 2015, Claimant was operating his forklift to unload a significant amount of dunnage. Claimant was driving the forklift in reverse, and when he twisted his body he felt a pop in his chest followed by excruciating pain. It was the worst pain he had ever felt in his sternum and throughout his chest. He believes he may have lost consciousness. Claimant testified a co-worker was able to help him get off the forklift and contacted the day supervisor, Mr. Eric Schulte, who called an ambulance. Claimant testified he was sitting on some boxes when Mr. Schulte approached him, and he did not drive over to Mr. Schulte.

Claimant's and Mr. Schulte's memories of the February 5, 2015, incident differ. Mr. Schulte, Employer's production manager, testified Claimant pulled up on his forklift and told him he was having chest pains and was having trouble breathing, and was grabbing his chest. Mr. Schulte testified, because he knew Claimant had a previous heart attack, he called an

Issued by DIVISION OF WORKERS'

COMPENSATION

Injury No.: 15-036868

ambulance. Mr. Schulte testified Claimant did not say his chest pains were from a work related injury. It wasn't until several weeks later that he learned Claimant was claiming a work injury.

Claimant was taken by ambulance to Barnes-Jewish St. Peters Hospital for treatment. The medical records related the following history:

"HISTORY OF PRESENT ILLNESS: Mr. Runyon is a 60 year old male with the known history of coronary artery disease s/p drug eluding stent to his LAD and his OM in 2012 and a drug eluding stent to the ostial LAD in 2013. These were done at Missouri-Baptist Hospital by Dr. Hess. The patient states that while he was working yesterday as he was operating his fork lift, he started having complaints of chest pain. He states he turned his head to look over to see what he was picking up with the fork lift and turned back and he had this intense sharp pain in the center of his chest that lasted about 4 to 5 seconds. The intense pain then went away and he had a residual pain that was a dull sensation that lasted approximately 5 minutes. During this whole episode, he came into the Emergency Room for evaluation. He stated then once he was admitted to the hospital, and up to the floor, he had that dull pain that had returned in the center of his chest. This pain has been present through yesterday evening and all through the night and all day today. This pain worsens whenever he lifts his arm up above his shoulder level and worsens with palpation. The patient states that this pain is different than his prior angina in which back then, it felt as if he had an elephant sitting on his chest from the severe pressure that was associated with nausea, diaphoresis and shortness of breath."

Claimant remained at the hospital overnight. After a cardiac workup in which all of his cardiac tests were negative, Claimant was released from the hospital on February 6, 2015. The diagnoses upon discharge were musculoskeletal chest pain; history of coronary artery disease; diabetes mellitus Type 2; and dyslipidemia.

Claimant did not see any physicians for treatment for his injury. Claimant testified he was told there was no treatment for it. When Claimant returned to work he had to modify the way he did his job. He was more careful when stooping or lifting, and had to move his whole body instead of twisting. Since he retired he has continued to have symptoms. He continues to experience pain and a burning sensation in his chest. He has difficulty with such tasks as mowing the grass, taking out the trash, or picking up his grandchild. He is a musician and has difficulty picking up his guitar and putting it over his shoulder. He is always aware of the pain, and goes to great lengths to avoid aggravating it.

Claimant incurred medical expenses related to treatment he had at the hospital, as well as, expenses related to the ambulance which transported him to the hospital. A portion of these bills he has paid out-of-pocket and are contained in Claimant's Exhibits 3 through 6. There is also a lien for payments made by his group health insurance which is being administered by The Rawlings Company in the amount of $7,075.37 contained in Claimant's Exhibit 7. The total in past medical expenses including out-of-pocket, as well as, the medical lien is $8,788.58.

Dr. David Volarich examined Claimant at the request of his attorney and prepared a report. Dr. Volarich diagnosed Claimant with right chest wall post traumatic costochondritis and concluded the incident while Claimant was operating his forklift and rotating his torso to drive backwards was the prevailing factor resulting in his injury and disability. Dr. Volarich rated

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Issued by DIVISION OF WORKERS'

COMPENSATION

Injury No.: 15-036868

Claimant's disability at 17.5% of the body as a whole due to the costochondritis at the fourth-fifth costochondral junctions. Dr. Volarich advised Claimant to perform activities to tolerance with normal precautions.

Dr. Andrew Wayne examined Claimant at the request of Employer and prepared a report. Dr. Wayne agreed with Dr. Volarich's conclusion that Claimant was suffering from costochondritis. Dr. Wayne felt this inflammatory condition had been building up systematically over time and ultimately became symptomatic on February 5, 2015. He felt the mechanism of action of repetitively twisting at the trunk is certainly one that could cause this type of condition and therefore his work-related activities over a period of time was the prevailing factor resulting in his development of costochondritis. Dr. Wayne rated Claimant's disability at 5% of the body as a whole and felt all of this was related to his work activities for Employer.

FINDINGS OF FACT & RULINGS OF LAW

Based upon a comprehensive review of the evidence, my observations of the witnesses at hearing, and the application of Missouri law, I find:

Both experts in this matter, Dr. Wayne and Dr. Volarich agree Claimant suffered an injury leading up to or on February 5, 2015, resulting from the operation of the forklift, which required him to twist and rotate, which was the prevailing factor resulting in the diagnosis of a rib and chest injury and more specifically costochondritis. This is consistent with Claimant's testimony regarding what he had to do on the forklift and his testimony regarding experiencing excruciating pain on February 5, 2015, to the point of losing consciousness.

Claimant continues to suffer from ongoing pain in the sternum and around the chest area which becomes more severe with certain activities involving turning and twisting, reaching and lifting. He also notices an increase in symptoms with cold weather. He has to watch what he does and make adjustments. When he operated the forklift and went backward, or when he is operating his car in reverse he must completely turn his body so he does not worsen his pain with a twisting motion. These problems have not abated for the 4-1/2 years since the incident, and are permanent. Based on Claimant's ongoing symptoms, and the findings of Dr. Volarich and Dr. Wayne, Claimant sustained 12.5% PPD of the body as a whole as it relates to the costochondritis.

Pursuant to Section 287.140 RSMO, an employer is obligated to authorize and provide an employee with such care "as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." § 287.140.1; Maness v. City of De Soto, 421 S.W.3d 532, 544 (Mo. App. 2014). A claimant seeking past medical expenses must prove "that the need for treatment and medication flow[s] from the work injury." Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 519 (Mo.App.W.D.2011); Maness v. City of De Soto, 421 S.W.3d 532, 544 (Mo. Ct. App. 2014). "The employer, of course, may challenge the reasonableness or fairness of these bills or may show that the medical expenses incurred were not related to the injury in question." Id.

Claimant submitted his unpaid medical bills into evidence. Employer disputed these bills and did not pay them. Claimant seeks payment of these bills in the amount of $8,788.58, which includes his out-of-pocket medical expenses. Because these expenses are for diagnosis and

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**Injury No.: 15-036868**

Treatment of the work injury of February 5, 2015, and flow from the accident, Claimant is entitled to unpaid medical bills in the amount of $8,788.58.

All of the medical bills related to the cardiac work up were necessary to obtain a diagnosis. The medical providers were unable to make a diagnosis of musculoskeletal pain until they ruled out a heart event. Claimant would not have incurred the medical expenses but for the work accident, and they certainly flowed from the accident. Employer has not challenged the reasonableness or fairness of the expenses.

I find that all medical expenses were directly related to the symptoms he suffered as a result of his work accident of February 5, 2015, and flowed from the accident, and Employer is therefore responsible for reimbursement to Claimant for his out-of-pocket medical expenses, as well as, payment of the lien submitted by the Rawlings Company in the amount of $8,788.58.

This award is subject to an attorney's lien in the amount of 25% in favor of Claimant's attorney Mr. Evan J. Beatty.

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**I certify that on 11-19-19**

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 __________________________

**MARGARET D. LANDOLT**

Administrative Law Judge

Division of Workers' Compensation

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**Made by:**

**MARGARET D. LANDOLT**

Administrative Law Judge

Division of Workers' Compensation

WC-32-03 (6-81) Page 6