Donald Nash v. Ardagh Glass, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 15-103744**

**Employee:** Donald Nash

**Employer:** Ardagh Glass, Inc.

**Insurer:** Travelers Property Casualty 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 December 15, 2020, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Maureen Byrne, issued December 15, 2020, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this ______ 15th ______ day of June 2021.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

Employee: Donald Nash

Injury No. 15-103744

Dependents: N/A

Employer: Ardagh Glass, Inc.

Additional Party: N/A

Insurer: Travelers Property Casualty Company

Hearing Date: September 24, 2020

Checked by: $\mathrm{MB} / \mathrm{kg}$

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 alleged accident or occupational disease? $11 / 23 / 15$
5. State location where alleged accident or occupational disease occurred: Pevely, MO
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 alleged 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? Yes

Employee: Donald Nash

Injury No. 15-103744

1. Describe work employee was doing and how accident happened or occupational disease contracted: Employee alleged that he sustained a burn to his big toe that eventually required amputation of the toe and part of the foot.

1. Did alleged accident or occupational disease cause death? No

1. Parts of body alleged to have been injured by alleged accident or occupational disease: Left big toe and left foot

1. Nature and extent of any permanent disability: Claim denied/None

1. Compensation paid to date for temporary total disability: None

1. Value necessary medical aid paid to date by employer-insurer: None

1. Value necessary medical aid not furnished by employer-insurer: Claim denied/None

1. Employee's average weekly wage: 1,435.55

1. Weekly compensation rate: Permanent partial disability: 464.58; Temporary total disability: $886.92

1. Method wages computation: By agreement

1. Amount of compensation payable: None

1. Second Injury Fund liability: N/A

1. Future requirements awarded: N/A

On September 24, 2020, the employee, Donald Nash, appeared in person and with his attorney, David Jerome, for a hearing for a final award. The employer was represented at the hearing by its attorney, Robert Frayne. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. Covered Employer: Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was fully insured by Travelers Property Casualty Co.
2. Covered Employee: That on November 23, 2015, Employee was an Employee of Ardagh Glass Inc. in Jefferson County, Missouri and was working under the Missouri Workers' Compensation Act.
3. Notice: That Employer had notice of Employee's accident and injury.
4. Statute of Limitations: That Employee's claim was filed within the time allowed by law.
5. Average weekly wage and rate: That the average weekly wage was $\$ \ 1,435.55, the temporary total disability rate was $\ 886.92 and the permanent partial disability rate was $\ 464.58.
6. Medical aid furnished by Employer-Insurer: Medical aid has been furnished by the Employer in the amount of $\ 0.
7. Temporary disability paid by Employer-Insurer: No temporary total disability benefits have been paid.
8. Parties stipulated that if this matter is found compensable, Employer will reimburse the group carrier to the extent of $\ 45,675.34 as noted Employee's Exhibit \#7.

1. Accident: Whether Employee sustained an accident arising out of and in the course of his employment.
2. Medical causation: Whether Employee's injury was medically and causally related to the accident.
3. Temporary total disability: Employee is making a claim for temporary total disability benefits for the time period of $12 / 21 / 15 to 5 / 9 / 16$ ( 20 weeks).

1. Permanent partial disability: Employee is making a claim for permanent partial disability against Employer-Insurer.

The following exhibits were offered and admitted into evidence:

1. Report of Injury
2. Photographs of foot
3. Medical report of Dr. David Volarich
4. Medical records of St. Anthony's Medical Center
5. Medical records of Dr. Mahesh Bagwe
6. Medical records of Southroads Internal Medicine
7. Group Lien

A. Deposition of Dr. John Krause

B. Deposition of Aaron Shipley

C. Deposition of Kim Ravellette

D. Deposition of Ron Jones

E. Furnace Crown

Donald Nash, Employee, testified that prior to this work injury, he had been diagnosed with having severe diabetes as far back as the year 2000. His doctor had him undergoing injections three times per day. Even while taking these injections, he had trouble controlling his A1C levels. As a result, Employee developed peripheral neuropathy that consisted of numbness in both of his feet. Employee testified that the numbness dated as far back as 2001 and he was unable to feel anything on the bottom of his feet.

Employee testified that he was able to perform all of his work duties and had no problems with balance or walking. He wore the steel-toed boots provided by the company and had no problem wearing these shoes.

Employee testified prior to this work accident, he had never had any form of ulcers or infections on either of his feet.

On November 23, 2015, Employee testified he was filling in for a coworker performing maintenance on the furnace instead of Furnace Operator. Employee described the facility with

**Injury No. 15-103744**

Having a furnace in the middle of the warehouse that processed glass at 2800°. Surrounding the furnace and running across the top of the furnace was metal scaffolding that allowed them to walk above the top of the furnace to inspect the crown of the furnace to look for thinning or holes.

Employee testified that on the date of accident, he was working with Aaron Shipley, performing maintenance activities of patching spots that had thinned along the roof line of the furnace. This activity began with Employee preparing mortar in buckets and carrying the buckets up a catwalk made of metal railings and metal steps. The metal steps and scaffolding traversed the center of the furnace with ambient temperatures between 200 to 300 degrees. Employee testified that he had been advised that workers could only remain in this environment for 15 minutes maximum without risking overheating their body, leading to heat exhaustion or heat stroke.

On the date of accident, Employee was walking with Mr. Shipley on the catwalk along the top of the furnace looking for thinning spots. When he suspected thinning spots, Employee would use a metal rod to poke the brick to see if it would fall through. When the brick fell through, the full heat of the furnace would be felt on the metal railing where he was standing. Employee testified that he could not feel the heat in his feet, as they were completely numb.

Employee testified that on the date of accident, he went home at the end of the day and was not aware of the burns he had sustained. However, once he got home and took a shower, he noticed that he had sustained burns to his belly and hand. He returned to work the next day and reported these injuries to the Assistant Human Resources Director Kimberly Ravellette who provided him with silvadene cream and instructions to continue applying it. Employee noted that she did not complete a physical examination or inquire regarding any further burns.

Employee testified that immediately following the injury, he did not think that he had any issues with either foot and continued working. However, on November 26, 2015, Employee's girlfriend, Carla Short, returned from a business trip and inspected his feet. At that time, she noted a red dot on his left big toe that had never been present previously. Employee testified that he had no other accident or injury other than the work accident. He testified that Carla continued to put silvadene ointment on the toe but it did not serve to resolve the issues as his toe continued to worsen.

Within four weeks, Employee was seen at St. Anthony's Medical Center due to the infection in his toe. Although he was having significant problems, he still felt no pain as his foot was numb. Employee presented pictures of his toe at the time of the emergency room visit. Employee testified that when he was admitted in the emergency room, he advised the doctors that the problems started with the burn at work and worsened over the weeks leading up to the admission. Similarly, when he was seen by the orthopedist, Dr. O'Boynick, he provided an identical history of injury.

Employee testified that after being seen in the emergency room, he was admitted and remained hospitalized from December 21, 2015 to December 24, 2015. While hospitalized, he underwent a complete amputation of his left big toe. Thereafter, he followed up with Dr. Bagwe who kept him off work in post-operative care until releasing him to return to work full duty on May 9.

Employee: Donald Nash

Injury No. 15-103744

1. Employee testified that while he did return to work, he never again went up on the catwalk. Employee testified that while he was off work, he was not paid any lost time benefits, although he was paid short-term disability.

Employee testified that at the time of trial, his entire left big toe has been amputated as well as part of the foot. He currently uses an orthotic shoe that assists in his ability to ambulate. He does not have any pain in his foot as the diabetes continues to keep the foot numb. Employee testified that as a result of the loss of his toe, he is unable to stand exclusively on his left foot.

Additionally, he has problems trying to walk long distances. He notes that he now uses a scooter when he goes shopping. Employee also testified that as a result of this injury, he is no longer able to walk, run or climb steps. Employee testified that the only injury that he has had with his left foot surrounds this work injury. He noted that both feet were fully functional and he had never had any problems with either foot until this burn injury to his foot.

Testimony of Carla Short

Carla Short testified at the hearing. Ms. Short testified she has been the girlfriend of Employee since before the incident. However, she testified she did not live with Employee at the time of the incident.

Ms. Short is not a nurse or a medical professional. Ms. Short testified that she had previously worked at a nursing home that included taking care of diabetic patients. She stated that she had completed training that was similar to that of the CNA and she stated that her job was to inspect the feet of diabetic patients to look for lesions or ulcers that could progress if a person has a diabetic neuropathy.

Ms. Short testified that she was aware that Employee had severe diabetic neuropathy. As a result, she would regularly inspect his feet and place lotion on them, as the diabetic neuropathy would cause drying and cracking of his feet. Ms. Short noted that she had inspected Employee's foot on the morning of the date of accident.

Following this accident, Ms. Short was out of town and did not return until November 26, 2015. When she returned, she noted that Employee had a red dot on the bottom of his left big toe. She stated that this was the first time that she had noticed any problems with the bottoms of his feet. She stated that Employee had been provided burn cream by the Human Resource Manager acting as the Plant Nurse. As a result, she began using this same burn cream on Employee's left big toe.

She stated that Employee's left big toe began to worsen and become more infected. She took the picture of his toe at the time he went into the emergency room. She testified that she has never seen any other blisters, ulcers or lesions to the bottom of either of his feet as she continues to inspect his feet on a daily basis.

Aaron Shipley, who testified by deposition, was the batch and furnace supervisor and process engineer at the time of the incident and had worked in that capacity for the Company since 2012.

Mr. Shipley stated that on the day of the alleged accident, he was patching a hole in the furnace crown and instructing Employee how to perform the task.

Mr. Shipley stated that an internal permit that was called a "crown access permit" was required by the Company and completed prior to ascending the job. That permit, entered into evidence, showed the permit was valid for 15 minutes from 1:45 p.m. to 2:00 p.m. Mr. Shipley stated that the crown furnace hole which needed repair was three feet under the catwalk. He stated that a worker or person could be on top of the crown catwalk for a maximum of 10 to 15 minutes before having to descend the ladder to take a break. He stated that the temperature in the atmosphere is approximately 200 degrees around the catwalk.

Mr. Shipley stated that workers who ascended and had to work on the catwalk were required to wear company-issued fire-retardant jeans, hoods, gloves and aluminized shoes. He stated that Employee was wearing company-issued protective fire-retardant pants, jacket, gloves, boots, and a hood at the time of the alleged incident on November 23, 2015.

Mr. Shipley testified that Employee told him that he was leaning over the handrail to observe Mr. Shipley when his shirt popped out of his pants, his belly touched the hand rail, and he got burned.

He stated that Employee came down from the catwalk and Employee filled out the accident report. He stated that the next day, Employee showed him a picture of the 1-inch burn on his belly and he sent Employee to human resource assistant/Kim Ravellette. He stated that Employee did not mention any problems with his left foot or hand.

Mr. Shipley stated that the first notice of a left toe injury to him was approximately one month after the incident when Kim Ravellette had contacted him.

Mr. Shipley stated that Employee never complained of any problem with the company-issued boots prior to ascending to the catwalk.

Ron Jones testified, by deposition, he was the manager of batch and the furnace departments since 2012 and at the time of the incident on November 23, 2015.

Mr. Jones stated that he was watching Employee patch the furnace and was there to observe only. Mr. Jones stated that his first notice of injury was the day of the incident when Aaron Shipley and Employee came down from the crown furnace catwalk and Employee indicated that he had burned his belly. Mr. Jones testified that Employee had to wear proper protective (PPE) clothing on the day he went on the catwalk, including jacket, gloves, hood and boots.

Employee: Donald Nash

Injury No. 15-103744

Mr. Jones stated that he did not witness the incident but his understanding was that Employee leaned over the handrail, his shirt pulled up, and his "bare belly" touched the rail to cause a burn.

**Testimony of Kimberly Ravellette**

Kim Ravellette testified by deposition. She has been a Human Resources Assistant for Employer for 15 years. Ms. Ravellette is in charge of daily attendance, employee benefits, safety issues and making sure medical supplies are available to the workers.

She testified there is a company policy regarding work injuries. She testified that employees are to report the injury immediately to the supervisor, who then fills out a report of injury.

Employee first reported an injury to her on November 24, 2015 that occurred on November 23, 2015 and showed her the burn on his stomach. She stated that she had used Betadine and dressing to place on the stomach burn. She stated that the employee came in several times after the accident and showed her the stomach burn but never once told her about any injury to his toe. She had Employee fill out an "Accident Investigation Report of Injured."

Employee was paid benefits from the company in the form of sick leave from December 21, 2015 until he returned to work. She testified that the first report or knowledge she received of an injury to the toe was on or about December 21, 2015.

She stated that Employee filled out a "Company Disability Claim Form for Non-Occupational Accident and Sickness Benefits" for sick leave form on December 21, 2015 and he did not mention there was a work-related accident. She stated that Employee checked off a box indicating "an illness" and not "an injury" next to the question regarding how the present condition resulted.

**Medical records from St. Anthony's Medical Center**

Employee was treated at St. Anthony's Medical Center from December 21, 2015 to December 24, 2015. When he entered the hospital, Employee advised the emergency room physician that he had left great toe pain, swelling, redness and drainage that began following a burn four weeks prior and gradually worsened. Employee described that he worked with a very hot furnace of about 2800°. He reported that he was on the crown of the furnace one month ago and had burned his right abdomen as well as his left great toe.

Employee noted that the abdomen had improved but his left great toe had not. As a result, he came to the emergency room with the neuropathy involving the great toe and noticed that it started to smell foul and swell. Employee noted that his toe did not hurt much because of his diabetic neuropathy. Bloodwork taken in the emergency room showed an increased white blood count, decreased red blood count, and increased glucose.

The infectious disease expert, Dr. Suresh Nellore, noted that Employee developed a great toe blister three weeks ago and it progressed in the last few days to an abscess. Employee developed

**Injury No. 15-103744**

increased redness and swelling. When he underwent an MRI, it revealed severe diffuse subcutaneous edema along the forefoot with myofascial edema with mild fasciitis.

While in the hospital, Employee underwent surgery to amputate his left great toe due to a diagnosed condition of osteomyelitis of the left great toe as well as diabetes with diabetic neuropathy. He was released on December 24, 2015 with instructions to follow up with Dr. Bagwe.

Employee received post-operative medical care with Dr. Bagwe. Dr. Bagwe noted continued infection at the amputation site. As a result, on January 8, 2016 and January 20, 2016, Employee underwent surgeries that consisted of irrigation and debridement of his left great toe as well as placement of a wound vacuum-assisted closure. He continued to keep Employee off work.

By March 31, 2016, Dr. Bagwe provided Employee with a prescription for a toe spacer for use in his shoes. On April 25, 2016, Employee was fit for a prosthetic; placed at maximum medical improvement; and released to return to work full duty two weeks later with weightbearing as tolerated.

Employee treated with Dr. Robert Curtin beginning on December 3, 2014. He was noted to have Type II diabetes mellitus with neurological manifestation. Employee continued to follow up with Dr. Curtin's office for ongoing medications and physical evaluations with no indications of lesions, blisters or ulcerations to either foot leading up to the date of accident.

Photographs were admitted into evidence of Employee's left foot and toe at the time he entered the hospital on December 21, 2015 as well as recent photographs taken shortly before the hearing.

Employee was evaluated by Dr. David Volarich on December 12, 2017. Dr. Volarich noted that Employee had sustained a left foot great toe amputation at the metatarsophalangeal joint. He identified a 2x2 cm scar at the amputated stump. Employee's left 2nd toe is larger than the right 2nd toe, presumably due to hypertrophy trying to compensate for loss of the left great toe. Dr. Volarich diagnosed Employee with superficial burns to the right ring finger and abdominal wall that were well healed and asymptomatic. He also diagnosed a left great toe burn complicated by infection, including osteomyelitis of the toe, status post three separate surgical repairs including amputation at the interphalangeal joint followed by amputation of the metatarsophalangeal joint followed by wound vac applications and wound closure.

**Injury No. 15-103744**

Dr. Volarich concluded that on the date of accident, Employee suffered a second-degree burn to the left great toe which was the primary and prevailing factor causing the open wound that eventually got infected causing osteomyelitis of the left great toe that ultimately required three surgical repairs. Dr. Volarich noted that Employee was a diabetic with peripheral neuropathy but had never had any problems with his feet in the past from ulcerations or open wounds. As a result, the doctor concluded that the work injury was the prevailing factor causing his symptoms, need for treatment and resulting disabilities.

Dr. Volarich placed Employee at maximum medical improvement and provided him with a permanency rating of 100% permanent partial disability of the left great toe rated at the metatarsophalangeal joint (40 weeks) due to the amputation. He also rated 20% permanent partial disability of the left foot (150-week level) due to poor balance requiring orthotics.

Employee was evaluated by Dr. Robert Krause on April 26, 2017. Dr. Krause is an orthopedic surgeon who specializes in treating injuries to the knees, ankles, and occasionally a shoulder.

Dr. Krause diagnosed Employee with having diabetes mellitus with neuropathy. He also diagnosed history of a blister on the left great toe with subsequent osteomyelitis and amputation. Dr. Krause testified that he believed that Employee's diabetic neuropathy caused his need for the amputation and osteomyelitis. He believed that with advanced neuropathy, the patient would lose sensibility in the foot and would be unable to feel ulcers and blisters that would lead to infection that a person with normal sensations would notice as it would cause pain. He noted that in diabetics, they do not have pain so the ulcers and blisters advance frequently leading to amputation of toes.

Dr. Krause stated that in all of the medical records, they are treating a diabetic foot ulcer. He stated that most people with diabetes develop blisters every day walking around work. He stated that they get blisters and they get infections.

In his deposition testimony, Dr. Krause stated that he doesn't doubt Employee had a burn when he was at work. However, if he did not have the diabetes mellitus with neuropathy, if it was his foot, he would not have an amputation right now.

Dr. Krause also stated that if Employee had a burn on his foot from November 23, 2015, that somehow healed and he developed a diabetic foot ulcer. He stated that Employee still ends up with an amputated toe, whether he gets burned or not.

As it related to the work injury, Dr. Krause rated Employee as having a 0% permanent partial disability. The doctor concluded that all of the permanent partial disability came from the pre-existing diabetes mellitus with neuropathy.

Employee had severe diabetes since 2000. His doctor had him undergoing injections three times per day. Employee had peripheral neuropathy that consisted of numbness in both of his feet. The numbness dated as far back as 2001 and he was unable to feel anything on the bottom of his feet.

The date of the alleged accident is November 23, 2015. Employee stated that after the alleged accident, he only noticed that he had burns on his belly and hand. On November 26, 2015 his girlfriend, who is not a licensed medical professional, noticed a red dot on his left big toe.

Both parties had expert witnesses. Dr. Volarich was the expert for Employee and Dr. Krause was the expert for Employer-Insurer.

Dr. Volarich opined that Employee suffered a second-degree burn to the left great toe which was the primary and prevailing factor causing the open wound that eventually got infected causing osteomyelitis of the left great toe that ultimately required three surgical repairs.

Dr. Krause testified that he believed that Employee's diabetic neuropathy caused his need for the amputation and osteomyelitis. He believed that with advanced neuropathy, the patient would lose sensibility in the foot and would be unable to feel ulcers and blisters that would lead to infection that a person with normal sensations would notice as it would cause pain. He noted that in diabetics, they do not have pain so the ulcers and blisters advance frequently leading to amputation of toes.

Dr. Krause stated that in all of the medical records, they are treating a diabetic foot ulcer. Furthermore, Dr. Krause stated that if Employee had a burn on his foot from November 23, 2015, that injury would have somehow healed and Employee developed a diabetic foot ulcer. He stated that Employee still would end up with an amputated toe, whether he got burned or not.

Based on all of the evidence presented, including Employee's medical history, I find that the opinion of Dr. Krause is more credible and persuasive than the opinion of Dr. Volarich on the issue of medical causation. Based on all of the evidence presented, I find that Employee did not meet his burden of proof that his injury to his left foot/toe was medically causally related the alleged accident on November 23, 2015. Based on these rulings, Employee's claim is denied. Because this claim was denied, the other issues shall not be ruled upon because they are now moot.

I certify that on $\qquad 12-15-20$

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.


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