Skip to content
Ott Law Firm

John Flaim v. University of Missouri; Capital Region Medical Center

Decision date: November 17, 200611 pages

Summary

The Commission affirmed the Administrative Law Judge's decision denying workers' compensation benefits to John B. Flaim for an alleged occupational disease of the spine. The claim was denied because the alleged injury did not arise out of and in the course of employment, and the claim was not filed within the required timeframe.

Archive Notice

This archive contains published Missouri Labor and Industrial Relations Commission workers' compensation decisions reproduced for research convenience. Official source links remain authoritative where provided. Joseph Ott, Attorney 67889, Ott Law Firm - Constant Victory - Personal Injury and Litigation maintains these public legal archives to support Missouri case research and to help prospective clients connect that research to the firm's courtroom practice.

Related Legal Help

Practical guidance for this decision

Third-Party Injury Check

This workers' comp decision may point to a separate injury claim.

  • A driver, contractor, property owner, or equipment company may share fault.
  • The injury involved a vehicle, unsafe premises, defective equipment, or a non-employer vendor.
  • A serious injury or death may need both benefits review and civil-claim analysis.

Caption

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 97-499557

Employee: John B. Flaim

Employers: 1) University of Missouri

2) Capital Region Medical Center

Insurers: 1) Self-Insured

2) Self-Insured

Date of Accident: Alleged to be August 1997

Place and County of Accident: Alleged to be Cole County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by section 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 Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated March 24, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Robert J. Dierkes, issued March 24, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $17^{\text {th }}$ day of November 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

AWARD

Dependents:N/ABefore the DIVISION OF WORKERS’ COMPENSATION
Employer:University of Missouri (self-insured)Department of Labor and Industrial
Employer:Capital Region Medical Center (self-insured)Relations of Missouri
Jefferson City, Missouri
Hearing Date:January 11, 2006Checked by: RJD/tmh

FINDINGS OF FACT AND RULINGS OF LAW

  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 to be August 1997.
  5. State location where accident occurred or occupational disease was contracted: Alleged to be Cole County, Missouri.
  6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Employee was employed by both employers.
  7. Did employer receive proper notice? N/A.
  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? No.
  10. Was employer insured by above insurer? Both employers were self-insured.
  11. Describe work employee was doing and how accident occurred or occupational disease contracted: An occupational disease of the spine is alleged.
  12. Did accident or occupational disease cause death? N/A. Date of death? N/A.
  13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease: N/A.
  14. Nature and extent of any permanent disability: N/A.
  15. Compensation paid to-date for temporary disability: None.
  16. Value necessary medical aid paid to date by employer/insurer? None.
  17. Value necessary medical aid not furnished by employer/insurer? None.
  18. Employee's average weekly wages: N/A.
  19. Weekly compensation rate: N/A.
  20. Method wages computation: N/A.

COMPENSATION PAYABLE

  1. Amount of compensation payable: None.

FINDINGS OF FACT and RULINGS OF LAW:

Employee: John B. Flaim

Injury No: 97-499557

Before the DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

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

Employer: University of Missouri (self-insured)

Additional Party: Capital Region Medical Center (self-insured)

Insurer: Missouri Employers Mutual Insurance

Checked by: RJD/tmh

ISSUES DECIDED

The evidentiary hearing in this case was held on January 11, 2006, in Jefferson City. The parties requested leave to file post-hearing briefs, which leave was granted. The case was submitted on February 17, 2006. The hearing was held to determine the following issues:

  1. Whether the statute of limitations, Section 287.430, serves as a bar to Claimant's Claim for Compensation against either or both employers;
  2. Whether the notice requirement of Section 287.420 serves as a bar to Claimant's Claim for Compensation against either or both employers;
  1. Whether Claimant sustained a compensable accident or occupational disease while in the employ of either or both employers;
  2. Claimant's average weekly wage and resultant compensation rates;
  3. The nature and extent, if any, of Claimant's permanent disability; Claimant alleges he is permanently and totally disabled;
  4. Whether either employer shall be ordered to reimburse Claimant for medical bills and charges;
  5. Whether Claimant is entitled to temporary total disability benefits, and if so, for what period(s) of time, and at what compensation rate;
  6. Whether either employer shall be ordered to provide Claimant with future medical benefits pursuant to Section 287.140, RSMo;
  7. A determination of the rights, if any, of the Department of Social Services, Division of Medical Services, under $\S 287.266$ for Medicaid payments made on Claimant's behalf; and
  8. A ruling on Employer University of Missouri's request for attorney's fees and costs pursuant to $\S 287.560$.

STIPULATIONS

The parties stipulated as follows:

  1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
  2. That venue is proper in Cole County;
  3. That both employers and Claimant were covered by the Missouri Workers' Compensation Law at all relevant times;
  4. That the University of Missouri was an authorized self-insured for Missouri Workers' Compensation purposes at all relevant times; and
  5. That Capital Region Medical Center was an authorized self-insured for Missouri Workers' Compensation purposes at all relevant times.

EVIDENCE

The evidence consisted of the testimony of Claimant, John Benjamin Flaim, as well as the deposition testimony of Claimant; the medical report and testimony of Dr. Jerome Levy; the deposition testimony of Dr. John Oro; medical records, medical bills, and certain other documents.

FINDINGS OF FACT AND RULINGS OF LAW

I find that Claimant, John Flaim, was born September 8, 1961, graduated from High School in St. James, Missouri, in 1979, and was trained as a respiratory therapist in 1987.

Claimant began working for the University of Missouri Hospital in December 1985 in the respiratory therapy department as an equipment coordinator. He worked in this capacity for approximately two years; after completing his training as a respiratory therapist, Claimant was hired as a critical care respiratory therapist. Claimant worked as a critical care respiratory therapist at University of Missouri Hospital from late 1987 or early 1988 through 1992

on a full-time basis. In 1992, Claimant left University of Missouri Hospital for a similar position at Ellis Fischel Cancer Center. (University Hospital and Ellis Fischel are listed as separate employers on the claim for compensation; however, since both entities are owned and operated by the University of Missouri, they will be treated as one employer for purposes of this award.) Claimant worked as a respiratory therapist at Ellis Fischel until December 1995, to go back to school. While Claimant was pursuing his degree at the University of Missouri, Claimant also worked some weekends as a respiratory therapist at Capital Region Medical Center in Jefferson City, from approximately March 1996 through early August 1997. Claimant has not worked as a respiratory therapist since early August 1997.

On November 1, 1999, Claimant filed his Claim for Compensation herein against Capital Region Medical Center, Ellis Fischel Cancer Center and University of Missouri Hospital and Clinics, alleging injury to "low back, lower extremities and body as a whole". Claimant alleges that the injury occurred as follows: "While in the course and scope of employment, Claimant was required to repeatedly lift and transfer patients and move ventilators causing the above injuries. Proper notice was given. Claimant first discovered that the injury was work related in August 1999 pursuant to conversation with Dr. Oro."

Although Claimant's testimony is confusing and sometimes self-contradictory, it appears from Claimant's testimony that his duties as a critical care respiratory therapist at University of Missouri Hospital were very physically demanding and Claimant alleges that these duties created stress on his back. It appears from Claimant's testimony that he began experiencing back problems in late 1988 or early 1989, which he related to his work as a respiratory therapist. Claimant testified that when he left University of Missouri Hospital in 1992 to work at Ellis Fischel, his back was "pretty bad", that he was experiencing radiating pain down into his foot toward the end of a work shift, and experienced frequent muscle spasms. It appears from Claimant's testimony that one of the reasons he transferred to Ellis Fischel is because he felt he could no longer physically perform the work at University of Missouri Hospital.

Although it appears from Claimant's testimony that he worked part-time during most of his tenure at Ellis Fischel (only working full-time for the last six months of that tenure), Claimant characterized the "workload" at Ellis Fischel to be "about the same" as at University of Missouri Hospital, and that his back continued to worsen over time while he was working at Ellis Fischel. Claimant testified that he left Ellis Fischel in December 1995, because "my body was telling me I had had enough".

It appears from the evidence that Claimant had returned to school as a part-time student at the University of Missouri some time in 1995. After leaving Ellis Fischel, Claimant became a full-time student at the University of Missouri. Sometime in the Spring of 1996, Claimant took a job as a respiratory therapist at Capital Region Medical Center in Jefferson City. Claimant's testimony was somewhat contradictory regarding how often he worked at this job. Claimant testified that he worked two 12-hour shifts every other weekend, but some of his testimony indicated that he only worked one 12-hour shift every other weekend. The wage statement in evidence showed that Claimant was paid every two weeks at Capital Region. For the pay period ending 5/2/97, Claimant worked 24.15 hours; however, for the pay periods ending $5 / 16 / 97,5 / 30 / 97,6 / 13 / 97,6 / 27 / 97,7 / 11 / 97 and 8 / 8 / 97$, Claimant worked 12.25 hours, 12.50 hours, 11.75 hours, 11.75 hours, 12.45 hours and 12.25 hours, respectively. It is clear, therefore, that at least for the last 12 weeks of his employment at Capital Region, Claimant worked only one 12-hour shift every other weekend.

Regarding his work at Capital Region, Claimant's testimony is again somewhat confusing; the work at Capital Region was, by some accounts, not as strenuous as it was at Ellis Fischel or University Hospital, and by other accounts, it was exactly the same. What is clear from Claimant's testimony is that, on the last day he worked at Capital Region (probably August 2 or 3, 1997), Claimant performed a prolonged resuscitation on a patient, consisting of a "bag and mask" procedure, which required Claimant to work over the patient in a "bent-over" position. Claimant testified that during this procedure, and subsequent to this procedure, he experienced severe back and lower extremity pain as well as radiating pain in his hands. Claimant never worked another shift as a respiratory therapist after this incident.

Claimant went to the UMC Student Health service on August 11, 1997, and again on August 18, 1997, complaining of back pain. Claimant then saw a number of physicians over the next few years, including Dr. Robert Gaines, an orthopedic surgeon at the University of Missouri-Columbia, Dr. John Oro, a neurosurgeon at the

University of Missouri-Columbia, and Dr. Jaimie Henderson, a neurosurgeon and pain specialist at St. Louis University. Claimant has also seen several pain manage

Full decision text continues in the plain-text archive copy.

Related Decisions

affirmed

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's award allowing workers' compensation benefits for Jason L. Collins' occupational disease claim involving cumulative trauma to his back and right lower extremity sustained while employed as a truck driver/laborer. The Commission rejected the employer's argument that an untimely answer resulted in admission of all facts including legal conclusions about whether the injury arose out of employment.

occupational disease9,505 words
affirmed

The Labor and Industrial Relations Commission affirmed the administrative law judge's award of death benefits to the widow of Russell Hayes, a volunteer firefighter killed in the line of duty. The majority awarded death benefits at the statutory minimum wage rate of $40.00 per week, though a dissenting opinion argued for a higher wage determination based on the statutory provisions for calculating average weekly earnings.

occupational disease5,849 words
affirmed

The Labor and Industrial Relations Commission affirmed the administrative law judge's award of workers' compensation benefits to Elizabeth A. Steele for injuries sustained when a patient slammed his leg down on her head, neck, and shoulders while she was working as a critical care unit nurse. The Commission found the award was supported by competent and substantial evidence and determined the employee is entitled to permanent and total disability benefits.

occupational disease10,794 words
affirmed

The Labor and Industrial Relations Commission affirmed the administrative law judge's award denying compensation to Carl Hanes for an alleged occupational disease from radiation exposure at the Department of Corrections. The Commission found the employee failed to provide proper notice and that the injury did not arise out of and in the course of employment, resulting in no benefits awarded.

occupational disease6,305 words

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's Temporary or Partial Award in a workers' compensation case for employee Cynthia Porter, finding the award supported by competent and substantial evidence. The Commission upheld the ALJ's determination that the claimant's diabetes was well-controlled, rejecting the employer/insurer's challenge to this medical finding.

occupational disease7,008 words