Darren Ottobre v. Timberlake Care Center

lifting weights. As early as March 2005, employee had made inquiries about the new medical insurance coverages because of his previous back problems. In July or August 2005, employee had even called the insurance company to ask about a specific back procedure called IDD. Employee testified that he did so only out of curiosity.

Employee also testified that his previous trip to the chiropractor on approximately September 7, 2005, was due to power washing at work. Yet, employee never told his supervisor that such work was causing him pain. The chiropractor's notes similarly reveal no cause for employee's low back pain. Furthermore, even though the chiropractor's notes reveal that employee was suffering unbearable and constant pain at the time of this visit, employee contends he was symptom-free after that time and up until September 30, 2005.

These types of discrepancies lead us to a finding that employee's testimony about his September 30, 2005 accident was not credible. Accordingly, since employee has not proved that he suffered an identifiable accident at work on September 30, 2005, the administrative law judge's award to deny him benefits should be affirmed.

The Commission affirms the award of the administrative law judge dated July 5, 2006, and awards no compensation.

Given at Jefferson City, State of Missouri, this $23^{\text {rd }}$ day of March 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Darren Ottobre Injury No. 05-105298

Dependents: N/A

Employer: Timberlake Care Center

Insurer: Missouri Nursing Home Insurance Trust

Additional Party: N/A

Hearing Date: June 2, 2006

Checked by: MSS/lh

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.

1. Was there an accident or incident of occupational disease under the Law? No.
2. Date of accident or onset of occupational disease: September 30, 2005
3. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri.
4. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
5. Did employer receive proper notice? Yes.
6. Did accident or occupational disease arise out of and in the course of the employment? No.
7. Was claim for compensation filed within time required by Law? Yes.
8. Was employer insured by above insurer? Yes.
9. Employee stated that while he was lifting a lawnmower out of the back of a pickup truck to set it down on the ground he felt a pulling in his back causing the injuries he complained of.
10. Did accident or occupational disease cause death? No. Date of death? N/A
11. Part(s) of body injured by accident or occupational disease: Body as a whole.
12. Nature and extent of any permanent disability: None.
13. Compensation paid to-date for temporary disability: None.
14. Value necessary medical aid paid to date by employer/insurer? \$2,050.56.
15. Value necessary medical aid not furnished by employer/insurer? \None.
16. Employee's average weekly wages: \ 468.75.
17. Weekly compensation rate: $\$ 312.50 / \ 312.50.
18. Method wages computation: By stipulation.

1. Amount of compensation payable: None
2. Second Injury Fund liability: None.
3. Future requirements awarded: None.

Employee: Darren Ottobre

Injury No: 05-105298

Dependents: N/A

Employer: Timberlake Care Center

Insurer: Missouri Nursing Home Insurance Trust

Additional Party: N/A

Hearing Date: June 2, 2006

Checked by:MMS/lh

On June $2^{\text {nd }}$, 2006, the Employee and the Employer appeared for a hardship hearing. The Employee, Darren Ottobre, appeared in person and was represented by John Redmond. The Employer/Insurer was represented by Patrick Reidy.

1. That on or about September $5^{\text {th }}, 2005$, the Employer was an employer operating subject to the Missouri Workers' Compensation law and its liability was fully insured by Missouri Nursing Home Insurance Trust;
2. That Darren Ottobre was its employee working subject to the law in Kansas City, Jackson County, Missouri, and that Employee's contract for employment was made in Missouri;
3. That the Employee notified the Employer of his alleged injury as required by law;
4. That the Employee's claim was filed within the time allowed by law;
5. That the parties stipulated to an average weekly wage of $\ 468.75 resulting in a compensation rate of $\ 312.50 for temporary total and $\ 312.50 for permanent partial disability compensation;
6. That the Employer has paid no temporary total disability compensation to date.
7. That the Employer has provided medical care costing $\ 2,050.56.
8. That the Employee does not seek reimbursement for medical expenses.

The parties request the Division to determine:

1. Whether the Employee sustained an accident or occupational disease arising out of or in the course of his employment;
2. Whether the Employee is entitled to temporary total disability benefits from December $16^{\text {th }}, 2005$, to present day;
3. Whether the Employer must provide the Employee with additional medical care.

The Employee testified on his own behalf and presented the following exhibits, all of which were admitted in evidence without objection.

A. Eckert Chiropractic Center (9/7/05);

B. OHS Comp Care;

C. MRI dated 11/10/05;

D. Kansas City Pain Center (12/16/05)

E. Narrative medical report of Ronald Zipper, D.O., (3/31/06);

F. Curriculum vitae of Ronald Zipper, D.O

The Employer presented the live testimony of Michelle Peterson, who is a speech pathologist at Timberlake Care Center, Kevin Robertson, a maintenance supervisor at Timberlake Care Center, and Marsha Sanders, a representative of Claridge Insurance Agency. The Employer further offered the following exhibits which were admitted into evidence over Employee's objection:

1. Statement by Marsha Saunders (11/22/05).

Darren Ottobre (hereinafter referred to as Employee) testified that he was 31 years old at the time of hearing, living in Raymore, Missouri. He had been an employee of Timberlake Care Center from approximately September $1^{\text {st }} of 2004 and was ultimately laid off on December 2^{\text {nd }}$ of 2005 . His job title was as maintenance assistant, which required him to do complete building maintenance and grounds maintenance inside and out. He did everything from deal with leaks in the roof to electrical problems as well as mowing and other outdoor grounds activities. He was given a pre-employment physical where he stated he had no back problems, had had no injuries and had no medical treatment for his back. On approximately September $7^{\text {th }}$ of 2005 he sought chiropractic treatment, stating that he was having complications in his back from work duties. He was doing a lot of power washing over a two to three week period, approximately four hours each morning. He also was required to take doors off and plane them down and reattach them, all requiring heavy lifting. He began having a dull ache in his back and his hamstrings were getting tight and his pain would progress as the day went on. He went to the chiropractor one time and had an adjustment and never went back, stating that he did not have to go back again. He testified that he spoke to Marsha at Blue Cross and Blue Shield about possible treatments for his back. He also spoke to a physical therapist named Dee at Timberlake Care Center about exercise regimens for his low back and hamstring problems, wanting to have stretching exercises to see if that would help him. He stated that when he spoke to Dee there was nobody else in the area. He was asked about whether he had spoken to a Michelle Bradford. He stated he had never told her that he had hurt himself lifting weights. He also stated that he had never seen a doctor for his back problems prior to this time. He admitted that he was involved in outside activities including playing tennis and weightlifting. He quit doing any weightlifting after his treatment at Eckert Chiropractic on November $7^{\text {th }}, 2005. He stated that his supervisor, Kevin Robertson was not present on September 30^{\text {th }}$ of 2005 and he never told him what happened and was never asked about how he hurt his back, and he also stated he never told