Debbie Ferguson v. Precise Mold & Engineering

Decision date: June 12, 20078 pages

Summary

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's decision denying workers' compensation benefits to Debbie Ferguson for an alleged low back injury sustained while lifting boxes on April 1, 2005. The Commission found that the injury did not arise out of and in the course of employment and therefore was not compensable under Missouri workers' compensation law.

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Caption

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-123961

Employee: Debbie Ferguson

Employer: Precise Mold \& Engineering

Insurer: Sentry Insurance Co.

Date of Accident: April 1, 2005

Place and County of Accident: St. Louis, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (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 December 13, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Suzette Carlisle, issued December 13, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 12^{\text {th }}$ day of June 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

AWARD

Dependents:	N/A	Before the
Division of Workers’
Employer:	Precise Mold & Engineering	Compensation
Department of Labor and Industrial
Additional Party:	N/A	Relations of Missouri
Jefferson City, Missouri
Insurer:	Sentry Insurance Co.
Hearing Date:	September 11, 2006	Checked by: SC:tr

FINDINGS OF FACT AND RULINGS OF LAW

Are any benefits awarded herein? No
Was the injury or occupational disease compensable under Chapter 287? No
Was there an accident or incident of occupational disease under the Law? No
Date of accident or onset of occupational disease: alleged to be April 1, 2005
State location where accident occurred or occupational disease contracted: St. Louis, Mo.
Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
Did employer receive proper notice? No
Did accident or occupational disease arise out of and in the course of the employment? No
Was claim for compensation filed within time required by Law? Yes
Was employer insured by above insurer? Yes
Describe work employee was doing and how accident happened or occupational disease contracted: While lifting boxes at work, Claimant alleged she injured her back.
Did accident or occupational disease cause death? No Date of death? N/A
Parts of body injured by accident or occupational disease: low back
Nature and extent of any permanent disability: N/A
Compensation paid to-date for temporary disability: -0 -
Value necessary medical aid paid to date by employer/insurer? $\ 1,935.00

Employee: Debbie Ferguson Injury No.: 05-123961 17. Value necessary medical aid not furnished by employer/insure? N/A 18. Employee's average weekly wages: Disputed 19. Weekly compensation rate: Disputed 20. Method wages computation: Disputed

Unpaid medical expenses:	-0-
weeks of temporary total disability benefits	-0-

Second Injury Fund liability: No

TOTAL:

-0-

Future requirements awarded: None

Each of said payments to begin and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A which is awarded above as costs of recovery of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Utica Morris

FINDINGS OF FACT and RULINGS OF LAW:

Employee:	Debbie Ferguson	Injury No.: 05-123961
Dependents:	N/A	Before the <br> Division of Workers' <br> Compensation <br> Department of Labor and Industrial
Employer:	Precise Mold \& Engineering	Relations of Missouri
Additional Party:	N/A	Jefferson City, Missouri
Checked by: SC:tr

PRELIMINARIES

A hearing was held at the Missouri Division of Workers’ Compensation, St. Louis office, on September 11, 2006. Debbie Ferguson ("Claimant") requested additional medical treatment and temporary total disability (TTD) benefits pursuant to $\S 287.450$ RSMo. Attorney Utica Morris represented Claimant. Attorney Michael Banahan represented Precise Mold \& Engineering (Employer) and Sentry Insurance (Insurer). The Second Injury Fund was not a party to the case. Hearing venue is correct under $\S 287.640 .2$ and jurisdiction properly lies with the Missouri Division of Workers’ Compensation.

The parties have stipulated to the following:

Claimant was employed by Employer on April 1, 2005.
Employer and Claimant were operating under the provisions of Missouri Workers’ Compensation law.

3.	Employer’s liability was fully insured by Sentry Insurance.
4.	A claim was filed within the time prescribed by law.
5.	Sentry Insurance coverage was in effect from May 17, 2004 to May 17, 2005.
6.	Employer paid no TTD benefits.
7.	Claimant received $1,935.00 in medical benefits paid by Employer.
The issues to be decided at hearing are as follows:
1.	Accident
2.	Arising out of and in the course of employment
3.	Occupational disease
4.	Notice
5.	Medical causation
6.	Future medical care
7.	Rate
8.	Temporary total disability
SUMMARY OF EVIDENCE
Only evidence necessary to support this award will be summarized. Any objections not expressly ruled upon are overruled. Claimant offered Exhibits A through F which were admitted into evidence without objection. Employer offered Exhibits 1 through 9 which were admitted without objection.
Employer requested that the Court take judicial notice of the original Claim for Compensation which shows a June 17, 2005 date of injury, and the Amended Claim for Compensation which shows an April 1, 2005 date ofinjury.
FINDINGS OF FACT
After a careful review of record as a whole, and based upon competent and substantial evidence presented at hearing, I find the following facts:
April 1, 2005 Incident
1.	Claimant is a married, 37 year old resident of Dexter, Missouri, with two children, who is currently unemployed. Claimant testified she stood 5 feet, 2 inches tall and weighed 100 pounds on April 1, 2005 when she alleged the work injuryoccurred.
2.	On April 1, 2005, Claimant lifted boxes weighing 35 to 50 pounds each from a crate, placed them on a dolly, and stacked them on shoulder high shelves. By 2:00 p.m. she had stacked 20 boxes but had to stop due to pain in herback. Claimant’s shift ended at 3:30 p.m. but she was in too much pain to finish her shift. Claimant testified she reported the injury to Rick Pinkston, her immediate supervisor; who wasstanding nearby at the time.
3.	Claimant testified that Employer did not offer medical treatment. Claimant left work early on April 1, 2005 and proceeded to St. Anthony’s Urgent Care on her own. X-rays revealed mild degenerative changes. Claimant, was diagnosed with arthritis, lumbar sprain/strain, medicated, and referred to herdoctor.
4.	Claimant provided St. Anthony’s with a pre-existing history of: “back pain since 1996, hit by boat, today worse ever, L side down back of leg top of feet both numb…L side weak, woke with pain, denied acute injury.” Pain radiated to the L knee for two days, no back injury since 1996 when a jet ski and boat ran over her and a propeller cut her back. Stressed pain every since but not as bad as this episode.” (Ex -5). Claimant provided no history of lifting boxes at work on April 1, 2005.
5.	Claimant followed up on her own with Arnold Family Medical Center on April 8, 2005 and a strain/sprain was diagnosed. Claimant again provided a history of being hit by a boat in 1996, but no history of lifting boxes at work on April 1, 2005. Claimant testified she received medical care after the boating accident and had no problems until the April 2005 workinjury (Ex 4). Claimant also testified that she informed Ms. Walls, Vice-President and General Manager of the company, of her injury the week of April 8, 2005.
6.	Claimant testified she continued to have pain between April and October 2005 but the record reflects no treatment during this time.

7.	In October 2005, Claimant asked Ms. Walls for a referral for treatment and Ms. Walls referred Claimant to her personal physician, Helene Aisenstat, M.D. However, Ms. Walls testified she did not know Claimant was seeking treatment for a work injury.
8.	On November 1, 2005 Claimant again provided the nine year boat history, but no history of injuring her back lifting boxes at work. Claimant’s complaints included daily back, left hip and knee pain with decreased mobility, tired and heavy left thigh, and difficulty sitting or standing for prolonged periods. An MRI revealed an L5-S1 central broad based disc protrusion/herniation left sided herniated disc, touching the S1 nerve root, and a right hip cyst. (Ex 6-10, 11). Claimant was to follow up in two weeks, but there is no indication she did.
9.	Claimant testified Dr. Aisenstat referred her to another doctor who would not accept her insurance. At that point Claimant notified Employer she needed treatment, and was authorized to treat at Barnes Care West on November 21, 2005.
10.	For the first time, Claimant reported an April 1, 2005 work injury while lifting boxes at work. She complained of seven months of back and leg pain and pain with extension of her left leg. Claimant was placed on restricted duty in four hour shifts of sedentary or seated work, with frequent breaks, and no lifting, carrying, or pulling over ten pounds (Ex-2-7).
11.	Claimant was referred to Dr. Raskas on November 30th for an orthopedic consultation. Claimant reported the April 1, 2005 incident but denied any history of prior back problems. Dr. Raskas diagnosed a central disc herniation and mild retrollsthesis at L5-S. He continued light duty, added physical therapy and epidural steroid injections, and scheduled a follow up visit in five weeks. However, the injections and later appointments with Dr. Raskas were canceled by Employer pending investigation on December 22, 2005 (Ex 1- ER2).
12.	Claimant testified that although she reported to work between April and October 2005, Ms. Walls and Mr. Pinkston excused her from working and gave her permission to take off as needed due to her back problems. Claimant testified that during this time Mr. Pinkston provided her with pain patches.
13.	Dr. Reinsel, a board certified orthopedic spine surgeon, examined Claimant on December 12, 2005 at Employer’s request with history of a work injury on April 1, 2005. Claimant denied any low back or leg problems prior to the April 2005 injury. Claimant reported her level of discomfort remained the same since the April 2005. Examination revealed a dramatic gait, standing and walking with her knees bent, favoring the left leg, but no Waddell signs.
14.	Dr. Reinsel originally opined Claimant’s symptoms were related to the April 2005 injury, although he was surprised with the gap between injury and treatment; because most people would not walk around for seven months before seeking treatment. (Ex 1-11).
15.	After review of records from St. Anthony’s, Arnold Family Medical, and Dr. Aisenstat, however, Dr. Reins

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