Renee Viles v. QuikTrip Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-061946

Employee: Renee Viles

Employer: QuikTrip Corporation

Insurer: QuikTrip Corporation

Date of Accident: May 10, 2005

Place and County of Accident: Belton, Cass County, 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 May 16, 2007, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Emily S. Fowler, issued May 16, 2007, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $8^{\text {th }}$ day of November 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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: May 10, 2005.
5. State location where accident occurred or occupational disease was contracted: Belton, Cass County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? No.
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? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: The employee stated that the combination of her work duties of repetitive bending, lifting and turning caused the injuries she complained of.
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: low back body as a whole.
14. Nature and extent of any permanent disability: None.
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? $\ 6,211.16.
18. Employee's average weekly wages: $\ 596.80.
19. Weekly compensation rate: $\$ 354.05 / \ 397.87.
20. Method wages computation: By stipulation.

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

On March 14, 2007, the Employee and Employer appeared for a final hearing. The Employee, Renee Viles, appeared in person and was represented by Thomas Stein. The Employer was represented by Brian Fowler. This Court had jurisdiction to hear the case pursuant to $\S 287.110$ RSMo.

The parties stipulated as follows:

1) that on or about May 10, 2005, the Employer was an Employer operating subject to the Missouri workers' compensation law and its liability was fully insured by QuikTrip Corporation;

2) that Renee Viles was its Employee working subject to the law in Belton, Cass County, Missouri, and that Employee’s contract for employment was made in Missouri;

3) that Employee’s claim was filed within the time allowed by law;

4) that the Employee’s average weekly wage was $\ 596.80 resulting in a compensation rate of $\ 397.87 for temporary total disability and $\ 354.05 for permanent partial disability compensation;

5) that Employer has paid no temporary total disability compensation to date, nor any medical care to date;

6) that Employee does not request additional medical treatment.

The parties requested the Division to determine:

1) whether the Employee sustained an accident or occupational disease arising out of and in the course of employment;

2) whether the Employee notified the Employer of the injuries as required by law;

3) whether the Employer must reimburse the Employee for medical expenses totaling \$6,211.16;

4) whether the Employee suffered any disability, and if so the nature and extent of Employee's disability;

5) whether the accident or occupational diseased caused the disability the Employee claims.

The Employee testified on her own behalf and also her husband Jack Viles testified. The Employee presented the following exhibits, all of which were admitted into evidence without objection:

A - Medical records of Shaun Holden, M.D.

B - Medical records of Cass County Medical Center, 1/505

C - Medical records of John Gillen, M.D.

D - Medical records of Cass Medical Center 1/17/05 to 2/10/05

E - Medical records of St. Luke's Northland Hospital

F - Medical records of John Ciccarelli, M.D.

G - Medical records of Shawnee Mission Medical Center

H - Medical report of James A. Stuckmeyer, M.D.

I - Curriculum Vitae of James A. Stuckmeyer, M.D.

J - Lien notice for ACR Recovery Services

K - Medical records from Kansas City Pain Center

The Employer provided live testimony of Jeff Mills, the supervisor with QuikTrip Corporation; Kim Zimmerman, a warehouse manager with QuikTrip Corporation; and further presented the following exhibits, all of which were admitted into evidence without objection:

1 - Initial Claim for Compensation, July 8, 2005

2 - Cass Medical Center emergency room records

3 - Kansas City Pain Center records, 6/7/04

4 - Medical Records of Dr. Holden

5 - Cass Medical Rehabilitation Services medical records

6 - Medical records of Dr. Fleming, 5/11/05

7 - Claim for short term disability of Claimant

8 - Shawnee Mission Medical Center medical records

9 - Medical records of Dr. Ciccarelli from the Spinal Institute

At the time of the hearing, Employee, Renee Viles, hereinafter referred to as Employee, was 55 years of age. She had been employed by Quick 'N Tasty in Belton since February 19, 1990. Her main job title was sandwich maker and machine operator. Her work required her to stand next to a conveyor belt, referred to as the line, and put various types of fast food sandwiches together. She stated that she would constantly turn a 90 -degree angle at the waist from a cart to the conveyor and back again throughout the day. Occasionally she would take product off a pallet to put it on the cart that she was working from. The weight of the boxes from the pallets to the cart were approximately 20 to 30 pounds, and she did this approximately four times during her shift. She would reach up and put the product, which would be a meat or a cheese, in a slicer at approximately shoulder level, and as the meat or cheese was sliced she would compile it in a sandwich and turn to the conveyor belt to place the finished product on the conveyor belt. She had to put the meat or cheese in the slicer approximately every 10 or 15 minutes to keep product flowing. She stated she would compile 60 to 80 sandwiches a minute requiring her to make 60 to 8090 -degree rotations a minute from the cart to the conveyor belt throughout her day. Her day generally started at 7 a.m. and she was usually finished by 2:30. She was given a half-hour break for lunch and two 15minute breaks in the afternoon. She was on her feet the entire day. She stated the heaviest thing she had to lift during the day was what was referred to as a grot box, which was a stainless steel box in the meat slicer which weighed approximately 50 pounds. She would put it in the first thing in the morning and at the end of they day take it out to have it cleaned. She stated that her back hurt over time and got progressively worse.

She stated she went to a doctor in 2004 in Harrisonville, her family doctor, with soreness and stiffness. She said there was no specific accident. She was given physical therapy and muscle relaxers for the pain. She then went to a Dr. Laughlin in June or July of 2004 for the same problems. She stated that in February of 2005 she had an incident at work where she was roving for the day when she stepped on a ham sandwich and slipped and fell on her back. She stated she reported it to Jeff Mills, filled out a form on the computer, which went straight to corporate. They asked if she wanted to go to a doctor and she stated that she wanted to see if it would just work itself out. Then approximately three months later she went to Dr. Fleming when she tried to get out of bed one morning and her knees buckled underneath her. She stated she called Jeff Mills and he told her to get herself to a doctor immediately. That was approximately May 10, 2005.

In reviewing Employee's medical records, both as exhibits from the Employee and Employer, it is noted as far back as September 9, 2002, Employee sought treatment for her back from Dr. Shaun Holden of Cass County Medical Center in Harrisonville. Dr. Holden ordered an MRI of her lumbar spine due to complaints of low back pain that were radiating into both of her legs. The MRI showed that she had extensive multi-level lumbar spondylosis with associated central stenosis from the L1 through S1 level secondary to broad based bulging disks. She had moderate to severe central stenosis of the L12 secondary to broad based bulging disks with focal central disk protrusion and associated annular tear. Further, a radiology report from September of 2002 showed mild degenerative changes of the lumbar spine, the lower thoracic spine demonstrated slightly more significant degenerative changes with disk space narrowing and osteophytes. It is noted that in the outpatient registration there is no note of an accident having occurred. In fact, in the Life Well Services patient information sheet filled out by Employee in August of 2002, she states that she had been having problems with her back for approximately a year prior to that time. It appears treatment for Ms. Viles in 2002 consisted of physical therapy over a period of weeks. Employee was seen again sometime in June of 2004 by Dr. Laughlin as a referral from Dr. Holden. He notes that she was complaining of pain in her lower back radiating down both legs in the L5-S1 nerve root distribution and that this had been going on for at least two years. He noted the MRI she had in 2002 and that he was asked to see her because conservative treatment had failed. His diagnosis was lumbar radiculopathy secondary to disk disease, and planned to put Employee on a trial of epidural steroid injections.

In August of 2004, Employee was seen by Dr. Kandice Fleming with complaints of back pain, which were chronic and radicular on the anterior aspect of her lower extremities, also there was tingling in the dorsal left foot. It is noted that there was no physical trauma and that she had a diagnosis history of lumbar spondylosis. She was given Dolobid and Flexeril by Dr. Fleming. She was referred by Dr. Shaun Holden presenting with back pain, joint pain, and left foot numbness. Her history and physical showed that she had pain radiating to the right buttock and right posterior thigh, characterized as intermittent and moderate in intensity, as well as chronic. The medical records states "but intermittent" and then it is illegible "with an acute exacerbation. She stated tha