Jason Gamet v. Dollar General Corporation

Employee: Jason Gamet

Before the DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

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

Employer: Dollar General Corporation

Additional Party: Second Injury Fund (left open)

Insurer: Self Insured, Dolgen Corp., Inc.

Hearing Date: February 26, 2007

Checked by: RFH/tmh

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: July 8, 2006.
5. State location where accident occurred or occupational disease contracted: Fulton, Callaway 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? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
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 happened or occupational disease contracted: Bending to pick up an empty pallet and experienced immediate pain.
12. Did accident or occupational disease cause death? No Date of death? N/A.
13. Parts of body injured by accident or occupational disease: BAW/back.
14. Compensation paid to-date for temporary disability: -0 -
15. Value necessary medical aid paid to date by employer/insurer? One bill paid to Urgent Care, amount unknown.
16. Value necessary medical aid not furnished by employer/insurer? \3,188.00.

1. Employee's average weekly wages: \ 443.81.
2. Weekly compensation rate: $\ 295.54.
3. Method wages computation: By agreement.

1. Amount of compensation payable:

Unpaid medical expenses: $\ 3,188.00 Unpaid mileage ( 90 roundtrip miles x 6 trips x 41.5 cents per mile) $\ 224.10

Weeks of temporary total disability: Continued and ongoing from July 8, 2006, until MMI at $\ 295.54 per week.

Each of said payments to begin immediately 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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Thad Mulholland

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

Employer: Dollar General Corporation

Additional Party: Second Injury Fund (left open)

Insurer: Self Insured, Dolgen Corp., Inc.

Checked by: RFH/tmh

The parties appeared before the undersigned Administrative Law Judge for a temporary hearing on February 26, 2007. The Division had jurisdiction to hear this case pursuant to $\S 287.110$ RSMo. Attorney Thad Mulholland represented Jason Gamet ("Employee"). Attorney Amy Young represented Dollar General Corporation ("Employer"). The Employer is self-insured through DolgenCorp, Inc. The Second Injury Fund did not appear and is left open as the issues presented were limited to those raised in a temporary award and did not directly involve the Second Injury Fund. Both parties submitted post hearing memoranda.

1. The Employee and the Employer were operating under the provisions of the Workers' Compensation Law on or about July 8, 2006;
2. The Employer's liability was self-insured;
3. The Employee's average weekly wage was $\ 443.31;
4. The rate of compensation for temporary total disability is $\ 295.54; and
5. The Employer has paid no TTD or medical benefits to date with the exception of one medical bill to Urgent Care at University Hospital.

The parties requested the Division to determine:

1. Whether Employee sustained a compensable injury by way of an accident arising out of and in the course of his employment on July 8, 2006.
2. Whether Employer must reimburse Employee for medical expenses related to the alleged accident of July 8, 2006.
3. Whether Employer must provide Employee with additional treatment.

1. Whether Employee is entitled to temporary total disability and if so, for what time period.
2. Whether Employee is entitled to reimbursement for mileage expense and if so, in what amount.
3. Whether the Employee is entitled to attorney fees and costs pursuant to Section 287.560.

The following exhibits were admitted into evidence without objection.

Exhibit A: Columbia Orthopaedic Group Account Ledger

Exhibit B: Deposition of Dr. Randal Trecha

Exhibit C: Deposition of Ms. Carmen Tiffany

Exhibit D: Deposition of Mr. David Steffes

Exhibit E: Deposition of Ms. Tracy Strange

The Employer offered no exhibits.

Any exhibits containing markings, highlighting, etc., were submitted in that manner. The undersigned has made no markings of any kind on any of the evidence. Any objections not specifically addressed in this award are overruled.

Employee testified to being 33 years of age on the date of the hearing. Employee graduated from high school in 1991 and has also obtained an Associates' Degree from Linn State Technical College.

The employee began working for the Employer in March or April 2006 as a "Man up operator" in the repack department. His job duties required operating a fork lift 50 % of the time and lifting, stooping and bending the other 50 % of the time. His schedule was Friday through Sunday reporting to work at 6:00 a.m. and working a 12 hour shift each day.

On Saturday, July 8, 2006, he was "farmed out" (a term used by the employer when an employee is sent to another department to help out) to the case pack department. The case pack department was running behind and not getting the production they needed so they needed more people to speed up the process. Employee testified that the work in the case pack department was very fast paced. His duties in case pack required lifting boxes or cases off a pallet, sometimes stacked as high as head height and sometimes as low as shin height, weighing anywhere from 1 to 60 pounds and then turning and placing the box on a conveyor belt. According to Ms. Carmen Tiffany, supervisor for the case pack department, 90 % of the job involves bending, lifting, and stooping (Employee's Exhibit C, p.16). When all the boxes had been taken off a pallet, the empty pallet was then to be picked up and taken to a designated area so that a new freshly stocked pallet could be brought in.

Employee testified that he was bending over to pick up an empty pallet off the floor when he felt immediate sharp pain in his lower middle back just above the belt line and slightly to the left. He set down on his heels for a few seconds because of the pain and then reported the incident to Ms. Tiffany, the department supervisor, and indicated that he believed he needed treatment. Ms. Tiffany began to complete an accident report as she and the employee were walking toward the front when she came upon Ms. Tracy Strange, the repack supervisor. Ms. Tiffany basically turned the matter over to Ms. Strange at that point.

Upon completing the necessary paperwork, Employee was taken to Urgent Care at University Hospital where he was examined, given medications and work restrictions. Because of the pain and work restrictions, Employee missed his next scheduled shift on Sunday.

On Monday, July 10, 2006, Employee called the Employer and left a message. A couple of days later, the Employee had a telephone conversation with David Steffes, claims representative for the Employer who is responsible for handling workers' compensation matters for the Employer. The Employee asked if the Employer had light duty work to accommodate the doctor's work restrictions and was informed that his case was being denied, no accommodations would be made for the restrictions and he would have to come back to work.

Over the next couple of weeks, the Employee spent most of his time in bed as a result of the pain. On July 26, 2006, Employee presented to the Columbia Orthopaedic Group for treatment and saw Dr. Randal Trecha. Employee reported low back and left leg pain. Dr. Trecha compiled a history, which included a description of the incident and also noted no prior back complaints. The doctor also performed a physical examination and found restriction with flexion; complaints of pain with attempts at flexion and extension; weakness in muscles to the left foot; and a tension sign indicating nerve root irritability on the left side. Dr. Trecha suspected a possible herniated nucleus pulposus, lumbar spine and ordered an MRI. The doctor placed the Employee on work restrictions of eight hours a day, no bending, no repetitive lifting, and a ten-pound lifting restriction. Employee testified his employment was terminated on August 4, 2006, because he was unable to work.

The MRI was performed on September 11, 2006. Dr. Trecha noted the MRI revealed desiccation of intervertebral disc and disc space collapse at L5-S1 with herniated nucleus pulposus and a large fragment on the left side, which was pushing on the nerves. The doctor recommended conservative care and ultimately administered a series of three epidural steroid injections on September 11, October 16, and November 10, 2006. Employee experienced some temporary relief after each injection. At the time of his deposition on December 15, 2006, the doctor had not seen the Employee since November 10, but noted he was scheduled to see the Employee the following month in January 2007. The doctor stated that if the Employee was doing fine when he saw him, there would be no need for further treatment, but if the symptoms were the same as when he first saw the Employee, he would likely recommend a microdiscectomy. At the time of his depositio