Zemir Harbas v. Bethesda Health Group, Inc.

As I previously found that claimant did not sustain any injury to his back or a pain syndrome or major depression as a result of the November 21, 2004 work-related accident, I find Dr. Wolfgram's opinion concerning permanent partial disability of the body to be not credible. Based on Dr. Mishkin's credible opinion, I find that Employee sustained no permanent partial disability to his body as a whole as a result of the work-related accident.

Award p. 21.

Because Mr. Stock's vocational opinions are based upon the medical and psychiatric opinions of Dr. Volarich and Wolfgram, we are not persuaded by Mr. Stock's vocational opinions.

The Commission approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

The award and decision of administrative law judge are attached and incorporated by this reference.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 20th day of May 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Zemir Harbas

Imjury No. 04-123833

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

Employer: Bethesda Health Group, Inc.

Additional Party: Second Injury Fund

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

1. Are any benefits awarded herein? Yes

- Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

- Date of accident or onset of occupational disease: November 21, 2004

- State location where accident occurred or occupational disease was contracted St. Louis County, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
2. Did employer receive proper notice? Yes
3. Did accident or occupational disease arise out of and in the course of the employment? Yes

- Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Self-insured
2. Describe work employee was doing and how accident occurred or occupational disease contracted: While moving a food cart, employee slipped and fell. The food cart struck his shins and mouth.
3. Did accident or occupational disease cause death? No Date of death? No
4. Part(s) of body injured by accident or occupational disease: lower extremities

- Nature and extent of any permanent disability: None

1. Compensation paid to-date for temporary disability: None
2. Value necessary medical aid paid to date by employer/insurer? $\ 1.093 .20

Employee: Zemir Harbas

Injury No. 04-123833

1. Value necessary medical aid not furnished by employer/insurer? $\ 624.00

- Employee's average weekly wages: $\ 350.80

1. Weekly compensation rate: $\ 233.87 PTD/TTD/PPD
2. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses:

$\ 624.00

$4-4 / 7 weeks of temporary total disability

\ 1,069.12

weeks of permanent partial disability from Employer

1. Second Injury Fund liability: No

Total:

$\ 1,693.12

1. Future requirements awarded: None

Said payments to begin and to be payable immediately and be subject to modification and review as provided by law.

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:

Frank J. Niesen, Jr.

A hearing in this proceeding was held on May 13, 2008. An amended claim was filed on May 13, 2008. Amended answers were filed on May 23, 2008 at which time the record was closed. All parties submitted proposed awards, the last of which was received on June 20, 2008.

The parties stipulated that on or about November 21, 2004:

1. the employer and employee were operating under and subject to the provisions of the Missouri

Workers' Compensation Law;

1. the employer's liability was self-insured;
2. the employee's average weekly wage was $\ 350.80;
3. the rate of compensation for temporary total disability and permanent total disability was $\ 233.87 and the rate of compensation for permanent partial disability was $\ 233.87; and
4. the employee sustained an injury by accident arising out of and in the course of employee's employment occurring in St. Louis County, Missouri.

The parties further stipulated that:

1. the employer had notice of the injury and a claim for compensation was filed within the time prescribed by law;
2. no compensation has been paid; and
3. employer has paid $\ 1.093 .20 in medical expenses.

The issues to be resolved in this proceeding are:

1. whether claimant sustained, in addition to the injury to his bilateral shins, any other injuries as a result of the work-related accident of November 21, 2004;
2. whether employee is entitled pursuant to Section 287.140 Mo. Rev. Stat. (2000) to be reimbursed for the medical bills set forth in employee's Exhibit M;
3. whether the employee should be provided with any additional medical treatment;
4. whether employee is entitled pursuant to Section 287.170 Mo. Rev. Stat. (2000) to any temporary total disability compensation subsequent to November 21, 2004;
5. whether and to what extent employee sustained any permanent partial disability which would entitle him to an award of compensation; and
6. if employee sustained any permanent partial disability for the injuries sustained as a result of the November 21, 2004 work-related accident, whether and to what extent employee sustained any additional permanent partial or permanent total disability for which the Second Injury Fund would be liable as a result of the combination of any preexisting disabilities with the primary injuries.

There is no dispute that Zemir Harbas, Employee herein, sustained injuries to both shins as a result of the November 21, 2004 work-related accident. Employee also claims that he sustained injuries to his back, knees, teeth and depression as a result of the foregoing work-related accident. Employer denies that Employee sustained any injuries to his knees or teeth and that Employee developed depression as a result of the work-related accident.

The employee must establish a causal connection between the accident and the claimed injuries. Davies v. Carter Carburetor Div., 429 S.W.2d 738 (Mo. 1968); McGrath v. Satellite Sprinkler Systems, 877 S.W.2d 704, 708 (Mo. App. 1994); Blankenship v. Columbia Sportswear, 875 S.W.2d 937, 942 (Mo. App. 1994); Fisher v. Archdiocese of St. Louis, 793 S.W.2d 195, 198 (Mo. App. 1990); Cox v. General Motors Corp., 691 S.W.2d 294 (Mo. App. 1985); Griggs v. A.B. Chance Company, 503 S.W.2d 697, 703 (Mo. App. 1974); Smith v. Terminal Transfer Company, 372 S.W.2d 659, 664 (Mo. App. 1963).

Amendments made to Section 287.020.2 Mo. Rev. Stat. (2000) in 1993 require that the injury be "clearly work related" for it to be compensable. An injury is clearly work related "if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor." The Supreme Court held in Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo. 1999) that the foregoing language overruled the holdings in Wynn v. Navajo Freight Lines, Inc., 654 S.W.2d 87 (Mo. 1983), Bone v. Daniel Hamm Drayage Company, 449 S.W.2d 169 (Mo. 1970), and many other cases which had allowed an injury to be compensable so long as it was "triggered or precipitated" by work. Injuries which are triggered or precipitated by

work may nevertheless be compensable if the work is found to be a "substantial factor" in causing the injury. Kasl, supra at 853. A substantial factor does not have to be the primary or most significant causative factor. Bloss v. Plastic Enterprises, 32 S.W.3d 666, 671 (Mo. App. 2000); Cahall v. Cahall, 963 S.W.2d 368, 372 (Mo. App. 1998). An accident may be both a triggering event and a substantial factor in causing an injury. Id. Subsection 2 also provides that an injury must be incidental and not independent of employment relationship and that "ordinary, gradual deterioration or progressive degeneration of the body caused by aging" is not compensable unless it "follows as an incident of employment." The extent to which the 1993 amendments have further modified prior caselaw will be determined by the appellate courts. See Cahall, supra at 372 .

The quantum of proof is reasonable probability. Davies, supra at 749; Downing v. Willamette Industries, Inc., 895 S.W.2d 650, 655 (Mo. App. 1995); White v. Henderson Implement Co., 879 S.W.2d 575, 577 (Mo. App. 1994); Fischer at 199; Banner Iron Works v. Mordis, 664 S.W.2d 770, 773 (Mo. App. 1983); Griggs at 703. "Probable means founded on reason and experience which inclines the mind to