After a review of the entire record as a whole, and consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed. I believe the administrative law judge erred in concluding that employee's left inguinal hernia arose out of and in the course of his employment.
According to § 287.195 RSMo (2005), "[i]n all claims for compensation for hernia resulting from injury arising out of and in the course of the employment, it must be definitely proved to the satisfaction of the division or the commission:
(1) That there was an accident or unusual strain resulting in hernia;
(2) That the hernia did not exist prior to the accident or unusual strain resulting in the injury for which compensation is claimed.
Employee alleges that on December 15, 2005, he was taking a 4-6 pound case of toaster strudel from a shelf in the freezer. He testified that he had to reach about 3.5 feet into the shelf to pull the case out. As he was pulling the case out, it became stuck on something and he had to lift the 4-6 pound case up a little in order to pull it out. Employee alleges that after this incident he felt a sharp pain in his abdomen. However, he did not report the incident at the time.
More than two weeks later, on December 30, 2005, employee went to his primary care physician, Dr. Williams, for a bronchial infection and pain in his right testicle. Upon examination, Dr. Williams diagnosed employee with a small left inguinal hernia. Dr. Williams' notes state "patient was unaware" and "no known injury."
After this appointment with Dr. Williams, employee spoke with a union representative and was advised to contact an attorney. Only after talking with the union representative and an attorney did employee finally report the alleged injury to employer.
Employee was again seen by Dr. Williams on January 11, 2006. However, Dr. Williams' records on that date are also void of any notification by employee that he was allegedly injured at work on December 15, 2005, or any other date for that matter. In fact, the only medical records mentioning that this hernia was the result of a work related injury are the records from Dr. Edwards, the surgeon that performed the repair of employee's hernia. Dr. Edwards' records from January 12, 2006 state that employee notified him that in midDecember he was "lifting and pulling heavy boxes and developed a pain and tearing sensation in his left groin."
Employee obtained an Independent Medical Examination from Dr. Koprivica on August 5, 2006. Dr. Koprivica's report notes that "in reviewing [employee's] history that he does have a somewhat complex presentation." Dr. Koprvica opines that employee's injury on December 15, 2005 is the prevailing factor in the development of the identified left inguinal hernia. Dr. Koprivica reaches this conclusion on the basis that employee had no prior history of an inguinal hernia. Employee underwent a physical examination in August of 2003 without evidence of inguinal hernia and further medical records from 2004 provided no evidence of inguinal hernia.
Employer obtained the opinion of Dr. Corsolini. Dr. Corsolini evaluated employee on May 4, 2007, reviewed all of his medical records, and concluded that employee did not sustain an injury while working for employer that resulted in a left inguinal hernia. Instead of relying on irrelevant medical records from 2003 and 2004, Dr. Corsolini primarily relied on the medical records of employee's primary care physician, Dr. Williams. Dr. Corsolini stated in his report that "[employee] did not present with symptoms in a manner that would indicate his conviction that work actually did cause the hernia to occur." Dr. Corsolini went on to state
| that he would have expected employee to complain either directly to Dr. Williams or acknowledge the presence when it was found on his examination. Dr. Corsolini stated "[b]ased on these circumstances, and [employee's] failure to report this in a timely fashion, [his] opinion is that this does not represent a work related injury and that work was not the prevailing factor in the causation of the left inguinal hernia." |
| It is my opinion that Dr. Corsolini is more credible than Dr. Koprivica because___ Dr. Corsolini's opinion is primarily based upon the medical records most pertinent to this claim. On the other hand, Dr. Koprivica's opinion is primarily based upon the assumption that because employee had separate medical records in 2003 and 2004 that did not show a hernia, then his hernia must have occurred at work on December 15, 2005. |
| In addition, I do not find employee to be a credible witness. Employee did not report the injury on the date he alleges it actually occurred. It was only after he found out he had a hernia and spoke with a union representative and an attorney did he report the injury to employer. In fact, employee even testified that it was not his priority to report the alleged injury to his employer.For the foregoing reasons, I do not believe employee has met his burden of proving that his left inguinal hernia actually arose out of and in the course of his employment. First, employee did not report the injury when it occurred. Second, employee did not even go to his primary care physician until after more than two full weeks had passed from the date of the alleged injury. Third, there is no record anywhere of this being a work related injury until after employee spoke with a union representative and an attorney. Fourth, Dr. Koprivica's opinion is based upon irrelevant medical records from 2003 and 2004. Last, Dr. Corsolini opined, based upon the only relevant medical records, that employee's work was not the prevailing factor in the causation of the left inguinal hernia. As such, I would not award employee temporary total or partial disability benefits, permanent partial disability benefits, or past medical expenses.For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission. |
| ___________________________ Alice A. Bartlett, Member |
| AWARD |
| Employee: William Bostic |
| Injury No. 05-137917 |
| Dependents: N/A |
| Employer: Associated Wholesale Grocers, Inc. |
| Additional Party: N/A |
| Insurer: Self-insured |
| Hearing Date: 9/23/08 |
| Checked by: MEH |
| FINDINGS OF FACT AND RULINGS OF LAW |
| 1. Are any benefits awarded herein? YES |
| 2. Was the injury or occupational disease compensable under Chapter 287? YES |
- Was there an accident or incident of occupational disease under the Law? YES
- Date of accident or onset of occupational disease: $12 / 15 / 05$
- State location where accident occurred or occupational disease was contracted: GREENE COUNTY, MO
- Was above employee in employ of above employer at time of alleged accident or occupational disease? YES
- Did employer receive proper notice? YES
- 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
- Was employer insured by above insurer? YES
- Describe work employee was doing and how accident occurred or occupational disease contracted: WHILE LIFTING FELT A STRAIN IN HIS LEFT GROIN AND ABDOMEN.
- Did accident or occupational disease cause death? NO Date of death? N/A
- Part(s) of body injured by accident or occupational disease: BODY AS A WHOLE
- Nature and extent of any permanent disability: 10 %
- Compensation paid to-date for temporary disability: 0
- Value necessary medical aid paid to date by employer/insurer? 0
Employee: William Bostic
Injury No. 05-137917
- Value necessary medical aid not furnished by employer/insurer? \809.84
- Employee's average weekly wages: \ 720.09
- Weekly compensation rate: $\$ 480.06 / \ 365.08
- Method wages computation: BY AGREEMENT
COMPENSATION PAYABLE
- Amount of compensation payable:
Unpaid medical expenses: $\ 809.84
3 weeks of temporary total disability (or temporary partial disability)
40 weeks of permanent partial disability from Employer
0 weeks of disfigurement from Employer
Permanent total disability benefits from Employer beginning n/a, for Claimant's lifetime
- Second Injury Fund liability: Yes No X Open
0 weeks of permanent partial disability from Second Injury Fund
Uninsured medical/death benefits: N/A
Permanent total disability benefits from Second Injury Fund:
weekly differential (0) payable by SIF for 0 weeks, beginning N/A
and, thereafter, for Claimant's lifetime
Total: SEE AWARD
- Future requirements awarded: NONE
Said payments to begin immediately and to be payable 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:
CHRISTOPHER MOBERG