Aaron Zentz v. Kraft Foods

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-035873

Employee: Aaron Zentz

Employer: Kraft Foods

Insurer: Indemnity Insurance Company of America c/o ESIS

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated July 13, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Vicky Ruth, issued July 13, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\underline{26^{\text {th }}}$ day of January 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Hearing Date: May 14, 2009

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? N/A.
4. Date of accident or onset of occupational disease: Alleged April 26, 2005.
5. State location where accident occurred or occupational disease was contracted: Adair 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? 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 claimant was working on the flex line when he reached across the line and then felt pain in his back as he straightened up.
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: Alleged body as a whole referable to the lower back.
14. Nature and extent of any permanent disability: None/see award.
15. Compensation paid to-date for temporary disability: N/A.
16. Value necessary medical aid paid to date by employer/insurer? N/A.

Employee: Aaron Zentz

1. Value necessary medical aid not furnished by employer/insurer? N/A.
2. Employee's average weekly wages: $\ 527.41.
3. Weekly compensation rate: $\ 351.61 for TTD and PTD.
4. Method wages computation: By agreement.

1. Amount of compensation payable from Employer: None.
2. Second Injury Fund liability: None.
3. Future Requirements Awarded: None.

Employee: Aaron Zentz

Injury No: 05-035873

Dependents: N/A

Employer: Kraft Foods

Additional Party: N/A

Insurer: Indemnity Insurance Co. of North America, c/o ESIS

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On May 14, 2009, the claimant and the employer/insurer appeared for a final award hearing. The claimant, Aaron Zentz, was represented by David Briggs. The employer/insurer was represented by Jared Vessell. The claimant testified in person at the trial. There was no deposition testimony. The parties submitted briefs on or about June 4, 2009. ${ }^{1}$

The parties stipulated to the following:

1. On or about April 26, 2005, the claimant was an employee of Kraft Food (the employer).
2. The employer was operating subject to Missouri's workers' compensation law.
3. The employer's liability for workers' compensation was insured by Indemnity Insurance Co. of North America, and the third-party-administrator is ESIS.
4. The Missouri Division of Workers' Compensation has jurisdiction, and venue in Adair County is proper.
5. A Claim for Compensation was filed within the time prescribed by law.
6. At the time of the alleged accident or occupational disease, the claimant's average weekly wage was $\ 527.41, yielding a compensation rate of $\ 351.61 for permanent partial disability and temporary total disability benefits.
7. The parties think that the employer/insurer did provide some medical aid, but they did not have any details.
8. No temporary total disability benefits were paid.

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[^0]: ${ }^{1}$ Attached to the claimant's brief were copies of numerous medical bills. And, scattered throughout his brief were several references to medical bills allegedly paid by the claimant. This information was not provided at the hearing. On June 15, 2009, the employer/insurer filed its Motion to Strike Employee's Brief. The employer/insurer requested that the claimant's entire brief be stricken, or in the alternative, that any portion of the brief relying on facts not in the record be stricken. By order issued July 10, 2009, the administrative law judge granted the motion in part, striking the attachment and all portions of the brief relying on facts not entered into the record.

At the hearing, the parties agreed that the issues to be resolved by this proceeding are as follows:

1. Whether the claimant sustained an accident that arose out of and in the course of employment.
2. Medical causation.
3. Nature and extent of permanent partial disability benefits.
4. Temporary total disability benefits.
5. Liability for unpaid medical expenses.

On behalf of both the claimant and the employer/insurer, the following joint exhibits were entered into evidence without objection:

Exhibit 1 Medical records of Dr. R.W. Sparks

Exhibit 2 Medical records of Dr. Dennis Abernathie/Columbia Orthopedic Group

Exhibit 3 Medical records of NE Missouri Orthopedic Associates, P.C.

Exhibit 4 Medical records of Midwest Bone and Joint Center, P.C.

Exhibit 5 Medical records of Des Peres Hospital

Exhibit 6 Medical report of Dr. Jerome F. Levy

Exhibit 7 Medical records of Advances In Therapy

Exhibit 8 Prescription record from Rider Drug, Inc.

Based on the above exhibits and the testimony presented at the hearing, I make the following findings:

1. The claimant currently works at G-Tech, where he has been employed for about three years. At the time of the alleged injury, the claimant worked for Kraft Foods, where he had been employed for approximately 11 years. On April 26, 2005, the date of the alleged injury, the claimant was working on the flex line filling packaging with bacon. He testified that he reached across the line and then had pain in his back when he straightened up.
2. The claimant has a history of prior back complaints. He previously sought treatment with Dr. Glen Browning on September 27, 2001, with complaints of pain in his low back and aches in his left leg. ${ }^{2}$ An MRI later revealed a very large nucleus pulpous at L5-S1 on the left, which was causing foraminal stenosis and pressure on the root sleeve L5-S1 on the left. The claimant had a series of epidural steroid injections and physical therapy. He eventually was referred to Dr. Abernathie of the Columbia Orthopedic Group, and in January 2002, he underwent a lumbar discectomy. The postoperative diagnosis was herniated disc left L5-S1.

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[^0]: ${ }^{2}$ Exh. 3, page dated 9/27/01.

After the surgery, he went through a course of physical therapy. The claimant was released by Dr. Abernathie on March 5, 2002, and given a rating of 10 % of the body as a whole with no restrictions.

1. At the time of the alleged injury on April 26, 2005, the claimant was working at Kraft Foods (the employer) on the flex line filling packaging with bacon. He testified that approximately half way through his one-hour rotation at this position, he lifted a slab of bacon and reached across the line to fill an opening on the far side of the line when he felt immediate pain upon straightening his back. He continued working that day, but notified his supervisor of the injury at the next break.
2. The employer instructed the claimant to consult with Dr. Robert Sparks, of N.E. Missouri Orthopedic Associates, P.C. He visited this doctor on or about April 28, 2005, at which time he complained of pain running down his left leg and back pain in the thoracic, lumbar, and sacral areas. ${ }^{3}$ According to Dr. Sparks' notes, the claimant reported that he had twisted his lower back on April 26, 2005, and that he has a history of a ruptured disc in his low back, for which he apparently underwent a microdiscectomy. Dr. Sparks diagnosed the claimant with an acute lumbar strain and prescribed Voltaren and Skelaxin with osteopathic manipulative treatment. Dr. Sparks also noted that the claimant could continue on full duty.
3. After two weeks, Dr. Sparks referred the claimant for an MRI of the spine. Dr. Sparks' May 17, 2005 records indicate that the MRI revealed a small central herniated nucleus pulposus at T10-11, and a small left paracentral herniated nucleus pulposus at L5-S1 with some scar and granulation tissue at the L5-S1 level on the right. ${ }^{4}$ Dr. Sparks indicated that his "opinion would be that Aaron really hasn't done anything at work that would cause a ruptured disc" and that he does not think that the claimant's work has been a significant contributing factor. ${ }^{5}$ Dr. Sparks also noted that he feels "that more than likely this is not a work-related problem" but he did indicate that the claimant should be referred to an orthopedic surgeon for further evaluation.
4. On May 19, 2005, the claimant consulted Dr. Christopher Main, a board-certified orthopedic surgeon of Midwest Bone and Joint Center, P.C. Dr. Main diagnosed the claimant with an acute lumbar strain, noting the herniations revealed in the MRI, and sciatica. He indicated that "it is very difficult to correlate his injury pattern with simply twisting and lifting small light weight objects that could have caused his recurrent disc herniation." ${ }^{6}$
5. The claimant followed up with Dr. Main on June 6, 2005. Dr. Main compared the MRI film from 2001 with the claimant's most recent ones. He stated that the MRI films do reveal evidence of a small left paracentral disc herniation, but that the majority of that was encasing scar and granulation tissue from the prior surgery. ${ }^{7}$ Dr. Main further stated that "based on his initial examination as well as his subjective history and work environment, I do not believe that his current symptoms are work-related. My concern would be that this would be

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[^0]: ${ }^{3}$ Exh. 3, page dated 4/28/05.

${ }^{4}$ Exh. 1, page dated 5/17/05.

${ }^{5} Id.

{ }^{6}$ Exh. 4, page dated 5/19/05.

${ }^{7}$ Exh., 4, page dated 6/06/05.

something related to his prior disc herniation." ${ }^{8}$ Dr. Main concluded that the claimant required further treatment for his back, but that his history does not correlate with a disc herniation.

1. The claimant then treated with Dr. Michael Chabot, an orthopedic spine specialist, on July 7, 2005. Dr. Chabot's admitting diagnosis was recurrent disc herniation L5-S1, sciatica, and intractable back pain. ${ }^{9}$ The next day, the claimant received an epidural steroid injection, but reported no significant change or relief. On July 9, 2005, Dr. Chabot performed surgery on the claimant, a decompressive laminectomy with partial facetectomies and foraminotomies, redo of L5-S, posterior lumbar i