Ibro Merajic v. Sheraton Clayton Plaza Hotel

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-053201

Employee: Ibro Merajic

Employer: Sheraton Clayton Plaza Hotel

Insurer: Technology Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Denied)

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 November 16, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Suzette Carlisle, issued November 16, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $5^{\text {th }}$ day of March 2010.

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: Alleged March 16, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Claimant alleged he developed an occupational disease as a result of his work activities for Employer.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

Employee: Ibro Merajic

Injury No.:07-053201

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 297.29
3. Weekly compensation rate: $\$ 198.19 / \ 198.19
4. Method wages computation: Stipulated

1. Amount of compensation payable:

None

1. Second Injury Fund liability:

Denied

TOTAL:

NONE

1. Future requirements awarded: N/A

Said payments to begin 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Lisa Murakami.

Employee: Ibro Merajic

Injury No.: 07-053201

Dependents: N/A

Before the

Employer: Sheraton Clayton Plaza Hotel

Division of Workers'

Department of Labor and Industrial

Relationship: Second Injury Fund (Denied)

Relationship of Missouri

Jefferson City, Missouri

Insurer: Technology Insurance Company

Checked by: SC

A hearing was held at the Missouri Division of Workers’ Compensation (DWC) St. Louis office at the request of Ibro Merajic, (Claimant), on July 23, 2009, pursuant to Section 287.450 RSMo (2005) ${ }^{1}$. Claimant requested treatment or in the alternative, a final award. Attorney Lisa Murakami represented Claimant. Attorney Kenneth Alexander represented Sheraton Clayton Plaza Hotel (Employer) and Technology Insurance Company (Insurer). The Second Injury Fund did not participate but remained opened during the proceeding. The record closed on August 13, 2009 to allow time for submission of Claimant's Exhibit F. Jurisdiction properly lies with the DWC.

Claimant's Exhibits A-F and Employer's Exhibits 1-5 are all admitted without objection. Any notations contained in the records were present when admitted. Any objections raised in the depositions but not addressed in the award are overruled.

The parties stipulated that on or about March 16, 2007;

1. Employee was employed by Employer, in St. Louis County, ${ }^{2}$
2. Employer and Claimant were subject to the Missouri Workers' Compensation Law;
3. Insurer fully insured Employer's liability;
4. A Claim for Compensation was timely filed;
5. Claimant's average weekly wage was $\ 297.29, resulting in a rate of $\ 198.19 for Temporary Total Disability (TTD) and Permanent Partial Disability (PPD); and
6. Employer paid no medical or TTD benefits

The parties presented the following issues for disposition:

1. Did Claimant sustain an occupational disease that arose out of and in the course of employment?
2. Is Claimant's employment the prevailing factor that caused his low back condition?
3. Is the injury medically causally related to a work accident?
4. Is Employer liable for additional medical treatment?

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[^0]: ${ }^{1}$ All references are to the 2005 Revised Statutes of Missouri unless otherwise stated.

${ }^{2}$ References to the Employer also include the Insurer.

1. Is Employer liable for past medical expenses totaling $\ 839.72 ?
2. What is the nature and extent of Claimant's PPD, if any?

Based on credible testimony of Dr. Bernardi, medical records, reports, Claimant's demeanor during the hearing and less than credible evidence by Claimant and Dr. Berkin, I find Claimant did not meet his burden to prove he sustained an occupational disease that arose out of and in the course of his employment activities.

1. Claimant is Bosnian and testified he speaks very little English. Translator Sonja Bakalbasic translated Claimant's testimony.
2. In April 2002, Employer hired Claimant to work in the laundry room of the hotel as a washman. Claimant washed towels and sheets on a full-time basis. Claimant worked with two co-workers and occasional part-time help. Co-employees dried and folded laundry. Claimant last worked on March 17, 2007.
3. Wet towels and sheets were dropped into a shoot. At 8:00 a.m., Claimant opened the door to the shoot and held it open while he placed laundry into boxes on a cart. He picked up laundry from the floor. Claimant placed laundry into four large washing machines. Machines opened at chest level. Claimant testified he washed about 40 loads per day for 40 hours per week.
4. Claimant testified he was required to fill machines to the top. Dry laundry weighed about 50 kilograms and wet laundry weighed 100 to 150 kilograms.
5. While laundry washed, Claimant ironed. He folded laundry when coworkers were absent.
6. Claimant assisted co-employees with the transfer of laundry from washing machines to the dryer. Laundry was placed in a large box, and pushed to the dryer.
7. Three months after Claimant was hired, his co-employees were transferred and he was assigned all the wash duties. Also, he cleaned carpets during slow periods.
8. A year later, Claimant testified he began to refill boxes of detergent, fabric softener, and bleach that weighed about 50 kilograms. He carried boxes about 30 meters. Claimant testified he changed about 20 boxes per week.
9. Claimant trained other employees, who washed laundry while they trained. After workers were trained, they were assigned to fold or iron laundry.
10. Claimant testified his low back pain began prior to March 16, 2007 and gradually increased on March 16, 2007 when he pulled laundry from a washer. Pain started on the left side of his low back and traveled down his leg. He asked co-employees to cover for

him while he took a 10 minute break. But the pain increased and he spoke to his supervisor and human resource representative about seeing a doctor.

1. The supervisor laughed and told him not to worry. The human resource representative said he may need to see a doctor. Claimant testified he requested the name of a doctor and a coworker suggested Dr. Desai.
2. Claimant testified he saw Dr. Desai on one prior occasion, but did not remember the date. Dr. Desai ordered x-rays, prescribed medication, and restricted work to light duty.
3. On cross-examination, Claimant admitted he saw Dr. Desai for back pain on March 8, 2007, a week prior to the alleged lifting accident.
4. Dr. Padda ordered an MRI, and prescribed medication and injections twice a month for 4 months. Claimant testified Dr. Padda recommended surgery after conservative treatment failed, but Claimant declined because Dr. Padda would not guarantee the condition would not get worse. Claimant's last date of back treatment was on August 15, 2007. ${ }^{3}$
5. Claimant testified he has difficulty bending or walking. He has constant back and leg pain, but the back pain is worse. He has leg and back pain with standing, walking and sleeping. His leg feels numbness to his toes 3 to 4 times per day. He is unable to perform physical work, including gardening. His son and son in law assist him with household chores.

1. In 1995, Claimant received abdominal surgery for injuries he sustained in a motorcycle accident. In addition, Claimant sustained a rib fracture in the accident.
2. On May 20, 2004, Claimant gave Dr. Sunny Desai a history of low back pain for several months. No specific injury or trauma was reported, however, Dr. Desai noted Claimant does a lot of lifting at work. X-rays revealed mild degenerative changes at L5-S1 with disc space narrowing and facet joint changes, but no acute abnormality. Dr. Desai diagnosed a low back strain with no radiculopathy. Medication was prescribed and light duty restrictions were imposed for one week.
3. Dr. Desai treated Claimant again on March 8, 2007 for rib and chronic low back pain, but no work injury was reported. Claimant did report a motor vehicle accident in 1995, where he sustained multiple fractures and a splenectomy was performed.
4. Examination revealed lumbar tenderness. Dr. Desai diagnosed low back and rib strains, with no radicular components and prescribed medication. Claimant failed to show for a follow appointment on April 10, 2007.

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[^0]: ${ }^{3}$ Some of Dr. Padda's handwritten records are difficult to read, however, the record contains no evidence that Dr. Padda recommended surgery.

1. On March 22, 2007, Gurpreet Padda, M.D., examined Claimant with pain complaints for one year with pushing and pulling, pain from old rib fractures since 1995, and pain of the abdomen, back, and left leg to the foot.
2. An MRI dated April 2, 2007, revealed a degenerative disc with protrusion and an annular tear at L4-L5, disc degeneration and a posterior disc protrusion or spurring at L5-S1, and mild bulging discs at T3-T4, T5-T6, T6-T7, and T8-T9.
3. Dr. Padda diagnosed lumbar spondylolysis w/o myelopathy, lumbar disc displacement, degenerative disc disease, back pain/lumbago, and lumbar radiculopathy. Dr. Padda took Claimant off work for 3 months and provided select nerve root injections on 4/4/07 and 4/19/07, facet joint injections on 5/2/07 and 5/16/07, and a neurolysis on 5/30/07.

1. Shawn L. Berkin, D.O, is a certified osteopathic physician and a board certified examiner with a family medicine practice. Dr. Berkin performed an Independent Medical Examination (IME) on Sep