Matthew Sisak v. Labor Finders

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-132150

Employee: Matthew Sisak

Employer: Labor Finders

Insurer: Ace American Insurance Company (ESIS)

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

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 December 11, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued December 11, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 28^{\text {th }} \qquad$ day of April 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Issued by the Missouri Division of Workers' Compensation

Employee: Matthew C Sisak

1. Nature and extent of any permanent disability: None awarded.
2. Compensation paid to date for temporary disability: None.
3. Value necessary medical aid paid to date by employer/insurer? None.
4. Value necessary medical aid not furnished by employer/insurer? None Awarded.
5. Employee's average weekly wages: $\ 195.00.
6. Weekly compensation rate: $\ 130.00
7. Method wages computation: By agreement of the parties.

1. Amount of compensation payable: None.
2. Second Injury Fund liability: N/A.

TOTAL: NONE.

1. Future requirements awarded: None.

Employee: Matthew Sisak

Dependents: N/A

Employer: Labor Finders

Additional Party: Treasurer of the State of Missouri as Custodian of the Second Injury Fund (Dismissed)

Insurer: Ace American Insurance Company (ESIS)

Hearing Date: November 2, 2009

Injury No. 06-132150

Before the DIVISION OF WORKERS’ COMPENSATION Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Insurer: Ace American Insurance Company (ESIS)

Hearing Date: November 2, 2009

VRM/db

The parties appeared before the undersigned Administrative Law Judge for a Final Hearing on November 2, 2009, in Springfield, Greene County, Missouri. Matthew C. Sisak, (Claimant) appeared in person and by attorney Randy Alberhasky. Attorney Michael Mayes appeared on behalf of Labor Finders and its insurer, Ace American Insurance Company, (hereafter referenced collectively as Employer). Prior to the start of the proceedings, Claimant moved to voluntarily dismiss the Second Injury Fund. That motion was granted and the Second Injury Fund is dismissed. The Claimant seeks payment of past and future medical bills and Permanent Partial Disability. The parties agreed to the following facts:

1. On April 28, 2006, Labor Finders was an employer operating subject to the Missouri Workers’ Compensation Law.
2. Labor Finders’ liability was fully insured on that date by Ace American Insurance Company.
3. Claimant was working as an employee covered under the Missouri Workers’ Compensation Law on the date of the alleged injury.

Issued by the Missouri Division of Workers' Compensation

Employee: Matthew C Sisak

1. Jurisdiction and venue are appropriate in Springfield, Greene County, Missouri.
2. The claim for compensation was filed within the time prescribed by law.
3. Claimant's rate of compensation is $\ 130.00 per week.

1. Did Claimant sustain an injury by occupational disease/repetitive trauma while working for Employer Labor Finders on April 28, 2006?
2. Was notice provided as required by $\S 287.430$ RSMo?
3. Did Claimant's injuries arise out of and in the course of his employment with Labor Finders?
4. What is the nature and extent of disability?
5. Is Claimant entitled to reimbursement of medical aid in the amount of $\ 29,939.20 ?
6. Is Claimant entitled to future medical treatment?

The following exhibits were offered by Employer and admitted:

1. Deposition of Dr. Ted Lennard

The following exhibits were offered by Claimant and admitted:

A. St. John's Health Center, 78 pages, certified 2/4/2008

B. Doctor's Hospital, 10 pages, certified 10/13/08

C. Dr. Jim Blaine, 16 pages

D. St. John's Clinic, Orthopedic Specialists, 4 pages, certified 5/29/2007

E. St. John's Clinic, Orthopedic Specialists, 18 pages, certified 1/28/2008

F. St. John's Health Center, 167 pages, certified 6/4/2007

Medical Bills

G. St. John's Physicians and Clinics, 11 pages, certified 8/8/2008 (\$14,937.50)

H. St. John's Regional Medical Center, 31 pages, certified 6/26/2008 (\$14,461.70)

Medical Report

I. Dr. P. Brent Koprivica, dated 4/23/2008

1. Addendum, 7/27/2008
2. Addendum, 8/30/2008

[^0]

[^0]: ${ }^{1}$ Any highlighting or marks appearing on the various exhibits were made prior to the exhibits having been admitted into evidence. These marks were not made by the Administrative Law Judge.

1. CV

Additional Documents

J. Claim

K. Answer, Second Injury Fund

L. Answer, Employer/Insurer, Labor Finders

M. Claim, Amended

N. Answer, Employer/Insurer, Labor Finders/ACE USA/EGIS

O. Answer Amended, Employer/Insurer, Labor Finders/ACE USA/EGIS

P. Answer Amended, Employer/Insurer, Labor Finders/ACE USA/EGIS

Q. Claim, Amended

R. Answer Amended, Employer/Insurer, Labor Finders/ACE USA/EGIS

S. Hearing Correspondence

1. Medical Records sent to Counsel, 8/6/2007
2. Letter dated 5/14/2008
3. Billing statements sent to Counsel, 7/18/2008
4. Billing statements sent to Counsel, 8/20/2008
5. Letter dated 9/10/2008
6. Letter dated 9/23/2008

T. Steve Ralston, Employer, Buske Lines, Director of Safety Compliance \& Recruiting Exhibits 1-2

U. Phillip Watts, Employer, Labor Finders, Branch Manager

Exhibits 1-5

V. Dr. Koprivica

Matthew Sisak (Claimant) is 38 years old. Although he attended college, he has no degree. He has worked as a mechanic, in a fast food restaurant, and in a number of maintenance or laborer positions. On April 28, 2006, Claimant was working for Taco Bell, but he also was employed by Labor Finders as a day laborer. Labor Finders, a temporary employment agency, assigned Claimant to work for Buske Lines, Inc. Buske is a warehouse and trucking company. It operates at the Springfield Underground, which is an underground storage facility.

Claimant worked only one day at Buske Lines, Inc. His job on April 28, 2006, was to work with another person loading steel girders onto a box trailer. He performed this task for eight hours, with an intervening lunch break. He would squat to pick up the girder, which he

Estimated weighed a couple hundred pounds. He lifted the girder and placed it on his right shoulder to carry it. It was heavier work than what Claimant typically performed. At the end of the day, he was "sore all over."

Claimant contends that within a few days his soreness had dissipated, except for his shoulder. He contends that he called Tiffany, an office manager at Labor Finders, to report the problems with his shoulder. She purportedly suggested that Claimant was not hurt, and he should get treatment on his own. Claimant also contends he told Phillip Watts, the branch manager of Labor Finders, about his injury within 10 days of the event. Claimant said that Watts refused to file the claim under workers' compensation.

While Tiffany did not testify, Phillip Watts testified by deposition, and flatly denied that Claimant had told him of any injury while working at the Springfield Underground. Watts said either he or Tiffany would have been the individual to have filed a report of injury had Claimant advised Labor Finders of an injury. In fact, Watts noted that Claimant had injured himself on January 10, 2006, while working at Vermillion. A report of injury was made that date by Labor Finders for an injury to the back. Employer sent Claimant for medical treatment for that injury. Attached to Watts' deposition are the sign-in and sign-out sheets for April 28, 2006. The sign-out sheet advises workers that by signing they are stating that they suffered no injury and no accident that date. Claimant signed the sheet, and did not indicate he had suffered any injury.

Watts further testified that Claimant was dispatched to yet another job on May 3, 2006, just five days after the alleged incident at the Springfield Underground. Claimant was dispatched to the Killian Turner job site at the Branson Landing in Branson, Missouri. Claimant said his job at the Branson Landing involved sweeping. Claimant not only performed this job, but he also continued to work for Taco Bell as a line prep cook. He only took off work at Taco

Injury Number: 06-132150

Bell to go to the emergency room in May 2006. In light of the conflicting evidence, I find as not credible, the Claimant's testimony that he advised Tiffany and/or Mr. Watts of an injury within days of the work at the Springfield Underground.

Claimant twice went to the St. Johns emergency room for treatment for a shoulder injury. The first was May 7, 2006, at which time Claimant reported pain for a period of one and one-half weeks, with no known injury. The clinical impression was "Degenerative Rotator cuff." (Exhibit F). Claimant returned for medical care on May 11, 2006. The emergency room record notes that the Claimant "can't remember" the mechanism of injury. Elsewhere in the medical records, the medical care provider circled "repetitive hand use at work" and wrote that the pain started a "month ago." This time, Claimant was diagnosed with a "rotator cuff."

The next medical record is for treatment six months later on November 20, 2006 for low blood sugar. Claimant soug