Decision date: November 4, 2010Injury #02-12639921 pages
Summary
The Missouri LIRC reversed the administrative law judge's award that found the employee sustained a compensable right ankle injury on September 30, 2002, while working as an extra relief person at QuikTrip. The Commission determined that the employee failed to prove he sustained a compensable injury and did not provide proper written notice as required by statute.
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| FINAL AWARD DENYING COMPENSATION (Reversing Award and Decision of Administrative Law Judge) |
| Employee: | Robert Taylor |
| Employer: | QuikTrip |
| Insurer: | QuikTrip Corporation, Self-Insured |
| 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. We have reviewed the evidence, read the briefs, heard the parties’ arguments, and considered the whole record. Pursuant to section 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge dated November 6, 2009. | |
| Preliminaries | |
| The issues at the hearing were whether employee sustained an injury by accident arising out of and in the course of employment; whether employee provided notice to employer in accordance with the requirements of section 287.420 RSMo; whether employee is entitled to temporary total disability benefits from October 31, 2002 through December 30, 2002; whether employee is entitled to reimbursement of medical expenses totaling $27,488.32; whether employee is entitled to future medical care; whether employee sustained any disability, and if so, the nature and extent of disability; and medical causation.The administrative law judge determined and concluded that employee sustained an injury due to an accident arising out of and in the course of employment on September 30, 2002; that employer had notice of employee’s injury within thirty days and that the requirements of section 287.420 were satisfied; that employee is entitled to temporary total disability benefits from November 18, 2002 through December 30, 2002; that employee is not entitled to reimbursement for his self-directed past medical treatment; that employee is not entitled to future medical care from employer; that employee suffered a 5% permanent partial disability of the right ankle; and that the 5% permanent partial disability of the right ankle was caused by the accident of September 30, 2002.Employer submitted a timely Application for Review with the Commission alleging that the award issued by the administrative law judge was erroneous because the overwhelming evidence demonstrated that employee failed to prove he sustained a compensable injury on September 30, 2002; and because employee failed to provide proper written notice of the injury as required by section 287.420 RSMo.For the reasons set forth in this award and decision, the Commission reverses the award of the administrative law judge. | |
| Findings of Fact | |
| Employee started working for employer in November 2001. Employee worked as an extra relief person (ERP). As an ERP, employee worked in different stores on different nights, depending on the personnel needs of the particular store. Employee’s duties |
Injury No.: 02-126399
Employee: Robert Taylor
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included running a cash register, stocking products on shelves, stocking the beverage coolers, stocking cups and lids for the fountain drink area, making coffee, cleaning the Smoothie machine, cleaning the bathrooms, mopping the store, emptying trash cans, power washing the parking lot, and assorted other duties. Employee was on his feet the entire time he was at work.
The cash register area in each of employer's stores rests on a platform approximately six inches above floor level. To enter or exit the cashier's platform, employees traverse a single step. Employee claims that on September 30, 2002, he was going to check the coffee line when he stepped off the cashier's platform and twisted his right ankle and fell to the ground.
When employee filed his initial claim for compensation on May 3, 2004, he indicated that the September 30, 2002, incident occurred at employer's store number 208 at 800 N.E. Woods Chapel Road in Lee's Summit, Missouri. On September 18, 2009-only three days before the September 21, 2009, hearing in this matter-employee amended his claim for compensation to change the location where the alleged incident occurred. Employee's amended claim, and his testimony at the hearing, indicated that the September 30, 2002, incident took place at employer's store number 168 at 10232 Wornall Road in Kansas City, Missouri.
Employee testified that Mr. Kevin Bergman, a manager, was present on September 30, 2002, and witnessed employee fall. Mr. Bergman's testimony was entered into the record via deposition. Mr. Bergman denied witnessing employee trip or stumble off the cashier's platform. Mr. Bergman did recall seeing employee sitting on the step that led up to the platform. Mr. Bergman testified that he went over and asked employee if he was all right. Mr. Bergman testified that employee told him he would be all right in a minute, and that employee never complained of falling down or anything like that. Mr. Bergman testified that he had no personal knowledge of employee tripping, slipping, falling, or injuring his ankle in any way while working for employer. We find the testimony of Mr. Bergman credible. We find that Mr. Bergman did not witness employee trip or stumble off the cashier's podium. We find that employee did not tell Mr. Bergman that he fell.
After the alleged ankle twisting incident, employee continued to work the rest of the night on September 30, 2002, without reporting an injury to anyone. Employee also worked the rest of September and October 2002 without reporting an injury or asking employer for medical treatment. At some point, employer's workers' compensation adjuster, Ms. Amy Enright, became aware there was an alleged incident, because she called employee to take a recorded statement on October 29, 2002. In that statement, employee indicated that he thought he twisted his ankle while working at store number 168 approximately a month earlier, although he was not sure when it happened. Employee did not try to file an actual report of injury with employer until November 7, 2002.
Employee never asked employer for medical treatment in 2002. In October 2002, employee sought treatment on his own for right ankle pain. Employee went to Jackson County Orthopedics and saw Dr. Downs, who sent him to Dr. Raymond Rizzi on October 24, 2002. Dr. Rizzi's notes from the initial examination contain the following description of employee's complaints: "He states he gets up in the morning and he has
no pain but as the day goes on he has increased pain. This has happened for the last 4-5 years but lately he has pain when he first gets up and is very stiff." There is no mention of a work-related injury or an ankle-twisting incident in Dr. Rizzi's notes from the initial examination on October 24, 2002.
Dr. Rizzi determined that employee's problems were related to loosening of hardware in employee's right ankle connected with an extensive surgery following an injury sustained in a motor vehicle accident in 1990. ${ }^{1}$ On November 19, 2002, Dr. Rizzi performed surgery to remove some of that hardware. There is no history of a work-related injury or an ankletwisting incident contained in the notes from the surgery. Instead, the records reference the 1990 motor vehicle accident and surgery and indicate employee has been having increasing pain over the last few years.
After the surgery, employee saw Dr. Rizzi for follow-up on November 26, 2002, December 5, 2002, December 12, 2002, December 16, 2002, and December 30, 2002. Dr. Rizzi's treatment notes from each of the aforementioned visits contain no mention of a work-related injury or an ankle-twisting incident in September 2002. The notes from the December 16, 2002, visit contain the following observation: "new complaint of pain in posterior aspect of [employee's] right ankle ... [employee] states he did not notice anything he was doing that caused this, he just woke up with a lot of pain in his ankle area."
Employee never asked employer for medical treatment in 2003. Employee resumed intermittent treatment with Dr. Rizzi for right ankle complaints on May 30, 2003. Employee saw Dr. Rizzi again on August 29, 2003, October 23, 2003, January 15, 2004, January 30, 2004 and February 23, 2004. On February 25, 2004, Dr. Rizzi performed a debridement and distraction of the right ankle with external fixator. Employee saw Dr. Rizzi for follow-up on March 5, 2004 and March 12, 2004. On March 14, 2004, Dr. Rizzi removed the external fixator. Employee saw Dr. Daniel Geha on March 25, 2004, for an infection employee developed following the surgery. Employee continued to follow up with Dr. Rizzi with visits on March 19, 2004, March 23, 2004, March 30, 2004, April 8, 2004 and April 21, 2004.
We have carefully reviewed Dr. Rizzi's notes from no less than 23 separate examinations. During the entire course of treatment for employee's right ankle condition from October 24, 2002, until April 21, 2004, Dr. Rizzi never recorded any history of a trip, fall, twisted ankle, or any other history of a work-related injury in September 2002. Employee testified that he believes he did tell Dr. Rizzi about the alleged fall. We find employee's testimony lacking in credibility. Dr. Rizzi provided ongoing treatment for approximately a year and a half and performed multiple surgeries on employee's right ankle. We find it unlikely that any doctor who provided such extensive treatment in connection with employee's right ankle condition would overlook or ignore the alleged fall in September 2002, if employee had reported it.
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[^0]: ${ }^{1}$ Employee injured his right ankle in a motor vehicle accident in 1990. Employee suffered a comminuted intra-articular fracture and dislocation of the right ankle. On October 5, 1990, employee underwent an open reduction and internal fixation, including repair of the posterior tibialis tendon, repair of the anterior and posterior tibiofibular ligaments, and curettement of an osteochondral fracture of the lateral talar dome.
Employee also sought treatment for various complaints in 2005 at the Kansas City Veteran's Administration Hospital. None of these treatment records contain any mention of a work-related injury or ankle-twisting incident in September 2002-although they do contain references to the 1990 motor vehicle accident and surgery.
The administrative law judge found employee a credible witness and found that he fell and injured his right ankle on September 30, 2002, when he stepped down from the cashier's platform. We disagree with the credibility determination of the administrative law judge.
Employee's testimony that he fell and twisted his ankle on September 30, 2002, is not supported by the records from his primary treating physician or any other medical treatment record in this case. ${ }^{2}$ Employee was the only witness to the alleged fall, as we have found Mr. Bergman's denial that he witnessed the fall to be credible. We are also concerned that employee changed his theory as to the location of the alleged fall nearly five years after he filed his initial claim for compensation. Given the foregoing factors, we are not persuaded by employee's testimony regarding the alleged September 2002 event.
We find that employee did not fall or twist his ankle stepping off the cashier's platform at work on September 30, 2002.
Under the Missouri Workers' Compensation Law, employers are liable to furnish compensation when an employee sustains personal injury by accident arising out of and in the course of employment. Section 287.120.1 RSMo states, in pertinent part:
Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment ...
It is employee's burden to prove all of the elements of his claim to a reasonable probability. Cooper v. Medical Ctr. of Independence, 955 S.W.2d 570, 575 (Mo. App. 1997
Full decision text continues in the plain-text archive copy.
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