Robert Taylor v. QuikTrip

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nights, depending on the personnel needs of the particular store. Employee's duties 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 October 30, 2002¹, 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 September 24, 2004, he indicated that the October 2002 incident occurred at employer's store number 168 on Wornall Road, Kansas City, Missouri. Employee did not specify a date but rather listed "October 2002" as the date of accident or occupational disease. On September 18, 2009only 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 October 2002 incident took place at employer's store number 208 on Woods Chapel Road, Lee's Summit, Missouri. Employee's amended claim listed a date of accident or occupational disease of October 30, 2002.

Employee testified that Mr. Jeremy Donnelly, a manager, was present and that employee "fell down right in front of him." Mr. Donnelly's testimony was entered into the record via deposition. Mr. Donnelly testified that he did not remember employee ever stumbling or having difficulty on the step of the cashier's platform. We find the testimony of Mr. Donnelly credible. We find that Mr. Donnelly did not witness employee stumble or fall off the cashier's podium.

After the alleged ankle twisting incident, employee continued to work the rest of the night. Employee did not ask employer for medical treatment. In fact, employee had already been seeing Dr. Raymond Rizzi for right ankle pain at the time of the alleged October 2002 incident (see our Award in the companion case for Injury No. 02-126399). 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 1990.² On November 19, 2002, Dr. Rizzi

¹ At the hearing before the administrative law judge, employee's counsel stipulated an alleged injury date of October 31, 2002. Employee's counsel then took a direct examination from employee referencing an alleged injury date of October 30, 2002. When the administrative law judge issued her award, she made findings referencing an injury date of October 31, 2002.

² 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.

performed surgery to remove some of that hardware. There is no history of a workrelated injury or an ankle-twisting 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 October 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 the 22 separate examinations following the alleged injury date of October 30, 2002. During the entire course of treatment for employee's right ankle condition, Dr. Rizzi never recorded any history of a trip, fall, twisted ankle, or any other history of a work-related injury in October 2002. Employee testified that he believed he told Dr. Rizzi about the alleged October 2002 event. We find employee's testimony lacking in credibility. Dr. Rizzi first saw employee on October 24, 2002. Employee claims he was injured at work a few days later on October 30, 2002. Employee next saw Dr. Rizzi on November 19, 2002, when Dr. Rizzi performed surgery to remove some of the hardware in employee's right ankle. It strains credibility that Dr. Rizzi would fail to note an intervening injury, especially when he was preparing to perform surgery on the right ankle.

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 October 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 October 31, 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 October 30, 2002, is not supported by the records from his primary treating physician or any other medical treatment record in this case. ${ }^{3}$ Employee was the only witness to the alleged fall, as we have found Mr. Donnelly'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 October 2002 event.

We find that employee did not fall or twist his ankle stepping off the cashier's platform at work on October 30 or October 31, 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). This includes the burden of establishing the threshold factual proposition that an injury by accident occurred at work. Clayton v. Langco Tool \& Plastics, Inc., 221 S.W.3d 490, 492-93 (Mo. App. 2007).

We have found employee's testimony regarding the October 2002 incident lacking in credibility. Specifically, we have found that employee did not fall or twist his ankle stepping off the cashier's podium. Our finding is based on our review of the medical treatment records, the credible testimony of Mr. Donnelly, and employee's amending his claim three days before the hearing in this matter to allege an entirely different location of injury. We conclude that employee has failed to meet his burden of proving he sustained an injury by accident at work that is compensable under the Missouri Workers' Compensation Law.

Because we have concluded that the employee did not sustain an injury by accident, the award of the administrative law judge is reversed, and all other issues are moot.

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[^0]: ${ }^{3}$ Employee did provide testimony from his evaluating physicians, Dr. Edward Prostic and Dr. P. Brent Koprivica; both indicated th