Matthew Worth v. West County Physical Medicine

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-104148

Employee: Matthew Worth

Employer: West County Physical Medicine

Insurer: Cincinnati Insurance Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by section 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated November 26, 2010.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of section 287.510 RSMo.

The award and decision of Administrative Law Judge Matthew D. Vacca, issued November 26, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $27^{\text {th }}$ day of April 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

DISSENTING OPINION FILED

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge (ALJ) should be reversed because employee's injury did not arise out of and in the course of his employment.

Employee bears the burden of proof with regard to whether an accident occurred and resulted in an injury to him while working for the employer. McGrath v. Satellite Sprinkler Systems, Inc., 877 S.W.2d 704, 708 (Mo. App. 1994), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). Employee did not satisfy his burden of proof. This case hinges primarily on the credibility of employee and I do not find employee credible.

Employee alleges that he fell off of a ladder on December 18, 2009, while changing a ballast and a light bulb in a fluorescent lighting fixture directly above a treatment table. Employee alleges that he fell to the side onto the treatment table with his arms extended. His right arm allegedly took the brunt of the load and subsequently required surgery. There were no witnesses to this alleged fall.

Employee is a healthcare professional and has treated individuals who were injured at work. Employee has performed case management for insurance companies, attorneys, and worked as an expert witness with respect to personal injury claims. For a new patient interview, employee agreed that he asks his patients when and how their symptoms began and where they hurt themselves. Employee agreed that it is important to know where an individual was hurt, how they were hurt and when their symptoms began when trying to assess whether their current condition is related to an accident.

Employee was first seen for his injury by Dr. Paletta on January 6, 2010. Dr. Paletta's office required employee to prepare a Patient Health Questionnaire as well as a New Patient Intake Form and Authorization of Assignment. With respect to the first document, employee left the answers blank to all of the following questions: 1) "When did the problem begin?"; 2) "How did the problem begin?"; and 3) "Is this a work related injury?"

Employee was asked to advise Dr. Paletta whether he had seen a doctor for his problem prior to seeing Dr. Paletta. Employee answered "yes" and asserted that he had seen Dr. Patt. Employee later admitted that he never saw Dr. Patt regarding his shoulder injury. Dr. Paletta was the first doctor employee treated with regarding his shoulder injury.

During the visit with Dr. Paletta on January 6, 2010, employee gave Dr. Paletta the following verbal history: "His history dates back to approximately December 18. He had an unfortunate episode where he fell off a ladder putting up some Christmas lights." Dr. Paletta's January 6, 2010, medical record indicates as follows: "This note was dictated in front of the patient, and the patient was given the opportunity to address any questions or discrepancies they felt were relevant to the dictation." Employee never

told Dr. Paletta that his January 6, 2010, medical record was not accurately recorded, or that the record needed to be changed because there was no reference to him being at work when he fell while changing a ballast and light bulb in a lighting fixture.

Dr. Paletta testified that employee never provided him with written or verbal history that he fell in his office.

With regard to credibility, one of employee's businesses (Neurology Consultants Midwest) has a website, which includes the name of a doctor (Dr. Michael Larson) whom employee admits is a fake person. In addition, the website refers to employee as a Diplomat of the American Academy of Pain Management and notes that employee is board certified in pain management. However, employee is not a Diplomat to that Academy and is not board certified in pain management.

Employee argues that he fell at work when nobody was there to witness his fall and that the only history regarding his injury in his medical records is false. Employee claims that he neglected to mention his fall was at work because he was concerned about his workers' compensation insurance rates increasing. When viewing the totality of the evidence, it is clear that employee has several credibility issues. In my opinion, the credible evidence establishes that employee was injured while putting up Christmas lights and this is not a compensable work related injury.

For the foregoing reasons, I disagree with the administrative law judge's conclusion that this is a compensable injury. As such, I would reverse the temporary or partial award of the administrative law judge and issue a final award denying compensation.

I respectfully dissent from the decision of the majority of the Commission.

Alice A. Bartlett, Member

Employee: Matthew Worth

Departments: N/A

Employer: West County Physical Medicine

Additional Party: N/A

Insurer: Cincinnati Insurance Company

Hearing Date: September 2, 2010

Injury No.: 09-104148

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDV

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: December 18, 2009
5. State location where accident occurred or occupational disease contracted: St. Louis, 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? Yes
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 happened or occupational disease contracted: N/A
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Parts of body injured by accident or occupational disease: N/A
14. Compensation paid to-date for temporary disability: $\ 0.00
15. Value necessary medical aid paid to date by employer/insurer? $\ 8,236.80
16. Value necessary medical aid not furnished by employer/insurer? $\ 61,488.35

Employee: Matthew Worth

1. Employee's average weekly wages: $\ 1,500.00
2. Weekly compensation rate: $\$ 807.48 / \ 422.97
3. Method wages computation: Agreed

1. Amount of compensation payable:

Unpaid medical expenses:

$\ 61,488.35

Past temporary total disability

$\ 23,301.57

Employer to provide future medical care as per award.

TOTAL:

$\$ 84,789.92 *$

This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

Donna Frayne

Employee: Matthew Worth

Dependents: N/A

Employer: West County Physical Medicine

Additional Party: N/A

Insurer: Cincinnati Insurance Company

Injury No.: 09-104148

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDV

The issues to be resolved at hearing were:

1. Accident;
2. Arising out of and in the course and scope of employment;
3. Medical causation;
4. Future medical care;
5. Liability for past and future temporary total disability; and
6. Liability for past and future medical expenses.

1. Employee is a chiropractor employed by West County Physical Medicine, a company he wholly owns. Employee has duties as a chiropractic physician as well as maintenance duties at the office as the owner. Neurology Consultants Midwest, another company owned by Employee, is also located at 2007 Smizer Station Road, Valley Park, Missouri 63088.
2. On December 18, 2009, Employer had no office hours and the office was closed. Employee was changing a ballast and a light bulb in a fluorescent lighting fixture directly above a treatment table located adjacent to the receptionist area and waiting room at about 10:30 or 11 a.m.
3. Employee used a 6 foot fiberglass ladder and as he attempted to close the plastic cover on the fluorescent lighting fixture, he fell from the second step. The Employee fell to the right

side onto a chiropractic adjustment table and attempted to break his fall by reaching out with his arms.

1. The Employee's right and left arm were extended out but the right arm took the brunt of the load. Employee's arms hit the padded treatment table. Employee's right arm was extended upward and his left arm had actually hit the table and bounced off the table. The ladder did not fall over. Employee knew that he was hurt.
2. Employee stayed at the office for about another 30 minutes and put ice on both shoulders. Employee did not seek any additional care on that day. On Monday, December 21, 2009, Employee returned to his office and provided further self-treatment to his right and left shoulder.
3. On December 31, 2009, Employee saw Dr. Paletta to discuss the seriousness of the injury and the necessity for shoulder repair. Another Doctor of Chiropractic in his office, Dr. L. Patt, ordered an x-ray over the telephone and Employee requested that she order an MRI for his right shoulder. Employee indicated to Dr. Paletta that he had x-rays at Neurology Consultants Midwest on December 30, 2009, but Neurology Consultants Midwest does not own an x-ray machine.
4. Employee reported his workers' compensation claim to Cincinnati Insurance Company via their claims line. Mr. John Cole with Cincinnati Insurance Company advised the Employee that the insurance company wanted him to be evaluated by Dr. Michael Milne for treatment. Employee stated that he had already made an appointment to be evaluated on January 6, 2010 by Dr. George Paletta for treatment.
5. On January 6, 2010, Employee was evaluated by Dr. George Paletta. Dr. Paletta recorded a history that the Employee had a several week history of right shoulder pain dating back to approximately December 18, 2009. The notes say the Employee fell off a ladder putting

up some Christmas lights. He n