Mohamed El Karanchawy v. AED Enterprises d/b/a Dewey's Pizza

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-020510

Employee: Mohamed El Karanchawy

Employer: AED Enterprises d/b/a Dewey's Pizza

Insurer: Acuity Mutual Insurance Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 23, 2011, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Suzette Carlisle, issued December 23, 2011, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 22nd \qquad$ day of May 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., 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 6, 2008
5. State location where accident occurred or occupational disease was contracted: St. Louis County, 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? 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 injured his abdomen and low back when he lifted boxes at work.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Alleged Body as a whole referable to the abdomen and low back
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 453.34

Employee: Mohamed El Karanchawy

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 474.00
3. Weekly compensation rate: $\ 316.00 (Permanent partial disability)
4. Method wages computation: Stipulated

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

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: Joseph Robbins

Employee: Mohamed El Karanchawy

Injury No.: 08-020510

Dependents: N/A

Employer: AED, dba Dewey's Pizza

Additional Party: N/A

Insurer: Acuity Mutual Insurance Company

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: SC

On October 6, 2011, Mohamed El Karanchawy (Claimant) appeared before the undersigned administrative law judge for a hearing for a final award at the Division of Workers' Compensation (DWC). Attorney Joseph Robbins represented the Claimant. Attorney Pat Patterson represented Dewey's Pizza (Employer) and Acuity Mutual Insurance Company (Insurer). ${ }^{1}$ Claimant seeks permanent partial disability (PPD) benefits. Venue is proper and jurisdiction properly lies with the DWC. The record closed after presentation of the evidence. The Second Injury Fund did not participate in the proceeding.

Claimant submitted two separate claims for disposition, 08-020510 and 08-118204. Although separate awards are issued, the body of each award contains similar facts and issues.

The parties stipulated that on or about March 6, 2008:

1. The Claimant was employed by the Employer;
2. The Employer and Claimant operated under the Missouri Workers' Compensation Law; ${ }^{2}$
3. Venue is proper in St. Louis County, located in Missouri;
4. Employer's liability was fully insured;
5. The Employer had notice of the injury;
6. A Claim for Compensation was timely filed;
7. The Claimant's average weekly wage was $\ 474.00 and the rates for temporary total disability(TTD) and PPD were $\ 316.00;
8. The Employer paid no TTD benefits; and
9. The Employer paid medical benefits totaling $\ 453.34

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[^0]: ${ }^{1} Any reference in this award to the Employer also includes the Insurer.

{ }^{2}$ All references in this award are to the 2005 Revised Statutes of Missouri unless otherwise stated.

The parties identified the following issues for disposition:

1. Did Claimant sustain an accident as defined by Section 287.020 .2 in regard to Claimant's abdominal and low back strains?
2. Are Claimant's abdominal and low back strains medically and causally related to his employment?
3. If so, what is the nature and extent of PPD owed by the Employer, if any?

Claimant's Exhibits A through F and Employer's Exhibit 1 through 6 were admitted. ${ }^{3}$ However, a ruling was reserved on Exhibit 5. Any objections contained in the Exhibits but not expressly ruled on in this award are now overruled. To the extent that marks and highlights are contained in the Exhibits they were present before they became a part of this record and were not placed there by the undersigned administrative law judge.

All evidence was reviewed but only evidence which supports this award will be summarized below.

1. Claimant earned a bachelor's degree in art and education. Employer hired Claimant in 2006 as a dishwasher. Claimant testified his duties expanded to include loading and unloading boxes four times a week. He lifted boxes of olives, cheese, and other items that weighed up to 70 pounds each.
2. Claimant testified he developed low back and abdominal pain after he lifted boxes of cheese, food, and containers in December, 2007. Claimant testified a fast paced environment and low salad work stations contributed to his symptoms.
3. On direct examination, Claimant testified he had no problems with his back or abdomen prior to December 2007. However, on cross examination, Claimant testified he had a prior right-sided hernia in 1998 and 1987. Claimant did not remember if he had a hernia as a child. Dr. Brunt's records show he had a hernia repair shortly after birth.
4. Claimant testified on cross-examination that he missed work in the summer of 2007 for low back pain caused by lifting boxes at work. But during his deposition; Claimant testified he missed work in the summer of 2007 because "they were playing games with him." During the hearing, Claimant testified his back problems began in the summer of 2007.

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[^0]: ${ }^{3}$ Claimant's objection to Employer's Exhibit 1C overruled based on Section 287.210.3.

1. Claimant testified he reported low back pain to Tom Boe, the kitchen manager. Mr. Boe suggested he work a different job and manager Eric Cole would be contacted. Claimant testified his request for treatment was denied.
2. Claimant testified his problems developed from a specific event, but did not provide a specific date of injury.
3. After the injury, Claimant continued to have pain and took off work for several months. While working, Claimant developed low back pain which made it difficult to work.
4. In March 2008, Mr. David Justice, the owner, authorized medical treatment at BarnesCare. The physician prescribed pain medication, and a cream for muscle pain. Claimant improved, but his symptoms did not fully resolve.
5. Claimant continued to have back and abdominal pain. He testified that one day in August, 2008, he unloaded a truck and worked the salad station. He lifted boxes of cheese, olives, tomatoes, and artichokes. After lifting the boxes, Claimant experienced increased abdominal pain. He asked for medical treatment, but, Mr. Justice suggested Claimant seek treatment from his private physician, because the condition may not be work related.
6. Claimant informed Judy, Zoe, Justin, and Tom that he planned to go to the emergency room. At the emergency room, Claimant was diagnosed with a hernia.
7. The next day, Claimant informed Mr. Justice that he had a hernia and surgery was required, to which Mr. Justice replied "okay."
8. On September 15, 2008, Dr. Brunt performed a hernia operation. Physical therapy and massage was prescribed. On November 10, 2008, Dr. Brunt returned Claimant to work on light duty.
9. Claimant returned to Dr. Brunt in September 2009 to evaluate the surgical site. Claimant was doing much better but still had pain. However, during Claimant's deposition, he testified he did not have hernia problems.
10. Current complaints include slight abdominal pain but low back pain continues. Claimant uses hot and cold packs as needed.
11. Mr. Jodee Henderson testified on behalf of Employer. Mr. Henderson has worked for Employer for five years as a Kitchen Manager. Mr. Henderson supervised Claimant in 2008.
12. Claimant worked as a prep cook. He cut green peppers and sausage used by other employees during the day. Claimant worked without restrictions.

1. Claimant did not unload trucks. Mr. Henderson assigned a designated person to unload trucks and lift boxes. Claimant never lifted an entire box. The heaviest item Claimant lifted was a 50 pound package of cheese, which he lifted out of a box.
2. Claimant informed Mr. Henderson that he needed time off for "belly button" surgery, but did not say it was related to his work activities.
3. Mr. Henderson received a physician's statement that Claimant could return to work. He called Claimant and informed him he could return to work, but Claimant did not return. Mr. Henderson is unaware of any conversation that transpired between Mr. Justice, Zoe, and Claimant.

1. On March 6, 2008, Claimant gave BarnesCare a history of abdominal and low back pain "after lifting boxes weighing up to 75 pounds today." Claimant reported he works at a fast pace, bends and twists. BarnesCare diagnosed abdominal wall and lumbar sprains, and prescribed medication and ointment, and placed Claimant on light duty. X-rays were poor quality due to Claimant's obesity.
2. On March 13, 2008, Claimant reported improvement, was discharged and returned to full duty.
3. Claimant testified he received additional treatment for his low back from Dr. Tom Leep; however, no records are in evidence.
4. On August 26, 2008, Claimant sought treatment from L. Michael Brunt, M.D. Claimant gave a history of umbilical pain, tightness, and a bulge, which started at work in March 2008.
5. On August 26, 2008, Dr. Brunt described Claimant as "quite obese and needs to lose some weight," at 322 pounds. Dr. Brunt also diagnosed an umbilical hernia and recommended surgery.
6. On October 21, 2008, Dr. Brunt surgically repaired Claimant's umbilical hernia with mesh. Dr. Brunt returned Claimant to limited duty on November 11, 2008, with no lifting over 10 pounds until