Claimant asserts he developed an occupational disease from heavy lifting and fast paced work. The Employer contends the statute does not provide a remedy for Claimant's hernia as an occupational disease. Furthermore, the hernia and low back injuries are not medically causally related to Claimant's work based on his prior history.
Claimant has the burden to establish that he sustained an injury by accident arising out of and in the course of employment, and the accident resulted in the alleged injuries. Choate v. Lily Tulip, Inc., 809 S. W. 2d 102, 105 (Mo. App. 1991) (Overruled on other grounds by Hampton v. Big Boy Steel Erection, .121 S.W.3d 220, 223 (Mo banc 2003)). ${ }^{5}$ Section 287.808 requires proof the facts are "more likely true than not true."
Section 287.067 defines "occupational disease" as: An identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.
- An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.
Section 287.195 provides: In all claims for compensation for hernia resulting from injury arising out of and in the course of the employment, it must be definitely proved to the satisfaction of the division or the commission:
(1) That there was an accident or unusual strain resulting in hernia;
(2) That the hernia did not exist prior to the accident or unusual strain resulting in the injury for which compensation is claimed.
I do not find Claimant to be credible. Claimant testified he unloaded four trucks a week, and performed heavy lifting at a fast pace. I find Mr. Henderson's testimony more credible than the Claimant's testimony. Mr. Henderson supervised Claimant during the relevant periods of time. Mr. Henderson's uncontroverted testimony is Claimant never unloaded trucks. Mr. Henderson assigned another employee to unload trucks.
Furthermore, the Claimant did not lift any full boxes of product. The heaviest item Claimant lifted was a 50 pound box of cheese from a larger box. Claimant testified he lifted 70 pounds. Also, Claimant did not inform Mr. Henderson that he needed
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[^0]: ${ }^{5}$ Several cases herein were overruled by the Hampton case on grounds other than those for which the cases are cited. No further reference will be made to Hampton.
surgery for a work related condition.
The Claimant gave conflicting testimony about his prior injuries. On direct examination, Claimant testified he did not have back or abdominal problems before 2008. However, on cross examination, he testified he took himself off work for two weeks in the summer of 2007 for low back problems caused by heavy lifting at work. The Claimant also admitted that he testified during deposition that he took himself off work in the summer of 2007 because "they were playing with him," not because of low back problems.
Also, Claimant denied knowledge of a hernia repair as a child. However, he gave Dr. Brunt a history of hernia repair shortly after birth, which Dr. Brunt diagnosed as a recurrent right-sided hernia in 1998. Dr. Brunt noted "continued enlargement of the hernia over the course of his life." Claimant testified the 1987 hernia repair was on the right side, not the left. However, Claimant gave Dr. Brunt a history of a left sided hernia in 1987.
I find Dr. Cantrell's opinion is more credible than Dr. Poetz's opinion. Dr. Poetz diagnosed an umbilical hernia, but did not address Claimant's weight as a risk factor, despite diagnosing morbid obesity. Dr. Poetz's records do not contain a history of a childhood hernia or a hernia in 1987.
On the other hand, Dr. Cantrell diagnosed abdominal strain and umbilical hernia, but concluded they were not work related based on Claimant's history of multiple prior hernias, as discussed above.
Dr. Cantrell opined Claimant's obesity was a risk factor for the development of an umbilical hernia. He noted Claimant weighed 322 pounds at the time of the surgery in 2008, and stood five feet eleven inches tall.
Also, Dr. Cantrell questioned Claimant's history of lifting boxes one-third to twothirds of the time, given his other work activities.
Dr. Cantrell further opined Claimant's low back problems were not related to Claimant's work activities because they continued after he stopped working. Also, Dr. Cantrell opined Claimant's morbid obesity contributed to his back problems, as evidenced by decreased complaints after he lost weight. Claimant weighed 275 pounds when Dr. Cantrell examined him in 2010, the examination was normal, and Claimant had been asymptomatic for several months.
I find the Employer's interpretation of Section 287.195 is not persuasive. However, based on credible testimony by Dr. Cantrell and Mr. Henderson, medical records and reports, and less than credible testimony by Claimant, I find Claimant failed to prove his work activities were the prevailing factor in the development of an umbilical hernia and back strain. I find Claimant did not sustain an occupational disease. Having found no compensable work injury, all other issues are moot.