Tom Parmeter v. Ramey's Automotive Machine Service

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generated in connection with his treatment for low back complaints in early 2007. We agree with the administrative law judge that these contradictions cast doubt upon employee's testimony regarding the alleged accident. The administrative law judge also summarized the testimony from employee's supervisor Gerard Ramey, and coworkers Rich Morris and Ivan Ramey, who each denied employee reporting or otherwise complaining of a back or groin injury on or about January 16, 2007. We find the testimony from employee's supervisor and coworkers to be credible in this respect. We find that employee did not report or otherwise complain of a back or groin injury to Gerard Ramey, Rich Morris, or Ivan Ramey.

Ultimately, given the foregoing considerations, and in light of the numerous inconsistencies and concerns identified by the administrative law judge, we find employee lacking credibility as to the circumstances of the alleged accident. We find that on or about January 16, 2007, employee did not lean over to pick up an engine head at work and feel a snap in his groin.

Based upon the foregoing, we affirm the award of the administrative law judge with this supplemental opinion. We deny employee's claim because he did not sustain an accident for purposes of the Missouri Workers' Compensation Law.

All other issues are moot.

The award and decision of Administrative Law Judge Kathleen M. Hart, issued December 22, 2011, is attached, affirmed, and incorporated by this reference to the extent it is not inconsistent with our findings, conclusions, and decision herein.

Given at Jefferson City, State of Missouri, this $\qquad 3^{\text {rd }} \qquad$ day of July 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Tom Parmeter

Injury No.: 07-016489

Dependents: $\mathrm{n} / \mathrm{a}$

Before the

Injury to Automotive Machine Service

Additional Party: Second Injury Fund (SIF)

Drivision of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: None

Hearing Date: October 5, 2011

Checked by: KMH

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 January 16, 2007
5. State location where accident occurred or occupational disease was contracted: alleged St. Louis
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? No
7. Did employer receive proper notice? No
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? $\mathrm{n} / \mathrm{a}$
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant alleges he injured his back while lifting at work.
12. Did accident or occupational disease cause death? No Date of death? n/a
13. Part(s) of body injured by accident or occupational disease: alleged low back and body as a whole
14. Nature and extent of any permanent disability: $\mathrm{n} / \mathrm{a}$
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 520.00
3. Weekly compensation rate: $\$ 346.33 / \ 346.33
4. Method wages computation: Stipulation

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

TOTAL:

NONE

1. Future requirements awarded: $\mathrm{n} / \mathrm{a}$

Said payments to begin immediately 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 $\mathrm{n} / \mathrm{a}$ of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Employee: Tom Parmeter

Departments: n/a

Employer: Ramey's Automotive Machine Service

Additional Party: Second Injury Fund (SIF)

Insurer: None

Injury No.: 07-016489

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter October 5, 2011. Tom Parmeter (Claimant) was represented by attorney Mike Korte. Ramey's (Employer) was represented by attorney Devin Sauer. The SIF was represented by Assistant Attorney General Todd Matheny.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award. Any markings on the exhibits were present when admitted into evidence.

Claimant alleges he was injured by accident while in the course and scope of his employment January 16, 2007. Employer is uninsured, and denies Claimant was injured at work.

The parties stipulated to the following:

1. Employer and Claimant were subject to the workers' compensation act on the alleged date of injury.
2. A claim for compensation was timely filed.
3. Claimant's average weekly wage was $\ 520.00, and his rate for TTD and PPD is $\ 346.66.

The parties stipulated the issues to be resolved are as follows:

1. Accident
2. Notice
3. Liability for past medical expenses of $\ 46,516.05.
4. TTD from February 16, 2007 through June 26, 2007.
5. PPD
6. SIF liability for uninsured benefits.

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 56 year-old male who worked for Employer for several years before the alleged date of injury. Claimant testified his duties included tearing down and rebuilding engines, and he lifted up to 90 pounds consistently throughout a work day.
2. Claimant also worked as a junk collector. As a junker, he lifted items of all sizes, even refrigerators, and he wore a belt when lifting. He testified he was not junking as a side job when his back injury occurred.
3. Claimant has a long history of back pain. He testified at trial and in his deposition that his back and entire body hurt before the 2007 injury. His back has bothered him his entire life, but he never had treatment before 2007. His doctor told him he had arthritis, and he has a family history of arthritis in the back. Claimant testified it was common knowledge among his co-workers at Employer that he had back problems. He always wore a back brace or belt while working for Employer.
4. Claimant testified on the alleged date of injury he leaned over to pick up a cylinder head and heard and felt a snap in his groin. He was working alone in the tear down room at the back of the shop when he was injured. No one witnessed his injury. Claimant testified he put the engine head down and told Steve Ramey, his boss and the owner's son, that he was injured. Claimant testified Steve told him to take it easy. Claimant felt numbness in his legs, but continued to work until he could not take the pain any longer. Claimant testified he told Gerry Ramey, the owner, he was going to the hospital. Claimant testified he also told Steve Ramey he was going to the doctor, and Steve told him to do what he had to do. He did not direct Claimant to a specific doctor or hospital.
5. In his deposition, Claimant testified that after Steve Ramey told him to take it easy, he continued working that day, but did not lift. His co-workers, Rich Morris, Dave Ira and Steve Ramey helped him with the lifting. Claimant testified he let everyone know he had been injured. He went home at the end of his shift and returned to work the next two days. His co-workers helped him with his work those days. Claimant testified he told Steve and Gerry that he was hurt, and he kept telling everyone at work that he was hurt, but nobody told him to go to a doctor. He had to insist that he was going to the hospital. Claimant testified on the third day, he told Gerry Ramey he was going to the hospital because he was in too much pain. Claimant testified at trial the last day he worked for Employer was the day after he went to the hospital, so the date of the injury may have been January 21.
6. Claimant testified he had an inhalation injury at work a week before his back injury. He inhaled some gas that was used to dry out cylinder heads. He had difficulty breathing, and thought he developed pneumonia over the weekend. By Monday morning, January 8, 2007, he couldn't breathe and went to the hospital. Claimant agreed the January 8, 2007, St. John's hospitalization was not related to his back injury. Claimant had not injured his

back at that point, and had no back complaints at the time of this hospitalization. The hospital records note a history of chronic back pain with no current leg pain, numbness or tingling. Claimant's only treatment on this date related to his breathing difficulties.

1. Payroll records indicate the last date Claimant worked at Employer was January 11, 2007. Claimant identified Exhibit 2 as his time card and check stub. The check is dated January 18, 2007 and covered work for January 5, 9, 10, and 11. Claimant did not remember if th