David Luka v. Fed Ex Ground

Employee worked for employer as a tech specialist. On July 14, 2010, employee was working with a coworker to repair a conveyor belt at employer's facility. Employee heard a snap and felt a sharp pain in his lower back while pulling the belt. Following the incident, employee walked away and sat down on a bucket. Employee did not report the accident to employer because he was concerned about his job.

On July 15, 2010, employee saw his family physician, Dr. Scott Russell, for a previously scheduled appointment in connection with employee's diabetes. During that appointment, employee told Dr. Russell that he had "possibly" hurt his back at work, but did not provide any details of a specific event. Employee asked Dr. Russell not to mention his low back pain in his chart or medical records, as employee was not sure whether he wanted to pursue workers' compensation benefits. Dr. Russell complied with employee's request and did not mention employee's complaint of a back injury at work. In fact, the note contains no mention whatsoever of low back or radicular pain, and instead contains a diagnosis of peripheral neuropathy of mixed etiology.

Employee testified that his low back condition progressively worsened as he continued to perform his duties for employer, and that his left leg weakened so much that he started limping, but the medical records suggest that employee sought no further treatment for these complaints until September 2, 2010. On that date, Dr. Russell took a history of low back pain with pain radiating into the bilateral buttocks and below the knee. Notably, however, Dr. Russell did not take any history of left leg weakness or limping, and indicated that employee's right-sided symptoms were worse than the left.

The September 2, 2010, treatment record contains no reference to an injury at work. Instead, Dr. Russell indicates that employee had visited an emergency room in connection with a "significant exacerbation" of his back pain. The emergency room records are not in evidence, and Dr. Russell's notes contain no history of what might have occurred on or about September 2, 2010, to cause this exacerbation. Dr. Russell diagnosed lumbar disk disease with radiculopathy and a history of L5-S1 diskectomy, and recommended an MRI and a possible referral to pain management. An MRI of September 13, 2010, revealed degenerative and postsurgical changes at L5-S1, as well as a diffuse disc bulge contributing to bilateral foraminal narrowing and encroaching on the L5 nerve roots within the neural foramen bilaterally, with encroachment on the S1 nerve roots centrally. The MRI also revealed small disc bulges at L3-4 and L4-5.

Beginning September 23, 2010, employee saw Dr. Anthony Eidelman, who performed a series of lumbar injections. Dr. Eidelman's notes suggest employee reported a history of back pain with radiating pain into the right thigh, and that Dr. Eidelman believed employee's pain was referable to lumbosacral spondylosis, facet degenerative changes, and sacroiliac joint arthritis. Employee returned to Dr. Russell on September 30, 2010, complaining of back pain with right leg radicular symptoms that began four to five weeks previously; we note that this would suggest an onset of low back pain sometime in August 2010.

Employee was off work for treatment in connection with his low back pain beginning September 10, 2010. Employee applied for and received short-term disability benefits

through his insurance with employer. Employee attempted to return to work sometime in November 2010, but apparently was only able to work for a day and a half. Employee next attempted to return to work in the first part of December 2010.

On December 3, 2010, employee got into an awkward position while working on a machine called a "whisper sorter" at employer's facility. Employee's low back condition permanently worsened following this event. When employee tried to return to work the following Monday, he found himself struggling to walk because of left leg weakness. Employee made it into the maintenance shop, but was unable to do more than sit on the ground. Employee's manager found him and advised him to go speak with human resources. Employee did so and once again applied for and received short-term disability benefits through his insurance with employer.

On December 6, 2010, employee saw Dr. Paul O'Boynick for low back and bilateral leg pain. Dr. O'Boynick's notes suggest that employee complained that his left leg hurt worse than his right, and that employee told Dr. O'Boynick that he injured himself in July pulling a conveyor belt at work. This is the first reference to a work injury in the medical treatment record. Notably, it does not appear that employee advised Dr. O'Boynick of the incident on December 3, 2010, in which he suffered a permanent worsening of his low back condition.

On January 30, 2011, employee saw a neurosurgeon, Dr. Peter Basta, who noted that employee's symptoms had worsened over the last year, and that the onset correlated with a work injury in July 2010. Dr. Basta recommended employee undergo L3, L4, L5, and S1 laminectomies, with bilateral foraminotomies at L3-4, L4-5, and L5-S1, possible left microdiscectomies on the left at L3-4, L4-5, and possible microdiscectomy at L5-S1.

Employee provides the testimony of Dr. William Hopkins, who evaluated employee on January 19, 2011. At that time, employee reported to Dr. Hopkins that he was performing full-time work, but neither Dr. Hopkins's report nor his testimony reveal where employee was working. We note that this conflicts with employee's testimony at the hearing indicating that, apart from a day and a half in November 2010 and a week or so in early December 2010, he has not been able to perform full-time work since September 2010. We note also that Dr. Hopkins testified that he didn't think employee could work in his present physical condition, despite agreeing, earlier in the same deposition, that employee had told him that he was working full-time.

Dr. Hopkins opined that employee sustained an injury to his lumbar spine while pulling the conveyor belt on July 14, 2010. Dr. Hopkins indicated that employee's primary problems are at L3-4 and L4-5, but he did not specify whether he believed the incident of July 14, 2010, caused these problems. We note that Dr. Hopkins's report suggests that he did not review any records referable to employee's treatment in an emergency room on or about September 2, 2010, for an exacerbation of low back pain. We note also that Dr. Hopkins's report and testimony fails to mention the December 3, 2010, incident, in which employee suffered a permanent worsening of his low back condition.

Employee, in his testimony, admitted that he did not apprise Dr. Hopkins of the December 3, 2010, incident.

Employer provides the testimony of Dr. Alexander Bailey, who diagnosed degenerative disc disease and moderate to severe facet arthrosis at L3 through S1 with a history of a herniated disc excision at L5-S1 with a small recurrent disc herniation at the same level. Dr. Bailey opined that the accident of July 14, 2010, is not the prevailing factor nor a contributing factor causing the employee's diagnosis, and that employee is suffering from an underlying personal medical condition.

After careful consideration, we are not persuaded by employee's evidence on the issue of medical causation. This is because the record reveals multiple potential causes for employee's current low back and lower extremity problems, including employee's 1986 surgery, the conveyor belt incident of July 14, 2010, whatever happened to send employee to the emergency room on or about September 2, 2010, and the whisper sorter incident of December 3, 2010. Particularly in the absence of any records or testimony to establish what happened on or about September 2, 2010, and because we are not convinced that we can reasonably rely on employee's history of events where it is in material conflict with the contemporaneous medical treatment record, we are ultimately not persuaded by Dr. Hopkins's testimony in this matter.

The parties dispute whether employee suffered an "accident," as that term is defined in § 287.020.2 RSMo, which provides, in relevant part, as follows:

The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

We have found that on July 14, 2010, employee was working with a coworker to repair a conveyor belt at employer's facility, and that employee felt a sharp pain in his lower back while pulling the belt. We are convinced that these facts satisfy the foregoing statutory definition, and we conclude therefore that employee suffered an "accident" for purposes of $\S 287.020 .2$.

Section 287.020.3(1) RSMo provides, in relevant part, as follows:

An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined