Rizo Sadic v. SEMCO Plastic Company, Inc.

Again, as noted above, employee is claiming herein compensation for an injury by accident or occupational disease occurring or culminating on September 17, 2010.

With regard to the issue of occupational disease, we disagree with the administrative law judge's conclusion that a hernia can never be compensable as an occupational disease under the Missouri Workers' Compensation Law. The administrative law judge reached this conclusion based on an assumption that the legislature intended § 287.195 to govern all claims for hernias. But the plain language of that section makes clear that it only applies to "all claims for compensation for hernia resulting from injury arising out of and in the course of the employment" (emphasis added). The definition of "injury" under § 287.020.3(5) RSMo explicitly excludes, except as specifically provided under Chapter 287, occupational diseases. It logically follows (and we so conclude) that $\S 287.195$ does not prevent an employee from claiming (and proving) a compensable hernia resulting from occupational disease under § 287.067 RSMo.

However, two identifiable traumatic events at work do not constitute convincing evidence of a compensable occupational disease in this case. This is because the record does not contain persuasive medical evidence that would support a finding that the day-to-day performance of employee's job duties caused a change in pathology; the medical treatment records contain no references to employee's job duties, and Dr. Musich's nonspecific references to employee's work as a machine operator are not enough, in our view, to satisfy employee's burden of proof on the issue of medical causation of an occupational disease.

Ultimately, we believe employee probably sustained a hernia as a result of an accidental injury at work at some uncertain time in late 2009, but given the scope of the issues identified by the parties, as well as the record we have been provided, such an injury is not compensable under this pending claim.

We affirm and adopt the award of the administrative law judge to the extent it is not inconsistent with our supplemental findings, analysis, and conclusions herein.

The award and decision of Administrative Law Judge John K. Ottenad, issued July 14, 2014, is attached and incorporated by this reference

Given at Jefferson City, State of Missouri, this $5^{\text {th }}$ day of December 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

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) September 17, 2010
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 was employed as a machine operator for Employer and allegedly suffered a hernia due to his work activities.
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) Body as a Whole-Hernia
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

Employee: Rizo Sadic

1. Value necessary medical aid not furnished by employer/insurer? $\ 16,090.96
2. Employee's average weekly wages: $\ 405.00
3. Weekly compensation rate: $\ 270.00 for TTD/\$270.00 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

Claim denied pursuant to Mo. Rev. Stat. § 287.195

1. Second Injury Fund liability:

Voluntarily dismissed by Claimant on the record at the time of trial

TOTAL: $\mathbf{\$ 0 . 0 0}$

1. Future requirements awarded: N/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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mr. Frank J. Niesen

Employee: Rizo Sadic

Departments: N/A

Employer: SEMCO Plastic Company, Inc.

Additional Party: Second Injury Fund (Dismissed)

Insurer: Travelers Indemnity Company of America

Injury No.: 10-096313

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On February 25, 2014, the employee, Rizo Sadic, appeared in person and by his attorney, Mr. Frank J. Niesen, for a hearing for a final award on his Claim against his employer, SEMCO Plastic Company, Inc., and its insurer, Travelers Indemnity Company of America. The employer, SEMCO Plastic Company, Inc., and its insurer, Travelers Indemnity Company of America, were represented at the hearing by their attorney, Mr. Robert W. Frayne.

To allow the parties time to prepare and file their proposed awards or briefs in this matter, the record did not technically close until March 27, 2014. Although we did not go back on the record or take any further evidence in this matter after February 25, 2014, the record was, then, closed on that date and the briefs were submitted by the parties by March 28, 2014.

At the beginning of the hearing, Claimant voluntarily dismissed his Second Injury Fund Claim on the record, thus, eliminating the need for the Second Injury Fund to participate in these proceedings. The parties also agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about September 17, 2010, Rizo Sadic (Claimant) allegedly sustained an accidental injury and/or occupational disease.

2) Claimant was an employee of SEMCO Plastic Company, Inc. (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage of $\ 405.00, resulting in applicable rates of compensation of $\ 270.00 for total disability benefits and $\ 270.00 for permanent partial disability benefits.

7) Employer has not paid any benefits to date.

1) Did Claimant sustain an accidental injury and/or occupational disease?

2) Did the alleged accident and/or occupational disease arise out of and in the course of Claimant's employment for Employer?

3) Are Claimant's injuries and continuing complaints, as well as any resultant disability, medically causally related to his alleged accident and/or occupational disease at work for Employer?

4) Is Employer responsible for the payment of the past medical expenses in the stipulated amount of $\ 16,090.96 ?

5) Is Claimant entitled to collect temporary total disability (TTD) benefits for a period of 9 $4 / 7$ weeks, from September 18, 2010 through November 23, 2010?

6) What is the nature and extent of Claimant's permanent partial disability attributable to this alleged work injury?

The following exhibits were admitted into evidence:

A. Deposition of Dr. Thomas Musich, with attachments, dated June 25, 2013

B. Certified medical treatment records of Barnes-Jewish Hospital

C. Withdrawn by Employee prior to admission

D. Certified medical treatment records of Washington University

E. Certified medical bills of Barnes-Jewish Hospital

F. Certified medical bills of Wa