Patton Van Hoogstraat v. Gen. Geo. C. Marshall VFW Post 2184

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

The issue commonly designated as "medical causation" is encapsulated in the requirement under paragraph (1) above that "[a]n injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability." After careful consideration, we agree with the administrative law judge's (implied) finding that the opinions from employee's expert, Dr. Gary Sides, are insufficient to satisfy this statutory requirement, for the following reasons.

We acknowledge that minor inconsistencies with regard to the date of injury or history of accident are not necessarily fatal to a claim, especially where "inconsistencies and contradictions in the claimant's testimony [are] either explained by other testimony given by the claimant or there [are] other facts and circumstances in the case from which the Industrial Commission [can] reasonably determine what the true state of facts was and believe the claimant on that basis." Pate v. St. Louis Independent Packing Co., etc., 428 S.W.2d 744, 752-53 (Mo. App. 1968). Here, though, there are so many inconsistencies with respect to the timing, onset, and mechanism of injury, the activities in which employee was engaged at the time, the identity of the coworkers who purportedly witnessed the event, and whether employee continued working after the onset of symptoms, combined with a lack of any comprehensive explanation ${ }^{1}$ for these contradictions, that we simply cannot rely on employee's testimony to determine the correct facts. Likewise, although we are aware there is no requirement under Chapter 287 that the medical treatment records identify employment as the source of injury, Daly v. Powell Distrib., Inc., 328 S.W.3d 254, 259 (Mo. App. 2010), the varying histories contained in the treatment records in this case compound the confusion over when and how employee's hernias manifested.

In light of the foregoing considerations, we find that Dr. Sides's opinions, however valid, rely upon factual assumptions that are not adequately established in the record. ${ }^{2}$ For this reason, we cannot rely on them, and we conclude therefore that the claimed accident of

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[^0]: ${ }^{1}$ Employee advanced the explanation that he didn't know what a hernia was or whether he'd suffered any injury as the reason for his (apparent) delay in seeking medical treatment; and the explanation that he didn't know anything about workers' compensation proceedings as the reason for the discrepancies regarding the date of injury. While not inherently incredible, these explanations from employee fail to resolve the material discrepancies regarding what employee was doing at the time of the claimed injury, who was there, and whether employee finished his shift.

${ }^{2}$ Also, as employer suggests in its brief, Dr. Sides's opinion (even if believed) that employee suffered his hernias in March 2012 would appear to preclude an award of compensation in this claim, owing to the requirement under $\S 287.195$ RSMo that "[I]n 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: ... [t]hat the hernia did not exist prior to the accident or unusual strain resulting in the injury for which compensation is claimed." Again, employee claims herein that his hernias resulted from an accident occurring on or about April 14, 2012; employee does not advance a gradual onset or occupational disease theory of injury.

April 14, 2012, was not the prevailing factor causing the resulting medical conditions of bilateral inguinal hernias, or any disability associated therewith.

The remaining issues are moot, owing to employee's failure to meet his burden with respect to the issue of medical causation. Accordingly, we disclaim the administrative law judge's discussion and analysis with respect to the issue of notice, and whether employee suffered injuries arising out of and in the course of the employment.

On page 1 of his award, in the $2^{\text {nd }} and 3^{\text {rd }}$ numbered paragraphs under the heading "Findings Of Fact And Rulings Of Law," the administrative law judge states that employee suffered an accident or onset of occupational disease, and that his injury or occupational disease was compensable under Chapter 287. These statements are inconsistent with the administrative law judge's ultimate decision and award, and thus appear to have been the product of typographical or clerical errors. In any event, we disclaim these erroneous statements.

On page 4 of his award, in the $1^{\text {st }} sentence of the 12^{\text {th }}$ numbered paragraph, the administrative law judge states: "Claimant offered the deposition of Dr. Russell Cantrell as Exhibit E." We correct the foregoing to read, as follows: "Employer offered the deposition of Dr. Russell Cantrell as Exhibit E."

We affirm and adopt the award of the administrative law judge, as supplemented herein.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued May 4, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $21^{\text {st }}$ day of September 2015.

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? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: Indeterminant
5. State location where accident occurred or occupational disease contracted: St. Louis County (alleged)
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 happened or occupational disease contracted:

Claimant allegedly injured himself moving tables in entertainment hall.

1. Did accident or occupational disease cause death? N/A Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: N/A
3. Nature and extent of any permanent disability: N/A
4. Compensation paid to-date for temporary disability: N/A
5. Value necessary medical aid paid to date by employer/insurer? N/A

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 400.00
3. Weekly compensation rate: $\$ 266.67 / \ 266.67
4. Method wages computation: Stipulation

1. Amount of compensation payable:

None

1. Second Injury Fund liability: None

TOTAL:

-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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: N/A

Employee: Patton H. Van Hoogstraat

Departments: N/A

Employer: Gen. Geo. C Marshall VFW Post 2184

Additional Party: N/A

Insurer: Missouri Employers' Mutual Insurance Co.

Hearing Date: February 3, 2015

Injury No.: 12-030357

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

This case involves a disputed bilateral inguinal hernia injury resulting to Claimant with the reported accident date of May 1, 2012. Employer/Insurer admit Claimant was employed on said date and that any liability is fully insured. The Second Injury Fund ("SIF") is not a party to this claim. Both parties are represented by counsel.

1. Notice;
2. accident;
3. whether injury arose out of and in the course of employment;
4. medical causation;
5. liability for unpaid medical expenses (stipul