Romero Grayson v. Thorne & Son Asphalt Paving Co.

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No.: 15-089660

Employee: Romero Grayson

Employer: Thorne \& Son Asphalt Paving Co.

Insurer: General Casualty Co. of Wisconsin

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to $\S 286.090$ RSMo, we affirm the award and decision of the administrative law judge (ALJ) with this supplemental opinion.

The threshold issue in this case is whether the employee's September 25, 2015, injury arose out of and in the course of his employment. ${ }^{1}$

The ALJ determined that at the time of his alleged injury on September 25, 2015, the employee was engaged in voluntary horseplay that was neither commonplace in the workplace nor condoned by employer. The ALJ therefore concluded that employee did not sustain an injury arising out of and in the course of his employment. We essentially agree with the administrative law judge's analysis. However, we note that case law relating to horseplay cited in the ALJ's award was legislatively abrogated by the 2005 enactment of $\S 287.020 .10 RSMo. { }^{2}$ Although reasoning in these cases may remain instructive, it cannot be relied upon.

Instead, the facts in this particular case must be analyzed by the application of the test set out in § 287.020.3(2):

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[^0]: ${ }^{1}$ In his brief to the Commission employee's attorney raises for the first time the issue of timeliness of employer's answer to the claim for compensation. The Division of Worker's Compensation acknowledged receipt of the employee's claim for Injury No. 15-089660 on November 20, 2015. Employer's answer was received on December 31, 2015, forty-one days later. Citing the thirty-day time period cited in 8 CSR 50-2.010(8)(B) and Lumbard-Bock v. Winchell's Donut Shop, 939 S.W. 2d 456 (Mo. App. 1996) employee argues that all facts cited in employee's claim must be deemed admitted.

We take administrative notice of Division records showing an earlier claim for compensation arising out of this injury acknowledged on November 16, 2015. The Division received employer's answer to that claim, designated number 15-077133, on November 30, 2015. We consider employer's November 30, 2015, answer as timely vis á vis both claims. We note that employer's later-filed answer cited no additional or different reasons for disputing employee's claim.

We further find that by failing to raise the issue of timeliness of employer's answer at the time of the ALJ's hearing, employee's attorney signified by his conduct and the manner in which he proceeded there was no issue relating to timeliness of employer's answer and thereby waived the issue. Dorothy Lawson v. Emerson Electric Company, 809 S.W.2d 121 (Mo. App. 1991).

${ }^{2}$ McMillin v. Payless Cashways, Inc., 897 S.W.2d 661 (Mo. App. 1995); Peet v. Garner Oil Co., 492 S.W.2d 103 (Mo. App. 1973).

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.

As we have found, the risk source of the employee's injury in this case was employee's own voluntary consent to horseplay that was neither commonplace at work nor condoned by employer. Because the risk source of employee's injury was personal and did not arise out of the work or the workplace, his injury is not compensable. ${ }^{3}$

As we have found, this claim must be denied because the employee failed to meet his burden of proving that his injury arose out of the work or the workplace. Because we have ruled that the employee's injury is not compensable, the issue of medical causation is moot. We therefore disavow the ALJ's additional findings regarding medical causation.

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

The award and decision of Administrative Law Judge Mark Siedlik, issued September 23, 2016, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 18^{\text {th }} \qquad$ day of April 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

[^0]

[^0]: ${ }^{3}$ Miller v. Missouri Highway and Transportation Commission, 287 S.W.3d 671 (Mo. 2009); Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012).

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 occupation under the Law? No
4. Date of alleged accident or onset of occupation disease: September 25, 2015
5. State location where alleged accident occurred or occupational disease was contracted: Raytown, Jackson County, Missouri
6. Was above employee in employ of above employer at time of allege 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: Employee was preparing to lay asphalt when he began wrestling with a coworker. The two men fell to the ground and Employee landed on his right shoulder.
12. Did accident or occupational disease cause death? No

Issued by the Division of Workers' Compensation

Employee: Romero Grayson

Injury No. 15-089660

1. Part(s) of body injured by accident or occupation disease: Right Shoulder
2. Nature and extent of any permanent disability: N/A
3. Compensation paid to-date for temporary disability: None
4. Value necessary medical aid paid to date by employer/insurer? None
5. Value necessary medical aid not furnished by employer/insurer? unknown
6. Employee's average weekly wage: $\ 1,225.94
7. Weekly permanent partial disability compensation rate: $\ 464.58
8. Second Injury Fund liability: No
9. Future Medical treatment awarded: N/A

The above referenced workers’ compensation claim was heard before the undersigned Administrative Law Judge on August 2, 2016 pursuant to Employee’s request for a Hardship Hearing to obtain authorization of medical treatment, attendant temporary total disability benefits, reimbursement of out of pocket medical expenses \& payment of medical expenses incurred under this denied claim. All other issues were reserved pending further hearing and Final Award. The parties were afforded the opportunity to submit Proposed Awards, resulting in the record being completed and submitted on August 27, 2016. The employee, Romero Grayson, appeared personally and through counsel, Zachary A. Kolich. The employer, Thorne \& Son Asphalt Paving Co., and its insurer, General Casualty Co. of Wisconsin, appeared through counsel Daniel J. Lobdell.

The parties entered into the following stipulations at trial:

1. Employer was operating under and subject to the provisions of the Missouri Workers’ Compensation Act and liability was fully insured by General Casualty Co. of Wisconsin.
2. An employer/employee relationship existed between Employee and Employer on September 25, 2015.
3. Employer received timely notice of Employee’s accident.
4. Employee’s claim was filed within the time allowed by law.
5. Compensation rates are $\ 817.29 for temporary total disability compensation and $\ 464.58 for permanent partial disability compensation.

The issues to be resolved in these proceedings are:

1. Whether Employee met with personal injury by accident arising out of and in the course of his employment on September 25, 2015;
2. Whether Employee's medical condition, need for treatment, and disability are causally related to the alleged work accident;
3. Whether Employer must provide medical treatment to cure and relieve Employee's right shoulder complaints; and
4. Whether Employer must provide temporary total disability benefits.

The following exhibits were offered by the Claimant and admitted into evidence:

Claimant's Exhibit A - Report of Dr. Michael Poppa dated 11/17/15

Claimant's Exhibit B - Curriculum vitae of Dr. Michael Poppa

Claimant's Exhibit C - RAMIC Independence MRI report dated 12/2/14

Claimant's Exhibit D -- Veteran Affairs MRI report dated 10/19/15

The following exhibits were offered by the Employer and Insurer and admitted into evidence.

Employer/Insurer's Exhibit No. 1 -- 60 day letter of Department for the Veterans Administration Medical Center dated April 12, 2016

Employer/Insurer's Exhibit No. 2 -- Deposition of John Benedetti dated 6/21/16

Employer/Insurer's Exhibit No. 3 -- Deposition of Kurtis Simms dated 6/21/16

Employer/Insurer's Exhibit No. 4 -- Deposition of Kerry Mozee dated 6/21/16

Employer/Insurer's Exhibit No. 5 - Deposition of Josh Crumet dated 6/21/16

Employer/Insurer's Exhibit No. 6 -- Deposition of Jose Fernandez dated 6/21/16

Employee is a 57-year-old man who began working for Employer in March or April of 2015. His primary job responsibility was to rake asphalt evenly so that it could be rolled over by heavy equipment. On September 25, 2015, Employee was at a job site near $120^{\text {th }}$ and Wornall Street in Kansas City, Missouri. Employee and his co-workers arrived at 7:00 a.m. to prepare the equipment for the remainder of the day. The asphalt was to be delivered at 8:00 a.m. Shortly

before the asphalt arrived, Employee began wrestling with one of his coworkers, Jose Fernandez. During the grappling, the two men fell to the ground and Employee landed on his right shoulder. He testified that he felt immediate pain and numbness in his right arm from the shoulder to the elbow. After the incident, Employee attempted to continue to work but was eventually forced to stop and seek medical treatment.

Employee contends that the wrestling and subsequent fall were an unprovoked attack by Mr. Fernandez. Conversely, Employer argues that Employee was a voluntary participant in the wrestling, which constituted impermissible horseplay on the jobsite. Employer further contends that Employee was suffering from a significant, pre-existing right shoulder injury at the time of the accident. Accordingly, Employer asserts the prevailing factor for Employee's right shoulder complaints, need for treatment, and resulting impairment, was this pre-existing condition.

Employee testified at the Hardship Hearing that the injury occurred on an otherwise normal day. He stated that while getting prepared for the day his co-worker, Jose Fernandez, started harassing him. Then, without warning, Mr. Fernandez grabbed him from behind in a bear hug. The two men fell to the ground immediately thereafter and Employee landed on his right shoulder. Mr. Fernandez landed on top of him. He stated nothing provoked the attack, and he was unsure why he had been tackled. However, he testified that Mr. Fernandez would routinely harass him and had physically assaulted him when the two were working together in 2004.

Employee specifically denied being a voluntary participant in the altercation on September 25, 2015. He stated Mr. Fernandez acted in an aggressive manner and was in no way playful. Employee also testified that he was never asked to wrestle and did not ask Mr. Fernandez to wrestle. Employee conceded that he did not file a police report or otherwise report the assault he described.

Employee testified that immediately after the accident his right arm was numb from his shoulder to his elbow. He could not reach his arm up or out and was having pain symptoms throughout his right arm. Employee testified that he told his supervisor, John Benedetti, and the owner, Mr. Thorne, that he got into an altercation with Mr. Fernandez. According to Employee, Mr. Benedetti offered to send him to the hospital but he initially declined. However, after trying to work for about 20 minutes Employee said he could not continue and responded to the VA Hospital to seek treatment for his right shoulder.

Employee testified that he worked part-time as a cook at a nursing home from the middle of February through the end of March 2016. He has otherwise been off of work since the incident occurred on September 25, 2015.

A number of Employee's co-workers were present on the date of the accident and completed contemporaneous, written statements describing their observations. The depositions of several of these coworkers were taken and the written statements were admitted as exhibits.

John Benedetti testified at the Hardship Hearing and at an evidentiary deposition. Mr. Benedetti testified that he was a supervisor for Thorne \& Son's on September 25, 2015 and was present at the jobsite with Employee on that date. He confirmed that the crew arrived at the jobsite at approximately 7:00 a.m. to prepare the equipment for the asphalt delivery at 8:00 a.m.

Mr. Benedetti stated he was moving a piece of equipment around the block when the wrestling occurred, but was asked if he saw what happened as soon as he got back. It was then explained to him that Jose Fernandez and Employee were wrestling. He talked to both men about the incident, and both confirmed that they were wrestling around on the ground and Mr. Fernandez ended up on top.

Mr. Benedetti indicated he got a little heated with the two men because he does not condone that behavior on the jobsite. When asked for clarification on his policies, Mr. Benedetti testified that he has a hands-off policy and does not allow for horseplay. He conceded that occasionally workers would knock off each other's hard hats or throw water on each other, but he discouraged that behavior and told his employees to act professionally. Mr. Benedetti stated that prior to September 25, 2015, he had never had to deal with employees wrestling or fighting, but it was understood that that behavior was not allowed.

When asked about his perception of the alleged accident, Mr. Benedetti testified that it was his understanding that it was playful fun that was taken too far. He came to this conclusion based upon his conversations with the involved parties after the incident. Mr. Benedetti specifically testified that during his conversation with Employee, there was no mention of an assault or an attack of any kind. He also noted that he was not aware of any animosity between Employee and Mr. Fernandez before or after the alleged accident. The two men worked together for a short time after the wrestling, before Employee left to seek treatment. Finally, Mr. Benedetti noted anecdotally that in his experience, if an argument or fight is going to occur, it generally happens towards the end of the day when everyone is hot and tired. This incident occurred in the morning before any heavy work had been done, when the employees generally joke around with one another.

Mr. Benedetti also testified that he was aware of an injury to Employee's right upper extremity that predated his employment with Employer. Shortly after Employee started, he missed work to attend a doctor's appointment at the VA Hospital. When Mr. Benedetti asked him about the visit, Employee held up his arms to show that his right bicep was hanging considerably lower than his left arm. Employee informed him that he had a tear but it was unrelated to his work.

Jose Fernandez, the other participant in the wrestling, testified at an evidentiary deposition and completed a written statement. He confirmed he was working for Employer September 25, 2015. That morning, they were working on paving a trail in a park. They arrived at 7:00 a.m. to fuel up the equipment and wait for the asphalt. Mr. Fernandez testified that approximately 15 minutes before the asphalt got there, Employee asked him if he wanted to wrestle. He agreed, and the two men began grappling.

Shortly after they started grappling, the two men tripped and fell to the ground. Mr. Fernandez indicated both men got to their feet immediately and that was the end of it. They started working as usual a short time later when the asphalt arrived. Mr. Fernandez stated the nature of their respective jobs meant they worked side by side. Employee would rake and shovel the asphalt while Mr. Fernandez rolled it. After the accident they had normal conversation and there were no ongoing arguments or disputes.

Mr. Fernandez stated there was nothing aggressive about the encounter, and there was no bad blood or animosity between him and Employee. He stated it was not out of the ordinary for the employees to goof off in the mornings. He elaborated by describing throwing pebbles at one another, taking each other's glasses, and dog piling each other. Mr. Fernandez indicated Employee had wrestled others in the past. When asked whether the supervisors were aware of, or allowed this behavior, Mr. Fernandez testified that they did not. He stated the employees would be reprimanded if they were caught messing around.

Mr. Fernandez was asked about a prior incident in in 2004 in which he allegedly tripped Employee into hot asphalt. Mr. Fernandez stated he could not remember such an incident. He was also asked if he tried to block Employee from being re-hired in early 2015. Mr. Fernandez denied this allegation and testified that he told his employer that they could use Employee.

Josh Crumet testified at an evidentiary deposition that he is a skilled laborer for Employer. He stated he worked with Employee and knew him as "Mike" or "Cuban." He was present on September 25, 2015 and was operating a piece of equipment at the time of the alleged accident. Mr. Crumet testified that he turned around and saw Employee and Mr. Fernandez on the ground. He did not see or hear any arguing or yelling prior to the wrestling, and by the time he turned around both men were standing back up. He did not really talk to either of them after the incident, but assumed they were playing around because there was no yelling or screaming and he was not aware of any animosity before or after that day. Mr. Crumet also thought he remembered that both men finished the rest of the day working together without incident. When pressed, he conceded that Employee may have left a little early that day.

With regard to horseplay on the job sites, Mr. Crumet said that guys would occasionally goof around. He stated they were always cracking jokes, throwing water on each other and trying to keep it light. However, he stated before September 25, 2015, he had never seen anyone actually wrestling with each other on the ground.

Kerry Mozee testified at an evidentiary deposition that he has worked at Thorne \& Son Asphalt for approximately eight or nine years. He was present at the jobsite on the morning of September 25, 2015 but did not witness the wrestling. The first thing Mr. Mozee saw were the two men getting up. He did not see or hear anything leading up to it.

Mr. Mozee testified that he did talk to both men afterwards. When he spoke to Employee after the fact, he was told that Mr. Fernandez asked him if he wanted to wrestle and then slammed him. According to Mr. Mozee, Employee agreed to wrestle, but stated "if I knew he was for real, it wouldn't happen." Mr. Mozee stated that he told Employee that he should not have been playing, because that is what happens.

Like the other employees, Mr. Mozee indicated that there was some minor horseplay on the job site. He stated they would sprinkle water on each other, pull down each other's pants and other practical jokes. However, in the eight or nine years he has been there he indicated he has never seen anyone wrestling.

Unlike the other employees, Mr. Mozee did not think Employee and Mr. Fernandez liked each other before the incident. He was not aware of any specific prior altercations, but said Mr. Fernandez does not like anyone. Mr. Mozee was able to confirm that Employee and Mr. Fernandez continued to work with one another after the incident for a short period of time.

Kurtis Simms was another co-worker that gave deposition testimony in this case. Mr. Simms testified that he began working at Thorne \& Son Asphalt in August of 2015. He was present on the morning of September 25, 2015 and heard Employee and Mr. Fernandez talking immediately before the wrestling ensued. He indicated they weren't arguing or shouting, but were talking about whose responsibility it was to get tools off of a truck. Mr. Simms testified that he heard Mr. Fernandez ask Employee if he wanted to wrestle. He indicated the question was in a normal tone of voice and they did not appear to be angry at one another. At the time of his deposition, Mr. Simms was not certain whether or not he heard Employee respond to the question. However, he did acknowledge that his written statement, prepared a week or two after the incident, states he heard Employee agree to wrestle Mr. Fernandez.

Mr. Simms said he prepared the written statement at the request of John Benedetti, who told him to write down what he saw or heard that day. He understood the written statement was meant to document the interaction between Employee and Mr. Fernandez. Mr. Simms testified that he followed those instructions, and wrote down what he personally observed on the date of the incident. He testified he was not told what to say or write down and did not include information he learned from his coworkers.

Mr. Simms testified that he did not see the actual wrestling, and by the time he turned around the two men were already on the ground. Immediately after the incident both men got up and he heard a supervisor, John Benedetti, yell "no horseplay." Mr. Simms testified that this use of the term "horseplay" led to him using it in his statement and his testimony.

Mr. Simms was not aware of any animosity between Mr. Fernandez and Employee prior to the wrestling. He stated he did not see anything that would indicate the two were mad at each other after the wrestling, as they both returned to work. Finally, Mr. Simms stated that he has not witnessed anyone else wrestling on the job site before or after this incident.

Employee testified that he has had complaints in his right shoulder since at least June of 2013. This testimony is corroborated by records from the VA Hospital, specifically; a June 1, 2015 treatment note describes a two year history of right shoulder complaints. That June 1, 2016 report also indicates Employee reported an exacerbation of his right shoulder symptoms as the result of a motor vehicle accident in 2014. Employee disputed this fact at Hearing, and indicated the motor vehicle accident primarily affected his left shoulder. After being confronted with the VA records, Employee conceded that the accident may have led to additional complaints in his right shoulder as well.

Employee initially sought treatment for his right shoulder complaints through his private insurance. He was treating with Dr. Jackson and M. Fleming at Swope Health Clinic and was also evaluated by Dr. Thompson at Centerpointe Medical Center. During the course of his treatment, Employee underwent an MRI of his right shoulder on December 2, 2014. The results of the MRI demonstrated a right full thickness rotator cuff tear involving the distal supraspinatus tendon with the length of the tear estimated at 2.5cm. The distal aspect of the supraspinatus tendon had retracted to the approximate 12 o'clock position of the humeral head. He was given physical therapy and pain medications while awaiting a surgical consultation.

On February 19, 2015, Employee reported to the VA Hospital to establish care. He reported ongoing right shoulder pain and indicated he was being considered for surgery by Dr. Thompson at Centerpointe Medical Center. He returned to the VA on May 1, 2015 with the same complaints. He was examined and x-rays were ordered. There we no significant findings on the X-rays. The VA record from May 1, 2015 notes that Employee reported he had been diagnosed with a right rotator cuff tear by an outside provider but wished to have it repaired at the VA.

Employee was again seen at the VA on June 1, 2015. The medical report from that visit references an outside MRI that was reviewed by Dr. Worsing. The report does not appear in the records, but it is noted that the MRI showed a retraction of a rotator cuff tear as well as a possible labral tear and biceps injury. The VA records again note that an outside provider was recommending a repair of the right rotator cuff injury. Employee declined the surgery because he was not satisfied with the affect his treatment was having on his insurance premiums. Accordingly, he wanted to get another opinion from the VA.

Employee’s final visit to the VA prior to his alleged work accident occurred on July 1, 2015. That report includes a diagnosis of a full thickness rotator cuff tear and the following narrative statement:

> Vet is a 56 year-old male who arrives to OT clinic with a 2 year history of chronic R shoulder pain. He states it started 2 years ago but was exacerbated when he was in a MVA last year. Xray indicates no bony abnormality. MRI indicates retraction of a rotator cuff tear as well as possible labral tear and biceps injury. He has outside insurance that has offered surgical repair, but he would like services from the VA first, as his premium keeps going up with ObamaCare. Ortho recommends therapy for ROM and strengthening of the shoulder.

**SUBJECTIVE:** "If I don’t take my pain meds, I can’t even move this R shoulder at all."

(Employer’s Exhibit 1, July 1, 2015 report).

Following the July 1, 2015 visit, the VA doctor ordered a course of conservative care and physical therapy. The occupational therapist noted that Employee played the drums, which placed a strain on his shoulder. She recommended he not play the drums while participating in therapy but acknowledged that it might not be a reasonable expectation for him. She appears to

Issued by the Division of Workers' Compensation

Employee: Romero Grayson

Injury No. 15-089660

have been right, as Employee testified that he continued to drum after the July 1, 2015 appointment. The therapist also cautioned that Employee would not make progress if he did not attend therapy. There is no indication that physical therapy or a follow-up visit occurred between the July 1, 2015, VA visit and September 25, 2015.

Employee's testimony at the Hardship Hearing about his treatment prior to September 25, 2015 was not consistent with the VA records. He testified that it was his understanding there was only a small tear in his right rotator cuff prior to the September 25, 2015 incident and he specifically denied being offered surgery. He also downplayed the severity of his symptoms prior to the injury, despite his statement that he could not move his right shoulder without the assistance of pain medication.

Following the alleged work accident on September 25, 2015, Employee returned to the VA for evaluation. A new MRI study was conducted on October 19, 2015 that revealed a large near complete, full thickness tear involving supraspinatus and infraspinatus tear with fatty atrophy. There is partial tearing of the subscapularis and glenohumeral osteoarthritic changes noted. During a November 23, 2015 follow up visit at the VA the following description was given of the September 25, 2015 incident:

...Sometime in September of this year, patient was involved in a fight with a coworker. States he was punched by a co-worker at work they got in a fight after that. He said both of them fell and he happened to fall on his right shoulder and heard a pop at that time.

(Employer's Exhibit 1, November 23, 2015 report).

Dr. Michael J. Poppa evaluated Employee at the request of his attorney on November 17, 2015. In his report, Dr. Poppa identified two work related injuries to Employee's right shoulder.

While in the course and scope of his employment with Thorne \& Sons Asphalt, Mr. Grayson was performing his regular job duties when he sustained injuries to his right shoulder and right arm while constantly wrenching a lever. He states he initially experienced symptoms in or around 2014; which gradually persisted and worsened through $9 / 25 / 15$ when he was grabbed and thrown to the ground by a fellow employee, impacting his right shoulder and arm.

(Employer's Exhibit A). The problem with Dr. Poppa's analysis regarding the repetitive trauma injury is two-fold. First, the mechanism of injury identified by Dr. Poppa is not consistent with Employee's testimony about his job duties at Employer. Employee testified his primary job was to rake asphalt, with no mention of the constant wrenching of a lever. This first issue may be explained by the second, which is the timing of the repetitive injury. Dr. Poppa notes the symptoms began in 2014 and progressed from there. Employee did not start working for Employer until March or April of 2015. Thus, if there was an initial work-related injury to Employee's right shoulder, it occurred while working for a different employer.

In the "Conclusions" section of his report, Dr. Poppa opines that "Mr. Grayson's work related injury was the direct, proximate and prevailing factor in causing both his work related medical conditions, treatment and disability." Id. However, there is no clear indication as to which work related injury he is referencing. Instead, Dr. Poppa conflates the two alleged injuries by speaking generally about the "work related injury," and concluding his report by noting that his treatment recommendations are to cure and relieve the effects of both the "series of work related injuries as well as the traumatic event on September 25, 2015." (Employer's Exhibit A). Dr. Poppa made no attempt in his report to distinguish what, if any, change occurred in Employee's condition following the September 25, 2015 incident.

Based upon the findings of fact and the applicable law, I find the following:

Employee alleges that he sustained a work related injury to his right shoulder on September 25, 2015, when he was assaulted by his co-worker. Employer, however, contends the alleged accident did not arise out of and in the course of his employment because Employee was engaged in voluntary horseplay at the time of the accident. Employer further contends that Employee failed to sustain his burden of proving his right shoulder injury was causally related to the alleged work accident on September 25, 2015.

Under Missouri Workers' Compensation law, the employee bears the burden of proof on all essential elements of his claim. Fischer v. Archdoicese of St. Louis-Cardinal Ritter Institute, 793 S.W.2d 195 (Mo. App. E.D. 1990) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). The fact finder is charged with passing on the credibility of all witnesses and may disbelieve testimony absent contradictory evidence. Id. at 199.

The word "accident" is defined by Section 287.020.3(1), RSMo. as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor."

An "injury" is defined to be "an injury which has arisen out of an in the course of employment. 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 to be "the primary factor, in relation to any other factor, causing both the resulting medical condition and disability." Section 287.020.3(1) RSMo. An injury shall be deemed to arise out of and in the course of employment only if it is readily apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and 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 non-employment life. Section 287.020.3(c) RSMo.

As a general rule, injuries that occur as the result of horseplay are not considered

compensable. The rationale behind the rule is horseplay constitutes a substantial deviation that takes an employee outside the scope of his employment. McMillin v. Payless Cashways, Inc., 897 S.W.2d 661, 663 (1995). However, there is an exception to this general rule if the horseplay is so pervasive in the workplace that it becomes an incident of employment and, therefore, a risk or hazard thereof. Peet v. Garner Oil Co., 492 S.W.2d 103 (Mo.App.1973). Factors the Courts have examined to determine whether horseplay has become so persuasive as to become an incident of employment include: the frequency of the horseplay; the employer's awareness of the activity; and whether or not the employer took affirmative steps to discourage the activity. McMillin, 897 S.W.2d at 663-664; Peet, 492 S.W.2d at 106.

I find the weight of the credible evidence in this case establishes Employee was engaged in voluntary horseplay at the time of his alleged injury on September 25, 2015. The testimony of the witnesses that were not directly involved in the altercation supports this finding. Kurtis Simms, Josh Crumet, and John Bendetti all testified there was no animosity between the two men before or after the incident. While Kerry Mozee testified Mr. Fernandez and Employee did not get along, he also stated Employee told him after the altercation that he agreed to the wrestling match. This version of events was corroborated by Mr. Simms, who overheard the conversation that led to the wrestling. The written statement prepared by Mr. Simms shortly after the incident confirmed Employee answered in the affirmative when Mr. Fernandez asked if he wanted to wrestle.

In addition, Mr. Simms, Mr. Crumet, Mr. Benedetti, and Mr. Mozee all agreed that there was no arguing or yelling before or after the incident that would support Employee's assertion that he was assaulted. The testimony of these four witnesses credibly established that the actions and demeanor of Mr. Fernandez and Employee both before and after the accident were consistent with individuals that were engaged in horseplay that was taken too far.

Conversely, I do not find the testimony of Employee to be credible. He gave at least three separate accounts of what happened on the morning of September 25, 2015. According to the testimony of Mr. Mozee, Employee told him immediately after the incident that Mr. Fernandez asked him to wrestle and he agreed. By the time Employee was evaluated at the VA on November 23, 2015, his story had changed dramatically. He informed the VA doctor that a coworker had punched him, leading to a fight that resulted in him falling on his shoulder. The story changed yet again at the Hardship Hearing. There, Employee testified that he was grabbed from behind without warning by Mr. Fernandez, with no mention of a punch of any kind.

The only one of these three stories that is remotely consistent with the testimony of the unbiased witnesses in this case is the account he gave to Mr. Mozee. That story is consistent with the conversation overheard by Mr. Simms, and is consistent with the overall testimony regarding the behavior of Employee and Mr. Fernandez immediately before and after the incident. The fact that Employee did not tell his supervisor that he had been assaulted, or contact the police after the alleged assault further calls into question the veracity of that version of events.

Lastly, Employee's testimony at the Hardship Hearing was repeatedly contradicted by the objective medical records obtained from the VA. He downplayed the severity of his shoulder

condition prior to September 25, 2015, denied being reinjured in a car accident, and repeatedly stated that there had not been a recommendation for surgery from his private physician.

Employee's testimony on all of these issues was squarely inconsistent with the VA records.

Having found Employee was engaged in voluntary horseplay at the time of alleged injury, the question becomes whether or not the horseplay was so pervasive in the workplace that it became an incident of his employment. I find that it was not.

While all of the witnesses testified that there was some horseplay on the job, it was clear that conduct was in violation of company policy. All of the employees were aware that horseplay was not allowed and the supervisor, Mr. Benedetti, reprimanded anyone he caught acting inappropriately. In addition, the specific activity that led to Employee's alleged injury was substantially different in nature than the normal activities the employees described as "horseplay." Throwing water and pebbles at one another, knocking off hardhats, and cracking jokes are all activities that do not create the same inherent risk of injury that is present with an activity like wrestling.

Mr. Benedetti, Mr. Crumet, Mr. Simms and Mr. Mozee all testified that they had not seen anyone wrestle or engage in a similarly dangerous activity while working for Employer. The fact that no wrestling had been witnessed by any of the employees, so of whom had been working at Employer for over a decade, strongly suggests that it was not an activity that was contemplated and condoned by management. Mr. Benedetti said as much, stating that he had never disciplined anyone for wrestling because it had never happened before. Accordingly, there was no precedent that wrestling was appropriate at the workplace. The activity is so far outside the normal scope of acceptable behavior in the workplace that it is clear that it was not an incident of employment. Thus, I find Employee did not sustain a compensable injury that arose out of and in the course of his employment.

As noted above, Missouri law requires that an employee prove all essential elements of his claim, including the causal connection between the accident and the injury. Fischer, 793 S.W.2d at 198. Proof is made only by competent and substantial evidence, and may not rest on speculation. Griggs v. A.B. Chance Company, 503 S.W.2d 697, 703 (Mo.App.W.D. 1974). Expert testimony is essential where the issue is whether a pre-existing condition was aggravated by a subsequent injury. Modlin v. Sun Mark Inc., 699 S.W.2d 5 (Mo.App.1985).

Medical causation not within lay understanding or experience requires expert medical evidence. Wright v. Sports Associated, Inc., 887 S.W.2d 596, 600 (Mo. banc 1994). The fact finder is encumbered with determining the credibility of witnesses. Cardwell v. Treasurer of the State of Missouri, 249 S.W.3d 902 (Mo.App.E.D. 2008). It is free to disregard that testimony which it does not hold credible. Id. at 908.

I find Employee failed to sustain his burden of proving the September 25, 2015 incident

I caused the injury to his right shoulder. It is not in dispute that Employee had a long history of right shoulder complaints dating back to at least 2013. The objective medical evidence clearly establishes Employee had a full thickness right rotator cuff tear in December of 2014. Employee had continuing complaints thereafter and by May of 2015 the medical records suggest his private physician had recommended a surgical repair of his shoulder. Employee declined surgery and opted to proceed with treatment through the VA.

VA records from June of 2015 indicate a new MRI revealed additional deterioration of his condition, and Employee was diagnosed with a retraction of a rotator cuff tear as well as a possible labral tear and biceps injury. In July of 2015 Employee’s condition was so severe that he told the VA doctors that he could not move his right shoulder without the assistance of pain medications. He was given pain medication, prescribed physical therapy and told to stop playing the drums. He did not attend therapy or stop playing the drums.

The fact that an MRI taken on October 19, 2015 revealed a near complete, full thickness tear of Employee’s rotator cuff is neither surprising nor determinative. It is completely consistent with Employee’s long history of right shoulder issues. Critically, there is no evidence in the record that identifies a distinct, new injury as a result of the September 25, 2015 accident.

Employee purports to rely on the opinion of Dr. Michael Poppa to establish medical causation, but there is nothing in Dr. Poppa’s report that forms that connection. Dr. Poppa does not discuss the differences in Employee’s condition before and after September 25, 2015. Perhaps most telling, he does not engage in any discussion comparing the MRI reports that were taken before and after the incident. In fact, it appears he mistakenly believed that the October 19, 2015 MRI actually occurred on October 19, 2014. That of course would mean he believed that MRI occurred before the December 2, 2014 MRI.

It stands to reason that if the October 19, 2015 MRI was appreciably worse than the December 2, 2014 MRI, Dr. Poppa would have been alerted to his mistake. Otherwise, he would have had to believe that between October 19, 2014 and December 2, 2014 Employee underwent a miraculous and unexplained recovery. The fact that he did not catch this error strongly suggests that he did not find meaningful differences between the two tests. Accordingly, I find there is no credible medical evidence to establish that the prevailing factor for Employee’s right shoulder complaints was the September 25, 2015 incident.

For all the reasons stated above, the Court finds the accident on September 25, 2015 did not arise out of and in the course of employment because Employee was engaged in voluntary horseplay when the accident occurred. Furthermore, the Court finds Employee failed to meet his burden of proving his right shoulder condition was causally related to the incident on September 25, 2015. Accordingly, Employee is not entitled to temporary total disability benefits or medical treatment from the Employer. Having found no accident within the course and scope of his employment, this case must be and is denied.

Made by: $\qquad$

Mark Siedlik

Administrative Law Judge

Division of Workers' Compensation