Otis Saine v. Pepsi Beverages Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 15-069886

Employee: Otis Saine

Employer: Pepsi Beverages Company

Insurer: Indemnity Insurance Company of North America

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the briefs, 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 § 286.090 RSMo, the Commission affirms the Award and Decision of the administrative law judge for the reasons set forth below, and as supplemented or corrected herein.

The parties asked the administrative law judge to determine whether employee sustained an "accident"1 as that term is defined by the Missouri Workers' Compensation Law. Section 287.020 RSMo 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.

The administrative law judge concluded that employee did not show a single, identifiable traumatic event or unusual strain occurred during any single work shift. Specifically, the administrative law judge found employee's evidence of the alleged accident, as lacking in credibility. The administrative law judge found claimant gave several diverse and distinguishable versions of how the alleged incident occurred. This conclusion is supported by the record.

The administrative law judge's finding that: "the claimant's evidence of an accident lacks credibility based on varying inconsistent statements from the claimant, and because the evidence supports a finding that the claimant's neck injury manifest (sic) months after the alleged occurrence;" is supported by the record. (Decision, page 11) Furthermore, the mechanism of injury was described differently throughout. ${ }^{2}$

Employee asserts that the administrative law judge erred in relying on employee's purported inconsistent statement regarding the nature and onset of his pain from his

[^0]

[^0]: ${ }^{1}$ The parties stipulated that proper notice was given to the employer of the alleged accident on August 31, 2015. The parties' stipulation did not include acknowledgement that an accident occurred on that date.

${ }^{2}$ At various times, claimant reported a lifting injury, a turning or twisting injury, swerving to avoid a car, an injury caused by repeatedly backing up and hitting the loading dock, stacking, and hard steering.

Improve: Otis Saine

- 2 -

deposition. During questioning of the employee at the hearing on October 26, 2016, by employer's attorney, statements from the employee's deposition on December 2, 2015, were referenced. Employee's deposition was not in evidence and employer's attorney did not read the testimony into the record. (Tr. 50) We conclude that the reference to an alleged date of injury from employee's deposition testimony as August 25, 2015, is not supported by the record because it is based on a deposition transcript not in evidence. (Decision, page 6) However, we note this was only one thread of the administrative law judge's analysis. The administrative law judge found ample instances of inconsistencies in the information claimant reported to the medical providers. The finding that "claimant's evidence of an accident lacks credibility based on the varying inconsistent statements from the claimant..." is supported. (Decision, page 11)

Employee testified in person before the administrative law judge. The administrative law judge recounted and substantially relied upon his firsthand observations of employee's testimony regarding the issue of employee's credibility. After careful consideration, we are not persuaded to disturb the administrative law judge's credibility determination as to the nature and onset of injury. As pointed out in the administrative law judge's decision, employee identified the nature of the injury (as well as the date), differently in various incarnations of his Claim for Compensation.³ Furthermore, although the initial incident was reported to be in August 2015, employee did not report neck pain until January 5, 2016. Prior to that time, he only referred to right shoulder/arm pain.

Expert medical opinion evidence

The administrative law judge's finding was that the opinion of Dr. Kevin Rutz⁴ was generally more credible, and his causation opinion more persuasive in this matter. After careful consideration, we conclude this finding was supported by the record. Dr. Rutz's examination of employee and his medical records appears to have been more comprehensive than the other physicians, including X-rays in the office on his visit of May 3, 2016; review of MRI scans from 2008, and January 2016,⁵ range of motion-oriented testing; a patient history; review of many of the past examining physician reports relative to this claim; employee's deposition; and a physical examination. Dr. Rutz notes that the delayed onset of the neck symptoms first raised in January 2016, suggest this was not caused by any alleged incident in August 2015. Dr. Rutz further opines that one single incident as described would not cause a disk herniation at C5-C6, as shown on employee's scans, but rather it was more consistent with continuing degenerative changes.

Corrections

The administrative law judge found that "at hearing, claimant testified that on August 15, 2015, his pain began immediately following an incident in which he had to jerk his

³ Employee's initial Claim for Compensation form on September 29, 2015, alleged injury due to heavy and repetitive activities, to his shoulder and right arm. Amended claim forms were filed on December 4, 2015, January 25, 2016, and March 29, 2016. The subsequent claim forms did not add a reference to the neck until January 2016 (second amendment). Dates of injury were reported in the Claims as August 31, 2015 and August 25, 2015.

⁴ Within the record, there are inaccurate references to a Dr. Ruiz. These references should reflect Dr. Rutz. There was no consulting physician by the name of Dr. Ruiz in this proceeding.

⁵ The Decision at page 7 refers to an MRI taken on January 15, 2015. This is a typographical error. The date of the MRI was January 15, 2016.

steering wheel to the right and slam on his brakes to avoid a collision." (Decision page 11, emphasis ours) Upon review of the transcript of hearing, we find no reference in claimant's testimony identifying the date of August 15, 2015. ${ }^{6}

Employee's testimony was generally that he did not recall the exact date. { }^{7}$ We therefore correct the Administrative Law Judge's Findings at page 11, as follows:

... at hearing, claimant testified that his pain began immediately following an incident in which he had to jerk his steering wheel to the right and slam on his brakes to avoid a collision.

This minor correction to the Decision does not affect our confidence in the administrative law judge's conclusion that claimant did not establish that he suffered an unexpected traumatic event or unusual strain identifiable by time and place of occurrence.

Because employee has not shown a compensable injury by accident, all other issues are moot.

We affirm the decision of the administrative law judge as supplemented herein. The decision of Administrative Law Judge Edwin J. Kohner, issued December 14, 2016, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 23rd day of October 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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[^0]: ${ }^{6}$ The date of August 15, 2015, as date of injury, is referenced in the February 9, 2016, report of Dr. David G. Kennedy, as the date of a motor vehicle accident. It is not clear where the doctor obtained that date. (Pet. Exhibit 2, at 83)

${ }^{7}$ Employee asserts that the Time and Place of Injury were stipulated by parties at the hearing. The extent of the stipulation was that Employee was employed by Employer on August 31, 2015.

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: August 31, 2015 (Alleged)
5. State location where accident occurred or occupational disease was contracted: City of St. Louis, Missouri
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: Employee alleged that he was operating a truck with difficult steering and thereby sustained injury.
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: Neck, right shoulder, and right arm (Alleged)
14. Nature and extent of any permanent disability: None
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? $\ 579.00
2. Employee's average weekly wages: $\ 1,171.13
3. Weekly compensation rate: $\$ 780.78 / \ 464.58
4. Method wages computation: By agreement

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

TOTAL:

None

1. Future requirements awarded: None

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: Dean L. Christianson, Esq.

Employee: Otis Saine

Injury No.: 15-069886

Dependents: N/A

Employer: Pepsi Beverages Company

Additional Party: N/A

Insurer: Indemnity Insurance Company of North America

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/

This workers' compensation case raises several issues arising out of an alleged workrelated injury in which the claimant, a truck driver, alleges that he sustained accidental injury caused by an incident where he was trying to drive his truck after the steering became very difficult. The issues for determination are: (1) Accident or occupational disease arising out of and in the course of employment, (2) Liability for Past Medical Expenses, (3) Future medical care, and (4) Temporary disability. The evidence compels an award for the defense.

At the hearing, the claimant testified in person and offered a deposition of David G. Kennedy, M.D., records from the Division of Workers' Compensation, correspondence from the claimant's counsel, a report of injury, correspondence from the employer's nurse, medical bills, a Department of Transportation form, and voluminous medical records. The defense offered depositions of Timothy D. Farley, M.D., and Kevin D. Rutz, M.D., and copies of the claimant's claims for compensation filed in this case.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident was alleged to have occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

This now 45-year-old truck driver alleges that he sustained accidental injury caused by an incident where he was trying to drive his truck after the steering became very difficult.

He worked for this employer driving a truck and delivered beverages to various locations from May 2015 until shortly after this occurrence. He drove several different types of trucks, including trailer trucks, side loaders and straight trucks. He learned which truck he was going to drive when he received a "manifest" at the beginning of his shift. The manifest would tell him which truck he was driving, what route he was running, and what he was delivering. Once he received the manifest, he would locate his truck and perform a pre-trip inspection of the truck, looking for any problems. After his deliveries, he would perform a post-trip inspection of the truck.

He did not work again until May 30, 2016. During that time, he looked for work but did not file for unemployment.

The claimant testified that he was injured in August 2015 but was uncertain of the exact date of the accident. He testified that he injured his neck and right arm while driving an 18wheeler truck and making a delivery to a large grocery store and had to back the trailer into the dock to be unloaded. The claimant testified that he was on a city street and was very near his destination when the injury occurred. A car jumped in front of him, and he had to hit his brakes hard to avoid hitting it. He testified that something was wrong with the truck, in that a buzzer was going off and then a number of warning lights were going on. The claimant testified that it was chaotic when the injury occurred, and everything happened very quickly. The buzzer was going off, lights were flashing, and he almost hit a car - a lot was happening at the time. He noticed before the incident that the truck was not steering correctly, though it was not as bad as it was when he had to brake hard. He testified that while he was driving on the road prior to the incident, the truck was a bit difficult to steer, and it was hard to keep the truck straight on the road.

The claimant testified that he tried to turn right into the business, but the steering was exceptionally difficult. The claimant testified that while he was trying to steer the truck to the right, he felt a sharp pain in his neck and right arm. He was able to get the truck turned into the business and backed up to the loading dock, though it was difficult. The claimant testified that when he got the truck to the loading dock, he called his supervisor, who told him to call the maintenance department. The maintenance department had him check the truck to see if it was on fire. They then told him they would send a tow truck to relieve him. While he was waiting for the tow truck, the claimant unloaded product from his trailer. The maintenance department then brought a new tractor for his truck and towed the previous one to the truck maintenance facility.

The claimant testified that he obtained a Department of Transportation vehicle condition report but he did not immediately file it because he wanted to see how his arm was going to do. He testified that he filled out and submitted the form because he still had arm pain about a week after the injury. See Exhibit 12. He testified that when he turned it in, he put down the truck number and the date of accident by memory but was not certain that either were correct. He testified that he drove two trucks on the date of his accident. He testified that he kept a copy of this for himself, because he was concerned that that his employer might lose the document.

The claimant testified that he spoke to the company nurse about his injury about a week after the accident. At that time he was wearing a TENS unit on his right shoulder, which he had previously obtained due to a previous lower back condition. When the nurse asked him why he was wearing it, he responded that he wore it due to shoulder pain. He mentioned the work accident to her at the time. She advised him to report this to his employer and his supervisor. The claimant testified that he also reported the occurrence to his supervisor, Mr. Ron Stacy.

After the accident, the claimant worked light-duty for about a week while the employer checked to see if his injury was going to be covered by workers' compensation insurance. When his workers' compensation claim was denied, he was no longer provided with light duty work. Because of the denial, Employer never sent him for medical treatment.

The claimant initially provided self treatment with the TENS unit and Tylenol. On September 10, 2015, the claimant went to the Belleville Memorial Hospital Emergency Room with right shoulder pain with onset "one week" before the visit. See Exhibit 4. He reported,

C/o right shoulder pain, is truck driver, ongoing for a week,, left handed dominant, truck's manual transmission, taking ibuprofen and using TENS unit without success. Drives a truck for the Pepsi Company, is assigned a different truck on an irregular basis. This was a new truck to him although it is a very old model. The truck was retired. He states he notified his supervisor but because he attempted to insert it measures (sic) at home he would not be able to report as a workman's' comp claim nor workmen's comp. See Exhibit 4.

X-rays and the medical examination were negative, but the claimant received prescription pain medication, a sling, and referral to Dr. Lehmann, an orthopedic surgeon, Dr. Lehmann. See Exhibit 4. The claimant was released to work three days later. See Exhibit 4. The claimant testified that the employer's nurse advised him not to tell the emergency room staff that his injury was due to an accident at work, so he did not do so.

On September 15, 2015, Dr. Lehmann examined the claimant, assessed the claimant with right shoulder acute rotator cuff tendonitis, and administered an injection. See Exhibit 3. On September 22, 2015, Dr. Lehmann examined the claimant and opined that a right shoulder MRI revealed "a little bit of interstitial tearing of the supraspinatus tendon. No evidence of full thickness tear. The region of the greater tuberosity near this region of tearing also does light up on the MRI scan. He also has a moderate amount of fluid in the subacromial space. Additionally, some degenerative fraying of the superior labrum." See Exhibit 3. His assessment was right shoulder acute rotator cuff tendonitis and interstitial tearing right rotator cuff. See Exhibit 3. Dr. Lehmann recommended a subacromial injection, a physical therapy program focused on low weights and high repetitions, and gave him a note to continue light duty with a 50-pound weight restriction. See Exhibit 3. The claimant declined the injection and physical therapy program claiming lack of financial support to pay for same. The claimant testified that when he was unable to afford physical therapy, Dr. Lehmann discharged him.

On January 5, 2016, the claimant then went to his primary care physician, Dr. Mohsin, and reported an injury "at work last September driving a truck. He states he strained shoulder but ha s strained neck. ... They will not release him for work yet. Patient otherwise denies chest pain, shortness of breath, nausea, and vomiting. Patient has no other concerns." See Exhibit 7. Dr. Mohsin found supple, slight neck pain, tingling in the claimant's right arm, and tenderness in his shoulder. See Exhibit 7. Dr. Mohsin prescribed a muscle relaxant, a blood pressure pill, and pain medications, and ordered blood tests, x-rays of the neck and spine. See Exhibit 7. The claimant incurred a bill for $\ 579.00 for Dr. Moshin's services. See Exhibit 11.

The claimant testified that he had a prior lower back surgery and a prior left shoulder surgery but that he was asymptomatic leading up to August 2015 with respect to his neck, right shoulder, and right arm. The claimant testified that he now has constant pain in his neck and right shoulder. The pain is usually a five or six out of ten. At night, it seems to be a nine or ten. He has problems with sleeping and dealing with his daily activities. He currently takes ibuprofen

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Otis Saine

Injury No.: 15-069886

and Tylenol for pain, but takes no other medication. At the time of the hearing, the claimant worked for Saddle Creek as a driver. He works 40 hours per week, with occasional overtime. The claimant began working for Saddle Creek in September 2016. Prior to that, he worked for Road Dog as a driver for three months, and he worked for Perryville Toyota for about a month. In these jobs, he worked 40 or more hours per week. He understands that the doctors have recommended surgery and would like to proceed with that surgery.

The claimant testified that he was unable to work during the time he is claiming temporary total disability benefits because of his pain. He testified that he was rear-ended in a motor vehicle accident in 2001, which caused head and neck pain. He testified that he did not remember having complaints involving his neck and right shoulder in 2008. He testified that he was completely well before the August 2015 accident. He was asked about his deposition testimony, where he said the accident occurred on August 25, 2015. He testified that he was not sure exactly what date the accident occurred. The claimant testified that his neck has hurt the entire time since his injury. He testified that his deposition testimony was incorrect when it said that he did not have neck symptoms at that time.

Claims for Compensation

The original Claim for Compensation was filed on September 29, 2015, alleging that the claimant suffered injury to his right shoulder and arm through heavy and repetitive activities on August 31, 2015. See Exhibit A. On December 04, 2015, the claimant filed his first amended Claim for Compensation, alleging that the accident occurred on August 25, 2015. See Exhibit A. On January 25, 2016, the claimant filed his second amended Claim for Compensation, alleging that the accident injured his neck. See Exhibit A. On March 29, 2016, the claimant filed his third amended Claim for Compensation, alleging that the injury occurred on August 31, 2015 from engaging “heavy and repetitive activities, thereby causing injury and disability” to the “neck, right shoulder, and arm”. See Exhibit A.

Ron Jetton

Mr. Jetton, the fleet associate supervisor for this employer, supervises twelve fleet mechanics in various locations in the St. Louis metropolitan area. See Jetton deposition, page 5. Mr. Jetton testified concerning the procedures truck drivers use to inspect their trucks and report mechanical issues. See Jetton deposition, page 6. The drivers use an EDOT system, which consists of handheld computers in which the driver enters any defects or other issues that would impact his ability to run his route safely. See Jetton deposition, page 6. The drivers inspect the truck before leaving for their route and after returning from their trip. See Jetton deposition, page 7. If a Department of Transportation violation is noted in the pre-trip inspection, the truck must be taken to the shop for repair before the vehicle is able to leave on the route. See Jetton deposition, page 7. A deficiency noted on the post-trip inspection goes directly into the shop via computer, and the truck has to be repaired before it can be released to go on route the next day. See Jetton deposition, page 7. If there is a problem when the truck is out, the driver calls the problem in, and a mechanic is dispatched to the scene to either fix the truck or tow it back into the shop. See Jetton deposition, page 8.

Mr. Jetton testified that while the driver is responsible for reporting issues into the EDOT system on pre-route and post-route inspections, the mechanic generates the work order when they have to go out on a road call. See Jetton deposition, page 8. Mr. Jetton testified that the truck on August 31, 2015, was towed back to the shop for repair according to the work order detail report. See Jetton deposition, pages 9, 13, 19. The mechanics noted that the driver said that he smelled something burning and that the engine light was on. See Jetton deposition, page 19. The mechanics removed and replaced the oil pressure gauge in the dash, and the repair was complete. See Jetton deposition, page 20. Mr. Jetton testified that this is not typically a type of problem that would lead to problems with steering, because "all it is the driver says that the engine light came on, so the vehicle is still running." See Jetton deposition, page 23.

Mr. Jetton identified Exhibit 5 to the deposition as a handwritten Department of Transportation form. See Jetton deposition, page 41. He testified that the claimant had to handwrite the form in order to complete the post-trip inspection on the vehicle that was towed, as he would use his handheld device for his post-trip inspection on the truck that was towed to him. See Jetton deposition, page 42. Mr. Jetton did not know why the information that the claimant wrote down about hard steering was not put into the computer system. See Jetton deposition, page 44. He testified that he did not produce a copy of the claimant's DOT form because he cannot keep them for more than 90 days. See Jetton deposition, page 43. He testified that he throws these forms away after 90 days to comply with DOT regulations. See Jetton deposition, page 43 .

On February 9, 2016, Dr. Kennedy, a neurosurgeon, examined the claimant and took a medical history of a motor vehicle accident on August 15, 2015, resulting in significant pain at the base of the cervical spine, trapezius muscle, and shoulder area on the right side by the end of the day. See Dr. Kennedy deposition, page 5 and Deposition Exhibit 2. Dr. Kennedy reviewed the claimant's neck MRI from January 2016, and opined that the claimant had a central disc herniation at C5-6 with bilateral foraminal encroachment causing the claimant's symptoms. See Dr. Kennedy deposition, page 8. He noted that the claimant complained of decreased sensation in the thumb and index finger of his right hand, which correlates with the findings of the MRI. See Dr. Kennedy deposition, page 7.

Dr. Kennedy diagnosed cervical radicular pattern caused by the central disc herniation at C5-6. See Dr. Kennedy deposition, page 10. He testified to a reasonable degree of medical certainty that the incident described by the claimant concerning steering the truck was the prevailing factor in causing his cervical radiculopathy. See Dr. Kennedy deposition, page 11. Whether the incident happened on August 15, 2015, or later in the month would make no difference to his analysis. See Dr. Kennedy deposition, page 11. Dr. Kennedy recommended cervical discectomy and fusion to treat the claimant's symptoms, as the odds of treating the claimant non-operatively were low. See Dr. Kennedy deposition, page 11.

Dr. Kennedy testified that the claimant's symptoms did not start immediately, but that the pain was significant by the end of the day of the injury. See Dr. Kennedy deposition, page 14. He further testified that he personally reviewed the MRI film from the MRI on January 15, 2015. See Dr. Kennedy deposition, page 16. He testified that he disagreed with the assessment made

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Otis Saine

Injury No.: 15-069886

by the radiologist who issued the MRI report that the claimant had multi-level degenerative changes with diffuse degenerative disc desiccation and narrowing. See Dr. Kennedy deposition, page 17. Dr. Kennedy testified that any degenerative changes in the claimant's neck were minimal findings and characterized them as mild. See Dr. Kennedy deposition, page 17. Dr. Kennedy reviewed the MRI's of the claimant's cervical spine from January 2016, the claimant's shoulder from September 2015, and the claimant's cervical spine from 2008. See Dr. Kennedy deposition, page 19.

Timothy D. Farley, M.D.

Dr. Farley, an orthopedic surgeon whose practice mostly deals with knee, shoulder, and elbow-related conditions, examined the claimant on December 8, 2015. See Dr. Farley deposition, pages 5, 7. Dr. Farley opined that the claimant had essentially no evidence of any specific acute injury to his shoulder. See Dr. Farley deposition, page 14. He testified that the claimant's September 2015 shoulder MRI showed tendinopathy within the rotator cuff, interstitial tearing of the posterior most fibrous portion of the rotator cuff, a possible degenerative labrum tear, and mild acromioclavicular joint arthritis. See Dr. Farley deposition, page 9. He testified that the findings within the shoulder were non-specific, degenerative, and not related to an acute injury. See Dr. Farley deposition, page 14. Dr. Farley diagnosed subjective shoulder pain with no objective evidence of a specific injury. See Dr. Farley deposition, pages 22, 23

In his examination, Dr. Farley found that the claimant's passive range of motion was normal, but his active range of motion was restricted in different planes. See Dr. Farley deposition, page 13. The claimant's strength was decreased, but Dr. Farley opined that this was more because it caused him pain rather than there being some type of defect in the rotator cuff. See Dr. Farley deposition, page 13. Dr. Farley testified that Neer, Hawkin's, and O'Brien's maneuvers seemed to bother the claimant, and that these tests yielded positive results. See Dr. Farley deposition, pages 13, 19, 21. He further testified that his tests were positive for a number of shoulder complaints. See Dr. Farley deposition, page 21.

Kevin D. Rutz, M.D.

Dr. Rutz, an orthopedic surgeon specializing in spinal surgery, examined the claimant on May 3, 2016, testified that the claimant presented different possible mechanisms of injury. See Dr. Rutz deposition, pages 5, 8, 9. Dr. Rutz testified that the claimant reported that he would bump his truck into the dock, and it would jar him. See Dr. Rutz deposition, page 9. The claimant also reported that the steering wheel being stiff when trying to make a turn might have caused problems in his neck. See Dr. Rutz deposition, page 9. Dr. Rutz also testified that the claimant described stacking products up high and getting them down. See Dr. Rutz deposition, page 27.

Dr. Rutz reviewed extensive radiological scans of the claimant's neck. He testified that he obtained x-rays in his office of the claimant's cervical spine on the day he examined the claimant. See Dr. Rutz deposition, page 13. The x-rays showed moderate narrowing of the disc space at C5-6. See Dr. Rutz deposition, page 13. Dr. Rutz also reviewed the MRI films from November 2008 and January 2016. See Dr. Rutz deposition, page 14. The MRI from 2008 showed a small central disc herniation at C4-5 and mild disc degeneration at C5-6. See Dr. Rutz

deposition, page 14. The MRI from 2016 demonstrated a moderately sized focal central disc herniation at C5-6 and moderate disc degeneration at the same level. See Dr. Rutz deposition, page 14. Dr. Rutz testified that a disc herniation on top of degeneration of the disc can be a more acute change. See Dr. Rutz deposition, page 14.

Dr. Rutz concluded that the claimant would likely benefit from a fusion or disc replacement, but that this was related to other conditions, not a work injury. See Dr. Rutz deposition, pages 18, 19. Dr. Rutz opined that the MRI findings were not caused by the mechanisms of injury described by the claimant because his early complaints had nothing to do with the neck. See Dr. Rutz deposition, page 15. He further testified that if the claimant had a disc herniation at the time of the shoulder injury, it should have caused quite a bit of neck pain from the beginning that would not have been masked by shoulder tendinitis or bursitis. See Dr. Rutz deposition, page 15. Dr. Rutz testified that he believed the claimant's neck complaints were caused from his own intrinsic degeneration. See Dr. Rutz deposition, page 16. He based this opinion on the lack of a clear-cut mechanism of injury or early symptoms, as well as the progression of degeneration since the claimant's earlier imaging. See Dr. Rutz deposition, page 17. Dr. Rutz testified that in his experience of the spine, the majority of people who have herniations did not do anything significant to cause it; it is a function of their own degeneration where at some point, it ruptures because it was going to rupture no matter what they were doing. See Dr. Rutz deposition, page 17.

Dr. Rutz testified that during his examination, the claimant had full range of motion in his neck with mild discomfort. See Dr. Rutz deposition, page 16. The claimant had positive impingement signs in his shoulder, consistent with tendinitis or bursitis. See Dr. Rutz deposition, page 16. On cross-examination, Dr. Rutz testified that he performed a Spurling's test to see if it reproduced some of the neck pain or pain in his arm. See Dr. Rutz deposition, page 32. For Claimant, the Spurling's test did cause symptoms, which is suggestive that his neck injury was causing the radiating pain down his arm. See Dr. Rutz deposition, page 32.

On cross-examination, Dr. Rutz testified that the claimant filled out a spine questionnaire that included a chart showing the claimant's pain level shortly after the injury. See Dr. Rutz deposition, pages 20, 21. Dr. Rutz interpreted the chart as showing that the claimant had pain in his neck down through his right shoulder and into his right hand shortly after his injury. See Dr. Rutz deposition, page 21. Dr. Rutz noted that the claimant described aching, numbness, and tingling in the deltoid and trapezius areas of the shoulder and in the back of the neck. See Dr. Rutz deposition, page 22. On cross-examination, Dr. Rutz testified that the classic symptoms of a disc herniation at C5-6 include pain that radiates upward a little bit and down into the trapezial area and into the inner scapular region. See Dr. Rutz deposition, page 36. Dr. Rutz further testified that when people have a disc herniation that is impinging on the nerve root, one often would see symptoms going down the arm such as the symptoms that the claimant was concerned about. See Dr. Rutz deposition, page 36.

Dr. Rutz testified that if someone asked him if the claimant's disc herniation impinging his nerve root was causing the symptoms, he would answer "no," although he has seen patients with images that look like the claimant's MRI, who did have nerve symptoms from it. See Dr. Rutz deposition, page 36. When asked to explain the difference, Dr. Rutz testified that when he is doing surgery to help a person he would want to be right; he could not state that if he did

surgery in that location, it would predictably improve the claimant's symptoms as he did not have a clear-cut nerve impingement. See Dr. Rutz deposition, page 37. Dr. Rutz testified that he had seen this situation multiple times in other patients, and just because an MRI does not look quite perfect to say that a person would predictably get better, it seems like most people seem to get improvement of some of the radiating symptoms down the arm even though it does not fit the textbook definition. See Dr. Rutz deposition, page 38. Dr. Rutz testified that it was possible that the claimant could have neck surgery, and it would fix some of the pain that radiates down his arm. See Dr. Rutz deposition, page 38 .

Dr. Rutz testified concerning the three possible modes of injury that the claimant described to him. See Dr. Rutz deposition, page 27. He testified that he did not think that the claimant backing up his truck and hitting the dock could cause a disc herniation by itself. See Dr. Rutz deposition, pages 27, 28. He testified that he did not think that swerving to avoid hitting a car when the steering was not working very well could cause a disc herniation. See Dr. Rutz deposition, page 29. But Dr. Rutz testified that stacking product and getting it down could cause a disc herniation in the right situation. See Dr. Rutz deposition, page 28.

Section 287.120.1 RSMo provides, in pertinent part, as follows:

Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee's employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person.

The definition of "accident" is defined in Section 287.020.2 RSMo and related subsections:

1. 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.
2. (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and 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.

The following interpretative guides contained in § 287.020.10 RSMo, lead the application of the statute:

In applying the provisions of this chapter, it is the intent of the legislature to reject and abrogate earlier case law interpretations on the meaning of or definition of "accident", "occupational disease", arising out of", and in the course of the employment" to include, but not be limited to, holdings in: Bennett v. Columbia Health Care and Rehabilitation, 80 S.W.3d 524 (Mo. App. W.D. 2002); Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo.banc 1999); and Drewes v. TWA, 984 S.W.2d 512 (Mo.banc 1999) and all cases citing, interpreting, applying, or following those cases.

§§ 287.800.1 RSMo and 287.800.2 RSMo, respectively, provide, as follows:

287.800. 1. Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly.

1. Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, and the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts.

Pursuant to these statutes, in order to establish a compensable case, the claimant must have proven he sustained an injury due to an accident. The first step is to see if the claimant met the burden of proving that the claimant suffered 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.

The evidence in the record supports a denial in this case, because the claimant's evidence of an accident lacks credibility based on varying inconsistent statements from the claimant, and because the evidence supports a finding that the claimant's neck injury manifest months after the alleged occurrence.

The original Claim for Compensation was filed on September 29, 2015, alleging that the claimant suffered injury to his right shoulder and arm through heavy and repetitive activities on August 31, 2015. See Exhibit A. On December 04, 2015, the claimant filed his first amended Claim for Compensation, alleging that the accident occurred on August 25, 2015. See Exhibit A. On January 25, 2016, the claimant filed his second amended Claim for Compensation, alleging that the accident injured his neck. See Exhibit A. On March 29, 2016, the claimant filed his second amended Claim for Compensation, alleging that the accident occurred on August 31, 2015. See Exhibit A. Thus, the claim before the Division alleges that the injury occurred on August 31, 2015 from engaging "heavy and repetitive activities, thereby causing injury and disability" to the "neck, right shoulder, and arm". See Exhibit A.

At the hearing, the claimant testified that on August 15, 2015, his pain began immediately following an incident in which he had to jerk his steering wheel to the right and slam on his brakes to avoid a collision. He testified that his employer's mechanics towed his vehicle immediately after the incident.

On the other hand, the claimant's Vehicle Inspection Report revealed that the claimant called for truck number 46176 to be towed on August 31, 2015. That day, the claimant's truck had an oil gauge malfunction which fleet supervisor, Mr. Jetton, testified would have no bearing on the steering of a vehicle. Additionally, the claimant's Inspection Validation Report shows that that the claimant had not driven truck number 46176 before or after August 31, 2015. See Exhibit 2.

On August 27, 2015, the claimant reported to Raechelle Kempfer, RN-C that he was having shoulder pain caused by the tight steering in his work truck. See Exhibit 10. On September 10, 2015, the claimant reported at Memorial Hospital that he had been experiencing right shoulder pain for one week following a lifting injury. See Exhibit 4. On January 5, 2016, the claimant reported to Dr. Mohsin that he began experiencing neck pain after an unspecified incident that occurred in September 2015 while driving his work truck. See Exhibit 7.

On May 3, 2016, the claimant reported to Dr. Rutz that he was having neck and shoulder pain from repeatedly backing into loading docks and twisting his body when unloading products off his truck and that his symptoms became irritated when a car jumped in front of him and, as he tried to avoid the collision, he had to turn his body. He also told Dr. Rutz that he was driving a work truck with difficult steering one day and that by the end of the day, he was in pain. See Dr. Rutz deposition, page 9 .

The inconsistencies in the claimant's testimony and evidence reveal that no single, identifiable traumatic event or unusual strain occurred during any single work shift with enough consistency to establish a prima facie case. His numerous different descriptions of the alleged occurrence are contradictory. At the hearing he contradicted his deposition testimony regarding the onset of his complaints. Not only has the claimant been inconsistent regarding the date of the alleged occurrence, but he has also given several diverse and distinguishable versions of how the alleged incident occurred. First, the claimant testified it was from a lifting injury. Second, it was tight steering. Third, he was avoiding a collision. Fourth, it was heavy and repetitive lifting. Fifth, he backed into the loading docks hard. Finally, it was a combination of all of them. The only independent evidence that there was a malfunction of the truck he was driving would have come from the maintenance logs, but those show that the one issue that his truck did have on August 31, 2015, with no bearing on the steering whatsoever. See Exhibit 2.

The claimant has alleged many occurrences, many of which are not consistent, to find that any injuries he may have were caused by any specific event during a single work shift. The evidence does not support a finding that the injury occurred on August 31, 2015, from engaging "heavy and repetitive activities, thereby causing injury and disability" to the "neck, right shoulder, and arm". It is noted that the statute of limitations has not yet run in the event that the claimant can determine how the injury occurred and the date in which the single work shift occurred.

Another difficult aspect of this case is that the claimant is seeking recovery based on an alleged neck injury. However, the weight of the credible evidence is that the claimant's neck condition is not related to the alleged occurrence. From September 10, 2015, until January 5, 2016, the claimant reported right shoulder pain, but no neck complaints to his treating physicians. See Exhibits 3, 4.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Otis Saine

Injury No.: 15-069886

On September 10, 2015, the claimant reported right shoulder pain following a lifting injury to Memorial Hospital on September 10, 2015. See Exhibit 4. He received an x-ray, prescription pain medication, and was diagnosed with a shoulder sprain. The claimant reported to Dr. Lehmann that he was experiencing right shoulder pain following an incident where his steering wheel froze. Dr. Lehmann related the claimant's pain to that incident. He followed up with Dr. Lehmann on September 15, 2015 and treated with him through December 1, 2015. See Exhibit 3. Dr. Lehmann prescribed physical therapy which the claimant did not seek out. On the claimant's final visit, Dr. Lehmann gave him a final diagnosis of right shoulder bursitis and stated that there was no reason that he could not return to full duty. Not once during the time period of September 10, 2015, to December 1, 2015, did the claimant report to Dr. Lehmann that he was experiencing pain in his neck. See Exhibit 3.

On December 8, 2015, the claimant reported only right shoulder pain to Dr. Farley. After reviewing the claimant's medical records and performing a physical exam, Dr. Farley opined that he had a condition in his right shoulder which existed before the alleged accident date and if an accident had occurred, it would have only aggravated the claimant's pre-existing condition. Dr. Farley opined that there was no evidence of an acute injury and that the claimant exhibited symptoms and findings consistent with what would normally be found in a man of the claimant's age.

The first time that the claimant reported any issue with his neck to a doctor was during his January 5, 2016, visit with Dr. Mohsin. Dr. Mohsin ordered an MRI of the claimant's cervical region and diagnosed him with a moderate central disc protrusion at C5-6 and degenerative changes in the C4-5 through C6-7 levels.

On February 9, 2016, Dr. Kennedy diagnosed a C5-6 disc herniation based on a medical history that the claimant's symptoms began one day in August 2015 when his truck's steering wheel became difficult to steer with onset of significant pain at the base of the cervical spine by the end of the day. See Dr. Kennedy deposition, Exhibit 2. Based on the claimant's statement, Dr. Kennedy opined that the disc herniation was related to this alleged incident.

Finally, the claimant saw Dr. Rutz on May 3, 2016, and reported that he was still experiencing neck and shoulder pain. Dr. Rutz reviewed all the claimant's medical records and diagnostic imaging, including the 2008 MRI and performed his own diagnostic imaging for comparison. Dr. Rutz concluded that the claimant's 2008 disc degeneration had deteriorated into the present C5-6 disc herniation.

Dr. Rutz opined that the claimant showed signs of right shoulder bursitis and a non-work related C5-6 disc herniation caused by the claimant's intrinsic degeneration. Dr. Rutz opined that the C5-6 herniation could not have been the result of any of the alleged incidents described by the claimant. He opined that, in order for the claimant to have suffered the herniation in one, single incident, the claimant would have had to have been in an actual car wreck.

While Dr. Lehmann related the claimant's right shoulder pain to an incident that the claimant alleged, he did not relate the underlying injury to any specific incident. Further Dr.

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Farley expressed that the claimant had pre-existing, degenerative issues in his right shoulder and that there was no evidence of an acute injury in the right shoulder.

Four months after his alleged incident, the claimant first complained of neck pain. Dr. Kennedy opined that the claimant's issues were related to an incident in which the steering wheel became very difficult to steer with onset of "significant pain at the base of the cervical spine" "by the end of the day" on which the alleged incident occurred. See Dr. Kennedy deposition, Exhibit 2. However, Dr. Kennedy offered no opinion regarding the delayed on set of neck pain until four months after the alleged incident. He reported a similar mechanism of injury to Dr. Rutz, who was not persuaded that the alleged incident would cause such a severe injury. Dr. Rutz linked the claimant's C5-6 current disc herniation to his 2008 showing of C4-5 protrusion. Additionally, if the claimant manifest pain in his neck from an acute disc herniation, an injury that takes surgical intervention to correct, it is likely that he would have reported it to the doctors in the Memorial Hospital emergency room, Dr. Lehmann, or Dr. Farley and not waited four months to report his neck pain. This is in contrast to the medical history assumed by the claimant's forensic expert, Dr. Kennedy. Also, the first two Claims for Compensation in this matter reference alleged injury to the right upper extremity only.

Based on the credible evidence in the record, the claim must be denied, because the evidence does not support a finding that the claimant suffered a compensable injury.

The claimant also claims that he is entitled to reimbursement of medical expenses in the amount of $\ 579.00 for Dr. Moshin's services, Exhibit 11, additional medical and surgical care to relieve his cervical disc herniation, and temporary total disability from his period off work from September 15, 2015 until May 30, 2016. The claim for medical expenses is denied, because the claimant did not prove that he suffered in injury on the date of the alleged occurrence. The claim for future medical care is denied, because Dr. Rutz analysis that the claimant's injury is not related to any work accident is more credible given the claimant's pre-existing condition and the temporal relationship between the date of the alleged occurrence and the onset of the claimant's neck pain four months later. Finally, the claim for temporary total disability benefits is denied, because the physicians treating the claimant from September 10, 2015, to May 30, 2016, reflect the following:

- Memorial Hospital emergency room September 10, 2015, said to return to work in three days. See Exhibit 4.

- Dr. Lehmann saw the claimant on September 15, 2015. His records contain a slip from that date stating that the claimant should lift no more than 10 pounds, and that the claimant should not reach overhead. See Exhibit 3. His record of September 22, 2015, says the same thing.

- Dr. Farley indicated in his report of December 8, 2015, that the claimant could return to work without restriction with regard to the right shoulder.

- Dr. Rutz indicated in his report of May 3, 2016, that the claimant has been off

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Otis Saine

Injury No.: 15-069886

work since September of 2015. He otherwise does not discuss restrictions or ability to work.

Based on the evidence, the claimant did not present evidence from any medical provider to show that the claimant had sufficiently severe restrictions and limitations to show that he was not employable in the open labor market during this period. Therefore, the claim for temporary total disability must also be denied based on the evidence.

Made by:

EDWIN J. KOHNER

Administrative Law Judge

Division of Workers' Compensation