Arthur Carl Lewis v. Cassens Transport Company

- 2 -

Injury No.: 06-127113

We have carefully considered the entire record in light of the parties' arguments on appeal. Ultimately, we are not persuaded to second-guess the administrative law judge's factual findings with regard to the issue of notice, especially given her express finding that employer's witness, Scott Sullentrup, provided the more credible testimony with regard to whether employee gave him notice of his injury three weeks after the alleged accident. We additionally note that not only is there a failure to prove a lack of prejudice to the employer, the variously and materially conflicting medical histories given to employee's medical providers tend to demonstrate actual prejudice.

In sum, we conclude that no proceedings for compensation for the alleged accident shall be maintained, because employee failed to provide the notice required under § 287.420, and failed to prove that employer was not prejudiced by failure to receive the notice. Accordingly, we deny employee's claim against employer and the Second Injury Fund.¹

All other issues are moot.

**Decision**

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

The award and decision of Administrative Law Judge Kathleen M. Hart, issued January 24, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this ______ 11th ______ day of January 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

---

¹ Where employee's claim is barred by virtue of his failure to comply with the notice requirements under § 287.420 RSMo, it necessarily follows that employee has failed to prove the existence of a "subsequent compensable injury" for purposes of § 287.220.2 RSMo.

Employee: Arthur Carl Lewis

Departments: Iona Lewis

Employer: Cassens Transport Company

Additional Party: Second Injury Fund (SIF)

Insurer: Self c/o Broadspire Services

Hearing Date: October 20, 2016

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: alleged November 29, 2006
5. State location where accident occurred or occupational disease was contracted: alleged St. Louis
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? No
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant alleges injury to his low back and left knee when he missed a step climbing down a ladder.
12. Did accident or occupational disease cause death? No Date of death? n/a
13. Part(s) of body injured by accident or occupational disease: alleged low back and left knee
14. Nature and extent of any permanent disability: $\mathrm{n} / \mathrm{a}$
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

Employee: Arthur Carl Lewis

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 1,026.02
3. Weekly compensation rate: $\$ 684.01 / \ 376.55
4. Method wages computation: Stipulation

1. Amount of compensation payable:

None

1. Second Injury Fund liability:

None

TOTAL:

NONE

1. Future requirements awarded: $\mathrm{n} / \mathrm{a}$

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of \mathrm{n} / \mathrm{a} % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Employee: Arthur Carl Lewis

Departments: Iona Lewis

Employer: Cassens Transport Company

Additional Party: SIF

Insurer: self c/o Broadspire Services Inc.

Injury No.: 06-127113

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter October 20, 2016. Arthur Carl Lewis (Claimant) was represented by attorney Ron Edelman. Cassens Transport (Employer) and Broadspire Services (Insurer) were represented by attorney David Green. SIF was represented by Assistant Attorney General Adam Sandberg.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award. Any markings on the exhibits were present when admitted into evidence.

The parties stipulated to the following:

1. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law on the alleged date of injury.
2. Employer's liability was fully self-insured.
3. A Claim for Compensation was timely filed.
4. Claimant's average weekly wage on the alleged date of injury was $\ 1,026.02. His rates for TTD/PTD and PPD are $\ 684.01 and $\ 376.55 respectively.
5. Employer has paid no benefits to date.
6. Claimant's date of MMI regarding his left knee is November 12, 2009.

The parties stipulated the issues to be resolved are as follows:

1. Accident
2. Arising out of and in the course of employment
3. Notice
4. Medical causation

1. Liability for past medical expenses of $\ 71,288.34
2. Future medical care
3. TTD from January 17, 2007 through November 12, 2009
4. Permanent disability
5. SIF liability

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 76 year-old, married, male who grew up on a farm and learned mechanics from his father. When he was 16 years old, Claimant began working in his grandfather's shop on small automobiles. Claimant graduated from high school and has no college or vocational training. He was in the Army Reserves from 1963-1969 and was on active duty for six months working as a bull dozer operator. He had no injuries during his military service and was honorably discharged.
2. Claimant spent the majority of his career working in car and tractor repair. He owned his own garage for many years, and worked at his garage during the periods he was laid off from Employer.
3. Claimant was hired by Employer in July 1977 as a mechanic/welder. His duties for Employer involved welding, climbing trailers, working on brakes, and changing transmissions and clutches. He lifted up to 125 pounds, and was on his feet 80 % of the day. He worked for two years before being laid off and returning to work in his garage.
4. Claimant had a number of injuries and was diagnosed with a number of health conditions prior to the alleged primary injury. In 1974 Claimant underwent surgery to repair a hernia. He testified he continued to have pain following this injury. He had some trouble working in his garage due to his hernia.
5. In January 1984 he returned to work for Employer. On September 4, 1985, he was putting springs in a trailer when a 1500 pound jack fell onto both of his legs. He bent to lift it off, and fractured his sternum and injured his shoulders. Employer provided treatment, and Claimant testified he worked light duty for two years. The treating doctor, Dr. Walters, noted ongoing complaints to the left chest, shoulder and upper abdomen. Claimant advised Dr. Walters he was tired all of the time and not capable of performing the work required by Employer. Dr. Walters issued a 25 pound permanent lifting restriction in May 1987.
6. Dr. Walters noted in May 1987 that Claimant developed severe pain and a catching sensation in his left knee two months before, without injury. In March 1988, Dr. Walters noted Claimant's greatest complaint at that time was his left knee. He could only walk

short distances due to left knee pain. He had pain and soreness in both knees when he got out of bed. Dr. Walters' physical exam revealed tenderness in the left knee and mild enlargement of the medial aspect of Claimant's left knee compared to the right.

1. Claimant also saw Dr. Dash in 1987 for an evaluation of his 1985 injury. He noted a history of a low back injury in 1972, and he found ongoing reduced range of motion in the lumbar spine as well as pain and tenderness in the left knee.
2. After a hearing, Claimant was awarded 10 % PPD of the sternum and 10 % PPD of the left shoulder as a result of the 1984 injury. He was also awarded PPD benefits from the SIF for prior right hip, right wrist, and low back disability. Claimant testified his symptoms continue. His chest hurts if he lifts 25 pounds. He has occasional right shoulder pain, even when he is not lifting.
3. Claimant testified he was laid off in 1987 because he could not lift heavy weights due to his sternum injury. Claimant returned to working in his own garage. He worked on cars, and limited what he lifted because of his ongoing hernia and sternum symptoms.
4. In the late 1990s, Claimant was diagnosed with diabetes and sought treatment at the VA Hospital in Columbia, Mo. He continues to treat at the VA for this condition, and takes Insulin shots twice a day. Claimant testified the diabetes affected him while working. He often felt like he was going to pass out and had to take a break. He testified these symptoms continue and when his blood sugar is low, he has no strength.
5. Claimant was diagnosed with hypertension in the early 2000s. He continues to treat at the VA, and takes daily medication. He testified the hypertension did not bother him much while he was working, but he can't do much lifting due to this condition.
6. On November 12, 2002, Claimant went to the VA with complaints of right shoulder and right knee pain that limited his walking. He was diagnosed with right knee osteoarthritis. He was seen again in April 2003 for right shoulder and right knee arthritis symptoms. In September 2004, Claimant returned with right knee and low back pain. The doctor recommended a lumbar MRI and prescribed Tramadol for low back pain.
7. In 2005 Claimant developed Dupuytren's contracture in his left hand and trigger finger in his left middle finger. He had surgical releases in 2006, and the hospital records indicate a history of a fall several weeks ago when his knee gave away. After his hand healed, he was released to return to work without restrictions. Claimant testified his hand still hurts when gripping tools, and he has to use two hands to grip now.
8. In September 2006, Claimant passed the pre-employment physical and was brought back to work for Employer without restrictions.
9. Claimant testified he was welding on top of a trailer on November 29, 2006. When he climbed down the ladder, he missed a step, and he twisted his left foot. He fell onto his left knee and had sharp pain in his left knee and in his low back. Claimant was alone in

the shop at the time, and did not tell anyone that day about his injury. His shift was about over, and he went home.

1. On December 7, 2006, Claimant went to a chiropractor, Dr. Ellenbogen, on his own. This was his first medical treatment after the alleged accident. His patient questionnaire indicates his symptoms appeared December 2, 2006. Dr. Ellenbogen noted Claimant had low back pain radiating to his knees, and Claimant related his pain to odd positions at work. Another health history form from December 7 recites a history of accident while stepping off a trailer three weeks ago. The records indicate complaints of left leg, left knee and low back pain. Claimant continued seeing Dr. Ellenbogen into January.
2. Claimant testified he told Jimmy Woods, a fellow mechanic welder, about the accident approximately a week after the accident. He testified he also told his union steward, Dennis Miller, about the accident. Claimant testified accident he told Scott Sullentrup, his supervisor, about the injury three weeks after it happened, and he requested treatment. Claimant testified Mr. Sullentrup would not tell him which doctor to see and did not respond to his question regarding treatment.
3. On January 16, 2007, Dr. Ellenbogen noted Claimant had no back pain and developed left leg pain last Thursday with no specific trauma. The records state Claimant told Dr. Ellenbogen his complaints began a month earlier after he stepped off a trailer, but he was feeling better until last Thursday. Dr. Ellenbogen recommended an MRI of the knee and back.
4. Claimant also went to the Emergency Room on January 16, 2007 complaining of left leg and knee pain of one month duration since he twisted his knee stepping off a trailer. The pain worsened the night before. Claimant was taken off work and given medication and a knee immobilizer. He was referred to Dr. Matthews, an orthopedic surgeon, for followup care.
5. Dr. Matthews saw Claimant January 17, 2007. He noted Claimant injured himself about two months ago at work. He had not turned it into workers' compensation, but was considering it. Dr. Matthews noted Claimant had been using a cane for a couple of weeks due to increased left knee pain, and he recommended an MRI.
6. On January 17, 2007 Claimant went to work and completed "Employee Injury Investigation Report" (Exhibit 12). Claimant listed an injury date of November 29, 2006, and stated he notified Jim Woods of the accident on November 29, 2006, and notified Scott Sullentrup of the accident on January 16, 2007. Claimant stated he injured his knee and low back but had no symptoms for the first 24 hours, there were no witnesses to the accident, and Claimant first sought treatment December 7, 2006, with Dr. Ellenbogen.
7. On January 18, 2007, Jim Woods wrote a note stating Claimant told him sometime in late November that he hurt himself stepping down from a trailer. He wrote that Claimant told Mr. Woods he was in pain and it was hard for him to stand.

1. Scott Sullentrup was the shop manager on the alleged date of injury. He testified via deposition regarding Employer's procedures for reporting accidents. Employees reported their injuries to him, and he then completed a Supervisor's Report. He brought that information to the safety director, Kevin Nelson, and then contacted the workers' compensation insurance adjuster. The adjuster advised Employer where to send an injured worker for treatment. Mr. Sullentrup testified he was first notified of Claimant's injury on January 16, 2007. He completed a Supervisor's Report indicating he was notified of the injury on January 16, 2007, and Claimant alleged a left knee injury. He would not have directed Claimant's medical treatment until the forms were completed.
2. Kevin Nelson wrote a statement on January 22, 2007, reporting Claimant came to him that date to ask about his claim. Mr. Nelson indicated Claimant failed to report the injury for over six weeks, and had been receiving medical treatment on his own. Claimant advised Mr. Nelson he did not know he was supposed to report it and he did not start hurting until about a week after the accident. Claimant advised he told Jim Woods about the injury the date it happened. Mr. Nelson also noted Claimant advised the pain hit him all at once on January 12, 2007, and he could not walk for three to four days.
3. Employer sent Claimant to BarnesCare January 26, 2007. The doctor noted Claimant's history of a fall two months ago, and noted Claimant had seen a chiropractor for low back pain and left knee pain. Claimant testified the doctor told him he was disabled from work but did not provide any treatment. He never returned to work.
4. On February 2, 2007, Insurer sent Claimant a letter denying the compensability of his claim and advised him to send his medical bills to his health carrier. Claimant testified Employer never provided treatment for his low back or left knee.
5. Claimant next saw Dr. Frederick. The records indicate a history of a work accident consistent with Claimant's trial testimony. Dr. Frederick diagnosed a torn meniscus and mild osteoarthritis of the left knee. On March 19, 2007, he performed arthroscopic surgery consisting of a partial medial meniscectomy, chondroplasty of the medial femoral condyle, and resection of medial synovial plica. His post-operative diagnosis was degenerative tear of the medial meniscus, with grade III chondromalacia of the medial femoral condyle and patella. On March 22, 2007, Dr. Frederick noted Claimant had very substantial osteoarthritis in his knee, it was possible the arthroscopic procedure would not sufficiently control his symptoms, and he may need a total knee replacement.
6. Claimant's symptoms continued. On April 26, 2007, Dr. Frederick noted Claimant had a varus deformity in his left leg, and he diagnosed osteoarthritis of the medial compartment. He reviewed the arthroscopic photos, noted the severe arthritis, and opined Claimant may need a unicompartmental knee replacement.
7. In May 2007, Dr. Frederick recommended a knee replacement. He prescribed a cane to relieve the effects of Claimant's osteoarthritis. Claimant was scheduled for surgery in the fall of 2007, but his diabetes was not sufficiently controlled. In the spring of 2008, Claimant improved, and he had the unicompartmental release April 14, 2008 to address what Dr. Frederick assessed to be osteoarthritis in the left knee. Follow-up records

showed progress and that Claimant no longer used a walking aid. In February 2009, Dr. Frederick noted Claimant had considerable pain and difficulty walking. He diagnosed bursitis and treated Claimant with injections and medications. On November 12, 2009, Dr. Frederick again noted Claimant's continued pain. He opined Claimant may need further surgery if his symptoms worsened, and he released Claimant to return as needed.

1. In January 2009, Claimant presented to the VA doctor with complaints of chronic low back pain for years. He had not had any treatment on his back since his January 2007 chiropractic treatment. He was not taking medications, and was diagnosed with osteoarthritis of both knees and the low back. Lumbar x-rays showed multilevel degenerative changes with osteophyte formation, endplate sclerosis, facet sclerosis, and joint space narrowing. A March 2011 lumbar MRI showed multilevel Schmorl's nodes, disc dessication, osteophyte complexes and multilevel neural foraminal stenosis.
2. Over the next few years, the records document falls due to both knees giving out. Claimant was routinely seen for bilateral knee and low back pain. On December 10, 2012, Claimant presented to the VA with complaints of chronic low back pain that had worsened over the last few days. He reported he had fallen because his knees gave way.
3. December 12, 2012 Ellis Chiropractic records show complaints of low back, left foot and left knee pain after he stepped off a trailer November 29, 2006. This record also notes low back pain that began four days ago, but Claimant did not know what caused the symptoms.
4. Claimant continued treating at the VA for a variety of conditions including degenerative joint disease of the right hip and right knee, and multilevel degenerative changes in the lumbar spine. He had a right total knee replacement in March 2015. There is no reference to or recommendation that he use a walker.
5. Claimant testified he began wearing a back brace about three years ago. It does not help much, but lessens his complaints a little bit. He had physical therapy at the VA in 2016, but this did not relieve his symptoms.
6. Claimant testified prior to the work injury, his left knee and low back did not cause him any difficulty. He testified he did not use a cane or walker, and neither of his knees gave out before the work injury. Claimant continues to have difficulty with stairs, sitting, standing and walking greater than 50 feet. His left knee is weaker and he feels he has about 60 % of the strength he had before. It gives out a few times a week causing him to fall, so he uses a walker or a cane to balance himself. He can't lift more than 25 pounds and can't kneel or squat. He does not sleep well because of his low back and left knee. He awakens three times a night and wakes up tired everyday. He has to rest a few times a day for 30 minutes to an hour. He does not remember if he had trouble sleeping before the 2006 injury, but his deposition testimony indicates he did have trouble sleeping before this injury. He testified he continues to take prescription and over the counter pain pills, but there is no reference in VA medical records to a prescription for pain medications.

1. Prior to 2006 Claimant baled hay as a hobby. He had no limit to how much he could do, and he baled as many as 200 bales an hour. He still does some hay baling for friends. He drives a tractor and the mow machine cuts the hay. He now has a hard time climbing into the tractor and he has to stop about every 30 minutes to get off the tractor. Claimant also still repairs a few carburetors a year for friends as a hobby.
2. Claimant believes he can't return to work because of his left knee and low back. He can no longer use the weed eater or mow the yard without a riding mower because of his low back pain. He can't hunt or fish anymore because he can't walk far. He can't do many household chores, and he can only drive short distances.
3. Claimant testified if he considered the left knee and low back symptoms from the 2006 injury alone, he could not work. He can't do anything because of the pain. This injury itself precludes him from prolonged sitting, standing, walking, stooping, bending, squatting, twisting, and climbing. His pain is severe and he is not able to lift anything.
4. Claimant incurred medical bills as outlined in the exhibits. All these bills are for treatment for his low back and left knee and all relate to records that are in evidence. The bills were paid by his Medicare and Medicaid. He is only getting one collection notice from Central States seeking reimbursement.
5. Claimant's medical expert, Dr. Poetz, reviewed the records, examined Claimant, and issued a number of reports. He noted Claimant had an antalgic gait and carried a cane on his left side. He had bilateral knee crepitus and decreased motion. He diagnosed a lumbar strain, lumbar degenerative joint disease, a meniscus tear, and left knee osteoarthritis; all of which he attributes to the primary injury. He diagnosed a number of prior conditions, rated the disabilities, and opined Claimant is totally disabled as a result of the combination of his primary injuries and prior disabilities. He testified Claimant needs ongoing pain medication and will eventually require further surgery on his knee.
6. Dr. Poetz testified although Claimant had degenerative changes in his knee prior to the work injury, his meniscus tear was not degenerative and was caused by the injury. Dr. Poetz testified Claimant is totally disabled due to a combination of injuries. He also testified the total disability is related to the last injury alone, then again testified the total disability is due to a combination of disabilities.
7. Claimant's vocational expert, Gary Weimholt, reviewed the records, interviewed Claimant, and issued a report in January 2011. He noted Claimant had been using a cane when he left the house for the past four years, and he used an electric cart when he went to the store. Claimant spent his career performing mechanical work and has no computer or office skills or certificates. Mr. Weimholt opined Claimant does not have transferable skills at either light or sedentary levels. He has no skills or abilities within his physical capabilities. He concluded Claimant is totally vocationally disabled from employment and there is no reasonable expectation an employer would hire him. He opined Dr. Poetz's restrictions from the primary injury prevent Claimant from performing the full range of light or sedentary work. He opined these restrictions, in and of themselves, are sufficient to result in total disability.

1. Employer's medical expert regarding the left knee, Dr. Milne, reviewed the records, examined Claimant, and issued a number of reports. He diagnosed degenerative arthritis of the left knee and a degenerative meniscus tear. He opined Claimant's work accident was not the prevailing factor in causing his knee condition. Dr. Milne testified the left knee MRI done before surgery showed medial compartment osteoarthritis and X-rays showed joint space narrowing in both knees. Dr. Frederick noted degenerative joint disease, a degenerative tear, and Grade III changes of the weight-bearing surface at the time of surgery. Dr. Milne testified there is no evidence from the surgery that there was an acute component to the tear. These degenerative conditions pre-existed the work accident, and the findings are consistent with arthritis that develops over time. Dr. Milne testified Dr. Poetz's opinion was not logical given Dr. Frederick's post-operative diagnoses.
2. Employer's medical expert regarding the low back, Dr. Petkovich, reviewed the medical, examined Claimant and issued a number of reports regarding Claimant's low back. He noted Claimant had low back pain without radiation and bilateral knee pain secondary to arthritis. X-rays showed significant underlying degenerative lumbar disc disease throughout his lumbosacral spine. He reviewed the March 2011 lumbar MRI and opined it showed degenerative disc disease throughout the lumbar spine. These are chronic degenerative changes which were not exacerbated or accelerated by the work injury. He opined Claimant had longstanding degenerative lumbar disc disease that was present long before the work accident. The work accident was the prevailing factor in causing a lumbar strain, which has resolved. Claimant needed six weeks of physical therapy or chiropractic care following the strain, then he would have reached MMI. Claimant has no PPD from the work injury. He opined Claimant's low back treatment at the VA was unrelated to the work accident.
3. Employer's vocational expert, Karen Kane-Thaler, reviewed the records and issued a report in September 2006. She listed a number of job categories Claimant could perform and contacted employers in his area. She opined Claimant has a work history that would allow him to transfer into alternative employment opportunities, but his prior medical conditions could impact his ability to resume work and reduce access to the open labor market. Based on all of the expert's opinions, Claimant could have returned to work until 2011. His non-work related and preexisting conditions are what preclude him from working.

Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented and the applicable law, I find the following:

Section 287.420 (RSMo 2005) provides "No proceedings for compensation for any accident under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the accident, unless the employer was not prejudiced by failure to receive the notice." The purpose of the notice requirement is to give the employer timely opportunity to investigate and provide medical attention if an accident occurred.

Here it is undisputed Claimant did not provide written notice within thirty days. The requirement of written notice can be circumvented if Claimant can show Employer was not prejudiced by the lack of such notice. A prima facie case of no prejudice is made upon a showing that Employer had timely actual notice.

Further, Claimant asserts he gave a co-employee, Jim Woods, oral notice the day of the accident. Mr. Woods is not Claimant's supervisor, and notice to a co-worker is not sufficient notice. Claimant asserts he gave oral notice to his supervisor, Scott Sullentrup, three weeks after the accident. Mr. Sullentrup credibly disputes this allegation. He had no notice of the alleged accident until January 16, 2007, seven weeks after the alleged accident. This testimony is corroborated by Claimant's own statement in the Injury Investigation Report (Exhibit 12). He stated he notified Mr. Sullentrup of his accident on January 16, 2007. Still further, Dr. Matthews's notes of January 17, 2007 contradict Claimant's direct testimony at trial.

Between the alleged accident date and January 17, 2007, Claimant elected private treatment and incurred medical bills of $\ 624.00. There is no credible evidence he demanded treatment from Employer. Employer was not able to control the medical expenses, investigate the alleged accident, or interview Claimant or his co-workers.

Employer did not have notice of the injury until January 16, 2007. Thus, Claimant failed to provide proper, timely notice of his injury to Employer and failed to prove a lack of prejudice to Employer for his untimely notice.

Assuming, arguendo, Claimant's responsibility to give notice was satisfied, Claimant offered insufficient evidence to establish he was injured by accident. Section 287.020.2 (RSMo 2005) defines an accident as 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". Claimant testified he sustained an injury when he missed a step while climbing down a ladder on November 29, 2006.

Claimant made no demand for treatment and began treating privately with Dr. Ellenbogen eight days after the alleged accident. Claimant completed the patient questionnaire at his first

visit on December 7, 2006, and stated his symptoms began December 2, 2006. He did not answer the question of whether the condition was due to an injury arising out of his employment. The doctor's notes indicate Claimant related his low back symptoms to odd positions at work, without mention of a ladder, and did not notice his symptoms until the next day while squatting at work. A second patient questionnaire also dated December 7, states his symptoms started when he stepped off a trailer at work three weeks ago.

The January 2007 medical records from Dr. Ellenbogen, St. John's, Dr. Matthews, and the VA each contain different accounts of the injury and indicate a worsening of knee symptoms in January 2007.

Claimant continued working throughout this course of treatment, and did not miss work until January 17, 2007. I find it compelling that Claimant saw multiple doctors of his own choosing and there is not a consistent account of the alleged accident among them. There are multiple dates of onset of symptoms, even as late as January 2007. It is difficult to reconcile the many versions of Claimant's account of the accident. Accordingly, I find Claimant failed to meet his burden to prove a work accident occurred.

Claimant's medical expert, Dr. Poetz, diagnosed a lumbar strain, lumbar degenerative joint disease, a left knee meniscus tear, and left knee osteoarthritis, all as a result of the alleged accident. He testified the meniscus tear was not degenerative. He asserted Claimant was totally disabled as a result of the combination of his primary and prior disabilities, and he testified Claimant was totally disabled as a result of his primary injury alone. Dr. Poetz's opinion is not grounded in the treatment records and is unconvincing.

Employer's expert, Dr. Milne, also a surgeon, opined Claimant's meniscus tear and degenerative changes in the left knee pre-exist the alleged work accident. His opinion is bolstered by the findings of the knee surgeon, who visualized Claimant's knee less than four months after the alleged accident. The surgeon opined the tear appeared degenerative and Claimant had very substantial osteoarthritis in his knee. Further, the medical records document a history of left knee symptoms dating back to 1987. Dr. Poetz's opinion is not reconcilable with these medical facts.

Employer's spine expert, Dr. Petkovich, opined Claimant has osteoarthritis in his low back. His opinion is bolstered by objective medical tests showing multilevel degenerative changes throughout Claimant's spine. Dr. Petkovich testified these changes were present long before the work accident. Further, Claimant had no treatment on his low back between January 2007 and January 2009 when he presented to the VA with complaints of chronic low back pain for years. He was diagnosed with osteoarthritis in his low back, and x-rays showed multilevel degenerative changes. Dr. Petkovich testified the ongoing low back treatment at the VA was not related to the work accident.

I find the opinions of Dr. Milne and Dr. Petkovich more persuasive than Dr. Poetz and find Claimant failed to establish his symptoms are medically and causally related to his work.

Claimant failed to provide proper notice of his alleged work accident. In addition, I find he failed to establish he sustained a compensable work accident, and his alleged injuries are not medically and causally related to the alleged accident. All remaining issues are moot. Employer is not liable for past TTD, past or future medical, or permanent disability benefits. Having found Claimant failed to establish a compensable work accident, I further find the SIF has no liability, and the SIF claim is hereby dismissed.

Made by: $\qquad$

KATHLEEN M. HART

Administrative Law Judge

Division of Workers' Compensation