Jessica Timmer v. Gilster-Mary Lee Corporation

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 14-073185

**Employee:** Jessica Timmer

**Employer:** Gilster-Mary Lee Corporation

**Insurer:** Self-insured

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge 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 dated January 10, 2018, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued January 10, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 8th day of November 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Hearing Date: October 11, 2017 Checked by: LCK/kg

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? N/A
5. State location where accident occurred or occupational disease contracted: N/A
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the employer receive proper notice? Undetermined.
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 the employer insured by above insurer? Employer is self-insured.

Employee: Jessica Timmer

Injury No. 14-073185

1. Describe work the employee was doing and how accident happened or occupational disease contracted: N/A.

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: N/A.

1. Nature and extent of any permanent disability: N/A.

1. Compensation paid to date for temporary total disability: None.

1. Value necessary medical aid paid to date by the employer? None.

1. Value necessary medical aid not furnished by the employer? None.

1. Employee's average weekly wage: Undetermined.

1. Weekly compensation rate: Undetermined.

1. Method wages computation: N/A.

1. Amount of compensation payable: None.

1. Second Injury Fund liability: N/A

1. Future requirements awarded: None.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee 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 employee: N/A

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On October 11, 2017, the employee, Jessica Timmer, appeared in person and with her attorney, Sarah Elfrink, for a temporary or partial award. The employer was represented by their attorney, David Remley. The parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a summary of the evidence and the findings of fact and rulings of law, are set forth below as follows:

1. Gilster-Mary Lee Corporation was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and was duly qualified as a self-insured employer c/o TPA ESIS, Inc.
2. Jessica Timmer was an employee of Gilster-Mary Lee Corporation from October 8, 2012, through September 8, 2014, and was working under the Workers' Compensation Act during her employment.
3. The employee's claim was filed within the time allowed by law.
4. The employer did not furnish or pay for any medical aid. The employee was not claiming any previously incurred medical aid at the temporary hearing.
5. The employer did not pay any temporary disability benefits.

1. Occupational Disease
2. Date of Alleged Occupational Disease
3. Notice
4. Average Weekly Wage and Rate of Compensation
5. Medical Causation
6. Claim for Additional Medical Aid
7. Temporary Total Disability

1. Report of Injury
2. Claim for Compensation
3. Medical Records from Immediate Convenient Care
4. Medical Records from Perry County Orthopedics and Sports Medicine
5. Medical Records from Regional Brain and Spine
6. Medical Records from Flagstaff Medical Center
7. Wage Information
8. TTD Information
9. Deposition of Jessica Timmer

Employee: Jessica Timmer

Injury No. 14-073185

1. Deposition of Dr. Poetz including his C.V. and Report; and Dr. Crane's December 21, 2016 Report.

1. Cleaner's Daily Assigned Tasks Report

1. Employee Evaluation dated February 11, 2013

Employer's Exhibits:

A. Dr. Vaught's Office Note dated July 21, 2014

B. Various Forms Regarding FMLA Application

C. New Patient First Appointment Form for Dr. Vaught dated July 21, 2014

D. Dr. Vaught's Office Note dated August 11, 2014

E. Dr. Vaught's Office Note dated August 28, 2014

F. Employee's Application for Vacation dated May 21, 2014

G. Deposition of Dr. Crane

H. Curriculum Vitae of Dr. Crane

I. December 21, 2016 Report of Dr. Crane

J. April 10, 2017 Report of Dr. Crane

K. July 25, 2014 Lumbar MRI

L. August 12, 2014 Lumbar MRI

M. Chart of Dermatomes

N. Payroll Check History

Note: Some of the Exhibits admitted into evidence were highlighted at the time of admission.

Judicial Notice of the contents of the Division's file was taken.

WITNESS:

Jessica Timmer, the employee.

PROPOSED AWARDS:

The employee filed her proposed Award on November 8, 2017. The employer filed its proposed Award on November 13, 2017.

STATEMENT OF THE FINDINGS OF FACT:

The employee testified that she is 28 years old, is married and has two children ages 2 and 10. In October of 2012, she started working at Gilster-Mary Lee Corporation. She worked on the Cleaning and Sanitation Crew the entire time she was employed. Prior to working at Gilster, she did not have any problems with her back or legs; and had no treatment to her back and her legs.

The employee testified about her job duties at Gilster and discussed the Cleaner's Daily Assigned Tasks Report. One of her duties was cleaning the transfer tunnel, which is a 40-foot

**Injury No. 14-073185**

long and 8-foot wide container. She had to climb up onto a mezzanine carrying a big shop vacuum. She cleaned the transfer tunnel by shoveling, sweeping or vacuuming the cornflakes. She crawled underneath conveyor belts to clean. A second duty was vacuuming with an industrial shop vacuum under the "storeveyor" where the cornflakes were held. A third duty involved dusting the front, back and side ledges on the mezzanine platform and above the catwalk. She had to go up three ladders and carried extension poles, vacuums, chemical buckets and sprays, towels and wash clothes. She had to bend over the platform using a 3-4 pound extension pole with a metal head brush to clean the walls. The platform is about the size of a desk and there is not much space to move. The vacuum had to be dumped when it was full. She carried that vacuum down to the main floor in the storeveyor, and drug it to a specific hold and dumped the cornflakes. The cornflakes were compacted in the trash barrel. She dragged and carried barrels that weighed about 100 pounds up and down stairs to dump them and wash them. Sometimes the cornflakes were wet due to leaks in the ceiling from the rain or snow. She cleaned the storeveyor room, which was her daily job. She worked 8 hours a day cleaning, shoveling, vacuuming, mopping, dusting with vacuum and hand brush, crawling and lifting.

The employee testified that she started noticing pain in her right bottom down to her right knee 7-9 months after starting at Gilster-Mary Lee. Due to having more pain in her right knee, she thought she had something wrong with her knee or hamstring.

The employee's deposition was taken on December 3, 2014. When asked what day she sustained her back injury she testified in her deposition that she was not exact on the date but there was a time when she knew there was something wrong with her back, or she thought there was something wrong with her leg. She went to Dr. Byrne, an orthopedist, in Perryville because her legs were hurting really bad and she thought she might have pulled some kind of ligament in her leg. There was a possibility that she had a herniated disc then but no one ever told her that.

The employee testified that she reported to Cheryl Bartlett and Diane Roach that she was having back or leg problems and needed to be moved from her job duties due to leg pain. She was moved from the storeveyor to the hydrator area but it was not lighter work. She was assigned to clean, wash and sanitize several sump pumps. The sump pumps had heavy metal lids with filters underneath that had to be removed. She used a water hose and a shop vacuum to clean, bleach and sanitize the sump pumps. She had to bend over to work on the sump pumps. Cleaning the sump pumps was a hard job and it took about 3 hours. She also was responsible for cleaning the sugar tank, which was about 2 stories high and about 15 feet wide. She used a vacuum and washed the tank by hand. She climbed onto the sugar tank using a harness and leaned over to clean the sugar tanks, which took about 30-40 minutes for each tank.

The employee testified that she told Cheryl and Diane that she was having problems about the same time she went to Convenient Care and Dr. Byrne. Prior to June 17, 2014, she had pain in her buttocks and down her right leg. She told the doctor at Immediate Convenient Care that she had pain in her leg and pain from the buttocks down; and told Dr. Byrne that she had pain in the leg and pain in the buttocks down to her leg.

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**Injury No. 14-073185**

On May 20, 2013, the employee was seen by Dr. Robinson at Immediate Convenient Care in Perryville, Missouri. Her primary complaint was a sore throat, nasal and head congestion and was diagnosed with acute maxillary sinusitis. The employee also had complaints of "chronic knee pain that has bothered her off and on for the last year intermittent at first and is gradually bothering her more with time." The employee had intermittent right knee pain that she described as sharp with certain movements. On examination, the right knee showed good range of motion with no effusion or crepitus. Assessed was chronic intermittent right knee pain.

The employee testified that when she first went to Convenient Care, she was having pain behind her knee but does not remember what she told Dr. Robinson.

The employee testified when she went back to Convenient Care on July 18, 2013, she had right knee pain but the pain did not radiate from her back and she did not know it was due to her back. She did not tell Dr. Robinson that she had pain in her back and buttocks.

The employee returned to Immediate Convenient Care on July 18, 2013, and saw Nurse Practitioner Tanz and had 7 out of 10 right knee pain. Her symptoms were worse since her last visit. The history noted that her right knee pain first began during the summer of 2012. She had pain with stairs; locking, popping, giving away of the knee and swelling. She had an injury to the knee a year ago when running and it had not gotten better. She felt that she had torn something. The knee pain was more severe and was keeping her from being able to drive farther than 30 minutes at a time. The pain had moved from the back to the front of the knee around the kneecap with right kneecap numbness and right knee weakness. On examination, there was pain in the medial and lateral popliteal space and over the patellar tendon. Nurse Practitioner Tanz referred the employee to Dr. Byrne, an orthopedic surgeon.

The employee saw Dr. Byrne on July 22, 2013. She gave a history of pain in her right knee, including locking of the knee for one year. She had pain in the posterior aspect of the right knee. On examination, the employee had positive medial joint line tenderness and neurologically the sensation was intact to light touch L2-S1 and motor intact at L2-S1. Right knee X-rays showed decreased medial and lateral joint space. Dr. Byrne thought the employee probably had a right knee meniscal tear and ordered an MRI.

The employee testified that the tests that Dr. Byrne ordered on the knee showed no tears. She thought it might be her back and asked him to check it. He ordered back X-rays.

On July 31, 2013, Dr. Byrne noted pain posteriorly in her knee along her tendons with some pain anteriorly. On examination of the right knee, there was positive tenderness to palpation along the hamstring tendons distally, along the semitendinosus and biceps femoris. There was positive patella grind and apprehension. Dr. Byrne noted that the right knee MRI showed no meniscal tear. Dr. Byrne diagnosed right knee hamstring tendinitis and right knee chondromalacia. Dr. Byrne recommended anti-inflammatory medication and prescribed Naprosyn and therapy. Due to the employee complaining of pain that occasionally traveled down her leg, Dr. Byrne ordered X-rays of the low back to see if she had any spine pathology that could have caused any type of radicular pain or a hip problem which could cause knee pain.

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**Injury No. 14-073185**

A pelvic X-ray was done on July 31, 2013, due to a history of lumbar pain radiating to the pelvis. The conclusion was no fracture, periarticular erosion, hip or SI joint space narrowing. A lumbar spine X-ray performed on July 31, 2013, showed no disc space narrowing, lumbar compression or retrolisthesis. Dr. Byrne noted the X-rays of the lumbar spine were negative for any fractures or dislocations and X-rays of her hip were negative.

The employee testified at her deposition that her legs were hurting and that it never really was her low back that hurt. She went to Dr. Byrne due to her leg. Dr. Byrne reassured her that there was nothing wrong with her leg. She continued to work. She reported the leg pain to the employer and the employer knew she was going to Dr. Byrne for her leg pain. Dr. Byrne never found anything wrong with her leg because it was her back that was causing the leg pain. She thought it was from her leg because that is where the pain was.

The employee testified that after her job duties were changed, her leg complaints got worse. She complained about it multiple times but her job was not changed. Cheryl Bartlett called her to substitute when other employees were not there. Some days she got to work on the line, which was lighter-duty work. The entire time she worked at Gilster she cleaned stairs and used a scraper. She filled mop buckets, and had to scrub two flights of steps and floors. That required bending down and standing up; getting up and down; kneeling, and standing.

On May 21, 2014, the employee signed a vacation slip requesting vacation during the week of June 15, 2014, through June 21, 2014. It was approved by her foreman Cheryl.

The employee testified that on June 14, 2014, she left on vacation and went to Flagstaff, Arizona. While working at Gilster, before going to Arizona, she had pain in the low back that radiated down to her leg. It was pain below the belt line, primarily in the buttocks and back of her whole leg and foot.

At the hearing, the employee was asked about her December 3, 2014 deposition. On page 37, line 22 of the deposition she was asked, "So, Jessica is it true that you never had any back problems before the camera incident in Arizona?" The answer was "That's true, that's true." She stated that was the question and that was her answer but she misunderstood the question. The employee said she had problems in back when she went to Dr. Byrne and cannot say that her back went out during a particular work shift.

The employee testified in her deposition that she believed her back problems started at Gilster. Her back did go out in Arizona, but she does not believe that her back problems are due to bending over in Arizona. She believes that her back was messed up when she worked at Gilster because before going to Arizona her leg was hurting with a burning sensation all the way down her right leg.

The employee testified that in Arizona she did not have an accident. She picked up her camera from the back of a van and started having back spasms. She was not bending to the floor, was not twisting and she did not have a pop. She reached for her camera but did not bend all the way over. She did not think that her back problem developed at that time. She does not know

**Injury No. 14-073185**

The exact date she had back problems but knew something was wrong several months after she started working at Gilster when her leg started bothering her. It was her belief that she had something wrong before Arizona.

The employee testified in her deposition that while on vacation, she bent over and could not get back up. Her back felt okay before she bent over to pick up her camera. When she left for vacation on June 13, 2014, she did not have any symptoms and was able to work.

The employee testified that when she went to the emergency room on June 17, 2014, they asked her what was wrong and what happened. When asked if she told them that she had back pain prior to June 17, 2014, she explained that her butt and leg had been hurting for months.

On June 17, 2014, the employee went to the emergency room at Flagstaff Medical Center due to back pain. The history of present illness stated that the employee dropped her camera at the family cabin at Mormon Lake around 2:00 p.m. When she bent down to pick it up and tried to stand up, her back went out. She was having 8 out of 10 pain with some pain going into her right leg. On examination, the employee had some right SI joint pain with equivocal Patrick. X-rays of the lumbar spine showed some spasm a little to the left and some L5-S1 disc arthritis and degenerative disc disease. The Clinical Course indicated the employee had a physical therapy session and that the therapist felt that there was a right L5-S1 nerve root irritation. She improved with therapy and with Tramadol. She was discharged; was prescribed Robaxin and Tramadol; and was encouraged to follow up with her doctor in Missouri. The diagnosis was lumbar strain with lumbar radiculopathy right L5-S1.

At the hearing, the employee was asked about the emergency room records from June 17, 2014, that indicated that she dropped her camera at the family cabin at Mormon Lake and when she went down to pick it up and tried to stand up, her back went out. The employee testified that she had been having pain for months and months but it was not in the records and the facility got it wrong. She did not have any follow-up care until she returned to Missouri and saw Dr. Vaught. She did not do anything strenuous while she was in Arizona.

The employee testified in her deposition that from when she returned from vacation until she saw Dr. Vaught she did not work anywhere. She did not know it was a back problem until Dr. Vaught linked it up and explained that her pain behind the leg was from her back. In her mind, the work she did at Gilster caused the problems to her whole body.

On July 21, 2014, the employee saw Nurse Practitioner Alexander and Dr. Vaught at Regional Brain and Spine. The employee's chief complaint was pain in the lower back shooting down right inside leg. The history noted a sudden onset of lower back pain with radiating aching and numbness down the medial right leg. She described "simply" bending over to pick up a light object while on vacation June 13, 2014 as the onset of symptoms. Her current pain was 9 out of 10. The impression was sacroilitis, lumbar radiculitis, numbness, and arthritis. It was noted that her symptoms had been present for over a month. Plain X-rays were unrevealing. Dr. Vaught ordered flexion-extension X-rays to assess lumbar instability and a lumbar MRI. Mobic and hydrocodone were prescribed. The employee was kept off work.

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**Injury No. 14-073185**

A work released from Dr. Vaught dated July 21, 2014, indicated that the employee could not work until further notice.

On July 21, 2014, the employee filled out and signed a New Patient First Appointment Form. Described as her main problems associated with her appointment, the employee wrote "Due to pain in lower back shooting pain down right inside leg." In the line how long she had the pain, she left it blank. Both the yes and no boxes were circled asking if an injury caused the pain, but the yes box also has an "x" in it. The date the injury occurred was marked as June 17, 2014 in Arizona. She described the injury as "bent to grab cam, and could not get back up. The last date worked was filled out as "Jun 13, 2014 took vac," She checked the box yes that she needed work restrictions addressed for employment or insurance forms.

The employee testified that that the new patient form dated July 21, 2014 was in her handwriting. It noted an injury date of June 17, 2014. The employee did not state that she had low back pain for months and months because she was referring to the spams that occurred in Arizona.

On July 21, 2014, the employee completed employer paperwork. There was a two-page Sick Pay Benefit Form. Page 1 was completed and signed by the employee. It lists the last day worked as June 13, 2014. The three options to be circled were Illness, Accident, or Maternity. The employee circled Accident. It asked if the accident/injury happened at work and the employee circled no. When asked to briefly describe the illness/injury she stated, "hurt lower back". Page 2 is the attending physician's form, which was signed by Dr. Vaught. Injury is checked and "low back pain" is listed as the brief description of the illness/injury. It lists that the date symptoms first appeared or accident happened was June 17, 2014. When asked if the condition was due to arising out of the patient's employment, no was checked. The form noted that the patient would be continually disabled from July 21, 2014 until re-evaluation on July 28, 2014.

There was a four-page FMLA form signed by the employee on page 1, and Dr. Vaught completed the bottom of page 1 through page 4. It indicated that the employee was unable to perform her job functions including lifting, bending, stooping and twisting. The form was signed Dr. Vaught on July 23, 2014.

On July 21, 2014, the employee filed an application for family medical leave. The application was filled out and signed by the employee. She indicated that she had hurt her back away from work and that her injury was an accident. Dr. Vaught signed the Attending Physician's Statement indicating that the condition "did not arise out of the patient's employment."

The employee testified that she filled out in her own handwriting and signed the FMLA form on July 21, 2014. She circled accident, which only gave her three choices. She circled no that it did not happen at work, as she was referring to the spasm in Arizona.

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**Injury No. 14-073185**

The employee testified in her deposition she applied for and received her FMLA. She filled out and signed the FMLA form; and circled no it did not happen at work because she was not at work when her back went out.

The employee had the lumbar MRI ordered by Dr. Vaught on July 25, 2014. The history noted that the employee had lumbar pain since a twisting injury on June 17, 2014. The pain radiates to the right lower extremity. It showed that at L5-S1 the employee had a 7.1 mm broad-based subligamentous herniation at L5-S1 which indented/flattened the anterior aspect of the thecal sac and resulted in acquired spinal stenosis; and showed moderate desiccation with a moderate decrease in disc height at L5-S1. The same date, the employee had the lateral lumbar spine X-rays in flexion-extension ordered by Dr. Vaught. It showed a slight decrease in disc height at the L5-S1 disc.

On July 28, 2014, the employee returned to Regional Brain and Spine for imaging follow-up. The history of present illness noted that the employee was present for clinical correlation of recent lumbar imaging and right lateral leg pain in an L5 dermatomal pattern. The employee described a sudden onset of pain after bending and lifting to pick up an object while on vacation and her symptoms have escalated since her June 13 onset. She was interested in surgical treatment. She was unable to work due to the magnitude of her symptoms and the medications have a side effect of drowsiness. She has a difficult time sleeping due to right leg pain. On exam, she had some loss of motor function of 4+/5 in the tibialis anterior and some decreased sensation to pinprick in the right L5. She had a positive straight leg on the right. The Nurse Practitioner reviewed the lumbar MRI and stated it showed a large central L5-S1 disc herniation that compromised the thecal sac. Dr. Vaught stated that the employee had a large central disc herniation at L5-S1 somewhat eccentric to the right. She had severe right L5-S1 radicular pain and recently noticed some paresthesia and pain in the left leg in an L5-S1 pattern. Dr. Vaught recommended a bilateral L5-S1 micro discectomy due to severe pain, her failure to improve with conservative care and weakness with dorsiflexion of the right foot.

On August 1, 2014, Dr. Vaught performed a bilateral L5-S1 micro discectomy. The operative report stated that a bilateral L5 laminotomy was undertaken with a lateral recess decompression. The left S1 nerve root was retracted and revealed a large disc herniation consistent with preoperative imaging and the bilateral micro discectomy was completed. The S1 nerve roots were well visualized and well decompressed. The post-operative diagnosis was bilateral L5-S1 herniated disc with radiculopathy.

The employee testified in her deposition that two days after the surgery she started having pain in the left leg which she did not have prior to her August 1, 2014 surgery.

The employee returned to Dr. Vaught on August 11, 2014. The employee stated that the right leg pain had resolved, but that about 3 or 4 days after surgery, she developed acute onset of severe left leg pain radiating down to the foot in an S1 dermatomal pattern. She again reported difficulty sleeping and rated her pain at 9. On exam, the employee had decreased sensation in the left S1 dermatome and the left straight leg raise was positive. Dr. Vaught ordered a lumbar MRI. He prescribed a Medrol Dose Pak and Ambien; and changed her Percocet to Norco.

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**Injury No. 14-073185**

The lumbar MRI was performed on August 12, 2014, due to lumbar pain radiating to the left lower extremity with numbness. It showed a 2.7 mm broad-based subligamentous herniation at L5-S1 with asymmetry to the left, mildly effacing the left S1 nerve root. Postoperative changes were noted from the bilateral laminectomies; mild narrowing of the left lateral recess and moderate decrease in disc height. Dr. Vaught stated that the lumbar MRI revealed a recurrent left L5-S1 herniated disc consistent with the severe left leg pain that began after 3-4 days after the successful bilateral L5-S1 microdiscectomy. The pain had completely resolved prior to the recurrence of pain. Due to the severity of pain and the location and size of the recurrent disc herniation, Dr. Vaught offered a left L5-S1 redo micro discectomy, which was scheduled on August 15, 2014.

The employee testified that after the August 1, 2014 surgery, Dr. Vaught kept her off work. She asked Dr. Vaught to put back to light-duty restrictions and she wanted to go back to work due to financial problems.

The employee returned to Dr. Vaught on August 28, 2014. The employee did not show for the surgery scheduled on August 15. Dr. Vaught's history noted that at the first visit after the August 1, 2014 surgery the employee told him that she had enjoyed complete relief of her right leg pain for about four days and then developed an acute onset of left leg pain of the same type she had prior to the surgery. The employee requested a note to return to work on a light-duty basis due to financial concerns. It was noted that she did not enjoy support from her family and she suspected that her recurrent disc herniation was due to the fact that she had no help at home and that she was overdoing it as soon as she left the surgery center. She said this was because she had no help. She was in the process of moving. On August 28, the employee had bilateral intermittent lower extremity pain and her current pain was 6-7 with the left leg worse than the right. He offered to admit the employee to the hospital for pain control, obtain a new MRI and to perform redo surgery that weekend. The employee declined, stating she could not have surgery until at least October due to moving and family issues. She wanted a light-duty return to work. The August 28, 2014 Follow up Appointment Form noted the employee wanted a new appointment for surgery, refill on pain medications and a release to work light duty until surgery. She had pain of 6-7 in the bilateral buttocks, knees and feet.

The employee was asked about Dr. Vaught's note that the employee does not enjoy support from family and suspects the recurrent disc herniation was due to the fact she had no help at home and was overdoing it as soon as she left the surgery center due to no help. The employee testified that she did not say anything to Dr. Vaught other than she was in pain and needed to get back to work due to financial problems. She was having financial problems and had to move out of her house but it was not true that she was not getting support from her family.

The employee testified in her deposition with regard to Dr. Vaught's entry that she was overdoing it at home after her surgery. She had no idea what he was talking about, that maybe he meant getting her son up, dressed and ready for the school bus, but she did not leave her house following the surgery. She did not tell Dr. Vaught that she suspected her recurrent disc herniation was due to that she had no help at home and was overdoing it as soon as she left the surgery center.

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**Injury No. 14-073185**

The employee testified at the hearing that during her deposition she did not understand all of the questions and was confused; and at times felt intimated. On Page 37, line 4 of her deposition she testified that she had heard all of the questions asked by the employer's attorney and understood all of them.

The employee testified that she turned the light-duty restrictions into work to Cheryl Bartlett. She was put back on her regular duties. She cleaned steps and mopped which required bending and lifting. She did not return to work the next day because she could not perform the job tasks. She called Don Welde, the CEO of the company and let him know that Cheryl was giving her jobs that she could not do. That was the last day she worked at Gilster.

The Illness/Accident/Maternity benefit form stated that the employee's benefit period was from June 20, 2014 to August 23, 2014, and needed to be updated on September 3, 2014.

On September 5, 2014, the employee left a voicemail for Dr. Vaught requesting to be taken off work because she had been put on the floor and was not given a light-duty restriction. Dr. Vaught took the employee off work on September 5, 2014. The employee was to be reevaluated on September 22, 2014, but did show for her appointment.

The employee filed her original Claim for Compensation on September 30, 2014. The date of occupational disease was noted to be culminating on August 29, 2014. The description of injury was the employee was subject to strenuous and repetitive work causing injury to her back and body as a whole. The Division of Workers' Compensation sent the Claim for Compensation to the employer on October 1, 2014. The employer filed a Report of Injury on October 8, 2014, which noted a date of injury of August 29, 2014 and the injury occurred due to repetitive motion-cumulative strains/sprain to lower back area. The last day the employee worked was August 29, 2014. The employer was notified on October 3, 2014. The Answer to the Claim for Compensation was filed on October 15, 2014.

The employee testified that since she left Gilster, she worked at Dollar Tree for three weeks in October of 2016. She could not continue to work due to the inability to perform the required job duties including stacking things, putting things on shelves, and organizing shelves. She had trouble sitting at the hearing. She can barely sit 10 minutes at a time. Standing is most comfortable and it takes the pressure off. She does a lot of standing at her house. She leans on the counter at lot to relieve pressure and has to change positions. She has trouble sleeping and has been taking sleeping medicine the past 6 months.

The employee testified that she did not make the second surgery because she was scared to have another surgery. The first surgery was supposed to have resolved the problem but then it re-herniated. She could not afford to have another surgery because she was being evicted and lost her job. A second surgery was more time off work, and less money. She is still scared but wants surgery due to constant pain. She wants to go back to the doctor for additional treatment including surgery and is requesting medical treatment including surgery.

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**Injury No. 14-073185**

The employee saw Dr. Poetz on May 25, 2016. The employee had been employed at Gilster-Mary Lee and was a member of the sanitation crew. Her job was "very strenuous" and involved sweeping and shoveling cereal, climbing ladders, reaching with extension poles to clean tops and sides of machinery, crawling and kneeling to clean under conveyors, carrying vacuums, trash buckets and containers with cleaning chemicals up and down three flights of steps, mopping floors and scrubbing walls. After about seven months, she began to develop posterior right knee pain, which progressively worsened. Her job duties changed. She was required to work on a scissor lift with a harness and use an extension pole to reach overhead to clean ceilings, tanks and steps. She was required to clean sump pumps, which required lifting and bending and worsened her right leg pain. The employee sought treatment with Dr. Byrne but was advised that nothing was wrong with her leg. She continued to work for another year, which was becoming more difficult as she was unable to walk. On examination, she had an antalgic gait, reduced range of motion in the lumbar spine, a bilaterally positive straight leg raising tests, both seated and supine, and a bilaterally positive Patrick's test.

Dr. Poetz diagnosed bilateral L5-S1 herniated disc with radiculopathy resultant of the occupational injury culminating on August 29, 2014; was status post bilateral L5-S1 microdiscectomy performed on August 1, 2014 and resultant of the occupational injury culminating on August 29, 2014; and recurrent herniated nucleus pulposus at L5-S1 resultant of the occupational injury culminating on August 29, 2014. It was Dr. Poetz's opinion that the occupational injury was the substantial and prevailing factor to a permanent partial disability of 35% of the body as a whole. Dr. Poetz gave restrictions of avoiding pushing, pulling, heavy lifting, strenuous activity, prolonged sitting, standing, walking, stooping, bending, squatting, twisting or climbing. He recommended follow up with a neurosurgeon for additional medical treatment including surgical intervention.

The employee saw Dr. Crane on December 21, 2016. The history of present illness stated that her back and legs hurt. The employee was initially evaluated for right knee pain and was diagnosed with chondromalacia and hamstring tendonitis, which the employee said never became significantly better. The employee said that she did not have back pain or right leg pain, just some pain over the anterior and posterior aspect of the right knee. Approximately one year later while in Arizona, when leaning forward to get a camera out of a car, she developed terrible back and leg pain. She went to the emergency room and was diagnosed with lumbar radiculopathy. The terrible back pain went down the back of both thighs to the back of both calves and the plantar aspect of both feet, worse on the right. Dr. Vaught performed a bilateral discectomy at L5-S1, and she may have gotten better for a day or two, and then her symptoms recurred.

On examination, the employee had back pain only with the right and left straight leg raises. There was tenderness in the paraspinal area local to the lumbosacral junction bilaterally and painful motion that was worse with forward flexion. Dr. Crane stated that the Waddell's tests were positive. There was give away strength in all muscle groups, tested slightly worse on left. X-rays were done which showed maintained disc heights at all levels except the L5-S1, which had some slight disc height loss.

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Employee: Jessica Timmer

Injury No. 14-073185

Dr. Crane reviewed the July 25, 2014 lumbar MRI. There was slight disc desiccation but no significant disc height loss at L5-S1; and at L5-S1 a soft tissue disc herniation causing mild to moderate central and lateral recess stenosis. Dr. Crane reviewed the August 12, 2014 lumbar MRI. There was slight disc desiccation but no significant disc height loss at L5-S1, postsurgical changes at L5-S1, some fluid noted within the incision site consistent with the recent surgery. There was a small disc bulge remaining at L5-S1 that did not result in any significant stenosis and or significant epidural enhancement. It was an overall normal appearing postoperative lumbar MRI.

Dr. Crane assessed low back pain and bilateral lumbar radiculopathy. It was his opinion that the employee's work injury of August 29, 2014, was not the prevailing factor or a prevailing factor in causing the radicular type symptoms. It was his opinion that the prevailing factor causing her back and leg symptoms were the actions of lifting a camera out of the car on her vacation in Arizona. It was his opinion that nothing further needs to be done for her back and numbness in her legs, as the post-surgery MRI showed only post-surgical changes.

Dr. Crane stated that the employee suffered from low back pain and bilateral lumbar radiculopathy. Dr. Crane did not relate the low back diagnosis to the employment at Gilster-Mary Lee and did not feel that the duties at Gilster-Mary Lee are the prevailing factor in her current lumbar spine condition; and did not recommend any further treatment for her continued symptomatology. Dr. Crane did not believe that the employee's low back condition is a result of her employment at Gilster-Mary Lee.

Dr. Poetz's deposition was taken on March 13, 2017. It was Dr. Poetz's understanding that the employee's early onset symptoms were in the lower extremity behind the knee. Her later symptoms in Arizona included the back. Dr. Poetz's eventual diagnosis was a ruptured disc. It was his opinion that the employee's work duties were the prevailing factor to her ruptured disc diagnosis, to her current medical condition, and to her current disabilities. He believed that the work activities were the prevailing cause of the ruptured disc because the pain in the back of the knee was from sciatic nerve pain coming from her lower back. He stated that an L5-S1 ruptured disc causes pressure on the sciatic nerve but not necessarily to the entire sciatic nerve. Not all of the sciatic nerve distribution has to hurt. A lot of time, it is pressing on a small percentage of the sciatic nerve which will go to either the buttock, the posterior thigh, the lateral thigh, behind the knee or the lateral lower leg. There can be one of the areas but not full sciatica until there may be a complete rupture and sometimes there will be pain throughout the whole sciatic nerve. Dr. Poetz stated that early symptoms of a herniated disc can present as lower extremity pain only without back pain. If only a section of the sciatic nerve is impaired, then the radicular pain could be spotty in certain areas of the leg.

Dr. Poetz believed that the work activities were the prevailing cause over the sudden onset of pain picking up a camera in Arizona. It was his opinion that the work activities were the prevailing factor to her current diagnoses and disability because she did not have any other prevailing injury, had symptomatology prior to Arizona, had no other activities at home or elsewhere that would be at the same level as her work activities, and the pattern of her disease fits her clinical development and symptoms. Dr. Poetz thought that the picking up incident that

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MNKOI 0000811657

**Injury No. 14-073185**

created the sudden pain was the straw that broke the camel's back and which put more additional pressure on the entire sciatic nerve. Dr. Poetz disagreed with Dr. Crane's conclusion that the Arizona incident caused the problems.

Dr. Poetz agreed that some people have acute herniated discs from bending over, sneezing, and coughing. Dr. Poetz considered the possibility that the employee bent over to pick up the camera and the disc herniated at that moment. Dr. Poetz stated that picking up a camera would not be considered a significant factor, and the employee had symptoms of a ruptured disc manifesting along the sciatic nerve, which were not explained by any other reason. Radiculopathy typically occurs secondarily to acute, whereas with degenerative discs it is usually back pain first. It was Dr. Poetz's opinion that all of the employee's job duties as a collection caused her injuries.

Dr. Poetz agreed with Dr. Vaught that the employee needed additional medical treatment including surgery. It was Dr. Poetz's opinion that the employee is unable to work and continues to be unable to work until she gets additional medical treatment. It was his opinion that the employee needs additional treatment to cure and relieve her from the effects of her work-related occupational disease and the treatment flows from the work injuries.

On April 10, 2017, Dr. Crane issued a letter after reviewing additional information including the evaluation and deposition of Dr. Poetz. Dr. Crane disagreed with Dr. Poetz's opinion that degenerative changes in the back would first present with back pain followed by radicular-type symptoms. Many patients present with radicular-type symptoms who have degenerative back changes; and many patients that present with terrible back pain and terrible stenosis centrally and in the foramen with no radicular-type symptoms. It was Dr. Crane's opinion that an impingement on one of the nerve roots contributing to the sciatic nerve would cause pain in a very specific distribution down the entirety of the leg, depending on which nerve root was aggravated. It would not present in only a very specific spot by very minimal pressure on a portion of the sciatic nerve as Dr. Poetz opined.

Dr. Crane disagreed with Dr. Poetz's opinion that the employee's work is the prevailing factor causing her back and radicular symptoms due to no other inciting cause to her current symptomatology. The employee stated that she was bending down picking up a camera on vacation and developed terrible back and leg pain. Dr. Crane stated that it is very common for his patients to state they were bending down to pick up something very light off the floor, heard a pop in the back, followed by intense back and leg symptoms. He has had patients who state they sneeze or twisted awkwardly and developed terrible back and leg symptoms.

Dr. Crane stated that a small compression on a portion of the sciatic nerve would cause pain down the entirety of a leg in a very specific distribution behind which a nerve is being impinged and not specifically behind the knee itself. Pain behind the knee and anterior to the knee is most likely consistent with degenerative arthritis or meniscal tear of the knee or possible hamstring injury and not radiculopathy.

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MNKOI 0000811657

**Injury No. 14-073185**

Dr. Crane's deposition was taken on September 13, 2017. Dr. Crane is a board-certified orthopedic surgeon and specializes in the care and treatment of the diseases and conditions of the spine. When he examined the employee on December 21, 2016, she had tenuous palpation about the paraspinous muscles of the lumbar spine with pain localized in the lumbosacral junction. She had give way type strength in all extremity muscles tested. She had positive Waddell findings. Dr. Crane stated that Waddell findings are tests to look for symptomatic indication or non-physiologic pain behaviors. The employee had over exaggeration with light touch and distractive straight leg raise, pain with truncal rotation and non-physiologic weakness. Non-physiologic weakness is give way type strength. The employee made complaints of pain which did not match the maneuvers she was asked to perform in the truncal rotation test. With regard to the Distraction Straight Leg Raising test, Dr. Crane asked the employee to perform a straight leg raising test while lying on her back and while seated in a chair. Even if there is a positive supine straight leg raising test, the seated straight leg raising test should not elicit pain. Due to reported pain on the seated test, Dr. Crane reported a positive Waddell's sign.

It was Dr. Crane's opinion that the employee was suffering from low back pain with bilateral lumbar radiculopathy but did not believe that it resulted from any work-related injury. It was his opinion that the cause of the low back pain was the action of picking up the camera from her car in Arizona. Dr. Crane reviewed the August 12, 2014 lumbar MRI and did not see any evidence of a loose body or disc herniation material loose in the spinal canal and did not see any evidence the disc material was completely filling the neurocanal. It was his opinion that the employee did not need any ongoing medical treatment for her current condition and was at maximum medical improvement regardless of the cause of her problems.

Dr. Crane testified that pressure on the sciatic nerve usually causes pain in a very distinct distribution down the leg depending on which nerve was aggravated and not to one specific spot. Localized pain right behind the knee does not fit any one specific dermatome. Pain at a specific isolated and discrete location on the back of the knee does not occur if the nerve root is being impinged. With the S1 nerve root there is pain going down the entirety of the leg in the back of the thigh and knee. Anatomically the pain does not jump over the buttock and lodge itself in the knee. Patients with pinched nerves, specifically the S1 nerve, have pain going down the entirety of the back of the leg, the back of the calf and even the plantar aspect or bottom of the foot and not localizing specifically just behind the knee. The employee did not have pain down the back of the leg, down the calves and the plantar aspects of the feet until after the episode in Arizona. A herniated disc could present with leg pain and no back pain.

Dr. Crane stated that with an L5 nerve root radicular pain tends to run down the posterior aspect of the thigh to the posterior aspect of the calf, with the S1 nerve root running down the back of the thigh to the back of the calf and into the foot. Dr. Crane stated that all patients' symptoms should to some extent be consistent with textbook pain locations. If a disc herniation is on the left and they have right leg symptoms, they need to look somewhere else. There is definitely some overlap between the nerves so not everything is perfect.

Dr. Crane disagreed with Dr. Poetz's opinion that the employee's work activity was the prevailing factor. Dr. Crane stated there was a readily explainable alternate activity that

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**Injury No. 14-073185**

explained the herniation and all of the symptoms which resulted from the herniation, and that was the action of picking up the camera in Arizona. It is not uncommon for young persons that are 27 and 28 years old to get spontaneous herniations. He has had patients tell him that they sneezed or bent down to pick something off the floor and started developing back and leg pain.

It is disputed that the employee sustained an occupational disease arising out of and the course of her employment; and that the employee's injury is medically causally related to the alleged occupational disease.

Under Section 287.067.1 RSMo, the term "occupational disease" is defined to mean an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable except where the diseases follow as an incident of occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

Under Section 287.067.2 RSMo, an injury by occupational disease is compensable only if the occupational exposure 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. Ordinary, gradual deterioration or progressive deterioration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

Section 287.067.3 RSMo states that an injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure 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. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

The burden of proof is on the claimant to prove all material elements of his or her claim. See *Marcus v. Steel Constructors, Inc.*, 434 S.W.2d 475 (Mo. 1968) and *Walsh v. Treasurer of the State of Missouri*, 953 S.W.2d 632, 637 (Mo. App. 1997). The claimant has the burden to prove that the injuries and death arose out of and in the course of employment. See *Smith v. Donco Construction*, 182 S.W.3d 693, 699 (Mo. App. 2006).

The employee has the burden of proof that she suffered a work-related injury and the alleged occupational disease was the prevailing factor in causing both the resulting medical condition and disability.

Employee: Jessica Timmer

Injury No. 14-073185

condition and disability. See Armstrong v. Tetra Pak, Inc., 391 S.W.3d (Mo. App. 2012) and Bond v. Site Line Surveying, 322 S.W.3d 165 (Mo. App. 2010). A work injury is compensable only if the alleged accident or occupational disease was the prevailing factor in causing both the resulting medical condition and disability. See Gordon v. City of Ellisville, 268 S.W.3d 454 (Mo. App. 2008).

The employee's meeting her burden of proof was adversely affected by the employee's testimony being contradicted by the other evidence. The employee testified that she started having pain 7-9 months after starting work at Gilster. Since she started in early October of 2012, her pain should have started in May, June or July of 2013. Dr. Robinson's May 20, 2013 record shows that the employee had chronic knee pain for the last year. Nurse Practitioner Tanz's July 18, 2013 record noted right knee pain that began the year before during the summer of 2012 from an injury while running. Dr. Byrne's July 22, 2013 record noted that the employee gave a history of pain and locking in her right knee for one year. The history given to the healthcare providers in the summer of 2013 indicate that her knee pain began in the summer of 2012 at least several months prior to the employee starting to work at Gilster-Mary Lee.

The employee testified that she told the doctor at Convenient Care that she had pain in her leg and pain from the buttocks down. She told Dr. Byrne that she had pain in the leg and pain in the buttocks down to her leg. The May 20, 2013 and July 18 records from Convenient Care and Dr. Byrne's July 22, 2013 note only mentions right knee pain. Dr. Byrne's entry from July 31, 2013, only notes knee pain and pain that occasionally traveled down her leg.

The employee testified at the hearing that while working at Gilster prior to the June 17, 2014 incident in Arizona, she had pain in the low back below the belt line primarily in the buttocks and back of her leg and foot. In her deposition, the employee testified that her low back never really hurt and it was her legs that were hurting.

The employee testified that when she went to the emergency room on June 17, 2014, she told them that her buttocks and leg had been hurting for months. The June 17, 2014 emergency room record showed in the history of present illness that as the employee bent down and tried to pick up her dropped camera, her back went out and she had severe back pain and right leg pain. The employee testified that she had been having pain for months was not in the records and the facility got it wrong.

The employee testified that on June 17, 2014, while in Arizona, she picked up her camera from the back of a van and started having back spasms. She reached for her camera but did not bend all the way over and was not bending to the floor or twisting. The June 17, 2014 emergency record shows that the employee dropped her camera and when she bent down to pick it up and tried to stand up, her back went out. The history for the July 25, 2014 lumbar MRI noted lumbar pain since a twisting injury on June 17, 2014.

The employee testified in her deposition that she did not know she had a back problem until she saw Dr. Vaught and he linked it up and explained that her pain behind the leg was from

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**Injury No. 14-073185**

her back. At the hearing, the employee testified that when she saw Dr. Byrne she thought it might be her back and asked him to check it, and he ordered back X-rays.

Dr. Vaught's August 28, 2014 record stated that the employee did not enjoy support from her family; she suspected that her recurrent disc herniation was due to the fact that she had no help at home; and that she was overdoing it as soon as she left the surgery center because she had no help. The employee testified at the hearing that that she did not tell Dr. Vaught that she was not getting support from her family. At her deposition, the employee testified that she did not tell Dr. Vaught that she suspected her recurrent disc herniation was due to not having any help at home and was overdoing it as soon as she left the surgery center.

The employee's meeting her burden of proof was adversely affected by the fact that she had pain prior to starting to work in October of 2012. The employee told three different healthcare providers (Dr. Robinson, Nurse Practitioner Tanz and Dr. Byrne) in May and July of 2013 that her leg pain had been going on since the summer of 2012, which was at least several months prior to starting work at Gilster.

The employee's meeting her burden of proof was adversely affected by the fact that the first time she started missing time from work due to her back condition was immediately after the July of 2014 incident in Arizona. Although the employee is claiming a work-related low back condition that required surgery, it was not until immediately after the incident while on vacation in Arizona that she started missing time from work and was temporarily totally disabled.

The employee's meeting her burden of proof was adversely affected by the fact that she was not diagnosed with a low back condition until after the July of 2014 incident in Arizona. In May of 2013, Dr. Robinson diagnosed chronic intermittent right knee pain. In July of 2013, Dr. Byrne diagnosed right knee hamstring tendinitis and right knee chondromalacia. The emergency room doctor on June 17, 2014, diagnosed a lumbar strain with lumbar radiculopathy on the right at L5-S1.

The employee's meeting her burden of proof was adversely affected by the fact that the medical records after the June 17, 2014 incident all indicate that the employee's back and leg symptoms started after the Arizona incident. The June 17, 2014 emergency room records noted in the history of present illness that when she bent down to pick up a dropped camera, her back went out and she had severe back and right leg pain. The July 21, 2014 record from Dr. Vaught noted a history of sudden onset of severe lower back pain with radiating aching and numbness down the medial right leg when bending over to pick up an object while on vacation.

Dr. Poetz diagnosed the employee with a bilateral L5-S1 herniated disc with radiculopathy; status post bilateral L5-S1 micro discectomy; and recurrent herniated nucleus pulposus at L5-S1 resultant of the occupational injury culminating on August 29, 2014. It was his opinion that the employee's work duties were the prevailing factor in her diagnosis of a ruptured disc, current medical condition and current disabilities. Dr. Poetz believed the work activities were the prevailing cause of the ruptured disc because the pain in the back of the knee was from sciatic nerve pain coming from her lower back. A L5-S1 ruptured disc causes pressure

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**Injury No. 14-073185**

on the sciatic nerve but not necessarily to the entire sciatic nerve. If only a section of the sciatic nerve is impaired, the radicular pain could be spotty in certain areas of the leg.

Dr. Poetz believed that the work activities were the prevailing cause over the sudden onset of pain picking up the camera in Arizona. It was his opinion that the work activities were the prevailing factor in her current diagnoses and disability because she did not have any other prevailing injury, had symptomatology prior to Arizona, had no other activities at home or elsewhere that would be at the same level as her work activities, and the pattern of her disease fits her clinical development and symptoms. Dr. Poetz thought that the picking up incident that created the sudden pain was the straw that broke the camel's back and put additional pressure on the entire sciatic nerve. Picking up a camera would not be considered a significant factor, and the employee had symptoms of a ruptured disc manifesting along the sciatic nerve, which were not explained by any other reason. It was Dr. Poetz's opinion that all of the employee's job duties as a collection caused her injuries.

Dr. Crane diagnosed the employee with low back pain and bilateral lumbar radiculopathy. It was his opinion that the employee's work duties were not the prevailing factor in causing the current lumbar spine condition including radicular symptoms. Dr. Crane did not relate the low back diagnosis to the employment at Gilster-Mary Lee and did not believe the employee's work is the prevailing factor in causing her back and radicular symptoms. Dr. Crane stated that a small compression on a portion of the sciatic nerve would cause pain down the entirety of a leg in a very specific distribution and not specifically behind the knee itself. The pain behind the knee and anterior to the knee is most likely consistent with a degenerative arthritis or meniscal tear of the knee or possible hamstring injury and not radiculopathy.

It was Dr. Crane's opinion that the employee's low back pain with bilateral lumbar radiculopathy was not the result from any work-related injury. It was Dr. Crane's opinion that the cause of the herniated disc and all of the symptoms including low back pain was the activity of picking up the camera in Arizona. The employee stated that she was bending down picking up a camera on vacation and developed terrible back and leg pain. It was his opinion that the prevailing factor causing her back and leg symptoms were the actions of lifting a camera on vacation in Arizona.

Based on a thorough review of the evidence, I find that the opinions of Dr. Crane are very persuasive, are more persuasive, and are given greater weight than the opinions of Dr. Poetz.

Based on a thorough review of all of the evidence, I find that the employee failed to satisfy her burden of proof on the issues of occupational disease and medical causation. I find that the employee did not meet her burden of proof that the alleged occupational disease was the prevailing factor in causing both her medical condition and disability. I find that the alleged occupational disease was not the prevailing factor in the causing the injury and therefore the injury did not arise out of and in the course of the employment. I find that the employee's alleged occupational exposure was not the prevailing factor in causing both the resulting medical condition and disability. I further find that the employee did not sustain a compensable work-related occupational disease or injury that arose out of and in the course of her employment, and

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the employee's medical condition, injuries, disability and need for medical treatment are not medically causally related to the alleged occupational disease.

Given the employee's failure to prove that she sustained an occupational disease and her failure to prove a medical causal connection between her medical condition and the occupational disease, the employee's claim for compensation is denied.

Given the denial of the employee's claim on the issues of occupational disease and medical causation, the remaining issues are moot and will not be ruled upon.

Although this case was heard as a temporary hearing, the award is final.

I certify that on 1-10-18 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file. By $\qquad$