Frederick Richardson v. Aramark North American Food, Hospitality, and Facility Services, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 14-007587

**Employee:** Frederick Richardson

**Employer:** Aramark North American Food, Hospitality, and Facility Services, Inc.

**Insurer:** Indemnity Insurance Company of North America

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

The ALJ's findings appear to merge the separate issues of (1) whether the employee sustained an accident; and (2) whether the employee's work activities were the prevailing factor causing his injury and medical condition.

Section 287.020.2 provides:

> The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.

We affirm with the ALJ's determination, based on her first-hand observation of the employee's demeanor during the hearing, that the employee's account of an unusual chest wall strain due to a shoveling incident at work on February 5, 2014, was not credible. We note employee's inconsistent statements regarding whether he experienced chest pain before or after the incident and the conflict between employee's testimony and statements recorded by St. Mary's hospital staff to the effect that the employee's pain had resolved by the time he arrived at the hospital. We find the employee failed to prove that he experienced objective symptoms of a chest wall strain injury while he was shoveling snow at work on February 5, 2014. Because we affirm the ALJ's conclusion that employee failed to prove he sustained an accident within the meaning of § 287.020.2 RSMo, we need not reach the issue of whether the employee was equally exposed to the risk or hazard of shoveling snow outside of his work environment pursuant to § 287.020.3(2)(b).

MNKOI 0000811657

Injury No.: 14-007587

Employee: Frederick Richardson

-2-

Section 287.020.3.(1) provides, in pertinent part:

An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

Assuming, arguendo, that the alleged February 5, 2014, snow shoveling incident was an "accident" within the meaning of § 287.020.2, we find the employee failed to prove that shoveling snow at work was the prevailing factor causing his current medical condition and disability. We find that employee's present medical complaints are instead due to long standing preexisting, non-work related medical conditions including high blood pressure, Type 2 diabetes, coronary artery disease, hyperlipidemia, obesity, and hypertension. Therefore, in addition to failing his burden of proof on the issue of accident the employee has also failed to establish that his alleged injury on February 5, 2014, was the prevailing cause of his medical condition and disability.

**Decision**

We affirm and adopt the award of the ALJ as supplemented herein.

The May 23, 2018, award and decision of Administrative Law Suzette Carlisle is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 16th day of November 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Gurtis E. Chick, Jr., Member

Attest:

Pamela M. Hofmann/JK

Secretary

**Employee:** Frederick Richardson

**Dependents:** N/A

**Employer:** Aramark Facilities Services, LLC. 1

**Additional:** N/A

**Insurer:** Indemnity Insurance Company of North America c/o Sedgwick Claims Management Services

**Hearing Date:** February 20, 2018

**Injury No.:** 14-007587

**Before the Division of Workers' Compensation**

**Department of Labor and Industrial Relations of Missouri**

**Jefferson City, Missouri**

**Hearing Date:** February 20, 2018

**Checked by:** SC

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: February 5, 2014
5. State location where accident occurred or occupational disease was contracted: St. Louis County
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant alleged he sustained an injury to his chest wall while shoveling snow at work.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $0

1 At the start of the hearing, Mr. Amsler announced the correct name of the Employer is Aramark North American Food Hospitality and Facilities Services, Inc. The Division lists the Employer as Aramark Facilities Services, LLC. The word "Employer" will be used to refer to the Employer in this case. All references to the Employer also refer to the Insurer unless otherwise stated.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 14007587

1. Value of necessary medical aid paid to date by employer/insurer? $0

1. Value of necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: 416.00

1. Weekly compensation rate: 277.33

1. Method used for wage computation: Stipulated by the parties

COMPENSATION PAYABLE

1. Amount of compensation payable: NONE

1. Second Injury Fund liability: No

TOTAL: NONE

1. Future requirements awarded: N/A

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

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Attorney Frank Niesen.

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Issued by DIVISION OF WORKERS' COMPENSATION

injury No.: 14007587

Employee: Frederick Richardson

Dependents: N/A

Employer: Aramark Facilities Services, LLC.

Additional N/A

Insurer: Indemnity Insurance Company of North America c/o Sedgwick Claims Management Services

injury No.: 14-007587

Before the Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

On February 20, 2018, Mr. Frederick Richardson ("Claimant") appeared in person at the Missouri Division of Workers' Compensation St. Louis Office ("DWC"), before the undersigned administrative law judge, for a hearing to determine the liability of Aramark Facilities Services, LLC., ("Employer") and the Indemnity Insurance Company of North America c/o Sedgwick Claims Management Services ("Insurer"). Venue is proper and jurisdiction properly lies with the DWC.

At the hearing, attorney Frank Niesen represented the Claimant. Attorney Robert Amsler represented the Employer. The Second Injury Fund is not a party to the case. The record closed after presentation of all the evidence. Court Reporter Lori Sanders transcribed the proceedings. The parties submitted a memorandum of law on March 14, 2018.

At the start of the hearing, the parties stipulated that the following facts existed on February 5, 2014:

1. Claimant was employed by the Employer in St. Louis County;
2. Employer and Claimant operated under the Missouri Workers' Compensation Law;²
3. Employer's liability was fully insured;
4. Employer had proper notice of an injury;
5. A Claim for Compensation was timely filed;
6. Claimant's average weekly wage was 416.00; which resulted in a rate of 277.33 for temporary total disability ("TTD") and permanent partial disability ("PPD") benefits; and
7. Employer paid no medical or TTD benefits.

² Statutory references in this award are to Section 287 of the Revised Statutes of Missouri (Supp. 2014).

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The parties identified the following issues for disposition:

1. Did Claimant sustain an accident that arose out of and in the course of his employment?
2. If so, what is the injury that he sustained, and were his work activities the prevailing factor that caused the medical condition?
3. Is Employer liable for past medical expenses totaling $\ 28,601.60 ?
4. Is Employer liable for TTD benefits from February 6, 2014 to February 15 or 16, 2014 at a rate of $\ 277.33 per week?
5. What is the nature and extent of the Employer's liability for permanent partial disability ("PPD") benefits, if any?
6. Should Claimant's Exhibit 13 be admitted?

The parties identified the following exhibits and offered them into evidence:

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 14007587

Claimant's Exhibits 2-12 were admitted without objection. Employer objected to the admission of Exhibits 13 and 14 based on hearsay and these not being bills for medical services. A ruling was observed on the admission of Exhibit 13. After a review of the evidence, Exhibit 13 is admitted.³ Claimant's Exhibit 14 was admitted and the Employer made an offer of proof. Claimant's Exhibit's 1, 3, 5, 7, 10, and 11 were not offered into evidence.

Claimant objected to the admission of Employer's Exhibit J based on snowfall being a variable amount.⁴ The objection was overruled. Employer's Exhibits A through G, J and I were admitted into evidence. Exhibit H was not offered.

FINDINGS of FACT

Claimant proved the following facts by a preponderance of the evidence:

At the time of the hearing, Claimant was 59 years old with a high school education. He earned four credit hours of study at Jefferson College School of Management but he did not graduate. Since 1980, Claimant has smoked a half a pack of cigarettes per day.

Preexisting medical conditions

Prior to February 5, 2014, Claimant received medical treatment for high blood pressure and Type 2 diabetes. Dr. Randy Johnson, a cardiologist, treated Claimant before his heart attack. On July 7, 2008, while at work, Claimant had difficulty breathing. Cardiac catheterization revealed left ventricular systolic dysfunction and an ulcerated lesion. The same day, Dr. Johnson diagnosed a heart attack, performed an angioplasty and inserted two stents at St. Anthony's Hospital. After Claimant's release from the hospital, he continued to follow up with Dr. Johnson.⁵ On July 19, 2008, Claimant returned to St. Anthony's Hospital with sharp pain in his

³ In post-hearing briefs, Claimant noted Exhibit 13 is contained in Employer's exhibits that were admitted into evidence. Employer's objection is overruled and Exhibit 13 is admitted.

⁴ Mr. Niesen objected because Claimant testified the snowfall at Lambert Airport was six or seven inches on the day of the accident. However, the data sheet showed the Lambert total snowfall as 4.6 inches, a significant difference.

⁵Claimant denied giving People's clinic the following history of complaints on February 26, 2013: "Presents with complaints of chest pain, symptoms began gradually. They occur intermittently at rest, generalized for the last five months." Claimant testified he sought treatment for his shoulder, not his chest, because he could not sleep on his side. He testified the record is false. During deposition, Claimant testified he did not have chest pain between his

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back, numbness in his left arm and pressure on his chest. Cardiac catheterization revealed no abnormalities.

After the heart attack in 2008, Dr. Johnson, treated Claimant's cardiac issues until the snow incident in 2014. Claimant treated for cardiac issues with ConnectCare for chest pain consistent with angina. At People's Health Center, ("PHC") Claimant received metoprolol, a beta-blocker used to prevent angina.

In addition, Claimant self-limited his activity to avoid overexertion. He reduced the number of hours he worked in his construction business to five hours per month and referred jobs to his brothers. Before surgery he owned and maintained an apartment building. After his release from the hospital, he referred heavy lifting in the building to his brothers. Claimant disagreed with hospital records that showed he reported chest pains two weeks before the work accident in 2014. Since heart surgery, Claimant has taken a baby aspirin to help with cardiac function. Also, he carries nitroglycerin with him for chest pain.

During Claimant's deposition, he denied having chest pain between his discharge from St. Anthony's Hospital in 2008 and when he was admitted to St. Mary's in 2014. However, on January 12, 2012, People's Health Center ("PHC") diagnosed musculoskeletal complaints after Claimant reported pain throughout his entire body, aggravated with movement. On February 26, 2013, Claimant treated at PHC for intermittent left-sided chest pain when at rest, that radiated to his left arm. Medical records show Claimant's chest pain was "possibly atypical." Claimant's improvement with the use of aspirin caused concern about heart problems, so a referral was made for Claimant to have a stress test. Claimant was advised to go to the emergency department if chest pain returned.6

On May 28, 2013, PHC referred Claimant to ConnectCare for atypical chest pain. Complaints began at rest, lasted one minute and occurred almost daily. EKG results were abnormal. Joseph Ruwitch, M.D., noted Claimant's atypical chest pain was "likely non-cardiac. Cannot be certain." He recommended a treadmill stress test and exercise, and scheduled Claimant to return after test results were obtained. A stress test was again scheduled on October 16, 2013 with follow up to Cardio scheduled for October 29, 2013. However, a letter from ConnectCare states cardiology services terminated on October 1, 2013. Two stress tests were scheduled, the last one two months before the snow event, but the tests were not performed. On December 13, 2013, medical records show a stress test was planned by cardiology. Claimant had no chest pain that date. Claimant testified he did not have the stress test because he did not think he needed it.

release from St. Anthony's Hospital and his admission to St. Mary's Hospital. He did not recall the doctor advising him to go to the emergency room the next time he had chest pain. Claimant did not recall a cardiac referral for a stress test the same day.

6 During the hearing, Claimant testified the People's Health Center records dated February 26, 2013 were false. He denied receiving treatment for chest pains on that date. Claimant testified he received treatment for his shoulder. Claimant denied he received any treatment from PHC for heart problems.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 14007587

Employer hired Claimant as a floor tech, where he worked for nine months. For the past nine years, Claimant has worked as a custodian at Washington University. As a custodian, Claimant maintains entry ways, hallways, pulls trash, and cleans classrooms and bathrooms. Claimant removes snow to form a ten-foot walkway and apply salt to the ground. McMillian Hall, Claimant's assigned building, has eight entrances. Claimant's assignment included cleaning four or five entry ways to McMillian Hall.

On February 4, 2014, heavy, wet, and large snowflakes fell. When Claimant arrived for work at 5:50 a.m., Monday, February 5, 2014, six to eight inches of snow had fallen on campus. Blowing drifts of snow increased the accumulation to 10 inches in some places on campus. The temperature was about 23 degrees at 6:10 a.m., Claimant started to shovel snow. He shoveled snow with a "standard straight up shovel," with a long stick, 18 inches wide and 18 inches tall.

Claimant shoveled snow forward. The amount of snow grew thicker and higher as the snow piled up. He bent down and used the shovel to lift the snow, which weighed about 30 pounds. It took 70 to 80 shovels of snow to clear an entryway. He believes shoveling the snow forward increased his pain.

Claimant started to shovel snow from the third entryway, threw it aside, and felt pain in his chest. He continued to shovel and the pain increased, to his neck, shoulder, and arm, so he took a break. After a 10-minute break, Claimant resumed shoveling and the pain increased. Claimant took nitroglycerin pills and aspirin which he carried with him in case he developed heart attack symptoms, and he reported the incident to Mr. Jeff Barlow, the District Manager.

Washington University Medical Service provided medical treatment at the workplace. The same day, Claimant was admitted to St. Mary's Hospital and surgery was performed. Claimant was discharged from the hospital on February 7, 2014. The doctor told him he pulled a muscle but did not have a heart attack. Claimant has not had pain since his discharge from the hospital. He continues to work for Employer and shovel snow but he uses a different type of shovel. Claimant testified his treating physician returned him to work two weeks after surgery.

Claimant gave the following testimony when asked by his attorney about medical bills:

Q. And you got some bills that have been received in evidence, is that right?

A. Yes sir.

Q. And they haven't been paid have they?

A. No, sir.

The Court asked Claimant the following question:

Court: I have a question I'd like to ask. Mr. Richardson, did you say that you had surgery as a result of -well, after you shoveled snow?

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A. Yes. It went through my groin all the way up to my heart, and to see if something was blocked or anything in there. And my heart doctor - the doctor that did it said it was nothing wrong with me there.

The Court: Okay, thank you. That's all I have. Mr. Amsler, are you ready for cross-examination?

During cross-examination, Claimant identified Exhibit 4, the SSM bill from St. Mary's for his hospital stay. The bill reflects the balance owed as $6,000.00. Claimant agreed Exhibit 4 included services for a different date of injury unrelated to the alleged snow accident.

Claimant estimated snow fell three times between 2014 and 2015. Also, he testified snowfall totals from 2015 to 2017 were "about an inch and a half," at work, where he shoved snow.

To relieve chest pressure, the Clayton Fire Department provided Claimant with baby aspirin and nitroglycerin. Claimant arrived at St. Mary's Hospital Emergency Department with complaints of left-sided chest pain, radiating to his mid chest, left arm and left neck. Medical records show the pain had resolved by the time he arrived at the hospital. Claimant reported chest pain as a new injury, which began after shoveling snow. Aspirin relieved pain but the pain returned when he began to shovel snow again. Claimant reported he was "fine until last few weeks." Pain level 1/10 upon arrival at the emergency department. Two angina events reported in the prior 24 hours, treated with aspirin.

Medical records provide several histories of injury. Claimant reported no chest complaints before the work injury. Tests results were negative for cardiac catheterization and cardiac enzymes. Coronary artery disease was diagnosed. Chest discomfort was noted by treating physicians as "fairly typical" and possibly musculoskeletal. Now Claimant sees Kiran M. Kancherla, M.D., a cardiologist, every six months. Dr. Kancherla suspected worsening angina, (angina III) given Claimant's risk factors for hypertension, diabetes and smoking.

Dr. Kancherla diagnosed chest pain and coronary artery disease, and advised Claimant to follow up with him after discharge. During a follow up visit on May 15, 2014, Dr. Kancherla again opined Claimant's occasional left lower chest discomfort was "typical" and may be musculoskeletal.

---

Mr. Amsler asked Claimant: "My question is you don't recall your deposition in the case that's very important to you, but you can recall the exact snowfall from these other years?"

Claimant disagreed with St. Mary's Health Center records that say his chest pain had resolved when he arrived at the hospital.

During the hearing, Claimant denied giving St. Mary's Health Center a history of chest pain for a few weeks before the accident.

Another history contained in Exhibit C of the St. Mary's Hospital medical records gave a history of new chest pains. No mention of pain over the last few weeks or episodes of angina.

In Exhibit D, Claimant gave a history of chest pain after 20 minutes of shoveling snow.

Claimant told Dr. Kancherla his symptoms did not occur with exertion.

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Issued by DIVISION OF WORKERS' COMPENSATION

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Robert Poetz, M.D., an osteopathic physician and surgeon, performed an independent medical examination on November 5, 2015, reviewed, medical records, wrote a report, and testified on behalf of Claimant.

Dr. Poetz diagnosed musculoskeletal chest pain (strain) caused by strenuous activity at work on February 5, 2014. He noted Claimant was fully evaluated, no problem was found with his heart, or pulmonary function, the chest x-ray was normal, the weather was cold and he wore heavy clothes. Also, Claimant reported benign pain after strenuous activity he was unaccustomed to performing. Dr. Poetz opined the "dominant and prevailing factor" for the diagnosis was shoveling snow, a strenuous activity.

Claimant was not diagnosed with a strain at St. Mary's Hospital. However, Dr. Poetz testified "chest wall strain" and "musculoskeletal pain" are two ways to say the same thing. Dr. Poetz rated 15% PPD of the chest wall for the February 5, 2014 work injury.

Dr. Poetz testified smoking, high cholesterol, high blood pressure, and diabetes are all risk factors for coronary artery disease and heart disease.

Dr. Poetz noted Dr. Kancherla diagnosed probable musculoskeletal discomfort and St. Mary's Hospital tested Claimant for cardiac problems because of Claimant's cardiac history.

Russ Cantrell, M.D., is board certified in physical medicine and rehabilitation, the treatment of musculoskeletal/muscular conditions and injuries. Cardiology is not Dr. Cantrell's specialty. He reviewed medical records, interviewed Claimant on May 24, 2016, and testified at the request of the Employer. Medical records revealed Claimant had a history of chest pain radiating to his arms.

Dr. Cantrell testified Claimant had a myocardial infarction in the past. He identified the following conditions as cardiac risk factors that make it more likely Claimant will have another heart attack, i.e. hypertension, high cholesterol, diabetes, obesity, and tobacco use. Dr. Cantrell opined Claimant had these risk factors for cardiac problems before February 5, 2014.

Dr. Cantrell testified Claimant's decreased pain after taking aspirin on February 26, 2013, suggests a possible increase in cardiac disease. He noted Claimant was scheduled for a stress test in October and December 2013, and a referred to a cardiologist.

According to Dr. Cantrell, medical records show Claimant had at least two "angina episodes" 24 hours before he arrived at St. Mary's. Also, leading up to February 5, 2014 Claimant was diagnosed with angina III, which meant Claimant had symptoms before February 5, 2014. Dr. Cantrell defined angina III as the manner in which a person's heart disease impacts their day to day activities, not just symptoms at a specific point in time. However, Dr. Cantrell testified he did not diagnose angina, he restated someone else's medical records.

Dr. Cantrell concluded shoveling snow at work on February 5, 2014 was not the prevailing factor that caused Claimant's angina. Claimant's symptoms at St. Mary's were not consistent with a chest wall strain for several reasons. The records reviewed by Dr. Cantrell do

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Issued by DIVISION OF WORKERS' COMPENSATION

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not describe symptoms consistent with a chest wall strain. Claimant was not diagnosed with a chest wall strain by the physicians that evaluated him. Two medical providers, including Dr. Kancherla, a cardiologist, found no chest wall tenderness with palpation. Typically, chest wall strains result in chest wall pain and tenderness. Cardiac catheterization is not the normal treatment for a chest wall strain. Dr. Kancherla referred Claimant to himself for cardiac follow up and he does not treat chest wall strains.

In addition, Dr. Cantrell testified Claimant had chest pain with exertion and at rest before and after February 5, 2014. When someone has cardiac disease, chest pain may occur at rest, at night, when asleep, daytime, and with various levels of activity. Claimant's symptoms radiated into his neck and down his arm. Increased activity requires more blood flow to the heart, which can be a problem for people with angina, which is pain. A person can have transient ischemia to the heart muscle but if the heart is not damaged, the cardiac enzymes can be negative.

Prior to Claimant's arrival at St. Mary's, he took nitroglycerin, which resolved his chest pain. According to Dr. Cantrell, Claimant's reduction in pain was consistent with having a cardiac condition. Nitroglycerin would not affect a chest wall strain.

For the snow shoveling event, Dr. Cantrell diagnosed "atypical chest pain." Although no coronary artery lesion was found Claimant's symptoms suggest a cardiac source. Dr. Cantrell provided a number of possible diagnoses Claimant did not have, i.e. a heart attack, coronary lesion, and chest wall strain to name a few, based on cardiac isoenzymes and cardiac catheterization on February 6, 2014. Dr. Cantrell did not provide a diagnosis to a reasonable degree of medical certainty related to Claimant's February 5, 2014 medical condition.13

On redirect, Dr. Cantrell diagnosed either coronary vasospasm or gastroesophageal reflux ("GER"). Given Claimant's response to nitroglycerin, Dr. Cantrell diagnosed possible cardio vasospasms. Dr. Cantrell defined vasospasm as plaque buildup in the coronary vessels that impede blood flow overtime. In addition, spasms can cause a temporary decrease in blood flow to the cardiac muscle. The symptoms may be the same as someone having a heart attack, but once the spastic event is over the cardiac catheterization findings return to normal. Dr. Cantrell testified "a whole host" of other possible causes may explain Claimant's symptoms, before and after February 5, 2014.

Dr. Cantrell rated 10% PPD for Claimant's myocardial infarction, high blood pressure, obesity, osteoarthritis, and rotator cuff pathology that existed before February 5, 2014. He found no disability for a work-related injury.

Past medical expenses

Claimant offered the following exhibits which were received into evidence:

Exhibit 2 - Clayton Fire Department (671.60);

Exhibit 4 - St. Mary's Health Center (23,102.90);

Exhibit 6 - Cardiovascular & Thoracic Services (1,733.10);

Exhibit 8 - Clayton ER Group - 1,727.00;

13 On redirect, Dr. Cantrell testified he diagnosed either coronary vasospasm or gastroesophageal reflux ("GER").

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Exhibit 9 - Comprehensive Pathology Services (907.00),

Exhibit 13 - IP Consultants (393.00);

Exhibit 14 - Physicians Lab bill ($66.00)

On direct-examination, Claimant testified he received the bills listed above and they remain unpaid. During cross-examination, Claimant testified Exhibit 4 shows a $6,000.00 balance owed to St. Mary's Health Center for his hospital stay from February 5 to February 7, 2014. Claimant also testified Exhibit 4 contains information about a different date of injury, unrelated to the February 5, 2014 work injury.

Exhibit J contains the Daily Climate Data printout from the U.S. Weather data summary submitted by the Employer. The record reflects the highest snow fall in February 2014 in St. Louis with 3.3 inches on February 4, 2014. The greatest snow depth was four inches on February 5, 2014.14

ADDITIONAL FINDINGS of FACT and RULINGS of LAW

1-3 Claimant did not sustain an accident that arose out of and in the course of his employment and is medically causally related to a work injury

Claimant asserts he sustained an unusual strain as a result of shoveling snow at work on February 5, 2014. Employer contends Claimant failed to prove he sustained a compensable work injury. Employer further contends shoveling snow was not the prevailing factor that caused the development of vasospasm or GER.

LEGAL AUTHORITY

Chapter 287.020 defines the word "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. An injury is not compensable because work was a triggering or precipitating factor.

Chapter 287.020.3 (1) - (2) States:

(1) The term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

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

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

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

14 Exhibit J does not state the area in St. Louis where the four inches of snow fell.

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(3) An injury resulting directly or indirectly from idiopathic causes is not compensable.

(4) A cardiovascular, pulmonary, respiratory, or other disease, or cerebrovascular accident or myocardial infarction suffered by a worker is an injury only if the accident is the prevailing factor in causing the resulting medical condition.

Chapter 287.120. 1. States: Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident...arising out of and in the course of the employee's employment.

To be entitled to workers' compensation benefits, the employee has the burden to prove the injury was caused by a work-related accident. *Spencer v. Sac Osage Elec. Co-op., Inc.*, 302 S.W.3d 792, 800 (Mo.App.2010). Where the right to compensation depends upon one of two conflicting medical theories, the issue is peculiarly for the [fact finder] to determine. *Id.* (Citations omitted). Determinations about causation and work-relatedness are questions of fact to be ruled upon by the [fact finder], and the reviewing court may not substitute its judgment on the weight of the evidence or on the credibility of witnesses for that of the [fact finder]. *Id.*

Where there are conflicting medical opinions, the [fact finder] may reject all or part of one party's expert testimony which it does not consider credible and accept as true the contrary testimony given by the other litigant's expert. *George v. Shop 'N Save Warehouse Foods Inc.*, 855 S.W.2d 460, 462 (Mo.App.1993).

In a workers' compensation proceeding, the employee has the burden to prove by a preponderance of credible evidence all material elements of his claim ... . *Meilves v. Morris*, 422 S.W.2d 335, 339 (Mo. 1968).

After careful consideration of the entire record, Claimant's demeanor during the hearing, competent and substantial evidence presented during the hearing, and the applicable law of the State of Missouri, the evidence shows Claimant did not meet his burden.

1. Claimant did not prove he sustained a chest wall injury from shoveling snow at work on February 5, 2014. Claimant's testimony is not credible. He denied having any treatment for chest pain between his discharge from St. Anthony's Hospital in 2008 and his admission to St. Mary's Health Center in 2014. He testified PHC records from February 2013 are false that state he was treated for chest pains. Claimant insisted he was treated for shoulder problems, despite a cardiac consultation being scheduled and two stress tests. Claimant did not recall a doctor's advice to go to the emergency room the next time he had chest pain. He did not recall a referral for a cardiac stress test the same day but testified he did not take the stress test because he did not think he needed it.

1. Claimant admitted he told the hospital staff at St. Mary's that he took aspirin and nitroglycerin before he arrived but denied telling them the pain had resolved by the time he arrived at the hospital. He denied giving the hospital a history of chest pains a few weeks before the February 5, 2014 snow incident.

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1. Dr. Cantrell's opinion is more persuasive than Dr. Poetz's opinion. Dr. Cantrell opined Claimant may have developed cardio vasospasm, a plaque buildup in the coronary vessels that impedes blood flow to the cardiac muscle and produces symptoms of a heart attack. However, once the spastic event is over cardiac catheterization findings return to normal. Dr. Cantrell's opinion is supported by negative tests results from cardiac catheterization at St. Mary's Health Center and Dr. Kancherla's opinion of worsening angina.

1. After the shoveling incident, Claimant testified he felt soreness when he applied pressure to his chest. However, Dr. Cantrell testified two doctors failed to find chest wall tenderness during Claimant's examinations. Dr. Cantrell testified chest wall tenderness is a common finding in chest wall strains. Also, Claimant's symptoms subsided after he took aspirin and nitroglycerin, which is effective for heart attack symptoms, not chest wall strains.

1. Dr. Cantrell testified Claimant had chest pain with exertion and at rest, before and after February 5, 2014, which is common for someone with cardiac disease.

1. Dr. Cantrell is board certified in musculoskeletal conditions, Dr. Poetz is not. Dr. Cantrell does not support Dr. Poetz's opinion that musculoskeletal pain is another name for chest wall strain. Dr. Poetz attributed Claimant's medical condition to cold weather, heavy clothes, and unaccustomed physical activity. However, Claimant testified he shoveled snow at work before and after 2014. Also, Dr. Poetz's addressed PPD for the alleged chest wall sprain but did not address whether Claimant had PPD from the 2008 heart attack and how it may have affected him.

1. Based on this evidence, Claimant did not meet his burden to prove he sustained an accident that arose out of and in the course of his employment.

CONCLUSION

Claimant did not sustain an accident that arose out of and in the course of his employment. All other issues are moot.

I certify that on May 23, 2018 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: __________________________

Made by: __________________________

Suzette Carlisle

Administrative Law Judge

Division of Workers' Compensation

WC-32-R1 (6-01)

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