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.

WC-32-R1 (6-81)

Page 1

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.

WC-32-R1 (6-81)

Page 2

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).

WC-32-R1 (6-81)

Page 3

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