Carole Jones v. Menard's, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-070736

**Employee:** Carole Jones

**Employer:** Menard's, Inc.

**Insurer:** Menard's, Inc. c/o Gallagher Bassett

This workers' compensation case is submitted to the Labor and Industrial Relations 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 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 administrative law judge and award no compensation in the above-captioned case.

We affirm and adopt the award of the administrative law judge.

The September 11, 2018, award and decision of Administrative Law Judge Melodie A. Powell is attached and incorporated herein.¹

Given at Jefferson City, State of Missouri, this 25th day of June 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornelia-Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

**Attest:**

Curtis E. Chick, Jr., Member

Secretary

¹ The last sentence of paragraph four on page 13 of administrative law judge's award states, "Claimant has failed to meet her burden under Section 287.195, RSMo (emphasis added)." Section 287.195 establishes the proof required in claims for compensation for hernia and does not apply to this case. As the administrative law judge earlier notes in paragraph five on page ten of her award, the employee's burden of proof in this case is established by § 287.020.3(1) RSMo. This clerical error did not affect the rights of the parties and it does not affect our ability to properly review this appeal.

Injury No.: 15-070736

Employee: Carole Jones

The pivotal issue in this case is whether the employee's work accident of September 14, 2015, is the prevailing factor causing the injuries and conditions alleged in her compensation claim.

Carole Jones, a retail store employee, sustained a work injury on September 14, 2015, while lifting fifty-pound bags of birdseed off a flatbed cart and onto a shelf. Employee's injury occurred while she was deep cleaning employer's bird food aisle after an insect infestation. Employee initially complained to employer and employer's designated physician Dr. Janet Elliot about pain in her upper back and shoulder region. The record, including employee's testimony, demonstrates that employee's symptoms for this region, as well as her lower back, have persisted since the date of injury. The evidence further documents a history of medical intervention from September 14, 2015, to present for employee's ongoing shoulder and back pain.

On September 23, 2015, employee's physical therapist noted employee's report of soreness in her upper trapezius region and assessed a dorsal strain. Through October of 2014, employer's physician Dr. Elliot prescribed light duty to employee to recuperate from injury to her back. On January 19, 2016, two days after employee visited the emergency room for pain to her mid and lower back, Dr. Elliot informed employee that she was at maximum medical improvement and released employee from her care.

The majority's award relies on the ratings of employer's expert, Dr. Michael Chabot, who concluded that employee's lower back strain was unrelated to her September 14, 2015, work injury. Dr. Chabot provided no treatment and saw employee only one time. He based his conclusion regarding medical causation of employee's lower back strain, in part, on the lapse in time between the employee's initial injury and her subsequent complaint of lumbar pain. Dr. Chabot nevertheless conceded when deposed that lumbar strain can come from an injury such as employee suffered.

The majority's finding that employer was not responsible for any past or future medical expenses because employee failed to establish a causal link between her work injury and her low back condition ignores employee's testimony about the location of the pain as well as her recollection that she was limping the day of the injury. Both are evidence of more than an injury located in her shoulder. The majority fails to appropriately credit the independent medical examination of Dr. Michael Snyder, who found all current symptoms of employee's lumbar spine directly related to her September 14, 2015, work injury. Given the lack of evidence of prior or subsequent injury to any part of employee's lower back, it is against the evidence to find employee's lower back strain unrelated to her September 2015, work injury.

Employee's attorney correctly notes that determination of a specific amount of or percentage of disability is a factual finding within the special province of the Labor and Industrial Relations Commission (Commission) and that the Commission is not required to adopt a physician's rating for an injury. *ABB Power T & D Co., v. Kempker*, 236 S.W.3d 43, 52 (Mo. App. 2007). Based on the evidence from employee's treating physicians, an award of 15% of the body as a whole for permanent disability to

Injury No.: 15-070736

Employee: Carole Jones

- 2 -

employee's cervical, thoracic and lumbar spine is appropriate. Employee should also receive compensation for outstanding medical bills related to her work injury in the amount of $3,360.00, as detailed in employee's brief.

I respectfully dissent from the majority's denial of all compensation in this case.

Curtis E. Chick, Jr., Member

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Carole Jones

Injury No. 15-070736

**Employee:** Carole Jones

**Dependents:** N/A

**Employer:** Menard's, Inc.

**Additional:** N/A

**Insurer:** Menard's, Inc. c/o Gallagher Bassett

**Hearing Date:** June 27, 2018

**Injury No.:** 15-070736

**Before the**

**DIVISION OF WORKERS' COMPENSATION**

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

**Checked by:** MAP/sb

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: September 14, 2015

1. State location where accident occurred or occupational disease was contracted: Jefferson City, Missouri

1. Was above employee in employee of above employer at the alleged time of the accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did the accident or occupational disease arise out of and in the course of employment? Yes

1. Was a claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was moving 50 lb. bags of bird seed.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: neck

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carole Jones

1. Nature and extent of any permanent disability: None
2. Compensation paid to-date for temporary disability: $\ 0
3. Value of necessary medical aid paid to date by employer/insurer: $\ 7,449.46
4. Value of necessary medical aid not furnished by employer/insurer: $\ 0
5. Employee's average weekly wage: $\ 474.07
6. Weekly compensation rate: $\ 316.05
7. Method wages computation: $\quad \ 287.250 .4, RSMo.

1. Amount of compensation payable:

None

TOTAL: None

1. Future requirements award: None

Employee: Carole Jones

Injury No.: 15-070736

Dependents: N/A

Employer: Menard's, Inc.

Additional: N/A

Insurer: Menard's, Inc. c/o Gallagher Bassett

Hearing Date: June 27, 2018

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MAP/sb

The evidentiary hearing in this case was held on June 27, 2018, in Jefferson City, Missouri. Employee, Carole Jones, appeared personally and by counsel, Matthew Uhrig. Employer, Menard's, Inc., c/o Gallagher Bassett, appeared by counsel, Thomas J. Pettit. The parties requested leave to file post-hearing briefs. Leave was granted and the case was submitted on August 6, 2018.

1. Whether Employee's work accident was the prevailing factor in causing her low back condition;
2. Whether Employer is responsible for Employee's past medical expenses;
3. Whether Employer is responsible for Employee's future medical expenses;
4. Whether Employer is responsible for any PPD benefits;
5. The value of Employee's average weekly wage and corresponding TTD and PPD rates.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Cole County;
3. That Employee sustained an accident arising out of and in the course and scope of her employment with Menard's, Inc., on September 14, 2015;
4. That the accident resulted in injuries to Employee's neck;
5. That Employee met the notice requirement of Section 287.420 .
6. That the Claim for Compensation was filed within the time allowed by the statute of limitations, Section 287.430 RSMo;
7. That both Employer and Employee were operating under and subject to the Missouri Workers' Compensation Law at all relevant times;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carole Jones

Injury No. 15-070736

1. That Menard's, Inc., c/o Gallagher Bassett, fully insured Employer's Workers' Compensation liability at all relevant times;

1. That demand for medical was made on 12/1/16, 5/15/17, and 5/23/17;

1. That compensation for total temporary disability has been paid to date in the amount of 0;

1. That necessary medical aid has been paid to date in the amount of 7,449.46;

1. That $3,600 of medical aid from Capital Regional Medical Center has not been paid to date.

**EVIDENCE**

The evidence consisted of Claimant's live testimony; Kasey Parks' deposition testimony; Ryan Olson's deposition testimony; Dr. Snyder's IME report and CV; Medical Records-SSM Occupational Medicine; Medical Records-Select Physical Therapy; Medical Records-Capital Region Medical Center 5/2/16; Medical Records-Capital Region Medical Center 7/20/16; Medical Records-Capital Region Medical Center 11/7/16; Medical Records-Capital Region Medical Center 5/17/17; Medical Records-Capital Region Medical Center 1/19/18; Medical Bills-Capital Region Medical Center 5/23/18; Employer's Report of Injury; Claimant's wage statement; Dr. Chabot's report and deposition testimony; and Claimant's deposition testimony.

**FINDINGS OF FACT**

**Lay Testimony**

Carole Jones ("Claimant") was born on April 17, 1969. She currently works at Phoenix Programs, Inc. in Columbia, Missouri, as a Residential Support Service Specialist. She described her job duties at Phoenix Programs and indicated that she spends most of the day sitting at her computer assessing new residents. She worked at Menard's, Inc., ("Employer") as a Pet/Grocery Specialist from 2013 through 2016 and was terminated on January 22, 2016, for insubordination after refusing to sign a write-up.

Claimant's position at Menard's, Inc., required her to stock shelves and remove items that were expired, as well as perform other types of miscellaneous cleaning and organizational duties. She worked 40 hours per week prior to September 14, 2015, and believed she made approximately 10.85 or 10.95. Claimant's wage statement documents that she made $10.95 per hour and worked anywhere from 35 to 48 hours per week. (Employer's Ex. B). Additionally, the wage statement reflects that she was paid $528.80 for "CMCC" the week of June 20, 2015. (Employer's Ex. B).

On September 14, 2015, Claimant testified she was instructed by her manager to perform a deep clean of the bird seed aisle along with another employee, Jay Gill. (Employer's Ex. D). The cleaning process required the two employees to take bags of bird seed ranging from 5 lbs. to 50 lbs. off the shelves and load each one onto a flatbed cart. Once the bags were removed, the shelves were wiped off. Approximately 4-5 hours into the process of cleaning the bird seed aisle she pulled a 50 lb. bag of bird seed off a chest high shelf and laid the bag across her arms, which were extended outward and parallel to each other. As she twisted to place the bag of bird seed on top of the other bags on the flatbed cart, which did not require her to bend over, she felt a sudden sharp pain in her back.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carole Jones

Injury No. 15-070736

Following the onset of pain, she sat down to take a breath. After some time, she was able to continue the task of cleaning the bird seed aisle, but she only moved small bags of bird seed until the end of her shift. As she clocked out, she informed the manager of the wall coverings department, Jay Gill, that she was sore. As she was in the process of leaving the store, Jay Gill informed her that she was limping. Claimant had not noticed that she was limping. She stated that the initial pain was located in her lower back, not her neck, and that although her supervisor was present, she did not seek treatment immediately.

When Claimant returned home the night of September 14, 2015, she used a heating pad and ice pack on her lower-mid back. On the following morning, September 15, 2015, Claimant was unable to move her neck. Additionally, she was unable to twist and move her shoulders which resulted in an inability to get out of bed without the assistance of her husband. Claimant testified that she was experiencing pain predominantly in her neck and shoulders, but still had the same pain in her lower-mid back that was present the previous night. She stated that she was off work that day, so she rested but experienced no improvement to her symptoms.

On September 16, 2015, Claimant clocked in for her shift and immediately went to the HR department to inform Menard's of the injury and to request treatment. The HR representative sent her to Dr. Elliot at SSM Occupational Medicine. In addition to sending the claimant to Dr. Elliot, the HR representative filled out a Report of Injury which noted a "stiff neck". (Employer's Ex. A). Claimant testified that she was not able to recall who she discussed the injury with, or what she told that individual regarding her symptoms, but she did not believe she used the phrase "stiff neck". On cross-examination, Claimant conceded that because the Report of Injury only referred to symptoms in her neck, it therefore accurately reflected the statements she made to the HR representative.

Claimant initially presented to Dr. Elliot on September 16, 2015. She stated she told Dr. Elliot that she was experiencing low back pain and neck pain, but admitted that the medical records only documented neck pain, and that she had no reason to doubt the records' accuracy. Additionally, Claimant admitted that her neck was her primary concern. Claimant stated that Dr. Elliot checked her range of motion and diagnosed her with a cervical strain and prescribed medication and physical therapy.

Following her initial visit with Dr. Elliot, Claimant took a day or two off work, after which she returned with light duty restrictions. She testified that in accordance with the restrictions, she worked as a cashier and in the lawn and garden department.

Claimant had a follow-up appointment with Dr. Elliot on September 23, 2015, nine days after the incident, where she reported that her neck was much better, but she was experiencing back pain. Claimant attended physical therapy from October 2015 through January 2016. On days when she both worked and attended physical therapy, Claimant was unable to perform many of the physical therapy exercises. Sometimes physical therapy would improve her symptoms, but only temporarily. On one occasion, the physical therapist told Claimant to see a doctor about a spinal curve that was developing. Claimant returned to Dr. Elliot and requested an MRI or x-ray as suggested by her physical therapist, but Dr. Elliot was rude to her. Claimant stated that Dr. Elliot did not believe her back to be crooked and as a result Claimant called her physical therapist, Tony, to speak with Dr. Elliot. Claimant testified that Dr. Elliot called Claimant a liar. She stated that Dr. Elliot spoke with Tony but admitted that she was unable to hear the content of the conversation. Claimant admitted that Dr. Elliot offered to take an x-ray of

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carole Jones

Injury No. 15-070736

her mid-back but she refused because she felt uncomfortable. Claimant indicated that she was unaware that Dr. Elliot released her from care following this appointment.

Claimant testified that in early 2016 she was experiencing back pain while working. She tried to relieve the pain by lying on the concrete floor at Menard's, however, the pain persisted and as a result she went to the emergency room on January 17, 2016, after she notified her supervisor of her symptoms. Claimant conceded that no one from Menard's had instructed her to go to the emergency room; rather, her attorney told her she should seek treatment. Claimant testified that she followed up with Dr. Elliot on January 19, 2016. She stated that she told Dr. Elliot of her ongoing back pain, but Dr. Elliot told her she was at maximum medical improvement ("MMI").

Since the injury, Claimant's symptoms have not improved in that she continues to experience pain in her "whole back". Her spine feels compacted and "squished", and she experiences sharp pains in her lower back, as well as a "heavy feeling" in her mid to upper back. Claimant sought treatment at the emergency room in May 2016 where she was complaining of severe back pain. She stated that according to the doctor, she was experiencing muscle spasms. The doctor treated her with an injection to the affected area.

In August 2016 Claimant saw Dr. Patel per the recommendation of an emergency room physician. Dr. Patel did an initial diagnostic evaluation, took an x-ray which showed degenerative disk stenosis, and prescribed various medications to treat her pain. She continued treatment with Dr. Patel every month with her most recent appointment having taken place in March 2018 where Dr. Patel recommended pain management.

Claimant returned to the emergency room in April 2017 after a sudden onset of pain. She testified that after her shift ended at Dillard's, where she worked after termination from Menard's, she went home to change. As she reached for her pajama pants on the top of her dresser, which was at chest height, she felt a sharp pain that caused her to fall to the floor. Following the emergency room treatment, she sought treatment from Dr. Patel who recommended an MRI which showed stenosis, thinning in her disks, and no herniation. Dr. Patel has not imposed any work restrictions, but is prescribing medication.

Claimant testified that numerous medical bills from Capital Region Medical Center remain unpaid, totaling approximately $3,600.

In her current position at Phoenix Programs, Claimant experiences pain in her right trapezius after sitting at her computer for long periods of time. She experiences pain almost exclusively in her neck while at work, and when she twists she can hear her neck "crinkle." Claimant is paid $14.00 per hour, rarely works overtime, is not required to lift anything and has the freedom to move around so as to avoid prolonged sitting or standing. On the date of hearing, Claimant rated her pain at a six on a scale of one to ten, with the pain starting just below her shoulder blades and continuing down her entire back. She experiences some difficulty sleeping and takes Gabapentin and Baclofen as prescribed by Dr. Patel, which helps with both the pain and sleeping. She also takes Meloxicam and Tramadol on an as-needed basis.

Currently, Claimant's biggest complaint is lower back pain as well as pain radiating down both legs. She stated that the leg pain comes and goes and is more prominent on her right side. Claimant stated there is "nothing [she] can't do" but, rather, that she just has to do things differently.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carole Jones

Injury No. 15-070736

Claimant first presented to Dr. Elliot at SSM Occupational Medicine on September 16, 2015, for treatment. (Claimant's Ex. 9). The history given was that she was lifting heavy bags of bird food at work and has had "horrible neck pain" since that incident. (Claimant's Ex. 9). Her husband had to help her get up and down from a laying position. The examination revealed tightness in the cervical region. Dr. Elliot diagnosed her with a cervical strain. (Claimant's Ex. 9). Dr. Elliot allowed her to return to work with a 15-pound lifting restriction and prescribed Flexeril, Motrin, Tramadol, and cervical exercises. (Claimant's Ex. 9).

Claimant saw Dr. Elliot on September 23, 2015, for a follow up. (Claimant's Ex. 9). Claimant advised Dr. Elliot that her "neck was much better", and that she was able to move it. (Claimant's Ex. 9). Claimant also complained of back pain and stated that "it always happens after standing for more than 3-4 hours." (Claimant's Ex. 9). Dr. Elliot noted that Claimant found relief by laying on a hard surface. (Claimant's Ex. 9). In terms of Claimant's neck, Dr. Elliot concluded that her cervical strain had improved. (Claimant's Ex. 9). On September 30, 2015, Dr. Elliot noted Claimant's pain level remained unchanged. Upon evaluation, Claimant's cervical range of motion was normal, there were no neck spasms present, and Claimant's neck pain had resolved. (Claimant's Ex. 9). On exam, Claimant had soreness in the upper trapezius area and into the dorsal region of the spine. Dr. Elliot diagnosed a dorsal strain.

Claimant began physical therapy sessions at Select Physical Therapy on October 6, 2015. (Claimant's Ex. 10). The reason for the referral to physical therapy was "dorsal strain". Pain location was noted to be in the thoracic area. There was nothing in the physical therapy records of that date suggesting any low back complaints. On October 20, 2015, the therapy records note moderate trigger points in the right upper trapezius and mild trigger points in the left upper trapezius and rhomboids. There was no mention of any low back pain.

The physical therapy notes on October 22, 2015, indicate that she had somatic dysfunction involving the thoracic region, specifically T6, T8, T10, and T12. Treatment was provided for thoracic somatic dysfunction. (Claimant's Ex. 10). There were no notes regarding any lumbar abnormalities. (Claimant's Ex. 10).

On October 27, 2015, the physical therapy records indicate that her pain is four on a scale of one to ten in the upper back and that her upper back pain worsens as the day goes on.

At the physical therapy visit on December 23, 2015, Claimant complained of pain in her thoracic spine, slightly lower than before. She had pain with thoracic range of motion and there was a continued presence of somatic dysfunction. (Claimant's Exhibit 10).

Claimant attended another physical therapy session at Select Physical Therapy on January 5, 2016, where she reported that her back pain had worsened. (Claimant's Ex. 10). The physical therapy notes indicated that her subjective neck disability index was rated at 36%, a reduction from the previous rating of 60%. (Claimant's Ex. 10).

Claimant again treated at Select Physical Therapy on January 12, 2016, where she complained of neck pain for the last time. The notes indicated that her neck disability index was rated at a 36%. (Claimant's Ex. 10). The records stated that Claimant has tried to keep up with her exercises, but did not perform them as much as she should. (Claimant's Ex. 10). Claimant stated during the session that her back still hurts in the middle, but lower now. (Claimant's Ex. 10).

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carole Jones

Injury No. 15-070736

10). Claimant returned to Select Physical Therapy on January 14, 2016, where she stated that her back "continues to hurt lower than before." (Claimant's Ex. 10). Numerous physical therapy notes indicate that Claimant tolerated the exercises with mild complaints. (Claimant's Ex. 10). The physical therapist noted somatic dysfunction at T11, L2, and L5. This is the first mention of any specific low back concerns by the physical therapist.

Claimant sought treatment in the Emergency Room at Capital Region Medical Center on January 17, 2016. (Claimant's Ex. 11). Claimant stated she injured her back in August or September, but had no complaints of neck pain. (Claimant's Ex. 11). Physical examination revealed a normal range of motion, tender to palpation, and normal strength and tone. (Claimant's Ex. 11). She was given an injection of Toradol and Norflex as well as prescriptions for Cyclobenzaprine and Meloxicam. (Claimant's Ex. 11).

Claimant visited Dr. Elliot on January 19, 2016, for a follow up on back pain. (Claimant's Ex. 9). Claimant stated her therapist said she needed an MRI or x-ray. (Claimant's Ex. 11). Dr. Elliot called the physical therapist while Claimant was present, and the therapist stated she did not believe she needed either one, but was concerned because Claimant got frequent back spasms. (Claimant's Ex. 11). The records indicate that her initial cervical spine injury had resolved, her upper dorsal complaints were treated on September 23, 2016, she did not suffer from any subsequent injuries following treatment, and she was not permanently disabled following treatment. (Claimant's Ex. 11). Dr. Elliot noted that Claimant attended physical therapy sessions for upper dorsal pain, not neck pain. As a result, Dr. Elliot informed Claimant that an exam of the lumbar and lower dorsal areas of the spine fell outside of the covered injury area, while Claimant felt that any area of her back should be covered. (Claimant's Ex. 11). Dr. Elliot offered to perform an x-ray of the dorsal region but Claimant refused. Dr. Elliot suggested she seek treatment with her primary care physician for those particular back complaints, as the lumbar complaints "[were] not related or caused by her injury of 9-14-15." (Claimant's Ex. 11).

Four months later, on May 11, 2016, Claimant sought treatment from the Emergency Room at Capital Region Medical Center. (Claimant's Ex. 12). She stated that her lawyer referred her to the Emergency Room. (Claimant's Ex. 12). Claimant gave a history of being injured at work and having been prescribed pain medications, but had not established care with any doctor. (Claimant's Ex. 13). Claimant complained of back pain, but not neck pain. (Claimant's Ex. 12). She stated she was out of medication but the doctor did not provide her with any medications as the emergency room doctor would not provide her a prescription for chronic pain. (Claimant's Ex. 12).

Claimant again sought treatment from the Emergency Room at Capital Region Medical Center three months later on August 12, 2016, and advised that she had injured herself at work but had not established care with any doctor. (Claimant's Ex. 13). Claimant then scheduled an appointment with Dr. Patel. (Claimant's Ex. 13).

Claimant presented to Dr. Patel on August 24, 2016, to establish care. (Claimant's Ex. 13). Dr. Patel's exam revealed that her active and passive range of motion was intact, there was mild tenderness to palpation over the thoracic and lumbar spinal muscles, but not over the cervical spine region. (Claimant's Ex. 13). Dr. Patel noted Claimant was taking Tramadol, Cyclobenzaprine and Tylenol. Dr. Patel prescribed Meloxicam for her back pain. X-rays of the thoracic spine showed no fracture or subluxation, but lower thoracic endplate osteophyte formation was noted. (Claimant's Ex. 13). X-rays of the lumbar spine showed no fracture or

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carole Jones

Injury No. 15-070736

subluxation and minimal L5-S1 disc space narrowing. (Claimant's Ex. 13; Employer's Ex. C).

The work slip from Dr. Patel's office indicated that she was allowed to return to modified work on August 24, 2016. (Claimant's Ex. 13). She was instructed to avoid activity that would aggravate her symptoms. (Claimant's Ex. 13).

On January 5, 2017, Claimant's counsel contacted Dr. Patel by correspondence, to ascertain information related to Claimant's treatment. Dr. Patel advised Claimant's counsel, through a note from her assistant, that she was not treating Claimant for a workers' compensation injury and, therefore, did not feel comfortable discussing the details of her treatment. (Claimant's Ex. 14). The note indicated that Claimant "no showed" for her next appointment. (Claimant's Ex. 14).

Claimant presented to Dr. Snyder on March 23, 2017, for an Independent Medical Examination at the request of her attorney. (Claimant's Ex. 4). Claimant continued to have low back pain, especially when walking, sitting, or standing for extended periods of time. (Claimant's Ex. 4). She denied any numbness or tingling. Claimant had pain that radiated into her right leg, to her calf. (Claimant's Ex. 4). Dr. Snyder administered straight leg raise tests which resulted in pain through the right posterior aspect of the right thigh, but was negative in relation to the left leg. (Claimant's Ex. 4). Dr. Snyder evaluated Claimant's neck which revealed full flexion, extension, and rotation, as well as a negative Spurling's test. (Claimant's Ex. 4). She indicated that she had been seeing Dr. Patel on her own and that Dr. Patel ordered x-rays of the thoracic spine which were normal. Dr. Snyder reviewed the x-rays that showed L5-S1 disc narrowing and diagnosed Claimant with an overuse injury from lifting 50 lb. bags of material at work. (Claimant's Ex. 4). Dr. Snyder did not diagnose Claimant with a neck injury, and did not comment as to whether Claimant was permanently disabled to any degree. (Claimant's Ex. 4). Dr. Snyder recommended an MRI of the lumbar spine. (Claimant's Ex. 4). Dr. Snyder's report was not supplemented with any analysis of the MRI which was performed on June 5, 2017. (Claimant's Ex. 16; Claimant's Ex. 4).

Claimant presented to the Emergency Room at Capital Region Medical Center on April 30, 2017, where she complained of pain in her low back that radiated down her left leg. (Claimant's Ex. 14). Claimant advised that she reinjured her back after reaching for a pair of pajama bottoms the previous day. (Claimant's Ex. 14). Claimant was given Toradol and Norflex injections prior to being discharged. (Claimant's Ex. 4).

Claimant presented to Dr. Patel on May 3, 2017, for re-evaluation. (Claimant's Ex. 14). Claimant was diagnosed with acute left-sided low back sciatica. (Claimant's Ex. 14). The notes indicated a stop of Cyclobenzaprine and Diclofenac, and a start of IBU. She was also taking Baclofen, Tramadol and Meloxicam. (Claimant's Ex. 14).

Claimant again presented to Dr. Patel on June 5, 2017, for an MRI of the lumbar spine. (Claimant's Ex. 16). The results showed mild degenerative changes at L4-5, no acute disc herniation or central canal stenosis. X-rays showed stenosis and bone spurs, as well as possible nerve compression and damage. (Claimant's Ex. 16).

Dr. Chabot saw Claimant on August 11, 2017, at the request of the Employer. On June 1, 2018, he testified by deposition as to the findings contained in his IME report. (Employer's Ex. C). Dr. Chabot testified that the medical records supported a strain injury to the cervical and thoracic region as a result of Claimant's work-related injury. Dr. Chabot testified that Claimant's treatment for her lumbar spine symptoms was unrelated to her work injury, and that there was no

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carole Jones

Injury No. 15-070736

causal relationship between claimant's low back complaints and her work duties. (Employer's Ex. C). Dr. Chabot noted that her low back complaints were not reported until significantly after the date of injury, and escalated in severity even when she was not employed by Menard's. (Employer's Ex. C). Dr. Chabot opined that Claimant had reached MMI regarding her neck and thoracic injuries as related to the injury of September 14, 2015, and that she had reached MMI by the end of her final visit with Dr. Elliot in January 2016. (Employer's Ex. C). Dr. Chabot testified that Claimant's complaints of acute left sided back pain to Dr. Patel on May 3, 2017, were inconsistent with her prior complaints of back pain. (Employer's Ex. C). Dr. Chabot testified that Claimant could return to full and unrestricted work duties, and that she sustained a 0% PPD to the cervical and thoracic spine as a result of the work-related injury. (Employer's Ex. C). Her physical examination showed no objective physical findings to the cervical and thoracic spinal regions that could be deemed as residuals associated with her work-related injury. It was Dr. Chabot's opinion that Claimant's low back complaints were not related to the work injury of September 14, 2015. On cross-examination, Dr. Chabot testified that in general, lifting heavy objects could cause a lumbar spine injury. (Employer's Ex. C).

RULINGS OF LAW

The parties stipulated that the alleged injury occurred on September 14, 2015 that Claimant was employed by Employer on or about that date, and that an accident occurred on that date resulting in an injury to Claimant's neck. The issue which must be addressed is whether the incident of September 14, 2015, is the prevailing factor in causing Claimant's low back condition and any resulting disability.

Claimant bears the burden of proof on all essential elements of her workers' compensation case. *Fisher v. Archdiocese of St. Louis-Cardinal Ritter Institute*, 793 S.W.2d 195 (Mo. App. E.D. 1990) overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. 2003). The fact finder is charged with passing on the credibility of all witnesses and may disbelieve testimony absent contradictory evidence. *Id.* at 199.

Based on a comprehensive review of the evidence described above, including Claimant's testimony, the medical opinions and deposition, and the medical treatment records, and based on the applicable laws of the State of Missouri, I find the following:

1. **Claimant's September 14, 2015, work accident was not the prevailing factor in causing her low back condition.**

Under the Act, an injury shall be deemed to arise out of and in the course of employment only if it is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury. RSMo. § 287.020.3(1). The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. *Id.*

The burden of proof is on the Employee to show not only that an accident occurred and that it resulted in injury, but also that there is a medical causal relationship between the accident, the injury, and the medical treatment for which the Employee is seeking compensation. *Dolen v. Bandera's Café and Bar*, 800 S.W.2d 163 (Mo. Ct. App. 1990). In order to prove medical causation between the alleged accident and medical condition, the Employee in cases involving

10

TI1678-0811

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carole Jones

Injury No. 15-070736

any significant medical complexity must offer competent medical testimony to satisfy his/her burden of proof. *Brundige v. Boehringer Ingelheim*, 812 S.W.2d 200 (Mo. Ct. App. 1991).

Medical causation must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause. *Shelby v. Trans World Airlines*, 831 S.W.2d 221, 222 (Mo. Ct. App. 1992). Where the opinions of medical experts are in conflict, the fact-finding body determines whose opinion is the most credible. *Townser v. First Data Corp.*, 215 S.W.3d 237, 242 (Mo. Ct. App. 2007).

To prove entitlement to benefits under these sections, Claimant needed to present credible evidence supporting her contention that she sustained an acute, accidental injury on September 14, 2015, while working for Employer that resulted in chronic lumbar pain and radiculopathy. Additionally, she needed to present competent, credible, and reliable evidence to show that the lumbar spine condition was medically causally connected to her September 14, 2015, accident.

I find Claimant failed to provide competent and credible evidence and testimony on her own behalf to substantiate her burden of proof in this matter. There are a number of discrepancies documented in the records.

At hearing, Claimant testified that when she initially presented to Dr. Elliot for treatment she told Dr. Elliot she was having low back and neck pain. The contemporaneous medical records of September 16, 2015, document that she only complained of neck pain. The treatment records confirm that Claimant made absolutely no mention of lower back pain at this appointment. Physical exam was performed on Claimant's cervical spine and she was diagnosed with a cervical sprain. Additionally, on the Report of Injury, Claimant only complained of a "stiff neck." Claimant conceded that because the Report of Injury only referred to symptoms in her neck, it accurately reflected the statements she made to Menard's HR department on September 16, 2015.

On September 30, 2015, she reported that her symptoms were "about the same" and she was prescribed physical therapy. Because of complaints in the thoracic spine and trapezius area, Dr. Elliot diagnosed a dorsal strain. Claimant confirmed that she reported to physical therapy between October of 2015 and January of 2016. The physical therapy records reflect she was referred for a dorsal strain. Claimant testified that she was unable to do many of the physical therapy exercises and denied that physical therapy provided her any benefit. However, the physical therapy records indicate that she was able to tolerate the treatment well and only had mild complaints.

The records confirm that the first complaint of lower-mid back pain occurred when Claimant presented to physical therapy on December 23, 2015, more than three months after her alleged accident. The complaints related to the lower part of the middle back and not specifically the low back. She continued to attend physical therapy and testified that her physical therapist recommended she undergo an MRI or x-ray on her back. The physical therapy records lack any discussion regarding the alleged recommendation for additional imaging studies.

Although the records fail to contain any indication that an MRI or x-ray was recommended, Claimant presented to Dr. Elliot on January 19, 2016, requesting an imaging

11

TI06980188

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carole Jones

Injury No. 15-070736

study be done on her low back. After Dr. Elliot contacted the physical therapist by phone, it was confirmed that no recommendation for an MRI or x-ray had been made. Dr. Elliot advised Claimant that her treatment was limited to the September 14, 2015 neck injury. She offered to perform an x-ray of the dorsal spine but Claimant declined. Dr. Elliot released Claimant from treatment and reported that "her dorso-lumbar complaints ... [were] not causally related to her" September 14, 2015 accident.

Following her January 19, 2016 appointment with Dr. Elliot, Claimant did not obtain treatment for nearly four months. When she was next evaluated at Capital Regional Medical Center on May 11, 2016, she confirmed that she was only seeking an evaluation because her lawyer had directed her to do so. At that time, she reported a history of chronic back pain; there was no history of any recent injury.

Although Claimant testified that she continued to have pain in her low back after being evaluated at Capital Regional on May 11, 2016, she again did not obtain any further treatment for over three months. She first contacted Dr. Patel on August 24, 2016, and reported that she had injured herself at work.

Claimant did not demand treatment for the low back from the Employer until December 1, 2016, some 15 months after the date of injury. At no time did Claimant file a Request for Hardship Hearing as allowed by Chapter 287.

On January 5, 2017, Claimant's counsel contacted Dr. Patel to discuss Claimant's workers' compensation case. In response, Dr. Patel specifically indicated that she had not seen Claimant for a workers' compensation injury and, therefore, did not feel comfortable discussing the matter.

Dr. Snyder did a complete review of Claimant's treatment records. His summary of the records from Dr. Elliot fails to mention that Dr. Elliot treated claimant primarily for neck pain and some dorsal pain. His summary of the physical therapy records fails to note that Claimant was referred to physical therapy for dorsal strain. Dr. Snyder fails to note that the medical records contain no complaints of low back pain until January, 2016, four months after the injury date of September 14, 2015. Dr. Snyder seems to be basing his opinion on what Claimant told him in the examination as opposed to what the contemporaneous medical records reveal. Dr. Snyder recommended an MRI. The MRI was performed on June 5, 2017, however, Dr. Snyder did not provide any type of addendum report addressing the MRI findings.

Dr. Chabot concluded that the timeline surrounding the onset of the lumbar complaints was inconsistent with the premise that they were related to the September 14, 2015 accident. He opined that Claimant suffered a cervical and thoracic strain as a result of the work injury of September 14, 2015.

Neither Dr. Elliot nor Dr. Patel opined that Claimant's work accident was the prevailing factor causing her ongoing low back symptoms. After Claimant reported neck and upper back complaints to Dr. Elliot and failed to complain of low back pain until four months after her injury, Dr. Elliot indicated that the only injury sustained on September 14, 2015, was a cervical

12

MNKOI 0000423574

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carole Jones

Injury No. 15-070736

strain. Dr. Patel, who was Claimant's own chosen treatment provider, declined to communicate with Claimant's counsel because she did not believe Claimant's ongoing issues were related to her workers' compensation case. The only physician who opined that Claimant's work injury resulted in radiculopathy and disc impingement was Dr. Snyder, who apparently did not have the opportunity to review the MRI, which confirmed degenerative changes with no acute herniation.

The credibility of Claimant's testimony was negatively impacted by the timeline of the events surrounding her alleged work injury and the description of ongoing injuries. Despite the alleged severity of her low back symptoms, the medical records do not reveal any complaints until January, 2016, four months after the work injury. She then waited four more months before seeking treatment, and only reported to Capital Regional in May of 2016 because her attorney instructed her to do so. After the emergency room visit in May, 2016, Claimant again did not have any treatment for her low back complaints until August, 2016, three months later. Claimant made no demand for low back treatment from the Employer until December 1, 2016.

I do not find Dr. Snyder's conclusions persuasive. Dr. Snyder ignored the issues with the timeline surrounding the injuries and the timeline of treatment. He failed to note that the treatment Claimant initially had was all related to her neck and thoracic spine. Despite reviewing treatment records confirming that Claimant failed to complain about actual low back issues until January 2016, Dr. Snyder concluded the September 14, 2015 accident was the prevailing factor causing lumbar radiculopathy and disc impingement. Dr. Snyder's opinion was not consistent with the medical evidence presented in this case.

Claimant failed to provide clear and convincing testimony on her own behalf, and failed to offer competent, credible or reliable medical testimony to substantiate that the accidental injury occurring on September 14, 2015, was the prevailing factor in causing her low back condition. Claimant has failed to meet her burden under Section 287.195, RSMo.

1. Employer is not responsible for Employee's past or future medical expenses

Since I find that the work accident of September 14, 2015, was not the prevailing factor in causing Claimant's low back condition, there is no need to address Claimant's past or future medical expenses. Employer is not responsible for past or future medical.

1. Employer is not responsible for any permanent partial disability benefits.

When seeking disability benefits with respect to a work-related injury, the employee has the burden of proof to show that a disability resulted and the extent of such disability. Zimmerman v. City of Richmond Heights, 194 S.W.3d 875, 878 (Mo. Ct. App. 2006). The employee needs to prove the nature and extent of disability by a reasonable degree of certainty. Id.

Proof of extent of disability is not required to be made with mathematical exactness, nor is the factfinder bound by percentage estimates or other testimony of medical experts. Hall v. Spot Martin, Inc., 304 S.W.2d 844, 954 (Mo. 1957). It is the duty and special province of the factfinder to weigh all the evidence and reach its own conclusion as to percentage of disability

13

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carole Jones

Injury No. 15-070736

suffered. Haggard v. Snyder Const. Co., 479 S.W.3d 142, 145 (Mo. Ct. App. 1972); ABB Power T & D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. Ct. App. 2007).

Among the factors relied upon to establish a percentage of disability in an employee are: the review of medical restrictions and expert opinions, *Ball-Sawyers v. Blue Springs School District, et al.*, 286 S.W.2d 247 (Mo. Ct. App. 2009); whether the injury impairs the employee's efficiency in the ordinary pursuits of life, *Smith v. Donco Construction Co.*, 192 S.W.3d 693 (Mo. Ct. App. 2006); whether the injury limits the earning capacity of the employee, i.e., limits his ability to perform certain work, *Feltrop v. Eskens Drywall and Insulation*, 957 S.W.2d 408 (Mo. Ct. App. 1997).

Lay testimony can constitute substantial evidence of the nature, cause, and extent of disability, especially when taken in connection with or where supported by other evidence. *Treasurer v. Steck*, 341 S.W.3d 869 (Mo. Ct. App. 2011).

Claimant underwent authorized reasonable and necessary treatment related to her September 14, 2015 work injury until January 19, 2016. At that time, Claimant had no complaints of neck pain and Dr. Elliot diagnosed resolved neck and upper dorsal pain and stated that Claimant had 0% PPD of the body as a whole.

Claimant last complained of neck pain on January 12, 2016 while attending physical therapy. She attended physical therapy on January 14, 2016 and January 18, 2016 without any mention of neck pain. When Claimant presented to Dr. Elliot on January 19, 2016 she complained of pain in the lower back region but the records do not reflect any neck complaints. On both January 17, 2016 and May 11, 2016 Claimant was evaluated at Capital Regional Medical Center's Emergency Room, and she did not describe complaints related to her neck. Claimant was seen by Dr. Patel on numerous occasions and denied any ongoing issues with her neck. At her last evaluation with Dr. Patel she complained only of acute left sided low back pain.

Claimant presented to Dr. Snyder, her chosen IME physician, on March 23, 2017, complaining of low back pain. Physical examination of her neck revealed full flexion, full extension, full rotation to the right and left, and a negative Spurling's test. Dr. Snyder's diagnosis did not include any condition relating to Claimant's neck or cervical spine. At her evaluation with Dr. Chabot on August 11, 2017, Claimant completed a pain diagram which did not indicate that she was having neck pain. Dr. Chabot diagnosed a cervical and thoracic strain and opined that she did not sustain any disability related to her neck or her thoracic spine.

At hearing, Claimant testified that she has neck pain when working in her current job. Claimant's testimony contradicts the medical evidence and her statements to physicians.

Claimant did not submit any medical evidence indicating that she has any permanent disability to her neck related to her September 14, 2015 work accident. Dr. Snyder did not make any diagnosis regarding her neck nor did he provide an opinion on whether Claimant had suffered any permanent disability regarding her neck or her low back. His opinion was that she needed an MRI of her low back. Claimant's authorized treating physician, Dr. Elliot, diagnosed neck pain and assessed 0% PPD. Dr. Chabot diagnosed a cervical and thoracic strain but opined that she suffered no permanent disability. Dr. Elliot and Dr. Chabot are the only two physicians

14

TI5081-0967

Injury No. 15-070736

who have assessed permanent disability and both opined that Claimant did not sustain any permanent disability to her neck. I find their opinions persuasive.

I find that Claimant did not sustain any permanent partial disability to her neck as a direct result of the September 14, 2015 incident.

Additionally, since Claimant failed to prove she sustained a compensable injury to her lower back stemming from her September 14, 2015 accident, she is not entitled to permanent partial disability benefits related to her ongoing lower back issues.

Since Claimant failed to prove an entitlement to any benefits under the statute, the issue of the appropriate average weekly wage and corresponding TTD and PPD rates is moot. However, I disagree with both the calculation of the Employer and the Claimant as to the Average Weekly Wage (AWW) and the compensation rate.

For the thirteen weeks preceding the date of injury, the wage statement shows "gross pay" of $\ 6162.90. This includes two payments on June 20, 2015, one in the amount of $\ 507.23 designated as "week" and one in the amount of $\ 528.80, designated as "CMCC". (Exh. B). There was no testimony as to what "CMCC" pay is. It is simply listed as "gross pay" and, as such, should be included in calculating the AWW and the compensation rate. Based on gross pay for the thirteen weeks preceding the date of injury, the AWW is $\ 474.07 and the compensation rate is $\ 316.05. It is unclear as to how each party calculated its respective AWW, with both arriving at calculations lower than what seems to be reflected on the wage statement.

For the reasons stated above, Claimant is not entitled to any benefits under the Workers' Compensation Act.

I certify that on 9-11-18

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.


Made by: $\frac{\text { d }}{}$ Administrative Law Judge

Division of Workers' Compensation