DeUngria Croft v. Courtesy Diner

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-105257

**Employee:** DeUngria Croft

**Employer:** Courtesy Diner

**Insurer:** Illinois Casualty Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated March 26, 2019, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Joseph P. Keaveny, issued March 26, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **24th** day of July 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cernejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

FINDINGS OF FACT AND RULINGS OF LAW

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: 3/16/2015 (alleged)
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? No
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? No
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee alleges that he injured his back while moving a refrigerator at work.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Lumbar spine
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? 0

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 396.49
3. Weekly compensation rate: $\ 264.33 for TTD and $\ 264.33 for PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

None

1. Second Injury Fund liability:

None

Uninsured medical/death benefits

$\ 0.00

1. Future requirements awarded: N/A

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

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

On January 14, 2019, the parties appeared for a hearing. Claimant appeared in person and with counsel, Attorney Mark A. Cordes. The Employer/Insurer was represented by Attorney Edward L. Weiss.

1. The Employer was operating subject to Missouri's Workers' Compensation Law on or about March 16, 2015.
2. Claimant was employed at all times relevant herein.
3. The City of St. Louis is the proper venue.
4. The average weekly wage was 396.49, which qualifies for rates of 264.33 for temporary total disability (TTD), and $264.33 for permanent partial disability (PPD).

1. Notice.
2. Occurrence of an accident event.
3. Whether injury arose out of and in the course of employment.
4. Medical causation.
5. Unpaid medical expenses, stipulated in the amount of $1,155.00, for unauthorized treatment.
6. Additional medical treatment.
7. Permanent partial disability.

Claimant introduced into evidence the following exhibits:

1. Medical report of Dwight Woiteshek, M.D. dated October 21, 2016 and CV
2. Medical records of St. Mary's Health Center
3. Medical bill from Schumacher Group

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-105257

Employer/Insurer introduced into evidence the following exhibit:

A) Deposition of James T. Doll, D.O., dated April 11, 2018

Claimant is a 48 year old male. He worked for Courtesy Diner for approximately 2 1/2 years. He has been unemployed since his dismissal from Courtesy Diner in February or March of 2016. While employed at Courtesy Diner, he was a manager/supervisor. His hours varied, but were usually Monday through Friday. His duties included cashiering, cooking, washing dishes, cleaning, maintenance, keeping the restrooms and parking lot clean and filling stock.

Claimant testified, that on March 16, 2015, he was working the afternoon and overnight shifts. His hours were 2:00 pm to 7:00 am. The alleged injury occurred at approximately 8:00 or 9:00 pm. He was moving a refrigerator at work and injured his back. The refrigerator was a double door type, approximately 7 feet high and 4 feet wide. It was close to empty. He tried to move it to clean behind it. He was standing and pushing the refrigerator when one wheel jammed in the tile floor. He felt a poping pain in his lower, right back, above the belt line.

Claimant further testified that he informed a co-worker, Matt Casanoven, what had happened and that he had felt pain. Claimant moved the refrigerator back into place and finished his shift. He stated that he had difficulty, pain in his back, numbness in both feet and right leg.

Claimant reported the injury on March 18, 2015, the day after he went to the emergency room at St. Mary's Hospital. Claimant testified that the physician at St. Mary's diagnosed sciatica. He was given an injection and a prescription for pain. Claimant received no additional treatment. Claimant is still in pain in his lower right back, right leg and right foot. He currently takes Aleve, Advil, Excedrin, and aspirin two times per week.

The physicians at St. Mary's did not recommend further treatment. St. Mary's records show that claimant was there on March 17, 2015. He told St. Mary's that he was "self-pay, no insurance." The history that claimant gave to St. Mary's was "pain was for 2 weeks, started radiating last night." Additional history indicates "lower back pain for 2 months, worse the last 2 weeks. Pain is associated with no known injury." No doctor took claimant off work or issued any work restrictions.

William Rugg testified on behalf of the employer/insurer. He has been the manager of Courtesy Diner since January 2004. He testified that claimant called off work on March 17, 2015. Claimant told Mr. Rugg that he slipped on water, at the Drury Inn, and hurt his back. Mr. Rugg testified that claimant never told him that he hurt his back at work, nor ask for treatment. Claimant would occasionally complain that his back would hurt but he was able to perform the same job duties. Mr. Rugg further testified that when he confronted claimant about a missing can of bear mace, claimant responded that "it was nice working with him."

Matthew Casanoven testified on behalf of the employer/insurer. He is a cook at Courtesy Diner and has known claimant for around five years. He testified that claimant "complained about back pain but never mentioned a work injury."

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-105257

Lori Coker testified on behalf of employer/insurer. She is a server/manager at Courtesy Diner. She lives in a house located next door to the diner. She has worked at Courtesy Diner for approximately five years. She testified that claimant never complained about back or leg problems. He never told her that he was hurt at work. When she moved into her house in April of 2016, claimant helped her move. The move took all day. There are 15 or 16 steps in the rear of the house, which claimant ascended and descended during the move. Claimant never complained of pain.

Opinion Evidence

Dr. Woiteshek

Claimant offered the independent medical evaluation conducted by Dr. Dwight Woiteshek, M.D., as Exhibit 1. Dr. Woiteshek examined claimant on October 21, 2016. He personally obtained a medical history, performed a physical examination and reviewed the records from St. Mary's Health Center. Dr. Woiteshek noted that claimant sought medical attention at St. Mary's Health Center on March 17, 2015. Claimant was complaining of pain and discomfort in his lumbar spine with pain radiating into his right leg. X-rays of the lumbar spine were taken on March 17, 2015, that showed no evidence of acute fracture or dislocation but did show a mild left scoliosis which was felt to be mostly positional with mild degenerative changes.

It is Dr. Woiteshek's opinion, that the work-related injury on March 16, 2015, was the prevailing factor in the cause of his traumatic right lumbar radiculopathy, reasonably confirmed without surgery. The work-related injury was also the prevailing factor in the cause of the future medical treatment recommended.

Dr. Woitehek concluded that within a reasonable degree of medical certainty, claimant needs future medical treatment including, but not limited to, an MRI scan of the lumbar spine followed by a consultation with a spine surgeon.

Dr. Doll

Employer/Insurer offered the deposition testimony of Dr. James T. Doll, M.D., as Exhibit A. He was deposed on April 11, 2018. He evaluated the claimant on January 30, 2017. During the examination, he had claimant perform a straight leg raising test. It is a test for lumbar radiculopathy. The test was negative for radiculopathy. Dr. Doll diagnosed claimant with diffuse low back pain and right greater than left lower extremity pain and paresthesias. He also listed a diagnosis of lumbar spondylosis.

Dr. Doll stated that after meeting claimant and reviewing his symptoms, he found inconsistencies. He could not correlate specifically with his pattern of symptoms and any specific examination findings. His physical exam revealed there were no focal areas of abnormalities or any abnormal objective findings on his exam. Dr. Doll found no indication that claimant had sustained any permanent disability.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-105257

Finally, when asked if there was any history in the St. Mary's record, of any injury at work, Dr. Doll responded, "No, there was no notation of an injury at work. In fact, there was a statement that said that there was no known injury."

Section 287.020 provides:

1. 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. An injury is not compensable because work was a triggering or precipitating factor.

1. (1) In this chapter 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 in causing 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.

The claimant has the burden to prove all essential elements of the claim, including a causal connection between the injury and the job. *Royal v. Advantica Restaurant Group, Inc.*, 194 S.W.3d 371, 376(Mo.App.W.D.2006). Claimant must establish by a preponderance of credible evidence that any permanent disability herein was the result of the subject accident/exposure and not that of another. *Plaster v Dayco*, 760 S.W.2d 911, 913 (Mo.App. 1988). *Bersett v. National Super Markets, Inc.*, 808 S.W.2d 34, 36 (Mo.App. 1991).

Claimant testified that, while moving a refrigerator, he felt a popping pain in his lower right back. The pain was above the belt line. Claimant, then, testified that he told Jason Casanoven that he felt pain. He testified that he felt pain in his back, and numbness in both feet and right leg. However, Mr. Casanoven's first name is not Jason, but Matthew. Mr. Casanoven testified that claimant complained about back pain but never mentioned a work injury.

Claimant's supervisor, William Rugg, testified that claimant told him that he slipped on water at Drury Inn and hurt his back. Claimant never informed Mr. Rugg of a work injury nor asked for any treatment.

WC-32-R1 (6-81)

Page 6

In April 2016, claimant helped a former co-worker, Lori Coker, move into a house, climbing 15 or 16 steps, all day long. Claimant never complained about back or leg problems. He never told her that he was hurt at work.

I find Dr. Doll's testimony more credible than Dr. Woiteshek's. Dr. Woiteshek, merely diagnosed claimant's symptoms and recommended an MRI with consultation of a spine surgeon. He never stated any objective diagnosis. However, Dr. Doll performed several tests, most notably, a straight leg raising test, which was negative. Claimant's back pain was very diffuse. It was not localized to any one anatomic structure that would help formulate a diagnosis of a specific pathologic condition. As a result, there was no objective finding of a pathologic condition. Finally, claimant's history, as given to the emergency room at St. Mary's Health Center, states that there is "no known injury."

Claimant has failed to establish by a preponderance of credible evidence that he sustained an accident. The employee's history, as presented, is not credible. As claimant has failed to satisfy his burden of proof of an accident, all of the other issues are moot. This claim is denied and no compensation is awarded.


Made by:

Joseph P. Keaveney

Administrative Law Judge

Division of Workers' Compensation