Robert Davis v. Walgreens

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 13-104631

**Employee:** Robert L. Davis

**Employer:** Walgreens

**Insurer:** American Zurich Insurance Company

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

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 June 12, 2018. The award and decision of Administrative Law Judge Emily S. Fowler, issued June 12, 2018, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this **7th** day of August 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

**DISSENTING OPINION FILED**

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No. 13-104631

Employee: Robert L. Davis

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find employee Robert L. Davis failed to prove that he sustained any physical or psychological permanent partial disability as a result of a work accident on April 6, 2013.

Section 287.020.2 provides, in pertinent part, "The word 'accident' as used in the 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 (emphasis added)."

Employee predicates his entire case in this appeal on proof of an acute injury on April 6, 2013. Employee alleges sudden injury to his lower back due to a specific lifting event occurring at work that day. However, records from employee's visit to the College Park Family Care Center (College Park) on April 6, 2013, fail to reference any specific traumatic work incident. Furthermore, an entry in College Park records dated June 9, 2014, about a year after employee's alleged accident, specifically states, "The accident or injury that started this is [sic] not recalled by the patient." College Park's medical records reference employee's job activities at Walgreens, but include no opinions regarding the causation or the etiology of any of employee's physical complaints. College Park's records documenting employee's primary medical care years before the alleged work injury specifically reference chronic lower back pain. Nothing in College Park's medical records spanning thirteen years suggest that this health care provider was overly succinct or abbreviated in its approach to record keeping. There is only one explanation for College Park's lack of documentation of employee's April 6, 2013, work injury—the event did not occur.

Section 287.420 provides, in pertinent part:

> No proceedings for compensation for any accident under this chapter shall be maintained unless written notice of the time, place and nature of the injury has been given to the employer no later than thirty days after the accident, unless the employer was not prejudiced by failure to receive the notice.

Employee had a preexisting history of on-the-job injuries with this employer. Furthermore, employee's job responsibilities for employer specifically included reporting

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Injury No. 13-104631

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and documentation of on-the job injuries involving workers he supervised. Considering these undisputed facts, employee's failure to provide proper notice to employer of the time, place and nature of his injury within thirty days after the accident, as required by § 287.420 is not reasonable or understandable. Employee's failure to provide written notice within thirty days of his alleged April 6, 2013, injury to employer further supports the conclusion that no specific work-related accident occurred that day.

**Medical Causation and Disability**

**I. Disability attributable to lower back**

The opinion of employee's expert Dr. Brent Koprivica that employee sustained disability due to a work injury on April 6, 2013, is unsupported by contemporaneous medical records and conflicts with employee's earlier medical records describing chronic lower back complaints beginning in 2011.

The fact that employee's clinical examination was positive at every level for symptom magnification is undisputed. Dr. Koprivica conceded that employee's reported complaints were an invalid indicator of his physical capabilities. Employee tested positive on Waddell's testing, consistent with malingering or attempting to mislead an examining physician as to the extent of disability. Dr. Koprivica further found that employee's efforts during his examination were submaximal and that, during the course of his examination, employee demonstrated an ability to perform physical movements he earlier denied.

On cross-examination, Dr. Koprivica's admitted that employee's chronic lower back pain prior to the alleged work injury was likely to have been disabling and that, if so, this preexisting condition would have been included in his 15% evaluation of disability related to employee's alleged April 6, 2013, work injury. When a medical condition results from one of two causes, only one of which would be employer's responsibility, the burden of proof has not been met. *Griggs v. AB Chance*, 503 S.W.2d 697 (Mo. App. 1973).

**II. Psychological Disability**

The majority bases its finding that employee sustained 5% permanent partial disability to the body as a whole due to the psychological impact of his alleged April 6, 2013, work injury exclusively on psychologist Dr. James Jackson's expert opinion. Dr. Jackson's objectivity is suspect because Dr. Koprivica considers Dr. Jackson to be his employee. Dr. Jackson conceded approximately 40% to 50% of his practice involves referrals from either Dr. Koprivica or attorneys who have consulted Dr. Koprivica.

In estimating employee's work-related psychological disability, Dr. Jackson assessed 20% of the body as a whole for depression that developed following employee's separation from employment with employer. Dr. Jackson identified a number of "stressors," including loss of income and loss of self-esteem that related to employee's discharge. On cross-examination, Dr. Jackson was unable to specifically identify what portion of employee's depression was attributable to his employment separation.

Injury No. 13-104631

Employee: Robert L. Davis

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When a medical condition results from one of two causes, only one of which would be employer's responsibility, the burden of proof has not been met. *Griggs v. AB Chance*, 503 S.W.2d 697 (Mo. App. 1973).

Furthermore, § 287.120.9 provides, "A mental injury is not considered to arise out of and in the course of an employment if it resulted from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or any similar action taken in good faith by the employer (emphasis added)." There is no competent evidence that supports a finding that employee's December 12, 2013, discharge, prompted by complaints of harassment by coworkers, and decided on only after employer imposed progressive discipline, was an action taken in bad faith. Pursuant to § 287.120.9, no compensation should be awarded for employee's alleged work-related psychological disability.

Section 287.190.6(2) provides that, in determining issues of compensability and disability, where inconsistent or conflicting medical opinion exists, "objective medical findings shall prevail over subjective medical findings."

Dr. Koprivica opined that employee's lower back complaints were out of line with his objective presentation and assessed disability based entirely on employee's subjective complaints. Employee's vocational expert Terry Cordray relied on Dr. Koprivica's work restrictions based on employee's subjective complaints in forming his conclusions regarding employee's inability to access the open labor market.

Employer's expert Dr. Alexander Bailey found no objective evidence of a neurological deficit or nerve impingement beyond employee's subjective complaints. Dr. Bailey interpreted employee's MRI results, an objective test, as consistent with degenerative disc disease, a condition that affects both working and non-working populations. Dr. Bailey found no evidence of any acute injuries traceable to employee's alleged April 6, 2013 injury, assigned zero disability relative to the alleged work event and opined that employee could return to his regular work activity level.

Given the statutory mandate requiring that objective findings must prevail over subjective medical findings, Dr. Bailey's conclusions must be considered controlling on the issue of the nature and extent of employee's disability.

An employee has the burden of proving all essential elements of his case. *Thorsen v. Sach's Electric Company*, 52 S.W.3d 611 (Mo. App. 2001). Employee in this case has failed to establish the essential element of accident. Nor did employee provide the required written notice of his injury to employee. On the issue of medical causation, employee has produced no objective evidence of permanent physical disability attributable to a work accident. To the extent that employee suffers a psychological disability, employee's own experts acknowledge it stems, at least in part, from employer's discharge. Employer's decision to discharge employee, prompted by

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employee's poor judgment and inappropriate workplace conduct, was clearly in good faith. Pursuant to § 287.120.9, under these circumstances, employee's psychological disability is not compensable.

For all of these reasons, I would deny employee's claim for benefits. I respectfully dissent from the majority's decision finding otherwise.

Reid K. Forrester, Member

**Injury No. 13-104631**

**AWARD**

**Employee:** Robert L. Davis

**Dependents:** N/A

**Employer:** Walgreens

**Insurer:** American Zurich Insurance Co. c/o Sedgwick CMS

**Additional Party:** Missouri State Treasurer as Custodian for the Second Injury Fund

**Hearing Date:** March 7, 2018

**Checked by:** ESF/1h

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: April 6, 2013
5. State location where accident occurred or occupational disease was contracted: Lee's Summit, Jackson County, Missouri
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? Yes
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: Employee sustained injury