Andrew O'Brien v. The Language Tree

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

Injury No.: 19-059371

Employee: Andrew T. O'Brien

Employer: The Language Tree

a/k/a The Language Tree Learning Center and

The Learning Tree Learning Center

Insurer: Missouri Employers Mutual Insurance

This Award is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the administrative law judge's award 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 administrative law judge's award and decision in the above-cited injury claim with this supplemental opinion.

As a preliminary matter, we address the employee's contention that the administrative law judge erred in admitting Employer/Insurer's Exhibit D, data published on the National Centers for Environmental Information relating to snowfall observations at the Boone County Regional Airport and the University of Missouri in Columbia on January 18, 2019, because this document was not certified or authenticated as a record of an office book of the United States or a sister state under $\S 490.220 RSMo. { }^{1}$

Section 536.070(6) RSMo provides, in pertinent part, "Agencies shall take official notice of all matters of which courts take judicial notice." Courts have held that judicial notice may be taken of the information on a government website because this information is "not subject to reasonable dispute" and "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Ananias v. Stratton, 2012 U. S. Dist. LEXIS 57817, at 6 (CD III. April 25, 2012). See also Jeffrey Bellin \& Andrew Guthrie Ferguson, Trial by Google: Judicial Notice in the Information Age, 108 Nw. U.L. Rev. 1137, 1160 (2014). We consider § 536.070(6) RSMo and case law that specifically addresses the admissibility of information posted on a government website controlling on the issue of the admissibility of Employer/Insurer's Exhibit D. Based on these authorities we find Employer/Insurer's Exhibit D to be selfauthenticating and therefore properly admitted into evidence by the administrative law judge. This holding is consistent with our recent ruling in the appeal of Rommal Whitefoot v. Bass Pro Outdoor World LB/Safety National Casualty and Treasurer of Missouri as Custodian of Second Injury Fund, Inj. No. 18-022201 (LIRC October 25, 2022).

We affirm the administrative law judge's denial of the employee's January 18, 2019, injury claim based on her first-hand credibility assessment of the employee's testimony

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[^0]: ${ }^{1}$ Section 490.220 (RSMo 1939 §1825) provides, "All records and exemplifications of office books, kept in any public office of the United States, or of a sister state, not appertaining to a court, shall be evidence in this state, if attested by the keeper of said record or books, and the seal of his office, if there be a seal."

Improvee: O'Brien, Andrew T.

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regarding the alleged work injury, the medical records in evidence, and data recording snowfall on that date from the National Center for Environment Information's website. We concur with the administrative law judge's finding that the employee's testimony regarding the alleged work incident lacked credibility because it was inconsistent and because the employee failed to identify a time and place of occurrence as required by § 287.020.2 RSMo. The employee, therefore, failed to establish that a work accident on January 18, 2019 resulted in an injury to his left elbow.

We further find that even assuming the employee was involved in an incident at work on January 18, 2019, he failed to establish that a work-related event on that date was the prevailing factor in causing both his resulting medical condition and disability.

Section 287.020.3(1) RSMo 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."

We find the medical causation opinion regarding the employee's left elbow condition from Dr. Luke S. Choi, an orthopedic surgeon, to be the most persuasive and credible. We find Dr. Choi's opinion more persuasive and credible than the view of the employee's expert Dr. Steven S. Charapata.

Dr. Choi opined:

> In my medical opinion, the prevailing factor, the primary factor in relation to any other factor still remains [the employee's] pre-existing injury to his left elbow requiring surgical fixation and the prominent hardware. The fact that he had prominent hardware, which Mr. O'Brien had issues with prior to 2019, is the primary reason that his wound broke down rather than ... shoveling the snow over two days for a total of three hours.

In my medical opinion, the progressive nature of the prominent hardware is the primary culprit and the primary factor in relation to any other factor as to the subsequent need for Mr. O'Brien's subsequent need for surgery. The initial review of the medical records from January 21, 2019 noted that Mr. O'Brien had chronic swelling of the elbow since his [2006] surgery, which clearly shows that there was an irritation of his hardware against his skin. In summary, in my opinion the work-related activities as described to me, specifically shoveling of the snow over a two-day period for a total of three hours is an example of a work-related activity being the precipitating factor, triggering factor as opposed to be[ing] a prevailing factor. Transcript, pp. 220-221.

Assuming arguendo that a work event as alleged in the employee's claim occurred on January 18, 2019, based on Dr. Choi's expert opinion, we find that the incident was not

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The prevailing factor causing the employee's medical condition and disability. Therefore, we find that no compensable accident occurred on January 18, 2019.

These supplemental findings do not detract from the administrative law judge's denial of the employee's January 18, 2019 injury claim based on her first-hand credibility assessment of his testimony regarding an alleged work injury on that date, in conjunction with medical records in evidence and weather data from the National Centers for Environmental Information website.

The Award and Decision of Administrative Law Judge Melodie A. Powell dated January 20, 2022, is attached and incorporated herein to the extent not inconsistent with this supplemental opinion.

Given at Jefferson City, State of Missouri, this 19th day of January 2023.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Rodney J. Campbell, Chairman

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Kathryn Swart, Member

Attest:

*Karla A. Hogg*

Secretary

Whether the employee's January 18, 2019 work event was a compensable accident under the Missouri Workers' Compensation Law

Section 287.020.2 RSMo defines "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."

The employee, Andrew O'Brien, described a specific event that occurred when he was shoveling snow on his employer's walkways and parking lot, causing a sudden onset of symptoms in his arm. More specifically, he described pain in his left arm and reported that he noticed a wound in the area of the elbow when he changed out of his clothes upon returning home from work. Based on this testimony, the employee's January 18, 2019 work event meets the definition of an accident causing injury arising out of and in the course of his employment as a teacher's assistant at the employer's school.

The administrative law judge erred in relying on a National Centers for Environmental Information (NCEI) report recording no observed active snowfall on January 18, 2019 in certain areas of Boone County, to discredit the employee's account of a work event involving shoveling snow that day. The employer/insurer's Exhibit D documented the observation of 10.4 inches of snowfall on Friday, January 11, 2019 at the Columbia Regional Airport. It also documented the observation of 11.8 inches of snowfall at the Columbia University of Missouri on Saturday, January 12, 2019. The employer/insurer specifically avoided requesting data relating to snow depth on January 18, 2019. For this reason, the administrative law judge erred in relying on the information cited in Employer/Insurer's Exhibit D to discredit the employee's version of events and disparage his credibility.

The employer/insurer presented no evidence contradicting that:

1. There was snow on the ground at Mr. O'Brien's place of employment on January 18, 2019.
2. Mr. O'Brien shoveled snow on January 18, 2019 while in the course and scope of his employment.
3. While shoveling snow Mr. O'Brien's arm hardware broke through his skin.

The employer/insurer failed to call any witnesses to refute or disprove the employee's claim that he was shoveling snow at work when the hardware in his arm broke through his skin. Even the employer's Report of Injury, of which the Commission may take administrative notice, substantiates the employee's version of events. The report documents notice on January 20, 2019, to the employer of a work occurrence described as "While shoveling snow with a shovel . . . [t]he metal plate in this elbow was exposed . . .."

The evidence supports the fact that the employee was shoveling snow on January 18, 2019, whether his recollection that it was actively snowing was correct or not.

The employer/insurer's failure to call any co-workers to refute the employee's claim raises an inference that co-workers' testimony would have been adverse to the employer's case.

Although the medical records of January 21, 2019 indicated that Mr. O'Brien reported that his wound had broken open two days before, potentially placing the date of injury on Saturday, January 19, 2019, the same set of records also indicate that the employee reported to doctors that his injury was caused while shoveling snow at work. Mr. O'Brien's recollection in the hospital emergency room of the number of days it had been since the hardware broke through his arm can be attributed to a mere miscalculation (or potentially a minor misreporting by the hospital) rather than an intentional lack of truthfulness. Indeed, Mr. O'Brien's estimate in this case when he presented to the hospital was merely one day off. All of the other evidence in the record, including references in the medical records to shoveling snow, text messages between the employee and his supervisor, and photos of his injury, point to the injury occurring on January 18, 2019 while he was shoveling snow at work. The employee has thus met his burden to prove the date his injury occurred. Any other references to a different date on which the injury occurred, including the notes in Dr. Steven G. Charapata's March 12, 2020 report are attributable to a mistake in the date of injury reported in the original claim for compensation, which was later corrected by an amended filing after additional information was obtained confirming the date of injury.

Medical causal connection between the employee's January 18, 2019 work injury and left elbow wound

Section 287.020.3(1) RSMo defines the term "injury" as:

[A]n 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.

Dr. Luke Choi did not believe that the shoveling work Mr. O'Brien described could have caused his wound to develop. Dr. Choi opined that the fact that the employee had existing hardware in his left arm was the primary factor in causing his wound to develop. Dr. Charapata, on the other hand, opined that the shoveling work Mr. O'Brien described, in particular the continuous pressure exerted over the hardware, was the primary factor in causing his wound to develop. Dr. Charapata also noted that Mr. O'Brien had the hardware installed in 2006 and did not have any issues with the hardware, or a wound developing over the hardware, in the thirteen years since it was installed.

Notably, the employer/insurer has not produced any evidence that the employee did not shovel, or that he did not sustain a wound on his left elbow in January 2019. Rather, the employer/insurer contends, based on Dr. Choi's report, that the primary factor in causing the wound was that Mr. O'Brien had existing hardware in his arm. The evidence, however, was that Mr. O'Brien had no further issues with his hardware, or a wound developing on his elbow after 2006. Mr. O'Brien had no problems with the hardware in his arm for thirteen years until he performed the shoveling for his employer on January 18, 2019, and thereafter developed the wound referenced herein as a result.

Improve/insurer's liability for medical bills incurred by the employee

It is important to distinguish between the standard for proving an injury and the standard for establishing the medical treatment necessary to treat that injury. As stated in *Sickmiller v. Timberland Forest Products, Inc.*, 407 S.W.3d 109, 121 (Mo. App. 2013), "[S]ection 287.140.1 'does not require a finding that the workplace accident was the prevailing factor in causing the need for particular medical treatment,'" quoting *Tillotson v. St. Joseph Med. Center*, 347 S.W.3d 511, 517 (Mo. App. 2011). "Where a claimant produces documentation detailing his past medical expenses and testifies to the relationship of such expenses to the compensable workplace injury, such evidence provides a sufficient factual basis for the Commission to award compensation." *Id*, quoting *Treasurer of Missouri v. Hudgins*, 308 S.W.3d 789, 791 (Mo. App. 2010).

In the current claim, as discussed *supra*, it is established that the accident described by the employee was the prevailing factor in causing the employee's injury. Accordingly, the next inquiries are whether the employee provided the employer notice that he needed treatment, whether the employer refused or failed to provide that treatment, whether the medical treatment the employee received (primarily the removal of protruding hardware) was necessary to cure and relieve the effects of that injury, and finally the recoverable amount of medical bills for that treatment.

Mr. O'Brien testified that on January 21, 2019 he contacted his supervisor to provide notice and request medical treatment. Mr. O'Brien also produced photographs of the text conversation he had with his supervisor clearly notifying her that he had sustained an injury at work and needed treatment. Although his supervisor directed him to contact the employer's insurer, and Mr. O'Brien attempted to do so, he found the insurer closed for Martin Luther King, Jr. Day. The employee then texted his supervisor, notifying her of his inability to reach the employer's insurer and told her he had to go to the emergency room that night. Mr. O'Brien's supervisor did not advise him against seeking treatment on his own, nor did she direct him to an authorized care provider. Dr. Charapata's supplemental report established that the employee's condition required immediate medical treatment.

Mr. O'Brien's testimony causally linked his injury to the medical treatment he received from University Hospital. That testimony is supported by the opinions of his expert. Dr. Charapata, in his supplemental report, opined that once hardware protrudes through the skin there is no way the hardware can be saved, repositioned, or revised. The hardware required removal as soon as it became exposed. Dr. Charapata opined that the usual, customary, and reasonable bills incurred for Mr. O'Brien's medical care were necessary to cure and relieve the effects of his injury.

Because Mr. O'Brien provided notice to the employer of his injury and requested treatment that he needed on an emergency basis, and which the employer failed to provide, the employer is liable for the reasonably necessary treatment Mr. O'Brien obtained at the University Hospital to cure and relieve the effects of his injury. Furthermore, based on the contract the employee signed with the hospital attesting that he would pay the balance of his bills not covered by insurance or a third party, and the statute of limitations under which the hospital could sue Mr. O'Brien for the same remains open, it is clear he is still responsible for the total amount of the bills charged, $26,586.16 by the University Hospital and Clinic, charges of the University Physicians in

Improvee: O'Brien, Andrew T.

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the amount of 4,436.25, and charges by the Orthopedic Center of St. Louis in the amount of 1,500.00. In that no convincing evidence has been produced to the contrary, the employee should be awarded the full amount of those charges.

**Nature and extent of permanent partial disability and disfigurement**

Dr. Charapata's March 10, 2020 physical examination of the employee showed he had grip strength in his right hand of 40 kg, while grip strength in his left hand was 28 kg. Mr. O'Brien's left arm range of motion revealed -10 degrees of flexion and -90 degrees of extension. The employee's supination and pronation were limited by the inability to extend his left arm completely. In addition to these physical findings, Dr. Charapata opined that Mr. O'Brien's January 22, 2019 elbow surgery placed him at greater risk for future breakdown and dehiscence. Dr. Charapata gave Mr. O'Brien a permanent partial disability rating to the left upper extremity at the elbow of 40%, with 30% of that number being preexisting.

Based on Dr. Charapata's report, the employee should be awarded 10% permanent partial disability to his left elbow as the result of his January 18, 2019 work injury, equaling 21 weeks, or $6,355.44.

Mr. O'Brien testified that the scar from his 2006 left elbow surgery was worsened by the new incision in the same location and that, in addition, due to the January 18, 2019 work injury, he had a new scar in the area where the hardware protruded through his skin. These scars were examined at the hearing and documented by a photograph offered by the employee as Exhibit 7.

Based on this evidence, the employee sustained serious and permanent disfigurement on his left arm. Pursuant to § 287.190.4 he should be awarded twelve weeks of compensation for disfigurement, in the amount of $3,631.20.

Because the majority denies Mr. O'Brien's claim on the issue of accident by unfairly disparaging his credibility, ignores the credible opinion of the employee's expert, Dr. Charapata, regarding the issue of medical causation, and consequently finds all other issues moot, I respectfully dissent.

Shalonn K. Curls, Member

Employee: Andrew O'Brien

Injury No. 19-059371

Dependents: N/A

Employer: The Language Tree Learning Center

Additional Party: None

Insurer: Missouri Employers Mutual

Hearing Date: October 4, 2021

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
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 alleged accident or onset of alleged occupational disease: January 18, 2019
5. State location where alleged accident occurred or alleged occupational disease was contracted: Columbia, Boone County, MO
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: Employee alleges he was shoveling snow
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by alleged accident or occupational disease: alleged left elbow
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? $\ 483.89

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 453.90
3. Weekly compensation rate: $\$ 302.60 / \ 302.60
4. Method wages computation: by agreement

1. Amount of compensation payable: None

TOTAL: $\ 0.00

On October 4, 2021, the undersigned administrative law judge conducted a final hearing in this matter in Columbia, Missouri. Employee, Andrew O'Brien, appeared personally and by counsel, Drew Veatch. The Employer/Insurer appeared by counsel, Rick L. Montgomery. Parties requested leave to file proposed awards/briefs and same were received on or about November 3, 2021. The record was closed and the case submitted on November 3, 2021.

The parties stipulated as follows:

1. That on/about January 18, 2019, Employee was in the employ of The Language Tree Learning Center.
2. That both the Employee and Employer were operating under and subject to the terms and provisions of the Missouri Workers' Compensation Act.
3. That Employer's liability was fully insured by Missouri Employers Mutual.
4. That Employer had notice of the accident and a claim for compensation was timely filed.
5. That venue is proper in Columbia, Boone County, Missouri.
6. That the average weekly wage is $\ 453.90 and the compensation rate is $\$ 302.60 / 302.60$.
7. That no temporary total disability benefits were paid.
8. That medical aid was provided in the amount of $\ 483.89.

1. Whether an accident occurred on January 18, 2019.
2. Whether the alleged accident of January 18, 2019, resulted in an injury which arose out of and in the course of employment.
3. Whether the alleged accident of January 18, 2019, was the prevailing factor in causing Employee's resulting medical condition and disability.
4. Whether Employer/Insurer are responsible for past medical benefits.
5. Whether Employer/Insurer are responsible for any temporary total disability benefits.
6. The nature and extent of any permanent disability.

The following exhibits were offered and admitted into evidence:

1. Photograph - Hardware Protrusion
2. Photograph - Hardware Protrusion
3. Photograph - Text Message 1
4. Photograph - Text Message 2
5. Photograph - Text Message 3
6. Photograph - Text Message 4
7. Photograph - Employee's stitches
8. Report of Steven Charapata, M.D., March 12, 2020
9. Report of Steven Charapata, M.D., July 29, 2020
10. Report of Steven Charapata, M.D., April 21, 2021
11. Deposition of Steven Charapata, M.D.
12. University of Missouri Health System certified medical records
13. Agreement to Pay dated January 22, 2019

A. Curriculum Vitae of Luke Choi, M.D.

B. Reports of Luke Choi, M.D.

C. University of Missouri Health System Billing Records

D. National Centers for Environmental Information (NCEI) Daily U.S. Snowfall and Snow Depth for Columbia, Boone County, Missouri January 9 - 18

Employee objected to Employer's Exhibit D. The objection was overruled and Exhibit D was admitted. All exhibits appear as received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned administrative law judge.

Employee testified at the hearing of this matter. His job history included working various construction jobs and performing international humanitarian work. He has a bachelor's degree and is certified as an English as Second Language teacher (ESL). In 2018, Employee began working for The Language Tree Learning Center. He was a teacher's aide, assisting with class, snacks, and nap time. He would also take care of small repairs such as fixing a table or changing a light fixture. His normal work days were Monday through Friday. Employee worked for Employer until September 24, 2019; he then went to Siberia for training as an ESL teacher and currently is an online ESL teacher for a company in Moscow.

Employee testified to a prior injury to his left arm. In 2006, he fell 30 feet from a tree, shattered his left arm, and had a closed head injury. The arm was repaired with hardware placed in the elbow. He stated it took a while for the elbow to heal. He was left with limited range of motion in the left arm, more specifically, the elbow. Employee testified that he had no problems

**Employee:** Andrew O'Brien

**Injury No.:** 19-059371

With the hardware after 2006 and that he was able to perform construction work and manual labor. He stated the elbow was evaluated by several doctors after 2006 but the hardware was never removed. He also testified that between 2006 and 2019, he never had any wound form on his elbow.

Employee testified that on January 18, 2019, it was snowing. His supervisor, Liz Sweet, asked him to shovel the walkway and immediate parking area where parents would drop off or pick up their children. He thought there was at least a couple of inches of snow and testified that it was the "heaviest snowfall in ten years" in the area. He used a regular snow shovel. Employee began shoveling before lunch time and testified he shoveled for an hour and a half. He then came inside and assisted with lunch. He went back outside to continue shoveling after the students went down for their naps. Employee testified it was still snowing outside but not as bad as the morning. He shoveled the remainder of the parking lot and stated it took him about another hour and a half. Near the end of shoveling, he had a shooting pain in his left arm. He went back inside between 2:30 and 3 p.m. and continued working his normal duties until he left at 5 p.m. When he arrived home, he noticed his arm was torn open and he could see the metal in his elbow. He identified photographs of his left arm. Employee thought the arm would heal on its own. Over the weekend, he watched Netflix movies. As far as self-treatment, he rubbed an essential life oil on the elbow to disinfect it and wrapped the elbow. By Monday, January 21, 2019, Employee testified the holes in his elbow were larger and it did not look like it was healing. He contacted Urgent Care on Broadway. He had AFLAC insurance but was told by Urgent Care that they would not take it because it was not health insurance.

Employee then began a series of text messages with Liz Sweet. The first text message was asking for information about his health insurance. Liz replied and gave him contact information for "Wadi". About an hour later, Employee texted Liz again, asking if workers' compensation for medical would hurt TLT. Liz responded that if he was injured at work, there was a different process. Employee then told Liz that it was a "combination of stuff with my elbow" but that it had scabbed over while shoveling snow and when the scab came off, there were two holes. Liz advised him to contact Missouri Employers Mutual (MEM), the workers' compensation carrier, and gave him contact information. Employee testified that he called MEM but they were closed as it was the Martin Luther King holiday. Liz then directed him to the MEM website where he could report online. Later in the day, Employee texted Liz asking for wage information. Liz responded and Employee then texted at 9:04 p.m. that he would be in the emergency room that night and would be at work the next day if surgery was not performed. Employee testified that they kept him overnight at the University of Missouri hospital and performed surgery the morning of January 22 to remove a plate and a screw. Employee stated he missed 3 or 4 days of work but has no real specific recollection.

Employee testified he healed up "great", with no problems. He was given no restrictions. There was no change in his range of motion from the first injury in 2006. He testified he has to be more aware and cautious in lifting things now.

On cross-examination, Employee stated that between 2006 and 2019, his elbow had never broken open. He stated he was shoveling an "extreme" amount of snow. Employee was shown Exhibit D and read into the record that no snowfall was reported at either the Columbia Regional

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Improved

Injury No. 19-059371

Airport or the University of Missouri on January 18, 17, 16, 15, or 14. He admitted he went to the University of Missouri Hospital on his own.

Employee was asked about his original claim for compensation, which indicated an injury date of January 15,2019 . He testified he did not remember where that date came from. He stated he later looked at the medical records and amended the date of injury to January 18, 2019.

Employee presented to the University of Missouri Emergency Services and was seen on January 21, 2019, at 9:53 p.m. He provided a history. It was noted that the past medical history was significant for a fall in 2006 with ORIF (open reduction, internal fixation) of the left elbow. It was further noted that Employee had not followed up with an orthopedic physician in several years. He gave a history of having chronic swelling since his surgery in 2006 and noted that two days ago, the area broke open and now has exposed hardware. Employee denied recent injury and stated he was taking off his shirt when he noticed a small scab fell off. After evaluation and x-rays, Employee was admitted to the hospital. (Exh. 12, p. 13).

Upon admission, an additional history was taken at 3:44 a.m. That history noted the prior 2006 elbow fracture with ORIF and that Employee had always had residual erythema and skin irritation over the medial aspect of the elbow but first noticed the exposed hardware three days prior. He denied trauma at the time. He gave a history of recently shoveling a lot of snow at the preschool where he works and felt this may have precipitated the wound opening. Under Assessment/Plan, it was noted that the wound did not look infected and that Employee wished to proceed with surgery. (Exh. 12, p. 18).

The operative procedure performed by Dr. Gregory Della Rocca was a complex implant removal, left distal humerus. In the operative report, Dr. Della Rocca indicated that Employee noted he has had a red area near the location of the medial plate for an extended period of time and that a few days prior, a wound broke open and he could visualize the metallic implants. The surgery included removal of exposed implants; Employee preferred not to remove implants from the lateral side of his distal humerus. (Exh. 12, pp. 20-23). Employee was discharged on January 22, 2019. (Exh. 12, p. 39).

At the request of his attorney, Employee was seen by Dr. Steven Charapata on March 10, 2020. Dr. Charapata authored a report dated March 12, 2020, and testified by deposition. (Exhs. $8 \& 11)$.

Dr. Charapata noted a history on March 10, 2020, that while performing his occupational duties on January 15, 2019, Employee was asked to clear significant snow which he (Employee) estimated to be 10 " to 15 " deep in places. After review of the medical records and examination of Employee, Dr. Charapata opined that the prevailing factor in Employee's resulting elbow

**Employee:** Andrew O'Brien

**Injury No.:** 19-059371

The condition was the shoveling of deep snow for three hours which caused an erosion over the implanted hardware and dehiscence of the hardware. Dr. Charapata provided a permanent partial disability rating of 10% of the elbow for the work-related injury. He opined that the medical care and treatment provided was reasonable and necessary to treat the injury. (Exh. 8).

On March 29, 2020, Dr. Charapata authored a second report. He had reviewed the University of Missouri Health System bills and believed they were reasonable and necessary for the treatment provided as a result of the January 15, 2019, injury. (Exh. 9).

On April 21, 2021, Dr. Charapata issued another addendum report. He stated that after reviewing the records, "it comes to my attention that Mr. O'Brien's work-related injury occurred on January 18, 2019." (Exh. 10). He also opined that the medical care provided on January 21, 2019, and January 22, 2019, was necessary to treat an emergent condition. (Exh. 10).

**Dr. Luke Choi**

Dr. Choi evaluated Employee at the request of Employer/Insurer on September 23, 2019. (Exh. B.) Employee gave a history that he was moving his elbow and the metal from his previous injury tore through his skin. Employee stated that this began on or about the "early part of 2019", when he was using a shovel to remove snow outside the front door of the school. Dr. Choi recorded that Employee stated he shoveled for approximately an hour and a half and the following day, finished up the shoveling for an additional hour and a half, for a total of three hours over a two-day period.

Dr. Choi was of the opinion that the work-related accident of January 15, 2019 [later amended to January 18, 2019], was not the prevailing factor in causing Employee's left elbow wound dehiscence and subsequent need for treatment, including the hardware removal. Dr. Choi explained that this is a "quintessential example of a work-related activity being the precipitating/triggering factor" and not the prevailing factor. Dr. Choi opined that the primary factor, in relation to any other factor, was the prominent hardware and the fact that Employee had issues with that hardware even after the initial fixation procedure. Dr. Choi found that Employee was at MMI, that he needed no further treatment, and that suffered no permanent partial disability or work-related injury. (Exh. B). Dr. Choi issued a supplemental report after reviewing Dr. Charapata's reports, indicating that his opinions did not change. He reiterated his opinion that the prominent hardware which Employee had issues with prior to 2019 was the primary reason for the wound to break down, not the shoveling of snow over two days. (Exh. B).

The employee in a workers' compensation case has the burden to prove all the essential elements of the claim, including the causal connection between the injury and work. *Jefferson City Country Club v. Pace*, 500 S.W.3d 305, 313 (Mo.App., W.D. 2016). Administrative law judges shall weigh the evidence impartially, without giving the benefit of the doubt to any party and all provisions of the Missouri workers' compensation law are to be strictly construed. §287.800 RSMo.

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**Employee:** Andrew O'Brien

**Injury No.:** 19-059371

"Accident" is defined in §287.020.2, RSMo, as "an unexpected or 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." There are three requirements to prove an accident. First, it must be identifiable by time and place of occurrence. Next, it must, at the time, produce objective symptoms of an injury. Finally, it must be caused by a specific event during a single work shift.

Employee has not met his burden of proof as to accident. His testimony, along with the medical records and the weather data, do not identify a time and place of occurrence, the first requirement.

Employee testified it was "snowing heavily" on January 18, 2019. He stated there were a couple of inches of snow and on cross-examination indicated he was shoveling an "extreme" amount of snow. He told Dr. Charapata that he shoveled 10-15 inches of snow on January 15, 2019, which Dr. Charapata later indicated should have been January 18, 2019. He told Dr. Choi the symptoms began "on or about the early part of 2019". Dr. Choi recorded Employee indicating that he shoveled snow on two different days. Employee testified he shoveled snow on one day, once before noon and once in the afternoon, for a total of three hours.

Employee's original claim for compensation listed an accident date of January 15, 2019. When asked about that date, Employee testified he did not know where it came from. He further testified that he amended the claim to change the date of injury from January 15 to January 18, 2019, after he reviewed the medical records. The emergency room records of January 21, 2019, have a history of the elbow area haven broken open "two days" ago, which would have been January 19, 2019, a Saturday. The admission notes from the early morning of January 22, 2019, have a history that the patient first noticed the exposed implant "three days" ago, which would have been January 19. Employee does not work on the weekends. Employee also denied any recent trauma in those medical records.

The weather data records entered into evidence show that neither the Columbia Regional Airport nor the University of Missouri recorded any snowfall on January 14, 15, 16, 17, or 18. Employee's testimony that it was "snowing heavily" on January 18, 2019, is not credible.

I do not find Employee to be credible. He cannot identify a time and place of occurrence and, therefore, has not met his burden to prove an accident occurred on January 18, 2019. All other issues are moot.

WC-32-R1 (6-81)

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**Employee:** Andrew O'Brien

**Injury No.:** 19-059371

Employee is not awarded any benefits under the Missouri Workers' Compensation law.

I certify that on **1-20-22** 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 which party is retained with the executed award in the Division's case file.

**By:** [Signature]

**Made by:** [Signature]

**Melodie A. Powell**

Administrative Law Judge

Division of Workers' Compensation

WC-32-R1 (6-81)

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