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  • Writer's pictureRick Montgomery

Removal of pre-existing hardware exposed by skin rubbed open after shoveling snow not compensable.

Rick Montgomery received a favorable decision from the Missouri Labor and Industrial Relations Commission that affirmed a final award denying compensation to an employee whose pre-existing hardware in his elbow became exposed when the skin broke open after shoveling snow in Employer's parking lot. Employee had a prior injury to his left elbow that required placement of hardware in his left elbow. He testified that it was snowing on January 18, 2019, and his supervisor asked him to shovel the snow from the parking area. He shoveled for an hour and one-half in the morning, took a break, and shoveled for another hour and one-half in the afternoon. When he arrived home, he noticed the skin on his elbow was broken open and he could see the metal hardware protruding from his elbow. Several days later, he presented to the hospital requiring removal of the hardware after attempts to self treat the wound at home were not successful. The history provided at the hospital on January 21, 2019, was that he denied recent injury, and stated that he was taking his shirt off when he noticed a small scab fell off exposing the hardware, .

Administrative Law Judge Melodie Powell took judicial notice of weather data from the National Centers for Environmental Information printed from its website admitting it into evidence over objection by Employee. The weather data showed that no snow fell in the area on January 14, 15, 16, 17, or 18 (the alleged date of injury).

Dr. Steven Charapata performed an IME and prepared a report and testified by deposition for Employee indicating that Employee told him that he was asked to shovel snow on January 15, 2019, that was 10" to 15" deep in places. It was his opinion the prevailing factor in causing an erosion over the implanted hardware and dehiscence of the hardware was shoveling this deep snow on January 15, 2019, requiring removal of the hardware and permanent disability to the left elbow.

Dr. Luke Choi performed an IME and prepared a report at the request of the employer and insurer indicating that Employee told him that he shoveled snow over two days and that this is a "quintessential example of a work-related activity being the precipitating / triggering factor" and not the prevailing factor. The primary or prevailing factor causing the wound to break down was the prominent hardware and the fact that Employee had issues with that hardware even after the initial fixation procedure, and not shoveling snow over two days.

The Commission held that Information posted on a government website is self-authenticating and therefore properly admitted by the administrative law judge taking judicial notice. The Commission further found that Employee was not credible because his testimony was inconsistent and there was no accident because he failed to identify a time and place of occurrence. In addition, even if he had proven an incident occurred on January 18, 2019, Dr. Luke Choi's opinion was more persuasive and credible, and based on his opinion, the incident was not the prevailing factor in causing the employee's medical condition and disability. Compensation is therefore denied. Andrew T. O'Brien v. The Language Tree, Injury No. 19-059371, decided January 19, 2023.

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