Sharon Gill v. SSM Healthcare/SSM Rehab

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated January 27, 2005, and awards no compensation in the above-captioned case.

The Commission finds that the ALJ correctly weighed and evaluated the lay and medical testimony in reaching his conclusions as to the issues presented. The Commission finds that the ALJ correctly found that the incident of October 22, 2001, wherein employee complained of injuries sustained while reaching for a parking ticket was a de minimus or innocuous event, had no real genesis in the employee's employment and was not a substantial factor in the subsequent medical events. Reese v. Gary & Roger Link, Inc., 5 S.W. 3d 522 (Mo. App. E.D. 2002), Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879 (Mo. App. S.D. 2001), Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240 (Mo. banc 2003).

The award and decision of Administrative Law Judge Matthew D. Vacca, issued January 27, 2005, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 22nd day of July 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

________________________

Attest: John J. Hickey, Member

________________________

Secretary

AWARD

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: October 22, 2001
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? No
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? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: N/A
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 13,206.90
16. Value necessary medical aid paid to date by employer/insurer? $\ 42,451.79

Employee: Sharon Gill Injury No.: 01-164892 17. Value necessary medical aid not furnished by employer/insurer? -0- 18. Employee's average weekly wages: $\ 804.45 19. Weekly compensation rate: $\$ 536.30 / \ 329.42 20. Method wages computation: Stipulated

1. Amount of compensation payable:

1. Second Injury Fund liability: No

TOTAL:

1. Future requirements awarded: None

Said payments to begin N/A 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:

$\mathrm{N} / \mathrm{A}$

Claimant has had longstanding injury to her left shoulder. She had surgery with Dr. Roush on the shoulder on July 24, 2001. She was still undergoing physical therapy when on October 22, 2001 as she was entering a parking garage at SSM (Employer) in Clayton, Missouri her shoulder popped while reaching for a parking ticket. She then filed this Claim for Compensation alleging work injuries to that shoulder which she believes arose out of and in the course of employment. Claimant requests benefits in excess of $\ 552,000.00. I find for Employer and deny all compensation based on the finding that work was not a substantial factor in the development of the condition.

The issues presented for resolution by way of this hearing were accident, arising out of and in the course of employment, medical causation, past medical expenses, the nature and extent of any permanent partial disability and future

1. When Claimant was seventeen years old she fell on ice at the Lincoln Academy in Kansas City. Claimant went to the emergency room and a physician manipulated the dislocated shoulder back into place.
2. Claimant was next working in Jefferson City at St. Mary's Hospital when she was lifting a patient and injured her left shoulder again. Dr. Domke injected the shoulder and placed Claimant in a sling for two to three weeks. Claimant's best estimate was that this injury took place in the 1990s.
3. Claimant also had a cervical strain in 1989 while in Jefferson City. Dr. Domke treated Claimant as did Dr. Cox. A myelogram was performed and Claimant missed several days of work.
4. Subsequently Claimant moved back to St. Louis and in September of 1999 was treating with Dr. McDonald, her primary care physician, with complaints she was having in her left shoulder. Dr. McDonald referred Claimant to Dr. Roush and an MRI was performed in October of 1999. Claimant was diagnosed with impingement syndrome and instability in the left shoulder. Claimant treated conservatively with Dr. Roush for her left shoulder complaints between October 27, 1999 and January 11, 2000 when she was discharged from further care with directions that she should return to him if she had any further problems.
5. Claimant started working at SSM Rehab in St. Louis in February of 2001.
6. On June 13, 2001 Claimant returned to see Dr. Roush because of recurrent pain in the left shoulder that did not let up. Claimant describes the shoulder pain as if something was impinging in the shoulder or it was getting "caught". Claimant also had neck pain when she saw Dr. Roush in June of 2001. Claimant was also experiencing intermittent numbness into the left arm as well as into the left leg on June 13, 2001.
7. Dr. Roush performed another MRI and again diagnosed impingement and instability.
8. The MRI of Claimant performed by Dr. Roush on July 11, 2001 showed a normal cervical spine and EMG with early carpal tunnel syndrome of the upper extremities on the left and equivocal findings of C5-6 nerve root irritation on EMG. Claimant by then had received conservative care including injections and physical therapy and therefore Dr. Roush decided to evaluate her by way of shoulder arthroscopy.
9. Dr. Roush performed an exploratory arthroscopic procedure to see the exact internal condition of the shoulder. Surgery was undertaken July 24, 2001 and Dr. Roush further performed an open acromioplasty with thermo-capsule shrinkage.
10. In the arthroscopic procedure, Dr. Roush found no intra-articular tears in the labrum or anterior capsular areas although the anterior drawer was lax. He performed an open acromioplasty for impingement and thermal capsular shrinkage of both the anterior and inferior capsules.
11. Dr. Roush started Claimant on another round of physical therapy and examined the Claimant again on October 3, 2001.
12. Claimant was in a sling up until the October 3, 2001 visit and she was undergoing physical therapy. On October $3^{\text {rd }}$, Dr. Roush allowed Claimant to start lifting up to five pounds with her left arm.
13. On October 22, 2001 Claimant was entering the parking garage at SSM in Clayton, Missouri and taking a parking ticket out of the dispensing machine at the garage when the shoulder popped.
14. Claimant was scheduled for physical therapy that day at SSM but did not keep that appointment. Claimant worked at the Hazelwood Village SSM Rehab location. This incident occurred at the Clayton location.
15. Claimant contends that she reported the injury to her supervisors but that no medical treatment was offered because Claimant was already treating with Dr. Roush for injuries to her left shoulder.
16. Where Claimant was actually scheduled for the physical therapy appointment on October 22, 2001, Clayton or Hazelwood, is unclear, but she missed that appointment. Claimant returned to physical therapy the following week and also saw Dr. Roush on October 31.
17. Dr. Roush was the first doctor Claimant saw after she tried to take the ticket from the parking lot machine. Claimant continued treating with Dr. Roush but wasn't getting any better so she sought out treatment on her own with Dr. Burns for a second opinion. Claimant did not specifically ask the Employer to provide medical care or for a second opinion.