I have reviewed and considered all of the competent and substantial evidence on the whole record. Based upon my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge awarding compensation should be
reversed.
At the outset, I note that I find employee to be a credible witness and I accept his testimony regarding the extent and nature of his activities operating a grinder for employer.
The administrative law judge found as follows:
Both Drs. Prostic and Pratt indicated that Claimant's work activities had aggravated Claimant's preexisting problems. Recognizing that Claimant had preexisting problems to the same parts of the body, neither offered an opinion that Claimant's work activities at Honeywell were a substantial factor in the cause of Claimant's alleged occupational disease or the conditions he complained of. Neither provided any objective medical evidence to support such a finding.
The administrative law judge is mistaken if he concludes that "the substantial contributing factor" evidence requirement is not met unless a medical expert testifies in those exact words. See Mayfield v. Brown Shoe Co., 941 S.W.2d 31 (Mo. App. 1997). "There is nothing talismanic about the phrase in question. The words a medical expert uses when testifying are often important, not so much in and of themselves, but as a reflection of what impressions such witness wishes to impart." Mayfield, 941 S.W.2d at 36 (citations omitted).
The record does not support the administrative law judge's finding that neither doctor offered an opinion that work activities were a substantial factor in causing an aggravation of conditions about which employee complained. To the contrary, both doctors testified that work aggravated employee's shoulder condition.
Dr. Prostic testified: "So it is my impression that grinding parts aggravated the shoulder rather than being the sole cause of the shoulder problem." Dr. Pratt testified: "My opinion is that he had involvement of the left shoulder related to non-vocational related activities in 2000 and had subsequent aggravation of this shoulder in relation to vocational-related activities."
"Causation is established by medical testimony. The commission cannot find there is no causation if the uncontroverted medical evidence is otherwise." Hayes v. Compton Ridge Campground, Inc., 135 S.W.3d 465, 470 (Mo. App. 2004), citing Elliott v. Kansas City, Mo., School Dist., 71 S.W.3d 652, 657-58 (Mo. App. 2002).
[A]ggravation of a pre-existing condition is a compensable injury if the claimant establishes a direct causal link between her job duties and the aggravated condition. See Smith v. Climate Engineering, 939 S.W.2d 429, 433-34 (Mo.App. E.D.1996). Work must have been a "substantial factor" causing the aggravated condition. Section 287.020.2. But if the aggravation is due to "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 non [-]employment life," then the injury is not compensable. Section 287.020.3(2)(d).
Rono v. Famous Barr, 91 S.W.3d 688, 691 (Mo. App. 2002), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003).
Operating a grinder for several hours a day is not a hazard or risk to which employee would have been equally exposed outside of his work. I find that employee has sustained his burden of proving that his work at Honeywell aggravated his underlying shoulder conditions.
I would award to employee his past medical expenses and permanent partial disability of 8 % of the right upper extremity at the 232-week level in accordance with Dr. Pratt's opinion. For that reason, I would reverse the denial of compensation for this claim. For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission to deny compensation.