Earl Talbert v. Curators of University of Missouri

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 should be modified to deny employee permanent partial disability benefits for his bilateral shoulder impingement syndrome. I agree with all other portions of the administrative law judge's award.

I do not believe that employee's bilateral shoulder impingement syndrome is related to the work accident of July 17, 2003. First, in his award, the administrative law judge incorrectly asserts that employee was doing overhead work on July 17, 2003. The description given by employee regarding the work he was performing at the time of the accident shows that he was standing above the steel grates. After using a concrete saw to cut around the grates, employee then bent over and began striking the grates from the side with a hammer in order to break the grates loose from the concrete. Thus, employee was not performing overhead work at the time of his work injury. Hence, the administrative law judge's opinion that the work accident was a substantial cause of employee's bilateral shoulder impingement syndrome is flawed.

Second, employee failed to mention any shoulder injuries in his original claim for compensation filed on January 21, 2004, or in his first amended claim filed on August 6, 2004. It was not until he filed his second amended claim on January 18, 2005, eighteen months after the work accident and a month after his shoulder surgery, that employee alleged his shoulders were injured in the work accident.

Third, employee's medical records do not show that he experienced any shoulder problems after the work accident until August 24, 2004. The only time employee's shoulders are mentioned in his medical records prior to August 24, 2004, is when doctors describe the area throughout which his back pain radiates. None of these references deal with actual pain from or injuries to his shoulders.

Employee's left shoulder was x-rayed on August 30, 2004 and it was determined that there was a tumor or lesion present. An MRI of his left shoulder on September 20, 2004, further revealed that there was a small tear in employee's rotator cuff. X-rays of his right shoulder were performed on September 8, 2004. Dr. Sethi reviewed those x-rays and determined that degenerative changes were present, along with a round dense lesion between the right sixth and seventh ribs. Dr. Conway, who treated employee during a seventeen day stay at Rusk Rehabilitation for pain management, opined that employee's shoulder problems were "outside" of his workers' compensation claim. Dr. Kane's records from December 22, 2004, indicate that employee had been experiencing bilateral shoulder pain "for many years." Dr. Behrouzi-Jareh's records from April 15, 2005, show that employee's shoulder pain became worse after he fell and caught himself with his arms.

Dr. Cantrell provided the most credible and persuasive evidence regarding employee's shoulder problems. Dr. Cantrell was extremely knowledgeable about employee's medical history and displayed this in both his medical report and deposition testimony. He opined that employee's bilateral shoulder impingement syndrome was not related to the work accident because the medical records did not indicate that employee was having shoulder problems after the accident, employee had previously been diagnosed with shoulder impingement syndrome, and employee was not performing overhead work at the time of the work accident. I agree with Dr. Cantrell's opinion in its entirety.

The only evidence linking employee's shoulder problems to the work accident of July 17, 2003, is that of employee's expert medical witness, Dr. Sparks. Dr. Sparks did not examine employee until July 6, 2005, nearly two years after employee's work accident. I do not believe his testimony and opinion to be persuasive. Dr. Sparks was completely unfamiliar with employee's medical history, prior injuries and prior disabilities. Without regard to those injuries, including employee's prior right shoulder surgery, Dr. Sparks found that the work accident was a substantial cause of employee's bilateral shoulder problems. Clearly, Dr. Sparks could not find that the work accident was a substantial cause of employee's bilateral shoulder problems if he was unaware that the problems may have pre-existed the work accident.

Thus, based on all of the above evidence, I do not believe that the work accident of July 17, 2003, was a substantial cause of employee's bilateral shoulder impingement syndrome. As such, employer should not be liable to employee for permanent partial disability benefits for his right or left shoulder as a result of the work accident.

For the foregoing reasons, I respectfully dissent from that portion of the decision of the majority of the Commission

Employee: Earl Talbert

Injury No. 03-084065

Dependents:

Before the

Employer: Curators of University of Missouri

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Injury Fund

Jefferson City, Missouri

Insurer: Self-insured/Thomas McGee LC

Hearing Date: November 13, 2006

Checked by: RJD/cs

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: July 17, 2003.
5. State location where accident occurred or occupational disease was contracted: Columbia, 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: (See below.)
12. Did accident or occupational disease cause death? No. Date of death? $\mathrm{N} / \mathrm{a}$.
13. Part(s) of body injured by accident or occupational disease: Back, both shoulders.
14. Nature and extent of any permanent disability: 35 % body as a whole with/re to low back, 10 % ppd right shoulder, 9 % ppd left shoulder.
15. Compensation paid to-date for temporary disability: $\ 28,750.69 (paid through 10/24/04).
16. Value necessary medical aid paid to date by employer/insurer? $\ 187,268.67
17. Value necessary medical aid not furnished by employer/insurer?
18. Employee's average weekly wages: $\ 654.80.

1. Weekly compensation rate: $\$ 436.56 \mathrm{ttd} / \mathrm{ptd}-\$ 347.05 \mathrm{ppd}$.
2. Method wages computation: By stipulation.

1. Amount of compensation payable:

184.08 weeks of permanent partial disability from Employer (minus credit of $\ 249.46 ) $=\ 63,635.50

Mileage $\ 101.43

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential $\ 89.51 payable by SIF for $1841 / 7 weeks beginning October 21, 2004,

and, thereafter \ 436.56 weekly for Claimant's lifetime

TOTAL:

1. Future requirements awarded: Employer is also required to provide Employee with future medical benefits, all as set forth more fully below.

Said payments to begin immediately 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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Dennis Murphy

Employee: Earl Talbert

Before the DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents:

Employer: Curators of University of Missouri

Additional Party Second Injury Fund

Insurer: Self-insured/Thomas McGee LC

The evidentiary hearing in this case was held on November 13, 2006 in Jefferson City. The parties requested leave to file post-hearing briefs, which leave was granted. The case was submitted on December 21, 2006. The hearing was held to determine the following issues:

1. Whether Employer shall be entitled to a credit for alleged overpayment of temporary total disability ("TTD") benefits;
2. Whether Employer shall be liable for permanent partial disability benefits or permanent total disability benefits, and the amount thereof;
3. The liability of the Second Injury Fund, if any, for permanent total disability benefits;
4. Whether Employer shall be ordered to reimburse Claimant for medical expenses he has sustained for treatment of his shoulders;
5. Whether the work accident of July 13, 2003 is the medical and legal cause of the injury to either or both shoulders;
6. Whether the notice requirement of $\S 287.420$ is a bar to Claimant's claim for compensation in regard to his alleged shoulder injuries; and
7. Whether Employer shall be ordered to provide future medical benefits pursuant to $\S 287.140$.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Boone County and adjoining counties, and that Cole County is an adjoining county to Boone County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That the compensation rates are $\$ 436.56 / \ 347.05, based on an average weekly wage of $\ 654.80;
6. That Claimant, Earl Talbert, sustained an accident arising out of and in the course of his employment with University of Missouri on July 17, 2003;
7. That University of Missouri is an authorized self-insured for Missouri Workers' Compensation purposes at all relevant times;
8. That Employer owes Claimant $\ 101.43 for mileage;
9. That Claimant is permanently and totally disabled under t