Gerald Gordon v. City of Ellisville

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on 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 should be reversed.

On October 21, 2005, employee fell on his outstretched right arm and injured his shoulder. On November 7, 2005, during a course of treatment provided by employer/insurer, Dr. Lehman began a surgery on employee's right shoulder with the intention of repairing a rotator cuff tear. Upon viewing employee's right shoulder, Dr. Lehman discovered employee had a massive rip and rotator cuff tear, subscapularis tear, and impingement syndrome. Dr. Lehman performed a repair of the subscapularis tear and a limited repair of the rotator cuff.

The parties agree that employee has a massive irreparable rotator cuff tear and loss of function of his shoulder. The parties have stipulated that employee sustained an injury by accident arising out of and in the course of his employment. Employer argues that employee sustained only a shoulder strain as a result of the work accident. Employee contends he sustained a rotator cuff tear necessitating surgery.

Complicating the determination of this claim is employee's right shoulder history. Employee had rotator cuff repair in 1993. After the 1993 repair, employee worked without restrictions with regard to the right shoulder until he suffered the work accident.

The administrative law judge concluded that, "[c]laimant failed to meet his burden of proving his work injury of October 21, 2005, was the prevailing factor in causing his massive rotator cuff tear, which necessitated surgical treatment and the resulting temporary disability." The administrative law judge found persuasive Dr. Lehman's explanation that employee's condition was chronic in nature and the work fall was not the prevailing factor in causing employee's rotator cuff tear. For reasons discussed below, I am not persuaded by Dr. Lehman's medical causation opinion. As will be discussed, I conclude the work fall was the prevailing factor in causing employee's injury, resulting medical condition and disability.

Section 287.800.1 RSMo (2005)[1] provides that, "[a]dministrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly."

Section 287.020.10 RSMo provides that, "[i]n applying the provisions of this chapter, it is the intent of the legislature to reject and abrogate earlier case law interpretations on the meaning of or definition of 'accident', 'occupational disease', 'arising out of', and 'in the course of the employment' to include, but not be limited to, holdings in: Bennett v. Columbia Health Care and Rehabilitation, 80 S.W.3d 524 (Mo.App. W.D. 2002); Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo. banc 1999); and Drewes v. TWA, 984 S.W.2d 512 (Mo.banc 1999) and all cases citing, interpreting, applying, or following those cases."

"The language in section 287.020.10...serves as clarification of the fact that any construction of the previous definitions by the courts was rejected by the amended definitions contained in section 287.020...[I]t appears from the plain language of the statute, the legislature ...intended to clarify its intent to amend the definitions and apply those definitions prospectively." Lawson v. Ford Motor Co., 217 S.W.3d 345, 349 (Mo.App. 2007).

As to the phrases appearing in $\S 287.020 .10$, the legislature created a blank slate effective August 28, 2005.

The primary role of courts in construing statutes is to ascertain the intent of the legislature from the language used in the statute and, if possible, give effect to that intent. In determining legislative intent, statutory words and phrases are taken in their ordinary and usual sense. § 1.090. That meaning is generally derived from the dictionary. There is no room for construction where words are plain and admit to but one meaning. Where no ambiguity exists, there is no need to resort to rules of construction.

Abrams v. Ohio Pacific Express, 819 S.W.2d 338 (Mo. banc 1991) (citations omitted).

In light of the directives of $\S 287.800$ and the Missouri Supreme Court, our primary role is to strictly construe the Workers' Compensation Law giving the words and phrases their ordinary and usual meaning.

Section 287.120.1 RSMo provides:

Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee's employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person.

Employer is liable to employee for workers' compensation benefits if 1) employee sustained personal injury 2) by accident 3) arising out of and in the course of his employment. The parties have stipulated that employee sustained an injury by accident arising out of and in the course of employment. Employer asserts, however, that the condition for which employee seeks compensation is a chronic rotator cuff tear that was not caused by the accident. Employee asserts that the condition for which he seeks compensation is an acute rotator cuff tear or aggravation of a rotator cuff tear.

It has long been the rule in Missouri that aggravations of preexisting conditions may be compensable. Under the pre-2005 version of the Workers' Compensation Law, the claimant had to show a causal link between work and the aggravated condition (i.e. the employment was a substantial factor in causing the aggravated condition). [2] That is because old $\S 287.020$ RSMo (2000), provides, among other things, that: an injury is compensable if it is clearly work related; the injury must be incidental to and not independent of the relation of employer and employee; it is reasonably apparent...that the employment is a substantial factor in causing the injury; the injury can be seen to have followed as a natural incident of the work; the injury can be fairly traced to the employment as a proximate cause.

By the 2005 Amendments, the legislature changed the causal link necessary to give rise to compensation. Specifically, the legislature changed the primary focus away from whether the employment caused the injury ("the employment is a substantial factor in causing the injury") to whether the accident caused the injury ("the accident is the prevailing factor in causing" the injury or medical condition or disability). Under §287.020 RSMo (2005), an aggravation of a preexisting condition is compensable if claimant proves a direct causal link between the accident and the aggravated condition; that is, a claimant must prove that the accident was the prevailing factor in causing the aggravated condition. Employee has met this burden.

Arising Out of and in the Course of Employment -- §287.020.3(2)

The legislature established a two-prong test for determining whether an injury arises out of or in the course of employment. §287.020.3 RSMo (2005) provides that:

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from 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 nonemployment life.

The legislature defined the prevailing factor for us. "The prevailing factor" means, "the primary factor, in relation to any other factor, causing both the resulting medical condition and disability." §287.020.3(1). The phrase "prevailing factor" appears in two different subsections of $\S 287.020$. The context of the subsections reveals that the phrase is used in two different ways.

- $\S 287.020 .3(1)$ provides that, "[a]n injury by accident is compensable only if the accident was the prevailing factor causing both the resulting medical condition and disability."

- $\S 287.020 .(2)$ provides that, "[a]n injury shall be deemed to arise out of and in the course of the employment only if: (a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and,... "

Substituting the definition of "prevailing factor" for each occurrence of the phrase "prevailing factor" does not cut an easy path to a compensability determination. Substituting the definition in §287.020.3(1) produces the following redundant requirement:

An injury by accident is compensable only if the accident was [the primary factor, in relation to any other factor, causing both the resulting medical condition and disability] causing both the resulting medical condition and disability.

Substituting the definition in §287.020.3(2) produces the following somewhat unintelligible requirement:

An injury shall be deemed to arise out of and in the course of the employment only if: (a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is [the primary factor, in relation to any other factor, causing both the resulting medical condition and disability] in causing the injury; and,...

The meanings of the amendments are far from clear. To be compensable, must the accident be the primary factor, in relation to any other factor, in causing the injury? In causing both the resulting medical condition and disability? In causing the injury, the resulting medical condition, and the disability? In the present case, employee has shown the accident caused all three so I will not ponder that ambiguity further.

The parties stipulate that employee sustained an injury by accident. "Injury" is variously defined in Chapter 287. The multiple definitions create ambiguities to be addressed on another day. For my analysis, I will use the definition of "injury" found in §287.020.3(5): "The terms 'injury' and 'personal injuries' shall mean violence to the physical structure of the body..."

"'Disability' is de