(Affirming Award and Decision of Administrative Law Judge)
Injury No.: 03-146446
Employee: Suljo Cuskic
Employer: True Manufacturing, Inc.
Insurer: Liberty Mutual Insurance Company
Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund
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 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 July 18, 2008, and awards no compensation in the above-captioned case.
The award and decision of Administrative Law Judge Grant C. Gorman, issued July 18, 2008, is attached and incorporated by this reference.
Given at Jefferson City, State of Missouri, this 3rd day of April 2009.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
William F. Ringer, Chairman
Alice A. Bartlett, Member
DISSENTING OPINION FILED
John J. Hickey, Member
Attest:
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 (ALJ) should be reversed and medical care and permanent partial disability benefits should be awarded.
First, there is no question that employee suffered bilateral rotator cuff tears. However, it is my opinion, based upon the medical records, testimony provided, and other evidence presented that employee met his burden of proof regarding causation and should be awarded medical care and permanent partial disability benefits.
As correctly stated in the award by the ALJ, under Missouri law, the claimant bears the burden of proving all the essential elements of a workers' compensation claim, including the causal connection between the accident and the injury. Grime v. Altec Indus., 83 S.W.3d 581, 583 (Mo.App. W.D. 2002) (citations omitted). Claimant is not required to prove the elements of his claim on the basis of "absolute certainty," but he must at least establish the existence of those elements by "reasonable probability." Sanderson v. Porta-Fab Corp., 989 S.W.2d 599, 603 (Mo.App. E.D. 1999) (citations omitted).
Employee began working for employer in October of 2000 and testified that he had no problems with either of his shoulders prior to working for employer. During the first three years of his employment, he made frames for refrigerators. Employee painted frames in one department and welded the frames in another department. Following his time making frames, employee spent a few months operating the decoiler machine, and his last year and a half on the RAS machine. Employee testified that his jobs with employer required a great deal of work at or above eye level.
When employee painted the frames he had to hook the frames up to a track. This required him to stretch his arms the width of the frame and hook the frames onto the track at about eye level. When taking the frames off the track, employee again would reach either to eye level or above his head with his arms partially or fully extended, take the frames down and carry them over to a separate table. He testified that the frames weighed between 20 to 25 pounds and that he would have to both hook and unhook between 400 and 700 frames per shift.
Employee testified that the second part of his refrigerator frame job involved screwing four screws in the holes of the frame. Two of the four screws were above head. He testified that he screwed between 1,600 and 2,800 screws during each five hour shift, half of which were overhead. Employee testified that one of his duties required him to carry the frames to and from pallets with his arms spread the width of the frames with one arm above shoulder level and the other arm below shoulder level. On the RAS machine, employee testified that he would take sheet metal off a pallet and carry it with one hand underneath the sheet metal and the other hand up above his head holding onto it.
Employee testified that he began feeling work-related shoulder pain in November of 2003 and that he reported said pain to his employer. Employee testified that he was told to go see a doctor or take some pills. Employee initially saw his family doctor, Dr. Ponnuru, but was referred to Dr. Sigmund, an orthopedist. Employee was also seen by Dr. Perry who administered cortisone shots and prescribed pain medication for employee's shoulders.
On January 27, 2006, Dr. David Volarich performed an Independent Medical Evaluation on employee. As part of said evaluation, Dr. Volarich reviewed employee's medical records and reports, took a history from employee regarding his shoulders leading up to November of 2003, physically examined employee, and
inquired about employee's job activities with employer. Dr. Volarich testified that it was his opinion, to a reasonable degree of medical certainty, that the repetitive nature of employee's work activities were the substantial and contributing factors, as well as the prevailing factors causing employee's bilateral rotator cuff tears.
On January 22, 2007, employee was evaluated by Dr. Mitchell Rotman. On exam, Dr. Rotman diagnosed employee's bilateral rotator cuff tears and inquired as to his job activities. Employee informed Dr. Rotman that his job required him to do a lot of shoulder level reaching. Dr. Rotman concluded that employee's work was a prevailing factor in causing employee's shoulder condition.
After receiving Dr. Rotman's report, employer then submitted employee's job description to Dr. Rotman and asked him to review the job description and provide a second report. Dr. Rotman reviewed the job description and then asked for a video depicting employee's job activities in order to further evaluate causation. Employer provided Dr. Rotman with a video of an individual performing employee's job activities. After reviewing the job description and video, Dr. Rotman issued a second report. In said report, Dr. Rotman contradicted his opinions in the first report and concluded that employee's work for employer did not appear to be a substantial or aggravating factor with regard to his bilateral chronic degenerative rotator cuff tears.
Dr. Volarich reevaluated employee on January 4, 2008. Dr. Volarich watched the video that Dr. Rotman reviewed. Dr. Volarich watched the video in the presence of employee and testified that employee agreed that the video depicted part of his duties, but did not include all of his duties requiring above the shoulder work. Dr. Volarich also testified that employee told him that the video did not accurately depict the pace at which he was required to perform the duties. Employee had told Dr. Volarich that the pace was much faster than that shown in the video.
Dr. Volarich testified that it was his opinion, to a reasonable degree of medical certainty, based on the video, history and job activities of employee, that the repetitive work employee did for employer was the substantial contributing factor, as well as the prevailing or primary factor causing employee's bilateral shoulder rotator cuff tears.
Based on the above, I believe that employee has carried his burden that there is a "reasonable probability" that his bilateral shoulder rotator cuff tears were caused by the repetitive work employee performed for employer. Both of the evaluating physicians at one point concluded that employee's job was the prevailing factor in causing his rotator cuff tears. Although Dr. Rotman later contradicted his initial opinion as to causation, his contradiction was based merely upon a job description and video prepared and provided by employer. Dr. Rotman did not inquire as to the accuracy of the job activities being performed in the video and listed in the job description, but merely accepted them at face value. On the other hand, Dr. Volarich watched the video with employee and asked various questions as to whether the video accurately depicted employee's job activities. Employee stated that the video was inaccurate in that it failed to show all of the activities that were performed above shoulder level and it did not show the activities being performed at the speed he was required to perform them. In addition, Dr. Rotman even stated that his opinion could change again if the job activities were different from the written job description and the video. Based on employee's testimony that is exactly the case in this matter. I find Dr. Volarich's opinions more credible than Dr. Rotman's because Dr. Rotman made a drastic change in opinion with regard to causation based only on a job description and video that were both prepared by employer, while Dr. Volarich's opinions remained constant throughout.
The ALJ gave little if any weight to the fact that: 1) Dr. Rotman bases his entire changed opinion upon a job description and video prepared and provided by employer; and 2) Employee testified that said job description and video do not accurately reflect the work he performed for employer. Further, the ALJ incorrectly finds Dr. Rotman more credible than Dr. Volarich based solely on the fact that Dr. Rotman is an orthopedic surgeon.
Although Dr. Volarich is not an orthopedic surgeon, he specializes in evaluating work-related injuries and is just as qualified, if not more qualified, than Dr. Rotman to determine causation in this matter. The ALJ incorrectly concluded that employee failed to prove by a reasonable probability that his employment with employer is a substantial causative factor in the development of his bilateral rotator cuff tears.
For the foregoing reasons, employee is entitled to medical care and permanent partial disability benefits. As such, I would reverse the award of the ALJ and award employee medical care and permanent partial disability benefits.
For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.
John J. Hickey, Member