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 should be reversed.
The administrative law judge found employee did not prove that his employment was the prevailing factor in the development of his myofascial pain. The administrative law judge found the opinion of Dr. Cantrell to be more persuasive than that of Dr. Volarich; however, his reasoning for finding Dr. Cantrell's opinion more persuasive was not sound.
The ultimate determination of credibility of witnesses rests with the Commission. I find the deposition testimony from Dr. Volarich to be more credible, persuasive, and worthy of belief. Therefore, I believe the administrative law judge's conclusion is wrong, and competent and substantial evidence supports a finding that employee sustained his burden showing he contracted an occupational disease arising out of and in the course of his employment.
Section 287.067 RSMo (Cum Supp. 2006) provides:
- In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.
- An injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.
- An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.
Employee established through his credible testimony along with the medical expert testimony provided by Dr. Volarich, that employee sustained an occupational disease arising out of and in the course of his employment.
Employee credibly testified that he did not have any prior problems with respect to his right upper extremity before April of 2006 when he began driving the Volvo 630 for employer. Employer had switched the vehicle in which employee was driving to an older model Volvo in April of 2006. Employee immediately noticed a problem with the air ride seat and inadequate cushion in the seat. Within a week of driving the truck, employee noticed an onset of pain in his right shoulder. Employee reported the problem with the air ride seat to employer within a week of driving the truck. According to employee, the owner, Mike Aromondo, inspected the seat at that time. Employee testified that employer's other owner, James Aromondo, promised employee that he would be switched to another vehicle. When employee called employer to request medical
treatment, employee was told to come collect his things. Employee sought treatment on his own including a cortisone shot and medications. Employee was unable to continue treatment or undergo the recommended physical therapy because he did not have medical insurance. Employee believed that he could not safely drive for employer in his condition, including the severe pain in his right shoulder.
Employee's testimony was supported by that of Dr. Volarich. Dr. Volarich diagnosed employee with repetitive trauma of the right upper extremity causing right shoulder girdle myofascial pain. Dr. Volarich opined that the repetitive trauma sustained to the right upper extremity while driving a truck for employer, including the faulty seat that bottomed out frequently causing him to jerk his right shoulder while holding on to either the steering wheel or shifting, were the substantial contributing factors, as well as the prevailing or primary factors causing the right shoulder girdle myofascial pain that required conservative care. Dr. Volarich found employee to have sustained a 20\% permanent partial disability of the right upper extremity rated at the shoulder girdle and posterior chest wall (body as a whole), due to the right girdle myofascial injury and ongoing pain. Dr. Volarich's opinion is supported by the evidence in the record.
On the other hand, Dr. Cantrell's opinion was not supported by the evidence. Dr. Cantrell found that employee's condition was not connected to his employment in part because the pain he experienced while driving for employer had not improved after he ceased driving for employer. Employee reported severe pain and testified that he was unable to use or move his arm in May of 2006; at the time of hearing, employee reported aching in his right upper extremity but no severe pain. Employee's condition had clearly improved after he stopped working for employer. Dr. Cantrell also noted that employee had prior complaints as to his right shoulder, when in fact there is no medical evidence suggesting the employee suffered any medical condition related to his right upper extremity prior to April 2006. Furthermore, employee worked up and until his injury by occupational disease on or about May of 2006. Dr. Cantrell's opinion was not based on facts in evidence.
Employee's credible testimony along with the credible testimony of Dr. Volarich, established that the occupational exposure, defective seat, was the prevailing factor in causing employee's medical condition, myofascial pain syndrome, and resulting disability. Employee satisfied his burden proving the contraction of an occupational disease and entitlement to benefits. Therefore, I respectfully dissent from the decision of the Commission majority to deny employee's benefits.
John J. Hickey, Member