Donna Moorman v. Boehringer Ingelheim Corporation

Injury No.: 05-141672 Employee: Donna Moorman Employer: Boehringer Ingelheim Corporation (Settled) Insurer: Liberty Mutual Insurance Company (Settled) 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 § 287.480 RSMo. We have reviewed the evidence, read the parties’ briefs, heard the parties’ arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we affirm the order of the administrative law judge by separate decision. The decision of Administrative Law Judge Robert B. Miner, issued February 3, 2010, is attached solely for reference and is not incorporated by this decision.

The issues stipulated at the hearing were: (1) accident; (2) occupational disease; (3) notice; (4) whether the alleged accident or occupational disease arose out of and in the course of employment; (5) medical causation; (6) liability for future medical treatment; (7) nature and extent of permanent partial disability; (8) liability for permanent total disability; and (9) the liability, if any, of the Second Injury Fund.

The administrative law judge applied the 2005 amendments to the Missouri Workers’ Compensation Law to employee’s claim, and found the following: (1) employee failed to sustain her burden of proving she sustained a left shoulder injury arising out of and in the course of her employment for employer; and (2) employee failed to sustain her burden to prove that her work for employer was the prevailing factor in causing her left shoulder condition and disability. Given these findings, the administrative law judge denied employee’s claims against the employer and the Second Injury Fund and determined that all other issues are moot.

Employee submitted a timely Application for Review with the Commission alleging the administrative law judge erred: (1) in retroactively applying the 2005 amendments to the Missouri Workers’ Compensation Law; (2) in finding employee failed to meet her burden of proving she sustained a left shoulder injury prior to August 28, 2005; (3) in finding Dr. Parmet credible over Dr. Prostic; and (4) in not finding employer’s Report of Injury credible on the issue of notice.

On July 29, 2010, the Commission issued its Order Approving Stipulation For Compromise Settlement approving the settlement of this claim as between the employee and employer/insurer.

For the reasons set forth in this award and decision, the Commission affirms the award of the administrative law judge by separate decision.

Accident or occupational disease

Employee began working for employer as a bottle washer in 1982. In 1986, employee transferred to employer's packaging and labeling department. Employee's job duties required her to swivel her body from left to right to pick up bottles and place them in boxes. Employee then loaded the boxes onto a pallet, jacked up the pallet, and pulled the pallet out using a pallet jack. Employee handled between 10,000 and 20,000 bottles per day. Employee performed the same job in labeling for 19 years. In the early 2000s, employee sought treatment for shoulder pain. Employee saw Dr. Smith who gave her cortisone shots.

Employee's claim for compensation alleges employee sustained an injury on August 16, 2005, by repetitive reaching and pulling of product, causing cumulative wear and tear on her left shoulder. At her deposition of September 19, 2007, employee testified that her shoulder claim should actually be for August 1, 2005. Employee's deposition testimony conflicts with her hearing testimony, in which she testified that she hurt her back on August 1, 2005.

At the hearing, employee testified that her shoulders began to hurt more and more doing her job as time went on. Employee could not remember which shoulder began to cause her problems first. Employee did not report her alleged left shoulder injury to anyone at work. Employee didn't know when a doctor first suggested to her that her left shoulder condition might have been caused by her work. Employee had difficulty sleeping on her left shoulder both prior to and after August 2005.

Given employee's history of seeking treatment for her left shoulder condition prior to August 2005, her contradictory deposition testimony as to when her left shoulder injury manifested itself, and employee's general lack of recollection at the hearing, we find employee's testimony unreliable as to the timing and circumstances of the alleged August 16, 2005, injury and resulting left shoulder condition.

On October 25, 2005, employee first sought treatment for her left shoulder condition with her personal physician, Dr. Ahmad. Dr. Ahmad's notes contain no mention of employee's repetitive work duties. The clinical history set forth in the report issued in connection with the October 29, 2005, MRI of the left shoulder states: "Reason for exam LT shoulder pain x 6 yrs, no known injury." The radiologist's impression was: "1. No rotator cuff tear seen. 2. Degenerative changes of the acromioclavicular joint with evidence suggesting impingement syndrome."

Dr. Parmet provided an independent medical evaluation on behalf of the employer. Dr. Parmet diagnosed degenerative changes of the left shoulder and rotator cuff attributable to employee's genetic background, surgical menopause, and generalized osteoarthritis. Dr. Parmet did not find evidence of a work-related injury by accident or occupational disease. Dr. Parmet noted that he found arthritis in both shoulder joints and osteoarthritic changes in employee's hands, all attributable to aging. Dr. Parmet opined that the work didn't cause employee's condition but merely made her aware of it. Ultimately, Dr. Parmet opined that employee's work for employer was not the substantial contributing factor or a prevailing factor in her left shoulder condition.

Dr. Koprivica provided an independent medical evaluation on behalf of employee. Dr. Koprivica believed that employee's upper extremity use in activities at work represented an exposure to risk that was unique to her employment, and that the general population is not exposed to that type of risk. Dr. Koprivica opined that employee's work activities were a substantial factor in her left shoulder injuries and condition.

Dr. Prostic provided an independent medical evaluation on behalf of employee. Dr. Prostic opined that employee's work duties of reaching and pulling materials and doing warehouse type loading and unloading of containers were a substantial factor in causing injury to employee's left shoulder.

We find Dr. Parmet more credible than Drs. Prostic and Koprivica. We are convinced that employee's left shoulder condition was the result of non-work-related factors, such as her generalized osteoarthritis and surgical menopause. This is consistent with employee's failure to mention a shoulder injury related to her repetitive work tasks to her employer or treating doctors, and the fact that she resumed working her normal work schedule at full-duty even after her left shoulder surgery in February 2006. Certainly, if it were the work tasks that ultimately sent employee to left shoulder surgery, it strains credibility that she would return after surgery to doing the exact same tasks on a daily basis, full-time, with no accommodation of any kind. Dr. Parmet's opinion more convincingly takes these factors into account.

Accordingly, we find that employee's work was not a prevailing or a substantial factor in the development of her left shoulder condition or disability.

The 2005 amendments

The administrative law judge applied the 2005 amendments to the Missouri Workers' Compensation Law to employee's claim, on findings that employee's injuries were not manifested until after August 28, 2005, the date on which the amendments went into effect. In her appeal to this Commission, employee argues that the administrative law judge erred in retroactively applying the amendments-and their more rigorous burdens of proof-to her claim.

We disagree with the administrative law judge's application of the 2005 amendments to this claim. Employee filed a claim for compensation alleging a date of injury predating August 28, 2005, and employee's evidence at the hearing was dedicated to establishing

Enployee: Donna Moorman

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that she sustained an injury by accident or occupational disease to her left shoulder as of August 16, 2005. As a result, we find it inappropriate to apply the law as it existed after August 28, 2005, to this claim. Accordingly, we have applied to employee's claim the law as it existed on August 16, 2005.

Liability of the Second Injury Fund

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the fund in "all cases of permanent disability where there has been previous disability." Here, employee seeks an award of permanent total disability benefits from the Second Injury Fund. The Second Injury Fund is liable for permanent total disability benefits as follows:

If any employee who has a preexisting permanent partial disability ... receives a subsequent compensable injury resulting in additional permanent partial disability ... the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability ... the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the "Second Injury Fund"

Section 287.220.1 RSMo.

Under the foregoing section, in order to recover permanent total disability benefits from the Second Injury Fund, an employee is first required to prove that she sustained a "last injury" for which her employer is liable. In other words, before the extent of Second Injury Fund liability is considered, employee must establish that she sustained a compensable primary injury. Otherwise, there is no basis for Second Injury Fund liability.

The law applicable to employee's claim provides that:

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 lif