Wade Jenkins v. University of Missouri

left upper extremity at the time of the October 2006 accident. Lastly, no doctor ever placed restrictions on employee with regard to his shoulder or elbow prior to the October 2006 injury.

While we agree with the ALJ that under Elliott v. Kansas City Sch. Dist., 71 S.W.3d 652 (Mo. App. 2002), he was within his bounds as an administrative law judge in arriving at percentages of disability that were below those opined by Dr. Volarich, we find that his apportionment for preexisting disabilities was in error because it was based upon "conjecture or [his] own mere personal opinion unsupported by sufficient competent evidence." Houston v. Roadway Express, Inc., 133 S.W.3d 173, 179 (Mo. App. 2004) (citations omitted). There was simply no evidence to support his apportionment for preexisting disabilities.

We agree with the ALJ's conclusion that employee's left shoulder is 25 % permanently partially disabled and that his left elbow is 18 % permanently partially disabled; however, we find that all of said permanent partial disability is attributable to the October 31, 2006, accident. Therefore, employee is awarded $\ 21,500.02 permanent partial disability benefits for his left shoulder ( =25 % of 232 weeks $x \ 370.69 ) and $\ 14,012.08 permanent partial disability benefits for his left elbow ( =18 % of 210 weeks $x \ 370.69 ).

In addition, although the parties stipulated to 7 weeks of disfigurement, the ALJ neglected to include the same in his award. Therefore, in addition to the aforementioned benefits, we also award employee 7 weeks of disfigurement, which amounts to $\ 2,594.83 ( 7 weeks $x \ 370.69 ).

The award and decision of Administrative Law Judge Henry T. Herschel, issued June 21, 2010, as modified, is attached and incorporated by reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $28^{\text {th }}$ day of January 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Wade Jenkins

Injury No. 06-100307

Dependents: N/A

Employer: University of Missouri

Address: 00000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000

Employee: Wade Jenkins

1. Value necessary medical aid not furnished by employer/insurer? None.
2. Employee's average weekly wages: $\ 556.04.
3. Weekly compensation rate: $\ 370.69 (TTD and PPD).
4. Method wages computation: Stipulation of parties.

1. Amount of compensation payable: Permanent Partial Disability
2. Future requirements awarded: No.

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: Truman Allen.

Employee: Wade Jenkins

Injury No. 06-100307

Dependents: N/A

Employer: University of Missouri

Additional Party: N/A

Insurer: Self-Insured

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: $\mathrm{HTH} / \mathrm{sb}$

The parties appeared before the undersigned Administrative Law Judge on March 25, 2010. The Division has jurisdiction to hear this case pursuant to $\S 287.110$ RSMo 2000. The parties provided briefs on the relevant issues on approximately April 15, 2010.

1. The employee and the employer were operating under the provisions of the Missouri Workers' Compensation Law on or about October 31, 2006;
2. The employer's liability was self insured;
3. The employer had notice of the alleged accident and a claim for compensation was timely filed;
4. The employee's average weekly wage was $\ 556.04;
5. The rate of compensation for temporary total disability (TTD) was $\ 370.69 and $\ 370.69 for permanent partial disability (PPD); and
6. The employer has paid $\ 1,043.92 in TTD and $\ 33,624.28 in medical benefits to date.

1. Nature and extent of the elbow, shoulder, and wrist injuries.

A Medical Records

Wade Jenkins (Claimant) is a 40-year-old male who worked in a cleaning crew for the University of Missouri for eight years. In October 2006, he was lifting a full biohazard tub at the University Hospital when he slipped and fell and hit his left shoulder, elbow, and wrist on the floor. (J. Exh. A, p30, 32.) Claimant immediately suffered pain and was referred to medical professionals for examination and treatment.

At first he received conservative care for his elbow, wrist, and shoulder. The treatment did not resolve his symptoms. When his symptoms did not resolve, Claimant was ordered to have an MRI in December 2006. The MRI indicated that Claimant had a possible tear or sprain of the superior glenoid humeral ligament. (Id. at p60.) This finding was consistent with an x-ray arthrogram, which resulted in a positive test of an impingement of his shoulder. Dr. R. White performed surgery in February 2007. (Id. at pp92-93.)

Claimant's rehabilitation from shoulder surgery was rocky. Although the physical results indicated improvement, Claimant still complained of pain and weakness in his shoulder. (Id. at p37.) In June 2007, Claimant was rated at maximum medical improvement for his shoulder. (Id. at pp145-146; 160-161.)

Claimant's treatment of his elbow and wrist seemed to be delayed in relation to his shoulder care. (Id. at p169.) Claimant was independently evaluated by Dr. M. Concannon and he concluded that the wrist and elbow injury were work related, and he recommended a surgical decompression and transposition of the ulnar nerve. In July 2007, Claimant underwent a left cubital tunnel release and partial submuscular anterior transposition and Z-plasty lengthening of the forearm flexor fascia. (Id. at p172.) In September 2007, Claimant was released from this treatment without restriction in his elbow.

Dr. White provided a permanent partial impairment rating of 0 % of the left shoulder and 0 % for body as a whole (BAW). (Id. at p161.) Dr. Concannon rated Claimant's elbow at 2\%, noting that the ulnar nerve injury had been completely resolved. (Id. at pp327-328.)

Dr. D. Volarich examined Claimant and rated his shoulder at 40 \%, 35 % of the elbow, and 15 % of the wrist. (Id. at pp383-403.)

Claimant had a pre-existing injury to his left arm and elbow from a motorcycle accident in 1995. Later in 1998, Claimant slipped and injured his left shoulder. (Id. at p447, 452.) He underwent conservative treatment with Dr. D. Clark for this and related injuries. (Id. at p450.)

It is the claimant's burden of proof to prove all the issues that are alleged in the hearing under Chapter 287. As noted by the Court in Cook:

Claimant has the burden of proving all the essential elements of the claim and must establish a causal connection between the accident and injury. Cook v. Sunnen Products Corp., 937 S.W.2d 221, 223 (Mo.App.E.D. 1996) citing: Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute, 793 S.W.2d 195 (Mo.App.E.D. 1990) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. Banc 2003).

This case's resolution is based on the assessment of the credibility of the respective experts. The Employer/Insurer proposes that I do not rely on Claimant's expert, Dr. Volarich, because he is a doctor of osteopath. Claimant dismisses the Employer/Insurer experts because the doctors are "rating" their own work rather than Claimant's actual disability.

Although the Commission cannot disregard unrefuted medical testimony, the Commission is permitted to review and weigh it along with the other factors in determining PPD. The Court in Elliott v. Kansas City Sch. Dist., 71 S.W.3d 652 (Mo.App.W.D. 2002) opined that the Commission is not restricted merely to the medical evidence during its determination of the percentage of disability of a claimant:

The Commission "may consider all the evidence, including the testimony of the employee, and draw all reasonable inferences in arriving at the percentage of disability." This is a determination within the special province of the Commission. The Commission is also not bound by the percentage estimates of the medical experts and is free to find a disability rating higher or lower than that expressed in medical testimony. This is due to the fact that determination of the degree of disability is not solely a medical question. The nature and permanence of the injury is a medical

question, however, "the impact of that injury upon the employee's ability to work involves considerations which are not exclusively medical in nature." (Citation omitted.)

Id. at p657 citing: Sellers v. Trans World Airlines, Inc., 776 S.W.2d 502, 505 (Mo.App.W.D. 1989).

What the Commission cannot do is substitute its judgment in the case of uncontroverted evidence of medical causation of the injury, the Commission may view all the evidence to determine a PPD rating that is reasonable. (Id. at p658.)

Dr. Volarich did not merely shuffle through the medical records and pick a disability rating. Dr. Volarich interviewed Claimant, reviewed his files, and then tested Claimant's shoulder, elbow, and wrists. Dr. Volarich recorded the results of his tests:

UPPER EXTREMITY AND JOINT EXAM: The right shoulder is normal.

In the left shoulder, there is a 5-10 % loss in motion as evaluated by the Apley scratch test (evaluates motion in all six planes). Impingement testing is weakly positive. Apprehension, clunk, and Adson's testing are negative. $1 / 4$ crepitus is found with circumduction. Trace atrophy of the deltoid and rotator cuff is appreciated. Puncture wound scars from arthroscopy are also found from his surgical repair.

ARM CIRCUMFERENCE (cm): Right: 33.5 Left: 32.5

(Measured to 10 cm above the olecranon process)

FOREARM CIRCUMFERENCE (cm): Right: 28 Left: 26

(Measured to 10 cm below the olecranon process)

At the elbow, there is full motion bilaterally. The right elbow is otherwise normal.

In the left elbow, there is a 16 cm scar over the medial compartment from ulnar nerve transposition. The scar is hypertrophied and reddened. Persistent pain occurs when palpating the medial epicondyle and Tinel's sign is weakly positive over the transposed nerve. The olecranon process is also tender to palpation. The lateral epicondyle, pronator, and radial tunnels are normal to exam.

At the wrist,

WRIST

(Negrees)

Flexion

Extension

Normal Right Left

ROM

$80 \quad 75 \quad 75$

70

70

70

(J. Exh. A, p392)

It is not enough to merely dismiss Dr. Volarich as an osteopath or a "usual" claimant's expert, although this is true. I believe the test performed by Dr. Volarich has bolstered his credibility and should not be dismissed prematurely. I believe that the Claimant suffered some PPD to his shoulder and elbow. Having made that finding, I do not necessarily accept Dr. Volarich's ratings.

The Employer/Insurer's expert, however, had the advantage of treating Claimant for his injuries. I am disregarding the ratings from all the experts to some degree because of the following considerations. I believe that Claimant suffered a work-related injury when he hoisted the 70 -pound biohazard box and then slipped to the ground. The weight of the box had some impact on this injury to his left elbow and shoulder. Claimant consistently complained about "popping" and soreness in his shoulder. In a similar fashion, Claimant suffered pain in his elbow from this accident. I do not believe that Claimant suffered no or minimal damage to his shoulder and elbow as a result of this injury, as is proposed by Dr. White and Dr. Concannon.

From the evidence, it is clear that Claimant had suffered some disability to his left shoulder and elbow in earlier accidents. In 1995 and 1996, Claimant injured his left shoulder and elbow. In 1998, he again injured his left elbow and shoulder when carrying a load of steel in his automobile detailing jobs. I believe that the earlier injuries have some impact on the total disability to Claimant's left elbow and shoulder. Claimant has consistently complained about the pain in his shoulder and elbow, even after the treatment and release of Dr. White and Dr. Concannon. ${ }^{1}$ (Id. at pp37, 38,40, 45, 50,52,60-61,70-73,108,153-168.) Claimant testified that his strength and flexibility of his shoulder is not what it was before the injury.

Claimant's elbow, in a similar fashion, is also stiff and weaker than before the injury. I believe that the elbow and shoulder injuries before 2006 contributed to Claimant's overall PPD. I have reduced the award based on the medical evidence and Claimant's testimony.

I believe that Claimant should be rated at 25 % overall disability for the left shoulder and 18 % of the left elbow. This rating includes all the shoulder and elbow injuries to the Claimant. I believe that the October 2006 work-related injury contributed 14 % of the PPD to Claimant's left shoulder and 9 % of the PPD to his left elbow.

I do not believe that Claimant has borne his burden to proof in regards to his left wrist. Except for Dr. Volarich, I cannot find any convincing collaboration for the PPD of his left writst. Further, Claimant did not seem to emphasize the pain and permanent disability in his left wrist in his testimony at the March 2010 hearing.

[^0]

[^0]: ${ }^{1}$ My refusal to accept the rating of Dr. White and Dr. Concannon should not be considered as criticism of their treatment. I believe that the medical treatment Claimant received was excellent.

Claimant is awarded 14 % PPD for his left shoulder in the amount of $\ 12,040.01 ( 32.48 weeks at 232 week level $x \ 370.69 ). Claimant is awarded 9 % PPD for his left elbow in the amount of $\ 7,006.04 ( 18.9 weeks at 210 week level $x \ 370.69.)

Date: $\qquad$

A true copy: Attest:

Naomi Pearson

Division of Workers' Compensation

Made by: $\qquad$

Henry T. Herschel

Administrative Law Judge

Division of Workers' Compensation