Christopher Sliger v. Peoplelink

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 10-070253

Employee: Christopher Sliger

Employer: Peoplelink

Insurer: Arch Insurance Company

This cause has been submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence and briefs, heard oral argument, and considered the whole record. Pursuant to $\S 286.090$ RSMo, the Commission modifies the award and decision of the administrative law judge (ALJ) dated May 6, 2011.

The ALJ made the following findings: 1) no accident occurred; 2) "Dr. Rogers' testimony fails to support [employee's] contention that the purported incident at work is the prevailing factor in causing [employee's] torn rotator cuff..."; 3) employee failed to meet his burden of proof that his need for additional treatment flows from the work injury; and 4) employee is not entitled to temporary total disability benefits.

Employee appealed to the Commission alleging that the ALJ erred in arriving at all four of the aforementioned conclusions.

The findings of fact and stipulations of the parties were accurately recounted in the award of the ALJ and, to the extent they are not inconsistent with the findings listed below, they are incorporated and adopted by the Commission herein.

First, it is important to note that employee is alleging that his injury occurred on August 10, 2010. Therefore, this case falls under the purview of the 2005 amendments to Missouri Workers' Compensation Law.

Section 287.120 RSMo "requires employers to furnish compensation according to the provisions of the Worker's Compensation Law for personal injuries of employees caused by accidents arising out of and in the course of the employee's employment." Gordon v. City of Ellisville, 268 S.W.3d 454, 458-59 (Mo. App. 2008).

Section 287.020.2 RSMo defines "accident" as: "[A]n unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift."

Pursuant to § 287.020.3 RSMo, an "injury" is defined to be "an injury which has arisen out of and in the course of employment." Section 287.020.3 RSMo further states that:

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2009 unless otherwise indicated.

An injury by accident is compensable only if the accident 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.

While the facts in this case concerning whether employee sustained an accident as defined by $\S 287.020 .2$ RSMo are disputed, we find that even if we assume that employee did in fact sustain an accident, the determinative issue in this case is medical causation.

In determining medical causation, the Court in Bond v. Site Line Surveying, 322 S.W.3d 165 (Mo. App. 2010) held as follows:

'The claimant in a worker's compensation case has the burden to prove all essential elements of her claim including a causal connection between the injury and the job.' Royal v. Advantica Rest. Group, Inc., 194 S.W.3d 371, 376 (Mo. App. W.D. 2006) (internal quotation marks and citations omitted). 'Medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause.' Lingo v. Midwest Block \& Brick, Inc., 307 S.W.3d 233, 236 (Mo. App. W.D. 2010) (quoting Gordon, 268 S.W.3d at 461). The weight afforded a medical expert's opinion is exclusively within the discretion of the Commission. Sartor v. Medicap Pharmacy, 181 S.W.3d 627, 630 (Mo. App. W.D. 2006).

Bond, 322 S.W.3d at 170.

Employee's two-tendon rotator cuff tear is not an issue that falls under the category of common knowledge and experience. However, as to medical causation, employee relies solely on Dr. Rogers' initial causation opinion as his "scientific or medical evidence showing the relationship between the complained of condition and the asserted cause."

While Dr. Rogers initially opined that the August 10, 2010, accident was the prevailing factor causing the rotator cuff tear, after reviewing additional information concerning employee's job duties, he opined that the mechanism of injury, as described by employee, would not produce a complex two-tendon rotator cuff tear. Dr. Rogers opined that in light of employee's alleged mechanism of injury, he did not feel that the incident of August 10, 2010, was the prevailing factor causing employee's injury and current right shoulder condition.

Employee argues that Dr. Rogers' second causation opinion is based on incorrect information concerning employee's job duties. We disagree. We find that the additional information provided to Dr. Rogers after his initial causation opinion more accurately describes employee's job duties; and, therefore, Dr. Rogers' second causation opinion is more reliable than his first causation opinion.

As stated above, it is employee's burden to prove medical causation. We find that employee failed to meet this burden and that the August 10, 2010, incident is not the prevailing factor in causing his rotator cuff tear and current right shoulder condition. All other issues are moot. Employee's claim for benefits is denied.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued May 6, 2011, is attached and incorporated by this reference to the extent it is not inconsistent with this award.

Given at Jefferson City, State of Missouri, this $1^{\text {st }}$ day of February 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

CONCURRING OPINION FILED

James Avery, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

I write separately to disclose the fact that I did not participate in the September 14, 2011, oral argument in this matter. I have reviewed the evidence, read the briefs of the parties, and considered the whole record. I concur with Chairman Ringer and adopt his decision modifying the award and decision of the ALJ.

James Avery, Member

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 and employee should be awarded future medical care, temporary total disability benefits, and permanent disability benefits.

On November 29, 2010, employee presented to Dr. Rogers for an independent medical evaluation at the request of employer. Dr. Rogers examined employee, took his history, and compared MRI films from the 2008 and 2010 injuries. Dr. Rogers diagnosed a right shoulder rotator cuff tear and found that employee likely sustained a recent acute injury. Dr. Rogers also found that there was no progression of the atrophy of the muscle bellies of the supraspinatus and the infraspinatus between 2008 and 2010. Dr. Rogers felt that the accident on August 10, 2010, was the prevailing factor in causing employee's current right shoulder condition and need for repeat surgical repair of the right rotator cuff.

On January 13, 2011, counsel for employer asked Dr. Rogers to assume various facts as true and issue an opinion based upon those assumptions. Specifically, employer asked Dr. Rogers to assume that employee alleged an injury caused by lifting 10 pounds a single time. Employer requested Dr. Rogers to opine as to whether he believed, based on those facts, that employee's job was the prevailing factor in causing his rotator cuff tear. On January 31, 2011, Dr. Rogers responded with a letter that employee's job was not the prevailing factor if he assumed employee performed a single lift of a 10 pound object.

The ALJ discredited Dr. Rogers' initial opinion because it was largely based on information provided to him by employee, whom she found was not credible. The ALJ listed various reasons for finding employee not credible, but it appears from the award that she gave the greatest weight to the fact that employee had previously filed a false workers' compensation claim and an alleged inconsistency in employee's testimony regarding his post-accident hunting activities.

Employee testified candidly about filing a false workers' compensation claim in 1993. He filed the false claim following a non-work related injury when two superiors, who happened to be his brother-in-law and father-in-law, suggested that he file a claim alleging that he was injured at work to avoid being fired pursuant to company policy for missing too much work for a non-work related injury. The claim was voluntarily dismissed by employee, but not until after medical care was provided.

While filing a false workers' compensation claim is a serious matter, considering it occurred nearly 20 years ago and under the direction of two superiors who happened to be family, its bearing on employee's credibility in this case should be minimal if not overlooked altogether.

**Injury No.:** 10-070253

With regard to the alleged inconsistencies in employee's testimony, I find that the ALJ misunderstood the evidence. The ALJ found that employee testified during his February 2011 deposition that he last hunted in November 2010, a few months after the work injury; but when he was questioned about his most recent hunting at the hearing, employee contended that he had not hunted since black powder season in December 2009.

Upon review of the hearing transcript, it is clear that employee was testifying at the hearing as to the last time he hunted **during black powder season** (December 2009); and when he answered the question during his February 2011 deposition, he was testifying as to the last time he had hunted **with a rifle in general** (November 2010). Employee was not intending to misrepresent the last time he had gone hunting.

I find that the ALJ's determination that employee is not credible is not supported by the competent and substantial evidence.

In my opinion, it is absurd to deny employee's claim for benefits based on Dr. Rogers' limited second causation opinion. Dr. Rogers' initial opinion was based on an in-person evaluation, a history given directly to him by employee, and objective medical evidence. Dr. Rogers' second opinion was based on assumptions given to him by an attorney on behalf of their client.

Unlike the majority, I do not find Dr. Rogers' second causation opinion to be more reliable than his first opinion. While employee may not have described the mechanism of injury throughout the record as precisely as he could have, the great weight of the evidence supports a finding that an injury by accident occurred at work on August 10, 2010, and this accident was the prevailing factor in causing employee's rotator cuff tear and current need for treatment.

Based on the foregoing, I find that employee should be awarded future medical care, temporary total disability benefits, and permanent disability benefits. As such, I would reverse the award of the administrative law judge and award employee the same.

Therefore, I respectfully dissent from the decision of the majority of the Commission.

Curtis E. Chick, Jr., Member

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