Brenda Woods v. EFCO Corporation, a Pella Corporation

The work injury

On April 13, 2009, employee was working for employer when she threw a trash bag into a dumpster. Employee heard a pop in her right shoulder and felt immediate pain. Employee had never heard a pop in her shoulder before this event. Nor had employee ever felt pain like she experienced after this event. Employee treated with Dr. Hartman, employer's workers' compensation doctor. Dr. Hartman diagnosed an acute tear or injury to employee's rotator cuff and provided a light duty restriction. Dr. Hartman prescribed conservative treatments including a steroid injection and physical therapy, but these measures were largely unsuccessful in alleviating employee's symptoms of severe pain and weakness in her right shoulder. Dr. Hartman advised employee of the option of surgery, but advised her that it was not likely to improve the condition of her shoulder, so employee did not seek surgery.

Dr. Hartman does not believe that the trash throwing incident on April 13, 2009, is the prevailing factor in causing employee's right shoulder symptoms or condition. Dr. Hartman, however, acknowledged that employee was asymptomatic before April 13, 2009, and that at least some of employee's rotator cuff tear must be due to an acute injury that employee sustained on that date.

Dr. Swaim agrees employee suffered a rotator cuff tear in the incident of April 13, 2009, but unlike Dr. Hartman, he does not minimize that tear or attribute employee's right shoulder problems to preexisting conditions. Dr. Swaim agreed that employee had some preexisting asymptomatic degeneration in her shoulder, including possibly an asymptomatic preexisting rotator cuff tear, but he opined that the event on April 13, 2009, is the prevailing factor causing employee to sustain a rotator cuff tear and resulting disability.

On cross-examination, employer's counsel asked Dr. Swaim what was the prevailing factor causing "the medical condition or the condition in her rotator cuff that you've described." Transcript, page 66. Employer makes much of Dr. Swaim's response that he could not separate out the accident of April 13, 2009, from the previous cumulative trauma or stress on employee's shoulder and acknowledged there was no way to "absolutely know" whether employee had a preexisting rotator cuff tear. Transcript, page 67. But the problem actually lies in the question posed by employer's counsel, as Dr. Swaim had just finished describing two separate conditions of employee's right shoulder: a preexisting impingement syndrome involving possible small tears of the rotator cuff, and a rotator cuff tear that he identified as resulting from the April 13, 2009, event. In this matter, employee seeks compensation only for injuries arising from the April 13, 2009, event. The question by employer's counsel called for the doctor to provide a single global causation opinion as to two distinct medical conditions which he had already opined were due to separate factors. Dr. Swaim's inability to answer such a question does not, in our view, diminish his credibility. Nor are we persuaded by employer's argument that this and similar testimony from the doctors should work the effect that employee is caught somewhere between proving an accident and occupational disease with an inability to prove either case.

Notably, both doctors agree that employee sustained an acute injury due to the accident of April 13, 2009. Ultimately we consider most credible the testimony from Dr. Swaim that the accident of April 13, 2009, is the prevailing factor in causing employee to suffer a right shoulder rotator cuff tear and resulting disability. We so find.

We conclude that employee has met her burden of demonstrating she sustained an accident for purposes of the Missouri Workers' Compensation Law. The language of § 287.020.2 RSMo defines "accident", as follows:

The word "accident" as used in this chapter shall mean an 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. An injury is not compensable because work was a triggering or precipitating factor.

The claimed injury in this matter is a right shoulder rotator cuff tear resulting from employee's action of tossing a trash bag into a dumpster. We conclude that these circumstances constitute an "accident." The event was unexpected and traumatic: employee testified she'd never heard a pop in her shoulder or felt pain like that before. The event is identifiable by time and place: employee provided her firsthand testimony about the incident and provided sufficient temporal and spatial details to allow us to make our foregoing factual findings. The event produced, at the time, objective symptoms of an injury: again, we have found that employee heard a pop and felt pain unlike any she'd experienced before at the time of the event. Finally, employee's work was not merely a triggering or precipitating factor: we have already determined that the action of throwing the trash bag into the dumpster was the prevailing factor causing employee to sustain a right shoulder rotator cuff tear and resulting disability.

Section 287.020.3(1) RSMo sets forth the standard for medical causation and provides, as follows:

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.

We conclude that employee has met her burden on the issue of medical causation. We have found that the accident of April 13, 2009, was the prevailing factor in causing employee to sustain a rotator cuff tear and permanent partial disability.

We agree with and affirm and adopt the administrative law judge's determination that employee sustained a 30 % permanent partial disability of the right shoulder at the 232week level, but we do not adopt any findings, conclusions, or analysis that contradicts our findings and conclusions herein. Specifically, we disclaim any analysis which attributes

employee's right shoulder medical condition and disability (or, in other words, her compensable right shoulder injury) to any factor other than the accident of April 13, 2009.

Given the foregoing, we conclude that the April 13, 2009, accident was the prevailing factor in causing employee's "resulting medical condition and disability" for purposes of § 287.020.3(1).

Based upon the foregoing, we issue this decision substituting our own analysis on the issues of accident/occupational disease and medical causation. In all other respects, we affirm the award of the administrative law judge.

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.

The award and decision of Administrative Law Judge Robert H. House, issued May 11, 2011, is attached and incorporated only to the extent it is not inconsistent with our findings, conclusions, and analysis herein.

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

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

1. Are any benefits awarded herein? YES
2. Was the injury or occupational disease compensable under Chapter 287? YES
3. Was there an accident or incident of occupational disease under the Law? YES
4. Date of accident or onset of occupational disease: APRIL 132009
5. State location where accident occurred or occupational disease was contracted: BARRY COUNTY, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? YES
7. Did employer receive proper notice? YES
8. Did accident or occupational disease arise out of and in the course of the employment? YES
9. Was claim for compensation filed within time required by Law? YES
10. Was employer insured by above insurer? YES
11. Describe work employee was doing and how accident occurred or occupational disease contracted: CARRYING ALUMINUM WINDOW FRAMES
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease: RIGHT SHOULDER
14. Nature and extent of any permanent disability: See Award
15. Compensation paid to-date for temporary disability: -0 -
16. Value necessary medical aid paid to date by employer/insurer? $\ 12,365.89

1. Value necessary medical aid not furnished by employer/insurer? -0-
2. Employee's average weekly wages: $\ 514.46
3. Weekly compensation rat