Brenda Woods v. EFCO Corporation, a Pella Corporation

and disability in both claims, and clearly filed both claims in order to preserve her ability to pursue her right to compensation under alternative theories of injury.

In our award in employee's claim for Injury No. 09-026255, we have determined that employee suffered an accident on April 13, 2009, and that this accident was the prevailing factor causing her to suffer the claimed compensable injury consisting of a rotator cuff tear and subsequent disability. We have also awarded permanent partial disability benefits against the employer in our award in that matter. Obviously, we are persuaded that employee's compensable work injury was a result of that accident and not the claimed occupational disease.

We acknowledge that Drs. Hartman and Swaim and employee herself each provided testimony that might be argued to support a claim for occupational disease arising out of employee's repetitive work for employer. But because we have determined that employee's right shoulder disability was caused by the accident on April 13, 2009, we are not persuaded that employee sustained a compensable occupational disease culminating on or about April 12, 2009. To the extent Drs. Hartman, Swaim, and employee testified otherwise, we find them lacking credibility.

We find that employee's occupational exposure was not the prevailing factor causing her to sustain the claimed right shoulder injury and disability.

The issue of medical causation is determinative in this matter, given our findings of fact set forth above. The standard for medical causation for an occupational disease is set forth in § 287.067.2 RSMo, which provides, in relevant part, as follows:

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.

Employee has failed to meet her burden of proving she sustained a compensable occupational disease. We have found that employee's occupational exposure was not the prevailing factor causing her claimed right shoulder injury and disability in this matter.

We conclude employee's occupational exposure was not the prevailing factor in causing both her resulting medical condition of a right shoulder rotator cuff tear and the resulting disability. It follows that employee cannot sustain her burden of proof against the Second Injury Fund because she has failed to demonstrate that she sustained a compensable primary injury in this matter.

Accordingly, we deny employee's claim in this matter as against both the employer and the Second Injury Fund.

Based on the foregoing, the Commission concludes and determines that employee failed to demonstrate that she sustained a compensable occupational disease in this matter. Employee's claim against both the employer and the Second Injury Fund in this matter is denied.

The award and decision of Administrative Law Judge Robert H. House, issued May 11, 2011, is attached solely for reference.

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:

Secretary

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 rate: $\ 342.97
4. Method wages computation: STIPULATION

1. Amount of compensation payable:

Unpaid medical expenses: -0-

N/A weeks of temporary total disability (or temporary partial disability)

69.6 weeks of permanent partial disability ( $69.6 \times \ 342.97 ) from Employer for a total of $\ 23,870.71

N/A weeks of disfigurement from Employer

1. Second Injury Fund liability: 20 weeks of compensation ( $20 \times \ 342.97 ) for a total of $\ 6,859.40

TOTAL: $\ 30,730.11

1. Future requirements awarded: NO

Said payments to begin IMMEDIATELY and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 PERCENT of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

TOM CARLTON

The parties presented evidence at a hearing on April 8, 2011. Claimant appeared in person and with her attorney, Tom Carlton. Employer, EFCO Corporation, a Pella Corporation, a/k/a, Pella Corporation, and its insurer, Sentry Insurance Company, appeared through their attorney, Karen Johnson. The Second Injury Fund appeared through its attorney, Christina Hammers. The parties presented four issues for determination:

1. Whether claimant sustained an injury by accident or occupational disease.
2. Whether claimant's current physical condition was caused by her alleged injury at work.
3. The nature and extent of permanent partial disability.
4. The liability of the Second Injury Fund with claimant alleging permanent partial disability benefits being due from the Fund.

The parties agreed to venue of the case for the purpose of the hearing being in Joplin, Newton County, Missouri. Additionally, the parties agreed that claimant's average weekly wage was $\ 514.46, which resulted in a workers' compensation rate of $\ 342.97 for all purposes. Employer/insurer paid $\ 12,365.89 in medical benefits and no benefits for temporary total disability.

Claimant testified at the hearing. She presented medical information including the deposition testimony and report of Dr. Truett Swaim, an orthopedic surgeon. Employer/insurer presented the deposition testimony of Dr. Michael Hartman, an orthopedic surgeon.

Claimant has been an employee of the employer since August 25, 2003. She worked for the employer doing repetitive duties involving the use of both arms while standing. Her duties included carrying bundles of aluminum that weighed up to 80 pounds, but which generally were around 50 pounds. She would carry those on her shoulder alone or at times with the help of another employee. She additionally would saw aluminum using her right arm to pull the saw while cutting. She would carry up to 2500 pieces of aluminum a day to her station and to coemployees. She would normally carry the aluminum in bundles on her shoulder. Additionally, there were times when she would carry an entire window frame which also would weight approximately 80 pounds.

On April 13, 2009, claimant was throwing trash into a bin as part of her regular duties of cleaning up at the end of her work day. She felt immediate pain and heard a pop in her right shoulder as she threw the trash bag in the bin. She had not heard a pop nor had pain in her right shoulder before that event. Previously she had felt fatigue at work in both shoulders during the month before her April 12, 2009, injury. The fatigue was in both hands and shoulders, but there was no sharp pain and no popping. Claimant has had no prior treatment for her right shoulder and has had no prior right shoulder injury.

Claimant was treate