Elmer Bowyer v. Mineral Area Community College/MACC

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 10-034774

Employee: Elmer T. Bowyer

Employer: Mineral Area Community College/MACC

Insurer: M USIC

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we reverse the award and decision of the administrative law judge.

The parties submitted the following issues for determination by the administrative law judge: (1) whether on or about May 6, 2010, employee sustained an accident or an occupational disease arising out of and in the course of his employment; (2) whether the employee's injury was medically causally related to the accident or occupational disease; (3) whether employer is liable for employee's past medical expenses in the amount of $\ 43,763.03; (4) whether employer is obligated to provide employee with future medical treatment; (5) whether employee is entitled to temporary total disability benefits from June 7, 2011, to July 18, 2011; and (6) whether employee is entitled to permanent partial disability benefits.

The administrative law judge concluded that employee failed to offer credible evidence that he sustained an occupational disease arising out of and in the course of his employment.

Employee filed a timely Application for Review with the Commission alleging the administrative law judge erred because employee performed physically demanding work over a period of 30 years, and there is no evidence of outside causes for employee's shoulder condition.

For the reasons set forth herein, we reverse the administrative law judge's award and decision.

Employee was 58 years of age at the time of the hearing before the administrative law judge. Employee worked for employer for approximately 30 years. During most of his time working for employer, employee worked as a maintenance supervisor. Employee's duties included supervising the other maintenance workers and performing maintenance tasks. Employee estimates he split his time in half between administrative and general maintenance tasks; employer's witness Russell Straughan disagreed and estimated employee spent 75 % of his time on supervisory or administrative duties.

We find employee's testimony more persuasive than that of Mr. Straughan as to the nature of employee's work duties. We find that employee spent half of his time on administrative tasks and the other half on general maintenance duties, which included

cutting grass, unloading trucks at the book store, plowing snow in the winter, leaf removal in the fall, trimming trees, power washing buildings, stripping and waxing floors, painting, cleaning walkways, gardening and mulching, operating chainsaws, hooking and unhooking mowers, and driving dump trucks.

Employee described certain tasks which he performed frequently. Employee was responsible for cutting grass almost every day during the spring and summer; employee operated the mower for about 6 hours per day. Employee repetitively used his arms and shoulders to maneuver the levers on the lawnmower.

In the winter, employee was responsible for plowing snow. This task involved driving the plow trucks and operating the manual transmission as well as the levers to maneuver the plow blade. Employee described pain in his right shoulder that sharply increased during the winter of early 2010, when he had to plow a lot of snow.

Employee frequently helped set up and tear down events. This task involved setting up and tearing down a stage, chairs, and tables. The chairs stacked together, which required use of the arms at the shoulder level or higher.

The month of May was particularly hectic for employee and the maintenance crew. Employee explained that getting the campus ready for graduation required performing as many jobs in one week as the crew normally performed in one month, such as sweeping, mopping, waxing, painting, mowing grass, making sure parking lots were clean, and other tasks.

On May 6, 2010, employee reported to his supervisor that he felt he'd hurt his right shoulder in the course of his work duties. Employer sent employee to Dr. Frank Krewet, who took x-rays, ordered an MRI, and released employee to return to full duty. Employer then sent employee to Dr. Michael Milne for an independent medical evaluation. Dr. Milne diagnosed right shoulder impingement and right shoulder rotator cuff tendinosis and opined that employee's work is likely an aggravating factor in causing this condition, but not the primary or prevailing factor. Dr. Milne opined that employee should consider a cortisone injection and physical therapy; if this did not work, he would recommend an MRI of the shoulder. Dr. Milne returned employee to work at full duty. Based on Dr. Milne's opinion, employer declined to authorize any further medical treatment.

Employee sought treatment on his own with Dr. Michael Ralph on May 11, 2011. Dr. Ralph ordered an MRI, which revealed a full thickness tear of the posterior half of the distal supraspinatus tendon associated with partial tendon retraction, proximal long head biceps tendinosis without tendon tear or rupture, and mild AC osteoarthritic disease. Dr. Ralph recommended surgery, which he performed on June 7, 2011. Dr. Ralph released employee to return to work in a light duty capacity on July 18, 2011, and to work without restrictions on February 21, 2012.

Employee submitted the bills and medical records generated in connection with treatment for his right shoulder. Employee also provided testimony describing his course of treatment. At

the hearing before the administrative law judge, employee claimed that his medical bills total $\ 43,763.03, but we note that this amount includes $\ 808.00 in charges from Radiology \& Imaging Management for a CT scan of the abdomen on December 2, 2011. Employee did not provide any testimony or medical records to demonstrate that this CT scan was related to the work injury; it appears instead from Dr. Ralph's treatment notes that this CT scan may have been related to employee's concurrent treatment for throat cancer. We find that the total amount of charges generated in connection with treatment for the work injury is $\ 42,955.03. We note that employee testified that he is not seeking any additional medical treatment for his right shoulder.

Employer presents Dr. Milne, who opined that employee's work is likely an aggravating factor in causing his right shoulder injury, but not the primary or prevailing factor. Dr. Milne rated employee's injury at 6\% permanent partial disability of the right shoulder. Dr. Milne reviewed Dr. Ralph's treatment records and opined that he could not connect employee's right shoulder injury to his employment because employee did not report a specific injury, and Dr. Milne does not believe operating a lawn mower can cause a rotator cuff tear. Dr. Milne did admit that the performance of employee's work duties could cause chronic wear and tear to employee's shoulder.

Employer also presents Dr. Michael Nogalski, who opined that employee suffered an aggravation of a preexisting chronic rotator cuff tear as a result of a "claimed 5/6/10 event." Transcript, page 326. Dr. Nogalski's testimony appears to have little bearing on the issues involved in this case; employee is not claiming an injury resulting from his work on May 6, 2010, but instead a gradual onset injury to his right shoulder.

Employee presents Dr. Ralph, who opined that employee's work activity is the prevailing factor in causing employee to develop the right rotator cuff tear. Dr. Ralph explained that employee's work for employer over 30 years regularly involved vigorous activity of the upper extremities, and that this caused the wear and tear seen in employee's right shoulder. Dr. Ralph rated employee's injury at 25\% permanent partial disability of the right shoulder, and opined that employee's medical treatment for the right shoulder was reasonable and necessary.

After careful consideration, we find most persuasive the opinion of Dr. Ralph. We adopt his opinions (and so find) that employee's work activity is the prevailing factor in causing employee to develop a rotator cuff tear and associated disability and that employee's medical treatment was reasonable and necessary. We find that employee suffers a 20\% permanent partial disability of the right shoulder. We note that Dr. Ralph did not offer any testimony indicating that employee has a need for future medical treatment as a result of his right shoulder injury.

Occupational disease arising out of and in the course of employment

Section 287.067.1 RSMo provides, as follows:

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 life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

We have credited Dr. Ralph's opinion that employee's work activity is the prevailing factor in causing employee to develop a rotator cuff tear and associated disability. Dr. Ralph's credible findings demonstrate that employee sustained an occupational disease that appears to have had its origin in a risk connected with the employment, and that appears to have flowed from that source as a rational consequence. We conclude employee sustained an occupational disease arising out of and in the course of his employment for purposes of the foregoing section.

Section 287.067.2 RSMo provides, 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. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

In the context of occupational disease, the courts have clarified that:

A claimant must submit medical evidence establishing a probability that working conditions caused the disease, although they need not be the sole cause. Even where the causes of the disease are indeterminate, a single medical opinion relating the disease to the job is sufficient to support a decision for the employee.

Vickers v. Mo. Dep't of Pub. Safety, 283 S.W.3d 287, 292 (Mo. App. 2009)(citations omitted)(emphasis in original).

Again, we have credited Dr. Ralph's opinion that employee's work activity is the prevailing factor in causing employee to develop a rotator cuff tear and associated disability. Given Dr. Ralph's credible findings, we conclude that employee's occupational exposure was the prevailing factor in causing the resulting medical conditions of a right rotator cuff tear and a 20 % permanent partial disability of the right shoulder.

Section 287.140.1 RSMo provides, as follows:

In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

Employer has an "absolute and