Richard Yarbrough v. Rural Metro Ambulance

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 10-060138

**Employee:** Richard Yarbrough

**Employer:** Rural Metro Ambulance

**Insurer:** Ace American Insurance Company

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 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) occupational disease arising out of and in the course of employment; (2) medical causation; (3) whether employer is liable to furnish medical care; and (4) whether employer is liable to provide temporary total disability benefits from February 18, 2011, through the present time.

The administrative law judge concluded that employee's work activity is not the prevailing factor in causing the medical conditions, disabilities, and symptoms affecting employee's right shoulder, right hip, and low back.

Employee filed a timely Application for Review with the Commission alleging the administrative law judge erred in concluding employee failed to prove he sustained an occupational disease.

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

Employee was 62 years of age on the date of hearing. Employee worked as an EMT from 1992 until 2011 for employer or employer's predecessors (the company appears to have changed hands several times during employee's tenure). Employee's duties involved responding to the scene of a medical emergency, assessing the patient, providing emergency assistance, and transporting the patient. Employee responded to an average of three or four emergency calls per day. As the patients were typically incapacitated, employee and a partner would pull a stretcher weighing 81-87 pounds out of the ambulance, and carry or roll the stretcher to the patient.

Employee described carrying the stretcher while stepping over toys, auto parts, children, dogs, porches with missing boards, and multiple stairs. Employee indicated that, increasingly, many of the patients were obese; he estimated that in the last two

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Employee: Richard Yarbrough

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years he worked for employer, at least 50% of the patients weighed over 300 pounds. Lifting and manipulating these individuals onto the stretcher involved significant physical strain. Employee described situations in which it was impossible to bring the stretcher into the area where the patient was located; in such cases, it was necessary to move the patient to the stretcher by any means available. Employee described rolling patients or placing them on blankets and dragging them, and explained that it was rarely possible to use proper lifting techniques in the far from ideal circumstances that he performed his duties.

Employee began to develop back and left leg pain in 2002. Employee underwent a lumbar laminectomy at L4-5 and L5-S1 performed by Dr. Joel Ray, and returned to normal duty without restrictions. Employee worked continuously following his release without severe back, hip, or lower extremity pain until July 2010. Employee experienced occasional aches and pains, and took over-the-counter pain medications, but he did not experience pain to a degree that interfered with his work for employer.

In July 2010, employee began to experience more severe pain in his right shoulder, right leg, right hip, and low back in the course of performing his work duties. At first, employee tried to work through the pain while taking over-the-counter pain medications. When his symptoms grew worse, however, employee decided to talk to his supervisor. Employee obtained authorized treatment for his right shoulder through employer with his own primary care physician, Dr. Caldwell, who ordered x-rays. Dr. Caldwell referred employee to an orthopedic surgeon, Dr. Houseworth, who ordered physical therapy for the low back and right shoulder, and who then performed surgery on the right shoulder on September 27, 2010. Employee answered a generalized leading question to indicate that he was off work after the right shoulder surgery, but employee did not identify any specific time periods that he was unable to work, nor did he indicate whether a doctor took him off work, or whether he personally believed he was capable of working at that time.

For employee's back complaints, employer sent him to Dr. Colle, who ordered diagnostic studies, prescribed narcotic pain medications, and concluded employee's back problems were not work-related.

On February 23, 2011, employer discharged employee from employment owing to employee's restrictions stemming from his medical treatment. Employee continues to suffer from right shoulder, low back, right hip, and right lower extremity complaints. Employee believes there are jobs that he could perform, although he does not believe he could go back to work as a paramedic. Employee did not offer any testimony that would support a finding that his complaints referable to his alleged work injuries render him unable to compete for work after February 23, 2011.

Expert medical testimony

Employee presents Dr. Dwight Woiteshek, who diagnosed traumatic internal derangement of the right shoulder with subsequent non-repairable rotator cuff tear with biceps tendon and glenoid labrum tear, and traumatic right sciatica with L4-5 herniation. Dr. Woiteshek opined that employee's work for employer over time lifting and transporting heavy patients

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is the prevailing factor in causing these injuries and diagnoses. Dr. Woiteshek opined that employee is in need of future medical treatment to address his complaints referable to his work injuries. Dr. Woiteshek opined employee has been unable to work as a result of his injuries since July 1, 2010, but the doctor agreed, on cross-examination, that employee did continue working up until March 2011.

Employer presents Dr. Bernard Randolph, who opined that preexisting degenerative conditions are the prevailing cause of employee's right shoulder, hip, and lumbar complaints. Dr. Randolph opined that employee sustained strain-type injuries of the right shoulder and low back in July 2010, but these injuries were superimposed upon preexisting degenerative and arthritic processes. Dr. Randolph did not identify any traumatic injury of the right hip, and opined that employee instead had severe arthritis of the right hip. Dr. Randolph believes that most arthritic disease, especially of the lumbar spine, is primarily influenced by things such as aging, smoking, and most importantly genetic factors; Dr. Randolph opined that exposure to lifting or bending plays only a minor role. Dr. Randolph also believed it significant that employee had arthritic changes throughout his whole body. Dr. Randolph rated some permanent partial disability referable to employee's right shoulder and his low back; Dr. Randolph somewhat incongruously attributed some of this permanent partial disability to employee's work activities for employer. Dr. Randolph believes employee does not need any additional treatment related to his duties for employer.

Employer also presents Dr. Colle, who opined that employee's work activity is not the prevailing factor in causing employee's back problems. Dr. Colle believes employee's risk factors, such as age, smoking, heart disease, and a family history of diabetes are the more significant factors in causing his current condition. Dr. Colle explained that he was looking for a traumatic problem, and that employee's low back did not become the way it is because of one lifting episode, but represented a chronic problem. It appears Dr. Colle did not consider the possibility that employee's work activities for employer over time caused a gradual onset injury; when asked, on cross-examination, whether he was aware employee was complaining of a gradual onset of low back pain, Dr. Colle responded, "I was not told that." Transcript, page 1087.

After careful consideration of each of the expert medical opinions in this matter, we find most persuasive the opinions from Dr. Woiteshek. We adopt his opinions (and so find) that employee's work for employer over time lifting and transporting heavy patients is the prevailing factor in causing traumatic internal derangement of the right shoulder with subsequent non-repairable rotator cuff tear with biceps tendon and glenoid labrum tear, and traumatic right sciatica with L4-5 herniation. We also adopt his opinion (and so find) that employee remains in need of additional medical treatment for his work injuries.

We do not, however, find persuasive Dr. Woiteshek's testimony regarding employee's inability to work after July 1, 2010. The doctor admitted that his opinion did not comport with the fact employee continued working for employer up to March 2011.

We note that employee did not provide any evidence to prove that his work activity is the prevailing factor causing his right hip complaints.

Injury No.: 10-060138

Employee: Richard Yarbrough

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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. Woiteshek's opinion that employee suffers from traumatic internal derangement of the right shoulder with subsequent non-repairable rotator cuff tear with biceps tendon and glenoid labrum tear, and traumatic right sciatica with L4-5 herniation, and that employee's work activity of lifting and transporting heavy patients is the prevailing factor in causing these conditions. Dr. Woiteshek's 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.

Because employee failed to provide any evidence to demonstrate that his right hip complaints are the product of his work activities for employer, we conclude that employee did not sustain an occupational disease affecting the right hip.

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