Edgar Moseley v. Elite Stucco

compensation by 15%; and (2) in finding employee suffered a lumbar strain resulting in a 10% permanent partial disability of the body as a whole.

For the reasons stated below, we modify the award of the administrative law judge referable to the issues of: (1) medical causation with respect to employee's right shoulder injury; (2) nature and extent of permanent disability; (3) whether employee's compensation is subject to an increase pursuant to § 287.120.4; and (4) Second Injury Fund liability.

The administrative law judge determined that employee failed to meet his burden of proving he suffered a right shoulder injury as a result of his accident at work on November 16, 2007. We disagree for the following reasons.

This employee was able to work up to 70 hours a week as a plasterer before his work injury, a job that required repetitive overhead use of his right upper extremity. Employee credibly testified (and we so find) that he fell on his right shoulder and experienced immediate pain in his right shoulder when he fell from scaffolding at work on November 16, 2007. After the accident, employee suffers from right shoulder pain, weakness, and difficulty with lifting and overhead tasks. An MRI study on October 5, 2010, revealed a partial thickness rotator cuff tear in employee's right shoulder.

At the hearing before the administrative law judge, employee testified that he did not receive any medical treatment for his right shoulder prior to the November 2007 accident, and employer has not, in its brief, directed us to any evidence on the record that would suggest to the contrary. At oral arguments in this matter, counsel for employer further conceded that the record contains no evidence suggesting employee had any problems with his right shoulder at work before the November 2007 accident, and that the record does not contain any evidence of a right shoulder injury subsequent to the accident at work.

We find that employee did not receive any medical treatment for his right shoulder, and did not have any problems performing his work referable to his right shoulder, prior to the November 2007 accident. We find that employee did not suffer any injury to his right shoulder subsequent to the November 2007 accident.

In rendering his opinion that employee's right shoulder problems are not the result of the November 2007 accident, employer's expert Dr. Strege relied, in part, on the purported absence of right shoulder complaints as reflected in the medical records generated in connection with employee's treatment for the accident. We note that the Missouri courts have declared that "[t]here is no requirement that the medical records report employment as the source of injury." *Daly v. Powell Distrib., Inc.*, 328 S.W.3d 254, 259 (Mo. App. 2010). We note also that Dr. Strege incorrectly identified an April 29, 2008, treatment note from Cox Hospital Emergency Department as the first medical record following the accident to include a right shoulder complaint, as he was apparently unaware of a December 4, 2007, note from Family Medical Walk-In Clinic recording employee's history of right shoulder pain.

**Injury No.:** 07-115559

Given all of these considerations, we find more persuasive the causation opinion from Dr. Paul that the November 2007 accident is the prevailing factor causing employee to suffer a right shoulder rotator cuff tear.

**Section 287.020.3(1) RSMo sets forth the standard for medical causation applicable to this claim and provides, in relevant part, 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 the accident is the prevailing factor causing the resulting medical conditions of (1) a right shoulder rotator cuff tear and associated 15% permanent partial disability of the right upper extremity at the 232-week level; and (2) a lumbar strain and associated 10% permanent partial disability of the body as a whole. Employer is liable for 74.8 weeks of permanent partial disability benefits at the stipulated rate of 389.04 for a total of 29,100.19.

The administrative law judge determined that employee's compensation is subject to a 15% increase under § 287.120.4 RSMo, which provides, as follows:

Where the injury is caused by the failure of the employer to comply with any statute in this state or any lawful order of the division or the commission, the compensation and death benefit provided for under this chapter shall be increased fifteen percent.

Employee argues that his injuries were caused by employer's failure to comply with § 292.090 RSMo, which provides, in relevant part:

All scaffolds or structures used in or for the erection, repairing or taking down of any kind of building shall be well and safely supported, and of sufficient width, and so secured as to insure the safety of persons working thereon, or passing under or about the same, against the falling therein, or the falling of such materials or articles as may be used, placed or deposited thereon. All persons engaged in the erection, repairing or taking down of any kind of building shall exercise due caution and care so as to prevent injury or accident to those at work or nearby.

It is uncontested that when employee fell, he was working on scaffolding that was, at most, four feet above the ground. It is also uncontested that employee himself set up the scaffolding, and that he personally selected the boards that he placed across the scaffold frames. We note that employee conceded, in his deposition, that he noticed that one of the boards he selected had a knot in it. Employee further testified that this was a dangerous condition.

Although employee blamed his employer, Michael Boyer, for the failure of the scaffold when Mr. Boyer stepped onto the board, employee failed to identify any affirmative act or omission to demonstrate how Mr. Boyer failed to provide him with scaffolding that was "well and safely supported, and of sufficient width, and so secured" as to insure his safety, where employee himself set up the scaffolding and selected the boards. Rather, employee conceded that Mr. Boyer would not have any reason to know about the condition of the board at the time the accident occurred.

Where there is no showing that employer failed to make a good faith and reasonable effort to comply with $\S 292.090$, we are reluctant to make a finding that employer violated the law. It appears to us that, at worst, Mr. Boyer may have been negligent when he stepped onto the scaffold with employee, but because there is no evidence on this record to suggest that Mr. Boyer knew (or should have known) that this would result in failure of the scaffold, we are not convinced that this act by Mr. Boyer amounted to a failure to provide employee with scaffolding sufficiently secure as to insure employee's safety. After careful consideration, we are not persuaded that employer engaged in any acts or omissions that would rise to the level of a failure to comply with $\S 292.090 for purposes of \S 287.120 .5$. Accordingly, we must modify the administrative law judge's award on this point. We conclude that employee's compensation is not subject to a 15 % increase under $\S 287.120 .5$.

The administrative law judge determined that employee is not permanently and totally disabled, based in part on his determination that employee's right shoulder injury was not the result of the November 2007 accident. We have modified the administrative law judge's determinations as to the issue of medical causation of employee's right shoulder injury, and for the following reasons, we are persuaded that employee is permanently and totally disabled.

The administrative law judge noted employee's 1995 low back injury which necessitated multilevel lumbar surgery and took employee out of work for 2 years. As a result of employee's preexisting lumbar spine injury, employee tried not to lift anything that weighed more than about 25 pounds, took Vicodin three or four times a day to address ongoing pain, and took breaks throughout the day to address "jolting" pain in his low back. Employee also would occasionally lie down on stacks of Styrofoam during his lunch break to rest his back.

The vocational expert, Philip Eldred, opined that employee is permanently and totally disabled given his physical restrictions referable to the primary injury combined with employee's preexisting low back injury. Employee's evaluating expert, Dr. Paul, opined that employee is permanently and totally disabled when the effects of the primary right shoulder and low back injury are combined with employee's prior low back injury. We find these expert opinions to be persuasive and adopt them as our own with respect to the nature and extent of employee's permanent disability.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a