Troy Brown v. Wal-Mart Associates, Inc.

from employee's evaluating expert an explanation of the cumulative trauma employee sustained, as well as a specific identification of the new pathology that employee purportedly suffered as a result of this cumulative trauma. In our view, Dr. Paul did not sufficiently distinguish between the effects of employee's prior left shoulder injury of 2003 and the (alleged) more recent cumulative trauma.

Also, as noted by the administrative law judge, it is unclear whether Dr. Paul was sufficiently apprised of the relevant facts involved in this case, in that he appears to have been unaware that employee ceased working in the inventory control job in 2009 and began working thereafter as a sales associate in the sporting goods section. If Dr. Paul knew of this important circumstance, he failed to mention it anywhere in his report. Instead, in his only description of employee's duties, Dr. Paul indicated employee "was involved in sales, stocking, and inventory control" at the time he suffered his work injury. Transcript, page 67. Where it is unclear to us the extent that Dr. Paul properly understood employee's actual work duties, his opinions, however persuasive, are simply not relevant for our purposes.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued May 15, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $20^{\text {th }}$ day of November 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: Alleged September 25, 2013.
5. State location where accident occurred or occupational disease was contracted: Lebanon, Missouri.
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? No.
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: Employee alleged an occupational injury due to repetitive trauma.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: Alleged left shoulder.
14. Nature and extent of any permanent disability: None.

1. Compensation paid to-date for temporary disability: None.
2. Value necessary medical paid to date by employer/insurer? None.
3. Value necessary medical aid not furnished by employer/insurer? None.
4. Employee's average weekly wages: $\ 649.07.
5. Weekly compensation rate: $\ 432.71.
6. Method wages computation: Stipulation.

1. Amount of compensation payable: None.
2. Second Injury Fund liability: None.
3. Future requirements awarded: None.

Troy Brown (Claimant) contends that the current problem in his left shoulder results from repetitive motion associated with his job duties for Wal-Mart Associates, Inc. (Employer). Tendering the opinion of his expert witness (Dr. Robert Paul), Claimant seeks a referral to an orthopedic specialist to determine the nature of his injury and to obtain a recommendation for treatment to address his left shoulder pain. Employer has refused to provide the same, defending on multiple bases, not the least of which is a stipulation for compromise settlement signed between these same parties on September 25, 2005. In that document, Claimant resolved a 2003 accidental work injury with Employer for 40 percent of the left shoulder. The written agreement specifically states that the parties intended to resolve all issues including future medical. Employer essentially avers that Claimant’s new claim of injury by repetitive trauma to the same left shoulder (as opposed to the earlier injury by accident) is aimed at obtaining the treatment Claimant specifically waived a decade earlier. The undersigned Administrative Law Judge conducted the hearing on April 8, 2015.

Claimant appeared in person and with his attorney, Ryan Murphy. Attorney Jerry Harmison represented Employer and its insurer, New Hampshire Insurance Co., and its third party administrator. The Treasurer of Missouri, as Custodian of the Second Injury Fund, appeared by Assistant Attorney General Catherine Goodnight. Upon request of Employer/Insurer and the Second Injury Fund, the Administrative Law Judge agreed to issue a Final Award if she determined that the claim was not compensable.

The parties stipulated to the following facts: (1) On or about September 25, 2013, Wal-Mart Associates, Inc., was an employer operating under and subject to the terms and provisions of the Missouri Workers’ Compensation Law, and during this time was fully insured. (2) On September 25, 2013, Troy Brown was an employee of Employer in its store in Lebanon, Missouri, and was working under and subject to the Missouri Workers’ Compensation Law.

(3) There is no challenge to jurisdiction. The parties agreed to a change of venue to Springfield, Greene County, Missouri, for this hearing.

(4) The Claim for Compensation was filed within the time prescribed by $\S 287.430 RSMo.

(5) Claimant's average weekly wage was \ 649.07, yielding a compensation rate of $\ 432.71.

(6) Employer/Insurer provided no temporary total disability benefits and no medical benefits.

The following are the issues identified by the parties are the hearing:

(1) Did Claimant provide notice of his injury as required by law?

(2) Did Claimant sustain an injury by occupational disease to his left shoulder, culminating on September 25, 2013?

(3) Did the alleged injury arise out of and in the course of employment for Employer?

(4) Is Claimant's injury medically and causally related to the work for this Employer?

(5) Shall Employer and Insurer provide medical treatment for Claimant's alleged injury?

(6) Is there any Second Injury Fund liability?

In addition to the above issues, Claimant's attorney seeks a 25 percent fee of any monies awarded.

Claimant offered the following exhibits, which were admitted:

1. Dr. Paul - dated July 25, 2014
2. Addendum to Dr. Paul's Report - dated February 3, 2015

1. Mercy Hospital - Lebanon
2. Mercy Clinic
3. Mercy Clinic
4. Lake Orthopedic Group
5. Mid Missouri Orthopedic \& Sports Medicine
6. Breech Regional Medical Center
7. Progressive Health Physical Therapy \& Sports Medicine
8. Lourdes Medical Center and Rancocas Hospital

1. Final Evaluation Report and Addendum of Dr. Mather - 2003 Injury
2. Stipulation for Compromise Settlement - Injury No. 03-138313
3. "60 Day" Letter to Attorneys Harmison and Goodnight

Employer/Insurer offered the following exhibits, which were admitted into evidence:

A. Troy Brown, dated October 6, 2014

B. Dr. Lennard, dated October 29, 2014

The Second Injury Fund offered no additional exhibits.

Claimant began working for Employer 17 years ago on October 4, 1998. On March 26, 2003, Claimant fell from a loading dock and suffered a complete tear of the rotator cuff. Employer provided medical care, including a left shoulder surgery on May 27, 2003, performed by Dr. Curtis Mather. While traveling in Brazil a few months later, Claimant reinjured his left shoulder. This incident resulted in a second left shoulder surgery performed by Dr. Mather on Sept