Shirlane Horton v. Lester E. Cox Medical Centers

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 15-031075

Employee: Shirlane Horton

Employer: Lester E. Cox Medical Centers

Insurer: Self-Insured

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated October 28, 2016, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge L. Timothy Wilson, issued October 28, 2016, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 14^{\text {th }} \qquad$ day of February 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Shirlane Horton

Injury No. 15-031075

Dependents: N/A

Employer: Lester E. Cox Medical Centers

Insurer: N/A (Self-insured Employer)

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Hearing Date: September 9, 2016

Checked by: LTW

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? No
4. Date of accident or onset of occupational disease: Allegedly May 1, 2015
5. State location where accident occurred or occupational disease was contracted: Allegedly Greene County, 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? N/A (Self-insured employer)
11. Describe work Employee was doing and how accident occurred or occupational disease contracted: N/A. Employee did not sustain an injury by accident or by occupational disease. However, Employee alleges sustaining an injury by accident when she grabbed a patient lift bar with her left hand. Also, Employee alleges sustaining an injury by occupational disease or repetitive trauma/use of her left arm in performance of her work duties as a housekeeper.
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: Allegedly Left Upper Extremity
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by Employer/Insurer? None

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 463.31
3. Weekly compensation rate: $\ 308.87 (TTD/PTD/PPD)
4. Method wages computation: Stipulation

1. Amount of compensation payable: None

Unpaid medical expenses: N/A

Weeks of temporary total disability (or temporary partial disability): N/A

Weeks of permanent partial disability from Employer: N/A

Weeks of disfigurement from Employer: N/A

1. Second Injury Fund liability: No

Weeks of permanent partial disability from Second Injury Fund: N/A

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund: N/A

TOTAL: None

1. Future requirements awarded: No

Employee: Shirlane Horton

Injury No. 15-031075

Dependents: N/A

Employer: Lester E. Cox Medical Centers

Insurer: N/A (Self-insured Employer)

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

The above-referenced workers' compensation claim, which involved the joining of two workers' compensation cases, was heard before the undersigned Administrative Law Judge on September 9, 2016. ${ }^{1}$ The parties were afforded an opportunity to submit briefs, resulting in the record being completed and submitted to the undersigned on or about October 7, 2016.

The employee, Shirlane Horton, appeared personally and through her attorney, Ronald J. Coticchio, Esq. The employer, Lester E. Cox Medical Centers, appeared through its attorney, Karen L. Johnson, Esq. The Second Injury Fund did not appear at the proceeding, in light of the parties being in agreement that the Second Injury Fund need not appear considering the nature of the hearing.

The parties entered into a stipulation of facts in Injury No. 15-031075. The stipulation is as follows:

(1) On or about May 1, 2015 Lester E. Cox Medical Centers was an employer operating under and subject to the Missouri Workers' Compensation law and during this time was fully self-insured under Chapter 287, RSMo, with benefits being administered by Corporate Claims Management, Inc. (TPA).

(2) On the alleged injury date of May 1, 2015, Shirlane Horton was an employee of the employer and was working under and subject to the Missouri Workers' Compensation law.

(3) The above-referenced employment and alleged accident occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

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[^0]: ${ }^{1}$ The workers' compensation cases that were joined for hearing include Injury No. 15-031075 and Injury No 15105357 .

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Shirlane Horton

Injury No. 15-031075

(4) The employee notified the employer of her injury as required by Section 287.420, RSMo.

(5) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(6) At the time of the alleged accident, the employee's average weekly wage was $\ 463.31, which is sufficient to allow a compensation rate of $\ 308.87 for temporary total disability compensation and a compensation rate of $\ 308.87 for permanent disability compensation.

(7) Temporary disability benefits have not been provided to the employee.

(8) The employer has not provided medical treatment to the employee.

The parties further stipulated that the sole issues to be resolved by hearing in Injury No. 15-031075 include:

(1) Whether the employee sustained an accident or incident of occupational disease on or about May 1, 2015; and if so, whether the accident or occupational disease arose out of and in the course of employment.

(2) Whether the alleged accident or incident of occupational disease caused the injuries and disabilities for which benefits are now being claimed.

(3) Whether the employee has sustained injuries that will require additional medical care in order to cure and relieve the employee of the effects of the injuries.

(4) Whether the employee is entitled to temporary disability benefits. (The claimant seeks payment of temporary total disability compensation for the period of May 1, 2015, to the present and continuing indefinitely into the future.)

(5) Whether the employee sustained any permanent disability as a consequence of the alleged accident or occupational disease; and, if so, what is the nature and extent of the disability.

(6) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation.

In Injury No. 15-105357, the parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about May 1, 2015, Lester E. Cox Medical Centers was an employer operating under and subject to the Missouri Workers' Compensation law, and during this time was fully self-insured under Chapter 287, RSMo,

with benefits being administered by Corporate Claims Management, Inc. (TPA).

(2) On the alleged injury date of May 1, 2015, Shirlane Horton was an employee of the employer and was working under and subject to the Missouri Workers' Compensation law.

(3) The above-referenced employment and alleged incident of occupational disease occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(4) The employee notified the employer of her injury as required by Section 287.420, RSMo.

(5) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(6) At the time of the alleged accident, the employee's average weekly wage was $\ 463.31, which is sufficient to allow a compensation rate of $\ 308.87 for temporary total disability compensation and a compensation rate of $\ 308.87 for permanent disability compensation.

(7) Temporary disability benefits have not been provided to the employee.

(8) The employer has not provided medical treatment to the employee.

The sole issues to be resolved by hearing in Injury No. 15-105357 include:

(1) Whether the employee sustained an accident or incident of occupational disease on or about May 1, 2015; and, if so, whether the accident or occupational disease arose out of and in the course of employment.

(2) Whether the alleged accident or incident of occupational disease caused the injuries and disabilities for which benefits are now being claimed.

(3) Whether the employee has sustained injuries that will require additional medical care in order to cure and relieve the employee of the effects of the injuries.

(4) Whether the employee is entitled to temporary disability benefits. (The claimant seeks payment of temporary total disability compensation for the period of May 1, 2015, to the present, and continuing indefinitely into the future.)

(5) Whether the employee sustained any permanent disability as a consequence of the alleged accident or occupational disease; and, if so, what is the nature and extent of the disability.

(6) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation.

In regard to issues (5) and (6) above, referable to Injury No. 15-031075 and Injury No. 15-105357, the employer requested that the matter be heard on a final basis including a determination of permanent partial disability should the issues of accident/occupational disease and causation be found in employee's favor. This request was denied, resulting in the determination that the issues of permanent disability and the liability of the Second Injury would be deferred in the event the case was found to be compensable. Yet, it was recognized and understood that in the event the case was determined to be not compensable, the undersigned would issue a final award.

The employee testified at the hearing in support of her claim. In addition, the employee offered for admission the following exhibits:

Exhibit 1

Complete Medical Report of Mitchell Mullins, D.O.

(Inclusive of Deposition Exhibits)

The exhibit was received and admitted into evidence.

The employer did not present any witnesses at the hearing of this case. However, the employer offered for admission the following exhibits:

Exhibit A Deposition of Ted A. Lennard, M.D.

(Inclusive of Deposition Exhibits)

Exhibit B Deposition of Shirlane Horton

The Second Injury Fund, having elected to not appear for this evidentiary hearing, did not present any witnesses or offer any additional exhibits at the hearing of this case.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took administrative or judicial notice of the documents contained in the Legal File. These documents include:

- Request for Hearing-Final Award

- Notice of Hearing

- Answer of Second Injury Fund to Second Amended Claim for Compensation

- Answer of Employer to Second Amended Claim for Compensation

- Second Amended Claim for Compensation

- Answer of Employer to First Amended Claim for Compensation

- First Amended Claim for Compensation

- Answer of Employer to Original Claim for Compensation

- Original Claim for Compensation

- Report of Injury

Injury No. 15-105357:

- Correspondence from Second Injury Fund

- Request for Hearing-Final Award

- Notice of Hearing

- Answer of Second Injury Fund to Original Claim for Compensation

- Answer of Employer to Original Claim for Compensation

- Original Claim for Compensation

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

This evidentiary hearing involves the adjudication of two separate injury files. Yet, the employee is alleging the same medical condition and disability in the nature of calcific tendonitis, adhesive capsulitis, and complex regional pain syndrome. The employee is pleading the cause of this medical condition and disability alternatively as an injury caused by an accident occurring on or about May 1, 2015, or by an incident of occupational disease occurring on or about May 1, 2015.

The employee, Shirlaine Horton, is 54 years of age, having been born on December 20, 1961. Mrs. Horton resides in Rogersville, Missouri.

In 1995, Ms. Horton obtained employment with Lester E Cox Medical Centers, working in the position of housekeeping. She continued in this employment, working in different areas of the hospital, for approximately 20 years, continuing in this employment until the date of her alleged injury on May 1, 2015.

Ms. Horton indicated that her job included cleaning of patient rooms and common areas. She had "daily assignments" that she completed, which included cleaning rooms and bathrooms of patients still admitted to the hospital as well as cleaning of common areas, including nurses' stations and break rooms. She also had "checkouts" that she performed when a patient left the hospital, and this included cleaning every surface of a patient's room. Activities included sweeping and mopping, dusting both high and low, pulling trash, pulling linen, holding up mattress to clean underneath and reaching up and grabbing the lift bars to clean the bed and mattresses. She would have nine patient rooms, four nurses' stations, and the break rooms to clean on a regular basis. Her duties increased on occasion when she would be responsible for two

areas and would then have double the work. According to Ms. Horton, she performed this work activity every workday for approximately 20 years.

Ms. Horton is right hand dominant and she acknowledged that most jobs involved use of her right and left hands and some additional work with her right hand only.

According to Ms. Horton, in 1993, she suffered a brain injury, which makes it difficult for her to communicate or explain her testimony. The claims for compensation, as amended, allege a a prior learning disability since 1969; a prior 1993 head injury and associated migraines, double vision, memory loss, and neck injury; a prior 1995 injury in the nature of right carpal tunnel syndrome; and a prior 2000 low back and leg condition. Notably, the parties did not develop or present evidence of Ms. Horton's prior medical condition(s) and focused the evidence on the claims of injury.

At all times relevant to this case while engaged in employment with the employer for approximately 20 years Ms. Horton performed housekeeping duties that included making beds, pulling mattresses, mopping, dusting, and other duties for her employer. According to Ms. Horton, at the time of the claimed injury she had been doing more work than usual because her employer was pushing her to do so. She had been assigned additional workload that included additional patient rooms, which would include "check outs", which involved lifting mattresses, wiping walls, reaching up and cleaning of patient lifts, washing walls, overhead dusting, using both arms, pushing a cart, emptying trash, and other functions of her employment involving cleaning and maintenance. Notably, according to Ms. Horton, the additional workload had been occurring since January 1, 2014, which included doubling her workload. She was assigned 12 additional patient rooms, which brought the total to twenty-one (21) patient rooms.

On May 1, 2015, Ms. Horton alleges that she was cleaning a patient room when she reached up and grabbed a patient lift bar with her left hand and felt a pull in her arm. She finished breaking down her cart that day, as she was near the end of her shift, and she clocked out and went home. She testified that her left arm started swelling that night and has not gone down in size since that date. She further asserts that because of constant repetitive use of her left arm and shoulder in performance of her employment duties and the strain it put on her left shoulder, her left arm became swollen and sore to the point that she could not move it and her shoulder hurt. She describes this pain as moving down her shoulder and into her mid-upper arm.

She reported the incident the following Monday, May 4, 2015, and was sent to Cox Occupational Medicine on May 5, 2015.

On cross-examination, Ms. Horton was questioned by the attorney for the employer. She admitted she was using her right arm in her work activities as much as she used her left arm but denied any problems in her right arm and shoulder although she is right hand dominant.

On cross-examination, Ms. Horton acknowledged that prior to May 1, 2015, she did not have any problems in her left arm and shoulder. She was completely asymptomatic. On the date

that the problems started, she told no one at her employer that she was having problems. On the following Monday, May 4, 2015, she reported to her supervisor, Nick, that she went home Friday and her shoulder started hurting.

Ms. Horton was first seen by her own doctor at the Fordland Clinic on May 4, 2015. There is no mention in this record of any left shoulder problems and the physical examination indicates muscle strength in the upper extremities is normal. She was treated for migraine headache and vomiting.

She was then sent to Cox Occupational Medicine on May 5, 2015, after she reported the left shoulder and arm problems to her employer. She gave a history at that time that she had no issue at work, but Friday evening noticed some soreness in the upper part of her left arm that gradually worsened into Saturday morning. She could not relate a specific incident to the onset of her problems, but presented with pain and swelling in the left upper extremity. X-ray studies demonstrated an area of calcification in the subacromial bursal and lateral aspect of the humerus. The attending physician, Dr. David Brown, diagnosed Ms. Horton's medical condition as acute bursitis. He determined that this medical condition was not work related and instructed Ms. Horton to follow up with her primary care provider. In setting forth his impression, Dr. Brown propounded the following comments:

I explained to the patient that this is an acute bursitis, but it is not work related. Work probably aggravated it, but it did not cause it; therefore, this would not be considered a work comp injury.

Ms. Horton presented to the Fordland Clinic on the same day following her visit with Dr. Brown. She was given an anti-inflammatory and an MRI was ordered. The MRI was interpreted to show calcific tendinopathy at the insertion of the supraspinatus and infraspinatus with mild superimposed tendinopathy. There was no rotator cuff tear found. Ms. Horton continued to receive follow-up care through the Fordland Clinic.

Because of continued swelling, Ms. Horton was evaluated on May 18, 2015, for DVT. The radiologist, Dr. Stephen Wong, interpreted the testing to reveal, "No sonographic evidence of deep vein thrombus." However, because the study revealed, " 7 mm area of increased echogenicity in the subcutaneous soft tissues of the posterior aspect of the distal arm," Dr. Wong observed that this condition, "could relate to prominent fat lobule or possibly a lipoma." Dr. Wong thus recommended that Ms. Horton undergo further evaluation and that an MRI might be of benefit. Subsequently, on May 20, 2015, Ms. Horton presented to the emergency room at Cox Hospital for left arm pain. An MRI of the left elbow was done and was read as normal.

On June 3, 2015, Ms. Horton obtained an orthopedic consultation with Ferrell-Duncan. At the time of this evaluation the attending physician, Dr. Danny Reveal, diagnosed Ms. Horton with left elbow pain and left shoulder bursitis. Dr. Reveal provided an assessment that included, "rotator cuff calcification tendinitis and pain left elbow etiology unknown. Probable diabetic by lab work blood sugar 341." Based on this diagnosis, Dr. Reveal administered an injection to the

left shoulder, which provided no relief. She continued to receive follow-up treatment with Dr. Reveal.

On June 20, 2015, Ms. Horton presented to the Fordland Clinic for follow-up on her arm and to discuss elevated blood sugars. This testing resulted in Ms. Horton being diagnosed with Type II uncontrolled diabetes and resulted in Ms. Horton being put on medication. The diagnosis of bursitis continued. Her last visit at this clinic in July 2015 focused on her diabetes, and there was no mention of her shoulder.

On July 1, 2015, Ms. Horton obtained a second orthopedic referral with Dr. William Duncan. At the time of this visit Dr. Duncan noted that the examination of the left elbow revealed full range of motion and the left elbow was stable with no effusion and no tenderness. Similarly, he indicated that there was, "no increased local heat or erythema. No bruising." Also, Dr. Duncan indicated that the diagnostic studies, including three-view x-rays of her elbow demonstrated, "no loose of arthritis dislocations and subluxations fractures. No abnormal soft tissue shadows. No evidence of trauma." In light of this examination, Dr. Duncan diagnosed Ms. Horton with bursitis of the left shoulder, "as unchanged."

In light of his examination and findings, Dr. Duncan prescribed physical therapy for Ms. Horton. Thereafter, she underwent 5 sessions of physical therapy, from July 6, 2015, through July 17, 2015. According to Ms. Horton, the physical therapy did not provide her with any relief.

Ms. Horton returned to see Dr. Duncan on July 17, 2015. At the time of this examination, Dr. Duncan opined that the diagnosis of calcific tendonitis of her left shoulder was the cause of her left shoulder pain. In summarizing his findings and opinions, Dr. Duncan noted the following:

In summary, she saw Dr. Reveal several times before coming to me. She had an ultrasound of the left upper extremity, which showed no blood clots. She had MRIs of the elbow and shoulder. The only significant positive finding was calcific tendinitis of the biceps tendon in the shoulder. Dr. Reveal gave her a shoulder injection, which she states didn't help and caused a migraine headache and so she does not want any more steroid injections in her shoulder to treat the calcific tendinitis. There wasn't anything found on the MRIs that indicated any surgery was necessary. She also tried Meloxicam for a while, and that did not seem to help.

The symptoms consist mainly of swelling, burning, and pain of the left upper extremity. The pain is somewhat generalized. It's enough that she does not use her arm much.

The question of whether she was developing causalgia in response to chronic shoulder pain was raised. She was referred to Southwest Spine \& Sports for evaluation, but she denies any further care for her left upper extremity pain.

Mitchell C. Mullins, M.D.

Mitchell C. Mullins, M.D., a physician practicing in the specialty of Emergency Medicine, testified by complete medical report on behalf of the employee. Dr. Mullins performed an independent medical examination of Ms. Horton on September 23, 2015. At the time of this examination, Dr. Mullins took a history from Mrs. Horton, reviewed various medical records, and performed a physical examination of her. In light of his examination and evaluation of Ms. Horton, Dr. Mullins opined that as a consequence of her employment with the employer involving repetitive use of her left upper extremity, Ms. Horton has sustained an occupational injury in the nature of (1) repetitive use injury, tendinopathy left shoulder, possible rotator cuff or labral tear; and (2) complex regional pain syndrome, (causalgia) left arm.

In explaining the basis for his causation opinion, Dr. Mullins states,

It is my opinion the repetitive use injury to the left shoulder is the prevailing factor that has caused the patient's current symptoms. This includes possibly an occult injury to the left shoulder which has resulted in complex regional pain syndrome.

Dr. Mullins is of the opinion that relative to this injury Ms. Horton is not at maximum medical improvement. Further, according to Dr. Mullins, the nature and effect of this injury has rendered Ms. Horton temporarily and totally disabled since the initial injury date of May 1, 2015. Notably, Dr. Mullins is recommending additional medical care and recommended evaluation by physical medicine and rehabilitation to assess and treat the complex regional pain syndrome. There were no other treatment recommendations made by Dr. Mullins relative to the tendinopathy.

Ted A. Lennard, M.D.

Ted Lennard, M.D., a physician practicing in the specialty of Physical Medicine and Rehabilitation, testified by deposition on July 8, 2016. Dr. Lennard performed an independent medical examination of Ms. Horton on April 6, 2016. At the time of his examination, Dr. Lennard took a history from Ms. Horton, reviewed various medical records, and performed a physical examination of her. Notably, the history obtained by Dr. Lennard included reference by Ms. Horton to suffering an injury to her left upper extremity while cleaning a patient's room. This history included Ms. Horton reporting that at the time of this occurrence she was reaching up with her left upper extremity overhead and began to pull a lift downward while simultaneously grabbing a remote with the right hand when she "felt a pull." She stated her symptoms worsened that night.

In light of his examination and evaluation of Ms. Horton, Dr. Lennard opined that Ms. Horton suffers from left shoulder pain, which he diagnosed as adhesive capsulitis, calcific tendinopathy. Dr. Lennard identified "calcific tendinopathy" as a condition involving a portion of the tendon, in Ms. Horton's case the supraspinatus tendon, when the tendon calcifies or hardens over time. Also, Dr. Lennard identified adhesive capsulitis as a "frozen shoulder where the joint cannot be either actively or passively moved through normal motion." According to Dr.

Lennard, the cause of frozen shoulder typically is disuse. "When someone injures their shoulder, they don't want to move their shoulder, so they experience restrictions in movement, or frozen shoulder." Dr. Lennard notes that a side effect of Ms. Horton presenting with adhesive capsulitis can be swelling, explaining that disuse of the extremity will cause swelling.

Dr. Lennard did not find the work event reported to him on May 1, 2015, to be the prevailing factor in the onset of her left shoulder pain. He noted discrepancies in her various histories and mechanism of injury. He specifically noted that the calcific tendinitis in Ms. Horton's left upper extremity is "unrelated to any specific accident or repetitive trauma. Further, Dr. Lennard notes that while she is suffering from adhesive capsulitis, this condition is common in diabetes and is not related to her employment.

In addition, in addressing the issue of complex regional pain syndrome, Dr. Lennard opined that Ms. Horton does not suffer from this condition; she has no clinical evidence of complex regional pain syndrome involving the upper extremities. Dr. Lennard identified complex regional pain syndrome as a "disorder characterized by changes or irregularities in the sympathetic nervous system that often causes a constellation of symptoms, which include localized swelling, edema, coolness, temperature changes, changes in skin appearance, nail bed growth, hair distribution, hyperhidrosis (sweating) over an extended period of time." Notably, Dr. Lennard emphasized that a diagnosis for complex regional pain syndrome should be observed and documented on repetitive and multiple examinations. Before rendering a diagnosis of complex regional pain syndrome, these hallmark signs should be present and documented by the attending physician during multiple examinations. In this case, Ms. Horton demonstrated only the signs of swelling and pain on movement and did not exhibit the other signs of complex regional pain syndrome. Moreover, as emphasized by Dr. Lennard, while Ms. Horton presented with the symptom of swelling and pain with movement, there is an explanation based on her exam and her history to explain these particular symptoms. Thus, according to Dr. Lennard, Ms. Horton does not present with the requisite symptoms to support a diagnosis of complex regional pain syndrome.

Finally, while Dr. Lennard specifically rejects the presenting medical condition (adhesive capsulitis, calcific tendinopathy) to be work related, he acknowledges that the condition causes Ms. Horton to be governed by permanent restrictions and limitations. In this regard, Dr. Lennard did not think Ms. Horton could work in a normal job and would not be able to perform any type of work that required her to lift her left arm above the head or reach out forward or out to the side, in abduction, on a regular basis.

The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation is on the employee, Section 287.808, RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts and are to construe strictly the provisions, Section 287.800, RSMo.

I.

The parties readily acknowledge that the employee, Shirlane Horton, suffers from a medical condition and disability associated with pain in her left upper extremity. The employee relies upon the medical opinions of Dr. Mullins, who opines that Ms. Horton suffers from tendinopathy in her left shoulder, possibly involving a rotator cuff or labral tear, as well as complex regional pain syndrome. Dr. Mullins identifies this medical condition and disability as an occupational injury in the nature of repetitive use, and causally relates this injury to Ms. Horton's employment with the employer as a housekeeper. The employer relies upon the medical opinions of Dr. Lennard, who opines that the presenting pain in Ms. Horton's left upper extremity is causally related to the "calcific tendinopathy" of the supraspinatus tendon and adhesive capsulitis. Dr. Lennard further opines that this medical condition and disability is "unrelated to any specific accident or repetitive trauma." Further, Dr. Lennard notes that while Ms. Horton is suffering from adhesive capsulitis, this condition is common in individuals suffering from diabetes.

After consideration and review of the evidence, I find and conclude that the employee is suffering from pain in her left upper extremity, which causes her to be governed by restrictions and limitations. I further find and conclude that this medical condition and disability are causally related to the "calcific tendinopathy" of the supraspinatus tendon and adhesive capsulitis. Although I find Ms. Horton to be credible with respect to her symptoms of pain, this injury (medical condition and disability), however, is not an occupational injury. I do not find Ms. Horton credible or persuasive as to her differing explanations for the cause of her pain. I thus find and conclude that this injury was not caused by a specific accident or incident occurring at work with the employer, as alleged by Ms. Horton; nor was this injury caused by repetitive trauma or repetitive use occurring in her employment with the employer as a housekeeper, as alleged by Horton. Simply stated, the employee suffers from a disabling condition, but the employee has not sustained a compensable occupational injury.

In rendering this decision, I note that the employee began experiencing pain in her left upper extremity shortly before being diagnosed with diabetes, a condition that was not being managed and a condition that the treating physicians deemed medically "uncontrolled." Not surprisingly, in experiencing onset of this left upper extremity pain, Ms. Horton was unable to associate or identify the source of pain to any one event or activity. As a consequence, from the very beginning, Ms. Horton provided inconsistent histories to her employer and the medical providers from whom she sought treatment. Her pleadings in this case have been, likewise, inconsistent. Her history has varied from no onset of symptoms while actually working, to no specific mechanism of injury, to a specific accident, to a gradual onset of problems. An examination of the timeline and her various, inconsistent histories follows:

- The Original Claim for Compensation filed by Ms. Horton on My 22, 2015, alleges a date of injury occurring on May 1, 2015. This original claim alleges that while she was making beds and pulling mattresses, her arm became swollen and sore. However, at the hearing and in the Amended Claim for Compensation filed on August 24, 2015, Ms. Horton alleges that she was cleaning a patient room when she reached up and grabbed a patient lift bar with her left hand and felt a pull in her arm.

- Ms. Horton did not report an injury to anyone at her employer on May 1. Rather, the reporting of left arm pain was provided to the employer on February 4, 2015.

- The reporting of the injury to the supervisor did not identify a specific work activity. Instead, the report to the supervisor indicates that Ms. Horton went home on Friday and her left shoulder started hurting.

- On May 4, 2015, Ms. Horton presented to her primary care provider at the Fordland Clinic for migraine headaches and vomiting. At the time of this visit, she made no mention of having pain in her left shoulder and arm, much less as to having sustained an accident involving her left arm.

- Also, at the time of this May 4, 2015, visit, the physical exam performed by the attending physician indicated muscle strength in the upper extremities to be normal.

- On May 5, 2015, and in response to the report of having left arm pain, the employer referred Ms. Horton to Cox Occupational Medicine. At the time of this visit, Ms. Horton provides a history of having no issue at work, but Friday evening noticed some soreness in the upper part of her left arm that gradually worsened into Saturday morning.

- Ms. Horton could not relate a specific incident to the onset of the pain. This report to Cox Occupational Medicine was consistent with the report she gave to her supervisor of the onset of the problems occurring after she was at home on Friday evening.

- Ms. Horton was diagnosed with acute bursitis, and it was determined to not be related to her work.

- On May 18, 2015, Ms. Horton presented to the Fordland Clinic. And on May 20, 2015, Ms. Horton presented to the Cox emergency department. In both instances, Ms. Horton provides a history of experiencing an onset of swelling and pain in her left upper extremity. This history is consistent with the history given to her supervisor and to Cox Occupational Medicine.

- The medical records indicate that Ms. Horton denied suffering any injury or trauma.

- The physician's history indicates that the problems resulted from an unknown cause.

- The MRI intake at this visit notes a history of onset of May 2, 2015, and a denial of injury or trauma.

- Up to this point in her treatment (May 20, 2015), Ms. Horton consistently provided a history to her employer and the healthcare providers that her left arm and shoulder problems started after she got home from work and that there was no specific incident

is not until May 22, 2015, when Ms. Horton filed the Original Claim for Compensation does she allege a specific event occurring at work. Further, on May 22, Ms. Horton identified the specific event to involve making beds and pulling mattresses. Later, in August, she changed the specific event to involve grabbing a patient lift bar with her left hand and then feeling a pull in her arm.

- On June 3, 2015, the employee presented to Dr. Reveal for treatment with complaints of pain and swelling in her left elbow, and at this visit Ms. Horton expressed feelings that this condition might be related to repetitive movement.

- This allegation of repetitive trauma is different from her insistence on having sustained a specific event causing pain on May 1, 2015.

- Also, Dr. Reveal rejected repetitive movement as the cause; stating instead that the etiology of the left elbow pain was unknown.

- Further, Dr. Reveal alerted Ms. Horton to the probability that she was a diabetic and needed to be evaluated for diabetes.

- On July 1, 2015, the employee presented to Dr. Duncan for a second orthopedic evaluation. Dr. Duncan records a history of no incident or injury while Ms. Horton was carrying out her duties, but by the end of the day her left arm and shoulder were worse and the pain got worse overnight.

- On August 4, 2015, Ms. Horton testified in her deposition that she had a specific incident and was clear that she knew right away that she had done something to her left arm and shoulder. Yet, on September 23, 2015, Ms. Horton presented to Dr. Mullins for an independent medical examination. Dr. Mullins reports in his notes that Ms. Horton recalls no specific incident. However, this changed again on April 6, 2016, when Ms. Horton presented to Dr. Lennard for an independent medical examination at the request of the employer. At this examination, Ms. Horton provided a history of suffering an injury because of a specific incident which occurred while she was cleaning the patient lift when she felt a pain in her left shoulder and arm.

Dr. Lennard offers the opinion that Mrs. Horton does not suffer from complex regional pain syndrome. In explaining his opinion, Dr. Lennard states the following:

Q. In your opinion, does Ms. Horton have the condition of complex regional pain syndrome?

A. Based on the history when I saw her and the exam, I did not feel like that was consistent. I felt like she did have left shoulder problems with adhesive capsulitis, which we see swelling, disuse with that particular finding, and that's what her exam was consistent with.

Q. So the adhesive capsulitis, a side effect of that can be the swelling in the left upper extremity?

A. Sure. Just disuse of the extremity, the arm will swell.

Q. If you would explain a little bit what complex regional pain syndrome is?

A. Sure. It's an unusual disorder characterized by changes or irregularities in the sympathetic nervous system that often cause a constellation of symptoms, which include localized swelling, edema, coolness, temperature changes, changes in skin appearance, nail bed growth, hair distribution, hyperhidrosis over an extended period of time and documented on repetitive and multiple examinations.

Q. Okay.

A. And with no other explanation for many of those symptoms.

Q. The hyperhidrosis, that's the sweating that you referred to?

A. Yes.

Q. Did you specifically, in your evaluation of Ms. Horton, look for any of these symptoms or constellation of symptoms?

A. Yes.

Q. Did you find that she had any of those?

A. Certainly she had swelling present, absolutely, and pain with movement, but there's an explanation based on her exam and her history to explain those particular symptoms.

Q. And you said over time that you see it recurring and happening over long periods of time, not just snapshots that people will have the condition, right?

A. Right. The diagnosis is made over periods of months, examined by the same physician over time to compare exams from one to the other.

Q. Did you see anything in the records that you reviewed in Exhibit 3 that would support a diagnosis of the complex regional pain syndrome?

A. There were comments of swelling present, which is one of the symptoms, but that's also present in joint problems and certainly, in her case, the shoulder, frozen shoulder.

Q. From the adhesive capsulitis?

A. Yes.

Also, in evaluating the differing medical opinions, it is noted that in regards to medical treatment recommendations for treatment relative to his diagnosis of complex regional pain syndrome, Dr. Mullins recommends a referral to physical medicine and rehabilitation. Following this recommendation, Ms. Horton was seen by Dr. Lennard, whose specialty and practice area is in physical medicine and rehabilitation. In discussing his specialty and practice area, Dr. Lennard propounded the following testimony:

Q. (By Ms. Johnson) Dr. Lennard, as part of your practice in physical medicine and rehabilitation, do you treat individuals with extremity issues, and specifically shoulder/elbow issues that are nonsurgical in nature?

A. Yes.

Q. That is part of your practice?

A. Yes.

Q. Do you also treat individuals who have the condition that's referred to as chronic regional pain syndrome?

A. Yes, or complex regional pain syndrome.

Q. Complex, thank you. And that was formerly referred to as RSD; is that right?

A. Yes.

Q. But that is part of your regular practice, as well?

A. Yes.

Q. And so you are familiar with that condition and you've diagnosed people with that condition and have treated people with that condition?

A. Yes.

Q. And if another provider treating an individual for whatever reason recommends referral to a physical medicine and rehabilitation specialist, that would be what you do for a living; is that right?

A. Yes.

In light of the foregoing and after consideration and review of the evidence in its entirety to the extent there are differences in medical opinions between Dr. Mullins and Dr. Lennard, I resolve these differences in favor of Dr. Lennard. I find Dr. Lennard credible, reliable, and worthy of belief. I further find the opinions and conclusions of Dr. Lennard in this case to be more credible and more persuasive than those of Dr. Mullins. Accordingly, I find Dr. Lennard's opinion that Ms. Horton does not have complex regional pain syndrome to be persuasive. He regularly treats patients with this condition, and in his opinion she did not meet the criteria for this condition. He also found no support in the medical records to support this as a diagnosis.

Accordingly, I find and conclude that Ms. Horton does not suffer from complex regional pain syndrome. Also, with regard to the other conditions diagnosed by Dr. Mullins, specifically a possible rotator cuff or labral tear, I do not find that diagnosis credible. MRI of the left shoulder has been performed, and Ms. Horton has had two orthopedic consultations, neither of which diagnosed a rotator cuff tear and neither of which recommended surgery.

I find the diagnosis set forth by Dr. Lennard of adhesive capsulitis and calcific tendinopathy and the causation opinion for those conditions to be persuasive. With regard to the adhesive capsulitis, Dr. Lennard indicated this condition is common in diabetics. Dr. Mullins does not even mention or discuss the diabetes diagnosis in his report. Dr. Lennard explained in his deposition that the development of adhesive capsulitis in diabetics has a strong association.

Finally, with regard to the finding of calcific tendonitis, Dr. Lennard did not find this condition related to the work event as reported by Ms. Horton. I find and conclude that this

condition was not caused by a specific accident occurring at work or by repetitive use occurring at work. Admittedly, while suffering from this condition and while using her left arm in her employment, the work activity involving her use of her left upper extremity would have the effect of aggravating the medical condition. The aggravation experienced by Ms. Horton in this case was transient in nature. It did not have the effect of causing, changing, or accelerating the existing symptomology. Further, when Ms. Horton stopped working for the employer and, thus, stopped using her left upper extremity in her employment with the employer, Ms. Horton's symptoms did not end or recede. Rather, Ms. Horton's symptomology in her left upper extremity continued to develop and manifest at a similar level of pain and swelling.

In light of the foregoing, and after consideration and review of the evidence, I find and conclude that the employee failed to sustain her burden of proof. The employee did not sustain a compensable occupational injury. The employee did not sustain an injury by accident on May 1, 2015, arising out of and in the course of her employment with the employer. The employee did not sustain an injury by incident of occupational disease on or about May 1, 2015, arising out of and in the course of her employment with the employer.

Therefore, the Claim for Compensation in Injury No. 15-031075, as filed against the employer and the Second Injury Fund, is denied. The Claim for Compensation in Injury No. 15105357, as filed against the employer and the Second Injury Fund, is denied. The award is subject to modifications as provided by law.

Made by: $\qquad$

L. Timothy Wilson

Chief Administrative Law Judge

Division of Workers' Compensation