We agree with the administrative law judge that employer/insurer is responsible for permanent total disability benefits as stated in the Final Award because employee's injuries to his left shoulder, as identified on January 31, 2008, were natural and probable consequences of the original accident on April 28, 2006, and "that employee did not sustain a new accident or occupational disease on January 31, 2008." *Final Award, p.14*. These findings are supported by Missouri case law and by competent and substantial evidence on the record.
"Where an employee sustains an injury arising out of and in the course of his employment, every natural consequence that flows from the injury, including a distinct disability in another area of the body, is compensable as a direct and natural result of the primary or original injury." *Cahall v. Riddle Trucking, Inc.*, 956 S.W.2d 315, 322 (Mo. App. 1997) (overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220, 226 (Mo. banc 2003)), citing *Lahue v. Missouri State Treasurer*, 820 S.W.2d 561, 563 (Mo. App. 1991).
Because of the April 28, 2006 injury, employee ceased to use his right arm and used his left arm to compensate, which compensation resulted in injuries to employee's left shoulder. Dr. Volarich credibly opined that employee's left shoulder injuries were a result of employee overcompensating for his right shoulder injuries of April 28, 2006. Furthermore, neither Dr. Volarich nor Dr. Lennard assigned any medical restrictions to employee regarding the January 31, 2008 work injury.
Injury No. 06-036310
Employee: Rodrigo Pineda
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Based on the competent and substantial record, and in compliance with case law, we find that employee's injuries to his left shoulder were natural consequences that flowed from the original injury, even though they were in a different area of employee's body. Therefore, we find that employee's injuries to his left shoulder, as identified on January 31, 2008, were compensable as a natural and probable consequences of the original accident on April 28, 2006.
Employer does not persuade us that the administrative law judge's findings were against the competent and substantial evidence on the record. Employer argues that the left shoulder was not injured on April 28, 2006, or even until after employee started working in a new position in May 2007, and therefore, the injuries to the left shoulder had to result from another accident. Employer failed to point out in the record when and how that separate event occurred. Left shoulder injuries were reported on January 31, 2008, but the record does not describe a separate accident that specifically caused such injuries. We find the testimony of Dr. Volarich more credible that the left shoulder injuries were due to employee's extended use of his left arm over a period of time in order to compensate for his injuries from April 28, 2006.
As employee's injuries to his left shoulder, as identified on January 31, 2008, were compensable as natural and probable consequences of the original accident on April 28, 2006, employer/insurer is responsible for permanent total disability benefits as stated in the Final Award.
Whether employee is entitled to fees, costs, and expenses, pursuant to § 287.560, RSMo, in connection with responding to employer's appeal to the Labor and Industrial Relations Commission?
Employee argues that the issue raised in employer's appeal is without reasonable ground based on the record. Therefore, employee moves for the Commission to assess upon employer fees, costs, and expenses for employee's response to this appeal, pursuant to § 287.560, RSMo.
Section 287.560, RSMo, provides, in pertinent part, that "if the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them."
We "should only exercise [our] discretion to order the cost of proceedings under section 287.560 where the issue is clear and the offense egregious." Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240 (Mo. banc 2003) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003)).
Employee argues that there was no evidence that employee was permanently and totally disabled based on a combination of the April 28, 2006 injury and the January 31, 2008 injury. In support of this argument, employee points out that all of the restrictions Dr. Lennard placed on employee were related to the April 28, 2006 injury and that it was
Injury No. 06-036310
Employee: Rodrigo Pineda
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Dr. Lennard's opinion that the multi-level spondylosis and osteophytes pre-existed employee's work injury of January 31, 2008. Brief of Respondent, p.16.
Employee further points out that Mr. England, retained by employer, stated in his deposition that he could not think of any positions employee could do given Dr. Lennard's work restrictions (which were all related to the April 28, 2006 injury) and employee's academic limitations and language barrier. Therefore, employee argues that employer's assertion on appeal was unreasonable that employee was permanently and totally disabled based on a combination of the two injuries.
We do not feel that employer's conduct in this matter reaches the level found in other cases that warranted costs pursuant to § 287.560, RSMo. For example, in Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 250 (Mo. 2003), the employer promised to pay for treatment if its physician determined that the injuries were work-related. Once the physician determined that the injuries were work-related, the employer in Landman still refused to pay for treatment. Landman, 107 S.W.3d 240, at 250. Similarly, in Monroe v. Wal-Mart Assocs., 163 S.W.3d 501, 506 (Mo. App. 2005), the employer continued to deny responsibility for the employee's injuries even after its own physician determined that the employee's injuries resulted from the workplace. Monroe, 163 S.W.3d at 506.
Here, employer acknowledges that employee's injuries were work-related. Employer, however, challenges the administrative law judge's finding that employee was permanently and totally disabled based solely on the April 28, 2006 injury. Employer argues that the left shoulder was not injured on April 28, 2006, but that employee continued to perform work with his left arm and shoulder long after the April 28, 2006 injury. Employee did not experience pain in his left shoulder until over a year later, after starting a new position with employer. Therefore, employer argues, employee's left shoulder injuries should be treated as separate from his injuries sustained on April 28, 2006.
The idea that there were two separate injuries came initially, not from employer, but from employee. It was employee and his attorney who originally filed a separate claim for workers' compensation on February 20, 2008 citing the January 31, 2008 injury. Transcript, pp.224-26. In that claim, employee described the injury as follows: "While acting within the course and scope of employment, employee suffered pain and popping in left shoulder which extends to his back and neck." Transcript, p.225. Employee filed the February 20, 2008 claim against the Second Injury Fund. Transcript, p.226. It was employee's attorney's strategic choice to file a second claim, just in case it was ultimately proven to be a separate injury from the April 28, 2006 injury. We find it difficult to grant employee's motion against employer when employee filed claims for two separate injuries.