Robert Blair v. Ryerson, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 15-028504

**Employee:** Robert Blair

**Employer:** Ryerson, Inc.

**Insurer:** Travelers Indemnity Company of America

This 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, read the briefs, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

In the Final Award, the administrative law judge found more credible the opinions of Dr. Strong and Dr. Satterlee that the April 28, 2015 accident was not the prevailing factor in causing employee's medical condition. Award, page 8. The administrative law judge specifically pointed out that both Dr. Strong and Dr. Satterlee were board certified shoulder specialists with active orthopedic surgery practices. *Id.* The administrative law judge then stated, "the expert conclusions of Drs. Strong and Satterlee should be afforded greater weight than the opinion of an occupational medicine doctor given their specialized training and active orthopedic practices." *Id.*

We disavow any suggestion that a medical expert's opinions are necessarily entitled to greater weight simply because of specialized training or experience. The credibility of expert witnesses must be evaluated in a much broader context. Having said this, the unimpeached testimony of a surgeon regarding findings visualized in the course of a procedure are clearly entitled to great weight.

An expert's background and experience are obviously factors to be considered and, when all other factors are relatively equal, may render one opinion more persuasive than another. Here, it does appear that Dr. Kopravica's opinions may have been based on incomplete information and/or based on assumptions not proven.

The administrative law judge's analysis, overall, is correct.

Because we agree with the administrative law judge's determination that the April 28, 2015 accident was not the prevailing factor in causing employee's medical condition, we must deny the claim. All other issues are moot.

- 2 -

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

The award and decision of Administrative Law Judge Angie Heffner, issued June 5, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this **27th** day of July 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**


**John J. Larsen, Jr., Chairman**

**Reid K. Forrester, Member**

Attest:

**Curtis E. Chick, Jr., Member**

**Secretary**

Issued by Division of Workers' Compensation

Employee: Robert Blair

Injury No. 15-028504

Employee: Robert Blair

Injury No. 15-028504

Employer: Ryerson, Inc.

Insurer: Travelers Indemnity Company of America

Hearing Date: April 20, 2017

Checked by AH/pd

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? No

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: April 28, 2015

1. State location where accident occurred or occupational disease was contracted Kansas City, Jackson County, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? No

1. Was claim for compensation filed within the time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: While in the course and scope of his employment, Employee was pulling a chain to move a heavy piece of steel when he felt severe pain in his left shoulder.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: None

1. Nature and extent of any permanent disability: None

Issued by Division of Workers' Compensation

Employee: Robert Blair

Injury No. 15-028504

1. Compensation paid to date for temporary disability: None

1. Value necessary medical aid paid to date by employer/insurer: $5,537.77

1. Value of medical aid not furnished by employer/insurer: 73,805.85

1. Employee's average weekly wages: 1,100.00

1. Weekly compensation rate: 733.33 for temporary total disability and 451.02 for permanent partial disability.

1. Method of wage computation: By agreement of the parties.

COMPENSATION PAYABLE

1. Amount of compensation payable: None.

Issued by Division of Workers' Compensation

Employee: Robert Blair

Injury No.: 15-028504

Employer: Ryerson, Inc.

Insurer: Travelers Indemnity Company of America

Hearing Date: April 20, 2017

Checked by: AH/pd

A final evidentiary hearing was held in this case on Employee's claim against Employer on April 20, 2017 in Kansas City, Missouri. Employee, Robert Blair (Claimant or Employee), appeared in person and by his attorney, John O'Connor. Employer, Ryerson, Inc., and Insurer, Travelers Indemnity Company of America, appeared by their attorney, Brent Johnston. The parties agreed that post-hearing briefs would be due on May 22, 2017.

STIPULATIONS

At the time of the hearing, the parties stipulated to the following:

1. On or about April 28, 2015, Robert Blair was an employee of Ryerson, Inc. (Employer) and was working under the provisions of the Missouri Workers' Compensation Law.

1. On or about April 28, 2015, Employer was an employer operating under the provisions of the Missouri Workers' Compensation Law and was fully insured by Travelers Indemnity Company of America.

1. Employee's contract of employment was made in Missouri.

1. Employee timely notified Employer of his injury.

1. Claimant's Claim for Compensation was filed within the time allowed by law.

1. The average weekly wage was 1,100.00, the rate of compensation for temporary total disability is 733.33, and the rate of compensation for permanent partial disability is $451.02 per week.

1. Employer/Insurer has not paid any temporary total disability benefits.

1. Employer/Insurer paid $5,537.77 in medical aid.

Issued by Division of Workers' Compensation

Employee: Robert Blair

Injury No. 15-028504

ISSUES

The parties agreed that there is a dispute on the following issues:

1. Whether the Employee sustained an accident arising out of and in the course of his employment;
2. Whether Employer must reimburse Employee for medical expenses totaling $73,805.85;
3. Whether Employee is entitled to temporary total disability benefits from September 30, 2015 through February 29, 2016;
4. What is the nature and extent of Claimant's disability; and
5. Whether Employer must provide Employee with medical care in the future.

Claimant testified in person. In addition, Claimant offered the following exhibits which were admitted in evidence without objection:

- Claimant's Exhibit A -- Dr. Koprivica Medical Report

- Claimant's Exhibit B -- Medical Bills

Employer/Insurer offered the following exhibits which were admitted in evidence without objection:

- Employer/Insurer's Exhibit No. 1 -- Dr. Craig Satterlee's Medical Report

- Employer/Insurer's Exhibit No. 2 -- Deposition of Dr. Satterlee

- Employer/Insurer's Exhibit No. 3 -- Dr. Alexandra Strong's Medical Report

Findings of Fact

Claimant, who is currently 64 years old, testified that he worked for the Employer operating various machines from 1992 until he retired in March 1, 2016. Claimant sustained a work-related injury to his left shoulder in 1998. Dr. Lance Bear provided treatment for a torn labrum, chondromalacia of the humeral head and glenoid, and impingement. As a result of that injury, Claimant underwent surgery. He was off work for six to eight weeks but was eventually able to return to work. Claimant settled the workers' compensation claim related to the 1998 injury for compensation representing 20% permanent partial disability of the left shoulder.

Claimant acknowledges that, although he was able to return to work following his surgery, he did have permanent problems involving the left shoulder as a result of his 1998 injury. Specifically, he acknowledges that he experienced a significant loss of range of motion due to that injury. He testified and demonstrated for the Court that following the 1998 injury but prior to the April 28, 2015 accident, he could not lift his left arm beyond ninety degrees. Claimant also confirmed that he would experience aches and

4

Issued by Division of Workers' Compensation

Employee: Robert Blair

Injury No. 15-028504

pains in his left shoulder during and after strenuous work. He also acknowledges he was told by Dr. Lance Bear, the surgeon who provided treatment for his 1998 injury, that he had significant cartilage changes throughout the glenohumeral joint in 1998 and would likely need a total shoulder replacement. (Ex. 3, p. 28) However, Claimant hoped to be able to work until he was sixty five years old, at which time he planned to retire.

On April 28, 2015 while pulling on a chain to move a heavy piece of steel, Claimant experienced a significant increase in pain in his left shoulder. Claimant notified Employer of his symptoms, and he was sent for authorized medical care at North Kansas City Hospital. Diagnostic studies revealed advanced degenerative joint disease of the left glenohumeral joint.

Employer subsequently arranged for Claimant to be evaluated by Dr. Alexandra Strong, who specializes in shoulder surgery, has been board certified in orthopaedic surgery since 1994, and has been board certified in orthopaedic sports medicine since 2008. Dr. Strong evaluated Claimant on May 27, 2015. She reviewed an MRI taken of Claimant's left shoulder on May 12, 2015 and confirmed that it revealed very severe glenohumeral osteoarthritis, no large rotator cuff tear, no complete tendon rupture, and that it might have shown a partial thickness tear of the supraspinatus tendon or an occult small full thickness tear of the rotator cuff. Dr. Strong offered the following expert medical opinion after examining Claimant:

Mr. Blair comes in today with left shoulder pain. He has severe [osteoarthritis] that is causing his pain. He is severely limited by his shoulder now. He has been limited with range of motion for years but now his pain is severe and his motion is worse. [He] does not have significant rotator cuff tearing to explain his change. ... But I warned him that I did not believe that it is a work comp issue. ... It is my medical opinion that based on a reasonable degree of medical certainty the patient's recent work injury is not the prevailing factor in the current symptoms and need for further treatment.

(Ex 3, p. 8)

After seeing Dr. Strong, Claimant elected to pursue additional treatment on his own with Dr. Craig Satterlee. Dr. Satterlee agreed that a total shoulder replacement would be most appropriate for Claimant and performed this procedure on September 30, 2015. In his operative report, Dr. Satterlee recorded:

At the time of surgery, fairly significant posterior glenoid wear, however, we are able to correct this with reaming, lower in the front. Rotator cuff largely looks okay. The biceps was shredded and was tenodesed in the intertubercular groove. The AC joint was quite arthritic. The glenohumeral joint had a complete loss of cartilage and was bone-on-bone with circumferential osteophytes and subchondral sclerosis.

(Ex 1, p. 90; Ex. 2, p. 5/13).

MNKOI 0000811657

Issued by Division of Workers' Compensation

Employee: Robert Blair

Injury No. 15-028504

The day following his shoulder replacement, Claimant applied for Social Security Disability benefits. Claimant testified that the cause of his disability was his shoulder replacement surgery, not the April 28, 2015 accident. Claimant's application was approved and it was determined the date he became disabled was the date of his shoulder replacement surgery. After learning he had been approved for disability benefits, Claimant elected to retire without ever asking Employer if his work restrictions could be accommodated. Claimant has not returned to work since he retired in March 2016.

After Claimant completed his treatment with Dr. Satterlee, his attorney arranged for him to be evaluated by Dr. P. Brent Koprivica. Dr. Koprivica is board certified in occupational medicine. He is not a surgeon and has never performed shoulder surgery. Dr. Koprivica saw Claimant on one occasion, on March 12, 2016.

Based on his understanding of the facts, Dr. Koprivica suggested that the Claimant sustained a new injury as a direct result of the incident on April 28, 2015. He based this conclusion on his understanding that Claimant suffered loss of strength and loss of range of motion as a result of that incident. He also based this conclusion on his assumption that Claimant suffered a new partial thickness tear (potentially a full thickness tear) of the supraspinatus. Dr. Koprivica also felt that the shoulder replacement performed by Dr. Satterlee was reasonably necessary to cure or relieve the effects of what he deemed new injuries. He also suggested Claimant was temporarily totally disabled from September 30, 2015 through February 29, 2016. Based on his understanding of the facts and his evaluation of Claimant in March 2016, Dr. Koprivica suggested Claimant sustained 50 percent additional permanent disability to the left shoulder as a result of the April 28, 2015 accident. (Ex.A).

After Dr. Koprivica evaluated Claimant and prepared his report, the parties mutually agreed to take the deposition of Dr. Craig Satterlee. Dr. Satterlee clarified that, contrary to Dr. Koprivica's understanding, Claimant did not sustain a new, acute injury as a result of the April 28, 2015 accident. Specifically, he confirmed that Claimant did not actually have any tearing, partial or full-thickness, of the supraspinatus or rotator cuff. In response to questioning from Claimant's attorney, Dr. Satterlee testified that he specifically examined Claimant's supraspinatus tendon during his surgery and verified that there was no tearing and that it looked okay. (Ex. 2, p. 10/34)

Dr. Satterlee confirmed that, based on the anatomical condition of Claimant's shoulder, a total shoulder replacement was already necessary prior to any event on April 28, 2015. He further explained that the April 28, 2015 incident did not cause any injury that made any surgical procedure reasonably necessary. Dr. Satterlee testified that if he had examined Claimant prior to April 28, 2015, he probably would have advised him to "consider a total shoulder replacement because of the uneven wear on his socket." (Ex. 2, p.7/21) He also testified that the April 28, 2015 accident was not the prevailing factor in causing any of Claimant's medical conditions, because all of the conditions are preexisting. (Employer's 2, p. 6/7).

MNKOI 0000811657

Issued by Division of Workers' Compensation

Employee: Robert Blair

Injury No. 15-028504

Dr. Satterlee explained that, if Claimant had not elected to retire, he would have been off work for three months due to his shoulder replacement surgery. He then would have been authorized to return to work in a light duty capacity for three months before being allowed to return to work, possibly with permanent restrictions. (Ex.2, p. 10/35-36) Dr. Satterlee specified that the April 28, 2015 accident was not the prevailing factor in causing any of Claimant's disability. (Ex. 2, p. 6/19) He explained that Claimant's disability is directly attributable to his preexisting osteoarthritis. (Ex. 2, p. 6/19-20)

During the hearing, Claimant testified he was unaware that Dr. Satterlee confirmed during his surgery that there was no new tear or injury caused by the April 28, 2015 accident. He also testified regarding his current pain, strength, and range of motion. According to Claimant, his pain level is identical to the pain he experienced prior to the April 28, 2015 incident. He also admitted that his strength in the left arm is identical to his strength prior to the April 28, 2015 incident. Finally, Claimant demonstrated for the Court his range of motion post shoulder replacement. Claimant is now able to lift his left arm significantly higher than he could prior to the April 28, 2015. Claimant acknowledged that he has better range of motion now than he did following his 1998 left shoulder injury. Claimant even testified that he does not believe he has sustained any increased disability as a direct result of the April 28, 2015 incident.

Rulings of Law

Based on the substantial competent evidence, the stipulations of the parties, and the application of the Workers' Compensation Law, I make the following Rulings of Law:

Issue 1: Accident

The first issue before the Court is whether an accident occurred on April 28, 2015. Section 287.020.2, RSMo, defines an accident as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift."

Claimant testified that he immediately developed significant pain in his left shoulder after pulling on a chain with all of his force in the course of his employment on April 28, 2015. Technically, Claimant has not produced any evidence that would establish the existence of objective symptoms of an injury. This is expressly required by the statute to find that an accident occurred. Dr. Satterlee testified that pain is a subjective symptom rather than an objective symptom.

Dr. Satterlee did specify that loss of range of motion is an objective symptom of an injury. Although there is no medical evidence to establish if Claimant actually experienced a decrease of range of motion at the time of the April 28, 2015 incident, Claimant testified this was the case. The Court finds that there is sufficient evidence to establish that an accident occurred when Claimant experienced sudden pain and a temporary decrease of range of motion when he pulled on a chain in April 28, 2015.

Issued by Division of Workers' Compensation

Employee: Robert Blair

Injury No. 15-028504

Issue 2: Injury arising out of and in the course of employment

The next issue before the Court is whether the accident in question caused an injury arising out of and in the course of Claimant's employment. An injury is compensable under the Workers' Compensation law "only if the accident is the prevailing factor in causing both the resulting medical condition and disability." 287.020.3 RSMo. Based on a strict reading of this statute, which is required by Section 287.800.1 RSMo, an accident must be the prevailing factor in causing both an injury and the claimant's disability to be compensable.

The evidence for the Court to consider when examining this issue consists of the report of Dr. Koprivica, an occupational medicine doctor; the report of Dr. Strong, an orthopaedic surgeon and shoulder specialist; and the report and testimony of Dr. Satterlee, an orthopaedic surgeon and shoulder specialist who provided treatment for Claimant outside of the workers' compensation system.

Dr. Koprivica concluded the April 28, 2015 accident was the prevailing factor in causing a new injury and Claimant's disability. However, Dr. Koprivica's conclusions are based on several assumptions that are erroneous. First, Dr. Koprivica suggested Claimant sustained at least a new partial-thickness tear of his supraspinatus tendon. However, Dr. Satterlee made it very clear during his deposition that he specifically examined Claimant's supraspinatus tendon during the September 30, 2015 surgical procedure and confirmed there was no tear. Dr. Koprivica also based his conclusion on his assumption that Claimant suffered new loss of strength and new loss of motion as a direct result of the April 28, 2015 injury. However, Claimant specifically confirmed these assumptions were false when he testified during the hearing. In fact, Claimant demonstrated for the Court that his range of motion is better after the April 28, 2015 incident than it was from 1998 through 2015.

The Court finds the opinions of Dr. Strong and Dr. Satterlee more credible than Dr. Koprivika. Drs. Strong and Satterlee are board certified shoulder specialists who have active orthopaedic surgery practices. In addition, Dr. Satterlee actually performed Claimant's surgery and had the benefit of examining Claimant's shoulder intraoperatively. Even without the errors in Dr. Koprivica's report, the expert conclusions of Drs. Strong and Satterlee should be afforded greater weight than the opinion of an occupational medicine doctor given their specialized training and active orthopaedic practices.

Drs. Strong and Satterlee concluded that the April 28, 2015 accident was not the prevailing factor in causing Claimant's medical condition. Dr. Satterlee also specifically testified that the April 28, 2015 accident was not the prevailing factor in causing any of Claimant's disability. (Ex 2, p. 6/19-20) Dr. Satterlee opined the prevailing factor in causing Claimant's disability is his preexisting osteoarthritis. (Ex 2, p. 6/19-20)

Issued by Division of Workers' Compensation

Employee: Robert Blair

Injury No. 15-028504

This Court finds that the conclusions and testimony of Drs. Strong and Satterlee are more persuasive than the report of Dr. Koprivica. The Court finds that Claimant has failed to prove that the April 28, 2015 accident was the prevailing factor in causing his medical condition and disability. Therefore, his injury is not compensable. Accordingly, Claimant is not entitled to any benefits under the Workers' Compensation Law.

Issue 3: Medical Treatment

Claimant did not sustain a compensable injury as a result of the April 28, 2015 accident. The treatment he received was not reasonably necessary to cure or relieve the effects of an injury caused directly by the April 28, 2015 accident. Therefore, the Court finds that Employer and Insurer are not liable for any medical expenses related to Claimant's shoulder replacement surgery and subsequent recovery.

Issues 4 & 5: Temporary Total Disability and Nature and Extent of Disability

Because Claimant failed to prove that he sustained a compensable injury as a result of the April 28, 2015 accident, he is not entitled to any temporary total, temporary partial, or permanent partial disability benefits. In addition, the Court notes that Dr. Satterlee testified that the April 28, 2015 accident was not the prevailing factor in causing any of Claimant's disability. The Court also notes that Claimant testified during the hearing that his current physical condition is better than it was prior to the April 28, 2015 incident. He also testified that he does not believe he has any additional disability now than he had prior to the April 28, 2015 accident. Therefore, the Court finds that Claimant is not entitled to any temporary total, temporary partial, or permanent partial disability benefits.

In summary, the Court finds that Claimant did have an accident in the course of his employment on April 28, 2015. However, Claimant has failed to prove that the accident was the prevailing factor in causing his medical condition and disability. Therefore, the Court finds Claimant did not sustain a compensable injury as a result of the April 28, 2015 accident. Accordingly, Claimant is not entitled to any additional benefits under the Workers' Compensation Law.

I certify that on 6-5-17 I delivered a copy of the foregoing award to the parties to the case. A comparable record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

Angie Heffner

Administrative Law Judge

Division of Workers' Compensation

By