Debbie Shanks v. Heartland Regional Medical Center

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 13-100429

**Employee:** Debbie A. Shanks

**Employer:** Heartland Regional Medical Center

**Insurer:** Heartland Regional Medical Center s/c/o Thomas McGee LC

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

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 (ALJ) 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 ALJ with this supplemental opinion.

The parties asked the ALJ to determine the following issues: (1) was there an injury sustained by employee by accident during the course of her employment; (2) was the accident the prevailing factor in any subsequent injury; (3) notice to the employer; (4) employer's liability for medical care; and (5) temporary total disability benefits. The parties agreed that the ALJ would not decide the issues of permanent partial disability or permanent total disability.

The ALJ determined as follows: (1) employee failed to prove she sustained an injury by accident on or about October 1, 2013, arising out of and in the course of employment; the ALJ acknowledged that he did not need to make additional findings since he found no compensable injury, however, he continued; (2) employee gave proper notice to the employer of the alleged injury; (3) the evidence does support that the employee needs additional treatment; and (4) employee is temporarily totally disabled since October 9, 2013, but employer is not liable for these benefits.

Employee filed a timely application for review to the Labor and Industrial Relations Commission alleging that the ALJ erred in finding: (1) employee did not suffer a physical reaction and sustain an injury arising out of and in the course of her employment, from the October 1, 2013 influenza vaccination; (2) employee failed to establish that as a result of physical reaction to the vaccination, she suffered additional compensable psychological injury; (3) employee was not temporarily and totally disabled as a result of the physical injury resulting in psychological and mental injury, for which the vaccination was the prevailing factor; (4) no additional medical benefits were awarded; and (5) no temporary and total disability benefits were awarded due to the October 1, 2013 injury.

For the reasons stated below, we affirm the award of Administrative Law Judge Robert Miner, to the extent it does not conflict with our supplemental findings and conclusions herein.

Section 287.460.1 RSMo tasks the ALJ in a workers' compensation case to issue an award "together with a statement of the findings of fact." Here, the ALJ did provide a thorough review of the evidence. However, the factual findings are interspersed throughout a 93 page decision that

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Employee: Debbie A. Shanks

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includes lengthy summaries of the evidence (including many pages consisting entirely of block quotes from medical records and testimony). These passages were provided without the benefit of accompanying analysis or commentary from the ALJ as to how he viewed such evidence. The decision also provides an exhaustive recitation of numerous statutory, regulatory, and case law authorities applicable in Missouri Workers' Compensation proceedings.

The courts have strongly cautioned us against issuing or approving these kinds of decisions:

Here, there are literally pages of testimony summarization. There are also pages of substantial discussion of abstract legal theory. The ALJ certainly diligently summarized all of the evidence as an impartial and uncritical scrivener. No doubt it was a useful reference tool for the ALJ's own use in understanding the facts. But because of the absence of findings (that is, the lack of critical evaluation and the failure to draw pertinent inferences from the evidence), the summaries, with all due respect, are of little value to this court. We need to know what the Commission actually found to be operative and significant as it reviewed the testimony.

*Stegman v. Grand River Reg'l Ambulance Dist.,* 274 S.W.3d 529, 532 (Mo. App. 2008) (emphasis added).

In *Stegman*, the court concluded the award, as written, failed to comply with the requirements under § 287.460.1, and that the court was therefore constrained to vacate it and remand the case to the Commission to provide an appropriate statement of the facts. *Id.* at 537. Here, we believe the award ultimately contains findings of fact and conclusions of law sufficient to permit judicial review, should this matter be subject to further appeal. However, because the findings are interspersed throughout lengthy summaries and recitations of the type the courts have specifically cautioned us against, we discern a need to briefly summarize below the operative findings of fact and conclusions of law with respect to the issues identified at the hearing, which findings and conclusions we are hereby affirming and adopting as our own:

**General Background**

At the time of employee's Workers' Compensation hearing on January 24, 2017, she was 45 years old. Employee had achieved a G.E.D. after leaving high school.

Employee worked for employer for nine years, in a full-time position beginning in 2004. Her job title was cardiac monitor technician. Her duties included working 12 hour consecutive shifts, paying close attention to heart monitors of patients to alert medical personnel of any problems, printing read-out strips, and inputting data into a computer. Her work location was in a room away from patients, with 30-40 monitors within view.

The last day employee worked was October 9, 2013. Employee initiated the paperwork for Family Medical Leave in October 2013. She was on approved leave through December 16, 2013, and then resigned later that month. On January 13, 2014, employee filed a Report of an "event" with the employer, making a claim of injury resulting from her flu shot.¹

¹ Neither party addressed the issue of proper notice in their briefs before the Commission. Employer appeared to have abandoned this issue at hearing, *Transcript*, page 13, but compare reference on page 14. In any event, based on our finding with regard to dispositive issue of causation, we deem the issue moot.

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As of January 2014, employee has been receiving Social Security disability payments.

Employee filed her workers' compensation claim on July 22, 2015.

The ALJ found claimant credible, "unless otherwise discussed in this Award." Award page 15. We agree that claimant is credible in relating her impressions of her symptoms and events. However, her credibility is flawed because of memory issues and apparent limited understanding of medical terminology. We note several self-reports to doctors in the medical records, which report treatment, medical events, and diagnoses, which are not borne out by the records, as well as instances that are documented by physicians which employee denied.

On October 1, 2013, while at work around 11:00 a.m., employee received a flu shot, which was offered and encouraged by employer. She did not report any problems with her health on that day and finished her whole work shift ending at 7:00 p.m. Employee expressed her belief during the workers' compensation hearing that the shot was mandatory but she did not explore this belief with the employer or consider if there were options available to her. Employer required its employees to get a flu shot, but allowed for accommodations, as needed. The vaccine was not a live virus. Employee believes the shot has caused a series of conditions and symptoms which she finds disabling. Employee had received the flu immunizations annually for eight years prior to this date with no remarkable symptoms or reactions. In 2012, employee recalled a general achiness for about 5 - 7 days after the shot, but it did not cause her to alter her work or other activities. Employer's workers' compensation manager, Nurse Sarah Duin, (also responsible for the immunization program), researched the vaccine which had been administered. The vaccine batch had not been recalled by the manufacturer. She had not received other reports of reactions from any of the 3,000 vaccinated hospital employees.

The sources consulted by the employee's treating doctors with regard to symptoms of an adverse reaction to a flu vaccination, did not identify the types of symptoms employee described. Usually the site of the injection was a point of reference. There was no evidence that there was anything unusual about employee's injection site. The package insert to the vaccine indicated that reactions to the immunization could include transient malaise, symptoms like the flu, myalgia or localized muscle ache and pain. Transcript page 602-605.

There is extensive medical work-up by several different treating doctors over the course of several months after the date of the immunization. On October 2, 2013, employee left work mid-day for an appointment with Dr. Ronald S. Kempton, M.D., her primary care doctor. The doctor noted that she presented to him with "diffuse nonspecific symptoms," Transcript, page 129; however, the chief complaint was back pain like pins and needles and numbness. She complained of weakness and fatigue in lower extremities, neck pain, headaches and some blurred vision. There was no notation in the doctor's records of a recent flu shot or that employee's injection site was unusual in any way. Employee was not exhibiting or complaining of an inability to walk or any issues.

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with gait. Dr. Kempton's initial diagnosis settled on metabolic syndrome and his treatment discussion focused on diet.

Employee informed employer's representative in October 2013, that she was unable to return to work that week because of medical problems. It is not clear that she indicated at that time that she believed her symptoms were related to the flu shot, although employee believes that she did mention this.

Beginning October 2, 2013 and continuing through March 2015, employee reported various symptoms to her doctors. Employee's hearing testimony was that she began having muscle spasms in her arms and tremors in her hands² sometime in October 2013. After a visit on October 17, 2013, Dr. Byron Thornton noted employee's report to him that she sometimes had trouble forming words that begin with 's', that her brain felt "cloudy," and she was anxious that something ominous was occurring. Transcript, page 139. Among her complaints to doctors were balance problems, right knee pain, headache, rash, occasional dizziness, burning in her feet, memory issues, fatigue, weakness, and sleep disturbance. Many of these complaints are also recorded in employee's medical records prior to October 1, 2013.

Beginning October 17, 2013, she began seeing doctors (other than her primary care doctor) on her workplace campus, who referred her for tests. Several doctors noted employee's unusual gait. In November 2013, Dr. David Ewing, (a neurologist), described it as a "monster-like" gait. Transcript, page 161. All of her doctors found no identifiable physical cause for the gait alteration. Dr. Wendell Bronson (Heartland Arthritis and Osteoporosis Center) opined that it would seem that such an odd gait would require the individual to have good balance in order to remain upright and be able to "pull that off?" Transcript, page 266. Dr. Bronson found no signs of active connective tissue disease