Keith Persley v. The Parking Spot

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 14-079573

**Employee:** Keith Persley

**Employer:** The Parking Spot

**Insurer:** Chubb Indemnity Insurance

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 parties' briefs, and considered the whole record¹, we find that the award of the administrative law judge allowing 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.

The administrative law judge's award precisely sets forth "findings" of fact beginning at page 4. The administrative law judge's rulings of law regarding the legal issues presented, is set forth beginning on page 11 of the award. (§ 287.460.1 RSMo). We adopt the administrative law judge's findings and rulings as our findings of fact and conclusions of law, as supplemented herein.

We agree with the finding of the administrative law judge that Dr. C. Craig Satterlee is credible and most persuasive in his opinion that the work accident was the prevailing factor in causing the work injury, an acute subscapularis tear, and the resulting disability. All doctors agreed that the reverse shoulder replacement surgery was the most appropriate course under the circumstances. We find that the reverse shoulder replacement surgery was reasonably required after the work injury and resulting disability to cure and relieve the effects of the work injury.²

The record adequately supports the reimbursement of medical expenses as reasonable and customary, as ordered by the administrative law judge. Her ruling was based on her consideration of the certified bills and records which were admitted without objection; the credible testimony of employee linking the bills to treatment; and as supported by the record as a whole. Because the record did not establish that employee's obligations for the medical bills identified by the administrative law judge

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¹ In reviewing the record of hearing, we note there are extraneous handwritten marks on some of the exhibits, in particular, on deposition transcripts. The origin of the marks is unclear. They were not made by anyone at the Commission review level.

² Claimant's work accident resulted in a compensable injury and disability. Therefore, by definition, it was established that the accident was the prevailing factor in causing the medical condition and disability. (§ 287.020.3 RSMo). In *Tillotson v. St. Joseph Med. Center*, 347 S.W. 3d 511, 519, (Mo. App. W.D.2011), the employee had preexisting arthritis in her knee and then a work injury causing a tear of her meniscus. Lesser medical treatment was ruled out in the circumstances. In reviewing whether the medical treatment was reasonably required to cure and relieve the effects of the work injury, the Court found that further analysis of a "prevailing factor" was immaterial. The fact that the treatment may also benefit a preexisting condition is irrelevant.

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Injury No.: 14-079573

and been extinguished, she properly ruled them as reimbursable. *Farmer-Cummings v. Pers. Pool of Platte County*, 110 S.W. 3d 818, 823 (Mo. 2013). Employee met his burden of proof to show the claimed medical bills related to and were the product of the injury. Employer makes no showing that the bills are not reasonable. *Martin v. Mid-America Farm Lines, Inc.*, 769 S.W. 2d 105, 111-12 (Mo. 1989).

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

The award and decision of Administrative Law Judge Emily S. Fowler, issued July 6, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 25th day of July 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Keith Persley

Injury No. 14-079573

Dependents: N/A

Employer: The Parking Spot

Insurer: Chubb Indemnity Insurance

Additional Party: N/A

Hearing Date: May 18, 2018

Checked by: ESF/1h

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: September 4, 2014
5. State location where accident occurred or occupational disease was contracted: Kansas City, Platte 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? Yes
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: While in the course and scope of his employment, Employee slipped and fell causing the injury to his left upper extremity at the shoulder.
12. Did accident or occupational disease cause death? No

Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Keith Persley

Injury No: 14-079573

1. Part(s) of body injured by accident or occupational disease: Left upper extremity at the shoulder.

1. Nature and extent of any permanent disability: 35% permanent partial disability to the left upper extremity at the shoulder.

1. Compensation paid to date for temporary total disability: $0.00

1. Value necessary medical aid paid to date by employer/insurer? $1,115.29

1. Value necessary medical aid not furnished by employer/insurer? 75,125.85

1. Employee's average weekly wages: 336.21

1. Weekly compensation rate: $224.14/$224.14

1. Method wages computation: by stipulation

Compensation payable

1. Amount of compensation payable: Employer owes to Employee 35% permanent partial disability to the left upper extremity, which equates to 81.2 weeks at 224.14 per week for a total of 18,200.17. Employer shall also pay to Employee the sum of $2,881.81 as and for temporary total disability compensation.

Employer also owes to Employee the sum of $75,125.85 as and for unpaid medical bills

1. Second Injury Fund liability: NA

1. Future requirements awarded: Employer to provide all medical treatment, which shall cure or relieve the injuries from which Employee suffers to his left upper extremity at the shoulder.

The Court awards attorney fees in the sum of 25% of all benefits herein to Mr. John Christiansen, attorney for Employee.

WC-32-R1 (6-81)

Page 2

Employee: Keith Persley

Injury No. 14-079573

Dependents: N/A

Employer: The Parking Spot

Insurer: Chubb Indemnity Insurance

Additional Party: N/A

Hearing Date: May 18, 2018

Checked by: ESF/1h

On May 18, 2018, the parties appeared for final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The Employee, Keith Persley, appeared in person and was represented by his attorney Mr. John Christiansen. The Employer/Insurer appeared through counsel, Mr. Jeffrey Bloskey.

The parties stipulated to the following:

1. That the employer, The Parking Spot, was an employer operating subject to the provisions of the Missouri Workers' Compensation law on September 4, 2014, and was fully insured by Chubb Indemnity Insurance;
2. That Keith Persley was its Employee and he was working subject to the law in, Kansas City, Platte County, Missouri;
3. That Employee sustained an accident arising out of and in the course of his employment;
4. That Employee notified the Employer of his injuries as required by law and his claim was filed within the time allowed by law;
5. That Employee's average weekly wage was $\ 336.21 making a temporary total and permanent partial disability rate of $\ 224.14;
6. That the Employer has paid $\ 0.00 in temporary total disability benefits and has paid $\ 1,115.29 for medical care.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Keith Persley

Injury No: 14-079573

ISSUES

The issues to be resolved by this hearing are as follows:

1. Whether the Employee sustained an injury by accident arising out of and in the course of employment;
2. Whether the accident is the prevailing factor in causing Employee's injury of September 4, 2014;
3. Whether the Employee is entitled to temporary total disability benefits from May 6, 2015 through August 3, 2015 representing 12 6/7 weeks for temporary total disability benefits totaling $2,881.81;
4. Whether the employer must reimburse the Employee for medical expenses totaling $75,125.85;
5. Whether the employer must provide Employee with additional medical care;
6. Whether Employee suffered any disability and, if so, the nature and extent of the Employee's disability.

FINDINGS

The Employee, Keith Persley, testified in person and offered the following exhibits, all of which were admitted into evidence without objection:

Exhibit A - Dr. Stuckmeyer Independent Medical Evaluation

Exhibit B - Dr. Satterlee Independent Medical Evaluation

Exhibit C - Dr. Stuckmeyer deposition and attached exhibits

Exhibit D - Drisko Fee & Parkins medical records

Exhibit E - Providence Medical Center records

Exhibit F - Encompass medical records

Exhibit G - Urgency Room records

Exhibit H - Diagnostic Imaging Center MRI

Exhibit I - North Kansas City Hospital records

Exhibit J - Drisko Fee & Parkins bills

Exhibit K - NKC bills

Exhibit L - Encompass bills

Exhibit M - Providence Medical Center bills

Exhibit N - Dr. Satterlee deposition and attached exhibits

The Employer did not call any witnesses but offered the following exhibits, all of which were admitted into evidence without objection:

Exhibit 1 - Wage records

Exhibit 2 - Report of Dr. Clymer (60 Day Notice), 6/20/2016

Exhibit 3 - North Kansas City Physical Therapy records

Exhibit 4 - 4/11/2017 deposition of Claimant

Exhibit 5 - 4/12/2018 deposition of Dr. Lingenfelter

WC-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Keith Persley

Injury No: 14-079573

Based on the above exhibits and the testimony of Employee, I make the following findings:

Keith Persley (hereinafter referred to as Employee) is a 69-year-old man who began working for the employer, The Parking Spot, in 2013. His job duties included driving a bus around the airport, picking up passengers and dropping them off. This also required that he lift and carry luggage of the customers, placing it on the bus and then taking it out and placing it in their vehicles. He was also required to take between 35 and 40 cases of water in the bus to the main office. He would have to load these cases up into the bus, then unload them, and stack them at the employer's office. Each package of water weighed between 8-9 pounds. He would stack them in the bus and when he delivered them to the office, he would have to carry and restack them there. He noted that the most he had to lift and carry was generally around 70 pounds. Occasionally he would lift hard cases that weighed more than 100 pounds. Generally, he would be lifting in excess of 50 pounds on a repetitive basis throughout the day. Some of the customers would have only 1 or 2 bags but others would have as many as 8 to 9 bags. As well as loading them onto the bus, at times he was also required to lift these bags and put them in a rack on the bus.

On September 4, 2014, the day of the injury, he was working for the employer. There were two older women on the bus. These women had two large bags and a smaller bag. He had taken one of the larger bags off of the bus and put it in the car trunk. He was informed that the smaller bag had expensive instruments in it and to be careful with it. He went to take the second large bag as well as the small bag to deliver them to the vehicle. As he was stepping down off the bus, he slipped and fell, landing on his left side. As he went down, he dropped the larger bag, taking care to try to set the smaller bag down before he fell. He hit the cement solidly on his left side injuring the left side of his torso and his left leg. The women got off the bus at that time to ask if he was all right. He finished loading their bags with his right arm and tried to finish up his day. He eventually was in so much pain he went home. The pain became so bad that night that he awoke in the middle of the night and ended up going to the emergency room at Providence Medical Center. He had injured his left shoulder. He noted that he did not catch himself as he was going down but hit the cement with his full body weight of approximately 260 pounds. He had never had any problems with his left shoulder prior to this incident. He was capable of lifting heavy objects with his left shoulder, sometimes stacking two cases of water at a time. He never had any problems lifting the luggage or bags of the customers prior to this injury.

The next day his employer sent him to Urgent Care. They took x-rays and gave him a sling. These x-rays revealed degenerative changes of the acromioclavicular joint. There was an ossific density identified superior to the humeral head felt to represent calcification in the soft tissue or possible old evulsion injury. No acute fractures or dislocations were identified. An MRI was taken on September 26, 2014. This revealed a tear with marked retraction of the muscle and tendon of the supraspinatus with fraying distally. Large joint effusion with marked debris and synovial proliferation was identified as chondrocalcinosis. A bone fragment from the proximal humerus was noted within the joint fluid. Also seen was a grossly abnormal proximal humerus with large osteophytes and subchondral erosions noted with superior subluxation of the proximal humerus. Marked degenerative changes were identified in the acromioclavicular joint. No labral tear was identified.

WC-32-R1 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Keith Persley

Injury No: 14-079573

Employee did return to work and tried to do his job with his right hand but apparently could not. The employer told him initially that they were going to review his situation to determine whether or not they would provide medical care. Eventually they determined not to authorize any additional medical care.

After he was told by the employer they would not provide additional medical care, Employee then went to see Dr. Satterlee. Dr. Satterlee noted that Employee fell directly onto his left shoulder, and since that fall, was having significant pain and difficulties in that left shoulder. He also noted that Employee's right shoulder was becoming symptomatic since he was unable to use his left arm at work. He also noted cervical complaints as well. Dr. Satterlee noted that Employee had no problems with his left shoulder prior to this fall. Since the fall he has had severe pain and is unable to sleep and unable to raise his arm. He noted that the plane x-rays did reveal preexisting osteoarthritis of the glenohumeral joint, and he felt that clinically the patient had a massive tear of the supraspinatus and subscapularis tendon with probable tearing of the infraspinatus musculature. He reviewed Employee's options, which included live with the situation, physical therapy, or surgical intervention. The surgical options he offered included rotator cuff repair, humeral head replacement, or reverse total shoulder replacement. Ultimately, Dr. Satterlee performed surgery on Employee on May 6, 2015, by doing a reverse total shoulder replacement.

Employee testified that the current problems he suffers include pain in his left shoulder. At times he feels a tightness in the shoulder. There are times when the motion is better than other times. There are times when he cannot do anything behind his neck or behind his back, due to the tightness. He noted that there is weakness in the shoulder and there are some things he cannot do. He noted that pushing and lifting things are difficult. Sometimes he forgets these limitations until he tries to do something and then realizes he cannot do them. Some activities he can no longer do include playing tennis or shooting a basketball. He can do rebounds for his grandchildren after the ball hits the ground. He will catch the ball and then toss it to the grandchildren. He does not play racquetball for fear of running into the wall. His left shoulder bothers him especially around times it is going to rain and he has more problems with pain and discomfort throughout the winter months. The pain does get worse if he uses the arm too much. If he lays in one position too long on the shoulder, it will cause pain. He noted he does experience tingling and tightness in the left shoulder and numbness in the ring and pinky fingers that he never had before. He has difficulty lifting things overhead or any overhead activities. He has a problem reaching up in a cabinet to get a glass down and needs help from others to do overhead tasks. He takes over-the-counter medications such as Advil or Tylenol for pain depending on his activity level. He does take these on a weekly basis. He also noted he does not work out like he used to.

On cross-examination he reviewed how the accident occurred. He was quite certain that during the accident when he fell, he landed on his left side facing forwards toward the front of the vehicle. The employer's attorney reviewed for him the different medical examinations he had with Dr. Cricksfield, Dr. Satterlee, and Dr. Clymer, and each of these he noted that he did not express problems with the shoulders and that he was doing well. Employee noted that he has been an athlete all his life and he rarely complains about pain. If he does have pain that is extremely bad, he will seek help but has never had that kind of thing since this injury was

WC-32-R1 (6-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Keith Persley

Injury No: 14-079573

repaired. He was asked about comments made during physical therapy about lifting 60-pound bags of dirt. He noted that he never lifted 60-pound bags of dirt but was joking with the physical therapists about juggling 40-pound bags of dirt. He reiterated that he never lifted 40- or 50-pound bags of dirt since the accident. He admitted that no physician has told him that the numbness he feels in his fingers is due to the shoulder. He confirmed that the pain relievers he takes are only for his left shoulder.

In Dr. Satterlee's independent medical evaluation, he notes that although Employee did have an acute on chronic rotator cuff tear combined with preexisting arthritis, he felt the fall was indeed the straw that broke the camel's back. He determined that the medical causation and prevailing factor was the fall, which necessitated Employee needing further treatment including surgery. He noted that for Employee's pre-existing osteoarthritis the eventual treatment would have been shoulder replacement but in light of the massive tear, probably a reverse shoulder replacement would be necessitated. He stated clearly, however, that the only treatment for the condition that he sustained as a result of the fall was a reverse left shoulder replacement. He felt Employee reached maximum medical improvement on March 30, 2017. He felt that Employee was having no great issues and that the shoulder replacement was in good positioning. He believed that the survival of a shoulder replacement is about 85% to 90% at 15 years at which time Employee should come in for a revision. Dr. Satterlee noted that Employee was temporarily totally disabled from work from approximately May 6, 2015 through August 3, 2015. He noted that the course of treatment was reasonable and necessary and the medical bills that he is aware of were reasonable and necessary for the area. He reiterated that he believed the work accident was the prevailing factor in causing Employee to come to surgery for a reverse shoulder replacement. Dr. Satterlee's deposition was also admitted and his testimony therein corresponded with his report.

Employee also offered the rating report and deposition of Dr. Stuckmeyer. In his report, Dr. Stuckmeyer notes the medical records he reviewed. In his examination of Employee, he noted tenderness in the subacromial space and glenohumeral joint. He noted Employee lacked 30° of external rotation and could internally rotate only to the level of the wallet. He also noted weakness with resisted abduction. In conclusion, he noted that Employee did have preexisting, although completely asymptomatic, underlying left shoulder rotator cuff pathology. That being stated, he noted that the Employee was totally functioning without restrictions in what he would determine as a heavy labor category, capable of lifting luggage for individuals traveling at the Kansas City Airport. He determined within a reasonable degree of medical certainty that as a direct, proximate and prevailing factor of the accident occurring on September 4, 2014, that Employee did indeed sustain a traumatic acute event involving the left shoulder. He presented immediately with symptoms of pain and dysfunction and limitations in range of motion in regard to the left shoulder. He did not have these symptoms prior to the September 4 injury occurring. He opined that within a reasonable degree of medical certainty that to cure and relieve the significant left shoulder symptoms that resulted from the workplace fall on September 4, 2014, that a reverse total shoulder replacement as performed by Dr. Satterlee should be deemed compensable. He reiterated that as a direct, proximate, and prevailing factor of the accident

1 However, in reading the physical therapy notes it appears he was indeed joking considering the follow up comments regarding weakness and pain in his shoulder and hand. Considering the findings by the therapist as to Employee's limitations it is clear he would have been unable to perform such tasks.

WC-32-R1 (6-81)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Keith Persley

Injury No: 14-079573

occurring on September 4, 2014, there was an acute traumatic event leading to significant symptoms with treatment culminating in the reverse left shoulder replacement. He believes and is in agreement with Dr. Lingenfelter as well as Dr. Satterlee that proceeding with a simple rotator cuff repair would be deemed inappropriate and fall below the standard of care. He therefore determined that to cure and relieve the symptoms in regard to the left shoulder, the reverse left total shoulder replacement should be deemed necessary. He ultimately determined that Employee suffered a 60% permanent partial disability to the left shoulder.

Employer offered the rating report of Dr. David Clymer. Dr. Clymer reviewed the medical records and reports and did a physical examination of Employee. In examining the left shoulder, he felt that Employee had good range of motion without significant discomfort. He felt the shoulder was stable and that he had good strength in flexion and abduction with surprisingly little discomfort. In the review of the MRI on September 26, 2014, Dr. Clymer notes that Employee had rather severe significant longstanding chronic degenerative problems involving the left shoulder. These included evidence of chronic tearing of most of the rotator cuff with significant retraction and muscle atrophy as well as significant degenerative change on both the glenohumeral joint and the acromioclavicular joint. He was surprised that Employee was able to function as well as Employee had described without significant subjective symptoms prior to the workplace event. He felt that the workplace event did probably cause some aggravation to this preexisting shoulder condition, possibly causing some additional rotator cuff tearing for some additional joint surface damage. He also agreed with Dr. Lingenfelter and Dr. Satterlee that the massive of chronic degenerative problems would probably not respond well to a simple rotator cuff repair. He felt that the reverse total shoulder arthroplasty was probably the most reasonable approach and that Employee has had an exceptionally good result with range of motion, strength and comfort better than he would expect with most similar shoulder reconstruction. Dr. Clymer felt that Employee suffered a 20% permanent partial disability to left upper extremity at the level of the shoulder. He determined, however, that 15% of the disability is a result of the chronic preexisting progressive degenerative problems and 5% was the result of the additional aggravation, which was caused by the workplace event.

Dr. Clymer felt that the issue of causation was certainly difficult as most of the radiographic studies suggested there was severe chronic preexisting degenerative problems involving the joint and rotator cuff. He was surprised that Employee was able to function as well as he describes with these preexisting problems prior to the workplace event. He therefore determined that the workplace event probably resulted in some additional injuries to the left shoulder and did cause significant aggravation to these preexisting problems. He felt, however, that taking all these issues into consideration to a reasonable degree of medical certainty, the primary and prevailing factor with regard to Employee's shoulder problems were the severe degenerative changes rather than the workplace event. He again states that he believes that the workplace event did cause some significant additional aggravation and injury to his shoulder. However, he does not feel that it was the primary and prevailing factor with regard to his need for left total shoulder arthroplasty. He feels that Employee had an exceptionally good result following surgery and did not anticipate the need for any additional medical treatment in the future with regard to the left shoulder. He placed Employee on restrictions of avoiding repetitive lifting over shoulder height and avoiding lifting of more than 25 pounds.

WC-32-RI (6-81)

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Keith Persley

Injury No: 14-079573

On November 12, 2014, Employee was seen in consultation with Dr. Erich Lingenfelter. Dr. Lingenfelter commented that the MRI scan obtained three weeks after the injury revealed a grade three fatty degeneration of the supraspinatus with significant fatty degeneration of the infraspinatus. He felt that it represented a gradual long-term progress of process as opposed to atrophy, which could occur very quickly. He felt that Dr. Satterlee had recommended an appropriate treatment and also stated that he was in agreement that this represented an acute on chronic condition, basically the straw that broke the camel's back. Dr. Lingenfelter also went on to say that to fix the acute problem, which was a rotator cuff retear, in his opinion would be unsuccessful. He felt that the Employee had evidence of pseudo paralysis which he felt was not reversible and determined that a reverse total shoulder replacement was warranted. He ultimately determined Employee was having symptoms consistent with a chronic rotator cuff tear with arthropathy and did not believe it was work related.

The first issue to be determined herein is whether the Employee sustained an injury by accident arising out of and in the course of his employment. Employee's testimony, which this Court determines is credible, shows that Employee was working on September 4, 2014, when he was attempting to carry customer luggage off of the bus that he was driving. As he stepped down, he missed a step, fell and landed on his left shoulder. He states he felt immediate pain and continued his workday by using his other arm to do his work duties. He ultimately went to the emergency room that evening and immediately reported his injury to his employer the next day. It is clear to this Court that Employee sustained an injury by accident arising out of and in the course of his employment. His job duties required he lift and carry luggage and that he step in and out of his vehicle constantly throughout the day. It was the misstep off of the bus, falling, and then landing on his left shoulder which caused the injury. This injury is clearly work related. The work he was doing was not something that he or other persons would normally be exposed to in the normal course of their life and daily activity. He was required to do these duties by his employer as part of his job. This Court finds that Employee sustained an injury arising out of and in the course of his employment.

The next issue to be determined is whether the accident is the prevailing factor in Employee's injury of September 4, 2014. It is clear that Employee fell and landed on his shoulder causing an injury. After initial medical care and an MRI, it is noted that Employee's shoulder contained numerous preexisting conditions. These conditions included a tear with a retraction of the muscle and tendon of the supraspinatus with fraying distally. Large joint effusion with marked debris and synovial proliferation was identified as chondrocalcinosis. A bone fragment from the proximal humerus was noted within the joint fluid. Also seen was a grossly abnormal proximal humerus with large osteophytes and subchondral erosions noted with superior subluxation of the proximal humerus. Marked degenerative changes were identified in the acromioclavicular joint. The parties have offered differing opinions with regard to how much of this was new injury versus an accumulation of old injury. The accident is the prevailing factor in the additional injury to employee's shoulder of the tearing of the subscapularis. All the doctors agree that some injury occurred due to his fall. Most agree that there was a great deal of preexisting problems. Dr. Satterlee explained it best when he noted in his deposition: "I think the pre-existing conditions were his arthritis and the massive chronic tear of his supraspinatus and infraspinatus and then the subsequent fall with an acute tear of the subscapularis which then put him over the breaking point for loss of function." He again noted that this was "the straw that broke the camel's back". He explains this by saying "the humeral head when you raise your arm

WC-32-R1 (6-81)

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Keith Persley

Injury No: 14-079573

is rotated down into the socket by the rotator cuff muscles. They help to rotate and raise the arm. And if enough of the muscle in the tendon, that is what hooks the muscle into the bone, is still intact, you can still generate enough force to rotate the ball into the socket. We call that a force couple. It's a biomechanical term. So if you had enough of the force couple present to rotate the ball into the socket, then the deltoid which is the prime mover of the shoulder, can raise the arm overhead. And I think that once the subscapularis was torn, he lost that force couple which then led to his severe loss of function of the shoulder and necessitated the shoulder replacement."

Therefore, with regard to whether the accident is the prevailing factor in Employee's injury of September 4, 2014, it is clear by this medical testimony that upon Employee's fall he sustained a subscapularis tear and therefore the accident was the prevailing factor in the injury of Employee's subscapularis.

Part and parcel of this issue is whether the need for medical care of a reverse shoulder replacement was the obligation of the employer considering Employee's overall shoulder condition. Clearly Employee suffered from a great deal of preexisting problems to his left shoulder. In the depositions of the various physicians, the employer is asking the physicians whether the accident was the prevailing factor in the requirement for the Employee to undergo a total reverse shoulder replacement. However, this is not the proper examination of whether medical care is required to cure or relieve an individual from an injury sustained in the course and scope of his employment. Pursuant to Tillotson v. St. Joseph Medical Center, 347 S.W.3rd 511 (Mo. App.W.D.2011), the courts have determined that the injury need not be the prevailing factor in the requirement for medical care but merely that the medical care necessary to cure and relieve the injury naturally flows from the injury. In this case, Employee's preexisting conditions to his left shoulder were clearly serious. He had arthritis as well as tears of his supraspinatus as well as his infraspinatus tendons. He then had an accident which caused a tearing of his subscapularis tendon. However, it is clear by all the doctors' testimony that simply repairing the subscapularis tendon would not fix Employee's problem.

In Tillotson, the Court stated, "Section 287.140.1 provides that 'in addition to all other compensation paid to the employee, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve the effects of the injury.' (Emphasis added.) Section 287.140.1 makes no reference to a 'prevailing factor' test and, as previously noted, presumes of necessity that the presence of a compensable injury under section 287.020.3(1) (which does require application of the prevailing factor test) has already been demonstrated. The legal standard for determining an employer's obligation to afford medical care is clearly and plainly articulated in section 287.140.1 as whether the treatment is reasonably required to cure and relieve the effects of the injury. This was not the legal standard employed by the Commission. Instead of determining whether Tillotson established that a total knee replacement was reasonably required to cure and relieve the effects of her torn lateral meniscus, the Commission required Tillotson to prove that her torn lateral meniscus was the 'prevailing factor' in requiring a total knee replacement. The Commission thus imposed a heightened burden on Tillotson beyond that described in section 287.140.1."

As in Tillotson, the medical care required to cure and relieve Employee from the injury he suffered was more than a repair of the subscapularis. A reverse total reverse shoulder replacement was necessary. Dr. Satterlee, Dr. Clymer, Dr. Lingenfelter and Dr. Stuckmeyer all

WC-32-R1 (6-81)

Page 10

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Keith Persley

Injury No: 14-079573

concur that simply repairing the subscapularis would not cure or relieve the effects of the injury Employee sustained in his September 4, 2014 accident.

The next issue to be determined herein is whether the Employee is entitled to temporary total disability benefits from May 6, 2015 through August 3, 2015 representing 12 6/7 weeks of temporary total disability totaling $2,881.81. This Court has found that Employee did sustain an injury by accident arising out of and in the course of his employment and further that the accident is the prevailing factor in Employee's injury. The need for medical care including a total reverse shoulder replacement was necessary to cure and relieve the effects of the injury Employee suffered due to his accident on September 4, 2014. It is further clear that there would be time periods when Employee was unable to return to work during the course of his medical care. He would therefore be owed temporary total disability benefits. The only expert to comment on the need for temporary total disability was Dr. Satterlee. In his report, he noted specifically that Employee was temporarily and totally disabled from May 6, 2015 through August 3, 2015. This Court finds that Dr. Satterlee's determination is reasonable and sustained by the medical evidence. Wherefore, this Court finds that Employee is owed temporary total disability benefits from May 6, 2015 through August 3, 2015 in the sum of $2,881.81.

The next issue to be determined by this Court is whether the employer must reimburse the Employee for medical expenses. Having found that Employee sustained an injury by accident arising out of and in the course of his employment, and that the accident is the prevailing factor in Employee's injury, this Court finds that Employee was in need of medical care. The medical bills from Drisko, Fee and Parkins, North Kansas City Hospital, Providence Medical Center and Encompass Hickman Mills Clinic were submitted without objection for review by this Court. Dr. Satterlee noted in his deposition that his treatment was reasonable and necessary to cure and relieve Employee's injury. Further he stated that his bills related to Employee's treatment were reasonable and customary for the Kansas City area in terms of medical treatment. In reviewing these bills and the medical records, it is clear that the fees charged by Drisko, Fee and Parkins, North Kansas City Hospital and Providence Hospital relate to the care of Employee's left shoulder injury. In reviewing the medical bills from Encompass Hickman Mills Clinic, it is clear that these are either unrelated to his left shoulder or are so combined with other medical care unrelated to his shoulder as to make it impossible to differentiate them. Therefore, this Court finds the Encompass Hickman Mills Clinic medical bills are not compensable herein and shall not be paid by the employer.

Employee's testimony included the facts that his employer denied any further authorized treatment. It was at that time he went to Dr. Satterlee. Dr. Satterlee was his primary treating physician for the shoulder injury. Dr. Satterlee performed a reverse total shoulder replacement at North Kansas City Hospital. The surgery helped him. After the surgery he went to both Providence Hospital and North Kansas City Hospital for physical therapy. When he was denied treatment by the employer and told his claim would be denied from that point forward he obtained healthcare through his private health insurance carrier who paid a large portion of his bills. During his testimony he was asked "Did you incur bills as part of that." He answered "Yes". He further testified that the health insurance paid much of his medical bills. He then testified to what bills were still due and owing. He stated he is still being billed for the bills incurred with Drisko, Fee and Parkins as well as North Kansas City Hospital. On cross-

WC-32-R1 (6-81)

Page 11

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Keith Persley

Injury No: 14-079573

examination the employer's attorney reviewed some of the bills having him note that there was a zero balance on one of them. Employee had not reviewed that particular bill prior to hearing. Employee stated he was confused about what amount was owed to which health care provider. He did stated that some of these bills had been sent to collection.

In *Cook v. Missouri Highway and Transportation Commission*, 500 S.W. 3d 917 (Mo. App. S.D. 2016) the court stated that pursuant to § 287.140 "an employer is to provide an employee with such care 'as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.'" *Maness v. City of De Soto*, 421 S.W.3d 532, 544 (Mo. App. 2014). A sufficient factual basis exists for the Commission to award compensation for past medical expenses when: (1) the claimant introduces his or her medical bills into evidence; (2) the claimant testifies that the bills are related to and the product of his or her work injury; and (3) "the bills relate to the professional services rendered as shown by the medical records in evidence." *Martin v. Mid-America Farm Lines, Inc.*, 769 S.W.2d 105, 111-12 (Mo. banc 1989), superseded by statute on other grounds by § 287.160.3; *Maness*, 421 S.W.3d at 544. When these three elements are met, the burden shifts to the employer to prove some reason the award of past medical expenses is inappropriate." Employee has fulfilled the first requirement by placing the bills and medical records into evidence. These bills and medical records were not objected to and were admitted into evidence by the Court.

The second requirement involves Employee's testimony. He testified that he was treated by Dr. Satterlee (those medical records and bills are in evidence). He testified that Dr. Satterlee performed surgery (those medical records and bills from North Kansas City Hospital are in evidence). He testified that he had physical therapy at Providence and North Kansas City Hospital (the medical records and bills for therapy at both North Kansas City and Providence are in evidence). The courts have stated that employees generally are not experts with regard to insurance and medical bills. Although Employee's testimony on direct was centered around the bills that he still owed it is clear from that testimony that he was billed for the treatment by Dr. Satterlee, North Kansas City Hospital and Providence Hospital and that the bills were paid for by his personal health insurance company. He was asked if he incurred medical bills due to his treatment for his left shoulder, he said he had. In fact it is made clear on cross-examination that he still has some outstanding bills that were not paid by the insurance company and which have been turned over to collection. Further he had Dr. Satterlee testify to the reasonableness and necessity in relation to his treatment. Based upon the testimony that Employee has given regarding the fact that bills were incurred for treatment to his left shoulder as a result of the injuries he sustained in his accident of September 4, 2014, and that he still owes balances on them this, Court determines that the second requirement has been fulfilled.

The third requirement is fulfilled as the Court has reviewed the bills and medical records and the dates and treatment expressed in the medical records correspond with the dates and treatment expressed in the bills. The bills therefore relate to the professional services rendered as shown by the medical records in evidence.

Some of these bills presented were paid by Employee's personal insurance company Blue Cross/Blue Shield. However the employer has offered no evidence that shows that Blue Cross/Blue Shield would not come back against Employee for the monies they have paid on his

WC-32-R1 (6-81)

Page 12

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Keith Persley

Injury No: 14-079573

behalf for the care that he received for this compensable injury. They have not shown that an award of these past medical expenses is inappropriate in any way. There is in evidence, noted on the bill from Drisko, Fee and Parkins of $137.51 that was written off as bad debt. It can be assumed that this amount is no longer due and owing. Since there is no evidence from the employer that the Blue Cross/Blue Shield will not come back to Employee for reimbursement of the bills it paid on his behalf for what should have been paid by the employer under workers' compensation, this Court determines that the bills from Drisko, Fee and Parkins of $9,791.99², North Kansas City Hospital of 58,666.61 and Providence Hospital of 6,667.25 totaling $75,125.85 are related to Employee's left shoulder injury of September 4, 2014. This Court finds that the treatment was reasonable and necessary to cure and relieve the injury Employee sustained on September 4, 2014. Employee showed that he incurred these bills and that they relate to the professional services rendered. Employer has failed to carry its burden of proof that any payment of these past medical bills is inappropriate. Therefore, the sum of $75,125.85 is due and owing from the employer to Employee. Wherefore, this Court orders employer to reimburse Employee the sum of $75,125.85 as and for the cost of medical care to cure and relieve the injury he suffered on September 4, 2014.

The next issue to be determined is whether employer must provide Employee with additional medical care. Dr. Clymer determined that Employee most likely would not need additional medical care as he had such a brilliant result from Dr. Satterlee. However, Dr. Satterlee believes that Employee may in fact need a replacement of the reverse total shoulder replacement at some point in his lifetime. He noted that this could be in approximately 15 years. This would place Employee at the age of 84. Since we cannot determine how long Employee will survive, this Court will order that medical remain open for any medical care that may be necessary to cure or relieve the symptoms from Employee's injury of September 4, 2014. This may include a replacement of the current shoulder replacement.

The final issue to be determined herein is whether the Employee suffered any disability and if so the nature and extent of Employee's disability. Prior to the accident Employee was able to fully participate in all of his job duties with the employer. This included lifting and carrying luggage weighing anywhere from 40 to as much as 100 pounds. He noted that he rarely picked up less than 50 pounds at a time. He was also required to lift and carry up to 40 cases of water placing them in his bus and then taking them out and placing them in his employer's offices. This was on a daily basis. After this accident Employee used his right arm as he could not do the lifting and carrying with his left arm any longer. He ultimately was unable to continue employment with the employer due to his physical problems. Even after a total shoulder replacement, Employee continues to suffer from problems with his left shoulder. These problems include pain in his shoulder as well as limitation of motion. He stated that he has difficulty in reaching up to take glasses out of cabinets. He cannot lift any weight overhead. He has difficulty doing activities that he previously did including playing tennis or basketball or racket ball. Although Employee has had a significant recovery from this injury, it is still clearly a disability to his left shoulder. Dr. Stuckmeyer believes that Employee suffered a 60% permanent partial disability to the left upper extremity. Dr. Clymer believed that Employee suffered a 20% permanent partial disability to the shoulder with 15% being preexisting therefore making it a 5%

2 This amount is the total of 11,529.50 less the 1,600.00 charged for the IME and depositions as well as the amount of $137.51 written off as bad debt.

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Page 13

disability. After reviewing the evidence herein, this Court finds that Employee in fact suffers a 35% permanent partial disability to the left upper extremity at the shoulder. This equates to 81.2 weeks at a rate of 224.14 per week equating to 18,200.17.

Wherefore this Court orders employer to pay to Employee 35% permanent partial disability to the left upper extremity at the shoulder equaling 18,200.17. Employer shall also pay to Employee the sum of 75,125.85 as and for unpaid medical bills. The employer shall also pay to Employee the sum of $2,881.81 as and for temporary total disability compensation. Finally, the employer shall provide Employee with all future medical care that shall cure or relieve Employee from the injuries he suffered to his left upper extremity on September 4, 2014. If during the time of this medical care Employee is deemed temporarily totally disabled and unable to maintain employment, employer shall also provide to Employee temporary total disability benefits for that time period.

Finally, this Court awards to Employee's attorney, John Christiansen, 25% of all benefits awarded herein.

I certify that on **July 6, 2018**, I delivered a copy of the foregoing award to the parties to the case. A complete 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.

By ___________________________


Emily S. Fowler

Administrative Law Judge

Division of Workers' Compensation