Valerie Williams v. Lutheran Senior Services

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

**Injury No.:** 18-001826

**Employee:** Valerie Williams

**Employer:** Lutheran Senior Services

**Insurer:** Safety National Casualty

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, listened to the parties' arguments, 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.

We substitute the administrative law judge's final two paragraphs under the heading "MEDICAL CAUSATION," located at page 8, of the Award, beginning at "The Claimant has been diagnosed with glenhumeral arthritis," with the following:

While there was an unexpected traumatic event when employee fell in the parking lot designated for employees on January 15, 2018, the injury which is the subject of employee's workers' compensation claim (left shoulder) was not caused by this specific event during a single work shift.

Furthermore, an injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability." § 287.020.3(1) RSMo.

Dr. Jason Paul Young diagnosed claimant with glenhumeral and acromial clavicular joint arthritis and chronic rotator cuff tendinopathy. Dr. Young credibly opined that the shoulder condition was not directly related to the work incident and that this incident was not the prevailing factor causing any injury or disability to the shoulder.

We so find.

All remaining issues are moot.

1 The heading MEDICAL CAUSATION begins on page 7 and continues onto page 8. The administrative law judge's award lists issues on page 3, numbered 1-5. The headings under the CONCLUSIONS OF LAW, beginning at page 6, appear to be intended to align with the listed numbered issues, although the headings are inconsistently numbered. The issue of past medical payments was not listed as a distinct issue for hearing, (Transcript, page 2), although employer raises this issue with the Commission.

2 Refer to footnote 1 regarding remaining issues. The parties stipulated that employer has paid $3,705.40 to medical providers. Transcript, page 2.

- 2 -

**Decision**

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

The award and decision of Administrative Law Judge Marvin O. Teer, Jr. is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this **10th** day of January 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

*[Signature]*

Robert Cornejo, Chairman

*[Signature]*

Reid K. Forrester, Member

*[Signature]*

Curtis E. Chick, Jr., Member

Attest:

*[Signature]*

Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 18-001826

AWARD

Employee: Valerie Williams

Dependents: N/A

Employer: Lutheran Senior Services

Additional Party: N/A

Insurer: Safety National Casualty c/o Broadspire Services, Inc.

Hearing Date: January 7, 2019

Injury No.: 18-001826

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MOT;sh

FINDINGS OF FACT AND RULINGS OF LAW

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? No

1. Date of accident or onset of occupational disease: N/A

1. State location where accident occurred or occupational disease was contracted: N/A

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 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: N/A

1. Did accident or occupational disease cause death? No

Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: N/A

1. Nature and extent of any permanent disability: N/A

1. Compensation paid to-date for temporary disability: None

1. Value necessary medical aid paid to date by employer/insurer? None

Revised Form 31 (3/97)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 18-001826

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: 805.42

1. Weekly compensation rate: TTD: 536.95; PPD: 483.48

1. Method wages computation: Stipulated

**COMPENSATION PAYABLE**

1. Amount of compensation payable: None

1. Second Injury Fund liability: N/A

TOTAL: 0.00

1. Future requirements awarded: None

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Kari S. Peterson

Revised Form 21 (3/97)

Page 2

**Insurer:** Safety National Casualty c/o Braodspire Services, Inc. Checked by: MOT;sh

A hearing in this matter was held on January 7, 2019, before the Division of Worker's Compensation in the St. Louis office before Administrative Law Judge Marvin O. Teer, Jr. The Claimant, Valerie Williams ("Claimant") was represented by Attorney Kari S. Peterson. The Employer/Insurer was represented by Attorney David Reynolds.

Claimant's Exhibits:

1. Claim for Compensation
2. Request for Hardship Hearing
3. Medical records of Washington University Physicians.
4. Deposition of Employer's representative Michael Rasso and exhibits to the same.

Employer/Insurer's Exhibits:

A. Medical records from Barnes Care

B. Metro Imaging

C. Deposition of Dr. Young and exhibits to the same.

D. Payment Ledger

1. Accident.
2. Arising out of and in the course of employment.
3. Medical causation.
4. Future medical.
5. PPD.

1. The Employer was subject to the Missouri Workers' Compensation Act and was required to carry insurance.
2. The Employer was fully insured by Safety National Casualty c/o Braodspire Services, Inc.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 18-001826

Valerie Williams (hereinafter referred to as Claimant) was 66 year old at the time of hearing. On January 15, 2018, Claimant was employed by Lutheran Senior Services as a social worker. On January 15, 2018, Claimant got to work around 7:30 a.m. and parked in the parking lot behind the building. The parking lot is gated and is reserved for employees and tenants, not for the public. After she parked her car, she attempted to walk to the building. She went approximately ten steps before falling on ice in the lot. As she fell the Claimant extended her left arm out from her body to brace herself, however, was unable to stop, struck her hand on the ground, then fell onto her left shoulder and left knee.

The fall was witnessed by her Maintenance Supervisor and by a man who worked for the vending machine company that had a machine in the building. Claimant attempted to get up, however, ended up falling again. When she fell the second time, she again put her left arm out to brace herself, but ended up striking her hand with her arm outstretched, then falling onto her left shoulder. The vending machine employee helped Claimant up, and then made her way inside the building where the she immediately reported the incident.

Claimant testified she was initially told to take Tylenol and use ice, however, it did not help her shoulder pain. She was then told to go to Barnes Care. At Barnes Care Claimant was seen by a nurse practitioner. The providers at Barnes Care started Claimant in physical therapy. Despite Claimant doing her exercises, her left shoulder got worse, and became very stiff and painful, throbbing and waking her up at night. The nurse practitioner then recommended an MRI and follow up with a specialist.

The MRI was done on February 7, 2018. The radiologist's impression was arthritic changes and tendinopathy with tears of infraspinatus and supraspinatus tendons. The Employer/Insurer then sent Claimant to Dr. Jason Young.

WIC-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 18-001826

**Dr. Jason Paul Young, M.D.**

Dr. Young noted Claimant's left shoulder had range of motion difficulties, mild crepitus, weakness and positive testing. He opined the MRI was mildly inhibited by motion artifact, however, stated it confirmed severe glenohumeral arthropathy with global loss of cartilage and cystic changes. He opined there was no "clearly identified subscapularis tear." On cross-examination, Dr. Young was asked about the radiologist's finding on the MRI of a small undersurface tear at the insertion of the infraspinatus tendon and he admitted he did not necessarily disagree with said diagnosis.

Dr. Young opined, "The work incident as described on January 15, 2018, is not the primary and prevailing causing the shoulder symptoms. The patient has a severely arthritic shoulder and has likely exacerbated the underlying symptoms of the severe arthrosis. This incident of a direct fall onto the shoulder has caused a flare-up of the underlying symptoms related to her chronic underlying condition, which is severe arthritis. There is no acute internal derangement as a direct result of this fall." Dr. Young opined physical therapy would not help, and instead, would make the Claimant's symptoms worse due to increased motion in the arthritic joint. He stated "[A]s it pertains to treatment for this severe shoulder arthritis, typically these do not respond to physical therapy and in fact physical therapy may often times makes (sic) the symptoms a bit worse due to the increase motion in an already arthritic joint." In fact, the Claimant testified that the physical therapy performed at Barnes Care increased her shoulder complaints and made them worse. While Dr. Young recommended further treatment for the Claimant, including steroid injections and ultimately, a shoulder replacement. He additionally noted again the injury was not directly related to the work incident.

WC-32-R1 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 18-001826

Dr. Rick W. Wright, M.D.

Claimant additionally went to Dr. Wright, at Washington University, on her own. Dr. Wright had previously seen Claimant for other issues. He had no notation of prior shoulder complaints and Claimant testified that prior to the January 15, 2018, fall she had no previous shoulder complaints. Dr. Wright reviewed the MRI, took x-rays and examined Claimant. Dr. Wright's impression was left shoulder glenohumeral arthritis and left shoulder full-thickness rotator cuff tear. He stated she had an unusual combination of severe glenohumeral arthritis with a small full-thickness rotator cuff tear. He injected her shoulder and referred the Claimant to Dr. Aleem.

Dr. Aleem

Claimant saw Dr. Aleem on June 11, 2018, and told him the subacromial injection was beginning to wear off. Dr. Aleem noted reduced range of motion, crepitus and pain during testing. Dr. Aleem also reviewed the MRI and stated he did not see a full-thickness rotator cuff tear. He opined she would be a good candidate for a total shoulder replacement. Due to scheduling issues, the Claimant had to have more injections before she could get in for surgery. She had one injection on July 16, 2018, and testified another injection was done by Dr. Aleem in November of 2018. She testified her shoulder replacement surgery had been scheduled, however, she had to cancel the same due to an urgent personal health issue, which required her to have urgent surgery. She testified she was in the process of rescheduling her shoulder replacement surgery.

CONCLUSIONS OF LAW

1. ACCIDENT

The word "accident" as used in this chapter shall, mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence in producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor. R.S.Mo. §287.010.2.

WC-32-R1 (6-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 18-001826

Not only must there be "an unexpected traumatic event or unusual strain identifiable by a time and place of occurrence", it "must also produce, at the time objective symptoms of an injury caused by a specific event." §287.020.2. The definition goes on to state an injury is not compensable "because work was a triggering or precipitating factor." The Act also defines injury. The language of the Act intertwines "injury" with "accident" such that, in this case, it is impossible to find an accident occurred under the Act, when an injury under the Act did not also occur.

The Employer/Insurer's testifying expert, Dr. Young, opined Claimant's shoulder symptoms were not caused by the fall, but were instead caused by her arthritic condition that had been triggered by the fall. In order to come under the Act, it is not sufficient that the event simply aggravates a preexisting condition. See *Johnson v. Indiana Western Express, Inc.*, 281 S.W.3d 885 (Mo.App. 2009). In his deposition, Dr. Young testified "[t]he January 15, 2018 incident didn't cause her condition". Dr. Young emphatically opined there was not a work related injury.

In this case, there was an unexpected traumatic event. However, the evidence shows a work related injury, under the Act, did not occur, as defined by R.S.Mo. §287.010.2.

MEDICAL CAUSATION

Medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause. *Gordon v. City of Ellisville*, 268 S.W. 3d 454, 461 (Mo.App. 2008). The only doctor to testify, Dr. Young, opined Claimant's diagnosis was severe left shoulder glenohumeral and acromial clavicular joint arthritis and chronic rotator cuff tendinopathy without tear. The records of Dr. Wright show he diagnosed a combination of severe glenohumeral arthritis as well as a small full-thickness rotator cuff tear. Dr. Aleem diagnosed the Claimant with left shoulder severe glenohumeral arthritis.

WIC-32-B1 (6-81)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 18-001826

Dr. Young, Dr. Wright and Dr. Aleem are all orthopedic surgeons. These physicians all agree

Claimant's course of treatment should be injections, followed by a shoulder replacement. However,

the providers that saw Claimant at Barnes Care were not physicians. The records show the providers

who saw Claimant at Barnes Care were a nurse practitioner and physical therapists. While these

providers attempted some physical therapy for the Claimant's left shoulder, it did not help her

symptoms. The Employer/Insurer's own expert, Dr. Young, explained physical therapy was not the

type of treatment that the Claimant should have, and in fact, physical therapy will make the

Claimant's condition worse. This is consistent with the Claimant's testimony, as she stated at

Hearing her shoulder symptoms were made worse by the therapy at Barnes Care.

The Claimant has been diagnosed with glenohumeral arthritis. While the fall exacerbated, or

triggered, the Claimant's arthritic left shoulder symptoms and complaints, there was no evidence

presented indicating Claimant's injury was the prevailing factor in causing the injury or need for

treatment. As such, it cannot be found Claimant's left shoulder is at maximum medical improvement

("MMI"), or that she sustained some 'unspecified' shoulder strain. Medical causation is denied.

4-5. FUTURE MEDICAL & PPD

Given the above findings, all benefits under the Act are denied.

CONCLUSION

Given the above findings, benefits are denied.

I certify that on 4-16-19

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.

Made by:

MARVIN O. TEER, JR.

Administrative Law Judge

Division of Workers' Compensation

By