Claimant is a 69-year-old social worker who has worked for Employer since December 16, 2016. She is a licensed clinical social worker and a qualified mental health professional. Claimant worked as a counselor to inmates in the Vandalia prison. Claimant meets with offenders when they arrive at the prison, performs an intake assessment, holds a brief meeting, and ensures they are not in danger of self-harm.
On July 2, 2018, Claimant was conducting an intake assessment with a new offender. She received permission from Sergeant Skeene with the Missouri Department of Corrections to have the offender join other offenders for lunch. There were two doors into the cafeteria. Claimant and the new offender passed through the first door, and opened the outer door, when Corrections Officer Harrison ("Harrison") grabbed the door. Harrison yelled at Claimant and asked what she was doing.
Claimant told Harrison the offender had just arrived and she was taking her to lunch. Harrison kept yelling at Claimant. When Claimant asked Harrison to quit yelling, he said he was just talking loudly. Claimant felt that Harrison's behavior was unprofessional; especially yelling at her in front of offenders. To avoid further conflict, Claimant decided not to take the offender to lunch.
Claimant, then, went to close the door. She was holding the door handle firmly with her right hand, with her arm bent, and she was pulling the door toward her to close it. Suddenly, Harrison abruptly jerked the door open, jarring her right arm and causing immediate pain in her arm.
As soon as Harrison jerked the door, Claimant felt pain from the top of her shoulder into her neck up to her ear. She also had a sharp pain where her arm met her body above her armpit. The pain in her shoulder, neck, and above her armpit was sharp. Claimant's arm went numb and her hand became cold.
Claimant did not go home following the incident. Claimant did tell Sergeant Skeene what had occurred; Sergeant Skeene told her to fill out an accident report. She also reported the incident to Renee Shade, who had been Claimant's supervisor for two years.
On July 5, 2018, Claimant went to the University Clinic for treatment of her shoulder. The University Clinic wanted to perform an MRI, but Employer/Insurer denied that request. Claimant waited to go to another doctor because she "did not want problems". However, when Claimant's pain continued, she called the Nurse Hotline and was referred to University Urgent Care.
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On July 12, 2018, Claimant went to University Urgent Care. They performed an x-ray and gave Claimant a sling to wear. When her shoulder did not improve, University Urgent Care referred Claimant to Columbia Orthopaedic Group.
On July 24, 2018, Claimant saw Dr. Farmer at Columbia Orthopaedic Group. Claimant reported pain in her right shoulder that would wake her from sleep. Dr. Farmer ordered an MRI, which Claimant had at Audrain Medical Center. When she saw Dr. Farmer again in July, he referred Claimant to Dr. Tarbox, a surgeon.
Claimant saw Dr. Tarbox on August 20, 2018. Dr. Tarbox told her that she had an acute exacerbation of an old right rotator cuff injury. Employer/Insurer did not provide any more treatment after that office visit. Dr. Tarbox offered to operate on Claimant's shoulder using her health insurance.
When Claimant saw her primary care doctor in April 2017, her shoulder and her entire arm ached. Following her accident at work, her pain became sharper and her shoulder now hurts in the front and back by the shoulder blade. Claimant takes over-the-counter Tylenol to relieve the pain in her shoulder. Claimant was not taking any over-the-counter or other medication for her shoulder prior to July 2, 2018.
Following the work accident, in addition to the increased pain, Claimant also has less mobility in her right shoulder. When her shoulder is painful, it limits the amount she is able to use it and move it. When her shoulder is particularly painful, Claimant has difficulty sleeping.
Claimant does not have any work-related restrictions related to her right shoulder. Employer still employs Claimant in the same position at the same prison. Although she does not have any accommodations, there is really no lifting necessary on her job. Most of Claimant's job is desk work.
Prior to her July 2, 2018 injury, Claimant never injured her right shoulder. Claimant also never had surgery to her right shoulder. In April of 2017, Dr. Tan injected Claimant's right shoulder. Dr. Tan did not order an MRI nor did he provide any further treatment. After receiving the injection from Dr. Tan, Claimant's arm felt much better. Claimant saw Dr. Trone on several occasions before her accident. In visits from June 2017 through May 2018, Dr. Trone never provided treatment for her right shoulder. Claimant did perform exercises for her right shoulder at home.
On cross-examination, Claimant testified that she saw Dr. Tan in 2017 when she moved back to Missouri from New Mexico. Dr. Tan was located in Chillicothe, Missouri. Claimant's first visit to Dr. Tan was to establish him as her primary care doctor. When she reported her right shoulder pain to him, he recommended she return for another visit for her right shoulder. Claimant returned to Dr. Tan on April 24, 2017, at which time he examined Claimant and sent her for an x-ray. Claimant could not recall if she found out what the x-ray revealed. Dr. Tan did not say that her shoulder problems were "chronic".
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Claimant then moved to Vandalia and began treating with Dr. Trone. On June 30, 2017, she reported to Dr. Trone that she was having problems with range of motion in her right shoulder. She further reported that she had pain of 3 out of 10 in her right shoulder.
When Claimant saw Dr. Farmer, she told him she had previous treatment to her right shoulder, including an x-ray and injection. Claimant assumed Dr. Farmer had all of her previous treatment records, but did not know for sure if he did. Claimant had signed releases for the doctors to get prior x-rays and records; therefore, she assumed they did so.
Dr. Tarbox reviewed the MRI with Claimant. He told her that the 2017 x-ray and the 2018 MRI both revealed an old, chronic, rotator cuff tear. Claimant could not recall if the doctor told her that her rotator cuff retracted before the July 2, 2018 accident. Claimant also could not recall if the doctor told her that her rotator cuff had atrophied. Claimant did recall Dr. Tarbox saying he would operate on her right shoulder using her health insurance.
Claimant saw Dr. Snyder, on one occasion, in November 2018. Dr. Snyder did not provide any treatment, prescriptions, or send her for x-rays. Claimant does not know if Dr. Snyder had the x-ray films from 2017. Claimant does not know if Dr. Snyder saw either Dr. Tan, or Dr. Trone's, records. Claimant does recall Dr. Snyder saying she had abnormalities in her shoulder before her work accident.
Claimant was cross-examined at length about her reports of pain, and levels of pain reported, at different doctors' visits. Claimant testified she always has pain throughout her body, sometimes she just has a little pain, at other times, she has "real pain". Claimant's right shoulder has caused "real pain" since July 2, 2018.
Claimant's Exhibits
Primary Injury
On July 5, 2018, Claimant treated at the University of Missouri Urgent Care. (Exhibit 7) Claimant reported that she injured her right shoulder when another employee forcefully pulled a door from the other side, jerking her arm forward. Immediately following this incident, Claimant had a "relatively acute onset" of right shoulder pain. Claimant also experienced a brief tingling sensation in her right shoulder.
Claimant informed the doctor of her prior right shoulder issues. She noted she had a steroid injection in her shoulder after which her shoulder improved. Since her work injury, her range of motion had decreased and the pain in her shoulder had increased.
Upon exam, Claimant was tender to palpation over the anterior and lateral aspects of her right shoulder. Claimant also had minimal tenderness to palpation posteriorly. Pain limited Claimant's passive abduction. Claimant reported increased pain with flexion and when attempting to shrug her right shoulder.
The doctor was suspicious of a rotator cuff injury, specifically because of the pain to palpation. However, the doctor could not get approval for an x-ray from Insurer. The doctor
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recommended an x-ray as the minimal imaging necessary, and thought an MRI might be needed as well. Because Insurer did not allow the doctor to perform any imaging, the doctor sent Claimant home with a sling that she was to wear at all times until the doctor could perform further evaluation. The doctor placed Claimant on restrictions of sedentary work (no lifting more than 10 pounds) and no repetitive work with her right arm.
Claimant went to the University of Missouri Urgent Care on July 12, 2018, for her right shoulder to be x-rayed. The x-ray showed decreased acromiohumeral interval suggesting tendinous insufficiency of the rotator cuff and mild-to-moderate arthritis of the acromioclavicular and glenohumeral articulations. The doctor referred Claimant to an orthopedic doctor, left her work restrictions in place, and advised her to continue wearing the sling.
Dr. Farmer examined Claimant on July 24, 2018. (Exhibit 6) Claimant reported that she had pain in her right shoulder that often woke her at night. Claimant's pain symptoms were intermittent, but were sharp and aching when they occurred. Claimant's symptoms increased with sitting, twisting, moving, lying in bed, lifting, and reaching overhead. Claimant reported she experienced numbness, stiffness, tingling, and weakness. Claimant reported that she had received prior treatment to her right shoulder, including an injection.
Dr. Farmer noted Claimant had pain in the rotator cuff distribution radiating to the mid humeral level. Claimant had mild trapezius and periscapular pain. Upon examination, Claimant had pain with abduction and flexion at 60°. Claimant had a positive Hawkins' Sign. Dr. Farmer opined Claimant had a complete rotator cuff tear or rupture in her right shoulder. Dr. Farmer opined that the injury Claimant sustained at work on July 2, 2018, was the prevailing factor of her current symptoms. Dr. Farmer sent Claimant for an MRI of her right shoulder.
Claimant underwent an MRI of her right shoulder on August 2, 2018.¹ The MRI revealed a large full-thickness tear of the supraspinatus tendon with retraction under the acromion. There was also significant fatty atrophy of the supraspinatus muscle. There was a small joint effusion and some fluid in the subacromial subdeltoid bursa. The acromioclavicular joint had some degenerative changes.
When Claimant returned to Dr. Farmer on August 7, 2018, he reviewed the MRI. Dr. Farmer noted the MRI revealed a large retracted supraspinatus tear, which fit with Claimant's complaints and examination. Dr. Farmer recommended Claimant see one of his surgical partners to talk about her treatment options. Dr. Farmer noted there was some fatty atrophy of the supraspinatus suggesting a possible underlying chronic component, but with the acute traction mechanism of Claimant's injury, he thought her tear resulted from her work injury.
On August 20, 2018, Dr. Tarbox examined Claimant. (Throughout his records, Dr. Tarbox consistently refers to Claimant's left shoulder; however, her injury was clearly to her right shoulder.) Upon examination, Claimant reported sharp stabbing pain in her shoulder. Claimant's shoulder demonstrated significant Hawkins' and Neer impingement signs. Dr.
¹ St. Mary's Hospital performed an MRI of Claimant's right shoulder on August 2, 2018. Columbia Radiology Group, Ltd., read the MRI. (Exhibit 14) The Columbia Radiology Group, Ltd., bill of $200.00 and is still due and owing.
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Tarbox noted Claimant's MRI revealed a significant tear of the supraspinatus with retraction back to near the glenoid. Claimant also had significant atrophy in the supraspinatus with some fatty infiltration.
Dr. Tarbox diagnosed Claimant with pain in the right shoulder, impingement syndrome in the right shoulder, and complete rotator cuff or rupture of the right shoulder, not specified as traumatic. He opined that, based on the findings in the MRI, Claimant had a large tear with retraction and fatty atrophy in the supraspinatus. Dr. Tarbox recommended Claimant have expedited surgery on her shoulder.
On September 8, 2018, Dr. Tarbox wrote a letter to Claimant's counsel indicating that Claimant injured her shoulder on July 2, 2018. Dr. Tarbox opined that Claimant had a pre-existing tear of the rotator cuff prior to the July 2, 2018 event. He thought Claimant's July 2, 2018 event was an acute exacerbation of a chronic injury.
When Claimant saw Dr. Trone, her primary care doctor, on October 17, 2018, she reported relatively severe right shoulder pain since her work accident on July 2, 2018. (Exhibit 9) The doctor noted that there was a dispute over insurance coverage for Claimant's right shoulder. He remarked, "Unfortunately she is running out of time to get this corrected". Claimant reported her pain level was 6 out of 10. Dr. Trone prescribed Celebrex to relieve Claimant's right shoulder pain.
Dr. Michael Snyder conducted an independent medical examination of Claimant on November 8, 2018. (Exhibit 2)² Dr. Snyder reviewed the medical records of the treatment Claimant received following her July 2, 2018 injury. Claimant informed Dr. Snyder that she had previous treatment for her right shoulder by Dr. Tan. She reported that after she received the injection from Dr. Tan, her shoulder was much better and she only had minimal symptoms. Following the injection, Claimant could lift overhead and perform all of her daily activities. Claimant did not have any weakness in her arm.
After the July 2, 2018 event, Claimant experienced a constant aching in her shoulder. She had difficulty performing activities of daily living. Claimant had burning pain anteriorly and pain radiating from her shoulder into her arm. Claimant also had pain with overhead activities and weakness when lifting. Claimant reported difficulty sleeping.
Upon examination, Claimant's left shoulder had full range of motion with negative impingement and Hawkins' signs. Claimant exhibited limited range of motion in her right shoulder. Her impingement and Hawkins' signs were positive. Claimant had reduced strength in her right shoulder and had significant pain when the strength of the supraspinatus was tested.
Dr. Snyder noted Claimant had a pre-existing rotator cuff tear; however, the July 2, 2018 accident exacerbated and worsened the tear. Claimant was not having any problems with her shoulder prior to the accident. Dr. Snyder recommended Claimant have surgery on her right
² Employer/Insurer objected to the introduction of Dr. Snyder's report. The Court overruled that objection. The basis for that decision is discussed at length in the Rulings of Law.
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shoulder. He further noted that surgery should be expedited. Last, Dr. Snyder opined that the need for surgery directly flowed from the July 2, 2018 incident.
In a letter dated November 8, 2018, addressed to Claimant's counsel, Dr. Snyder opined that the July 2, 2018 accident caused an injury to Claimant's right shoulder. He further opined that the work injury was the prevailing factor leading to Claimant's current symptoms. Last, Dr. Snyder indicated Claimant needs surgery to her right rotator cuff tear as a result of her work-related injury. Although she had a previous tear, the doctor opined there was "no question" the July 2, 2018 accident worsened and aggravated the tear.
Prior Treatment
Claimant first saw Dr. Tan at Hedrick Medical Center on March 24, 2017. (Exhibit 8) Claimant's first visit was to establish Dr. Tan as her primary care doctor. At the end of her visit, Claimant mentioned she had right shoulder pain. She was encouraged to discuss that with the doctor at her next visit.
Claimant next saw Dr. Tan on April 24, 2017, at which time she complained of chronic right shoulder pain. She reported a history of right shoulder pain that had worsened over the last year; pain increased with abduction. Dr. Tan's working diagnoses were osteoarthritis versus rotator cuff etiology/impingement/tendinitis. Dr. Tan injected Claimant's subacromial space with a steroid injection. Dr. Tan gave Claimant home exercises for her shoulder and she was to take anti-inflammatories and ice her shoulder. Dr. Tan also sent Claimant for an x-ray of her right shoulder.
Claimant saw Dr. Trone on June 30, 2017. (Exhibit 9) Claimant reported pain of 3 out of 10 in her right shoulder and arm. When she returned to see Dr. Trone on July 31, 2017, Claimant reported pain of 1 out of 10 in her bilateral shoulders and arms. On all other visits up to her injury on July 2, 2018, Claimant reports her pain using the pain scale, but her right shoulder is not specifically mentioned. Other than the two dates previously mentioned, Dr. Trones's records do not ever mention Claimant's right shoulder pain before her primary injury.
Deposition of Supervisor
The parties took the deposition of Claimant's supervisor, Renee Shade ("Shade"); Claimant's employment file was attached as an exhibit. (Exhibits 10 & 11) Shade is the Institutional Chief for Mental Health Services at the Vandalia Women's Prison. She is an employee of Corizon, a company that supplies mental health services to inmates in Missouri prisons. Her job includes handling a caseload, meetings, completing timecards, staffing, and overseeing the mental health staff.
Shade was aware that Claimant injured her right shoulder on July 2, 2018. Claimant reported the injury occurred when Sergeant Harrison jerked a door that Claimant was opening. Shade only discussed the accident and injury with Claimant. Claimant reported the injury the day it occurred. Claimant told Shade she injured her shoulder and had already completed a Department of Correction's incident report.
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Shade did not recall Claimant complaining about her right shoulder or arm prior to July 2, 2018. Claimant has complained about right shoulder pain since her accident. The last time Claimant mentioned her shoulder pain was a week prior to Shade's deposition.
After Claimant told Shade about her injury, they notified someone in Corizon's workers' compensation department. Shade and Claimant spoke with a nurse on the workers' compensation hotline and answered her questions. Shade also completed a Report of Injury. (Form 1)
Shade has known Claimant for two years. Claimant's job was to work with incoming offenders. Claimant is a good employee and is honest. Shade never reprimanded Claimant nor was she aware that Claimant ever violated a company rule or policy.
**Employer/Insurer's Exhibits**
The parties deposed Dr. Byron Tarbox on March 15, 2019. (Exhibit D) Dr. Tarbox examined Claimant on August 20, 2018. Dr. Farmer referred Claimant to Dr. Tarbox for a surgical consultation.
Dr. Tarbox reviewed Dr. Tan's records documenting his treatment of Claimant's shoulder in March and April of 2017. Those records included an x-ray taken of Claimant's right shoulder on April 24, 2017. The x-ray revealed a high-riding humeral head. Dr. Tan's records documented several years of chronic right shoulder pain. Dr. Tan diagnosed Claimant with chronic right shoulder pain.
When Dr. Tarbox examined Claimant, she reported a long history of right shoulder pain with one injection in the shoulder. Dr. Tarbox noted Claimant has Type 2 diabetes. People with Type 2 diabetes are at an increased risk for impingement and frozen shoulder.
Upon examination, Claimant did not have any evidence of shoulder instability. She did have signs of impingement in her shoulders. She had restricted motion in all planes. Dr. Tarbox ordered x-rays of Claimant's right shoulder that revealed a "high-riding head". Although soft tissue is not visible on an x-ray, when a humeral head is "high-riding", it is indicative of a chronic tear of the rotator cuff allowing the head to move upward. While this finding is not dispositive, it led the doctor to conclude that her right shoulder was a chronic issue.
Dr. Tarbox also reviewed the MRI of Claimant's shoulder. The MRI revealed a supraspinatus tear with retraction back to the glenoid. The MRI also revealed atrophy in the supraspinatus with some fatty infiltration on the rotator cuff tendon. There was no edema or fluid in the joint. When a supraspinatus retracts back to the glenoid, it would be very difficult to repair it. Atrophy and fatty infiltration are indicators that the muscle has not been used in some time because it has been torn chronically. The lack of edema or fluid in the joint means there was not likely a recent traumatic injury. Changes such as extreme retraction, atrophy, and fatty infiltration occur over years.
Dr. Tarbox concluded Claimant had right shoulder impingement with a rotator cuff tear; which he felt was an old tear. The work event was an acute exacerbation of her symptomatic
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complaints. Dr. Tarbox opined that the pathology in Claimant's shoulder was chronic and long-standing. Dr. Tarbox opined that the event at work caused pain in Claimant's shoulder, but did not cause the tear in her rotator cuff. When Dr. Tarbox saw Claimant, she was no longer wearing the sling and was using over-the-counter anti-inflammatories to control her pain.
Dr. Tarbox did offer to operate on Claimant's shoulder using her health insurance. Dr. Tarbox opined Claimant's shoulder could have been a surgical shoulder prior to July 2, 2018; depending on the amount of symptoms she was experiencing. The work accident was not the prevailing factor in causing the underlying conditions in Claimant's shoulder.
On cross-examination, Dr. Tarbox testified that the only MRI on Claimant's shoulder was after the July 2, 2018 event. Dr. Tarbox made an inference, based on the bony anatomy, that the tear was present when Dr. Tan had an x-ray taken of Claimant's shoulder; but the extent of that tear could not be determined. Further, since Claimant felt pain following the event of July 2, 2018, more damage could have occurred to her rotator cuff. Dr. Tarbox opined that the July 2, 2018 event was an acute exacerbation of a chronic injury.
Dr. Tarbox testified that Claimant's rotator cuff tear might not be repairable at this point. When he examined Claimant in August of 2018, Dr. Tarbox would have explained that it was a chronic tear, and it would be difficult to repair, but he would have tried to repair it.
RULINGS OF LAW
Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented, and the applicable law of the State of Missouri, I find the following:
Claimant sustained an accidental injury in the event of July 2, 2018 resulting in a condition in her shoulder that is medically casually linked to the July 2, 2018 event.
(Responding to Issues 1 and 2)
Pursuant to the Missouri Workers' Compensation Statute, every employer subject to the Workers' Compensation Act shall furnish compensation for the personal injury of the employee by accident arising out of and in the course of employee's employment. Section 287.120.1 RSMo (2017) Under the statute, an accident is defined as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of injury caused by a specific event during a single work shift." Section 287.070.2 RSMo (2014) Further, an injury is deemed to arise out of and in the course of the employment only if the accident is the prevailing factor in causing the injury and it does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside and unrelated to the employment. Section 287.020.3(2) RSMo (2014)
An injury by accident is compensable only if the accident was the prevailing factor causing both the resulting medical condition and disability. The "prevailing factor" is the primary factor, in relation to any other factor, causing both the resulting medical condition and
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disability. Section 287.020.3(1) RSMo (2014) An injury arises out of and in the course of employment only if it is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor causing the injury. An injury cannot come from a hazard or risk unrelated to the employment, or a hazard or risk to which the worker is equally exposed to outside of and unrelated to the employment, in normal non-employment life. Section 287.020.3(2) RSMo (20014) An injury resulting directly or indirectly from idiopathic causes is not compensable. Section 287.020.3(3) RSMo (2014)
For purposes of the Act, an "accident" is (a) an unexpected traumatic event; (b) identifiable by time and place of occurrence; (c) producing objective symptoms of an injury; and (d) caused by a specific event during a single work shift. *Clark v. Dairy Farmers Of America*, 536 S.W.3d 801, 805 (Mo.App.S.D.2018); *White v. Conagra Packaged Foods, LLC*, 535 S.W.3d 336, 338-339 (Mo. banc.2017). Affording the words "unexpected traumatic event" in Section 287.020.2 their plain and ordinary meaning, an "accident" requires an unforeseen happening. *Hedrick v. Big O Tires*, 522 S.W.3d 919, 925 (Mo.App.S.D.2017).
Employer concedes Claimant sustained an unexpected traumatic event identifiable by time and place of occurrence caused by a specific event. Claimant did not expect Officer Harrison to engage in a verbal altercation and then jerk the door she was holding onto, causing Claimant's arm to jerk forward. However, Employer argues Claimant did not sustain an injury due to the accident.
In *Tillotson v. St. Joseph's Medical Center*, 347 S.W.3d 511, 517 (Mo.App.W.D.2011) and its progeny, the courts discuss the notion of accident and injury at length. *Tillotson* describes a two-step inquiry. First, it must be determined whether Claimant suffered a compensable injury arising out of and in the course of her employment. Second, once the court finds a compensable injury, the inquiry turns to the calculation of the benefits to be granted. *Tillotson*, 347 S.W.3d at 517-518. Relying on *Tillotson*, Employer argues:
> If, and only if, claimant demonstrates her right shoulder condition and pathology documented on the 8-2-18 MRI constitute a compensable injury, do we proceed to the second inquiry—whether employee is entitled to future medical treatment, including surgery, for her right shoulder condition. *Tillotson*, 347 S.W.3d at 517-518.
Thus, Employer argues that for Claimant to have sustained an injury, every finding on her MRI must relate to her work incident. However, that is not an accurate statement of the law.
A claimant must prove not only that she sustained a work-related accident but also that the accident was the prevailing factor in causing her injury. *Armstrong v. Tetra Pak, Inc.*, 391 S.W.3d 466, 472-473 (Mo.App.S.D.2012). Determining whether an accident was the prevailing factor in causing a claimant's condition in inherently a factual argument *Beatrice v. Curators of University of Missouri*, 438 S.W.3d 426, 435 (Mo.App.W.D.2014). In *Beatrice*, the claimant had degenerative changes in her back prior to her work accident. Five expert doctors opined that her medical condition and surgery were not related to her work accident, and were instead due to the degenerative changes in her back. Only one doctor found that Claimant's work accident caused injuries to her discs resulting in incontinence and pain. Based on all of the evidence, including
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the claimant's testimony, the Court found the testimony of the one doctor more credible than that of the five doctors. *Beatrice*, 438 S.W.3d at 436-438.
In the present case, there is no question Claimant had prior shoulder problems. She voiced shoulder complaints to two doctors before the work incident. She also received one injection in her shoulder. An x-ray of her shoulder taken before the incident showed a high-riding humeral head, indicative of arthritis or a rotator cuff tear in her shoulder. Claimant did not hide this information from any of the doctors who treated her following this accident. Claimant reported her prior shoulder issues to all of her treating and rating doctors.
However, Claimant received no further treatment for her right shoulder following Dr. Tan's injection. Claimant testified her shoulder was much better after the injection. Although Claimant mentioned pain in her right shoulder to Dr. Trone, he never provided any treatment for her shoulder. That mention of shoulder pain was over a year before Claimant's work accident. Further, Claimant's supervisor, who worked with Claimant on a daily basis, testified Claimant never complained of shoulder pain before the work accident. Whether Claimant had prior problems with her shoulder is not definitive when determining if she sustained a work-related shoulder injury; it is only of many considerations.
Prior to the July 2, 2018 event, Claimant never requested accommodations, nor was she placed on restricted duty due to her shoulder. Prior to her accident, Claimant had full range of motion in her shoulder and did not lose sleep due to her shoulder. Following the work incident, Claimant's shoulder became significantly more painful. Claimant also had pain in different areas of her neck and arm than before the incident. In addition, the range of motion in Claimant's shoulder was restricted. Claimant also experienced difficulty sleeping due to the pain in her shoulder.
Counsel for Employer/Insurer questioned Claimant at length about her reports of pain to her doctors; many of which were not specified to her right shoulder. Employer/Insurer argued the pain scales all reflected the condition of Claimant's right shoulder. First, if Claimant's right shoulder is not specifically mentioned in the doctor's notes, one cannot assume the pain scale refers to that shoulder. Claimant is 69 years old and testified that she has aches and pains throughout her body. Second, the pain scale is a subjective scale; answers are affected by mood, activity, weather, and other factors.
As this is an issue of medical causation, the doctors' opinions of whether the work accident resulted in an injury are significant. *Beatrice*, 438 S.W.3d at 435. The doctor who first examined Claimant following her work incident suspected a rotator cuff tear. (Exhibit 7) Employer/Insurer then sent Claimant to Dr. Farmer at Columbia Orthopaedic Group. Dr. Farmer examined Claimant and opined that she had a complete rotator cuff tear. Dr. Farmer opined that the work incident was the primary factor causing Claimant's current symptoms. Claimant underwent an MRI after which Dr. Farmer, again, opined that Claimant's current symptoms were due to her work incident. He noted that even though Claimant had some fatty atrophy in the supraspinatus, he believed the traction injury to Claimant's shoulder caused the tear. (Exhibit 6)
Dr. Farmer then referred Claimant to Dr. Tarbox, his partner and an orthopedic surgeon, for a surgical consultation. Dr. Tarbox agreed that Claimant had a rotator cuff tear; however, he
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opined the tear was not due to Claimant's work incident, but rather was long-standing. Dr. Tarbox based his opinion on the retraction of the supraspinatus tendon and the fatty atrophy in the supraspinatus. (Exhibit 6) Although Dr. Tarbox opined that Claimant's work incident was an acute exacerbation on a chronic injury, he conceded that more damage could have occurred to Claimant's rotator cuff in the work incident. (Exhibit D) In fact, the MRI of Claimant's shoulder showed effusion, which is evidence of trauma.
Dr. Snyder, Claimant's examining doctor, also agreed that Claimant had a pre-existing rotator cuff tear. However, he opined the work incident worsened the tear as evidenced by the increase in her pain, reduction in her range of motion, and weakness in her arm and shoulder. (Exhibit 2)
This case is similar to *Persley v. The Parking Spot*, Injury Number 14-079573, Labor and Industrial Relations Commission (July 25, 2019). In *Persley*, the claimant did not have any prior shoulder complaints or treatment. However, x-rays taken following his work accident revealed degenerative changes of his acromioclavicular joint with ossific density in the soft tissue. An MRI taken three weeks after his work accident revealed marked retraction of the muscle and tendon of the suprapinatus with fraying. The claimant's humerus was grossly abnormal with osteophytes and subchondral erosions and superior subluxation of the proximal humerus. He had marked degenerative changes throughout his acromioclavicular joint.
In *Persley*, the claimant's rating physician described the work injury as the "straw that broke the camel's back". He diagnosed the claimant with an acute on chronic rotator cuff tear. The employer's expert opined the claimant had significant, long-term degenerative problems in his shoulder. Similar to Dr. Tarbox, employer's expert conceded the accident might have caused additional tearing of the rotator cuff, but most of the damage in the claimant's shoulder was pre-existing. *Persley*, page 8
Certainly, the fact that Claimant received prior treatment and had prior complaints regarding her shoulder is not controlling. Claimant, similar to the claimant in *Persley*, also had degenerative changes of her shoulder; although not nearly as severe as those of the *Persley* claimant. Prior to her work injury, Claimant was functioning without pain, without restrictions in movement, and without job restrictions. Just as in *Persley*, this injury was "the straw that broke the camel's back", and, thus, the prevailing factor in the injury to Claimant's right shoulder.
While all of the doctors have reasonable bases for their opinions, I find the opinions of Drs. Farmer and Snyder to be more persuasive than Dr. Tarbox. Prior to the work incident, Claimant was able to perform all of her work duties with no pain or weakness. Following her work incident, she developed significant pain in her shoulder with decreased range of motion and decreased strength. If I were to follow Dr. Tarbox's opinion, no claimant who had degeneration or prior complaints in a joint would have a compensable injury. Further, Dr. Tarbox even conceded Claimant could have caused further damage to her rotator cuff in her work accident. Therefore, I find that Claimant did sustain an injury medically casually related to the July 2, 2018 work accident.
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Issued by DIVISION OF WORKERS' COMPENSATION
Injury No.: 18-050218
Claimant is entitled to future medical treatment to cure and relieve the effects of her July 2, 2018 accident.
Claimant must prove all of the material elements of her claim, including the entitlement to future medical treatment. Section 287.140.1 RSMo (2017); *Dean v. St. Luke's Hospital*, 936 S.W.2d 601, 603 (Mo.App., WD 1997) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). Claimant is entitled to an award of future medical treatment if she shows by a reasonable probability that future medical treatment is needed to cure and relieve the effects of the injury. *Concepcion v. Lear Corporation*, 173 S.W.3d 368, 372 (Mo. App. 2005).
Under *Tillotson*, once a compensable accident is established, the claimant needs only to prove that the treatment and medication flow from the injury. *Tillotson*, 347 S.W.3d at 519-520. Based on the finding that Claimant sustained a compensable accident causing injury to her shoulder, the recommended treatment then flows from the injury. All of the doctors agree Claimant needs surgery to her shoulder. Therefore, I am ordering further treatment for Claimant's right shoulder. However, I would note that the nature of the treatment, or type of surgery required, might have changed from the original recommendations. Drs. Tarbox, Snyder and Trone all indicated that surgery needed to be performed quickly. Because surgery was not provided quickly, a different surgical procedure may be indicated. I will leave that determination to the medical experts.
Employer/Insurer is responsible for the $200.00 medical bill from Columbia Radiology, Ltd.
Employer/Insurer admits in its Proposed Award that it is responsible for the $200.00 medical bill from Columbia Radiology, Ltd. At Hearing, Claimant's counsel identified it as a bill from Columbia Orthopaedic Group when it is, in fact, from Columbia Radiology, Ltd. (Exhibit 14) However, the bill is from the radiologist who read the MRI ordered by Dr. Farmer, the authorized treating physician. Therefore, Employer/Insurer is responsible for payment of the bill.
Admission of Dr. Snyder's Report under Section 287.210.7
After listening to arguments on the record, Dr. Snyder's report was admitted under Section 287.210.7 RSMo (2014) Counsel for the parties argued Motions (Exhibits 15 & F) regarding the admissibility of Dr. Snyder's report before Judge Farmer prior to the Hearing. Unfortunately, the minutes of this case do not contain any reference as to what occurred when the parties argued the admission of Dr. Snyder's report before Judge Farmer.³ Counsel for Claimant
³ Pursuant to Section 281.210.7 RSMo (2014):
...the administrative law judge shall rule upon such objections upon pretrial hearing whether the report meets the requirements of a complete medical report and upon the admissibility of the report or portions thereof.
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Issued by DIVISION OF WORKERS' COMPENSATION
Injury No.: 18-050218
believed the report was admissible; Counsel for Employer/Insurer believed Dr. Snyder's deposition was to be taken. The statute specifically provides for a decision regarding admissibility to be made before the hearing, so that all parties have an opportunity to get their evidence ready prior to the day of the hearing.
Many Employer/Insurer's objections go to the weight of Dr. Snyder's report rather than the admissibility of the report. Employer/Insurer specifically objects to the absence of intake forms and questionnaires Dr. Snyder may have had Claimant complete. (Exhibit F) However, in Claimant's response, it clearly states that Dr. Snyder did not make any "clinical or treatment records" of his own. (Exhibit 15) Employer/Insurer also objects that a copy of the August 2, 2018 MRI was not included with Dr. Snyder's report. At Hearing, the Employer/Insurer's objection focused on Dr. Snyder's report not being clear whether he had reviewed the MRI report or the MRI films. Again, an issue that would go to the weight given the report and not its admissibility. Further, since Employer/Insurer's authorized treating physician ordered the MRI, Employer/Insurer had access to both the MRI film and the report.
Employer/Insurer's other objection was that Claimant did not produce Dr. Snyder for cross-examination, as required in the statute. It was evident at the hearing, and the record will reflect, that counsel for Claimant and counsel for Employer/Insurer had a combative relationship. Thus, they did not communicate regarding their different interpretations of their discussion with Judge Farmer.
Claimant contends that following the discussion with Judge Farmer, attorney for Employer/Insurer was asked to provide dates he would be available to cross-exam Dr. Snyder, and then Dr. Snyder would be produced on one of those dates. Attorney for Employer/Insurer argued the deposition should have been set, apparently without any consultation regarding available dates.
I find that both parties bear responsibility for the failure to hold the deposition. The statute requires the offering party provide "reasonable opportunity for all parties to obtain cross-examination testimony of the physician by deposition", and "The party offering the report must make the physician available for cross-examination testing by deposition." Section 287.210.7 RSMo (2014) Nevertheless, it is not a one-sided obligation, all parties to litigation know scheduling a deposition requires cooperation and communication; including setting the date, time, and place.
In McDowell v. Missouri Department of Transportation, 529 S.W.3d 898 (Mo.App.S.D. 2017), the Court allowed the admission of a deceased expert's report when the employer had eight months to schedule the expert's report and failed to do so. McDowell, 529 S.W.3d at 900 - 905. The Court clearly placed an obligation on the attorney for the objecting party to proactively attempt to obtain the cross-examination of an expert in a timely manner. Counsel for Employer/Insurer neither provided dates he was available for the deposition, nor did he contact Claimant's attorney to schedule the deposition.
Last, I would have decided this case as I did even without Dr. Snyder's report. Dr. Farmer's records reflect his opinion that the work accident was the prevailing factor in
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Issued by DIVISION OF WORKERS' COMPENSATION
Claimant's injury and need for surgery. Further, Dr. Tarbox, as did the doctor in Persley, testified Claimant's work accident could have caused additional damage to her rotator cuff.
**CONCLUSION**
Employer/Insurer is ordered to provide the medical treatment necessary to cure and relieve the effects of Claimant's right shoulder injury sustained on July 2, 2018. Employer/Insurer is also ordered to pay the Columbia Radiology, Ltd. bill of $200.00.
Attorney Matthew Uhrig is awarded an attorney's fee of 25% of the total Award in this matter.
I certify that on 8-6-19 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.
By __________________________
Made by: __________________________
Lee B. Schaefer
Administrative Law Judge
Division of Workers' Compensation
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