Georgetta Hull v. Valitas Health Services, Inc., d/b/a Corizon Health

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 18-050218

**Employee:** Georgetta Hull

**Employer:** Valitas Health Services, Inc., d/b/a Corizon Health

**Insurer:** New Hampshire Insurance Company

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by § 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms and adopts the award and decision of the administrative law judge dated August 6, 2019.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo.

The award and decision of Administrative Law Judge Lee B. Schaefer, issued August 6, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **11th** day of March 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Pamela M. Hofmann

Secretary

Injury No.: 18-050218

Employee: Georgetta Hull

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find the administrative law judge erred in issuing a temporary award, granting employee future medical treatment for her right shoulder condition.

Employee failed to demonstrate that her right shoulder condition and the pathology documented on the August 2, 2018, right shoulder MRI were caused by her July 2, 2018, work accident, or that the work event was the prevailing factor causing her right shoulder condition and the need for medical treatment. Since employee failed to satisfy her burden of proving that her right shoulder condition constituted a compensable injury under § 287.020.3, she is not entitled to recover any workers' compensation benefits, including future medical treatment, relating to that shoulder condition. Under these circumstances a final award denying employee's claim, rather than a temporary award granting medical care, was appropriate.

To recover benefits, including future medical care, the employee must show her right shoulder condition and pathology resulted from the July 2, 2018, accident to which she attributes them. *Dillon v. Architectural Materials Co.*, 419 S.W.3d 802 (Mo. App. 2013). It is not sufficient for employee to show only that the injury or medical condition complained of resulted from either one or the other of two causes, for one of which, but not the other, employer would be liable. Employee must produce evidence from which it may reasonably be found that her right shoulder condition resulted from a cause for which employer would be liable. *Griggs v. AB Chance*, 503 S.W.2d 697, 704 (Mo. App. 1973).

Further, where, as here there are conflicting medical opinions as to compensability, the Missouri Workers' Compensation Act (Act) mandates objective medical findings shall prevail over subjective medical findings. Within this context, objective medical findings are those findings demonstrable on physical exam, or by appropriate tests or diagnostic procedures. Section 287.190.6(2). An administrative law judge errs where, in the face of conflicting medical opinions on causation, he chooses to rely on subjective medical findings and ignore the objective medical evidence. Here, the administrative law judge chose to ignore the objective medical evidence showing employee's rotator cuff tear was not only preexisting, but also degenerative, chronic, and longstanding in nature.

First, the administrative law judge failed to acknowledge the findings on the April 24, 2017, right shoulder x-ray showing moderate arthritic changes at the AC joint. The humeral head was somewhat high riding in the glenoid, suggesting chronic rotator cuff injury. This objective medical evidence, documented on an x-ray taken more than fourteen months before employee's accident, demonstrated she had a high riding humeral head in the glenoid, indicative of chronic rotator cuff injury, and moderately severe arthritic changes in her right AC joint.

Injury No.: 18-050218

Employee: Georgetta Hull

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Second, the administrative law judge ignored the right shoulder x-rays taken on July 12, 2018, following the accident. Those studies likewise showed chronic, preexisting right shoulder pathology. Specifically, the July 12, 2018, x-rays revealed mild superior luxation of the humeral head relative to the glenoid, with narrowing of the acromiohumeral interval to a proximal 4.5 mm. There was sclerosis and irregularity involving the greater and lesser humeral tuberosities, as well as hypertrophic change along the glenoid rim. There was moderate degenerative osteoarthritis of the AC joint, with inferior osteophytic spurring. On reviewing the right shoulder x-ray, Dr. Cynthia Ruffolo noted it showed degenerative changes, but no acute findings or pathology.

Third, the administrative law judge ignored the August 2, 2018, right shoulder MRI, which revealed a large, full thickness tear of the supraspinatus tendon with retraction under the acromion. There was significant fatty atrophy of the supraspinatus muscle. There was no fracture or significant marrow edema. Degenerative changes were present in the AC joint. An August 20, 2018, right shoulder x-ray, likewise, demonstrated a high-riding humeral head. The objective medical findings and pathology documented on the x-ray and MRI studies of employee's right shoulder were preexisting, degenerative, chronic, and longstanding in nature. However, the administrative law judge chose to ignore this objective medical evidence, contrary to the mandate in § 287.190.6(2).

Compounding this error, the administrative law judge rejected the findings and testimony of Dr. Byron Tarbox, premised on the objective medical evidence. Drawing from the objective medical evidence, Dr. Tarbox found employee's rotator cuff tear to be chronic and preexisting. Specifically, Dr. Tarbox found the right shoulder pathology documented on the August 2, 2018, MRI represented chronic pathological changes, which took place over a period of time, and were not changes of an acute nature. Specifically, the August 2, 2018, MRI demonstrated employee had a tear of the supraspinatus, with retraction back to the glenoid. This was a significant retraction of the supraspinatus tendon. Moreover, the MRI showed employee had significant atrophy in the supraspinatus tendon, with fatty infiltration of the muscle tissue. As Dr. Tarbox explained, when muscle had not been used, because it was torn chronically, the muscle belly developed fatty infiltration and atrophy from lack of use. The combination of the objective medical findings of retraction back to the glenoid, along with atrophy and fatty infiltration into the supraspinatus muscle belly, led Dr. Tarbox to conclude employee had a chronic rotator cuff tear. Pathology such as the atrophy and fatty infiltration shown on the MRI were objective signs of a chronic, pathological change or process, which took place over years, rather than over days, weeks, or months. Dr. Tarbox found the MRI did not evidence any changes of an acute nature. Additionally, as Dr. Tarbox observed, x-ray studies demonstrated chronic pathological changes in employee's right shoulder. This included the April 24, 2017, right shoulder x-ray and the x-rays taken after the accident, including the August 20, 2018, x-ray. These x-rays demonstrated a high-riding humeral head-displacement of the head elevated higher in the shoulder joint. This was a sign there was a chronic tear of the rotator cuff, which allowed the humeral head to escape upward. These objective findings showed employee had a chronic, preexisting rotator cuff tear, which allowed the humeral head to migrate upwards over a long period of time. The objective findings documented on the x-ray studies, like those on the MRI, evidenced a chronic

Injury No.: 18-050218

Employee: Georgetta Hull

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pathological process, which took place over a period of time and which led Dr. Tarbox to find employee's right shoulder condition was not acute. As Dr. Tarbox observed, the objective medical evidence, including x-ray studies taken both before and after the accident, showed employee's rotator cuff had been torn and retracted for a long period of time before July 2, 2018. The work event did not cause an exacerbation or change of the objective pathology in employee's right shoulder, including her chronic rotator cuff tear. While the accident exacerbated employee's right shoulder symptomology, causing her to experience right shoulder pain, it did not cause the rotator cuff tear. Dr. Tarbox found the accident was not the prevailing factor causing employee's underlying right shoulder pathology.

The objective medical evidence, and Dr. Tarbox's findings and testimony based on that evidence showed employee's right shoulder condition and pathology were preexisting, degenerative, and chronic in nature. Had the administrative law judge engaged in the legal analysis required by § 287.190.6(2) and given effect to the objective medical evidence, she could have only reached one reasonable conclusion. Namely, the accident was not the prevailing factor causing employee's right shoulder condition and pathology and thus that condition did not constitute a compensable injury. Sections 287.020.3; 287.190.6; Bauer v. Indep. Stave Co., 417 S.W.2d 693, 696 (Mo. 1967). Moreover, a comparison of the diagnostic studies taken of employee's right shoulder, both before and after the accident, demonstrates that event did not result in a change in or worsening of the chronic, preexisting pathology in employee's right shoulder. The objective medical evidence shows employee's right shoulder condition and pathology were preexisting, chronic and degenerative in nature. The administrative law judge erred as a matter of law and violated § 287.190.6(2) in ignoring that evidence in determining whether the employee's right shoulder condition constituted a compensable injury.

Rather than rely on the objective medical evidence, as the Act required, the administrative law judge chose to rely upon employee's subjective complaints and the opinions of Drs. Chris Farmer and Michael Snyder. However, those physicians premised their opinions on employee's subjective complaints, rather than the objective medical evidence. It is undisputed employee had right shoulder problems for several years before July 2018, for which she received medical treatment, including an injection. The objective medical evidence, including the April 24, 2017, x-ray, demonstrated a preexisting rotator cuff tear and a high-riding humeral head in employee's right shoulder. Ignoring the objective medical findings documented in the April 24, 2017, x-ray the administrative law judge chooses instead to rely on employee's testimony that her shoulder complaints improved following Dr. Kenneth Tan's injection, and that employee reported shoulder pain to Dr. Aaron Trone over a year before the accident. Also significant to the administrative law judge was the testimony of employee's supervisor that the employee never complained of shoulder pain before the accident. Award, p. 14. The administrative law judge finds compelling employee's testimony that, prior to the accident, she was working without restrictions or limitations in movement and that she developed significant right shoulder pain following the work event. However, employee is currently working without physician-imposed restrictions, a fact the administrative law judge fails to acknowledge. Crucial to the administrative law judge's causation findings was employee's testimony that, prior to the work accident

Injury No.: 18-050218

Employee: Georgetta Hull

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on July 2, 2018, she was purportedly able to perform all her work duties with no pain or weakness, and after the accident employee developed "significant pain in her shoulder with decreased range of motion and decreased strength." The administrative law judge premised her causation analysis on employee's testimony regarding her complaints and the subjective medical evidence. Violating the mandate in § 287.190.6(2), the administrative law judge ignored the plethora of objective medical evidence in the record demonstrating employee's right shoulder condition, including her rotator cuff tear, was preexisting, degenerative and chronic in nature, and did not result from the events occurring at work in July 2018. In choosing to disregard the objective medical evidence, and premise her causation and compensable injury findings on employee's subjective complaints the administrative law judge violated § 287.190.6(2), and ruled contrary to the overwhelming weight of the competent and substantial evidence in the record. *Johnson v. Indiana Western Express*, 281 S.W.3d 885, 891 (Mo. App. 2009). Accordingly, the administrative law judge's related findings on medical causation and compensable injury must be reversed.

In ruling on causation and finding employee's right shoulder condition to be a compensable injury, the administrative law judge erred in rejecting that portion of Dr. Tarbox's testimony which drew upon and was entirely consistent with the objective medical evidence, in particular the objective medical findings documented on the pre- and post-accident x-rays of employee's right shoulder and the August 2, 2018, MRI. Based on this objective medical evidence, Dr. Tarbox concluded employee had a chronic rotator cuff tear, which preexisted July 2018, and the accident was not the prevailing factor causing employee's right shoulder condition and pathology. Rejecting Dr. Tarbox's findings in this regard, the administrative law judge chose to rely on an isolated portion of Dr. Tarbox's testimony, wherein he speculated employee could have caused further damage to her rotator cuff in the work accident. *Award*, p. 15. The administrative law judge erred as a matter of law in relying on this portion of Dr. Tarbox's testimony. Missouri law is clear. An award or finding cannot be based on conjecture, speculation or surmise. *Marcus v. Steel Constructors, Inc.*, 434 S.W.2d 475, 481 (Mo. 1968). Medical opinion that an injury might or could result from an accident or work conditions is nothing more than an assurance such a result is scientifically possible, and does not constitute substantial evidence such a result did, in fact, occur. *White v. Henderson Implement Co.*, 879 S.W.2d 575, 580 (Mo. App. 1994). Simply put this isolated portion of Dr. Tarbox's testimony could not support a finding of medical causation, as a matter of law. *Id.*

The administrative law judge erred in relying on the opinions of Dr. Farmer in ruling on the issues of medical causation and compensable injury. Specifically, the administrative law judge relied on Dr. Farmer's opinion that employee had a complete rotator cuff tear and that the July 2, 2018, work incident was the primary factor causing employee's current symptoms. Even though employee had fatty atrophy in the supraspinatus, Dr. Farmer believed the "traction injury" to employee's right shoulder caused her rotator cuff tear. The administrative law judge goes on to find the opinions of Dr. Farmer, and those of Dr. Snyder, more persuasive than those of Dr. Tarbox. *Award*, pp. 14-15.

Injury No.: 18-050218

Employee: Georgetta Hull

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In finding Dr. Farmer's opinions to be credible and probative, the administrative law failed to acknowledge a fatal flaw. Dr. Farmer did not have a substantial basis in fact for his causation opinions. An expert's opinion must be based on substantial information, not on conjecture or speculation. There must be a rational basis for the opinion. *Heisler v. Jetco*, 849 S.W.2d 91, 95 (Mo. App. 1993); *Thomas v. Festival Foods*, 202 S.W.3d 625, 627 (Mo. App. 2006). Dr. Farmer rendered his opinions without reviewing either the records of Dr. Tan or those of Dr. Trone regarding their treatment of employee's right shoulder condition before July 2018. More important, Dr. Farmer did not have available for his review the April 24, 2017, right shoulder x-ray. Had Dr. Farmer reviewed Dr. Tan's records, he would have known employee had positive impingement signs in the right shoulder fourteen months before the accident. And, had Dr. Farmer reviewed the April 24, 2017, right shoulder x-ray, he would have known that study documented a high-riding humeral head, indicative of chronic rotator cuff injury, and moderate arthritic changes at the AC joint, over a year before the work event. However, Dr. Farmer rendered his opinions in the absence of this crucial objective medical evidence.

In addition to not having the April 24, 2017, right shoulder x-ray available for his review, Dr. Farmer misread the July 12, 2018, x-ray study. Dr. Farmer erroneously found that study showed mild degenerative changes of the AC joint, but no superior migration of the humeral head or other abnormality. However, the July 12, 2018, x-ray did show superior luxation of the humeral head relevant to the glenoid, with narrowing of the acromiohumeral interval. Since Dr. Farmer did not review the April 24, 2017, x-ray, and misread the x-ray study taken after the accident his findings were without support in the objective medical evidence. *Id.*; § 287.190.6(2).

Dr. Farmer also rendered his opinions without a full awareness of employee's preexisting right shoulder condition and related complaints, as employee reported to Dr. Tan and as documented in the records of that physician and those of Dr. Trone. Absent this crucial medical evidence, Dr. Farmer had neither an accurate nor a complete picture of employee's preexisting right shoulder condition, pathology, and complaints related thereto. Dr. Farmer premised his findings on the employee's history, her subjective complaints, and her description of a "traction injury" resulting from the accident. Significantly, Dr. Farmer based his opinions on employee's history that her right shoulder symptoms began after the accident, a history refuted by the records of both Drs. Tan and Trone. Dr. Farmer did not premise his opinions on substantial information based on the objective medical evidence, but rather on an incorrect history from employee, an incomplete, inaccurate understanding of the nature and severity of employee's prior right shoulder condition and pathology, and without proper consideration of the objective medical evidence and findings documented on the diagnostic studies. Accordingly, Dr. Farmer's opinions were without a substantial basis in fact, and did not constitute competent or substantial evidence on the related issues of medical causation and compensable injury. *Thomas*, 202 S.W.3d at 627. Given the multiple deficiencies in Dr. Farmer's findings and opinions, the administrative law judge erred and acted contrary to the overwhelming weight of the evidence in rejecting Dr. Tarbox's opinions, and choosing, instead, to rely on the opinions of Dr. Farmer. *Johnson*, 281 S.W.3d at 891.

Injury No.: 18-050218

Employee: Georgetta Hull

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Admission of report of employee's expert, Dr. Snyder

In finding employee's right shoulder condition was caused by the accident, the administrative law judge relied on the findings of Dr. Snyder, employee's examining physician, to the effect that the accident increased employee's right shoulder pain, reduced her range of shoulder motion, and caused weakness in her right arm and shoulder. The administrative law judge erred in relying on the opinions of Dr. Snyder in concluding employee's right shoulder condition constituted a compensable injury for two reasons. First, Dr. Snyder's report was inadmissible, since employee failed to comply with the mandatory requirements of § 287.210.7. Second, like Dr. Farmer, Dr. Snyder rendered his opinions without reviewing the treatment records of Drs. Tan and Trone, and without knowledge of the April 24, 2017, x-ray study and findings documented therein. Moreover, Dr. Snyder premised his opinions on the history employee provided, which was incorrect and contradicted by the medical records. Rather than relying on the objective medical evidence, Dr. Snyder relied on employee's inaccurate history and subjective complaints. Thus, even assuming Dr. Snyder's report was admissible it could not support the administrative law judge's findings of causation and compensable injury as a matter of law. *Thomas, 202 S.W.3d at 627; Heisler, 840 S.W.2d at 95*.

The administrative law judge erred as a matter of law in finding Dr. Snyder's report to be admissible at hearing even though employee failed to comply with the mandatory requirements of § 287.210.7. That provision of the Act permits the submission of the medical report of a treating or examining physician, in the place of live or deposition testimony, without additional foundational evidence, subject to a party's compliance with the procedures set forth therein. *Burchfield v. Renard Paper Co., 405 S.W.3d 589, 591 (Mo. App. 2003)*. Per the express language in § 287.210.7, as construed by Missouri decisions, if a party to a claim fails to satisfy the mandatory procedures set forth in the statute, an administrative law judge can refuse to admit the proffered medical report into evidence. *Id*.

The administrative law judge acted in contravention of § 287.310.7, since she admitted Dr. Snyder's report into evidence, even though employee failed to comply with the mandatory requirements of § 287.210 in multiple respects. Employee failed to include, along with her notice, a complete copy of all the medical records and diagnostic studies that Dr. Snyder reviewed and relied on in rendering his findings, as required by the explicit terms in § 287.210.7. Absent in that statutory provision is any language allowing the party proffering the medical report to determine which records will and will not be served on the opposing party. *Burchfield, 405 S.W.3d at 591*. However, that is precisely what the administrative law judge allowed employee to do herein. The administrative law judge admitted Dr. Snyder's report into evidence, even though it was undisputed employee did not serve on the employer all of the medical records and diagnostic studies that physician reviewed and relied upon in rendering his opinions. Moreover, the administrative law judge erred in admitting Dr. Snyder's report into evidence, since employee failed to provide employer with a reasonable opportunity to cross-examine Dr. Snyder, as § 287.210.7 requires. In doing so, the administrative law judge misconstrued *McDowell v. Mo. DOT, 529 S.W.3d 898 (Mo. App. 2017)*. *McDowell* holds the party offering the physician's report must undertake some affirmative action, to make the physician available to the opposing party, such as providing the physician's available dates, or scheduling the deposition of the physician.

Injury No.: 18-050218

Employee: Georgetta Hull

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The administrative law judge ignored the undisputed evidence, which showed employee failed to undertake any affirmative action in this regard. Contrary to the administrative law judge's construction of McDowell, it is the obligation of the party proffering the medical report to make the physician available. Id. Even though employee failed to do so, the administrative law judge admitted Dr. Snyder's report into evidence.

Relatedly, the administrative law judge erred in that she found a party's failure to comply with § 287.210.7 goes only to the weight, rather than to the admissibility, of the medical report. This construction ignores the explicit statutory language, which speaks in terms of admissibility of the physician's report and opinions therein, not the weight to be given to those opinions. Specifically § 287.210.7 states the testimony of a physician may be submitted in evidence, and shall be admissible without other foundational evidence, subject to compliance with the procedures set forth therein. Further, the statute states if an opposing party objects to the medical report, the administrative law judge shall rule on the objection and on "the admissibility of the report." § 287.210.7. The administrative law judge's construction of § 287.210.7 is erroneous, because it is without support in the explicit terms of that provisions. Since employee failed to comply with the mandatory requirements of § 287.210.7, the administrative law judge erred as a matter of law in admitting the report of Dr. Snyder into evidence. Burchfield, 405 S.W.3d 591.

Even assuming, arguendo the report of Dr. Snyder was admissible, the administrative law judge erred and acted contrary to the overwhelming weight of the competent and substantial evidence in relying on the findings of that physician. Johnson, 281 S.W.3d at 891. Like Dr. Farmer, Dr. Snyder did not have a substantial basis in fact for his opinions on causation and the related issue of compensable injury, since he did not have the records of either Drs. Tan or Trone for review, and more important, did not review the April 24, 2017, x-ray, documenting employee's preexisting right shoulder pathology. In rendering his opinions, Dr. Snyder relied on employee's history and subjective complaints, rather than the objective medical evidence. When evaluated by Dr. Snyder, employee provided the physician with a history that she experienced only minimal shoulder symptoms and complaints preceding the accident. Had Dr. Snyder reviewed the records of Drs. Tan and Trone, he would have been aware that the history employee provided was not accurate. Thomas, 202 S.W.3d at 627. And, because he did not have available for his review the April 24, 2017, right shoulder x-ray, Dr. Snyder was unaware of the precise nature of employee's preexisting, chronic right shoulder pathology. Nor was he able to compare the right shoulder pathology documented on the April 2017 x-ray with the pathology documented on diagnostic studies taken after the accident. Simply put, Dr. Snyder could not provide an informed or probative opinion as to whether the accident caused a change in employee's preexisting right shoulder pathology, since he had no accurate understanding of what that preexisting pathology was. Wolfgeher, 646 S.W.2d at 784. Dr. Snyder could not reasonably find the accident caused a worsening of the tear in employee's right shoulder, since he did not have an accurate understanding of the precise nature of employee's preexisting right shoulder pathology, including her preexisting, chronic rotator cuff tear. Thomas, 202 S.W.3d at 627; Heisler, 849 S.W.2d at 95. Relatedly, Dr. Snyder's opinion was deficient, in that even though he found the accident "worsened" employee's rotator cuff tear, he failed to offer any explanation in his report as to how the accident served to worsen or

Injury No.: 18-050218

Employee: Georgetta Hull

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exacerbate employee's preexisting, chronic rotator cuff tear. *Mueller v. Treas.,* 87 S.W.3d 36 (Mo. App. 2002).

Dr. Snyder's opinions were without a substantial basis in fact. As such, his report and the opinions contained therein did not constitute competent or substantial evidence that could support a finding that the accident was the prevailing factor causing employee's right shoulder condition and complaints. *Thomas,* 202 S.W.3d at 627; *Heisler,* 849 S.W.2d at 95. These deficiencies, like employee's failure to satisfy § 287.210.7, go to the admissibility of the doctor's report, rather than merely the weight to be given to his opinions. *Thomas,* 202 S.W.3d at 627. Medical opinion of the nature provided by Dr. Snyder cannot support a finding of medical causation, as a matter of law. *Id.*

**Conclusion**

The administrative law judge erred in granting employee future treatment to cure and relieve her right shoulder. To recover medical treatment, an employee must show the medical care sought flowed from a work-related injury, and is reasonable and necessary to cure or relieve that injury. *Tillotson v. St. Joseph's Medical Center,* 347 S.W.3d 511, 521 (Mo. App. 2011). Where the medical treatment sought is not reasonable or necessary to cure or relieve a work-related injury, it is not employer's responsibility to provide such medical care. *Jones v. Jefferson City School District,* 801 S.W.2d 486, 490 (Mo. App. 1990). Employee failed to show either that her right shoulder condition and the pathology documented on the objective diagnostic studies constituted a work-related injury, or that the July 2, 2018, accident was the prevailing factor causing her right shoulder condition. Thus, employee was not entitled to an award of medical care, and the administrative law judge erred as a matter of law in granting employee future medical treatment, including surgery, for her right shoulder condition and complaints. *Id.*

Because the majority finds otherwise, I respectfully dissent.

Reid K. Forrester, Member

Issued by DIVISION OF WORKERS' COMPENSATION

**Employee:** Georgetta Hull

**Dependents:** N/A

**Employer:** Valitas Health Services, Inc., d/b/a Corizon Health

**Additional Party:** Second Injury Fund (not participating)

**Insurer:** New Hampshire Insurance Company

**Hearing Date:** May 20, 2019

**Injury No.:** 18-050218

**Before the Division of Workers' Compensation**

**Department of Labor and Industrial Relations of Missouri**

**Jefferson City, Missouri**

**Checked by:** LBS

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: July 2, 2018
5. State location where accident occurred or occupational disease contracted: Vandalia, 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 happened or occupational disease contracted: Claimant was attempting to close a door when a Department of Correction's employee jerked it away.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Right shoulder
14. Compensation paid to-date for temporary disability: None
15. Value necessary medical aid paid to date by employer/insurer? $3,977.01
16. Value necessary medical aid not furnished by employer/insurer? $200.00

WC-32-R1 (6-81)

Page 1

1. Employee's average weekly wages: $\ 979.20
2. Weekly compensation rate: $\$ 652.80 / \ 496.20
3. Method wages computation: By stipulation and by using the Division of Workers' Compensation Rate Chart

1. Amount of compensation payable:

Past medical expenses:

$\ 200.00

TOTAL

$\ 200.00

1. Second Injury Fund liability: N/A
2. Future requirements awarded:

Employer/Insurer is ordered to provide medical care to cure and relieve Claimant's right shoulder injury.

Each of said payments to begin and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % which is awarded above as costs of recovery of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Matthew Uhrig.

Issued by DIVISION OF WORKERS' COMPENSATION

**Employee:** Georgeta Hull

**Dependents:** N/A

**Employer:** Valitas Health Services, Inc., d/b/a Corizon Health

**Additional Party:** Second Injury Fund (not participating)

**Insurer:** New Hampshire Insurance Company

**Hearing Date:** May 20, 2019

**Injury No.:** 18-050218

**Before the Division of Workers' Compensation**

**Department of Labor and Industrial Relations of Missouri**

**Jefferson City, Missouri**

---

On May 20, 2019, an evidentiary hearing was held in this matter in Columbia, Missouri. Georgetta Hull ("Claimant") appeared in person and was represented by her counsel, Matthew Uhrig. Robert Haeckel represented Valitas Health Services, Inc., d/b/a Corizon Health ("Employer"), and its insurer, New Hampshire Insurance Company ("Insurer"). The Second Injury Fund is a party to this matter, but did not participate in the hearing.

This case is venued in Columbia, Missouri, but Judge Lee Schaefer, a judge from the St. Louis office, tried this matter because of administrative issues. The attorneys consented to Judge Schaefer trying this matter. Prior to being reassigned to Judge Shaefer, this matter was on the docket of Judge Bruce Farmer.

The parties stipulated to the following facts:

1. On or about July 2, 2018, Claimant had an event arising out of and in the course and scope of her employment when she was attempting to close a door and a Department of Corrections employee jerked it away;
2. Claimant was an employee of Employer, and Employer's workers' compensation liability carrier was New Hampshire Insurance Company;
3. Claimant's event occurred in Vandalia, Missouri;
4. Claimant and Employer/Insurer were subject to the Missouri Workers' Compensation Act and Claimant was an "employee" within the meaning of the Act;
5. Venue for the hearing was proper in Columbia, Missouri;
6. Claimant provided timely notice of the accident and alleged injury to Employer;
7. Claimant filed her Claim for Compensation in a timely manner;
8. Employer/Insurer has not paid any Temporary Total Disability benefits to Claimant;
9. Employer/Insurer has paid medical benefits in the amount of $3,977.01.

WC-32-R1 (6-B1)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 18-050218

The issues to be resolved at hearing are as follows:

1. Did Claimant sustain an accidental injury in the event of July 2, 2018?
2. Is the condition in Claimant's right shoulder medically casually related to the July 2, 2018 event?
3. Is Employer/Insurer responsible to provide medical care and treatment to relieve Claimant's right shoulder injury?
4. Is Employer/Insurer responsible for the $200.00 medical bill from the Columbia Orthopaedic Group?

Claimant offered and had admitted into Evidence, the following Exhibits:

- Exhibit 1: Notice of Submission of medical report of Dr. Michael Snyder

- Exhibit 2: Medical report of Dr. Michael Snyder

- Exhibit 3: Curriculum vitae of Dr. Michael Snyder

- Exhibit 4: Notice of Service of Business Records dated March 18, 2019

- Exhibit 5: Notice of Service of Business Records dated April 11, 2019

- Exhibit 6: Medical records of Columbia Orthopaedic Group

- Exhibit 7: Medical records of the University of Missouri Health System

- Exhibit 8: Medical records of Hedrick Family Care

- Exhibit 9: Medical records of Pike County Memorial Clinic

- Exhibit 10: Deposition of Corporate Representative - Renee Shade

- Exhibit 11: Employee file of Georgeta Hull

- Exhibit 12: Demand for Medical Treatment dated October 5, 2018

- Exhibit 13: Demand for Medical Treatment dated December 10, 2018

- Exhibit 14: Medical bill from Columbia Radiology, Ltd.

- Exhibit 15: Response to Objection to Submission of Medical Report

Employer/Insurer offered and had admitted into Evidence, the following Exhibits:

- Exhibit A: Employer/Insurer's Amended Answer to Claim for Compensation

- Exhibit B: Medical records of Dr. Tan of Hedrick Family Care

- Exhibit C: Medical records of Pike County Memorial Clinic (Dr. Trone)

- Exhibit D: Deposition of Dr. Byron Tarbox

- Exhibit F: Employer/Insurer's Objection to the admission of Dr. Michael Snyder's Medical report

WC-32-R1 (6-B1)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 18-050218

**Notes:** Any stray marks or handwritten comments contained on any of the exhibits were present on those exhibits at the time they were admitted into evidence and no other marks have been made since their admission into evidence on May 20, 2019.

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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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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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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