The administrative law judge erred in finding that employee failed to sustain her burden of proof that she sustained an occupational disease as the result of her work for employer.
Employer produced a "Physical Demands Analysis" form allegedly describing employee's job duties.¹ Employer's form is dated March 14, 2013, two days after its administrator learned of employee's report of injury.² Employer's form lacks identifying information such as employee's full name and job title. It omits details about frequency, duration, speed, awkwardness, vibration, or weight involved in the listed work activities that would have been relevant to whether the stress placed on employee's upper extremities was sufficient to have caused injury. Employer's "analysis", hastily prepared after employee reported an injury and employer assigned her to light duty, is tantamount to useless in determining what employee's job activities were.
Employer's expert Dr. Strege relied on the information on employer's Physical Demands Analysis form in developing his opinion on medical causation yet failed to review employer's form with employee to see if she agreed or disagreed with the information it set out regarding her job duties. Dr. Strege conceded that had he known more about repetitive trauma activities involved with employer's operation, especially if employee performed those activities five or more times per minute with arms reaching and overhead, it may have changed his opinion in favor of causation.
The administrative law judge's award made no findings regarding the credibility of employer's Physical Demands Analysis form or Dr. Strege's opinion. The majority attempts to correct this deficiency by simply deeming Dr. Strege more credible than Dr. Poetz and downplaying Dr. Strege's reliance on the information included in employer's bogus analysis. Neither opinion discredits employee's testimony regarding her work duties. No credible evidence contradicted employee's testimony regarding her work duties and yet the award was in employer's favor.
The administrative law judge erred as a matter of law by forming her own lay medical opinion when she opined that Dr. Poetz failed to identify the risk or hazard employee was exposed to at employer's workplace. It is firmly established under Missouri law that an administrative law judge, as a layperson, may not insert her own opinion on complex matters of medical causation in lieu of a medical expert. *Barnes v. Treasurer of Missouri*, 532 S.W.3d 751, 755 (Mo. App. 2017), citing *Pruett v. Fed Mogul Corp.*, 365 S.W.3d 296, 306 (Mo. App. 2012). In the last full paragraph of her Award, the administrative law judge states:
> Ms. Comparato's own physician, Dr. Poetz, merely concluded that the use of the arms at work caused her left shoulder injury; there was no
1 Transcript, 756.
2 Notably, the hearing record incorrectly identifies this record as a "Physical Demand Analysis, prepared by Steve Kuhn dated '3/14/17' [emphasis added]." See Transcript, iii, Index, Exhibit C.
Injury No. 13-015939
Employee: Constance Comparato
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evidence with regard to the type of duration of activity which he believed was responsible for her left shoulder complaints. Award, p. 7.
The administrative law judge did not take into account the fact that employee provided Dr. Poetz a description of her job duties and the physical requirements of those job duties. In her summary conclusion, the administrative law judge actually inserted her own medical opinion that it is even necessary for the doctor to indicate the type of duration of activity to support a medical opinion on causation. The administrative law judge failed to cite any support for her opinion that Dr. Poetz's opinion was deficient, or for her conclusion that the type and duration of activity is necessary to support a medical causation opinion for shoulder complaints.
It is error for an administrative law judge to indicate the medical requirements of causation in order to discount the ultimate opinion of a medical expert when the administrative law judge has no other credible expert opinion to support her finding. The mere fact that Dr. Poetz found that all of employee's work duties combined to cause employee's left shoulder injury and need for surgery does not make his opinion deficient.
At hearing and in her June 4, 2013, deposition employee testified credibly and in detail about the repetitive and fast-paced nature of her job duties and the physical requirements of those duties. Employee is five feet two inches tall. Her height forced her to work above shoulder level and above her head on most of the machines. Employee provided photographs of one of the machines she worked on that demonstrated how her short stature contributed to the unique risks and hazards of performing her job duties. Employee completed around 2400-3000 pieces per shift with five to six hand and arm motions per piece. She worked full-time, eight hours per day with two fifteen minute breaks and a one-half hour for lunch and frequently had to meet deadlines. The administrative law judge erred in totally ignoring Dr. Poetz's opinion in conjunction with employee's testimony, which support a finding of occupational disease leading to employee's shoulder injury.
Employee provided detailed information about her job duties and the physical requirements of her job to Dr. Poetz. Based on this understanding of employee's job duties and employee's description to Dr. Poetz of working at a fast pace at a job that was repetitive and required excessive movement of her arms, Dr. Poetz opined that employee's ongoing work activities were the substantial and prevailing factor in causing her left shoulder rotator cuff tear and the resultant disability.
By comparison, Dr. Strege admitted in his deposition that although he relied in part on employer's Physical Demand Analysis form, he did not ask employee about the accuracy of any of the information in the document. Dr. Strege further conceded that employer's form was ambiguous and lacked important information necessary for forming a causation opinion.
After employee had surgery on her left shoulder, Dr. Strege amended his diagnosis to include rotator cuff tear. However, he then determined that the tear was due to a "prior"
Injury No. 13-015939
Employee: Constance Comparato
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condition, even though employee had been working for employer for fifteen years without restrictions or accommodations. Dr. Strege also admitted that repetitive trauma could cause the type of shoulder injury employee suffered, but did not explain why he believed employee's impingement syndrome and rotator cuff tear was a "preexisting" condition. Dr. Strege opined that he could not identify any strenuous overhead activity that employee engaged in at work, but also admitted that he may have lacked relevant information regarding employee's job duties.
Dr. Strege's opinion is inconsistent and therefore, not credible. Employee's credible testimony and Dr. Poetz's opinion constitute substantial evidence that employee's job duties were the prevailing factor in causing her left shoulder injury, the need for surgery, and her permanent disability.
The administrative law judge's denial of compensation should be reversed because employee's credible testimony and Dr. Poetz's expert medical opinion are substantial evidence that employee sustained an occupational disease as the result of her work for employer.
I respectfully dissent from the majority's denial of all compensation in this case.
Shalonn K. Curls, Member