Constance Comparato v. Lyn Flex West, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No. 13-015939**

**Employee:** Constance Comparato

**Employer:** Lyn Flex West, Inc.

**Insurer:** National Union Fire Insurance Company of Pittsburgh

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

We affirm the administrative law judge's finding that employee failed to sustain her burden of proving that she sustained an occupational disease related to her work.

In so finding, we rely on the expert medical opinion of orthopedic surgeon Dr. David W. Strege. Dr. Strege examined employee on August 7, 2013 and again on August 27, 2014. His written reports and November 16, 2015, deposition are included in the record. Dr. Strege reviewed employee's medical records and deposition testimony. He questioned employee about her employment history and the nature of her job activities. Dr. Strege noted that employee's radiographs showed degenerative changes. He found she had rotator cuff tendinitis and impingement syndrome, worse on the left than the right and that these conditions had been successfully with a cortisone injection. Dr. Strege noted that although employee described symptoms consistent with lateral epicondylitis she demonstrated no evidence of this condition. Dr. Strege found that employee had arthritis in her hands and that her job activities were not the prevailing factor causing this condition. He further opined that employee's work activities were not the prevailing factor causing her shoulder condition. Dr. Strege considered employee to have reached maximum medical treatment. He opined she needed no further treatment. Dr. Strege credibly testified that employer's "Physical Demands Analysis," dated shortly after employee reported her alleged injury to employer, contributed minimally to his medical causation findings.

We credit Dr. Strege's opinion that employee sustained no permanent partial disability as a result of any work injury. We find Dr. Strege's expert opinion more persuasive and credible than physician Dr. Robert P. Poetz's opinion to the contrary.

The above clarifications of the administrative law judge's award do not detract from her correct analysis of the evidence in the record or her ultimate legal conclusions.

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

The award and decision of Administrative Law Judge Hannelore D. Fischer, dated September 12, 2019, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this **27th** day of March 2020.


**LABOR AND INDUSTRIAL RELATIONS COMMISSION**


Robert W. Cornejo, Chairman

*Reid K. Forrester, Member*

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

*Secretary*

Injury No. 13-015939

Employee: Constance Comparato

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

Employee: Constance Comparato

Injury No.: 13-015939

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Lyn Flex West, Inc.

Additional Party: Treasurer of the State of Missouri

Custodian of the Second Injury Fund

Insurer: National Union Fire Insurance Company of Pittsburgh TPA - AIG Claims, Inc.

Hearing Date: July 9, 2019

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: HDF/scb

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: Alleged March 4, 2013
5. State location where accident occurred or occupational disease was contracted: Alleged Gasconade County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: See Award
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: -0-
15. Compensation paid to-date for temporary disability: -0-
16. Value necessary medical aid paid to date by employer/insurer? - 0 -

WC-32-R3 (0-81)

1. Value necessary medical aid not furnished by employer/insurer? - 0 -
2. Employee's average weekly wages: $\ 307.36
3. Weekly compensation rate: $\ 204.91 for all benefits
4. Method wages computation: By agreement

1. Amount of compensation payable: -0-
2. Second Injury Fund liability: $\quad-0-$
3. Future Requirements Awarded: None

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on July 9, 2019. Memoranda were submitted by August 2, 2019.

The parties stipulated that on or about March 4, 2013, the claimant, Constance Comparato, was in the employment of Lyn Flex West, Inc. (Lyn Flex). The employer was operating under the provisions of Missouri's workers' compensation law; workers' compensation liability was insured by National Union Fire Insurance Company of Pittsburgh; AIG Claims is the third party administrator. The employer had timely notice of the injury. A claim for compensation was timely filed. The claimant's average weekly wage was 307.36; the corresponding compensation rate is 204.91 per week for all benefits. No temporary disability benefits have been paid. No medical aid has been provided.

The issues to be resolved by hearing include 1) the occurrence of an occupational disease, 2) whether the alleged occupational disease arose out of and in the course of employment, 3) the medical causation of the alleged occupational disease, 4) the liability of the employer/insurer for past temporary total disability benefits from November 21, 2013, through February 20, 2014, a period of 13 weeks and one day for a sum of $2693.10 (the parties agree that this sum would be due given an award favorable to the claimant on the preliminary issues), 5) the liability of the employer/insurer for past medical bills in the amount of $29,147.58 (the parties agree that this sum would be due given an award favorable to the claimant on the preliminary issues), 6) the nature and extent of permanent partial disability, noting that permanent partial disability is sought, 7) the liability of the Second Injury Fund, 8) the liability of the employer/insurer for future medical treatment, and 9) the liability of the employer/insurer for disfigurement.

The claimant, Constance Comparato, was born on February 14, 1951, making her 68 years old as of the date of hearing. Ms. Comparato testified that she began working for Lyn Flex in 1998.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Constance Comparato

Injury No. 13-015939

making parts for shoes which were then shipped out. Ms. Comparato opined that she worked on 2,400 to 3,000 parts per eight-hour work shift. Ms. Comparato worked a 40-hour per week schedule on the day shift for Lyn Flex with two 15-minute breaks and a 30-minute lunch break. Ms. Comparato described herself as a laborer working on different machines as well as in shipping. Ms. Comparato said that she is five feet two inches tall and would often work on a skid to make her a little taller when she was standing at a machine. Ms. Comparato said that she sat at machines more than stand at them. Ms. Comparato said that when she did not have a stool to stand on she would have to reach up with her hands above shoulder level. Ms. Comparato described the laminating, embossing, and cutting machines as machines which sometimes required her to raise her arms. Ms. Comparato said that the laminating and cutting machines vibrated when they were broken. According to Ms. Comparato the embossing machine required use of her hands to operate knobs that were above shoulder level but her upper arms were not above shoulder level; the embossing machine involved no torque or vibration. Ms. Comparato said that the cutting machine required her to use her arms out in front of her only slightly above shoulder level. When Ms. Comparato used the spraying machine she had her left arm above her head; the filled sprayer weighed six to seven pounds; apparently repairs were made to the spraying machine by maintenance at some point. The stamping machine was, according to Ms. Comparato, the most troublesome for her left shoulder; the stamper weighed less than a pound; however, according to Ms. Comparato, there might be three to four wagons of parts to be stamped. Ms. Comparato said that she might work on 2,400 to 3,000 pieces per shift.

Ms. Comparato said that her left shoulder began hurting her in 2012 and got worse after time. Ms. Comparato reported her pain but was denied treatment for the left shoulder. Ms. Comparato then got treatment on her own for her left shoulder. Ms. Comparato had surgery on her left rotator cuff on November 21, 2013, with Dr. Linz. Ms. Comparato currently has little strength in her left arm, stating that she can only lift 10 to 12 pounds where she could lift up to 40 pounds before she had left shoulder symptoms.

Ms. Comparato described having stress, anxiety, and depression since the 1980's which, according to Ms. Comparato, affected her memory, caused headaches, and did not allow her to breathe properly; Ms. Comparato said that despite medications to control her symptoms she would occasionally miss work. Ms. Comparato said that she had no panic attacks while working at Lyn Flex. Ms. Comparato has had diabetes, type 2, since 2003, causing her to have cold sweats, shaking, dizziness, and thirst, with an ensuing increase in trips to the bathroom. Ms. Comparato also testified to having arthritis in her knees since she was in her 40's. Ms. Comparato said that she takes oxycodone and Percocet for her knees but that these medications also help her shoulders. Ms. Comparato also lost part of her left index finger when a car door was shut on her hand in the 1990s. According to Ms. Comparato she uses a cane due to the condition of her knees, a motorized cart to shop, and no longer walks in thrift stores or yard sales because she cannot stand or walk, and she cannot crochet due to the part of her left index finger which is missing.

During cross-examination Ms. Comparato admitted that she was released to return to work without restrictions after her treatment, including surgery, for her left shoulder with Dr. Linz.

WV-32-R3 (6-01)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Constance Comparato

Injury No. 13-015939

Ms. Comparato said that with the exception of the laminating machine that she worked at tables while at Lyn Flex, rather than on an assembly line. Ms. Comparato said that the type of work she did, particularly using her arms and shoulders, depended on the table she was working at and that she worked on different tables on different days. Ms. Comparato said that prior to 2013 she sat more than stood as she worked at the different tables at Lyn Flex. Ms. Comparato acknowledged that the only medication she takes for her left shoulder is oxycodone and that she initially took this for her knees and has continued taking it after her left shoulder injury; Ms. Comparato said that she would have continued taking oxycodone for her knees regardless of her left shoulder injury. Ms. Comparato was unsure of the number of pieces she handled on any of the Lyn Flex machines or how many pieces she handled per shift.

Ms. Comparato said that her diabetes and depression and anxiety were controlled by medications when asked about the medications by counsel for the Second Injury Fund.

When asked again about her use of oxycodone, Ms. Comparato said that her usage of oxycodone has increased and that the increase is due to her knees and left shoulder. Ms. Comparato acknowledged that she takes no medication solely as the result of her left shoulder pain.

Dr. Robert Poetz, osteopathic physician and surgeon, evaluated Ms. Comparato on May 8, 2014, and issued a report based on that evaluation on July 10, 2014. Dr. Poetz described Ms. Comparato's work as "gripping a stamper and imprinting sizes into the insoles; operating the embosser which involves putting material into a machine and pushing two levers; skiving up to 2400 pieces of material; and using a hot melt on the materials before putting them in a presser; and operating a glue sprayer by use of her left hand. She also runs a cutting machine, and uses drills and other hand tools to complete her tasks." (Poetz report 7.10.14) Dr. Poetz report states that Ms. Comparato told him that she worked at a fast pace and that there was excessive movement of the arms. Dr. Poetz diagnosed Ms. Comparato with a left shoulder rotator cuff tear and impingement syndrome with exacerbation of degenerative joint disease. Dr. Poetz concluded that Ms. Comparato has a 35 percent permanent disability of the left shoulder as the result of her work at Lyn Flex. Dr. Poetz opined that Ms. Comparato was temporarily totally disabled from November 21, 2013, through February 20, 2014. Dr. Poetz opined that Ms. Comparato's medical bills associated with the left shoulder surgery were incurred for reasonable and necessary treatment. Prior disabilities were rated by Dr. Poetz as follows: 5 percent left shoulder, 15 percent body referable to anxiety and depression, 15 percent body referable to diabetes, 20 percent of the left hand, 15 percent of the left knee and 10 percent of the right knee.

Dr. David Strege, orthopedic surgeon, testified by deposition that he evaluated Ms. Comparato twice, on August 7, 2013, and on August 27, 2014, issuing reports based on each of the evaluations and dated the date of each evaluation, respectively. Dr. Strege understood Ms. Comparato's work for Lyn Flex to consist of work 40 hours per week, full duty activities; Dr. Strege believed Ms. Comparato performed a variety of activities for Lyn Flex, including trimming, cutting components for shoes, using an ink pad to stamp parts, and using a sprayer to spray parts, up to several thousand parts per day. Dr. Strege noted that Ms. Comparato had had a left rotator cuff repair in November of 2013. Dr. Strege did not believe that the left rotator cuff tear or the surgery to correct that resulted from Ms. Comparato's employment with Lyn Flex.

WV-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Constance Comparato

Injury No. 13-015939

Dr. Strege admitted that a rotator cuff tear can result from repetitive use. Dr. Strege said that rapid twisting of the shoulder, rapid motions of the shoulder, different or excessive forces, awkward or static posture, overextension or excessive stretching of the shoulder and the shoulder muscles, fast movements, and vibration could also cause a rotator cuff tear. Dr. Strege did not believe that Ms. Comparato's work for Lyn Flex involved the strenuous overhead activity which would result in rotator cuff tendinitis or impingement.

APPLICABLE LAW

"The claimant in a workers' compensation case has the burden to prove all essential elements of his claim including a causal connection between the injury and the job." *Royal v. Advantica Rest. Group, Inc.*, 194 S.W. 3d 371, 376 (Mo.App. W.D. 2006) (citations and quotations omitted.)

While the claimant is not required to prove the elements of his claim on the basis of "absolute certainty," he must at least establish the existence of those elements by "reasonable probability." *Sanderson v. Porta-Fab Corp.*, 989 S.W. 2d 599, 603 (Mo.App. E.D. 1999). "Probable' means founded on reason and experience, which inclines the mind to believe, but leaves room for doubt." *Mathia v. Contract Freighters, Inc.*, 929 S.W. 2d 271, 277 (Mo.App. S.D. 1996).

Under Section 287.067.3: An injury due to repetitive motion is recognized as an occupational disease for the purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The prevailing factor is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

Claimant must establish, generally through expert testimony, the probability that the claimed occupational disease was caused by conditions in the work place. *Selby v. Trans World Airlines, Inc.*, 831 S.W. 2d 221, 223 (Mo.App. 1992); *Brundage v. Boehringer*, 812 S.W. 2d 200 (Mo.App. 1991). The claimant must prove "a direct causal connection between the conditions under which the work is performed and the occupational disease." *Sellers v. Trans World Airlines, Inc.*, 752 S.W. 2d 413, 416 (Mo.App. 1988); *Webber v. Chrysler Corp.*, 826 S.W. 2d 51, 54 (Mo.App. 1992); *Estes v. Noranda Aluminum, Inc.*, 574 S.W. 2d 34, 38 (Mo. App. 1978).

A well-known principle of Workers' Compensation Law holds medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause. *Barnes v. Treasurer of Missouri as Custodian of Second Injury Fund*, 532 S.W. 3d 751, 755 (Mo. Ct. App. 2017). Expert opinion is required. *Id.*, citing *Pruett v. Fed. Mogul Corp.*, 365 S.W 3d 296, 306 (Mo.App. S.D. 2012). "Where the right to compensation depends upon which of two conflicting medical theories should be accepted, the issue is peculiarly for the Commission's determination." *Dierks v. Kraft Foods*, 471 S.W. 3d 726, 734 (Mo. Ct. App. 2015) (internal quotations omitted). "The [fact finder] is free to believe whatever expert it chooses as long as each opinion is based on substantial and competent evidence..." *Beatrice v. Curators of Univ. of Mo.*, 438 S.W. 3d 426, 437 (Mo.App. W.D. 2014).

W.C-32-81 (6-81)

Page 6

In all events and with all proofs and complex medical evidence, a medical expert's opinion must be supported by facts and reasons proven by competent evidence that will give the opinion sufficient probative force to be substantial evidence. Silman v. Wm. Montgomery \& Assoc., 891 S.W. 2d 173, 176 (Mo.App. 1995), citing Pippen v. St. Joe Mineral Corp., 799 S.W. 2d 898, 904 (Mo.App. 1990). Any weakness in the underpinnings of an expert opinion goes to weight and value thereof. Hall v. Brady Investments, Inc., 684 S.W. 2d 379 (Mo.App. 1984).

The claimant, Constance Comparato, has failed to sustain her burden of proof that she sustained an occupational disease as the result of her work for Lyn Flex. Ms. Comparato testified to the variety of work she did for Lyn Flex and the use of her arms in various positions while she operated a variety of machines to produce and assemble parts of shoes. While there was testimony from Ms. Comparato that she used her arms and shoulders at work, Ms. Comparato presented no evidence with regard to what she did on a repetitive basis that caused her to sustain an injury to her left shoulder. 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 evidence with regard to the type or duration of activity which he believed was responsible for her left shoulder complaints.

All other issues raised for resolution are hereby rendered moot.