John D'Angelo v. Metropolitan St. Louis Sewer District

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

**Injury No.:** 15-012160

**Employee:** John D'Angelo

**Employer:** Metropolitan St. Louis Sewer District (settled)

**Insurer:** Self-Insured (settled)

**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 reviewed the evidence, read the parties' briefs, heard oral arguments, and considered the whole record, we find that the award of the administrative law judge denying compensation for employee's Second Injury Fund claim 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.¹

Employee's claim against the Second Injury Fund herein involves a primary injury that occurred on March 1, 2015. Accordingly, pursuant to the decision by the Supreme Court of Missouri in the case of *Cosby v. Treasurer*, 579 S.W.3d 202 (Mo. 2019), the provisions under § 287.220.3 RSMo apply to employee's claim against the Second Injury Fund.

The administrative law judge's August 8, 2019, award, issued prior to *Cosby, supra*, incorrectly references § 287.220.1 (2014) as the law applicable to employee's claim against the Second Injury Fund for permanent total disability. It inaccurately suggests that employee's burden was to demonstrate "combination between his current PPD and pre-existing PPD resulting in permanent total disability".²

Ultimately, in light of our deference to the administrative law judge's weighing of the pivotal issue of the nature and extent of employee's preexisting disability, we need not undertake an analysis whether employee's evidence is sufficient to meet the criteria for permanent total disability claims against the Second Injury Fund under § 287.220.3. Rather, we simply wish to make clear our understanding that the *Cosby* ruling works the effect that § 287.220.3 applies to employee's claim against the Second Injury Fund herein.

The Commission approved a Stipulation for Compromise Settlement of employee's claim against the employer/insurer in this case on September 24, 2019. Employee's remaining claim for permanent total disability involves only the Second Injury Fund.

---

¹ Due to the Commission's September 24, 2019, approval of a Stipulation for Compromise Settlement of employee's claim against employer/insurer, the administrative law judge award allowing compensation for 20% permanent partial disability against employer/insurer relating to employee's March 1, 2015, primary injury is moot.

² Award, p. 12.

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The administrative law judge found employee failed to carry his burden of proving permanent total disability benefits against the Second Injury Fund because the better-qualified and more persuasive medical expert testimony in the record demonstrated that employee had no permanent partial disability attributable to any of his alleged preexisting conditions.

In so finding, the administrative law judge credited the opinion of Dr. Stephen Schuman, board certified in cardiovascular medicine, that employee had no preexisting disability because his cardiac and chronic obstructive pulmonary disease (COPD) conditions presented no pre-accident disabling symptoms that might form the basis of permanent disability. While acknowledging the contrary opinion of Dr. Gary Sides, the administrative law judge found Dr. Schuman "better qualified and more persuasive regarding both medical causation and the assessment of cardiac and COPD conditions in Claimant."

We affirm the administrative law judge's assessment of Dr. Schuman's expert opinion as well as his ruling on the Second Injury Fund's timely objection to Dr. Sides' testimony based on failure to comply with § 287.210.7, the *Seven Day Rule*. This ruling appropriately precluded consideration of Dr. Sides' evaluation of employee's preexisting disability for purposes of assessing Second Injury Fund Liability because Dr. Sides failed to include any rating of employee's preexisting permanent disabilities in his March 9, 2017, report.

Here, the administrative law judge provided detailed factual findings and explained his view of opinion evidence produced in this case at length. Other than our observation that the award incorrectly referenced the conditions for compensability of a permanent total disability claim for an injury occurring after January 1, 2014, we otherwise agree with the administrative law judge's findings and conclusions with regard to the other issues involved in this appeal.

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

The award and decision of Administrative Law Judge Joseph E. Denigan is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this **7th** day of May 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**


Robert W. Cornejo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

Attest:

Secretary

Award, p. 12.

Injury No. 15-012160

Employee: John D'Angelo

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 employee has proven he is entitled to permanent total disability benefits from the Second Injury Fund.

Employee was a long-term sewer worker for employer. Since at least 2011, employee had been under the care of cardiologists for aortic stenosis, a progressive cardiac condition. When employee sustained a serious shoulder injury on March 1, 2015, employer's authorized treating orthopedic surgeon, Dr. Christopher Rothrock, ultimately concluded that employee could not undergo recommended surgical repair because his preexisting cardiac condition was so disabling that submitting to the needed shoulder surgery would kill him.

Employee never received the surgical repair Dr. Rothrock recommended. As a result, he is left with a painful dominant right arm he cannot not raise above shoulder level. Climbing into and out of manholes was a primary function of employee's work for employer. Employee can no longer climb. Lacking skills and experience outside of sewer repair, employee is unable to successfully compete in the open labor market.

Pursuant to the Supreme Court of Missouri's decision in *Cosby v. Treasurer*, 579 S.W.3d 202 (Mo. 2019), § 287.220.3 RSMo applies to employee's claim against the Second Injury Fund in this case. This section requires employee to demonstrate that his preexisting aortic stenosis, not a compensable injury, equals a minimum of fifty weeks of permanent partial disability and directly and significantly aggravated or accelerated his March 1, 2015, work injury to result in permanent total disability.

The Second Injury Fund objected to Dr. Sides' opinion that employee's longstanding aortic stenosis constituted a 15% preexisting permanent partial disability, as this opinion was not included in Dr. Sides' original, March 9, 2017 report. The Commission is not bound by the exact disability percentages given by medical experts. See *Sharp v. New Mac Electrical Cooperative*, 92 S.W.3d 351 (Mo. App. 2003), citing *Jost v. Big Boys Steel Erection, Inc.*, 946 S.W.2d 777, 779 (Mo. App. 1997). The testimony of Drs. Schuman and Sides, as well as the objective entries in employee's medical records, establish that employee's preexisting disability from aortic stenosis was indeed severe by the date of his primary injury, and precluded surgical repair of his right shoulder. As a result, employee received no further care for his primary injury.

Dr. Rothrock's records document that employee continues to experience pain and weakness about his right shoulder. Employee's physical therapy records evidence his complaints of constant throbbing and aching pain in the right shoulder and upper arm, with a pain level ranging from five to seven out of ten. Employee has difficulty and pain with everyday functional activities, including reaching overhead and reaching to the side. He has trouble sleeping due to pain in his right shoulder. As Dr. Schuman concluded, "[Employee] may have to continue to suffer with pain in his shoulder because the surgery on his shoulder might be too risky for him."

Section 287.190.6.(2) of the Missouri Workers' Compensation Law provides, in pertinent part, "In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those finding demonstrable on physical examination or by appropriate tests or diagnostic procedures."

MNKOI 0000811657

Injury No. 15-012160

Employee: John D'Angelo

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The administrative law judge violated this provision by giving greater weight to employee's lack of subjective complaints prior to his work injury than to serial Doppler (a/k/a heart ultrasound or echocardiogram) studies that measured the progression of employee's aortic stenosis to severe over a period of years. The administrative law judge also disregarded the opinion of the Second Injury Fund's expert witness, Dr. Schuman, who testified that the aortic valve should be replaced once the aortic valve area shrinks to 0.7 cm, and employee's aortic valve area measured 0.65 cm prior to the March 1, 2015, date of primary work injury. Instead, the administrative law judge relied on employee's lack of subjective complaints of chest pain and shortness of breath to conclude that the objective Doppler studies were wrong.

The administrative law judge's denial of compensation is contrary to law and not supported by the competent and substantial evidence in the record. Because the majority finds otherwise, I respectfully dissent.

Shalonn K. Curls, Member

Employee: John J. D'Angelo

Injury No.: 15-012160

Dependents: N/A

Employer: St. Louis Metropolitan Sewer District

Additional Party: Second Injury Fund

Insurer: Self-Insured

Hearing Date: May 20, 2019

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

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: March 1, 2015
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Employee injured his shoulder when he slipped and fell on ice.
12. Did accident or occupational disease cause death? N/A Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: right upper extremity
14. Nature and extent of any permanent disability: 20 % PPD of the right shoulder
15. Compensation paid to-date for temporary disability: $\ 7,801.01
16. Value necessary medical aid paid to date by employer/insurer? $\ 28,922.02

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: $\$ 780.10 / \ 451.02
4. Method wages computation: Stipulation

1. Amount of compensation payable:

46.4 weeks PPD from Employer

$\ 20,927.33

1. Second Injury Fund liability: None

TOTAL:

$\ 20,927.33

1. Future requirements awarded: Unknown

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

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

Robert Kister

Employee: John J. D'Angelo

Dependents: N/A

Employer: St. Louis Metropolitan Sewer District

Additional Party: Second Injury Fund

Insurer: Self-Insured

Hearing Date: May 20, 2019

Injury No.: 15-012160

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

This case involves a compensable (unoperated) right upper extremity injury to Claimant with a reported injury date of March 1, 2015 with allegations of pre-existing disability against the Second Injury Fund ("SIF"). Claimant seeks permanent total disability benefits. All parties are represented by counsel. Any objection, not previously sustained, is overruled consistent with the findings and rulings herein.

All of Claimant's exhibits are contained in a single CD-ROM, marked Group Exhibit 1, in which Claimant identifies his exhibits numerically, 1 through 19. The other parties' exhibits were offered and marked conventionally.

1. medical causation;
2. nature and extent of permanent disability;
3. liability of the SIF.

1. Group Exhibit 1:

1) Deposition of Dr. Sides with exhibits ( 90 pages)

2) Deposition of Dr. Rothrock with exhibits ( 83 pages)

3) Deposition of Dr. Schuman with exhibits ( 144 pages)

4) Deposition of Susan Shea with exhibits ( 102 pages)

5) Deposition of Delores Gonzalez with exhibits ( 84 pages)

6) Deposition of Benjamin Hughes with exhibits ( 109 pages)

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 15-012160

7) SSM St. Clare Hospital ER records (34 pages)

8) Dr. Chris Rothrock, St. Louis Sports Health Medicine records (24 pages)

9) Dr. William Ricci, Washington University records (21 pages)

10) The Work Center physical therapy records (34 pages)

11) Dr. Hari Thanigaraj, St. Clare Heart Institute records (73 pages)

12) Dr. Gordon C. Knight records (201 pages)

13) Dr. Kenneth Kilian, Mercy Hospital Jefferson records (185 pages)

14) Dr. Christopher Speidel, Heart Care Associates records (50 pages)

15) Ambulance records, Valley Park Fire Protection (7 pages)

16) Dr. Sean T. Ragain, SSM St. Clare Health Center records (41 pages)

17) Twin City Surgery Center records (129 pages)

18) Dr. Gregg Ginsburg, Platinum Surgical Care (62 pages)

19) Workers' Compensation records (41 pages)

A. Deposition of Dr. Christopher R. Rothrock dated 11/7/17 and Exhibits A, B and C

B. Deposition of Delores Gonzalez dated 1/15/19 and Exhibits A and B

C. Correspondence from Bob Kister to Eric Christensen dated 5/19/19

I. Deposition of Benjamin Hughes dated 1/23/19 and Exhibits I - IV

II. Deposition of Dr. Stephen Schuman dated 1/20/19 with Exhibits I and II

On March 1, 2015, Claimant was injured while working for Employer when he slipped and fell on an icy ramp outside the Grand Glaize facility. Claimant slipped and fell and he fractured the humerus bone in the right arm. He was taken by ambulance to St. Clare Hospital for emergency treatment and his supervisor was notified of the accident. Claimant was immediately referred to Dr. Christopher Rothrock, an orthopedic surgeon, who, after several months of conservative treatment, referred Claimant to Dr. William Ricci for persistent symptoms.

Dr. Ricci noted a CT scan of the fracture showed some bridging callus, but also some gaps; he also noted the MRI scan showed no evidence of rotator cuff pathology. X-rays showed the fracture in satisfactory alignment, and Dr. Ricci felt there was a reasonable chance of the fracture healing solidly without surgical intervention. Claimant was advised to cut back or quit smoking, and more physical therapy was recommended. Claimant followed Dr. Ricci through August 25, 2015 at which time he still had stiffness and pain in his shoulder. X-rays showed the right proximal humerus fracture was healed, and Dr. Ricci recommended further evaluation for frozen shoulder.

Revised Form 31 (3/97)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 15-012160

Claimant returned to Dr. Rothrock and received a cortisone injection for his shoulder. Dr. Rothrock recommended right shoulder arthroscopy for diagnostic and treatment purposes, and anticipated the procedures would include manipulation of the right shoulder under general anesthesia with debridement and decompression.

Claimant's prior medical records show that in December 2011 he was diagnosed with aortic stenosis. He testified that he did not have any symptoms from his heart condition leading up to the reported injury. Claimant underwent a pre-surgical cardiology evaluation which indicated severe aortic stenosis, and Dr. Rothrock felt he was not a candidate for arthroscopic surgery. Instead, the doctor recommended a formal work conditioning program for Claimant's right arm and shoulder. By December 21, 2015 work conditioning had increased the strength and range of motion in the right shoulder. Claimant remained on light duty with a 25-pound weight limit and no overhead activity with the right arm.

Claimant was evaluated for his aortic stenosis condition by Dr. Gordon Knight, a heart surgeon, on January 19, 2016. Claimant reported a history of fatigue, mild shortness of breath on exertion, and intermittent dizziness. Claimant underwent cardiac catheterization surgery on January 25, 2016, with Dr. Knight immediately followed by aortic valve replacement surgery on January 27, 2016. Following these surgeries, Claimant developed severe complications and remained hospitalized until he was discharged on February 19, 2016. Claimant testified that after surgery his body "shut down," he "coded five times" and was in a "coma for a month."

Claimant returned to Dr. Rothrock for a final evaluation on March 31, 2016, at which time Claimant denied any significant pain or weakness about his right shoulder. Claimant indicated he was unsure whether he would return to work after fully recovering from the heart surgery. Dr. Rothrock placed Claimant at maximum medical improvement (MMI) and released him to return to full duty without any limitations to his right shoulder.

Claimant returned to light duty for more than a month, but he has not worked since that time. He took early retirement and receives a pension from Employer as well as Social Security disability benefits. He testified that he wanted to continue working but he does not think he could have done it physically. As recently as May 19, 2019, Claimant's attorney sent correspondence to Employer's attorney stating that Claimant wishes to return to work for Employer to maximize his pension.

Claimant currently complains of shortness of breath and tries to go to the gym every other day. He went to cardiac rehabilitation following his heart surgery. He demonstrated that he can only raise his right elbow to the shoulder level. He does not have disturbed sleep. He is not taking any prescription pain medication for his right arm or shoulder. Claimant is right-handed.

Revised Form 31 (3/97)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 15-012160

Claimant testified he cuts his own grass and can use a push mower, but his arm gets sore so he uses a riding mower for his lawn. He no longer does home exercises for his shoulder, but still walks for exercise and rides the exercise bike at the gym. Claimant testified that before the work injury he was diagnosed with, and treated for diabetes, COPD, high blood pressure, and his heart condition. He admitted that these conditions did not interfere with his work prior to the reported injury.

Opinion Evidence

Dr. Sides

Claimant offered the deposition of Dr. Gary Sides as Group Exhibit 1-1. Dr. Sides testified his area of specialty is family medicine. He examined Claimant on November 16, 2016 and was deposed on November 17, 2017. History included no need of pain medications but many such for Claimant's cardiac condition. Notes on physical examination included intact grip with no weakness. He understood Claimant to have had a "pre-existing cardiac condition and that the right arm was not surgically repairable." Dr. Sides' narrative report states his understanding that pending clearance for a shoulder manipulation under anesthesia by Dr. Rathrock, "it was discovered by his cardiologist that he had a severe aortic stenosis." (Italics added.) (Exhibit 1-1, p. 8; Depo. Ex. 1) (Although referenced in the deposition transcript, the narrative report itself is unmarked as such in the scanned attachment to Group Exhibit 1-1 on the CD-ROM.)

However, Dr. Sides testified at deposition that Claimant's heart condition had been worsening and had progressed to the point that Claimant was not a surgical candidate as of March 1, 2015. A valid mischaracterization objection and a Seven Day Rule objection were interposed here. (pp. 10-12). Dr. Sides stated the opposite in his narrative report:

> Mr. D'Angelo developed a cardiac complication with severe aortic stenosis and had a complicated surgery that occurred before his orthopedic surgery (sic). Following his cardiac surgery, he's determined to be not a surgical candidate. (Underline added.)(Exhibit 1-1, p. 8; Depo. Ex. 1, p. 5.)

Further, he disagreed with Dr. Schuman that Claimant was asymptomatic with regard to his cardiac problems prior to the work injury based on his multiple medical problems including documented COPD and morbid obesity. He asserted Claimant probably had exertional dyspnea that he did not report to Dr. Christopher Speidel while acknowledging the contrary in Dr. Speidel's notes. (pp. 14-15).

Dr. Sides opined Claimant could not return to his former job for Employer because of the work injury and result of his right arm. (25). He further testified that whether Claimant could perform any other type of work would be a question for a vocational expert. (pp. 26-27). Dr. Sides rated Claimant with 30% permanent partial disability of the right arm for conditions that

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 15-012160

cannot be corrected because Claimant is not a surgical candidate. He also rated Claimant with 15% permanent partial disability for his pre-existing cardiac insufficiency prior to the work injury. The SIF's *Seven Day Rule* objection here to the absence of any mention of a pre-existing cardiac disability and the lack of any PPD ratings on pre-existing conditions is also well-taken. (pp. 27-28.)

On cross-examination Dr. Sides confirmed, in answer to a leading question, that it was Claimant's pre-existing cardiac condition in combination with the work-related right arm injury that made him unable to compete in the open labor market, which is consistent with Dr. Sides' narrative report (p. 61). Dr. Sides reiterated it is not his opinion that the work-related right shoulder injury alone renders Claimant permanently and totally disabled.

Dr. Rothrock

Employer/Insurer offered the deposition testimony of Dr. Christopher Rothrock as Exhibit A. Dr. Rothrock is a board-certified orthopedic surgeon. He initially evaluated Claimant on March 2, 2015, at which time Claimant could not move his right arm without aggravating his pain. Dr. Rothrock diagnosed and began treating a proximal humerus fracture at the surgical neck which was in satisfactory alignment (p. 11).

Dr. Rothrock ordered a CT scan and MRI scan on June 8, 2015. He personally reviewed the images from these diagnostic studies, and testified that the CT scan showed some small areas of bridging callus about the fracture of the surgical neck of the proximal humerus. He was concerned about possible non-union of the fracture because Claimant was a smoker and diabetic. Dr. Rothrock further testified that the MRI scan showed the rotator cuff in the right shoulder was "not torn in any way." (pp. 12-14). He further noted that the degeneration and tear of the labrum indicated by the MRI scan was pre-existing rather than related to the work injury. He explained that Claimant's humerus bore the brunt of the force when he fell causing it to fracture. (42-43).

Based on his concerns of a non-healing fracture, Dr. Rothrock referred Claimant to Dr. William Ricci on June 17, 2015. Dr. Ricci was the head of trauma surgery at Washington University. Physical examination was notable for mild swelling and "discomfort" in all planes of motion. Dr. Ricci only noted diffuse "discomfort" but not pain in his initial evaluation. Dr. Ricci confirmed good alignment, some with bridging but also noted some gaps in the union. He found no cuff pathology. Dr. Ricci prescribed more aggressive physical therapy. He treated the fracture conservatively until it healed. Claimant last treated with Dr. Ricci on August 26, 2015 having returned to light duty with a diagnosis of healed fracture but with frozen shoulder. (Group Exhibit 1-9.)

Claimant returned to Dr. Rothrock for further treatment on September 2, 2015, at which time he had pain, stiffness and weakness in the right shoulder. The slow healing delayed more aggressive therapy. He ordered rehabilitative therapy and performed a steroid injection to treat adhesive capsulitis. (15) A second injection was given on October 2, 2015.

Revised Form 31 (3/97)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 15-012160

On October 30, 2015, Claimant continued to report pain and stiffness in the right shoulder. Dr. Rothrock offered manipulation under anesthesia and arthroscopic surgery. Based on Claimant's medical risk profile, Dr. Rothrock advised that he required medical clearance by all doctors prior to any surgery. (16-17.)

On November 30, 2015, Claimant advised that he was diagnosed with severe aortic stenosis which placed him at increased risk for serious complication from surgery. Dr. Rothrock felt he was not a surgical candidate and recommended work hardening to tolerance. Claimant's cardiologist only allowed work conditioning. On December 21, 2015 Claimant had increased strength and range of motion in the shoulder. (17-18.) However, on January 11, 2016, Dr. Rothrock spoke with claimant's cardiologist because there was significant concern from the physical therapist that Claimant should not come in for therapy because of his presentation. Claimant proceeded to heart surgery that was accompanied by complications. (19-21.)

Dr. Rothrock next saw Claimant weeks later on March 31, 2016, and noted better strength and increased motion without any significant pain or weakness, and noted improved motion in all planes. He placed Claimant at maximum medical improvement (MMI) and allowed him to return to work without limitations in regard to the right shoulder (21-22).

Dr. Rothrock testified that Claimant's shoulder range of motion was much more acceptable at 13 months than it had previously been at 6 months post-injury. He did not recommend shoulder surgery after the heart surgery because his shoulder was not as stiff, it did not hurt, and he had no weakness. (64-65) Dr. Rothrock recommended that Claimant continue to do the exercises he learned in physical therapy for shoulder health. He assigned a five percent permanent partial disability at the level of the right shoulder due to the March 1, 2015 work injury.

Dr. Schuman

The SIF offered the deposition of Dr. Stephen Schuman as Exhibit II. Dr. Schuman is board-certified in internal medicine and general cardiology. He reviewed the medical record. Dr. Schuman testified that Claimant's aortic stenosis is a naturally progressive disease that was not impacted by the work injury to the right arm. He testified there would be no relationship between the right shoulder injury and the cause of Claimant's aortic stenosis (p. 13).

Dr. Schuman testified he is not aware of any documented underlying etiology for the average case of aortic stenosis; some people are born with a bicuspid aortic valve, some have endocarditis in a heart valve, but for most people it is an idiopathic condition which manifests at some point and becomes worse over time. Dr. Schuman confirmed that he has not come across any medical literature or research that indicates aortic valve stenosis has ever been caused by an orthopedic shoulder injury or arm fracture. (pp. 29-30).

Revised Form 31 (3/97)

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 15-012160

Dr. Schuman confirmed that Claimant's aortic stenosis condition was present years before the reported injury, and would have continued to progress and become worse regardless of whether the work injury occurred. As stated, Dr. Knight performed the valve replacement surgery. He testified that Claimant's aortic stenosis symptoms became severe and symptomatic independent of the March 1, 2015 work injury. (pp. 31-32.) He stated Claimant first experienced the onset of cardiac symptomatology approximately one year post-injury and that he had no permanent partial disability related to his cardiovascular system prior to the reported injury.

Dr. Schuman confirmed that Claimant had other pre-existing conditions before the work injury including diabetes, hypertension, and hyperlipidemia which are risk factors for arterial disease but are not disabling conditions in and of themselves. (p. 10). He opined that Claimant had sustained no permanent partial disability referable to the aortic stenosis condition or his COPD condition prior to the reported injury. (pp. 13-14, 16). Dr. Knight did not testify.

Vocational Opinion

Susan Shea

Claimant offered the deposition testimony of Susan Shea, LRC, as Exhibit 4. She reviewed the medical record and interviewed Claimant. Ms. Shea testified that Claimant's work history for the last 20 years was as a laborer for Employer. She testified that the fractured humerus “... did not heal [...] and, because of his heart condition, was not able to undergo surgery.” She felt he was “left with his right upper extremity being essentially of little use.” Ms. Shea testified that “due to symptoms related to [the right arm] ... Claimant is not capable of being employed in a job, as typically performed in the open labor market.” (p. 14.) She subsequently testified that it was “due to a combination of the work-related injury and pre-existing condition.” (p. 15.)

Ms. Shea admitted she did not review the medical records from Dr. Rothrock after his report dated December 21, 2015, and was not aware Claimant denied any significant pain or weakness about his right shoulder when he last saw Dr. Rothrock on March 31, 2016. She was not aware that Dr. Rothrock placed Claimant at maximum medical improvement and released him to work full duty without any limitations in regard to his right shoulder as of March 31, 2016 (30, 32). Ms. Shea admitted none of the physicians treating Claimant's diabetes, COPD, and aortic stenosis had imposed any restrictions or limitations on what he could or could not do (36-38).

Delores Gonzalez

Employer offered the deposition testimony of Delores Gonzalez, LRC, as Exhibit B. She reviewed the medical record and interviewed Claimant. Ms. Gonzales offered alternative opinions on employability depending on the expert assumptions. She testified that if credence is given to the opinions of Dr. Rothrock, Claimant would be capable of performing his prior job as

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 15-012160

a laborer without restrictions. (pp. 18-19). She noted that if credence is given to the opinions of Dr. Schuman in combination with the opinions of Dr. Rothrock, Claimant would be capable of performing his job as a laborer as a result of the reported accident. (pp. 21-22).

Ms. Gonzalez testified that if you assume the opinions of Dr. Sides, Claimant is not employable in the open labor market and has permanent physical disabilities that prevent him from performing his prior job for Employer or any job on the open labor market as a result of his right shoulder condition and his pre-existing cardiac condition. (pp. 18-19). She disagreed with the opinion of Benjamin Hughes that if Claimant is permanently and totally disabled it is due to the March 1, 2015 work injury standing alone, and opined that she does not believe he understood what the doctors were saying. (p. 22).

Benjamin Hughes

The SIF offered the deposition testimony of Benjamin Hughes as Exhibit I. Mr. Hughes opined that based on the restrictions from Dr. Ricci, Claimant could compete for employment in the light duty level. Further, based on the restrictions from Dr. Rothrock, Claimant could work full duty without any limitation regarding the right shoulder, so from this information Claimant could return to any of his previous jobs including as a laborer for Employer. (pp.10-11.) Mr. Hughes noted that Dr. Sides essentially offered a vocational opinion stating that he felt Claimant could not return to the open labor market successfully with his pre-existing issues and the right shoulder injury, but Dr. Sides deferred to a vocational specialist for this determination and he did not offer any specific activity restrictions.

Mr. Hughes testified that in light of the report and opinions from Dr. Schuman, there were no pre-existing cardiac disability issues or pre-existing activity restrictions due to claimant's cardiac condition. (p. 12). He opined that based on Dr. Schuman's report, in his opinion if the claimant is found to be permanently and totally disabled it would be based on the work injury alone.

RULINGS OF LAW

Medical Causation and Permanent Disability

In cases of accidental injury, an employee must establish that the accident was the prevailing factor in causing the injury. Section 287.020.3(1) provides, in pertinent part: "An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability." Further, the "prevailing factor" is defined as the primary factor, in relation to any other factor, causing both the resulting medical condition and disability." Section 287.020.3(1) RSMo Cum. Supp. 2005. Here, there is an unrebutted treatment record and unimpeached testimony by board certified treating physicians. A review of Claimant's expert testimony reveals some misunderstanding of the medical facts and some disconnections in his opinion testimony. Valid objections prevent consideration of some of his opinions.

WC-32-R1 (6-81)

Page 10

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 15-012160

Claimant presented substantial evidence of his treatment and slow recovery from a non-displaced fracture of the right proximal humerus. As stated, Claimant was immediately referred to an orthopedic surgeon and recovery was slow. Several specialists evaluated the injury and participated in the treatment jointly. Nine months post-accident, a therapist reported Claimant presented in distress and notified Dr. Rothrock. Steps were taken, including approvals from Claimant's cardiologist, regarding the ongoing treatment. On January 11, 2016, almost ten months post-accident, Claimant proceeded to surgery under a cardiac diagnosis of aortic stenosis. Separately, Claimant testified at trial that he returned to work and had retained his Commercial Driver's License ("CDL").

In addition, the parties proffered experts of markedly different qualifications. The extent of qualification usually pertains to the weight to be given evidence rather than admissibility. *Donjon v. Black & Decker (U.S.), Inc.*, 825 S.W.2d 31 (Mo.App. 1992). Here, Dr. Rothrock and Dr. Ricci are a board certified orthopedic surgeons. Dr. Ricci is distinguished as a chief of trauma surgery at Washington University. Dr. Schuman is board certified in cardiovascular medicine. Dr. Sides is a family practitioner who, presumably, refers patients to such specialists as these. These opinions are weighed against a treatment record generated by the treating experts.

Dr. Sides summarized important facts of Claimant's medical history without always ascribing a source. For example, he asserted in his report that Claimant, post-valve replacement surgery, was a significant risk for follow-up orthopedic surgery. In fact, just weeks later on March 31, 2016, Dr. Rothrock examined Claimant's right shoulder, noted minimal symptoms and placed Claimant at MMI without any restrictions. Dr. Rothrock's treatment notes on that date are undisputed in the record. See Group Exhibits 2 and 8, generally.) Similarly, Ms. Shea's opinion that Claimant is unemployable is unpersuasive. Her reliance on Dr. Sides' analysis is misplaced since his opinion was found to have been based on inaccurate medical facts.

Dr. Sides identifies a concurrence of sorts between the cardiac condition, beginning in 2014, and the reported humerus fracture but does not explain any combination. His opinions do not integrate the lack of pre-accident symptomotology or the supplanting nature of Claimant's life-threatening procedure. Rather, Dr. Schuman explains the absence of any disabling pre-accident symptomotology and the progression of aortic stenosis independent of any orthopedic pathology in the shoulder. Claimant's work record and trial admissions are corroborative on these points. The cardiac event and surgery occurred ten months after the reported accident and its emergent treatment supplanted the right arm rehabilitation. Months later, after extended rest, Claimant's shoulder pain and weakness abate, seemingly a by-product of Claimant's immobility due to the cardiac events in January-February 2016.

Elsewhere, having assigned a significant 30 percent PPD rating to the right shoulder, Dr. Sides rebuffed a question about right arm restrictions asserting that it was not his job to make recommendations regarding activities and limitations. Experts routinely explain and bolster the basis of a PPD rating by enunciating underlying restrictions and limitations that comprise the description of the permanent disability. Doing so lends greater insight, or probative value, to the opinion.

WC-32-R1 (6-81)

Page 11

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 15-012160

Opposing opinions to those of Dr. Sides are better grounded to the medical facts and other evidence in the record. On the one hand, Claimant wanted to continue working for his pension and maintained his CDL. On the other hand, Claimant apparently reported to Mr. Hughes that he was not interested in a job that would accommodate his limitations, insisting he was retired. He had not sought other employment. Again, Claimant testified that none of his alleged pre-existing conditions interfered with his work performance prior to the reported injury.

Dr. Sides' PPD opinion of 30 percent and Dr. Rothrock's 5 percent PPD opinion fairly set the range of permanent disability in this case. Claimant's humerus fracture was severe and dangerously close to the proximal head of the bone joint. Its complicated nature was evidenced in the repeated radiologic studies and second opinion sought. Dr. Rathrock's limited findings on final examination in March 2016, however, limits the amount of permanent disability. The cardiac event occurred almost a year after the fact and the only cardiovascular expert testified the humerus fracture had nothing whatever to do with the onset of cardiac symptoms. As with Dr. Sides, Ms. Shea had a fundamental misunderstanding of these rather clear medical facts. She also gave alternative testimony regarding Claimant's unemployability as the result of the arm injury or as a combination of the arm injury and the pre-existing "condition," singular.

The other vocational experts were more persuasive than Ms. Shea. Accordingly, the suggestion of permanent total disability, whether by the last injury or in combination with an (unrated) pre-existing condition is not tenable. The opinions of Drs. Rothrock and Dr. Schuman are more persuasive than those of Dr. Sides and are easily reconciled with the balance of the record. Neither believed Claimant was unemployable.

Liability of the Second Injury Fund

Claimant alleges combination between his current PPD and pre-existing PPD resulting in permanent total disability. Section 287.220.1 RSMo (2014). Here, The current disability for the reported injury is determined to be 20 percent PPD of the body referable to the right shoulder. Dr. Sides and Ms. Shea's PTD opinions were poorly reasoned and were procedurally excluded. The well-taken mischaracterization objection and Seven Day Rule Objections discussed above prevent such opinions from being considered for purposes of assessing Fund liability. The cardiac stenosis was assigned a 15 percent PPD by Dr. Sides. Nevertheless, assuming arguendo Claimant had a prima facie showing on PTD, Dr. Schuman was found to be better qualified and more persuasive regarding both medical causation and the assessment of cardiac and COPD conditions in Claimant.

Dr. Schuman found neither to have presented pre-accident disabling symptoms that might form the basis of permanent disability. He assigned no pre-existing PPD to any of the alleged pre-existing conditions. The pre-existing PPD alleged to result from conditions of diabetes and COPD were unrated by any of the proffered experts, and otherwise unproven. Insufficient evidence was adduced to impose liability against the SIF.

WC-32-R1 (6-81)

Page 12

Accordingly, on the basis of the substantial and competent evidence contained within the whole record, Claimant is found to have sustained a 20 percent PPD from the reported injury. Claimant failed to carry his burden of proof for PTD against the SIF, which Claim is denied.

Date: $\qquad I certify that on \qquad 8-8-19$

I delivered a copy of the foregoing award

In the parties in 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.


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