Keavin Edwards v. Dairy Farmers of America, Inc.

FINAL AWARD DENYING COMPENSATION

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

Injury No.: 17-006238

Employee: Keavin Edwards

Employer: Dairy Farmers of America, Inc.

Insurer: Self-Insured

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$, RSMo. Having reviewed the evidence, read the parties' briefs, 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.

The administrative law judge implied that she did not find employee's testimony credible with the following language:

[Employee] has stated that once he recovered from the surgery [for his preexisting injury,] he had no problem with his left shoulder until his recent injury occurring on January 30, 2017. There is a medical record, however, that disagrees with that assertion, as discussed below.

Award, p. 5.

Having reviewed the record, we expressly find not credible or persuasive claimant's testimony that he had no pain or issues with his left shoulder during the time after his recovery from his November 25, 2008 surgery until the January 30, 2017 injury.

We also find persuasive the assessment by Dr. John Putnam that the January 30, 2017 incident did not create a new compensable injury, but aggravated "a preexisting problem. In fact, the history, physical examination, MRI, operative report and review of medical records indicate the pathology is gradual deterioration caused by aging, hereditary, previous trauma and normal activities." Transcript, p. 1379

We further find persuasive the opinion of Dr. Ted Lennard that employee's 35\% permanent partial disability in his left shoulder resulted only from (1) employee's preexisting left shoulder condition and (2) employee's degenerative arthritis; the permanent partial disability did not result from the January 30, 2017 injury.

Accordingly, employee did not meet his burden to establish a compensable work injury related to the January 30, 2017 incident.

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

The award and decision of Administrative Law Judge Victorine R. Mahon is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this ______ 23rd ______ day of March 2021.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

I find employee credible that on January 30, 2017, he felt a pop or pull in his left shoulder while handling a 130 lb . steel plate. From that point on, employee experienced sharp pain in his left shoulder and restricted movement. The pain kept employee awake at night.

I also find credible that employee did not have any issues with his left shoulder from when he fully recovered from his preexisting left shoulder injury in 2008 until the January 30, 2017 injury. Up until the January 30, 2017 injury, employee was able to handle heavy items on a regular basis. It was only after the January 30, 2017 injury that employee could no longer use his left arm.

I find that there is a compensable injury. I find persuasive the opinion of Dr. Mitchell Mullins that the January 30, 2017 injury was the prevailing factor that caused employee's medical condition and a 40 % permanent partial disability in employee's left shoulder. Furthermore, Dr. Mullins determined employee to be temporarily and totally disabled from August 1, 2017 through October 1, 2017.

I also find that employer should be liable for employee's July 31, 2017 total shoulder replacement surgery. Even if the January 30, 2017 injury alone might not have required a total shoulder replacement, employee's shoulder was of such condition that a complete shoulder replacement was necessary to cure and relieve the effects of the January 30, 2017 injury. In this respect, this matter is similar to Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 518 (Mo. App. 2011). In Tillotson, the employee had a total knee replacement because it was the medical treatment required to cure and relieve the effects of a compensable torn lateral meniscus in light of employee's other non-compensable conditions; anything short of a total knee replacement was insufficient.

Similarly, here, due to the condition of the employee's left shoulder from a preexisting compensable injury and from osteoarthritis, anything less than a total shoulder replacement would have been insufficient after the January 30, 2017 injury. A total shoulder replacement was therefore reasonably required to cure and relieve the effects of the January 30, 2017 injury. Therefore, following the Tillotson, decision, I conclude that employer should be liable for the 2017 total shoulder arthroplasty.

In conclusion, I find that employee suffered a compensable injury on January 30, 2017. I conclude that employer is liable for employee's 40 % permanent partial disability; temporary total disability from August 1, 2017 through October 1, 2017; and past medical expenses, including the cost of the July 31, 2017 total left shoulder replacement.

I would reverse the administrative law judge's award denying benefits from employer. Because the Commission majority has decided otherwise, I respectfully dissent.

Shalonn K. Curls Member

1. Value necessary medical aid paid to date by employer/insurer? None.
2. Value necessary medical aid not furnished by employer/insurer? None.
3. Employee's average weekly wages: $\ 1,099.14.
4. Weekly compensation rate: $\ 732.80 (temporary total); $\ 477.33 (permanent partial).
5. Method wages computation: By agreement of the parties.

1. Amount of compensation payable: None.
2. Second Injury Fund liability: N/A.

TOTAL: NONE.

1. Future requirements awarded: None.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Keavin M. Edwards

Injury No.: 17-006238

ISSUES

1. Did Claimant sustain an accident that arose out of and in the course of employment with Employer?
2. Is the alleged injury to the left shoulder medically and causally related to the work for Employer?
3. Is Employer liable for $53,480.04 in past medical expenses?
4. Is Claimant entitled to 10 weeks temporary total disability beginning August 1, 2017?
5. Is Claimant's Attorney entitled to a fee of 25 percent of any amounts recovered?

EXHIBITS¹

The following exhibits were offered and admitted:

Claimant's Exhibits

1. Deposition - Dr. Mitchell Mullins, with exhibits
2. Medical records - Cox Medical Center
3. Medical records - Cox Medical Center
4. Medical records - Willow Springs Healthcare
5. Medical records - Ozark Anesthesia
6. Billing records - Cox Health (admitted over objection)²
7. Notes

Employer's Exhibits

A. Report of Injury

B. Claim for Compensation

C. Answer

D. Wage Statement

E. Deposition - Claimant

F. Deposition - Dr. Ted Lennard

G. Notice of Submission of the Medical Report of Dr. Ted Lennard

H. Notice of Submission of the Medical Report of Dr. John Putnam

I. Rating - Dr. Christopher Miller

J. Prior Settlement Agreement and 2008 Claim for Compensation

K. Denial letter

¹ Any marks or high