Pamela Boyer v. Red Wing Shoe Company

[^0] [^0]: ${ }^{1}$ We note that employer did not pay for any medical care prior to the issuance of the award. Employer argues that employee should not receive any award of workers’ compensation benefits.

Employee's job duties at employer included working on her feet and pulling material kept in tubs off shelves. The top shelf was as high as her forehead. Employee would reach overhead to grab the tubs 5 to 10 times per day. Her job duties also involved dye marking, which involves putting material on a metal dye plate, and marking the dye plate with an invisible line. On April 27, 2018, employee struck her right shoulder on a metal dye plate that was sticking out from a plate rack by approximately 4 inches.

Employee told her coworker Tammy Cook about her alleged 2018 injury. However, employee failed to report her alleged 2018 injury immediately after it occurred because she did not realize that she suffered an injury at the time, and she testified that her shoulder "was hurting but it wasn't hurting that bad to complain about it." ${ }^{2}$ Employee felt pain right after her alleged 2018 injury, and sought medical treatment 3 days after her injury. Employee's doctor suspected a rotator cuff tear, which was later confirmed by employee's May 4, 2018 MRI. Employee also went camping during the weekend following her alleged 2018 injury instead of seeking medical treatment for it. Employee did not report the 2018 injury to employer despite interacting with employer during the week of May 1, 2018, concerning her absence from work due to right shoulder issues.

Employee contacted employer on April 30, 2018, to advise she was having shoulder pain, but did not mention her alleged 2018 injury. Employee sought medical treatment from her primary care physician on April 30, 2018, without providing a history of the alleged 2018 injury.

Employee secured a light-duty release, and submitted the note to employer on May 1, 2018. The note did not mention any work incident and did not mention or report her alleged 2018 injury to employer. Employee only mentioned the alleged 2018 injury after her May 4, 2018 MRI of her right shoulder and she returned to work on May 8, 2018 with a full duty release. Employee was able to continue working without any physician placing restrictions up until August 24, 2020, the date of the administrative law judge's hearing in this case.

Dr. Schlafly is a board certified orthopedic surgeon and has performed shoulder surgeries in the past. Dr. Schlafly testified that he currently limits his medical practice to hand surgeries. Dr. Schlafly interviewed employee on February 12, 2019, and diagnosed her with a torn rotator cuff at her right shoulder and the development of an additional component of adhesive capsulitis. He opined that the 2018 injury was the prevailing factor in the cause of her torn rotator cuff at her right shoulder and that her overhead work duties prior to that date may have contributed to an underlying rotator cuff tendonitis at her right shoulder. Dr. Schlafly testified that he relied primarily on employee's recollection of her alleged 2018 injury. ${ }^{3}$

Dr. Nathan Mall completed a fellowship in shoulder surgery and performs mostly shoulder and knee procedures. Dr. Mall performs approximately 200 rotator cuff repairs per year. In Dr. Mall's July 30, 2019 medical evaluation report of employee, he stated

[^0]

[^0]: ${ }^{2} See Transcript at 42.

{ }^{3}$ See Transcript at 121, 113-14.

that he had reviewed employee's May 4, 2018 MRI and opined that employee's job duties of occasionally lifting to chest height or above to grab a 6-7 lb. tub would not be enough of a risk factor for the development of an occupational illness involving rotator cuff tearing. Dr. Mall further opined that employee was at maximum medical improvement from any work injury that may have occurred.

Dr. Mall also did not believe that any specific work injury occurred at the time of employee's alleged 2018 injury. Dr. Mall noted that employee did not have any bruising, swelling, or immediate onset of pain or disability following the 2018 injury. Dr. Mall further opined that employee's single-event injury was not a mechanism consistent with the production of a rotator cuff tear and did not believe employee's job duties at employer would produce a rotator cuff tear based on her deposition, Dr. Schlafly's independent medical evaluation, and Dr. Mall's discussion with employee regarding her job duties at employer.

We find Dr. Mall's testimony to be more persuasive and credible than Dr. Schlafly on the issue of medical causation regarding employee's alleged 2018 injury. Dr. Mall has experience in shoulder surgery and performs over 200 rotator cuff repairs per year. Dr. Schlafly's medical practice is currently limited to hand surgery.

Dr. Mall opined that the alleged impact of employee's right arm striking a dye plate was not significant enough to cause a rotator cuff tear from a direct blow. Dr. Mall testified about the impact required to result in a traumatically induced rotator cuff tear. In this case, the initial medical provider's records do not document evidence of bruising of the shoulder. Based on Dr. Mall's experience, if the impact on employee's right shoulder had been significant or more than a minor impact employee would have had significant pain and would have visited a medical provider soon after the injury. ${ }^{4}$ Dr. Mall reviewed the May 4, 2018 MRI of employee's right shoulder. Dr. Mall also opined about the physics of traumatic blows to the right shoulder resulting in rotator cuff tears.

We also note that Dr. Schlafly testified that he relied on employee's history to him of an impactful event to her right shoulder as the cause of the rotator cuff tear. Additionally, Dr. Schlafly examined employee on one occasion, February 12, 2019. Employee was also able to work after May 8, 2018, without any physician restrictions up until the date of her hearing for this case. Furthermore, we do not find employee's testimony regarding her alleged 2018 injury to be credible or persuasive. The evidence cited above supports a determination that employee's alleged 2018 injury was not a compensable work injury. Therefore, we reverse the administrative law judge's determination.

We reverse the award and decision of the administrative law judge. We conclude that employee did not suffer a compensable injury on April 27, 2018.

[^0]

[^0]: ${ }^{4}$ See Transcript at 254-55.

Since we find that employee did not suffer a compensable injury at employer on April 27, 2018, the other issues in the administrative law judge's temporary award regarding whether employee is entitled to additional or future medical care and permanent partial disability benefits are moot.

The award and decision of Administrative Law Judge Amy L. Young is attached solely for reference.

Given at Jefferson City, State of Missouri, this $\qquad 8th \qquad$ day of June 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman


Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:


I would affirm the administrative law judge's award finding that employee's accident on April 27, 2018, was the prevailing factor in causing her primary injury to her right shoulder and that she was entitled to additional or future medical treatment.

Employee testified that she struck her right shoulder on a metal dye plate while at work on April 27, 2018, and felt immediate pain. Three days after her 2018 injury, she went to her doctor for medical treatment. She did not mention the work injury to her doctor because she didn't realize that the work injury could be causing her problems. Her doctor suspected a rotator cuff tear, which was confirmed a few days later by a MRI. After talking with her doctor about the possible causes of a rotator cuff tear, she realized that the 2018 injury could be the cause. Employee then reported her 2018 injury to employer. The administrative law judge observed employee in person, listened to her testimony, and found employee's testimony about her injury to be credible. The administrative law judge also noted that employee's supervisor, Mr. Carlyon, confirmed that the 2018 injury could have happened the way employee described it. On the day of her 2018 injury, employee told her coworker, Tammy Cook, that she hit her shoulder.

When employee realized that the work accident was causing her shoulder symptoms, she reported the 2018 injury within two weeks of the accident, well within the thirty day statutory requirement. ${ }^{1}$ Although employee went camping a few days after her 2018 injury, she did not participate in any physical activity while camping. Employee was in pain during the camping trip, and testified that she applied ice to her shoulder. Dr. Schlafly found employee's symptoms and decision to seek medical treatment within a few days of the 2018 injury was indicative of an acute rotator cuff tear caused by the 2018 injury. I find that Dr. Schlafly's testimony regarding the prevailing factor of employee's rotator cuff tear is more persuasive than Dr. Mall's. Moreover, Dr. Schlafly opined that employee required medical treatment from an orthopedic shoulder specialist for her rotator cuff repair at her right shoulder and also recommended surgery. I would also like to point out that Dr. Schafly is a board certified orthopedic surgeon that has performed shoulder surgeries in the past. Furthermore, there is no medical evidence to suggest that employee does not need medical treatment for her 2018 injury.

For these reasons, I find that the evidence supports the conclusion that employee's 2018 injury was the prevailing factor causing her injury to her right shoulder and that she is entitled to additional or future medical treatment due for her compensable work injury. Because the majority of the Commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls, Member

[^0]

[^0]: ${ }^{1} \S 287.420$ RSMo.

Employee: Pamela C. Boyer

Injury No. 18-035982

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

Employer: Red Wing Shoe Company

Insurer: Sentry Insurance A Mutual Company

Appearances: Ellen E. Morgan, attorney for the employee.

Karie E. Casey, attorney for the employer-insurer.

Hearing Date: August 24, 2020

Checked by: ALY/kg

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? April 27, 2018.
5. State location where accident occurred or occupational disease contracted: Iron 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? 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: Employee struck her right shoulder on a metal dye plate.

Employee: Pamela Boyer

Injury No. 18-035982

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: Right shoulder.

1. Compensation paid to date for temporary total disability: 0.00.

1. Value necessary medical aid paid to date by employer-insurer? 0.00.

1. Value necessary medical aid not furnished by employer-insurer? None.

1. Employee's average weekly wage: 596.58.

1. Weekly compensation rate: 397.72.

1. Method wages computation: By agreement.

1. Amount of compensation payable: See Award.

This award is only temporary and 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.

On August 24, 2020, the employee, Pamela Boyer, appeared in person and with her attorney, Ellen Morgan, for a temporary or partial award. The employer-insurer was represented at the hearing by their attorney, Karie Casey. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a summary of the evidence and the findings of fact and rulings of law, are set forth below as follows:

1. The Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and liability was fully insured by Sentry Insurance Company.
2. On or about the date of the alleged accident or occupational disease, the employee was an employee of Red Wing Shoe Company and was working under the Workers' Compensation Act.
3. The employer had notice of the employee's claim.
4. The employee's claim was filed within the time allowed by law.
5. The employee's average weekly wage was $\ 596.58 per week. Her rate for permanent partial disability is $\ 397.72 per week.
6. The employer-insurer paid $\ 0.00 in medical aid.
7. The employer-insurer paid $\ 0.00 in temporary total disability benefits.

1. Whether on or about April 27, 2018, the employee sustained an accident or occupational disease arising out of and in the course of her employment.
2. Whether employee's injury was medically causally related to the alleged accident or occupational disease.
3. Whether employee is entitled to additional or future medical aid.
4. If accident and medical causation is established and medical treatment is not awarded, whether employee is entitled to permanent partial disability.

The following exhibits were offered and admitted into evidence:

1. Dr. Bruce Schlafly's deposition transcript with attached exhibits

A. Medical Records Affidavit with 34 pages of medical records from Cedar Hill Primary Care

B. Deposition of Dr. Nathan Mall with attached exhibits

C. Red Wing Shoes, Employee Handbook, Potosi, MO, Hourly Employees, February 1, 2013

D. Acknowledgement and Receipt of Red Wing Shoes Employee Handbook signed by Pamela Boyer on 1/27/14

E. Red Wing Shoe Company, Potosi, MO, Orientation Checklist for Temporary Employee's signed by Pamela Boyer on 10/14/13

F. (Exhibit withdrawn)

G. Photograph

Employee objected to the admission of Employer-Insurer exhibits D and E based on the assertion that said exhibits are "statements" as defined by Section 287.215 RSMo and were not produced within thirty days of Employee's written request for statements made by Employee in accordance with said statute. The objections were taken under advisement and the parties were invited to brief their arguments. Neither party addressed the objections in their respective briefs. Employee did not produce her written request for statement at hearing, therefore it is not possible for this Court to ascertain whether the statement was produced within the statutorily required thirty days. Regardless, I find that neither Exhibits D nor E are statements given by an "injured employee" because at the time the statement was made, Employee was not injured. Parsons v. Steelman Transp., Inc., 335 S.W.3d 6 (Mo. Ct. App. S.D. 2011); Section 287.215 RSMo. Therefore, Employee's objection is overruled and exhibits D and E are admitted into evidence.

All exhibits appear as the exhibits were received and admitted into evidence. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

Pamela Carol Boyer (hereafter "Employee") was 47 years old at the time of hearing. She has been employed at Red Wing Shoe (hereafter "Employer") for approximately six years as a production operator. She has several different jobs as a production operator that require her to move around to different stations during her shift. Her job duties include "splitting" (putting material through a machine to reduce it to a specific ounce), dye marking (putting material on a plate to be marked with an invisible line for the sewers), "skiving" (operating a machine that reduces leather material to a small ounce), "cementing" (putting a liner on the back of leather material), sewing (using a two needle stitching machine to sew two pieces of leather together or a computer stitch machine), "rub and turn" (using a machine to install leather on the sides of a boot, then turn the boot right side out), and "taper" (installing a thick piece of leather on the inside seam of the boot.) Employee rotates among these jobs for a maximum of two hours per job. Employee normally works 6:30 a.m. to 3:30 p.m. except on Fridays she works until 12:30 p.m.

On Friday, April 27, 2018, Employee was working in an L-shaped area where two dye marking machines were located. The plates used on the dye marker machine are made of metal and there are several different sizes with the largest being approximately $14 \times 12$ inches. When the plates are not being used in the machine, they are stored upright on a rack that is approximately six feet tall and four to five feet wide. The dye marker machine area is a tight space that can become crowded with two people in the area. Usually, only one person works in the dye marking machine area at a time. However, on April 27, 2018, Employee was training two co-workers. Employee was training co-worker \#1 in the dye marking area. The co-worker was caught up with her work in the dye marking area, therefore Employee decided to walk to the "splitting" area to help out co-worker \#2. Employee had to walk closer to the plate rack than normal because co-worker \#1 was stationed at one of the dye marking machines located across from the plate rack. This left Employee with less space to pass through the walkway because she had to pass by co-worker \#1. While en route Employee did not notice a dye plate sticking out of the plate rack approximately four inches and she struck her right shoulder directly above her armpit, but below her collar bone, on the plate. This occurred at approximately 8:00 a.m. Employee testified that her right shoulder hurt, but not badly enough to complain about it. There are no known witnesses to the accident. Employee testified that co-worker \#1 did not see it happen. Employee did not report the incident to her supervisor, despite Employer's policy that all work-related injuries be reported immediately, because she thought the pain would go away.

Employee completed her shift that day operating machines on the Pecos line which did not require much use of her upper extremities. Her supervisor, Michael "Mick" Carlyon testified that employees in his departments were sent home early at 11:00 a.m. that day because they had met their production numbers.

Employee went home after her shift. Her husband had their camper packed and ready to go camping that day. Employee and her husband are guardians for three children, ages 8, 9, and 11 and they took them camping with relatives for the weekend to Meramec State Park. Employee's husband hooked the camper to the truck. Employee did not do anything to prepare the campsite other than plug in the electric. She relaxed that weekend while the kids played at the park. Her shoulder was stiff and painful. She took Tylenol and put some ice on it. Employee and her family returned home on Sunday. Employee denied any injuries over the weekend. Employee denies having any pain, problems, or treatment regarding her right shoulder prior to April 27, 2018.

On Monday, April 30, 2018, Employee called into work that morning and told her employer her shoulder hurt and she would not be at work. She also texted her supervisor, Michael "Mick" Carlyon, that she was not coming to work, her right arm was hurting, and that she wasn't able to use it all weekend. She did not report a work accident. She went to her primary care doctor, Dr. Metcalf, at Cedar Hill Medical Center that day. Employee was evaluated for complaints of right shoulder pain that "initially started several days ago." According to the visit record "The apparent precipitating event was lifting, but the actual mechanism of injury is unknown." Employee admits she did not tell her doctor about a work accident because she did not remember hitting her shoulder on the plate and didn't think her shoulder problem was related to anything at work at the time. An x-ray of the right shoulder was normal, but because a rotator cuff tear was suspected due to Employee's limited active range of

Employee: Pamela Boyer

Injury No. 18-035982

motion, an MRI was ordered. Employee was instructed to work light duty of no lifting over 20 pounds with the arm for the next week. She presented the light duty work slip to her supervisor. Mr. Carlyon sent Employee to discuss the same with Rhonda Portell, the human resource manager. It is Employer's policy that work restrictions for non-work related injuries are not accommodated for liability reasons.

Employee underwent an MRI of the right shoulder on May 4, 2018. The MRI report reflects a history of "Chronic Rt shoulder pain w instability; No trauma; No sx." The MRI showed "Focal high grade or full thickness delaminating tear involving the anterior third of the supraspinatus tendon insertion in a background of tendinopathy" and "[a]cromioclavicular osteoarthrosis with prominent undersurface osseous hypertrophy abutting the supraspinatus myotendinous junction." Employee was surprised to learn she had a rotator cuff tear and asked her doctor how it could have happened. She was told it could have been a car accident, or fall with an outstretched hand or some kind of hit on the shoulder. She did not have a car accident or fall, but she remembered hitting her shoulder on the metal plate at work. Employee was released to resume her normal work load on May 8, 2018. On approximately May 9, 2018, she reported the accident to Mr. Carlyon and Ms. Portell and filled out some paperwork. Mr. Carlyon then investigated the work area. He examined the dye plates and pulled them out to see how far a plate could be pulled out of the plate rack before tipping over. He determined a plate could be pulled out, without falling out of the rack, approximately eight to nine inches. He determined that if a dye plate was sticking out four to five inches, someone walking in that area could strike it.

Employee was evaluated by Dr. Nathan Mall, an orthopedic surgeon, on June 13, 2018 at the direction of Employer-Insurer. After taking a history, reviewing the imaging studies and performing a physical exam, his assessment was AC joint osteoarthritis and anterior supraspinatus tear. Dr. Mall opined that a minor impact to the front of the shoulder would not produce a rotator cuff tear. He explained that rotator cuff tears are caused by falls onto an outstretched hand/elbow or from a traction event to the shoulder. He concluded, "I do not believe that the alleged work incident of striking the very front of her shoulder on 4/27/18 against a plate that was sticking out is the prevailing factor in the cause of her rotator cuff tear as this is not the type of mechanism that would produce a rotator cuff tear." He opined that "other risk factors including activities that she may be performing while camping as well as her smoking history and her severe AC joint osteoarthritis as potential risk factors for the development of a rotator cuff tear. I believe these risk factors are the prevailing factor in the cause of her rotator cuff tear." Then he states "I believe that her smoking history of one-half pack per day for 20 years is the prevailing factor in the cause of her rotator cuff tear." Dr. Mall testified that there is a high association with smoking and rotator cuff tears and he refers to a study, attached to his deposition as Exhibit E. The study cited by Dr. Mall, "Smoking Predisposes to Rotator Cuff Pathology and Shoulder Dysfunction: A Systematic Review", concludes that "[s]moking is associated with RTC tears, shoulder dysfunction, and shoulder symptoms. Smoking may also accelerate RTC degeneration and increase the prevalence of larger RTC tears."

Employee was evaluated by Dr. Bruce Schlafly, an orthopedic surgeon, on February 12, 2019. Dr. Schlafly recorded that Employee struck her right shoulder on a metal plate at work and initially did not experience severe pain in her shoulder. Dr. Schlafly further noted that while Employee was camping that weekend her shoulder bothered her and she had difficulty raising

Employee: Pamela Boyer

Injury No. 18-035982

her right arm. After taking a history from Employee, reviewing her medical records, and performing a physical exam, Dr. Schlafly diagnosed Employee as having a torn rotator cuff of the right shoulder that had been present for ten months. He further noted she appeared to be developing adhesive capsulitis. He opined that the work injury of April 27, 2018 is the prevailing factor in causing her right shoulder rotator cuff tear and that her overhead work duties prior to the accident probably contributed to some underlying rotator cuff tendonitis seen on the MRI scan. He acknowledged that "[a] direct blow to the shoulder is a less common cause of a torn rotator cuff than other causes such as a fall on the arm or repetitive shoulder motion, particularly repetitive overhead shoulder motion, but a direct blow to the shoulder can cause a rotator cuff tear." Dr. Schlafly recommended that Employee be referred to an orthopedic shoulder specialist for a rotator cuff repair.

After reviewing additional records, including an Independent Medical Evaluation ("IME") performed by Dr. Schlafly, Dr. Mall issued an addendum report dated July 30, 2019 wherein he affirmed that his causation opinions remained the same. He observed that it is not uncommon that individuals won't remember a specific injury or event that produced their shoulder pain from a rotator cuff tear. He noted that rotator cuff tears are a common condition seen in the general population. Dr. Mall acknowledged that rotator cuff tears can occur from a direct blow trauma, but that "this is substantial trauma that essentially produces a shoulder dislocation and tears the rotator cuff. This is not the type of injury mechanism that Ms. Boyer describes." He further noted that because she was able to continue working after the event and her primary care doctor did not note any substantial bruising, this is indicative of a minor trauma. Dr. Mall testified by deposition, "Your shoulder blade is part of your socket. So you have to pull that ball far enough away from the socket to actually cause a rip of those tendons. And to do that you have to have a dislocation." He cited a study he participated in during his fellowship, attached to his deposition as Exhibit D, wherein he observed that traumatic rotator cuff tears are typically larger and those mechanisms of injury reported were not direct blows to the shoulder. The study did not set forth any conclusions about whether a shoulder dislocation is required for a direct blow to cause a rotator cuff tear. Dr. Mall also testified that an acute tear would be expected to cause inflammation, pain and soreness that would cause the individual to seek treatment the same day or within a couple of days. He testified that an acute tear would cause a person to have significant difficulty lifting their arm overhead and prevent them from doing normal activities.

Dr. Mall testified that if Employee were to pursue treatment under private health insurance, treatment would include an injection and physical therapy.

Dr. Schlafly issued an addendum report dated September 3, 2019. He noted that Employee had no history of right shoulder complaints before April 27, 2018 and that when seen by the doctor on April 30, 2018, the physician suspected rotator cuff pathology. He thought it unlikely that this was merely coincidence. He further noted that "a simple Google search produces numerous orthopedic websites from many American states and other countries which

1 The study, An Evidenced-Based Examination of the Epidemiology and Outcomes of Traumatic Rotator Cuff Tears, concluded that "[traumatic rotator cuff tears are more likely to occur in relatively young (age 54.7), largely male patients who suffer a fall or trauma to an abducted, externally rotated arm. These tears are typically large and involve the subscapular, and repair results in acceptable results."

MNKOI 0000811657

attribute rotator cuff tears to injuries caused by a direct blow, even without shoulder dislocation." Dr. Schlafly printed pages from eight different orthopedic websites that were attached to his report. Each of these websites states that one of the mechanisms of injury for a rotator cuff tear is a direct blow to the shoulder. None of these attached website pages specifically address whether or not a shoulder dislocation is necessary for a rotator cuff tear to occur as the result of a direct blow. However, Dr. Schlafly testified at deposition that in his opinion ". . . a direct blow to the shoulder without dislocation of the shoulder joint can cause a rotator cuff tear." He agreed on cross-examination that rotator cuff tears can also result from a strain due to sudden increase in activity, bone spurs off the acromion in the roof of the shoulder joint, or aging and degeneration of the rotator cuff tendons.

Employee continues to have symptoms in her right shoulder. She can no longer lift fifty pounds with her right shoulder. She cannot lift her right arm much higher than shoulder height without pain. Her shoulder now pops. She is able to perform her job, but it hurts sometimes.

Based on a comprehensive review of the evidence, including testimony, expert medical opinions, the medical records, other documentary evidence, and my personal observations at Hearing, I find:

Issues 1 and 2 are interrelated and therefore addressed together.

1. Whether on or about April 27, 2018, the employee sustained an accident or occupational disease arising out of and in the course of her employment.
2. Whether the employee's injury was medically causally related to the alleged accident or occupational disease.

Under Missouri law, an "accident" is defined as "an unexpected traumatic event or unusual strain identified 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 287.020.2 R.S.Mo. An injury by accident is compensable only if the accident is 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 disability. Section 287.020.3(1) R.S.Mo. Section 287.020.3(1) requires that the work-related injury be the 'primary factor' in causing the disability at issue, not the sole factor. Maness v. City of De Soto, 421 S.W.3d 532, 540 (Mo.App. 2014). The mere presence of pre-existing degeneration of an employee's body at the location of an otherwise compensable injury will not disqualify the injury from compensation pursuant to The Workers' Compensation Law. Id. at 41.

Where the right to compensation depends upon which of two conflicting medical theories should be accepted, the issue is peculiarly for the [fact finder] to decide. Spencer v. Sac Osage Elec. Co-op., Inc., 302 S.W.3d 792, 800 (Mo.App.2010). Claimant has the burden to prove all of the elements of the claim to a reasonable probability. Hoven v. Treasurer of State, 414 S.W.3d 676, 678 (Mo. App. 2013). 'Probable' means founded on reason and experience which inclines

Employee: Pamela Boyer

Injury No. 18-035982

the mind to believe but leaves room for doubt. *Mathia v. Contract Freighters, Inc.* 929 S.W.2d 271, 277 (Mo.App. 1996).

After considering both Employee and Mr. Carlyon's testimony, I find Employee's testimony that she struck her right shoulder on a dye plate to be credible. Mr. Carlyon's investigation confirmed that the accident could have happened the way Employee described it. Therefore, I find that Employee sustained an accident. The more complicated issue is whether the accident was the prevailing factor in causing Employee's resulting medical condition.

Both experts agree that Employee has a rotator cuff tear. However, they disagree as to whether the accident on April 27, 2018 was the prevailing factor in causing the rotator cuff tear and Employee's current shoulder complaints. Dr. Mall does not identify the accident as a risk factor for causing a rotator cuff tear. He opines that a direct blow to the shoulder, such as the one described by Employee, could not have caused a tear because her shoulder was not dislocated. He cites a study in support of this conclusion, however after careful review of study, I find that the study did not examine whether a dislocation injury is necessary for a direct blow to the shoulder to cause a rotator cuff tear. While the particular cases reviewed as part of that study indicated that rotator cuff tears are often caused by falls onto outstretched hands, I do not find that study particularly helpful in evaluating this case.

Dr. Mall further opined that her non-work-related risk factors of smoking, AC joint osteoarthritis, and camping activities were all the prevailing factor in causing her rotator cuff tear, but then states in the same paragraph of his report that her smoking history was the prevailing factor in causing the tear. Employee denied any injuries to her right shoulder while camping and there is no evidence to the contrary, therefore I find her camping activities were not the prevailing factor in causing her rotator cuff tear.

On the other hand, Dr. Schlafly opines that the accident was the prevailing factor in causing a rotator cuff tear and points to the timeline of events along with a simple Google search. I find the most compelling evidence is that Employee's symptoms began shortly after striking her shoulder on the metal dye plate. Dr. Mall testified that an acute tear would be expected to cause inflammation, pain and soreness that would cause the individual to seek treatment the same day or within a couple of days. He testified that an acute tear would cause a person to have significant difficulty lifting their arm overhead and prevent them from doing normal activities. Employee reported that she experienced pain, soreness and difficulty lifting her arm overhead in the three days following her accident at work. She reported resting and icing her shoulder over the weekend. The accident occurred on a Friday and she sought evaluation the following Monday morning after experiencing these symptoms over the weekend. Although Dr. Mall opined that her ability to continue working on the day of accident was contrary to an acute injury, I find it relevant that she was released from work at 11:00 a.m., just three hours after her accident, and her remaining shift was spent performing activities that did not require much use of her upper extremities. Employee denied having any right shoulder symptoms prior to April 27, 2018 and there is no evidence to the contrary. I find Employee's testimony credible. I find the causation opinion of Dr. Schlafly more credible than the causation opinion of Dr. Mall. Despite Dr. Mall's detailed explanation involving the anatomy of the shoulder, I am not convinced that one must dislocate their shoulder in order for a direct blow to cause a rotator cuff tear. Based on the credible testimony of Employee and Dr. Schlafly, I find it more probable that the accident of

Employee: Pamela Boyer

Injury No. 18-035982

April 27, 2018 was the prevailing factor in causing Employee's resultant medical condition of right shoulder rotator cuff tear and that her preexisting history of smoking and asymptomatic AC joint arthritis were contributing factors. I find Employee's accident of April 27, 2018 was the prevailing factor in causing her right shoulder injury.

1. Whether employee is entitled to additional or future medical aid.

Section 287.140.1 reads as follows:

> In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

I find that Employee has met her burden of proof that she is entitled to additional medical treatment to cure and relieve her from the effects of her right shoulder injury. Both Drs. Mall and Schlafly agree that Employee requires medical treatment to cure and relieve her from the effects of her right shoulder condition. Dr. Mall recommended a conservative course of treatment including an injection and physical therapy before considering surgical intervention, whereas Dr. Schlafly recommended a referral to an orthopedic surgeon for surgery. I find that a referral to an orthopedic shoulder specialist to determine the appropriate course of treatment is reasonable. Employer is ordered to provide medical treatment necessary to cure and relieve Employee from the effects of her right shoulder injury.

Issue 4 is moot and therefore not ruled upon.

**CONCLUSION:**

I find Employee met her burden of proof that she sustained an accident in the course and scope of employment on April 27, 2018 and that the accident was the prevailing factor in causing her right shoulder injury.

**ATTORNEY'S FEE:**

Ellen Morgan, attorney at law, is allowed a fee of 25% of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

**INTEREST:**

Interest on all sums awarded hereunder shall be paid as provided by law.

10

As previously indicated this is a temporary or partial award. The award is therefore subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

I certify that on 11-10-20

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.


Made by:


Amy L. Young

Administrative Law Judge

Division of Workers' Compensation