Melissa Sulier v. SSM Health Care Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 13-064888

Employee: Melissa A. Sulier

Employer: SSM Health Care Corporation

Insurer: Self-Insured

The above-entitled 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 and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated February 9, 2021. ${ }^{1}$ The award and decision of Administrative Law Judge John K. Ottenad, issued February 9, 2021, is attached and incorporated by this 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

Shalonn K. Curls

Shalonn K. Curls, Member

Attest:

Secretary

[^0]

[^0]: ${ }^{1}$ The Commission's statutory authority is generally limited to issues raised by a party's application for review. See Stonecipher v. Poplar Bluff R1Sch. Dist., 205 S.W.3d 326 (Mo. App. 2006) and Anhalt v. Penmac Pers. Servs., 505 S.W.3d 842 (Mo. App. 2016). In that the administrative law judge's award made no finding on the issue of the statute of limitations and because no party raised this issue in an application for review, consistent with 8 CSR 20.3.030(3)(A) the Commission declines to consider this issue.

Employee: Melissa Sulier

Injury No.: 13-064888

Dependents: N/A

Employer: SSM Health Care Corporation

Additional Party: None

Insurer: Self-Insured

C/O Cannon Cochran Management Services

Hearing Date: November 5, 2020

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

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? Yes
4. Date of accident or onset of occupational disease: September 1, 2013
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? Yes
9. Was claim for compensation filed within time required by Law? Undetermined
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant worked as a nurse for Employer and allegedly injured her right forearm/elbow, when she was helping a patient to a bedside commode and the patient felt like she was losing her balance, causing the patient to grab her right forearm and jerk it down.
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: (Alleged) Right Elbow
14. Nature and extent of any permanent disability: Undetermined
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 2,357.00

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 13-064888

Employee: Melissa Sulier

Injury No.: 13-064888

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: 1,205.78

1. Weekly compensation rate: 803.89 for TTD/$446.85 for PPD

1. Method wages computation: By agreement (stipulation) of the parties

COMPENSATION PAYABLE

1. Amount of compensation payable:

No compensation awarded for this case

$0.00

1. Second Injury Fund liability: N/A

TOTAL: $0.00

1. Future requirements awarded: N/A

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: Jeffrey R. Swaney.

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On November 5, 2020, the employee, Melissa Sulier (Claimant), appeared in person and by her attorney, Mr. Jeffrey R. Swaney, for a hearing for a final award on her claim against the employer, SSM Health Care Corporation (Employer), which is duly self-insured under the law C/O Cannon Cochran Management Services. The employer, SSM Health Care Corporation, which is duly self-insured under the law C/O Cannon Cochran Management Services, was represented at the hearing by its attorney, Mr. Kevin M. Leahy. The Second Injury Fund is not a party to this case.

Along with this Claim [Injury Number 13-064888, with a date of injury of September 1, 2013, alleging injury to the right forearm/elbow], Claimant also tried her other open companion claim at the same time. Injury Number 13-104948, with a date of injury of March 18, 2013, alleges injury to the left shoulder. A separate award has been issued for each of these cases.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about September 1, 2013, Melissa Sulier (Claimant) allegedly sustained an accidental injury.

2) Claimant was an employee of SSM Health Care Corporation (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) At the relevant time, Claimant earned an average weekly wage of $\ 1,205.78, resulting in applicable rates of compensation of $\ 803.89 for total disability benefits and $\ 446.85 for permanent partial disability benefits.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 13-064888

6) Employer paid no temporary total disability (TTD) benefits in this case.

7) Employer paid medical benefits totaling $2,357.00.

ISSUES:

1) Did Claimant sustain an accident?

2) Did the accident arise out of and in the course of Claimant's employment for Employer?

3) Are Claimant's injuries and continuing complaints, as well as any resultant disability, medically causally connected to her alleged accident at work for Employer on September 1, 2013?

4) What is the appropriate date of injury for this alleged accident?

5) Was the Claim for Compensation timely filed under the applicable statute of limitations?

6) What is the nature and extent of Claimant's permanent partial disability attributable to this injury?

EXHIBITS:

The following exhibits were admitted into evidence:

Employee Exhibits:

1. Deposition of Dr. Dwight Woiteshek, with attachments, dated August 20, 2020
2. Certified medical treatment records of SSM Health DePaul Hospital (Dr. Katherine Burns)
3. Withdrawn by Employee prior to admission
4. Certified medical treatment records of SSM Physical Therapy

Employer/Insurer Exhibits:

A. Report of Injury for March 18, 2013 date of injury

B. Report of Injury for September 1, 2013 date of injury

C. Amended Claim for Compensation for Injury Number 13-104948 (Date of Injury of March 18, 2013)

D. Amended Claim for Compensation originally for Injury Number 14-104504, which was amended to Injury Number 13-064888 (Date of Injury of September 1, 2013)

E. Claim for Compensation for Injury Number 14-104504 (Date of Injury of October 1, 2014), along with various setting notices for that case

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F. Certified medical treatment records of Workhealth-St. Louis

G. Certified medical treatment records of Orthopedic Associates, LLC (Dr. Micah Hobbs, Dr. Frank Bender and Dr. William Strecker)

H. Deposition of Dr. Micah Hobbs, with attachments, dated June 25, 2020

I. Deposition of Dr. William Strecker, with attachments, dated October 26, 2020

J. Report of Injury for January 4, 2014 date of injury

**Notes:**

1) Any stray marks or handwritten comments contained on any of the exhibits were present on those exhibits at the time they were admitted into evidence, and no other marks have been made since their admission into evidence on November 5, 2020.

2) The deposition exhibits were admitted into evidence with objections contained in the transcripts. Unless otherwise noted differently below, the objections are overruled and the testimony fully admitted into evidence in this case.

3) The parties asked that I take judicial and/or administrative notice of the file contents of the Division of Workers' Compensation files in cases 13-104948 (Date of Injury of March 18, 2013), 13-064888 (Date of Injury of September 1, 2013) and 14-104504 (Date of Injury of October 1, 2014), as well as all Reports of Injury filed for Employee in the system. Without objection, I will take such judicial and/or administrative notice of those documents and file contents.

**FINDINGS OF FACT:**

Based on a comprehensive review of the evidence, including Claimant's testimony, the testimony of Employer's witness, the expert medical opinions and depositions, the medical treatment records, and the other documentary evidence, as well as based on my personal observations of Claimant and the other witness at hearing, I find:

1) **Claimant** is a 64-year-old nurse, who was employed by SSM Health Care Corporation (Employer), at or about the time of her alleged accident on September 1, 2013. She worked for Employer from January 1998 until 2015. She generally worked as a staff nurse, but occasionally as a charge nurse, too. She is presently employed as a nurse case manager for United Healthcare.

2) **Claimant** testified that on September 1, 2013, she was helping a patient to a bedside commode, when the patient felt like she was losing her balance and grabbed Claimant's right forearm and jerked it down, instead of grabbing the handrails to the bedside commode. She said this same thing happened twice during her shift. Claimant said that she had immediate, severe, aching pain from the right forearm down into her right hand. She reported the injury to her supervisor and got medical treatment.

3) **A Report of Injury (Exhibit B)**, which was assigned Injury Number 13-064888, shows that on September 1, 2013, Claimant injured her "upper extremities-upper arm" when her arm was grabbed by a patient. The report shows that Employer was notified

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of this injury on September 3, 2013, and the form was filed by Kris Givens on September 4, 2013.

4) According to the records of the Division of Workers' Compensation, there was also another Report of Injury, which was assigned Injury Number 13-064888, which showed a date of injury of September 2, 2013. It indicated that Claimant injured her upper arms, including her clavicle and scapula, when a patient grabbed her arm. The form showed that Employer was notified of the injury on September 3, 2013, and it was filed on September 4, 2013.

5) Claimant testified that she received medical treatment for her right arm from Dr. Bender. She said that she had three injections in the right arm. She was, also, placed on light duty.

6) Medical treatment records from Workhealth-St. Louis (Exhibit F) show that Claimant began treating at that facility on September 6, 2013, with Dr. Anjum Razzaque for complaints in her right elbow. Claimant provided a consistent history of injury on September 1, 2013, and described continued significant pain with certain movements of the elbow. She denied any previous history of right elbow problems, but she did have a right shoulder surgery in 2004. She was diagnosed with right lateral epicondylitis, for which she was given medication and an elbow band for support. Dr. Razzaque opined that her condition was "work related" and noted that the incident on September 1, 2013, was the prevailing factor in Claimant's current need for treatment for her right elbow. As Claimant continued to follow up, she initially reported some improvement with the medication and elbow band, but by September 16, 2013, she reported continued sharp pain aggravated by lifting, twisting movements, pushing or pulling. Dr. Razzaque ordered physical therapy for the right elbow complaints.

7) Medical treatment records from SSM Physical Therapy (Exhibit 4) document the right elbow therapy Claimant received at that facility from September 18, 2013 to October 8, 2013. The records contained a consistent history of the onset of her right elbow complaints with the work injury on September 1, 2013. Although Claimant initially showed progress in therapy with decreased complaints and increased function, she, then, regressed some with increased pain with lifting and pushing/pulling activities.

8) Claimant continued treating with Dr. Razzaque at Workhealth-St. Louis (Exhibit F) as her physical therapy progressed. By October 3, 2013, Dr. Razzaque noted Claimant had ongoing and worsening right elbow pain, especially with lifting, twisting or grasping movements. He diagnosed Claimant with right elbow lateral epicondylitis, which continued despite physical therapy and medications. He referred Claimant for further evaluation and management of her right elbow complaints to an orthopedic surgeon or a physiatrist. Once again, Dr. Razzaque noted that her condition was "work related" and noted that the incident on September 1, 2013, was the prevailing factor in Claimant's current need for treatment for her right elbow.

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9) Medical treatment records from Orthopedic Associates, LLC (Exhibit G), show that Claimant came under the care of Dr. Frank Bender on October 9, 2013. Again, she provided a consistent history of the injury on September 1, 2013. Dr. Bender diagnosed right lateral epicondylitis of the elbow and performed a right lateral epicondyle injection on this date. He opined that the prevailing factor for this injury was the incident at work on September 1, 2013. Claimant was kept on light-duty work to see how she responded to the injection. On October 16, 2013, Dr. Bender reported that the injection was very effective, with reduced, but some continued, pain in the elbow, so he decreased the work restrictions he had placed on her. By October 23, 2013, Claimant reported no pain in the right elbow. Dr. Bender found no abnormalities or complaints on her physical examination on that date. He opined that her right lateral epicondylitis had resolved, placed her at maximum medical improvement for this condition and released her to work without restrictions.

10) A Report of Injury (Exhibit J), which was assigned Injury Number 14-017143, shows that on January 4, 2014, Claimant injured her "upper extremities-hand left" when she was grabbed by a combative patient. The report shows that Employer was notified of this injury on February 26, 2014, and the form was prepared by Kris Givens on January 7, 2014, but filed on February 26, 2014. According to the records of the Division of Workers' Compensation, this Injury Number was administratively closed on January 15, 2015.

11) Medical treatment records from Dr. Bender (Exhibit G) show that Claimant returned to see him on February 26, 2014. The report contains a history that she was doing well after her elbow injection and doing her usual work "until about a couple months ago when she was physically holding a patient down and felt pain in her elbow that gradually over the next couple weeks got worse." She reported the incident to her supervisor and was authorized for another elbow evaluation. Dr. Bender diagnosed right lateral epicondylitis and opined that "this is a new injury." He explained that because she responded quite well to the original injection, he did "not think this injury is related to the initial one." He injected the right elbow and placed restrictions on her ability to work for just that day. When she returned to see Dr. Bender on March 12, 2014, Claimant reported that she was doing well after the injection. Dr. Bender noted that her right lateral epicondylitis, secondary to an injury at work, had resolved after one injection. He discharged her from care, and released her to continue working full duty, without restrictions.

12) Claimant, again, returned to see Dr. Bender (Exhibit G) on August 5, 2014, complaining of a recurrence of her right lateral epicondylitis. He noted that he would provide her a third elbow injection, but if this did not give her permanent relief, then she would need an orthopedic referral since she had three injections in a year. Dr. Bender diagnosed recurrent right lateral epicondylitis, injected the elbow, and noted that if she returned in the next six months, then she should be sent for an orthopedic opinion. Claimant was allowed to continue to work without restrictions. Interestingly, the OA Consolidated Form for this August 5, 2014 visit notes a date of injury (DOI) of January 4, 2014.

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13) Claimant testified that she continued working in pain, so she was sent to Dr. Strecker for further evaluation and treatment for her right elbow. She said that Dr. Strecker ordered an MRI and performed surgery on her right elbow.

14) The Patient Intake Form, attached as Exhibit B to the deposition of Dr. Strecker (Exhibit I), was reviewed and signed by Claimant on August 5, 2014. A handwritten note on the top indicated that it was updated on August 18, 2014, for her appointment with the doctor that day. The form indicates a date of injury of January 4, 2014, and that these problems had been present for eight months.

15) When Claimant was asked about this form on direct examination, she denied that any accident occurred on January 4, 2014. She said that she had been having a continuation of elbow pain and there was some increase in pain in about January 2014, because the injections she had been getting for her elbow stopped working. Claimant testified that when the third injection stopped working, she went to Kris Givens and asked her about reinstating her elbow, but Claimant adamantly disputed the accuracy of Dr. Strecker's records showing an accident occurred in January 2014. She insisted that all of her right elbow complaints dated back to September 1, 2013, and were all attributable to that original injury to her elbow. On cross-examination, Claimant also denied the accuracy of Dr. Bender's records indicating that she had a new injury in January 2014. She insisted that she did not have a new injury, but it was just the continuing complaints from the original injury on September 1, 2013. Claimant testified that after her visit with human resources, the right elbow treatment was reinstated, but there was no new injury. Claimant even agreed that she never told her attorney about any January 4, 2014 injury, because she never had such an injury on or about that date.

16) Medical treatment records from Orthopedic Associates, LLC (Exhibit G), show that Claimant came under the care of Dr. William Strecker on August 18, 2014. Dr. Strecker's note indicates a history of Claimant having had her right arm grabbed twice by a patient on January 4, 2014, and having pain and functional difficulties in the right elbow since that time. Dr. Strecker diagnosed right lateral epicondylitis and concomitant radial tunnel. He recommended medication and physical therapy, since she had just had an injection. When her complaints continued, he ordered an MRI of the right elbow, which was taken on September 12, 2014. On September 16, 2014, Dr. Strecker noted MRI findings consistent with lateral epicondylitis, and he recommended surgery. Dr. Strecker performed the right lateral epicondylectomy on October 24, 2014. Claimant followed up with Dr. Strecker after surgery, noting decreased complaints and improving function. She attended a course of physical therapy for her right elbow at SSM Physical Therapy (Exhibit 4) from November 11, 2014 to January 30, 2015. The notes indicate that she made excellent progress in range of motion and strength, but continued to have some limitations. By December 3, 2014, Claimant reported to Dr. Strecker that she was doing well, and he released her to return to full-duty work.

17) Claimant returned to Dr. Strecker on December 23, 2014, complaining of pain and swelling in the right hand and wrist that had occurred since her elbow surgery. X-rays

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of the wrist, and his physical examination of her, failed to reveal anything specific except for some generalized osteopenia. Dr. Strecker indicated that he was unable to relate these complaints and problems to her original injury, but it appears, from history, to be inflammatory. He recommended some medication.

18) Dr. Strecker examined Claimant for the final time on January 13, 2015. Claimant reported no complaints with her right elbow, but still some persistent swelling in her hand, mostly the PIP joint with morning stiffness. Dr. Strecker opined that Claimant had reached maximum medical improvement with regard to her right elbow. He did not believe she would need any further medical treatment, and released her from care to full-duty work. In a final note dated March 17, 2015, Dr. Strecker opined that Claimant had 6% permanent partial disability of the right elbow "solely attributable to the alleged injury of 01/04/2014."

19) On or about June 11, 2015, Claimant filed a Claim for Compensation (Exhibit E) alleging that on October 1, 2014, she sustained injury to her right elbow, arm and whole body, when she was moving a patient off a toilet. The Claim was received by the Division of Workers' Compensation on June 15, 2015. This October 1, 2014 alleged injury was assigned Injury Number 14-104504.

20) Apparently, in response to this Claim, Employer filed a Report of Injury for Injury Number 14-104504, which showed a date of injury of October 1, 2014, and noted an injury to the elbow from assisting a patient. The form notes that Employer was notified of the injury on June 24, 2015, and filed the Report on June 25, 2015.

21) Claimant filed an Amended Claim for Compensation (Exhibit D) for this case on May 16, 2018, which was received by the Division on May 21, 2018. Claimant sought to amend the date of injury from October 1, 2014 to September 1, 2013. Apparently because Claimant was seeking to change the date of injury to a year earlier, the Division, on their own, without any motion or identifiable request from the parties, changed the Injury Number to 13-064888, and combined the two case files together into one. All of the documents and file contents for 14-104504, were moved into 13-064888, and 14-104504 was closed.

22) In terms of her current complaints, Claimant testified that she still has intermittent pain, and a lack of mobility, flexibility and strength in the right elbow. She described pain from the right elbow into the forearm and, sometimes, into the wrist. Claimant said that she has problems carrying heavy items, lifting things and opening jars. She said that she takes over-the-counter medications (Tylenol, Aleve or Advil) when her shoulder or elbow flares up, every couple of weeks.

23) Kristen Givens testified live at trial on behalf of Employer. She is the Workers' Compensation supervisor for Employer. She has held this position for Employer for the last six months. Prior to that, she worked for Employer as an employee health nurse and Workers' Compensation specialist. She was working in this position at or about the time of the events Claimant described in her testimony concerning her right elbow injury (2013 and 2014). Ms. Givens testified that part of her job is to take

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reports of injury from employees. She testified that she entered the information into the computer that generated the Report of Injury for the January 4, 2014 incident (Exhibit J). She confirmed that she prepared the report on January 7, 2014, but she did not have an independent recollection of this conversation with Claimant and was uncertain on the February 26, 2014 date on the form. However, Ms. Givens testified that she must have a completed event report, filled out by an employee or a supervisor, before she can file a Report of Injury.

24) Ms. Givens testified that the last payment Employer/Insurer made for Dr. Strecker's medical treatment for Claimant's January 4, 2014 right elbow injury was on February 6, 2015. Employer/Insurer paid for no other bills for medical treatment for the right elbow after that date. The only payment made after that date was on April 17, 2015 for Dr. Strecker's rating report.

25) The deposition of Dr. William Strecker (Exhibit I) was taken by Employer/Insurer on October 26, 2020 to make his opinions in this case admissible at trial. Dr. Strecker is board certified in orthopedic surgery, with added qualifications in surgery of the hand. He mentioned that he is living in Florida, but not completely retired. He examined and treated Claimant in this case for her right elbow complaints. Dr. Strecker testified consistent with the reports described above concerning his diagnoses and treatment for her right elbow. He confirmed that when a patient first sees him, they fill out a Patient Intake Form, which Claimant filled out in this case (Exhibit B to his deposition). Dr. Strecker said Claimant reported an injury on January 4, 2014, when she was attempting to assist a patient and her right arm was grabbed twice. He described a final diagnosis of her work-related condition as right elbow lateral epicondylitis, which he treated surgically. He did not directly relate her subsequent right hand swelling and stiffness to her work injury. He rated her as having 6% permanent partial disability of the right elbow attributable to her alleged injury on January 4, 2014.

26) On cross-examination, Dr. Strecker admitted that the MRI did show a tear in the right elbow with degenerative tissue around it. Dr. Strecker said Claimant did not give him any history of an injury around September 1, 2013, nor did she mention Dr. Bender treating her in 2013. He also did not have any of Dr. Bender's treatment records. He agreed that the last time he saw her was in 2015, so he was unaware of precisely what complaints she may have at the current time. All he knew was that in 2015, when he last examined her, she had no complaints about her elbow.

27) The deposition of Dr. Dwight Woiteshek (Exhibit 1) was taken by Claimant on August 20, 2020 to make his opinions in this case admissible at trial. Dr. Woiteshek is a board certified orthopedic surgeon, who ran Orthopedic Consultant Services. Dr. Woiteshek noted that he retired from the practice of medicine on January 1, 2020, and is living in Florida. He said that he last performed surgeries, like those described in the records, on the shoulder and elbow, in the summer of 2008. He testified that he examined Claimant, at the request of her attorney, on two occasions, after which he prepared two reports dated November 19, 2016 and June 10, 2019.

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28) Dr. Woiteshek noted that he first examined Claimant on November 12, 2016, with respect to her left shoulder and right elbow injuries. Claimant provided a consistent history of the injury at work to her right elbow on September 1, 2013. However, there was no history provided by Claimant, nor any history identified from his review of the medical records, concerning any other injuries to her right elbow after September 1, 2013. Dr. Woiteshek diagnosed traumatic lateral epicondylitis of the right elbow, status post surgery by Dr. Strecker on October 24, 2014, which was medically casually related to Claimant's September 1, 2013 work injury. He rated her as having 35% permanent partial disability of the right elbow on account of that work injury. Dr. Woiteshek testified that he saw Claimant again and prepared a subsequent report dated June 10, 2019. He had additional records for this second report concerning the left shoulder surgery performed by Dr. Burns. Dr. Woiteshek changed his diagnosis and rating concerning the left shoulder, but left everything regarding the right elbow exactly the same. Dr. Woiteshek opined that the medical treatment Claimant received was reasonable and necessary to cure and relieve Claimant of the effects of the work injury.

29) On cross-examination, Dr. Woiteshek testified that there was a typo on his June 10, 2019 report, because the first paragraph indicates he saw her on "November 12, 2016," which was the date that he actually examined her for the first report. He insisted that he examined her a second time, but it was not accurately reflected in his second report. He thought that it might, perhaps, be somewhere around June 2, 2019, or "something like that" because he normally prepared his reports within a week or two after he saw the patient. However, he had no records to confirm the date of the second appointment. When he was presented with the fact that the reports were identical, except for the addition of the information about Dr. Burns' surgery, Dr. Woiteshek agreed that the examinations were identical, with "no change" at all.

30) On continued cross-examination, Dr. Woiteshek agreed that he came up with the dates of injury for these cases by reviewing the claims for compensation that Claimant's attorney had provided him. He said the histories contained in his reports are a combination of what Claimant told him, and what he found in the medical treatment records. When presented with the history of another injury to the right elbow in Dr. Bender's records, Dr. Woiteshek testified that he had no recollection of that and he did not put that in his report, but he must have reviewed it, if it is in the records. Dr. Woiteshek explained that when you have a shot of cortisone and it wears off, you sometimes have a recurrence of complaints that may seem like a new injury, but it is probably just the initial injury and the cortisone just wore off. He denied that the description contained in Dr. Bender's report actually represented a new injury, and said that it all backdates to the original injury. Dr. Woiteshek did not believe the second incident was significant enough, when compared to the first incident, to represent a new injury. Dr. Woiteshek also did not have the full history of the injections Claimant had in the elbow before surgery. Again, he testified that he must have reviewed those records, but he did not note it in his report and he had no independent recollection of it.

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31) Dr. Woiteshek was questioned extensively about his additional 10% permanent partial disability of the shoulder in his second (2019) report on account of the surgery Dr. Burns performed. He explained that although the physical examination findings were exactly the same and Claimant's complaints were exactly the same, the additional disability was appropriate because of the changed objective findings (scar tissue, etc.) that would be present from having had a surgery on the left shoulder. However, Claimant had the shoulder surgery in 2015, prior to Dr. Woiteshek's examination and first report in 2016. Therefore, the only difference is that Dr. Woiteshek was unaware that that surgery had been performed when he saw her in 2016, and subsequently had the records to review before his second report in 2019.

32) Despite Dr. Woiteshek insisting that he examined Claimant twice, in 2016 and 2019, Claimant, interestingly, testified that she only saw Dr. Woiteshek one time, in 2016. Therefore, I closely reviewed each of his reports that had been placed into evidence. A thorough review of each report revealed that the verbiage used in each report was identical except for the addition of the Dr. Burns records he reviewed in the first paragraph, a paragraph in the medical summary regarding Dr. Burns' surgery and the inclusion of the left shoulder surgery in the past medical history section. There were multiple references in each report that he examined/interviewed Claimant on November 12, 2016, despite his insistence that he also saw her in 2019. Interestingly, although Claimant had already had the left shoulder surgery prior to Dr. Woiteshek's 2016 examination, he makes no mention of the surgical scar on the left shoulder in his 2016 report, but mentions it in the 2019 report. It is unclear how he could have missed that surgical scar on his first examination of the left shoulder since she already had the surgery, even if he did not yet have the records to review. Additionally, I found that every aspect and detail of each physical examination was exactly the same in each report: Identical blood pressure, identical pulse, identical respirations, identical test results, identical range of motion on every movement on multiple body parts, identical strength measurements in every respect, identical arm and forearm circumference, and identical grip strength and pinch strength measurements on all five settings on both hands.

RULINGS OF LAW:

Based on a comprehensive review of the evidence, including Claimant's testimony, the testimony of Employer's witness, the expert medical opinions and depositions, the medical treatment records, and the other documentary evidence, as well as based on my personal observations of Claimant and the other witness at hearing, and based on the applicable statutes and regulations of the State of Missouri, I find:

The testimony and evidence in the record presents substantial questions of whether there was one or more injuries to the right elbow, what diagnoses, conditions, medical treatment and disability for the right elbow may be related to what injuries, and concerning the accuracy and timeliness of the pleadings for the right elbow injury. All of these questions represent threshold issues that must be addressed before any determination can be made on what, if any, benefits should be awarded.

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Injury No. 13-064888

Considering the date of the injury, it is important to note the statutory provisions that are in effect, including Mo. Rev. Stat. § 287.800 (2012), which mandates that the Court "shall construe the provisions of this chapter strictly" and that "the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts." Additionally, Mo. Rev. Stat. § 287.808 (2012) establishes the burden of proof that must be met to maintain a claim under this chapter. That section states, "In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true."

Claimant bears the burden of proof on all essential elements of her Workers' Compensation case. *Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute*, 793 S.W.2d 195 (Mo. App. E.D. 1990) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). The fact finder is charged with passing on the credibility of all witnesses and may disbelieve testimony absent contradictory evidence. *Id.* at 199.

As the first four issues are all inter-related in this case, I will address all four issues in the same section of the Award.

**Issue 1: Did Claimant sustain an accident?**

**Issue 2: Did the accident arise out of and in the course of Claimant's employment for Employer?**

**Issue 3: Are Claimant's injuries and continuing complaints, as well as any resultant disability, medically causally connected to her alleged accident at work for Employer on September 1, 2013?**

**Issue 4: What is the appropriate date of injury for this alleged accident?**

Under Mo. Rev. Stat. § 287.120.1 (2012), every employer subject to the Workers' Compensation Act shall furnish compensation for the personal injury of the employee by accident arising out of and in the course of employee's employment. According to Mo. Rev. Stat. § 287.020.2 (2012), accident is defined as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift." Further, under Mo. Rev. Stat. § 287.020.3 (1) (2012), "An injury by accident is compensable only if the accident 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." Finally, under Mo. Rev. Stat. § 287.020.3 (2) (2012), an injury is deemed to arise out of and in the course of the employment only if the accident is the prevailing factor in causing the injury and it does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment.

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Although there are a number of issues raised with regard to the pleadings that will be addressed in more detail below, Claimant alleges, in this case, that she injured her right elbow on September 1, 2013, and that the injury on that date was responsible for causing the totality of her right elbow condition, all her right elbow medical treatment, including her need for surgery, and all of her right elbow disability. She denies any other injuries to her right elbow at work and testified, quite clearly, that her recurrence of symptoms in 2014, in her opinion, resulted in a reinstatement of her original right elbow case, but not a new injury.

In order to be successful in meeting her burden of proof in this matter, I find it is necessary for Claimant to present credible and reliable testimony on her own behalf to establish that an accident in the course and scope of her employment occurred, when it occurred, and what complaints and problems she had on account of that accident. It is also necessary for Claimant to present competent, credible and persuasive medical evidence to show that the diagnoses, medical treatment and disability is medically causally related to the September 1, 2013 accident, as opposed to any other potential cause. Because this is an accident case, as opposed to an occupational disease case, where it may be more difficult to determine a precise date of injury, I find that it is essential for Claimant to prove that her diagnoses and disability is attributable to the precise accidental injury that she claims. I do not find it sufficient to merely show that her disability comes from her work, without it being specifically medically causally related to that specific accident.

Having reviewed Claimant's testimony, and having compared that testimony to the contemporaneous medical treatment records in evidence in this case, I find that Claimant has met her burden of proving that she sustained an accident at work for Employer on September 1, 2013, that arose out of and in the course of her employment for Employer. I find that Claimant was assisting a patient to a bedside commode, when the patient felt like she was losing her balance and grabbed Claimant's right forearm and jerked it down, instead of grabbing the handrails to the bedside commode. I find that this same thing happened twice during this same shift. I find that Claimant's testimony, in this regard, is supported by the Report of Injury that was filed by Employer, as well as the medical treatment records from Dr. Razzaque at Workhealth-St. Louis, Dr. Bender at Orthopedic Associates, LLC, and SSM Physical therapy, all in September and October 2013. The records from all of these medical providers document a consistent history of Claimant sustaining an injury at work for Employer on September 1, 2013.

Despite Claimant's denials to the contrary, I find that these same records that supported her initial allegation of a right elbow injury on September 1, 2013, also support a finding that Claimant sustained a second right elbow injury while at work for Employer on January 4, 2014. I find that Employer filed a Report of Injury that confirmed an injury on January 4, 2014, and that such report was prepared within days of the injury by Kris Givens. I, further, find Ms. Givens' testimony credible that she would not have prepared such a report without having received a completed event report, filled out by an employee or a supervisor.

The presence of a second right elbow injury is also supported by the records and opinions of Dr. Bender, who treated Claimant in October 2013, with an injection for the September 1, 2013 injury, and examined and treated her again, starting in February 2014, when the complaints in the right elbow resurfaced. Dr. Bender's records show that Claimant provided him with a new

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mechanism of injury, namely, that she was doing her usual work "until about a couple months ago when she was physically holding a patient down and felt pain in her elbow that gradually over the next couple weeks got worse." Having been involved in both her initial treatment for the September 1, 2013 injury, and the treatment brought on by the description of this new incident, Dr. Bender opined that "this is a new injury." He explained that because she responded quite well to the original injection, he did "not think this injury is related to the initial one." Because of his involvement in treating Claimant for both incidents, I find that he is in the best position to give competent, credible and reliable opinions on whether there were two compensable events, and which of Claimant's complaints and diagnoses may be related to which incident.

I, further, find that the medical treatment records, opinions and testimony of Dr. Strecker, confirm the presence of a separate injury to the right elbow on January 4, 2014. Although Claimant disputes the accuracy of it, I find the Patient Intake Form that she, at least, reviewed and signed before she began her treatment with Dr. Strecker, confirms that she reported an injury on January 4, 2014. I find that Dr. Strecker used that as a basis for his opinions that her need for surgery and all of her right elbow disability is medically causally related to the January 4, 2014 work injury. Most importantly, I find that Dr. Strecker did not medically causally relate any of his treatment, any of Claimant's complaints, or any of her right elbow disability to the September 1, 2013 work injury. He credibly attributed all of that to the January 1, 2014 injury, which Claimant now disputes ever occurred.

While Claimant's denial of a January 4, 2014 injury and her insistence that all of her right elbow complaints and problems must be related to her initial injury on September 1, 2013, is flatly contrary to the other records and evidence in this case, I do not believe she is purposely trying to be inaccurate with her testimony. Instead, because we are dealing with events that happened six to seven years ago, I find that Claimant is really just confused about the timeline of events and the onset of her complaints. However, I find that this confusion negatively impacts her credibility as it relates to those factors in the case.

This confusion on Claimant's part is even more evident when considering the nature of the pleadings in this case. Claimant filed her first Claim for Compensation for her right elbow issues, alleging that on October 1, 2014, she sustained injury to her right elbow, arm and whole body, when she was moving a patient off a toilet. While she describes a mechanism of injury that corresponds to what happened on September 1, 2013, she lists a date over a year later, that was not supported by any medical evidence, nor any Report of Injury previously filed by Employer. Then, almost three years later, Claimant filed the Amended Claim for Compensation changing the date of injury from October 1, 2014 to September 1, 2013, but completely ignoring the presence of the Report of Injury, and the medical opinions of Drs. Bender and Strecker that a right elbow injury also occurred on January 4, 2014.

I find that Claimant's description of the injury and the timing of the treatment she received is also confused, at times, in the various histories provided to physicians in this case. All of this leads me to conclude that while I find Claimant sustained a work injury on September

1 The Report of Injury for this alleged date of injury was filed after the Claim for Compensation, and apparently in response to it.

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1, 2013, I also find that I cannot rely on her testimony regarding the nature of her complaints and problems, and their potential relationship to any given accidental injury at work.

The second component of the burden of proof for this part of the case, is whether Claimant has been able to present competent, credible and persuasive medical evidence to show that the diagnoses, medical treatment and disability in her right elbow is medically causally related to the September 1, 2013 accident, as opposed to any other potential cause. In support of her position, Claimant offered the reports and testimony of Dr. Woiteshek, who medically causally related the right elbow diagnosis, medical treatment, surgery, continuing complaints and disability to the September 1, 2013 work injury. On the other hand, Employer's medical expert, Dr. Strecker, medically causally related the right elbow diagnosis, medical treatment, surgery, continuing complaints and disability to a January 4, 2014 work injury.

I find that the only medical evidence that supports the causal connection between the September 1, 2013 work injury and the right elbow diagnosis, surgery, continuing complaints and disability, is Claimant's medical expert, Dr. Woiteshek. For reasons that are described in more detail below, I find that the opinions and testimony offered by Dr. Woiteshek in this case are not competent, credible or reliable. Therefore, I find that Claimant has failed to meet her burden of proof on this issue by failing to offer competent, credible and reliable medical evidence to support her causation assertions.

Having thoroughly reviewed the testimony and reports of Dr. Woiteshek offered into evidence in this case, I have serious reservations that he actually performed two physical examinations of Claimant, despite his sworn testimony that he did. Even though Dr. Woiteshek testified there were two examinations, Claimant testified that she only saw him one time. I acknowledge that these examinations occurred years ago, at least in the case of the first one, and, perhaps, Claimant just forgot. However, both reports, in every respect, are identical, except for the addition of the left shoulder surgery sections added to the 2019 report after Dr. Woiteshek saw those additional records. Dr. Woiteshek characterized the 2016 examination date on page one of his 2019 report as a "typo," but that date appeared in a couple of different places throughout the 2019 report. Dr. Woiteshek acknowledged the identical physical examination findings listed in each report, and while I would expect there to be similarities between two examinations of the same person three years apart, I find it highly suspect that every single finding on every test of every body part was exactly the same on two examinations allegedly conducted three years apart. And I am not just talking about range of motion testing or clinical tests for the shoulder or elbow, but the same exact blood pressure, same pulse, same respirations, same strength and arm circumference measurements, and the same exact grip strength and pinch strength measurements on all five settings on both hands, on examinations allegedly conducted three years apart.

Equally troubling, is the fact that although Claimant had already had the left shoulder surgery before she saw Dr. Woiteshek in 2016, the doctor's 2016 report contains no reference to that surgery at all. Dr. Woiteshek mentioned that he had not been provided with the medical records prior to his 2016 examination, but that does not explain why his physical examination of Claimant in 2016 did not show the surgical scars on the shoulder that he included in the 2019 report, after he had the additional records. It is unclear to me why Claimant would not have provided the history of the left shoulder surgery to Dr. Woiteshek when she was examined in

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2016, even if the doctor did not have the records, if she believed that the surgery was related to the work injury for which Dr. Woiteshek was examining her. It is equally unclear why Dr. Woiteshek did not find the surgical scars on the left shoulder during his 2016 examination, such that they were not included in his 2016 report.

Finally, it is clear to me that Dr. Woiteshek did not have a complete and accurate history of the onset and progression of Claimant's right elbow problems. Despite testifying that he reviewed the medical records in evidence, Dr. Woiteshek's reports contained no history provided by Claimant, nor any history identified from his review of the medical records, concerning any other injuries to her right elbow after September 1, 2013. Dr. Woiteshek agreed that he came up with the dates of injury for these cases by reviewing the claims for compensation that Claimant's attorney had provided him. He said the histories contained in his reports are a combination of what Claimant told him, and what he found in the medical treatment records. However, when presented with the history of another injury to the right elbow in Dr. Bender's records, Dr. Woiteshek testified that he had no recollection of that and he did not put that in his report, but he must have reviewed it, if it is in the records. Even though he testified he had no recollection of the other injury noted in Dr. Bender's records, he denied that the description contained in Dr. Bender's report actually represented a new injury, and said that it all backdates to the original injury. Without having any recollection of the second injury, Dr. Woiteshek testified that he did not believe the second incident was significant enough, when compared to the first incident, to represent a new injury. Dr. Woiteshek also did not have the full history of the injections Claimant had in the elbow before surgery. Again, he testified that he must have reviewed those records, but he did not note it in his report and he had no independent recollection of it.

On the basis of all of these findings concerning Dr. Woiteshek's reports and testimony, I find that his opinions and testimony are not competent, credible or persuasive in this case. As Dr. Woiteshek was the only physician to causally relate the right elbow diagnosis, surgery, continuing complaints and disability to the September 1, 2013 work injury, and having found those opinions not credible or persuasive, I find that Claimant has failed to meet her burden of proof on this issue.

I acknowledge that Claimant may argue that Dr. Razzaque and Dr. Bender, in their medical reports, also diagnosed right elbow lateral epicondylitis as being related to the September 1, 2013 work injury. However, Dr. Bender also found that Claimant completely recovered from that condition with conservative treatment and an injection. I find that neither Dr. Razzaque, nor Dr. Bender, causally related the additional injections, the right elbow surgery, Claimant's continuing complaints, nor any disability to that September 1, 2013 work injury. In that respect, I find that neither of them can really be used to support a medical causal connection between any right elbow disability and the September 1, 2013 work injury.

Therefore, pursuant to all of the evidence described above, I find that Claimant met her burden of proving that she sustained an accident on September 1, 2013, arising out of and in the course of her employment for Employer. However, I also find that she failed to meet her burden of proving that her ultimate right elbow condition, surgery, continuing complaints and disability were medically causally related to the work injury on September 1, 2013. By failing to offer competent, credible and persuasive medical evidence, I find that Claimant failed to prove that her September 1, 2013 accident was the prevailing factor in causing both the resulting medical

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**Injury No. 13-064888**

condition and disability in her right elbow. Accordingly, Claimant's September 1, 2013 right elbow claim is denied.

The parties presented two other issues for determination in this case. In light of the fact that Claimant amended her 2014 accident claim to a 2013 date of injury, in 2018, well after the statute of limitations would have run for filing a claim on that 2013 injury, I have serious reservations as to whether the claim would violate the applicable statute of limitations. However, since Claimant failed to meet her burden of proof on the medical causation issue, resulting in a denial of the Claim, the remaining issues of statute of limitations and nature and extent of permanent partial disability are moot, and will not be decided in this case.

Claimant met her burden of proving that she sustained an accident at work for Employer on September 1, 2013, that arose out of and in the course of her employment for Employer. Claimant was assisting a patient to a bedside commode, when the patient felt like she was losing her balance and grabbed Claimant's right forearm and jerked it down, instead of grabbing the handrails to the bedside commode.

However, Claimant failed to meet her burden of proving that her ultimate right elbow condition, surgery, continuing complaints and disability were medically causally related to the work injury on September 1, 2013. By failing to offer competent, credible and persuasive medical evidence, Claimant failed to prove that her September 1, 2013 accident was the prevailing factor in causing both the resulting medical condition and disability in her right elbow. Accordingly, Claimant's September 1, 2013 right elbow claim is denied.

Since Claimant failed to meet her burden of proof on the medical causation issue, resulting in a denial of the Claim, the remaining issues of statute of limitations and nature and extent of permanent partial disability are moot, and will not be decided in this case.

I certify that on **29-21** 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.

By **am**



**JOHN K. OTTENAD**

Administrative Law Judge

Division of Workers' Compensation

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