Doublin Michael v. VSM Abrasive Corp.

1 We note that the final paragraph on page 26 the Award incorrectly states “Dr. Volarich rated 4.375 weeks of disability for both the left wrist and left ankle”. Dr. Volarich assessed 5% PPD of the employee’s left wrist rated at the 175-week wrist level (8.75 weeks). Dr. Volarich assessed 5% PPD of the employee’s left ankle at the 155-week level (7.75 weeks). Transcript, p. 134. This clerical error does not affect the outcome of the ALJ’s award.

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We find that any incident or accident at work on October 31, 2012, was not the prevailing factor causing the employee's medical condition and disability. Therefore, we find that no compensable accident occurred on October 31, 2012.

These supplemental findings do not detract from the administrative law judge's denial of the employee's October 31, 2012, injury claim based on her first-hand credibility assessment of his testimony regarding an alleged work injury on that date.

Regarding the employee's claim in Injury No. 12-067160, involving a work accident on August 31, 2012, we affirm and adopt the administrative law judge's award. We further approve and affirm the administrative law judge's allowance of an attorney's fee on the compensation awarded related to that claim as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Suzette Carlisle Flowers dated December 3, 2021, is attached and incorporated herein to the extent not inconsistent with this supplemental opinion.

Given at Jefferson City, State of Missouri, this 18th day of May 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Reid K. Forrester, Chairman

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Rodney J. Campbell, Member

Attest:

Secretary

Concerning this injury claim, having denied all compensation for the employee's companion claim assigned Injury No. 12-107449, the administrative law judge (ALJ) erred in concluding that the employee is entitled to only permanent partial disability (PPD) benefits from the Second Injury Fund (SIF).

In finding that the employee did not sustain a work accident resulting in injury on October 31, 2012, the ALJ was bound by un-contradicted expert testimony to conclude the employee was permanently and totally disabled (PTD), and that such disability was the result of his last, August 31, 2012, work injury and preexisting disabilities, the combination of which led to his award of Social Security Disability before his left shoulder treatment from February 26, 2013, through May 7, 2013. A portion of this error relates to the ALJ's refusal to accept, in the face of unanimous and unrebutted evidence, that the employee's August 31, 2012, work injury injured his left shoulder in addition to his right arm. Had the ALJ accepted this fact, she would have been forced to conclude that the employee is PTD and that if his PTD was not the result of a compensable work injury on October 31, 2012, in combination with preexisting conditions, it must be related to his August 31, 2012, work injury.

Having found no accident occurred on October 31, 2012, the ALJ erred by awarding PPD benefits regarding the employee's August 31, 2012, claim. The evidence that the employee is PTD when considering, inter alia, his left shoulder treatment from February 26, 2013, to May 7, 2013, is unrefuted. The ALJ incorrectly considered the implications of her finding that there was no accident on October 31, 3012, and incorrectly concluded that the employee's August 31, 2012 work injury did not cause any injury to his left shoulder. In fact, the employee's left shoulder was involved in his August 31, 2012, work accident, a finding the ALJ was not free to reject.

While off work for his August 31, 2012, work injury for treatment of his post-traumatic right carpal tunnel syndrome, the employer fired the employee. The employee never returned to work and received Social Security Disability benefits effective before his 2013 failed left shoulder surgery. He left school in the $8^{\text {th }} grade and his reading and math scores are at the 6^{\text {th }}$ grade and early 3rd-grade level respectively. His current torn left rotator cuff is in the same condition it was before Dr. Andrew Gelven's most recent and last attempt at repair on April 5, 2013. Dr. David Volarich and Dr. Jay Liss testified, based on their medical assessments, when considering the employee's disability from all sources, that the employee is PTD due to the combination of his 2012 work injuries and medical/psychiatric conditions existing prior to August 31, 2012.

Since the ALJ did not find an accident after August 31, 2012, and since the evidence of the employee's current, continuing PTD since the employer discharged him on January 2, 2013, is consistent, substantial, and unrebutted, the employee's PTD must be the result of his August 31, 2012 work injury in combination with his preexisting disabilities. He is entitled to PTD benefits from the SIF.

Imprivee: Michael D Doublin

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Injury No. 12-107449

Regarding Injury No. 12-107449, the ALJ erred in finding the employee did not sustain an accident arising out of and in the course and scope of his employment on October 31, 2012. This erroneous conclusion allowed the ALJ to avoid thorny legal and factual issues improperly raised by the SIF, including arguments about the statute of limitations for the employee's October 31, 2012, claim, and a notice defense not raised until the day of the hearing.

In support of her finding that the employee did not meet his burden to show he sustained an injury by accident on October 31, 2012, the ALJ noted differences in the employee's description of the accident, although each history indicated employee's supervisor told him to lift a 200-300 pound roll of sandpaper, and that the employee was injured after lifting it. The employee did sometimes state that he fell while holding the roll, while other histories indicated he felt a "pop," either when lifting it or attempting to move it to one side.

The ALJ also took issue with the employee's claim for compensation, stating that it "does not identify a 'specific event' that occurred during a single work shift." ${ }^{2}$ However, she then recounts what is written in the claim, which does identify a specific traumatic event: "In the course and scope of employment, employee sustained trauma causing permanent injury. Employee sustained injury to his left shoulder while working."3 The employee's testimony filled in the gaps as to how the injury occurred. The employee's testimony that he reported the injury to his supervisor Mr. Tom Higgenbottom the day it happened was undisputed. The employee sustained a work accident on October 31, 2012.

Section 287.020.2 defines an accident 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."

The employee testified credibly and consistently both during his deposition and at trial that he sustained his October 31, 2012, work injury while attempting to lift a 300-pound roll of sandpaper from a bottom rack at the direction of his supervisor, Mr.

Higgenbottom, when he fell backward striking the back of his left shoulder on a metal wall rack. The SIF did not dispute the event's occurrence and there is no evidence suggesting the event did not happen. The employee testified as to symptoms he had at the time of the injury and identified the event that caused them.

The SIF offered Dr. James Emanuel's independent medical examination (IME) report as evidence. Dr. Emanuel evaluated the employee at the employer's request on December 17, 2015. Dr. Emanuel expressed doubt that the employee had a left shoulder injury at work on October 31, 2012. However, he stated,

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[^0]: ${ }^{2} Award, p. 31.

{ }^{3} \mathrm{Id} .$, (emphasis added).

If indeed the patient was asked by a supervisor to lift a heavy roll of sandpaper and throw it to the right and the patient heard and felt a pop in the shoulder, that injury would be the prevailing factor in the development of a re tear of the rotator cuff of the left shoulder. If there is no witness to this, or the supervisor disputes this episode from ever happening, then it is more likely than not that the patient had a re tear of the rotator cuff left shoulder as the result of poor tissue quality and attrition. ${ }^{4}$

The SIF had ample opportunity to explore Dr. Emanuel's conclusions. However, they chose to take no steps to prove that anybody disputed that the event happened. Since there was no witness disputing the event, Dr. Emanuel's opinion suggests the employee had an accident on October 31, 2012, and it was the prevailing factor in causing the re-tear of the employee's left rotator cuff.

Dr. Gelven, who ultimately repaired the employee's rotator cuff on April 5, 2013, confirmed this view. Dr. Gelven's operative summary, under the heading "Brief History", noted, "Michael is a 60-year-old male who presented complaining of left shoulder pain following a reinjury that he had in last October. He had a rotator cuff rep