Donna Burns v. Wal-Mart Associates Inc

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 20-025625

Employee: Donna Burns

Employer: Wal-Mart Associates

Insurer: New Hampshire Insurance Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. On February 25, 2022, the administrative law judge (ALJ) issued an award allowing compensation in this workers' compensation case. The employer/insurer filed a timely application for review with the Commission. ${ }^{1}$

On June 16, 2022, after all parties filed their briefs, the Employer/Insurer filed a letter/motion requesting to withdraw Point I of the petitioner's brief, titled:

THE ALJ ERRD [sic] IN FINDING THAT THE CLAIMANT ESTABLISHED THAT HER INJURIES AROSE OUT OF AND IN THE COURSE OF HER EMPLOYMENT BECAUSE THE CLAIMANT'S TESTIMONY REGARDING THE ALLEGED PALLET WAS NOT CREDIBLE IN THAT THE MOST CONTEMPORANEOUS EVIDENCE IMMEDIATELY FOLLOWING THE INJURY DID NOT SUPPORT THE CLAIMANT'S TESTIMONY REGARDING TRIPPING OVER A PALLET AT THE AT [the] TIME OF HER INCIDENT.

We grant the employer/insurer's request.

We now address the merits of the employer/insurer's application for review. Having reviewed the evidence, read the briefs, and considered the whole record, we find that the award of the ALJ allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the ALJ's award and decision.

We affirm and adopt the February 25, 2022, award and decision of Administrative Law Judge Kenneth J. Cain, which we attach and incorporate herein.

We further approve and affirm the administrative law judge's allowance of an attorney's fee herein as being fair and reasonable.

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

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[^0]: ${ }^{1}$ The employee named the Second Injury Fund (SIF) as a party in his claim. The employer/insurer also listed the SIF as involved in its application for review. However, the employee's SIF claim was bifurcated at hearing. Award, p. 2, n. 3. Therefore, the SIF is not a party to this award.

From: 20-025625

Employee: Donna Burns

-2-

Given at Jefferson City, State of Missouri, this 21st day of October 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Rodney J. Campbell, Chairman

Shalonn K. Curls, Member

Kathryn Swain, Member

Attest:

Secretary

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (800) 775-2667

www.labor.mo.gov/DWC

FEBRUARY 25, 2022

20-025625

Scan Copy

*Employee : DONNA R BURNS 13318732 7 523 E PACIFIC AVE INDEPENDENCE, MO 64050* Employer : WAL MART ASSOCIATES INC 13318733 4 702 SW 8TH STREET BENTONVILLE, AR 72712-6209

#Insurer Attorney : ABAGAIL L PIERPOINT 13200 METCALF SUITE 110 OVERLAND PARK, KS 66213

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Continued

AWARD ON HEARING HLP

Please visit our website at www.labor.mo.gov/DWC

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Donna Burns

Employee

Donna Burns

Injury No. 20-025625

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

Employer: Walmart Associates

Insurer: New Hampshire Insurance Co.

Additional Party: N/A

Hearing Date: January 28, 2022

Checked by: KJC/drl

Briefs Due: ${ }^{1}$

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 24, 2020.
5. State location where accident occurred or occupational disease occurred: Independence, Jackson County, Missouri.
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 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 occurred or occupational disease contracted: Employee, while in the course and scope of her employment as a cashier for Walmart was walking down an aisle in the store to get to her work station when she tripped over a pallet and fell and injured her head and left shoulder.

[^0]

[^0]: ${ }^{1}$ The parties elected not to file briefs.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donna Burns

Injury No: 20-025625

1. Did accident or occupational disease cause death? No. Date of death? N/A.

1. Part(s) of body injured by accident or occupational disease: Head and left shoulder.

1. Nature and extent of any permanent disability: 45 percent to left upper extremity at the 232 week level due to left shoulder injury and 8 percent to body as a whole due to head injury.

1. Compensation paid to date for temporary disability: $9,255.29.

1. Value necessary medical aid paid to date by employer/insurer: $62,730.80.

1. Value necessary medical aid not furnished by employer/insurer: Undetermined.²

1. Employee's average weekly wages: 995.67

1. Weekly compensation rate: 663.72/$514.20.

1. Method wages computation: By agreement.

COMPENSATION PAYABLE

1. Amount of compensation payable:

Unpaid medical expenses: Undetermined. (See additional findings of fact and rulings of law).

Weeks for temporary total (temporary partial disability): 13.67 weeks @ 663.72 per week equals 9,255.29 (previously paid).

Weeks for permanent partial disability: 136.4 weeks @ 514.20 per week equals 70,136.88.

Weeks for permanent total disability: N/A.

Weeks for disfigurement: N/A.

1. Second Injury Fund Liability: ³

TOTAL: $70,136.88

1. Future requirements awarded: Undetermined.

Said payments to begin as of date of the award 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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Mr. Brett Coppage.

² Case is left open for possible future medical treatment related to the prosthetic device in the employee's left shoulder.

³ The Second Injury Fund claim was bifurcated.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donna Burns

**Injury No: 20-025625**

**FINDINGS OF FACT AND RULINGS OF LAW**

Employee: Donna Burns

**Injury No. 20-025625**

Dependents: N/A

Employer: Walmart Associates

Insurer: New Hampshire Insurance Co.

Additional Party: N/A

Hearing Date: January 28, 2022

**Checked by: KJC/drl**

**Briefs Due:** 4

Prior to the hearing, the parties entered into various admissions and stipulations. The remaining issues were as follows:

1. Whether the Employee sustained an accident arising out of and in the course and scope of her employment;
2. The nature and extent of the disability sustained by the employee; and
3. Liability of the employer for future medical benefits.

At the hearing, Ms. Donna Burns (hereinafter referred to as Claimant) testified that she was born on October 13, 1953. She stated that she had worked at Walmart for 28 years; all but the first two years as a cashier.

Claimant testified that her injury at work occurred on April 24, 2020. She stated that she took her lunch break in Walmart's employees' breakroom on that date. She stated that after finishing her lunch break, she clocked back in and that as she was walking from the breakroom to her work station in the self-checkout section of the store, she tripped on a pallet on the floor. She stated that she did not remember actually falling.

Claimant testified that her next memory was sitting on the pallet with a paramedic helping her to get up. She stated that she struck her head when she fell and that the left side of her body was hurting. She alleged injuries to her head and left shoulder.

Claimant testified that she had not sustained any prior left shoulder injuries. She stated that she had injured her head in a 1970 motor vehicle accident when she was 17 years old. She stated she experienced some memory problems for probably about 2 years after her 1970 injury. She stated that her memory had returned to normal long before her fall at work in April 2020. She stated that she was able to do all of her job tasks at Walmart from the time she started up until the time of her 2020 fall at work.

4 The parties elected not to file briefs.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donna Burns

Injury No: 20-025625

Claimant explained the treatment she received after her head and left shoulder injuries at work in April 2020. She noted that she had surgery for her left shoulder injury. Her medical records showed that Dr. Cowan performed a reverse left shoulder replacement on Claimant on April 27, 2020. Afterwards, her left shoulder was immobilized for 4 weeks. She then had physical therapy for 6 months. She was released to return to work at full duty on October 26, 2020 with a restriction by Dr. Cowan of no lifting over 40 pounds and no repetitive lifting overhead with her left arm.

Claimant complained of continuing problems with her left shoulder. She complained of constant left shoulder pain. She stated that she still applies Aspercreme to her left shoulder. She stated that the pain from her left shoulder radiated down her left arm to her left hand and wrist. She stated that sometimes the pain was sharp and that other times it was more numbness and tingling.

Claimant testified that her pain increased with lifting. She stated that her pain interrupted her sleep. She stated that she had a greatly reduced range of motion of her left upper extremity. She stated that unassisted she could only raise her left arm to a level parallel with the floor. She stated that her strength in her left arm was now weaker. She stated that she had difficulty in carrying things with her left arm. She stated that she now had to rely more on her right arm. She stated that it was difficult to use her left upper extremity to curl her hair and to shower.

Claimant also testified to continuing problems due to her head injury. She complained of headaches. She complained of short term memory problems. She stated that she now had to take notes or write things down at work or that she would forget what she was supposed to do. She also alleged problems with irritability as a result of her April 2020 head injury at work.

In addition, Claimant testified that she still experienced problems with dizziness, although she indicated that her doctor had advised her that her dizziness was caused by her need for new prescription eye glasses. She stated that she still had not purchased new glasses as of the date of her hearing.

On cross-examination, Claimant admitted that she had returned to her same job as a cashier at Walmart. She admitted that she filed a lawsuit after her 1970 motor vehicle accident. She stated she received $8,000 as a result of her head injury in the motor vehicle accident.

Claimant testified that the employees' breakroom at Walmart where she took her breaks and ate lunch was not open to the public. She testified that after she left the breakroom she had to walk back through the public area to get to her work station to begin her work as a cashier.

Claimant testified that she had never passed out or fainted prior to April 24, 2020. She acknowledged that Dr. Hopkins had indicated in his report that she had sustained her injuries in a trip and fall work accident on April 4, 2020. She stated, however, that the only time she tripped and fell at work at Walmart was on April 24, 2020.

Finally, Claimant testified that she does her grocery shopping at the Walmart store where she worked. She denied that she had missed any physical therapy appointments for her left

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donna Burns

Injury No: 20-025625

shoulder injury or any medical appointments for treatment of her post-concussion syndrome. She admitted that she was wearing the same glasses at work on April 24, 2020 as she was wearing at her hearing.

Claimant's Medical Evidence

William Hopkins, M.D., a board certified orthopedic surgeon, wrote a report for Claimant. Dr. Hopkins noted that he examined Claimant on May 5, 2021. He noted that Claimant was 67 years old and that she had been a cashier at Walmart for 28 years.

Dr. Hopkins further noted that Claimant provided a history of tripping on a pallet at work on "April 4, 2020" and injuring her left shoulder. He noted that she was taken by ambulance to the emergency room at Centerpoint Medical Center. He noted that the emergency room record at Centerpoint stated that Claimant provided a history of eating lunch and then collapsing.

Dr. Hopkins also outlined Claimant's treatment history. He noted that a CT scan of her head at Centerpoint on the day of her fall at work showed that she had a contusion, but no skull fractures. He noted that an X-ray of her left shoulder showed that she had a comminuted fracture of the humerous head and neck with an approximate 6.5 mm displacement. He noted that the diagnoses at Centerpoint were 1) left shoulder fracture; 2) contusion to head, and 3) facial lacerations.

Dr. Hopkins noted that Dr. Cowan's medical records showed that on "April 26, 2020" he performed a left reverse total shoulder arthroplasty on Claimant as treatment for her fracture.5 He noted that on May 16, 2020, Dr. Frevert, an orthopedic surgeon, indicated that Claimant's left shoulder X-rays showed that her prosthesis was in a good position without any evidence of any loosening. He noted that Dr. Frevert had also indicated that Claimant's auxiliary nerve root was intact to sensation. He noted that Dr. Frevert had stated that Claimant had some loss of motion which was expected and that Dr. Frevert had recommended aggressive therapy.

Dr. Hopkins noted that Dr. Cowan reexamined Claimant on July 27, 2020. He noted that Dr. Cowan's records showed that Claimant had some left hand numbness and that she was stiff and unable to move her left arm in any plane. He noted that Dr. Cowan had concluded that although Claimant was neurovascularly intact, her left hand range of motion was poor.

Dr. Hopkins noted that Dr. Killman performed a neurological examination of Claimant on August 30, 2020. He noted that Dr. Killman's records showed that Claimant complained of occasional tingling in all five fingers of her left hand. He also indicated that Dr. Kilman had noted that Claimant's EMG results were normal and that Claimant had normal muscle bulk without any wasting and without any focal muscle weakness.

Dr. Hopkins noted that on August 26, 2020, Dr. Cowan had concluded the following: 1) Claimant's left shoulder was neurologically intact; 2) that X-rays showed no abnormalities with

5 Dr. Cowan stated in his report that he performed the surgery on April 27, 2020.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donna Burns

Injury No: 20-025625

the shoulder replacement arthroplasty; 3) that her EMG results were normal; and 4) that Claimant could expect additional improvement over the next year or two.

Dr. Hopkins noted that on October 26, 2020, Dr. Cowan released Claimant to return to work at full duty with a 40 pound lifting restriction with her left upper extremity and no repetitive overhead lifting.

Dr. Hopkins also outlined in his report the treatment Claimant had received due to her concussion related complaints. He noted that on May 20, 2020, Dr. Dyck diagnosed Claimant with a concussion from her fall at work on April 24, 2020. He also noted that Claimant was referred to Dr. Littlefield, as well as an optometrist, a speech pathologist and for cognitive therapy. He noted that Mr. Huffman, M.S., recommended treatment focusing on Claimant's cognitive function and strategies to manage her performance and activities.

Dr. Hopkins noted that Claimant was released from speech therapy on July 2, 2020. He noted that the speech therapy records stated that Claimant believed that she was "pretty" back to normal when she was released.

Finally, Dr. Hopkins noted that during his examination of Claimant, she complained of left shoulder pain, weakness and a loss of motion in her left shoulder, tingling in her left arm from her shoulder to her hand, a loss of grip strength in her left hand, difficulty in sleeping due to her left shoulder injury, difficulty with carrying things with her left upper extremity and a giving away sensation in her left upper extremity.

Dr. Hopkins noted that on examination, Claimant had tenderness over her left acromioclavicular joint, but no pain or tenderness over the left shoulder replacement. He also noted that she had marked atrophy of her left forearm, some loss of sensation in her left forearm and left thumb, a positive Tinel's sign over the brachial plexus, and a less than significant loss of grip strength in her left hand.

Dr. Hopkins concluded that Claimant's tripping over the pallet at work on "April 4, 2020" was the prevailing factor in causing the injuries she complained of as a result of her April 2020 accident.6 He agreed with Dr. Cowan that Claimant's shoulder would improve over time. He concluded that she had sustained a permanent partial disability of 50 percent of her left upper extremity at the 232 week level due to the injury she sustained at work to her left shoulder in April 2020.

Dr. Hopkins also concluded that Claimant had sustained a permanent partial disability of 12 percent to her body as a whole due to the concussion she sustained in her April 2020 accident.

6 The April 4, 2020 date appeared to be a typographical error. Claimant explained on cross-examination that her only trip and fall over a pallet at work occurred on April 24, 2020. The ambulance records showed that she was picked up at work on April 24, 2020 and taken to the emergency room at Centerpoint Medical Center on that date. The emergency room records at Centerpoint Medical Center showed that she received treatment on that date for the injuries she sustained when she tripped over a pallet at work.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donna Burns

Injury No: 20-025625

at work. He noted that in rendering his rating, he had considered Claimant's ability to perform most of her activities of daily living, but with continued mental and concentration issues.

He concluded that medical treatment should be left open for Claimant's left shoulder injury. He referenced the need for follow up medical examinations for her left shoulder replacement and for the possible need for revision surgery or treatment in the event of a hardware failure.

Walmart's Medical Opinions

Christopher Cowan, M.D., a board certified orthopedic surgeon with Orthopedic Health of Kansas City, and Claimant's treating physician wrote a medical report for Walmart. Dr. Cowan diagnosed Claimant's left shoulder injury as a comminuted displaced humeral head and neck fracture. On April 27, 2020, he performed a reverse total shoulder arthroplasty on Claimant with an open reduction and internal fixation of Claimant's left shoulder fracture.

Dr. Cowan noted on May 11, 2020 that Claimant's incision was healing well and that her pain was controlled without narcotics. During follow-up examinations over the next three months, he noted that Claimant complained of a lot of stiffness and muscle weakness in her shoulder. He noted that Claimant had some paresthesis in the auxiliary nerve distribution, although her EMG results were normal.

Dr. Cowan noted that on Claimant's 6 month post-op examination, she still complained of pain and stiffness, but her X-rays showed that she had a stable arthroplasty. He noted that he had advised Claimant that based on the medical literature she should show improvement for the one to two years following the procedure. He released Claimant at maximum medical improvement on October 26, 2020, noting that Claimant had permanent lifting restrictions and a restricted range of motion.

Dr. Cowan concluded that Claimant had sustained a permanent partial disability of 40 percent of her left upper extremity at the 232-week level as a result of her April 24, 2020 fall at work and the injury to her left shoulder. He stated that he did not anticipate that Claimant would require any future treatment.

Paul Doskey, M.D. and Ph.D., examined Claimant at Walmart's request on November 3, 2021. He noted Claimant's history as to how her alleged injuries occurred. He noted that her initial hospital record indicated that it was "indeterminate" as to whether she fell or tripped over the pallet or whether it was a syncope episode. He also noted, however, that Claimant was amnestic of the details of her fall, but that she had no prior history of syncope or near syncopal episodes.

Dr. Doskey noted Claimant's head injury and concussion from a motor vehicle accident when she was 17 years old. He noted that Claimant's complaints following her April 2020 head injury were headaches, irritability, frequent dizziness, vertigo without movement or changes in position, forgetfulness and an inability to focus.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donna Burns

Injury No: 20-025625

Dr. Doskey next noted that Claimant was prescribed speech therapy following her April 2020 injury and that she was discharged from the therapy sessions with a diagnosis of post-concussion syndrome, but with no language impairment. He noted that she was not prescribed any new medication after her fall at work in April 2020. He noted that she received no other neurologic or psychiatric diagnoses.

Dr. Doskey noted that Claimant told him that she became fatigued more easily after she returned to work following her April 2020 injury and that she found it increasingly difficult to deal with aggressive and confrontational customers. He noted that Claimant had been referred to an optometrist who recommended prescription glasses, which Claimant had not purchased.

Dr. Doskey further noted that Claimant told him that she had no difficulty in performing activities of daily living related to her dizziness. He noted that she was still driving, although she indicated some anxiety about doing so. He noted that she told him that she had no difficulty with managing her finances or paying her bills.

Dr. Doskey stated in his report that Claimant scored in the mild to minimally disabling range in the post-concussion syndrome test. He noted that her scores on the Global Assessment of Functioning test were in the 5 percent disability range and 5 percent psychiatric disability range.

Dr. Doskey concluded that Claimant's "current" neurological and psychiatric issues were related to her work injury on April 24, 2020. He stated that her complaints were consistent with a closed head/traumatic brain injury. He stated that her problems were "unlikely" related to her prior concussion when she was 17 years old. He concluded that Claimant had sustained a neurological and psychiatric disability in the range of 3 to 5 percent to her body as a whole due to the injury she sustained at work on April 24, 2020.

Dr. Doskey stated that Claimant "might" benefit from psychiatric therapy to assist with adjustment to her new condition, although any such treatment was unlikely to change her condition. He also stated that she was unlikely to benefit from any increased therapy.

Other Medical Evidence

The other medical reports and records were cumulative of the other evidence. The ambulance report from April 24, 2020 stated that Claimant was alert when the paramedics arrived and sitting on the floor with a small laceration above her left eye. The report stated that Claimant was oriented as to person and place, but not time. The report stated that Claimant did not remember the fall and that she told the paramedics that she was returning from lunch and woke up on the floor with left arm pain.

The emergency room records from Concentra Medical Center on April 24, 2020 stated that Claimant was brought to the emergency room following a syncopal episode at work.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donna Burns

Injury No: 20-025625

After considering all the evidence, including Drs. Hopkins, Cowan, and Doskey's medical reports, the medical records, Claimant's testimony, and after observing her appearance and demeanor, I find and believe that Claimant met her burden of proving that she sustained an accident at work on April 24, 2020 as defined by Missouri law. She proved that she sustained a permanent partial disability of 45 percent to her left upper extremity at the 232 week level as a result of the comminuted displaced humeral head and neck fracture for which she received a reverse total left shoulder arthroplasty with an open reduction and internal fixation. She also proved that she sustained a permanent partial disability of 8 percent to her body as a whole due to the concussion she sustained in the accident.

Thus, Claimant's disability to her left shoulder resulted in 104.4 weeks of compensation (232 weeks of compensation x .45 percent = 104.4 weeks of compensation). Her disability due to her concussion resulted in 32 weeks of compensation (400 weeks of compensation x .08 percent = 32 weeks of compensation). At a rate of 514.20 per week for 136.4 weeks of compensation, Walmart, is liable for 70,136.88. Walmart is ordered to pay that amount to Claimant.

Claimant also proved that she is in need of future medical treatment to cure and relieve her of the effects of her left shoulder injury in the April 24, 2020 accident at work. Walmart is ordered to provide all treatment Claimant might need for the hardware in her left shoulder and to replace, alter or adjust the prosthetic device as set out in the award. She did not prove Walmart's liability for any additional treatment due to the effects of her concussion.

Claimant had the burden of proving all material elements of her claim. *Fischer v. Arch Diocese of St. Louis - Cardinal Richter Inst.*, 703 SW 2nd 196 (Mo. App. E.D. 1990); overruled on other grounds by *Hampton vs. Big Boy Steel Erections*, 121 SW 3rd 220 (Mo. Banc 2003); *Griggs v. A.B. Chance Company*, 503 S.W. 2d 697 (Mo. App. W.D. 1973); *Hall v. Country Kitchen Restaurant*, 935 S.W. 2d 917 (Mo. App. S.D. 1997); overruled on other grounds by *Hampton*. She met her burden as set out above.

The applicable statute pertaining to accident and injury by accident provides in pertinent parts as follows:

The word "accident" as used in this chapter shall mean 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. An injury is not compensable because work was a triggering or precipitating factor. . . .

1. (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. 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.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) 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 in normal nonemployment life. . . .

Claimant proved that she sustained an unexpected traumatic event 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 uncontroverted evidence showed that on April 24, 2020, Claimant took her lunch break from 11:00 a.m. to 12:00 p.m. in the employees' breakroom at the Walmart store where she worked. Also, Walmart did not dispute her testimony that she clocked back in at 12:00 p.m. following her lunch break on that day.

Claimant then proceeded to walk back to her work station. She testified, however, that while walking back to her work station, she tripped on a pallet left in a store aisle and fell and injured her head and left shoulder.

The evidence supported Claimant's testimony. There was no dispute that she met the definition of "accident" as set out in the statute above. Id. She also met the definition of an "injury by accident" as set out in the statute.

Although the ambulance and emergency room records indicated that Claimant might have experienced a syncope episode or fainted, there was no evidence showing that the first responders or the emergency room personnel asked Claimant whether she had fainted or experienced a syncope episode. There was no evidence showing that they had even asked Claimant what happened.

In addition, the ambulance records indicated that Claimant was not oriented as to the time, meaning that she was confused and the medical records confirmed that she was knocked

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donna Burns

Injury No: 20-025625

unconscious and suffered a concussion when she struck her head on the hard floor surface or pallet. She testified to short term memory problems as a result of her concussion.

Thus, the most credible evidence supported Claimant's testimony that she tripped on a pallet at work on April 24, 2020 and fell and injured her head and left shoulder. Furthermore, Claimant testified that she had never fainted or experienced a syncope episode in the past. Nothing in her medical records showed that she had any type of heart impairment or hypertension or diabetes or any other medical condition which could have caused her to faint or pass out at work on April 24, 2020. Nothing in her medical records showed that she was taking any medication which could have caused her to faint or experience a syncope episode.

Equally as important, Walmart did not deny that it left a pallet impeding the traffic way or aisle where Claimant fell. Claimant was found sitting on the pallet with a laceration on her head. Claimant met her burden of proving an "injury by accident" as set out in the statute. She also proved that her injury arose out of and in the course and scope of her employment as defined in the statute.

Claimant's employer, however, also implied that § 287.020.3(2) (b) was a defense to Claimant's argument that she sustained a compensable accident under Missouri law. That position too was not supported by the facts nor the law. While it is true that Claimant was walking when she tripped on the pallet and fell and that she walks in her personal nonemployment life; there was a clear nexus in Claimant's case between her injury and her work and her risk for the injury.

In *Johme v. St. John's Mercy Healthcare*, 355 S.W.3d 504 (Mo. banc 2012) the Missouri Supreme Court noted that the "equal exposure" analysis referenced in the statute should focus not on the task that the employee was performing (a billing clerk making coffee in the break room in *Johme*), but rather on the underlying risk factor that caused the injury. The Court explained that the focus should have been on Ms. Johme's act of turning and twisting her ankle and falling off of her sandal. Her work had nothing to do with any of those risks or her falling off her shoe. She was equally exposed to the risk of twisting her ankle and falling off her shoe in her personal nonemployment life.

In Claimant's case, the focus should have been on her tripping and falling on a pallet Walmart left in a congested aisle in the store and not merely on her walking as she does in her personal nonemployment life or whether she possibly could have tripped on some pallet in her

7 Also of note was that Walmart initially accepted the claim as compensable. Walmart paid for all of Claimant's medical treatment, including the reverse shoulder replacement, physical therapy and the extensive treatment she had for her concussion pursuant to the Workers' Compensation Act. Walmart also provided all of Claimant's temporary total disability benefits pursuant to the Workers' Compensation Act until she returned to work at Walmart. For some inexplicable reason, Walmart at the hearing apparently for the first time asserted the defense that Claimant had not sustained a compensable accident.

11

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donna Burns

Injury No: 20-025625

personal nonemployment life. Her tripping on the pallet Walmart left in the congested aisle and falling was the nexus between her work and her injury.

Thus, unlike in Johme where Ms. Johme's work had nothing to do with the risk of her twisting and turning her ankle and falling off her sandal, Claimant's work was the cause of her injury; i.e. tripping on a pallet Walmart left in a congested aisle and then falling and injuring her head and shoulder.

In addition, there was no evidence showing that Claimant was "equally" exposed to the same risk of tripping on a pallet and falling in her personal nonemployment life. There was no evidence that Claimant even walks down aisles congested with pallets in her personal nonemployment life. Walmart offered no evidence showing that Claimant had ever walked in areas congested with pallets in her personal nonemployment life.

See also numerous Missouri cases which addressed the applicability of § 287.020.3 (2) (b). 8 In McDowell v. St. Luke's Hospital of Kansas City, 572 S.W.3d 127 (Mo. App. W.D. 2019) the Western District found the case compensable where the employee was injured pulling a cart of work-related supplies through a doorway at the hospital when a wheel on the cart became caught in the doorframe causing the employee to fall and fracture her wrist. The Court noted that St. Luke's Hospital failed to "adduce any evidence suggesting that Ms. McDowell was exposed to the cause of her injury - pulling a cart of work-related supplies through a congested entryway in her nonemployment life".

Similarly, as noted above, Walmart adduced no evidence suggesting that Claimant was exposed to the same risk of her injury - walking down a congested aisle to get to her work station and tripping over a pallet left in the aisle in her personal nonemployment life.

8 In Miller v. Mo. Highway & Transp. Comm., 287 S.W.3d 671 (Mo. banc 2009), the Missouri Supreme Court denied compensability where the employee was merely walking and his knee popped. The Court noted that there was no evidence that the condition of the road, the employee's work clothing or anything job-related caused the injury. In short, there was no causal connection between the risk and the employee's work. In Claimant's case, there was evidence of a job-related cause to her injury. Again, she had to walk down a congested aisle with pallets stacked in the aisle to get to her work station and in doing so she tripped on a pallet and fell and injured her head and left shoulder. See also numerous cases where the Courts found that the injury was compensable, Scholastic, Inc. v. David Viley 452 S.W.3d 680 (Mo. App. W.D. 2014) (injury compensable when employee slipped and fell on an icy parking lot at work and injured his knee. The Western District noted that Mr. Viley was not equally exposed to slipping and falling on ice in that particular icy parking lot in his personal nonemployment life); Dorris v. Stoddard County, 436 S.W.3d 586 (Mo. App. S.D. 2014) (injury compensable when employee slipped on crack in street); Duever v. All Outdoors, Inc. 371 S.W.3d 863 (Mo. App. E.D. 2012 (injury compensable when employee slipped on ice in work parking lot); Lincoln Univ v. Narens, 485 S.W.3d 811 (Mo. App. W.D. 2016) (injury compensable when risk source was crowded sidewalk with a steep drop off); Pope v. Gateway to W. Harley Davidson, 404 S.W.3d 315 (Mo. App. E.D. 2012 (injury compensable when employee fell while descending stairway).

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donna Burns

Injury No: 20-025625

Furthermore, see Pile v. Lake Regional Health System, 321 S.W.3d 463 (Mo.App. S.D. 2010) where the Court explained that the applicability of § 287.020.3 (2) (b) involved a two-step analysis. The Court explained that the first step was to determine whether the hazard or risk was related or unrelated to the employment. The Court stated that where the activity giving rise to the accident and injury was integral to the performance of the worker's job, the risk of the activity was related to the employment.

The Court also noted that in such a case where the risk or activity was related to the employment, there was a nexus between the work and the injury. Id at 467. Next, the Court stated that "[w]here the work nexus is clear, there is no need to consider whether the worker would have been equally exposed to the risk in normal non-employment life. Only if the hazard or risk is unrelated to the employment does the second step of the analysis apply. In that event, it is necessary to determine whether the claimant is equally exposed to the hazard or risk in his normal non-employment life."

In Claimant's case, the work nexus was clear. She had to walk down an aisle congested with a pallet to get to her work station and she tripped on a pallet and fell and injured her head and left shoulder. Thus, per the Court's reasoning in Pile, there was no need to determine whether she was equally exposed to the hazard or risk in her normal non-employment life; although as noted above, Claimant clearly proved that she was not equally exposed to the same risk or hazard in her personal nonemployment life.9

In conclusion, Walmart's defense based on § 287.020.3 (2) (b) fails. Claimant still, however, had to prove that her work was the prevailing factor in causing her injury. See § 287.020 as set out above.

Prevailing Factor

Prevailing factor is defined in the statute as the primary factor, in relation to any other factor in causing both the resulting medical condition and disability. Id. In Claimant's case, she tripped on a pallet in an aisle at work and fell and injured her left shoulder and head. She was diagnosed with a fracture in her shoulder and a concussion on the day of the accident. Dr. Hopkins concluded that Claimant's fall at work in April 2020 when she tripped over a pallet and fell on her head and left shoulder was the prevailing factor in causing her injuries as referenced above.10 Dr. Hopkins was credible in his opinion. The evidence supported his opinion. No contrary medical opinions were offered. Claimant met her burden of proving prevailing factor.

9 In Pile, the hazard or risk was the employee's exposure to excess walking all day in her place of employment. The excess walking was what made the risk or hazard not equal to any such risk of developing brittle bones and tendonitis by walking in her nonemployment life. In Claimant's case, her hazard or risk was tripping over a pallet her employer left in a congested aisle where she had to walk to get to her work station. There was no equal exposure to the risk of walking down a congested aisle with pallets to get to her work station in her personal nonemployment life.

10 Walmart's two medical experts, Drs. Cowan and Dorsky concluded that Claimant's fall at work on April 24, 2020 at Walmart was the cause of her left shoulder and head injuries, respectively.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donna Burns

Injury No: 20-025625

Nature and Extent of Disability

Claimant sustained a comminuted displaced humeral head and neck fracture in her left shoulder in her April 24, 2020 accident at work. Dr. Cowan performed a reverse shoulder replacement on Claimant on April 27, 2020 along with an open reduction with internal fixation of the fracture. Claimant complained of constant and sometimes sharp pain in her left shoulder. She complained of weakness in her left shoulder. She complained of range of motion restrictions in her left shoulder.

In addition, Claimant complained of pain and numbness and tingling radiating from her left shoulder to her left hand. She complained of difficulty in using her left hand. She also complained of difficulty in sleeping and in doing her job as a cashier due to the restrictions in using her left shoulder and hand.

Claimant was credible in her complaints. Drs. Hopkins' and Cowan's medical reports supported her complaints. Dr. Hopkins concluded that Claimant had sustained a permanent partial disability of 50 percent of her left upper extremity at the 232 week level due to her left shoulder injury in her April 2020 accident at work.

Dr. Cowan concluded that Claimant had sustained a permanent partial disability of 40 percent to her left upper extremity at the 232 week level as a result of her April 24, 2020 fall at work and the injury to her left shoulder.

Claimant proved that she sustained a permanent partial disability of 45 percent to her left upper extremity at the 232 week level due to her April 24, 2020 fall at work. Thus, she proved Walmart's liability for 104.4 weeks of compensation due to her left shoulder injury. (232 weeks of compensation x.45 percent equals 104.4 weeks of compensation).

Claimant also proved that she sustained a closed head injury in her April 24, 2020 fall at work where she fell and struck her head on either the floor or a pallet. She sustained a concussion as a result of her injury in the April 24, 2020 accident at work. She complained of problems with headaches, dizziness, irritability and short term memory loss as a result of her injury. She admitted that her optometrist had prescribed new glasses for her and that he told her that her dizziness was caused by her need for new prescription glasses. She admitted that she had not obtained the new prescription glasses.

Dr. Hopkins concluded that Claimant had sustained a permanent partial disability of 12 percent to her body as a whole due to the concussion she sustained in the April 2020 accident at work when she fell and struck her head on the floor or the pallet. Dr. Doskey wrote a report for Walmart and concluded that Claimant had sustained a permanent partial disability of 3 to 5 percent to her body as a whole due to the concussion she sustained in the accident.

Claimant proved that she sustained a permanent partial disability of 8 percent to her body as a whole due to the concussion and the effects of it she sustained as a result of her April 2020

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donna Burns

Injury No: 20-025625

accident at work. Thus, she proved Walmart's liability for 32 weeks of compensation due to her head injury. (400 weeks of compensation x .08 percent equals 32 weeks of compensation).

Therefore, Claimant proved Walmart's liability for 136.4 weeks of compensation in total for her left shoulder and head injuries. (104.4 weeks plus 32 weeks equals 136.4 weeks). At a rate of 514.20 per week for 136.4 weeks of compensation, Walmart is liable for 70,136.88. Walmart is ordered to pay that amount to Claimant.

Future Medical Treatment

The applicable statute pertaining to future medical treatment provides in pertinent parts as follows:

287.140. Employer to provide medical and other services, transportation, artificial devices . . . 1. 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. . . .

1. The employer may be required by the division or the commission to furnish an injured employee with artificial legs, arms, hands, surgical orthopedic joints, or eyes, or braces, as needed, for life whenever the division or the commission shall find that the injured employee may be partially or wholly relieved of the effects of a permanent injury by the use thereof. . . .a claim for compensation may be reactivated . . . after settlement of such claim is completed. . . . if the claimant requires the use of a new, or the modification, alteration or exchange of an existing, prosthetic device.

§287.140 (1) (8) RSMo. 2005.

Claimant now has an artificial joint in her left shoulder. Dr. Hopkins noted that the case should be left open for future medical treatment. He referenced Claimant's need for follow-up medical visits for her left shoulder replacement and for the possibility of the need for a revision surgery or hardware failure.

Dr. Hopkins was credible in his opinion. The evidence supported his opinion. Claimant proved that she is in need of future medical treatment to cure and relieve her of the effects of her injury to her left shoulder. Future medical treatment is left open for the hardware and for Claimant to receive any new, or modifications or alterations or exchanges of the existing artificial joint or prosthetic device in her left shoulder. Claimant's employer maintains its right to direct the medical treatment per § 287.140 RSMO. 2005.

15

Finally, there was no evidence showing that Claimant needed any future medical or psychological treatment to cure or relieve her of the effects of the concussion she sustained in her April 24, 2020 fall at work. Dr. Dosky stated that Claimant was unlikely to benefit from any increased therapy. Dr. Hopkins did not state in his report that Claimant needed any additional treatment or therapy for her head injury.

I certify that on Feb 25 2022 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: _Hannie Cramer_


Made by: _Kenneth Cairn_

- Kenneth J. Cain

- Administrative Law Judge

- Division of Workers' Compensation