Lance Lanier v. City of Columbia

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 17-092725**

**Employee:** Lance Lanier

**Employer:** City of Columbia

**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 28, 2022, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Melodie A. Powell, issued February 28, 2022, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 13th day of January 2023.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Redney J. Campbell, Chairman

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

Kathryn Swan, Member

Attest:

*Karla S. Hogg*

Secretary

The ALJ correctly determined that the employee sustained a work accident on December 1, 2017. The ALJ erred in finding that the employee did not meet his burden to prove that any injury he sustained arose out of and in the course of employment because his accident was not the prevailing factor in causing his medical condition and any resulting disability. This finding is not supported by competent and substantial evidence in the record.

Section 287.020.3(2) RSMo provides, in pertinent part, "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." For an injury by accident to be compensable, "Section 287.020.3(1) requires that the work-related injury be the 'primary factor' in causing the disability at issue, not the sole factor." Sickmiller v. Timberland Forest Products, Inc., 407 S.W.3d 109,121 (Mo. App. 2013). "The determination of whether a particular accident is the 'prevailing factor' causing an employee's condition . . . is inherently a factual one." Leake v. City of Fulton, 316 S.W.3d 528, 532 (Mo. App. 2010).

Missouri courts have held that an employee can be compensated when a work injury aggravates a preexisting condition to the level of disability, provided that they prove the requisite statutory standard of causation. See Miller v. Wefelmeyer, 890 S.W.2d 372, 376 (Mo. App. 1994) overruled on other grounds by Hampton, 121 S.W.3d 220; George v. City of St. Louis, 162 S.W.3d 26, 32 (Mo. App. 2005). "It is well-established law that a preexisting, but non-disabling condition does not bar recovery of compensation if a job-related injury causes the condition to escalate to the level of disability." Conrad v. Jack Cooper Transp. Co., 273 S.W.3d 49, 54 (Mo. App. 2008) (internal quotation omitted.) If substantial evidence exists that a claimant's preexisting condition did not constitute an impediment to the performance of the claimant's duties, there is sufficient competent evidence to warrant a finding that the claimant's condition was aggravated by a work-related injury. Avery v. City of Columbia, 966 S.W.2d 315, 322 (Mo. App. 1998) quoting Miller v. Wefelmeyer, 890 S.W.2d 372,376 (Mo. App. 1994); see also Higgins v. Quaker Oats Co., 183 S.W.3d 264, 271 (Mo. App.2005).

The aggravation of a preexisting condition or its symptoms may constitute a sufficient change in pathology to qualify for compensation, even though workers' compensation law requires more than a simple aggravation of a preexisting condition. See George, supra, 162 S.W.3d at 32, Winsor v. Lee Johnson Const. Co, 950 S.W.2d 504, 509 (Mo. App. 1997(overruled on other grounds by Hampton, 121 S.W.3d 220; Randolph Cty. v. Moore-Ransdell, 446 S.W.3d 699, 710 (Mo. App. 2014). If the evidence establishes that an accident caused a disability or aggravated a preexisting condition or infirmity of an employee, which produces a condition that would not have resulted in a normal, healthy individual, an award is authorized. Fogelsong v. Banquet Foods Corp., 526 S.W.2d 886 (Mo. App. 1975). The court in Weinbauer v. Grey Eagle, 661 S.W.2d 652, 654 (Mo. App. 1983) also discusses the event of a work-related accident escalating a

pre-existing condition to a disabling condition. "An inherent weakness or bodily defect, such as a spondylolisthesis, occurring in conjunction with an abnormal strain, will support a claim for compensation." Id.

Several cases applying post-2005 law have reached a similar holding. See Dierks v. Kraft Foods, 471 S.W.3d 726, 734 (Mo. App. 2015) ("It is well-established laws that a preexisting but non-disabling condition does not bar recovery of compensation if a jobrelated injury causes the condition to escalate to the level of disability." (internal citation omitted)); Maness v. City of De Soto, 421 S.W.3d 532, 540-541 (Mo. App. 2014) (finding the Commission's conclusion that "the work accident was the prevailing factor causing the resulting [disc herniation], as well as the aggravation of the underlying and previously asymptomatic degenerative disc disease and degenerative joint disease at C4-5 and C5-6" was supported by sufficient competent evidence.) Thus, a work accident may be the prevailing factor in causing an injury sustained due to the aggravation of a preexisting, asymptomatic degenerative condition. Harris v. Ralls Cty., 588 S.W.3d 579, 600 (Mo. App. 2019).

In determining whether medical treatment is "reasonably required" to cure or relieve a compensable injury, it is immaterial that the treatment may have been required because of the complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition. Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511, 519 (Mo. App. 2011). Rather, once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury. Id. Application of the prevailing factor test to determine whether medical treatments required to treat a compensable injury is reversible error. Id. at 521.

Section 287.190.6(2) provides that "[i]n determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures." "A medical expert's opinion must be supported by facts and reasons proven by competent evidence that will give the opinion sufficient probative force to be substantial evidence." Silman v. William Montgomery \& Assocs., 891 S.W.2d 173, 176 (Mo. App. 1995.) An ALJ may not constitute themselves as an expert witness and substitute their personal opinion of medical causation in a complicated medical question for the uncontradicted testimony of a qualified medical expert. Wright v. Sports Associated, Inc., 887 SW.2d 596 (Mo. 1994). However, even uncontradicted medical evidence may be disbelieved. Massey v. Missouri Butcher \& Café Supply, 890 S.W.2d 761, 763 (Mo. App. 1995).

In the present case, the employee presented competent and substantial evidence consisting of his live testimony and the testimony of his treating orthopedic surgeons to support his claim that the December 1, 2017 accident was the prevailing factor in causing his disabling bilateral shoulder symptoms and need for bilateral shoulder surgeries. The ALJ erred when she ignored the credible testimony of Dr. Tarbox,

Dr. Emanuel, and the employee. The ALJ further erred in determining that Dr. Emanuel was less credible than Dr. Lenarz and Dr. Frisella.

An objective review of the facts establishes that the employee was completely asymptomatic in his right shoulder throughout his lifetime and asymptomatic in his left shoulder after being released from a prior work injury in June 2017. The employee was able to perform the rigorous and physically demanding functions of his job as a firefighter since 2015 and was not absent from work due to his right shoulder throughout his career. Nor was he absent from work due to his left shoulder after he was released from a prior compensable work injury in June of 2017. The employee had no prior objective right shoulder findings and required no medical attention leading up to the specific acute event on December 1, 2017. He did not require pain medication to perform his job as a firefighter and was never given work restrictions or prescription medication for his right or left shoulder after June 2017.

It is also undisputed that on December 1, 2017, the employee sustained an accident during the performance of high-rise rescue training with the City of Columbia Fire Department rending his bilateral shoulders to become symptomatic. The employer directed medical care through its authorized physicians Dr. Herting and Dr. Tarbox. Dr. Tarbox opined that the employee required posterior labral repairs as a direct result of the December 1, 2017 accident.

In this instance, the medical records establish that the employee's medical condition was dramatically worse after the training exercise on December 1, 2017. Dr. Tarbox and Dr. Emanuel presented credible, competent, and consistent testimony establishing that the employee's disabling symptoms occurred during and immediately after his December 1, 2017 work injury. Their opinions are traceable to the objective findings in the employee's treatment records and tests and consistent with the employee's credible testimony. This evidence compels a finding that the December 1, 2017 injury is the prevailing factor in causing his disabling symptoms and need for treatment. The denial of such was error by the ALJ.

Dr. Tarbox explained that the employee's right shoulder injury occurred during the training exercise when he grabbed the handrail with his right hand to catch himself from falling. Regarding the left shoulder, Dr. Tarbox explained that the injury occurred when the employee was pulling the dummy down five stories and carrying that weight after the acute injury to his right shoulder.

In his initial examination, authorized by the employer, Dr. Tarbox noted that the employee put 140 pounds of hoses on his right shoulder, and proceeded to climb five stories or five floors with the hoses on his shoulder. Dr. Tarbox noted that the employee lost his balance while ascending the stairs and grabbed the handrail with his right arm resulting in posterior right shoulder pain. Regarding the left shoulder, Dr. Tarbox noted the employee felt left shoulder pain after carrying the dummy victim down the stairs. Dr. Tarbox noted that the employee's symptoms included throbbing pain in the left shoulder, significant pain in the right shoulder, and sharp, throbbing, shooting pain. On January 8, 2018, Dr. Tarbox noted both of the employee's shoulders

were inflamed and tender with motion and pain and concluded that the employee injured his right shoulder while climbing the stairs and falling posteriorly, thus making this the prevailing factor. Dr. Tarbox identified that the employee's symptoms started after his December 1, 2017 work injury.

Dr. Tarbox testified the right shoulder MRI demonstrated a significant injury to the employee's posterior labrum and that the left shoulder MRI demonstrated a recurrent tear of the labrum. He also reviewed the employee's prior left shoulder and operating note from Dr. Carter, seven years prior, finding no evidence of a prior posterior labral tear. After reviewing the anatomy and pathophysiology of the right shoulder injury, Dr. Tarbox elected to proceed with surgery.

Based on Dr. Tarbox's opinions the employer approved surgery. Dr. Tarbox's operating report again identified the medical causation of the employee's right shoulder injury, stating, "He injured this shoulder while on the job working for the Columbia Fire Department. He fell, caught himself, and sustained this injury. We diagnosed him with a posterior labral tear. . . ."1 In his left shoulder operating note, Dr. Tarbox again provided his causation opinion based on objective findings:

The patient is a 26-year-old male, who is status post left shoulder labral capsulorrhaphy performed in February 2017. He was well until he sustained a reinjury with this shoulder. This occurred while on a training procedure in December 2017 resulting in bilateral labral pathology. He was well until he sustained a reinjury with this shoulder. This occurred while on a training procedure in December 2017 resulting in bilateral labral pathology. ${ }^{2}$

Dr. Tarbox testified that the work accident of December 1, 2017 was the prevailing factor in causing both of the employee's labral tears and the treatment he provided was reasonable and necessary to cure and relieve the effects of that injury. He testified that the employee's fall and grabbing of the handrail was the mechanism for his right shoulder symptomology. He further testified that the employee aggravated his left shoulder with resulting symptoms after carrying the 200-pound dummy victim down five stories.

Dr. Emanuel corroborated the mechanism of injury and agreed that the employee's right shoulder became symptomatic during the December 1, 2017 training exercise after losing his balance, falling, and grabbing onto the handrail. Dr. Emanuel noted that the employee had no right shoulder problems prior to the December 1, 2017 training exercise.

Dr. Emanuel testified that the work injury of December 1, 2017, was the prevailing factor in causing an acute or chronic tear of the posterior glenoid labrum of the right shoulder and re-tear of the left shoulder posterior labrum repair rendering both

[^0]

[^0]: ${ }^{1} Transcript, p. 179.

{ }^{2}$ Id., p. 172

shoulders symptomatic and unresponsive to conservative treatment. Dr. Emanuel further testified that just because a patient may have pre-existing tears within the posterior glenoid labrum does not necessarily mean they are symptomatic. He explained that more often than not, an acute traumatic event can propagate preexistent tears of the labrum rendering them symptomatic and unresponsive to conservative treatment and that is what occurred to the employee on December 1, 2017. Dr. Emanuel testified that the employee's previous history of playing football had no bearing on his diagnosis of bilateral posterior glenoid labral tears. He further opined that an anterior or outstretched posterior fall can cause a tear or propagate depending on the force.

Dr. Emanuel testified that the employee's prior objective MRI scans revealed bilateral posterior labral peri-labral cyst formation. He believed that a portion of the employee's bilateral shoulder pathology was pre-existent tearing of the glenoid labrum.

Dr. Emanual noted the radiologist's interpretation of the right shoulder MRI of December 7, 2017 indicated there could be an acute component to it in addition to preexisting pathology.

Dr. Lenarz opined that the employee's bilateral posterior labral tears were likely caused by the employee's participation in high school football seven years before the work accident. He testified that posterior labral tears are most common in football down linemen because they are engaged in repetitively pushing out against another player with significant force. The employee was a punter and second-team linebacker in high school, not a down lineman. ${ }^{3}$ Dr. Lenarz noted the employee's prior left shoulder posterior labral repair from January 2017. He agreed that the employee sustained a recurrent posterior labral repair and was released to full duty by Dr. Tarbox on June 12, 2017, approximately six months prior to the December 1, 2017, work injury. Dr. Lenarz then somehow concluded that the employee's recurrent left shoulder posterior labral tear was caused by his previous participation in high school football which the employee had not engaged in between June 12, 2017 and December 1, 2017, and had not played since 2010. Dr. Lenarz's opinions are not credible.

Regarding the right shoulder, Dr. Lenarz fails to even mention the employee's fall with his right arm catching the handrail despite having Dr. Tarbox's complete records in which this mechanism was repeatedly discussed. Dr. Lenarz testified that falling forward on an outstretched hand could lead to tearing of the posterior labrum which is what happened to the employee when he grabbed the handrail. Dr. Lenarz further agreed that the employee experienced bilateral shoulder pain after the training exercise and at a minimum sustained bilateral symptomatic shoulder strains. He agreed that the preoperative MRIs showed no degenerative findings, other than small paralabral cysts on both shoulders.

Dr. Lenarz testified that as a result of the accident the employee's bilateral shoulders became symptomatic and the employee sustained strains which may have caused

[^0]

[^0]: ${ }^{3}$ See Transcript, pp. 42-43.

some symptoms to associate with the shoulder. Dr. Lenarz testified the employee's shoulder pain could have been caused by the compression of the anterior shoulders during the December 1, 2017 training exercise accident. Dr. Lenarz agreed the day before the accident the employee had no symptomatology concerning his posterior labral tears and developed symptomatology during the exercise.

Dr. Lenarz agreed that prior to December 1, 2017, the employee was working full duty without restrictions for either of his shoulders. He testified that the employee's shoulders were completely asymptomatic before the December 1, 2017 work injury. Dr. Lenarz reviewed the initial right shoulder MRI and agreed there were no degenerative findings. Dr. Lenarz agreed that the employee's shoulder became symptomatic after the training exercise and that he possibly suffered strains, but concluded that the training exercise would not have put significant stress on his shoulder, despite Dr. Lenarz not being present to witness the exercise.

Based on the opinions of Dr. Lenarz it is abundantly clear that all of the employee's bilateral shoulder symptoms resulted from his work accident because no symptoms existed prior to the accident.

Dr. Frisella opined that the employee's bilateral labral tears suggested they occurred from weightlifting. See Transcript, p. 1070. However, he acknowledged that after the employee's previous January 2017 work injury he did not lift weights by bench pressing and that this could not explain the cause of the recurrent left shoulder posterior labral tear. Dr. Frisella acknowledged that the employee's MRI report did not indicate any arthritis in the employee's shoulder as is typical in people who have a long history of weightlifting. He opined that the employee's tears were degenerative, but qualified his testimony by indicating they were probably degenerative. ${ }^{4}$ Dr. Frisella further testified the employee in fact injured his shoulders on December 1, 2017. He agreed that the employee had recovered well from his prior January 2017 work injury before sustaining his left recurrent posterior labral tear on December 1, 2017.

Regarding the right shoulder, Dr. Frisella failed to even mention the employee's fall with his right arm catching the handrail despite having Dr. Tarbox's complete records in his possession before his evaluation, wherein this mechanism of injury was exhaustively discussed. Despite having these records Dr. Frisella failed to ask the employee about the fall during his examination. Regarding the left shoulder, Dr. Frisella acknowledged that the employee believed he injured his left shoulder jerking the dummy around the stairwell. He agreed that that employee applied posterior force on his shoulder when jerking the 200-pound dummy down the staircase. Dr. Frisella testified posterior force on a person's shoulders may lead to posterior labral tearing. He further acknowledged that firefighters sustain unusual injuries.

[^0]

[^0]: ${ }^{4}$ Transcript, p. 1027.

Dr. Frisella noted it was possible that the December 1, 2017 work injury aggravated the employee's preexisting labral tears which triggered the symptoms, and that this injury was the prevailing factor in causing the employee's shoulder pain. He testified that the employee's bilateral shoulders were completely asymptomatic before December 1, 2017 and they became symptomatic after the training exercise. He testified that the employee's shoulder became painful during and after the December 1, 2017 work accident and that there was no indication they were bothering him prior to the accident.

Dr. Frisella agreed it was possible that the employee aggravated his asymptomatic bilateral shoulder labral tears on December 1, 2017, resulting in his shoulders becoming symptomatic. He agreed that some pathology clearly changed in the employee's bilateral shoulders during the training exercise causing them to be painful. Dr. Frisella acknowledged multiple records reflect the same history that the employee was relatively asymptomatic, especially on the right, and then had symptoms, either onset new or worse, after the December 1, 2017 injury. Dr. Frisella based his causation opinion on his conclusion that posterior labral tears are rare.

The ALJ found the independent medical evaluation opinions of Dr. Frisella and Dr. Lenarz were more credible on the issue of prevailing factor than the opinions of Dr. Tarbox and Dr. Emanuel even though Dr. Tarbox and Dr. Emanuel were the employee's surgeons. Dr. Tarbox was the authorized first surgeon and Dr. Emanuel was the unauthorized surgeon. Based on those opinions the ALJ determined that the employee's posterior labral tears in both shoulders were degenerative and pre-existing and not caused by any mechanism of injury described by the employee. It is important to note that neither Dr. Frisella nor Dr. Lenarz could agree on the causation of the employee's bilateral posterior labral tears, yet the ALJ relied on these opinions in determining that the employee did not sustain a compensable accidental injury arising out of and in the course of his employment. The opinions of Dr. Frisella and Dr. Lenarz are not credible.

The ALJ ignored the competent, credible testimony of Dr. Tarbox, Dr. Emanuel, and the employee. The employee presented cogent medical evidence from two qualified surgeons, Dr. Tarbox and Dr. Emanuel, which document the onset of disabling symptoms as the result of the reported injury. The employee's acute symptoms warranted a MRI within a month of the reported accident. The employer's authorized physician opined that the December 1, 2017 work injury was the prevailing factor in the employee's bilateral shoulder pathology necessitating surgery. The employee credibly testified that he never had right shoulder treatment prior to the reported accident date and that he had no prior left shoulder issues after he was released from a prior compensable injury in June of 2017. The employer offered no evidence of absenteeism, right or left shoulder problems, accommodations, or other evidence of preexisting disabling symptoms.

The ALJ further erred in determining that there was no diagnosis of shoulder strains in any of the treatment records. On December 4, 2017 and December 11, 2017, the employer's authorized physician, Dr. Robert Herting, diagnosed the employee with

bilateral shoulder strain from the December 1, 2017 accident. ${ }^{5}$ In his December 11, 2017 report Dr. Herting clearly identified that the employee sustained "bilateral shoulder strains with labral tear on the right shoulder" and referred the employee to an orthopedic evaluation for those specific diagnoses. ${ }^{6}$

The ALJ again erred in basing her opinion that the December 1, 2017 accident was not the prevailing factor in causing the employee's medical condition and any resulting disability on her personal observations of the employee's "physique" at hearing nearly four years post-injury and four years removed from lifting weights for physical fitness. Specifically, the ALJ stated, "The undersigned observed Employee at the hearing. His upper body musculature and, more specifically, his bilateral upper arum musculature was very well-developed and to a lay person's eye, it was obvious Employee lifted weights on a regular basis." ${ }^{7}$ This was despite the employee's direct testimony at hearing that he had not performed any heavy lifting since the December 1, 2017 accident and that since the accident he has been able to lift his three-month and year-and-a-half-old children with difficulty and for only a short time period. ${ }^{8}$

The substantial and competent evidence in the record, described above, compels the finding that the employee's accident was the prevailing factor in causing his bilateral shoulder conditions, need for surgeries, and resulting disability. The employee met his burden of proof in establishing that the December 1, 2017 accident was the prevailing factor in causing his bilateral shoulder condition and resulting disability. He is therefore entitled to and should be awarded compensation for temporary total disability, permanent partial disability, and past medical expenses.

Because the majority finds otherwise, I dissent.

Shalonn K. Curls, Member

[^0]

[^0]: ${ }^{5} Transcript, pp. 61, 58.

{ }^{6} Id., p. 58.

{ }^{7} Award, p. 18.

{ }^{8}$ Transcript, pp. 30-31.

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

www.labor.mo.gov/DWC

FEBRUARY 28, 2022

17-092725

Scan Copy

#Employee Attorney: RICK A BARRY 3403 LAKE FRONT CT 1034 S BRENTWOOD STE 1301 COLUMBIA, MO 65202 *Employee 13318735 8 701 E BROADWAY 13318735 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 13318736 5 1318736 5 1318736 5 1318736 5 1318736 5 1318736 5 1318736 5 1318736 5 1318736 5 1318736 5 1318736 5 1318736 5 1318736 5 1318736 5 1318736 5 1318736 5 1318736 5 1318736 5 1318736 5 1318736 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187 5 13187

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

Employee: Lance Lanier

Injury No. 17-092725

Dependents: N/A

Before the

Employer: City of Columbia

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Department of Missouri

Industrial

Industrial

Industrial

Industrial

Industrial

Industrial

Industrial

Industrial

Industrial

Industrial

Industrial

Address: 2121 S. 11th floor, New York 11th, New York 11001

Telephone: (212) 233-0000

Email: lanie.lanier@lazada.edu

Email: lianier@lazada.edu

Address: 2121 S. 11th floor, New York 11th, New York 11001

Telephone: (212) 233-0000

Email: lianier@lazada.edu

Address: 2121 S. 11th floor, New York 11th, New York 11001

Telephone: (212) 233-0000

Industrial

Industrial

Industrial

Industrial

Industrial

Industrial

Industrial

Industrial

Address: 2121 S. 11th floor, New York 11th, New York 11001

Telephone: (212) 233-0000

Hearing Date: November 3, 2021

1. Are any benefits awarded herein? No

1. Was the injury compensable under Chapter 287? No

1. Was there an accident under the Law? Yes

1. Date of alleged accident: December 1, 2017

1. State location where accident occurred: Columbia, Boone County, Missouri

1. Was above employee in employ of above employer at time of alleged accident? Yes

1. Did employer receive proper notice? Yes

1. Did injury arise out of and in the course of the employment? No

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how the accident occurred: Employee was participating in a high-rise

fire training exercise

1. Did accident cause death? N/A Date of death?

1. Part(s) of body allegedly injured by accident: Right and left shoulders

1. Nature and Extent of any permanent disability: None

1. Compensation paid to date for temporary disability: $11,255.52 18 5/7 weeks

1. Value necessary medical aid paid to date by employer/insurer? $42,278.38

WC-35-R1 (6-81)

Page 1

No attorney's fee is awarded.

On November 3, 2021, a Final Award Hearing was conducted in this matter in Columbia, Missouri. Employee, Lance Lanier, appeared personally and by counsel, Sean Barry. Employer/Insurer appeared through counsel, Jared Vessell. The parties were afforded an opportunity to submit proposed awards, resulting in the record being completed and submitted on December 3, 2021.

The parties stipulated as follows:

1. That on or about December 1, 2017, the City of Columbia was an employer operating under and subject to the Missouri Workers' Compensation Law, and during this time was self-insured c/o Brentwood Services Administrators.
2. That on or about December 1, 2017, Lance Lanier was an employee of the employer and was working under and subject to the Missouri Workers' Compensation Law.
3. That venue is proper in Boone County, Columbia, Missouri.
4. That Employee notified Employer of the alleged accident and injury as required by $\S 287.420$, RSMo.
5. That the Claim for Compensation was filed within the time prescribed by $\S 287.430$, RSMo.
6. That Employee's average weekly wage at the time of the alleged accident was $\ 892.08, resulting in an agreed compensation rate of $\ 600.59 for temporary total disability benefits and $\ 483.48 for permanent partial disability benefits.
7. That Employer/Insurer have paid medical expenses in the amount of $\ 42,278.38.
8. That Employer/Insurer have paid temporary total disability benefits in the amount of $\ 11,255.52, representing approximately $185 / 7$ weeks.

1. Whether Employee sustained an accident arising out of and in the course of his employment.
2. Whether the accident was the prevailing factor in causing Employee's resulting medical condition and disability.
3. Whether Employee is entitled to past temporary total disability benefits.

**Employee:** Lance Lanier

**Injury No.:** 17-092725

1. Whether Employee is entitled to past medical expenses.

1. The nature and extent of any permanent partial disability.

The following exhibits were offered and admitted into evidence:

1. Report of Injury
2. Claim for Compensation Injury No. 17-092725
3. City of Columbia Fact Finding Report of Lt. Ambra
4. Medical Records of Dr. Herting
5. Medical Records of Dr. Bus Tarbox
6. Deposition Transcript with Exhibits, Dr. Bus Tarbox
7. Deposition Transcript with Exhibits, Dr. James Emanuel
8. Deposition Transcript with Exhibits, Dr. David Volarich
9. Medical and Billing Records of Peak Sport & Spine
10. Athletico Functional Status Report of September 4, 2018
11. Boone County Medical Records
12. Medical Report of Dr. Szewczyk

A. Wage Statement

B. Deposition Transcript, Lance Lanier

C. Deposition Transcript with Exhibits, Dr. Christopher Lenarz

D. 60 Day Submission of Report of Dr. Christopher Lenarz

E. Deposition Transcript with Exhibits, Dr. William Frisella

F. Stipulation for Compromise Settlement Injury No. 17-000729

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

Lance Lanier testified at Hearing and by way of deposition. (Exh. B). He is 30 years old and resides in Columbia, Missouri, with his wife and two young sons. On March 6, 2015, he was hired by the City of Columbia Fire Department. He worked on the HAZMAT and rescue teams. As a firefighter he maintained his physical fitness with cardio work, walking with weights, and lifting weights. Employee's duties included being able to lift and drag victims, dragging hose, and climbing aerial ladders.

Employee testified he injured his left shoulder in January 2017 responding to a structure fire. He had treatment with Dr. Tarbox, including surgery for a labral tear. He was released in June 2017 with no restrictions and returned to full duty work as a firefighter. Between June 2017

WC-32-R1 (8.41)

Page 4

**Employee:** Lance Lanier

**Injury No.:** 17-092725

and December 1, 2017, Employee testified he had no physical issues with either shoulder, did not miss work, and completed the physical requirements of his job. Employee testified he had no prior injuries to his right shoulder.

On December 1, 2017, Employee was participating in a high-rise training exercise. His partner was Lt. Ambra. Two training buildings were involved in the exercise that day. One building was a five-story structure; the other building was a two-story structure. He was wearing full gear which includes a rescue harness, pants, boots, coat, hood, helmet, gloves, and he was taking in air from an SCBA tank. Employee was also carrying his "married" set (a pry bar and axe) in his left hand. He had a high-rise pack (a 2 1/2-inch hose), which weighed approximately 100 pounds, draped on his right shoulder.

Employee and Lt. Ambra entered the five-story building. Employee was ascending the stairs with the hose "flaking" off his right shoulder. When he went through two doors, the hose got caught. Employee testified he started to fall back, then shifted forward, and grabbed the railing with his right arm. His married set separated and his left hand hit the step. His right shoulder started hurting but Employee continued on with the training exercise. He and Lt. Ambra located a dummy victim on the third floor. The dummy weighed approximately 180 pounds. Employee used his webbing device to wrap the dummy and drag it with the loop on the webbing as he was walking backwards, down the stairs, to a safe place. Lt. Ambra made sure the dummy victim was not injured. The task was completed.

Next, Employee was called into the two-story structure to search for victims. Employee found the second victim and dragged it out of the building using a bear hug hold as the webbing device was still attached to the first victim. He had to drag the victim down one floor to the outside. He testified his left shoulder began to hurt.

Employee testified he told Lt. Ambra that his shoulders were hurting. He was taken to Boone Hospital and was referred to Dr. Tarbox on December 29, 2017. He told Dr. Tarbox what happened and that both shoulders hurt. Dr. Tarbox performed surgery on the right shoulder and in April 2018 performed surgery on the left shoulder. Employee testified his recovery for the right shoulder was slow. He continued having problems with his right shoulder and returned to Dr. Tarbox in September 2018. Dr. Tarbox referred him for a second opinion.

Employee testified he saw Dr. Lenarz for a second opinion. Dr. Lenarz did not causally relate his right shoulder injury to the work accident. Employee testified he was then sent by the City to Dr. Szewczyk who found he could not return to work as a firefighter. His position was terminated and he turned in his gear on January 4, 2019. Employee saw Dr. Emanuel on his own in October 2018. After injections did not help, Dr. Emanuel performed additional surgery on the right shoulder. Employee testified he incurred medical expenses for the treatment with Dr. Emanuel and paid for physical therapy sessions with Peak Sport & Spine himself. He last saw Dr. Emanuel in December 2019, at which point Dr. Emanuel indicated Employee could not return to work as a firefighter due to lifting limitations overhead.

WC-32-8.1 (6-41)

Page 5

Employer: Lance Lanier

Injury No. 17-092725

Employee testified he has a side business, Lanier Landscaping. The company now has 16 employees. Prior to December 1, 2017, Employee testified he was on the job with his employees 40-50% of the time, directing them as to what to do, but not doing any manual labor.

Employee testified that with regard to his right shoulder, it is hard to sleep. He does no heavy lifting and can hardly hold his sons for very long because of his right shoulder. He thinks he could lift 40 to 50 pounds. Both of his shoulders hurt. His right shoulder has a consistent, dull pain regularly ranging 4-5/10. He has pain in his left shoulder with activity, averaging 3/10. Employee tries not to do things overhead and he takes ibuprofen daily. He continues stretching and doing exercises at home.

On cross-examination, Employee testified he fell down, with his right arm on the railing and his left hand on the steps. He stated he was jerked backward, got his footing, then fell forward. He explained that the hose was on his right shoulder in accordion style so it would flake or fall off the shoulder as he was going up the steps. He testified something happened with the hose and it got caught when he was going through a doorway into the stairwell.

With regard to his landscaping business, Employee admitted on cross-examination that between January 2017 and December 2017, he had three employees and would work on his days off. He would trade work shifts with his firefighter colleagues so he could have more days off in a row to work his landscape business. He admitted that prior to December 1, 2017, he used tools such as a power drill for his landscape business and would teach his employees how to do things.

In his deposition taken October 21, 2020, Employee testified that he had a full stack of hose on his right shoulder and that as he was going up the stairwell, the hose was flaking off his shoulder. As he was rounding a corner and going up some steps, he testified the hose got caught and jerked his right shoulder back. He got off balance. Employee testified he fell forward and caught himself with his left hand. He was carrying his Halligan and axe in his left hand. (Exh. B, p. 39). He stated he fell forward, not backward, and believed he grabbed the stair rail but did not recall with which hand. (Exh. B, p. 43). Employee testified the hose was pulling him backwards, he got off balance, fell forward onto his outstretched left hand, and still had the hose on his right shoulder. (Exh. B, pp. 43, 48).

Medical Treatment

Employee was first seen at Boone Convenient Care on the date of injury. The history recorded in the medical records was that Employee was carrying a hose on his right shoulder and the hose moved. He caught the hose and felt a pull in the right shoulder. He then carried a 220-pound victim out of the building "on his left shoulder" and it hurt as well. An MRI arthrogram of the right shoulder was recommended. (Exh. 11).

Employee then saw Dr. Herting on December 4, 2017. The history recorded by Dr. Herting was that Employee was carrying a large hose on his right shoulder when the weight shifted and the hose tugged on his shoulder. He felt a sharp pain. Further history was that Employee and another firefighter were carrying a 220-pound victim down the stairs. First, Employee was carrying the victim with his arms in front of him and then switched and had his

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Lance Lanier

Injury No. 17-092725

arms behind him. Employee reported right shoulder pain in the back of the shoulder and over the bicipital groove. He reported left shoulder pain under the armpit. Dr. Herting noted Employee ran two businesses, a landscape business and a window cleaning business. Dr. Herting recommended an MRI arthrogram of the right shoulder. Upon re-check on December 11, 2017, Dr. Herting found tenderness in the posterior aspect of the right shoulder, not the bicipital groove. He found tenderness in the posterior aspect of the left shoulder, not so much in the armpit. Dr. Herting noted the MRI arthrogram of the right shoulder showed a large glenoid labral tear in the posterior superior and posterior inferior portions of the glenoid. He referred Employee to an orthopedic physician. (Exh. 4).

Employee first saw Dr. Tarbox for his shoulder condition on December 29, 2017. The history taken by Dr. Tarbox was that Employee had a 140-pound hose stacked on his right shoulder and climbed five floors. As he was doing that, the hose was coming off his shoulder and he noticed some pain. Dr Tarbox recorded that Employee lost his balance and fell backwards. "He, himself with the handrail and had posterior right shoulder pain". Dr. Tarbox noted that Employee and his partner found the victim and carried him down the stairs. Employee indicated he had pain in his right shoulder which was mainly posterior and then had pain in the left shoulder. Dr. Tarbox's impression was a right shoulder posterior labral tear. He believed the prevailing factor was Employee climbing the stairs and falling. He recommended a course of physical therapy before proceeding with right shoulder surgery. (Exh. 5). Employee had an MRI arthrogram of the left shoulder on January 8, 2018, which showed a recurrent labrum tear, anterior and posterior. Dr. Tarbox recommended proceeding with the right shoulder labral repair first and then proceeding with a revision left labral repair. Right shoulder surgery occurred on January 20, 2018. Subsequently, Employee had physical therapy. Dr. Tarbox operated on the left shoulder on April 26, 2018. Both procedures were described by Dr. Tarbox as "arthroscopic capsulorrhapy". (Exh. 5).

Employee continued with follow-up treatment for both shoulders but had complaints mainly regarding the right shoulder. An MRI of the right shoulder was performed on July 11, 2018, and it was reported as "negative". Dr. Tarbox then recommended a Functional Capacity Evaluation which demonstrated that Employee could work in the medium level. Because Employee's job required more than medium level, Dr. Tarbox recommended extensive work hardening. On September 5, 2018, Dr. Tarbox reported that Employee was still symptomatic in both shoulders, right more so than left. He recommended a second opinion with regard to the right shoulder. (Exh. 5).

Employer then directed Employee to Dr. Christopher Lenarz for a second opinion on the right shoulder in September 2018. The history noted by Dr. Lenarz was that Employee was going up a tower for a simulated fire rescue. He was carrying a hose on his right shoulder which was flaking off as he was ascending the stairs. He recorded that Employee felt the hose shift on his right shoulder and he had an acute onset of pain. He repositioned the hose, found the victim, and carried it out with a co-employee. He reported an acute onset of right shoulder pain and recurrence of left shoulder pain. It was Dr. Lenarz's opinion that the incident of December 1, 2017, was not the prevailing factor in causing Employee's shoulder condition. (Exh. C).

WC-32-R1 (6-81)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Lance Lanier

Injury No. 17-092725

Employee then sought treatment on his own from Dr. James Emanuel on October 29, 2018. The history given to Dr. Emanuel was that on December 1, 2017, Employee was carrying a 100-pound hose up the steps, the hose started to uncoil off his shoulder, and pulled his shoulder backward. Employee then had to lift a 100-pound dummy and carry it downstairs. Dr. Emanuel noted that when Employee got to the bottom of the stairs, both shoulders were painful. (Exh. 7, p. 11).

Dr. Emanuel's assessment was a degenerative tear of the glenoid labrum of the right shoulder and a superior glenoid labrum lesion of the left shoulder. He recommended injections for three months and if the symptoms returned, then Employee would need an MRI arthrogram and possible surgery on the right shoulder. Dr. Emanuel noted that Employee continued to be symptomatic in the right shoulder as a result of the December 1, 2017, work injury. (Exh. 7, pp.14-15). On February 25, 2019, Dr. Emanuel noted that an injection provided only one week of relief before the symptoms slowly returned. He proceeded with surgery on Employee's right shoulder on April 10, 2019. The surgery was a revision of a posterior glenoid labral repair with an arthroscopic subacromial decompression. Dr. Emanuel noted that the repair performed by Dr. Tarbox on the right shoulder had failed and was loose to probing. (Exh. 7, pp. 16-18). Employee had physical therapy and regular follow-up visits with Dr. Emanuel. He was released at MMI in October 2019. (Exh. 7, p. 19).

Employee was seen by Dr. Michael Szewczyk on behalf of the Employer on November 7, 2018. The history recorded by Dr. Szewczyk was the Employee was carrying a 100-pound hose on his shoulder when the hose shifted and he felt discomfort in the right shoulder. Further history was the Employee was carrying a 200-pound dummy and had increasing pain in the right shoulder and recurrent pain in the left shoulder. Dr. Szewczyk also noted that Employee reported he could bench press 250 pounds.

Medical Expert Opinions

Dr. Bus Tarbox

Dr. Tarbox testified by deposition. On direct examination, Dr. Tarbox noted that the history provided was that Employee had the hose on his right shoulder and was going up the stairs. He lost his balance, fell backwards, and tried to grab the handrail. (Exh. 6, p. 11). It was Dr. Tarbox's opinion that the incident of December 1, 2017, was the prevailing factor in causing the right shoulder injury. (Exh. 6, p. 13). He also stated that the "fall" caused the recurrent left shoulder posterior labral tear. (Exh. 6, p. 14).

On cross-examination, Dr. Tarbox testified that the history he recorded was taken directly from Employee, including that Employee fell backwards and grabbed the handrail. (Exh. 6, p. 22). He agreed that the Boone Convenient Care records did not mention any "fall". (Exh. 6, p. 22). Dr. Tarbox indicated the assumption was that Employee tried to grab the handrail with his right arm, with the hose on his right shoulder, and sustained posterior right and left shoulder labral tears. (Exh. 6, p. 24). Dr. Tarbox testified that he did not think the hose being on the right shoulder would have caused the labrum to tear. Rather, according to Dr. Tarbox, it was as

WG-32-R1 (6-81)

Page 8

Employee was falling backwards and grabbing the handrail that could have caused the posterior labrum tear. (Exh. 6, p. 24). Dr. Tarbox was asked how that fall could have caused the left posterior labrum tear. He stated he could not say whether or not the fall was the cause of the left shoulder pain. (Exh. 6, p. 25). He went on to state that he was not sure what position Employee's left arm was in when he fell backwards on the right, that Employee did not describe falling backward and catching himself with his left arm, and that Employee did not describe falling backwards down to the steps. (Exh. 6, p. 25). After further questioning, Dr. Tarbox stated that he was not 100 % sure what caused the left shoulder posterior labrum tear. (Exh. 6, p. 27). Dr. Tarbox indicated he had no notes on exactly how Employee carried the dummy, only that he helped carry the dummy down the steps. (Exh. 6, p. 32).

Dr. Christopher Lenarz evaluated Employee for a second opinion on the right shoulder. He testified by deposition. Dr. Lenarz is an orthopedic surgeon specializing in shoulder and elbow surgery. (Exh. C, p. 5). He testified that posterior labrum tears account for five to ten percent of labral injuries and that he occasionally sees bilateral posterior labrum tears. (Exh. C, pp. 8-9).

Dr. Lenarz saw Employee in September 2018 for an independent medical examination/second opinion. The history Employee gave Dr. Lenarz was that he was going up to a tower for a simulated fire rescue, carrying a hose on his right shoulder. The hose was flaking off as he was going up the stairs. He felt the hose shift on the right shoulder and had acute onset of pain. Employee repositioned the hose, found the 200 -pound victim, and carried it out with a colleague. Employee gave a history of acute onset of right shoulder pain and recurrence of left shoulder pain. Employee did not discuss any fall forward or backward. (Exh. C, pp. 11-16).

Dr. Lenarz indicated that an MRI performed 6 days after the incident with the hose showed evidence of a large glenoid labral tear with paralabral cyst formation in the posterior inferior labrum. He testified the paralabral cysts would have been present prior to December 1, 2017, as they do not form in six days. (Exh. C, pp. 16-17). Dr. Lenarz noted the MRI of the left shoulder showed similar tearing in the posterior inferior labrum. According to Dr. Lenarz, bilateral posterior tears are most commonly seen in weight lifters and football players. He stated that the force of a bench press or an incline press can lead to bilateral tears. (Exh. C, p. 18)

Upon examination, Employee had minimal to no pain on the left side. He primarily complained of right-sided pain, localized to the anterior and lateral deltoid region. (Exh. C, p. 22). When asked whether the incident of December 1, 2017, was the prevailing factor for Employee's resulting shoulder condition and disability, Dr. Lenarz opined that the activities Employee described were inconsistent with being the prevailing factor for the shoulder condition, particularly because the shoulder conditions were identical and symmetrical. In his opinion, the condition was more consistent with repetitive arm activity, forward flexed with repetitive posterior force being the etiology. (Exh. C, pp. 23-24). Dr. Lenarz's opinion was the

**Employee:** Lance Lanier

**Injury No.:** 17-092725

same for both shoulders. (Exh. C, p. 24). He stated he does not typically see posterior labral tears in people performing the activities Employee said he was performing. (Exh. C, p. 24).

Dr. Lenarz explained that falling forward on an outstretched hand can cause a posterior-directed force on the humerus which could lead to some tearing of the labrum, however, falling backward with the arm extended behind would not lead to a posterior-directed force on the labrum. (Exh. C, p. 25). He had no discussion with Employee that Employee fell forward. (Exh. C, p. 25). The description of the injury given to Dr. Lenarz as well as evidence of basically symmetric bilateral pathology is more consistent with other factors being the cause. (Exh. C, p. 28). Dr. Lenarz was of the opinion that Employee did not have any disability for either shoulder related to the work incident. (Exh. C, p. 29).

On cross-examination, Dr. Lenarz was questioned about the position of Employee's arms in carrying the hose. Dr. Lenarz stated that Employee indicated he was carrying the hose somewhere in that arc in the front of his body. When the hose flaked off, his shoulder jerked backward and, according to Dr. Lenarz, that would not provide a posterior force on the shoulder. (Exh. C, pp. 51-52). He further explained that if Employee was forward flexed, as the hose jerks back, it should bring his hand back which should force the shoulder anteriorly, if anything. For a posterior inferior labral tear, there would be forward flexion and internal rotation to have a posteriorly-directed force. (Exh. C, p. 53). A posterior force on the body should pull the arm into an extension and rotation, which would push the humeral head forward and not backward. (Exh. C, p. 53).

With regard to carrying the dummy downstairs, Dr. Lenarz testified that Employee was walking backwards, dragging the dummy in the webbing device. According to Dr. Lenarz, jerking the dummy around corners would not cause a posterior-directed force on the humeral head. (Exh. C, p. 54-55). When asked about the bear-hug carry of the second dummy, Dr. Lenarz indicated that the elbows would be flexed but that the humeri should probably be pretty close to neutral. (Exh. C, p. 55). He stated it's possible Employee could have strained both shoulders while carrying the dummy or having the hose flake off. (Exh. C, p. 57).

Dr. Lenarz testified that he has treated firefighters with posterior labral tears and that it is a relatively uncommon injury. In his opinion, Employee's weight-lifting, football playing history, or his landscaping work, depending on what he did, could cause the posterior labral tears. (Exh. C, pp. 64-65). Dr. Lenarz did not believe the incident of December 1, 2017, caused the posterior labrum tears to become symptomatic but agreed that Employee did not have symptoms until after December 1, 2017. (Exh. C, pp. 65, 78). Dr. Lenarz reiterated on cross-examination that given the mechanism of injury, he did not think it would meet the criteria for being the prevailing factor because it would not have put a significant strain across the shoulders. (Exh. C, pp. 66, 78). He did believe that the mechanism of injury would be reasonable for a shoulder strain. (Exh. C, pp. 68, 78).

On re-direct examination, Dr. Lenarz testified that the resulting medical condition is a posterior labral tear which was not the result of any work injury. (Exh. C, p. 79). He stated that

WV-32-81 (6-81)

Page 10

**Employee:** Lance Lanier

**Injury No.:** 17-092725

To cure and relieve the effects of a strain, a labral repair surgery would not have been necessary. (Exh. C, p. 79). He clarified that at no point did he diagnose shoulder strains but is just saying that the incident is a possible mechanism for a strain. (Exh. C, p. 80).

Dr. William Frisella testified by deposition on behalf of the Employer. He did a fellowship in shoulder and elbow surgery, with the majority of his practice being shoulder surgeries. (Exh. E, pp. 7-8). He evaluated Employee in December 2018.

The history given by Employee to Dr. Frisella was that he had left shoulder surgery in 2010 as a result of a football injury and did well, with no issues. In January 2017, Employee stated he was carrying equipment at work, slipped and fell, catching himself with his left hand. He had surgery and did well, recovering with no problems. On December 1, 2017, he was carrying hose up a high rise. The hose was on his right shoulder and was spooling out behind him. Employee told Dr. Frisella that the hose caught on something and jerked his right arm back. Employee indicated to Dr. Frisella that he had to carry a dummy victim on December 1, 2017, yanking it down the stairs and jerking it around corners. Employee further stated to Dr. Frisella that the action with the dummy victim was when he felt he re-injured his left shoulder. While he stated he was not totally sure, Employee told Dr. Frisella he thought he injured his right shoulder while pulling the dummy downstairs. (Exh. E, pp. 14-16).

Dr. Frisella testified that Employee did not describe any fall with regard to the incident of December 1, 2017. He did not mention carrying anything in his left arm and falling forward. Dr. Frisella noted that there were differences in other records as to what Employee told other providers in his history. (Exh. E, pp. 17-18). When Dr. Frisella saw Employee, most of Employee's complaints were as to the right shoulder. (Exh. E, p. 18).

What stood out to Dr. Frisella from the records was that Employee's problems are always with the posterior labrum on both shoulders, even the 2010 injury per Dr. Tarbox's notes. All of Employee's problems in both shoulders that are documented on the MRIs and, at the time of the surgeries, are posterior labrum issues. (Exh. E, p. 20). Dr. Frisella testified that this stands out to him because posterior labral tears are not incredibly common and usually occur from very specific mechanisms of injury. (Exh. E, pp. 20-21). The most common place where Dr. Frisella sees posterior labral tears is with those who lift weights, those who do a lot of bench press. Bench press puts a lot of posterior force on the shoulder and according to Dr. Frisella, it is typical to see bilateral posterior labral tears in someone who lifts weights. (Exh. E, p. 21). Dr. Frisella indicated that Employee talked about how he could not lift weights any more but also stated that he lifted nearly daily from high school until the December 1, 2017, incident. (Exh. E, p. 22).

Dr. Frisella testified as to the histories given Dr. Herting and Dr. Tarbox and how those histories differed from what Employee described to him. (Exh. E, p. 23).

WC-32-R1 (6-81)

Page 11

**Employee:** Lance Lanier

**Injury No.:** 17-092725

Dr. Frisella also believed that Employee's high school football history is relevant if he was doing a lot of blocking or tackling which can put a backward-directed force across the shoulder. He thought Employee's weight-lifting was more significant because he had done it for years and years. Employee told Dr. Frisella he bench pressed 250 pounds. (Exh. E, p. 30).

Dr. Frisella was asked his opinion on causation. He felt the labral tears were really the result of weight-lifting over time rather than as a result of the incidents in January or December 2017. According to Dr. Frisella, posterior labral tears are relatively rare and occur from a very specific set of circumstances, one of the most common of which is weight-lifting. Employee's daily weight-lifting over a period of years is a pretty good way to cause bilateral posterior labral tears, according to Dr. Frisella. (Exh. E, p. 35). Dr. Frisella thought the tears were more likely to have been caused by weight-lifting rather than the mechanism of injury described by Employee. Dr. Frisella explained that pulling a heavy weight backwards would never cause a posterior labral tear. (Exh. E, p. 36). He went on to state that the mechanism described of Employee having his right arm overhead and them being yanked backwards is a mechanism for causing an anterior labral tear but is not a mechanism for causing a posterior labral tear. (Exh. E, p. 36).

Dr. Frisella felt Employee was at maximum medical improvement when seen in December 2018 and did not put any restrictions on him, based on his physical examination of Employee. (Exh. E, pp. 37-40).

On cross-examination, Dr. Frisella was asked if he thought Employee sustained a sprain/strain of his shoulders as a result of the incident of December 1, 2017. He stated that what actually caused Employee's shoulder pain was difficult to say to a reasonable degree of medical certainty but the incident of December 1, 2017, did not cause labral tears. He was also asked if the incident of December 1, 2017, caused the pre-existing tears to become symptomatic. In response, Dr. Frisella stated that it was one of multiple possibilities and that he did not think anyone could say that to a reasonable degree of medical certainty. He further explained that he felt strongly that Employee's weight-lifting caused the degenerative tears of the posterior labrums. Dr. Frisella stated it would be "statistically infinitesimally, a small possibility of sustaining the exact same type of tear on both shoulders in the exact same spot from an acute injury. It's almost impossible." (Exh. E, pp. 74-78). He went on to explain that only certain types of acute activities can cause posterior labral tears such as tackling in football where your arm is behind your back, electrocutions, convulsions, or seizures. The most common cause is repetitive weight-lifting. (Exh. E, p. 79). According to Dr. Frisella, the objectively identifiable problem was the posterior labral tear which pre-existed the work injuries. (Exh. E, p. 83).

**Dr. James Emanuel**

Dr. James Emanuel provided deposition testimony on behalf of Employee. He is an orthopedic physician with 95% of his work being the diagnosis of and surgery on shoulder conditions. Employee presented to him on October 29, 2018. (Exh. 7, pp. 7-10). Dr. Emanuel's treatment has been previously outlined.

WC-32-R1 (6-41)

Page 12

**Employee:** Lance Lanier

**Injury No.:** 17-092725

Dr. Emanuel's assessment was a degenerative tear of the glenoid labrum of the right shoulder and a superior glenoid labrum lesion of the left shoulder. (Exh. 7, p. 14). He believes the work incident of December 1, 2017, was the prevailing factor in causing an acute-on-chronic tear of the posterior glenoid labrum of the right shoulder and a re-tear of the left shoulder posterior labrum repair, rendering both shoulders symptomatic and unresponsive to conservative care. (Exh. 7, p. 31). It was his opinion that just because Employee had pre-existing tears at the posterior glenoid labrum did not necessarily mean they were symptomatic and that more often, they are not. (Exh. 7, p. 33). Dr. Emanuel stated that an acute, traumatic event can propagate pre-existing tears of the labrum, rendering them symptomatic. (Exh. 7, p. 33). It was his opinion that Employee would be unable to perform all the material and substantial duties of a firefighter. (Exh. 7, p. 40). Dr. Emanuel also testified as to the medical bills and believed them to be customary and regular for the services he provided as a result of the December 1, 2017, injury. He indicated the balance due on the bills was $510.66. (Exh. 7, pp. 41-42).

On cross-examination, Dr. Emanuel testified that a fall, where one tries to catch oneself either on a railing or an outstretched hand, would more commonly be associated with a rotator cuff tear. He agreed that if someone lifts weights and bench presses, that can be a common cause for a posterior labral tear. (Exh. 7, p. 46). Dr. Emanuel testified that Employee did not mention to him any fall onto an outstretched hand. (Exh. 7, p. 49). In his opinion, an acute, traumatic event can tear the pre-existing tear further, separate it from the bony attachment, and extend it either superiorly or inferiorly. (Exh. 7, p. 53).

When asked what causes labral tears, Dr. Emanuel indicated it is usually a force pushing the humeral head back into the joint. Examples he gave included holding onto a steering wheel during a motor vehicle accident, linemen tackling in football, falls on an outstretched hand, and someone who does a lot of weight-lifting and bench presses. (Exh. 7, pp. 56-58).

With regard to his bills, Dr. Emanuel testified that they were paid by Employee's health carrier and that there were huge write-offs. The bills show those write-offs as adjustments. These were per a contractual arrangement with the health insurer. He testified he believed the only amount outstanding was $510.66. (Exh. 7, pp. 54-57).

**Dr. David Volarich**

Dr. Volarich saw Employee at his attorney's request for an IME. He testified by deposition. (Exh. 8). The history Employee gave Dr. Volarich is that he had his Halligan and axe on his left shoulder and 100 pounds of gear, including a hose, on his right shoulder. As he made his way up the stairs to the fifth floor tower, he tripped forward, catching himself with his left upper extremity. He felt a pop in his shoulder but continued to work. He dragged a dummy down three floors to the first level of the building. He was then called to a second building where he went up some steps and found another victim. With both hands, Employee bear-hugged the victim, dragged him down two flights of stairs to the first level. He had increasing left shoulder pain and also had right shoulder pain. (Exh. 8, pp. 10-11).

WC-32-R1 (6-41)

Page 13

**Employee:** Lance Lanier

**Injury No.:** 17-092725

Dr. Volarich opined that Employee's injuries were sustained in this December 1, 2017, incident and that, as a result, he had 35% permanent partial disability in the left shoulder and 60% permanent partial disability in the right shoulder. (Exh. 8, p. 19).

On cross-examination, Dr. Volarich confirmed that Employee told him he fell forward onto his left arm, jamming the shoulder. He agreed that there was nothing in the Boone Convenient Care records of a history of falling either forward or backward. Dr. Volarich agreed there was no history of any fall in Dr. Herting's records. (Exh. 8, pp. 25-27).

The claimant in a workers' compensation case has the burden to prove all the essential elements of the claim, including the causal connection between the injury and work. *Jefferson City Country Club v. Pace*, 500 S.W. 3d 305, 313 (Mo.App., W.D. 2016). The claimant does not have to establish the elements of the case on the basis of absolute certainty; it is sufficient if the claimant shows them by reasonable probability. *Moreland v. Eagle Picher Techs., LLC*, 362 S.W.3d 491, 504 (Mo.App., S.D. 2012). Probable means founded on reason and experience, which inclines the mind to believe but leaves room for doubt. *Id.* (citations omitted). All provisions of Chapter 287, RSMo. shall be strictly construed.

#### Accident/Injury

"Accident" is defined in §287.020.2, RSMo, as "an unexpected or 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." "Injury" is defined as "an injury which has arisen out of and in the course of employment". §287.020.3 RSMo.

There are several different descriptions given as to what happened on December 1, 2017:

##### December 1, 2017, Boone Convenient Care

Employee described carrying a hose on his right shoulder, and the hose moved. He caught the hose and felt a pull in his right shoulder. He then carried a 220-pound victim out of the building on his left shoulder and it hurt as well. (Exh. 11)

##### December 4, 2017, Dr. Robert Herting:

Employee described carrying a large hose on right shoulder when weight shifted, and the hose tugged on his shoulder. He felt a sharp pain immediately. Further history was that he and another firefighter proceeded to carry a victim out. It weighed 220 pounds. He was carrying the victim downstairs with arms in front of him, and then, going down, he had his arms behind him trying to hold victim with his arms behind him. It was during this period he felt a sharp pain not only in his right shoulder, but left shoulder. (Exh. 4)

WCO-32-81 (6-81)

Page 14

Employee: Lance Lanier

Injury No. 17-092725

Lt. Ambra noted that Lance felt a pain in his right shoulder during high-rise fire ground training. Lance was in full PPE, including SCBA, carrying a 2.5 -inch hose load on his right shoulder. Three flights of stairs were ascended, during which Lance felt the pain but continued. A victim training prop was located and removed with assistance from another firefighter. One flight of stairs were descended with the prop when both shoulders began to feel pain. (Exh. 3).

December 29, 2017, Dr. Bus Tarbox:

Employee described doing a training session December 1, 2017. He stacked a 140-pound hose on his right shoulder and climbed five stories. As he was doing this, the hose was coming off of his right shoulder. He noticed some pain in his shoulder as this was happening. He then lost his balance and fell backwards. "He, himself with the handrail and had posterior right shoulder pain." At the top, he found a victim. He proceeded to carry the victim with his partner. He had pain in his right shoulder which was mainly posterior, then developed pain in his left shoulder. (Exh. 6).

September 28, 2018, Dr. Christopher Lenarz:

Dr. Lenarz's report indicated that the employee was carrying a large hose over his right shoulder. The hose was flaking off as he was going up the stairs. He felt the hose shift on the right shoulder and had acute onset of pain. Employee repositioned the hose, found the 200pound victim and carried it out with a colleague. Employee gave a history of acute onset of right shoulder pain and recurrence of left shoulder pain. (Exh. C)

October 29, 2018, Dr. James Emanuel

The history given to Dr. Emanuel was that on December 1, 2017, Employee was carrying a 100 -pound hose up the steps, the hose started to uncoil off his shoulder, and pulled his shoulder backward. Employee then had to lift a 100-pound dummy and carry it downstairs. Dr. Emanuel noted that when Employee got to the bottom of the stairs, both shoulders were painful. (Exh. 7).

December 3, 2018, Dr. William Frisella

Left Shoulder: He was carrying hose up the high rise, and then he carried a dummy model of a victim back down. As he was carrying the victim back down, he would pull it down facing up the stairs. When he got to the corners of the building, he would have to put his arms under the dummy's arms and jerk the dummy around the corners. Doing this, he reinjured his left shoulder and noticed pain in his left shoulder. (Exh. 2 of Exh. E).

Right Shoulder: On December 1, 2017, Employee was at the high-rise training fire, and he was carrying hose on his right shoulder, with his right arm curled around the hose on top of his shoulder and walking up the stairs with his gear on. The hose was unfolding off the top of his right shoulder. The hose caught on something, and this jerked his arm back. His arm at this point was in an abducted externally rotated position and jerked his hand and arm back, putting

Employee: Lance Lanier

Injury No. 17-092725

force on the shoulder. He recalls feeling that he did something to his shoulder, but because of the intensity of the situation, he continued to move forward. Once he reached the dummy, as above, and began pulling it down the stairs, he thinks that he may have also injured his right shoulder further, but he is not sure whether it was the hose or pulling the dummy that was the more significant problem with his right shoulder. (Exh. 2 of Exh. E).

The history Employee gave Dr. Volarich is that he had his Halligan and axe on his left shoulder and 100 pounds of gear, including a hose, on his right shoulder. As he made his way up the stairs to the fifth floor tower, he tripped forward, catching himself with his left upper extremity. He felt a pop in his shoulder but continued to work. He dragged a dummy down three floors to the first level of the building. He was then called to a second building where he went up some steps and found another victim. With both hands, Employee bear-hugged the victim, dragged him down two flights of stairs to the first level. He had increasing left shoulder pain and also had right shoulder pain. (Exh. 8).

In his deposition taken October 21, 2020, Employee testified that he had a full stack of hose on his right shoulder and that as he was going up the stairwell, the hose was flaking off his shoulder. As he was rounding a corner and going up some steps, he testified the hose got caught and jerked his right shoulder back. He got off balance. Employee testified he fell forward and caught himself with his left hand. He was carrying his Halligan and axe in his left hand. (Exh. B, p. 39). He stated he fell forward, not backward, and believed he grabbed the stair rail but did not recall with which hand. (Exh. B, p.43). Employee testified the hose was pulling him backwards, he got off balance, fell forward onto his outstretched left hand, and still had the hose on his right shoulder. (Exh. B, pp. 43, 48).

At the hearing, Employee testified that as he was ascending the stairs with the hose flaking off his right shoulder, the hose got caught. He testified he started to fall back, then shifted forward, and grabbed the railing with his right arm. His married set separated and his left hand hit the step. Employee testified that with the first dummy victim, he used his webbing device to drag the dummy downstairs as he was walking backward. With regard to the second dummy victim, Employee testified that he dragged it out of the building using a bear hug hold.

The differences in the histories given is whether Employee fell, whether any fall that occurred was forward or backward, whether he grabbed the handrail, and if so, with which hand. One history that has been consistent is that Employee was ascending stairs with a heavy hose coiled on his right shoulder. That hose got caught as he was maneuvering a doorway and jerked his right shoulder back. He had immediate pain in his right shoulder. The other consistent history is that Employee was dragging a dummy victim down a flight of stairs and had pain in both shoulders.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Lance Lanier

Injury No. 17-092725

I find that an accident occurred.

Was the accident of December 1, 2017, the prevailing factor in causing the injury?

Injuries are only deemed to arise out of and in the course of employment 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 non-employment life.

§287.020.3(2), RSMo.

"The prevailing factor" is defined to be "the primary factor, in relation to any other factor, causing both the resulting medical condition and disability." 287.020.3(1) RSMo. Armstrong v. Tetra Pak, Inc., 391 S.W. 3d 466 (Mo.App., S.D. 2012).

The employee in a workers' compensation case has the burden to prove a causal connection between the injury and the job. Royal v. Advantica Rest. Group, Inc., 194 S.W.3d 371, 376 (Mo. App. W.D. 2006) (citations omitted). "Medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause." Lingo v. Midwest Block & Brick, Inc., 307 S.W.3d 233, 236 (Mo. App. W.D. 2010) (quoting Gordon, 268 S.W.3d at 461).

Employee must prove that he suffered a work-related injury and that the accident was the prevailing factor in causing both the resulting medical condition and any disability. Armstrong, supra.

The resulting medical condition for which Employee is seeking medical expenses, past temporary total disability benefits, and permanent partial disability benefits is a torn posterior labrum in both the right and left shoulders.

I find Employee has not met his burden of proof. I find most persuasive the opinions of Dr. Lenarz and Dr. Frisella. Both are shoulder experts. Both testified at length about the mechanism of injury. Both explained the shoulder joint anatomy and physiology and how the various descriptions of the accident, including any falls forward or backward, would not result in a posterior labrum tear in the right shoulder. Both also explained why dragging the dummy down the stairs and around corners would not result in a tear to the posterior labrum of the left shoulder. Additionally, while Dr. Tarbox thought the accident was the prevailing factor for the right shoulder because the history he had was that Employee fell backward (which Employee later specifically denied) and grabbed the railing with his right arm, he testified that just having the hose on Employee's shoulder and having that hose get caught would not be sufficient to

WC-32-0.1 (6-81)

Page 17

**Employee:** Lance Lanier

**Injury No.:** 17-092725

cause a posterior labrum tear in the right shoulder. Dr. Tarbox could not say with any certainty what caused the re-tear of the left shoulder posterior labrum.

Dr. Lenarz and Dr. Frisella testified that bilateral posterior labrum tears are not a common injury and that they result from very specific mechanisms of injury, one of which is weight-lifting and doing bench presses. Dr. Emanuel, Employee's expert, agreed that a cause for posterior labrum tears is weight-lifting and bench press. Another mechanism of injury for a posterior labrum repair, according to Dr. Lenarz, Dr. Frisella, and employee's expert, Dr. Emanuel, would be playing football, which Employee did while in high school. It was noted throughout the records that Employee did bench presses and lifted weights. He gave a history of bench pressing 250 pounds. The undersigned observed Employee at the hearing. His upper body musculature and, more specifically, his bilateral upper arm musculature was very well-developed and to a lay person's eye, it was obvious Employee lifted weights on a regular basis. Dr. Lenarz and Dr. Frisella opined that the posterior labrum tears in both shoulders were degenerative and pre-existing and were not caused by any mechanism of injury described by Employee. Rather, they were caused by Employee's history of playing football and/or his history of daily weight-lifting for many years.

I find Dr. Emanuel to be less credible than either Dr. Lenarz or Dr. Frisella. He assessed Employee with a degenerative tear of the posterior labrum of the right shoulder and a superior glenoid labrum lesion of the left shoulder. He testified that the incident of December 1, 2017, was the prevailing factor in causing an "acute on chronic" tear of the posterior glenoid labrum of the right shoulder and a re-tear of the left shoulder posterior labrum repair. However, he did not explain why the specific mechanism of injury caused anatomical changes in the shoulders which created an "acute" tear. He did not describe what the traumatic event was or how it propagated the pre-existing tears to become re-tears and symptomatic. It was his opinion that just because Employee had pre-existing tears did not mean that they were necessarily symptomatic. In essence, Dr. Emanuel finds that because Employee was symptomatic after the incident of December 1, 2017, then that incident is the cause of the posterior labrum tears.

I find Dr. Volarich not credible at all on the issue of whether the incident of December 1, 2017, was the prevailing factor in causing the posterior labrum tears in each shoulder. He is not a treating shoulder expert or surgeon and typically only performs IMEs in workers' compensation cases on behalf of employees.

While there is expert testimony from Dr. Lenarz and Dr. Frisella that Employee may have sustained shoulder strains as a result of the incident of December 1, 2017, there is no diagnosis of shoulder strains in any of the treatment records and no physician opining to a reasonable degree of certainty that Employee sustained bilateral shoulder strains as a result of the incident of December 1, 2017. Accordingly, I find no permanent partial disability associated with whatever incident may have occurred on December 1, 2017.

Employer paid for surgeries to both the right and left shoulders based on Dr. Tarbox's initial assessment of the injuries. It was not until a second opinion was recommended by Dr. Tarbox that Employer was notified the incident of December 1, 2017, was not the prevailing

WC-32-R1 (0-81)

Page 18

**Employee:** Lance Lanier

**Injury No.:** 17-092725

factor in causing the posterior labrum tears. I do not find that payment for the initial surgeries was any type of admission on Employer's part that there was a compensable injury in this matter.

Employee has not met his burden to prove that any injury he sustained arose out of and in the course of employment since the accident was not the prevailing factor in causing the medical condition and any resulting disability.

All remaining issues need not be addressed.

Employee did not meet his burden of proof. No benefits are awarded.

---

I certify that on Feb 28 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:** *Haomi Charson*

---

Made by: *Melodie A. Powell*

Administrative Law Judge

Division of Workers' Compensation

---

WC-35-R1 (6-81)

Page 19