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