issued by the labor and industrial relations commission final award … · 2019-06-13 · final...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge)

Injury No.: 09-111523 Employee: Manuel Duarte, deceased

Claimant: Madeleine Dobrauc

Employer: Butterball, LLC

Insurer: Ace American Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by§ 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to§ 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

Procedural History

On June 28, 2017, employer/insurer filed a timely application for review of the administrative law judge's June 14, 2017, award. Employee Manuel Duarte died on December 9, 2017, approximately five months after employer/insurer filed its application for review. Employee's attorney appeared for oral argument before the Commission on February 28, 2018, having knowledge of employee's death but advising neither employer/insurer nor the Commission of employee's demise. The Commission entered a Final Award Allowing Compensation on May 10, 2018, modifying the administrative law judge's award and decision. On June 25, 2018, employer/insurer filed Suggestions of Death of Deceased Employee. On September 21, 2018, the Con:imission voided its award of May 10, 2018, advising the parties that the matter remained pending before the Commission and that, upon proper substitution of parties, the Commission would take up and issue an award in this matter in due course. On May 6, 2019, after two intervening orders, the Commission issued an order designating Madeleine Dobrauc, employee's natural daughter and personal representative, as his successor in interest and claimant in this matter pursuant to§ 287.580. On May 30, 2019, the Commission issued an order making a technical correction to its May 6, 2019, order. We now consider the merits of employer/insurer's application for review.

Preliminaries

The parties asked the administrative law judge to determine the following issues: (1) Whether employee sustained a work-related accident on March 31, 2009; (2) Whether employee's injury was medically causally related to the alleged accident; (3) Nature and


-2-

extent of permanent disability and liability of the employer or the Second Injury Fund; (4) Future medical; (5) The date the employee reached maximum medical improvement (MMI).

The administrative law judge determined as follows:

• The employee sustained an occupational disease, which arose out of and in the course and scope of his employment with employer and was medically causally related to his work activities;

• The employer is ordered to provide future medical treatment to the employee's right shoulder to cure and relieve the effects of the March 31, 2009, work injury;

• The employee is permanently and totally disabled as a result of his last injury alone; the Second Injury Fund is therefore not liable for the payment of any permanent partial or permanent total disability compensation;

• The employee achieved MMI on April 29, 2010, the date of Dr. Robert Lieurance's office note. The employee is therefore entitled to temporary total disability from the employer/insurer from April 1, 2009, through April 29, 2010, and thereafter for permanent total disability benefits from employer/insurer for the employee's lifetime.1

The employer/insurer filed a timely application for review alleging that the administrative law judge's award is erroneous for the following reasons:

1. The finding that the employee sustained a compensable incident of occupational disease arising out of and in the scope of his employment with employer is not supported by the substantial and credible evidence in that employee suffers from pre-existing arthritis and degenerative joint disease of the right shoulder.

2. The finding of permanent total disability against the employer and insurer in connection with the employee's March 31, 2009, shoulder injury, in isolation and alone, was not based upon credible and substantial evidence in that evidence from Dr. Allen Parmet and vocational specialist Michael J. Dreiling, in addition to employee's own testimony, demonstrates that any permanent total disability is the result of employee's pre-existing conditions and his 2009 shoulder injury and therefore the responsibility of the Second Injury Fund.

1 The parties stipulated to a weekly compensation rate of $283.21 for both temporary total and permanent total disability benefits. Transcript, 5.

Employee: Manuel Duarte, deceased Injury No.: 09-111523

- 3 -

3. The award of future medical is not supported by competent and substantial medical evidence in that employee has not received any medical treatment related to his right shoulder since 2010; nor does the medical evidence support a need for medical treatment in the future.

4. The administrative law judge's temporary total disability benefits is not supported by competent and substantial medical evidence in that such evidence indicates that employee was not temporarily totally disabled, although he may have had restrictions and been limited.

For the reasons stated below, we modify the award and decision of the administrative law judge relating to employee's entitlement to temporary total disability benefits.

Discussion

Date of Maximum Medical Improvement

After finding employee permanently and totally disabled solely as a result of the last injury, the administrative law judge's award states:

[T)he question then becomes when Mr. Duarte achieved maximum medical improvement. Candidly, it is unclear from the medical records when Mr. Duarte achieved maximum medical improvement from his work injury of March 31, 2009. It is clear that Mr. Duarte underwent a second surgery on his right shoulder on April 21, 2010, performed by Dr. Lieurance. The last medical record available in evidence from Dr. Lieurance's office was his medical note dated April 29, 2010. While it makes no substantive difference since I have found Mr. Duarte was permanently and totally disabled as a result of the injury to his right shoulder, in isolation, from the last injury alone, so as to distinguish the period of temporary total disability from permanent total disability, I find and conclude that based upon the medical records admitted into evidence at the hearing, that Mr. Duarte achieved maximum medical improvement April 29, 2010 ... 2

Based on his determination that the employee was at MMI as of April 29, 2010, the administrative law judge awarded temporary total disability from April 1, 2009, (the day after the employee's March 31, 2009 work injury), through April 29, 2010, and permanent total disability beginning April 30, 2010, for the employee's lifetime, to be paid by the employer/insurer.

The employer/insurer's application for review alleges error in the administrative law judge's award of temporary total disability, asserting the employee failed to prove MMI because "There was no date of maximum medical improvement ever stated by any physician and ii

2 Award, pp. 19-20.


- 4 -

is a guess and speculation to determine the date. Further, Employee accepted unemployment benefits, but the Administrative Law Judge provided an award of TTD benefits in violation of Section 287.170(3)."3

We note the following medical evidence in the record:

• Dr. Robert Lieurance's clinic note of April 29, 2010, summarized a follow up appointment with the employee following right shoulder arthroscopic surgery. Dr. Lieurance's memo documented an X-ray of the employee's right shoulder on that date. He noted that the employee's shoulder incision was healing well, that the employee was neurovascularly intact, and that he had good range of motion. Dr. Lieurance's April 29, 2010 office record does not reference MMl.4

• Employer's expert, Dr. Allen Parmet, evaluated the employee on April 20, 2012 and January 16, 2015. Dr. Parmet's February 20, 2015, report suggests that the employee was likely at maximum medical improvement as of Dr. Parmet's April 20, 2012, exam but does not specifically so state.5

• Employee's expert, Dr. David Volarich, evaluated the employee on June 12, 2013. Dr. Volarich's report of that date specifically cites his opinion that, based on treatment provided to date, the employee had achieved maximum medical improvement.6

Section 287.170 provides for payment of compensation for temporary total disability for not more than four hundred weeks. "Temporary disability awards are intended to cover a healing period ... TTD benefits should be awarded only for the period before the employee can return to work." Greer v. Sysco Food Serv., 475 S.W.3d 655,667 (Mo. 2015). Consistent with Greerwe interpret Dr. Volarich's June 12, 2013, evaluation and report as evidence that the employee was no longer engaged in the rehabilitative process and had reached his maximum treatment potential as of that date. Based on Dr. Volarich's credible opinion we conclude employee reached MMI on June 12, 2013, and was no longer eligible for temporary total disability as of that date.7 We note modification of the date the employee reached MMI does not change the amount of the employee's award, in that the rate for temporary total and permanent total disability benefits are the same.

3 Employer/Insurer's Application for Review, p. 6. 4 Claimant's Exhibit 1, Transcript, 235-236. 5 Employer/Insurer's Exhibit E, Id. 594-597. 6 Claimant's Exhibit 2, Transcript, 335. 7 We note that 2017 amendments to§§ 287.020.12 and 287.149 RSMo, relating to MMI do not control in this case because they were enacted subsequent to the employee's March 31, 2009 injury.

Employee: Manuel Duarte, deceased Injury No.: 09-111523

- 5 -

Disqualification for Temporary Total Disability Due to Receipt of Unemployment Compensation Benefits

At hearing, the employer/insurer produced official records from the Division of Employment Security documenting the employee's receipt of weekly unemployment benefits from May 29, 2010, to September 14, 2010, and then again from April 16, 2011, to July 19, 2011 .8 Employer/insurer urges the Commission to award no temporary total disability or permanent total disability benefits until after the employee stopped receiving unemployment benefits, on July 19, 2011.

Section 287.170.3 states "An employee is disqualified from receiving temporary total disability during any period of time in which the claimant applies and receives unemployment compensation (emphasis added)." Applying the strict construction mandate of§ 287.800, the Commission has previously construed this statute as only allowing the Commission to deny compensation for temporary total disability for periods during which the employee received unemployment compensation.9

Pursuant to§ 287.170.3, we find the employee disqualified for temporary total benefits from May 29, 2010, to September 14, 2010, and from April 16, 2011, to July 19, 2011, due to his receipt of unemployment benefits during that period.

Conclusion

We modify the administrative law judge's award as to the issue of temporary total disability.

The employee was temporarily totally disabled due to his March 31, 2009, work injury from April 1, 2009, until June 12, 2013. The employee was disqualified from receipt of temporary total disability benefits from May 29, 2010, to September 14, 2010, and from April 16, 2011, to July 19, 2011, due to his receipt of unemployment compensation benefits during that period. Employer/insurer is otherwise obligated to pay weekly temporary total disability benefits in the amount of $283.21 per week from April 1, 2009, until June 12, 2013. Thereafter, employer/insurer is obligated to pay weekly permanent total disability benefits in the amount of $283.21 per week until December 9, 2017, the date of employee's death.

The award and decision of Administrative Law Judge Andrew P. Wood, issued June 14, 2017, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

8 Employer/Insurer's Exhibit D, Id. 556. 9 Sylvester Lewis v. National Vendors/Crane Co., Employer; Ace American Insurance Co. (Settled), Insurer; Treasurer of Missouri as Custodian of Second Injury Fund, Defendants, State of Missouri Labor and Industrial Relations Commission, September 26, 2013, Injury No.: 07-133175.


- 6 -

The Commission approves and affirms the administrative law judge's allowance of an attorney's fee herein as being fair and reasonable.

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

Given at Jefferson City, State of Missouri, this \ 3"""~ day of June 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

~

Reid K. Forrester, Member

Cu~~~ Attest:

\)..-\~~~~ Secretary

_,_ I

Issued by DIVISION OF WORKER~ COMPENSATION

AWARD

Employee: Manuel Duarte Injury No: 09-111523

Dependents: NIA


Additional Party: Second Injury Fund

Insurer: Ace American Insurance Company Sedgwick Claims Management Services

Hearing Date: April 19, 2017

Before the DIVISION OF WORKERS'

COMPENSATION Department of Labor and Industrial

Relations of Missouri

Checked by:

FINDINGS OF FACT AND RULINGS OF LAW

I. Are any benefits awarded herein? YES

2. Was the injury or occupational disease compensable under Chapter 287? YES

3. Was there an accident or incident of occupational disease under the Law? YES

4. Date of accident or onset of occupational disease: MARCH 31, 2009

5. State location where accident occurred or occupational disease was contracted: CARTHAGE, JASPER COUNTY, MISSOURI

6. Was above employee in employ of above employer at time of alleged accident or occupational disease? YES

7. Did employer receive proper notice? YES

8. Did accident or occupational disease arise out of and in the course of the employment? YES

9. Was claim for compensation filed within time required by Law? YES

I 0. Was employer insured by above insurer? YES

11. Describe work employee was doing and how accident occmTed or occupational disease contracted: EMPLOYEE'S WORK ACTIVITIES WITH EMPLOYER INCLUDED PULLING BREAST MEAT OFF

TURKEYS, WHEREIN THE EMPLOYEE WOULD REACH AT CHEST HEIGHT IN FRONT OF HIM AND MANUALLY GRAB THE TURKEY BREAST MEAT WITH BOTH HANDS AND TEAR IT OFF THE RIB CAGE OF THE TURKEY. EMPLOYEE DID THIS PARTICULAR JOB ACTIVITY FOR APPROXIMATELY SIX MONTHS, AND THIS JOB ACTIVITY WOULD BE PERFORMED ON APPROXIMATELY 58 BIRDS A MINUTE. IN THIS JOB, AFTER EMPLOYEE TORE OFF THE TURKEY MEAT, THE EMPLOYEE WOULD TOSS IT TO HIS RIGHT SIDE INTO A BIN ON A CONVEYOR BELT. AFTER THIS PARTICULAR JOB DUTY CAUSED THE EMPLOYEE'S HANDS TO SWELL, HE WAS THEN TRANSFERRED TO THE "MEAT EXTRACTION LINE" WHERE EMPLOYEE WOULD USE A KNIFE HE HELD IN HIS RIGHT HAND AND MADE A FORCEFUL SLASHING MOVEMENT DOWNWARD WITH HIS RIGHT ARM, BEGINNING ABOVE THE EMPLOYEE'S HEAD AND DOWN TO ABOUT THE EMPLOYEE'S CHEST LEVEL. HE WOULD THEN TAKE HIS LEFT HAND AND GRAB THE MEAT THAT WAS CUT AND FINISHED, TEARJNG IT OFF THE NECK OF THE TURKEY. EMPLOYEE DID THIS JOB FOR APPROXIMATELY 3 TO 6 MONTHS WHEN HE BEGAN TO EXPERIENCE SYMPTOMS, WHICH INCLUDED PAIN AND SWELLING

Revised Forni JI {Ji97) Page I

Issued by DIVISION OF WORKER:, COMPENSATION

IN HIS RIGHT SHOULDER, AND PAIN IN A "KNOT" THAT DEVELOPED AT THE SUPERIOR ASPECT OF HIS SHOULDER. AN MRI TAKEN WITHIN 2 MONTHS OF THE COMMENCMENT EMPLOYEE'S SYMPTOMS, INDICATED A PARTIAL THICKNESS TEAR WITH IMPINGEMENT OF OSTEOPHYTES, AND A SPUR AT THE ANTERIOR ACROMION, WHICH WAS DIAGNOSED AS AC JOINT OSTEOARTHRITIS, AND CHRONIC TEAR OF THE ROTATOR CUFF, WHICH RESULTED IN SUBSEQUENT SURGERY.

12. Did accident or occupational disease cause death? NO

13. Part(s) of body injured by accident or occupational disease: RIGHT UPPER EXTREMITY AT THE SHOULDER LEVEL

14. Nature and extent of any pennanent disability: PERMANENT TOT AL DISABILITY

15. Compensation paid to-date for temporary disability: -0-

16. Value necessa1y medical aid paid to date by employer/insurer? $3,620.86

17. Value necessary medical aid not fumished by employer/insurer? None claimed

18. Employee's average weekly wages: $424.82

19. Weekly compensation rate: $283.21 per week for tempormy total disability and permanent total disability

20. Method wages computation: By agreement

COMPENSATION PAYABLE

21. Amount of compensation payable:

Unpaid medical expenses: NI A

56 1/7 weeks of temporary total disability ( or tempm'aiy partial disability) from employer/insurer - $15,900.22

NI A weeks of pe1manent partial disability from Employer

NI A weeks of disfigurement from Employer

Employee is entitled to permanent total disability compensation from the employer/insurer beginning April 30, 2010, at the rate of $283.21 per week, for employee's lifetime.

22. Second Injury Fund liability: No

TOTAL: 56 1/7 weeks or temporary total disability from employer/insurer, at the compensation rate of $283 .21, for a total of$15,900.22, and in additional, $283.21 per week per week from the employer/insurer from the date of April 30, 20 IO and continuing for employee's lifetime.

23. Future requirements awarded: FUTURE MEDICAL CARE AND PERMANENT TOTAL DISABILITY COMPENSTION Said payments to begin IMMEDIATELY and to be payable and be subject to modification and

review as provided by law.

Revised Fonn JI (3/97) Page 2


Employee: Manuel Duarte Injury No: 09-111523

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Jennifer Newman

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Manuel Duarte lnju1yNo: 09-111523 Before the

Dependents: NIA DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial Relations of Missouri


Additional Party: Second Injury Fund Jefferson City. Missouri

Insurer: Ace American Insurance Company Sedgwick Claims Management Services

Hearing Date: April 19, 2017 Checked by:

AWARD

The above-referenced workers' compensation claim as heard before the undersigned Administrative Law Judge on April 19, 2017. The record was then left open for 30 days to allow the employer to take any necessary depositions. The parties were then afforded an opportunity to submit briefs on or before June 3 2017.

The employee appeared personally and through his attorney, Jennifer Newman, Esquire. Employer/insurer appeared tln·ough their attorney, Robin Bullock, Esquire. The Second Injmy Fund appeared through its attorney, Kristie Pierce, Assistant Attorney General. Lisa Lewis served as interpreter for the employee, who did not speak English.

The paities entered into a Stipulation of Facts. The stipulation is as follows:

1. That on or about March 31, 2009, Butterball, LLC, was an employer operating under and subject to the Missouri workers' compensation law and during this time was fully insured by Ace American Insurance Company, which was administered by Sedgwick Claims Management Services.

2. That on the alleged injury date of March 31, 2009, Manuel Duarte was an employee of the employer, and was working under and subject to the Missouri workers' compensation law.

3. The above-referenced employment and accident/exposure occurred in Jasper County, Missouri. The patties agree to venue lying in Jasper County, Missouri. Venue is proper.

4. The employee notified the employer of his injmy/exposure as required by §287.420. RSMo.

Re,,ised Form 31 (3197) Page J

I

Issued by DIVISION OF WORKER~ COMPENSATION

Employee: Manuel Duarte Injury No : 09-111523

5. The Claim for Compensation was filed within the time prescribed by §287.430, RSMo.

6. At the time of the claimed accident/exposure the employee's average weekly wage $424.82, which is sufficient to allow a compensation rate of $283.21 for temporary total disability compensation, and a compensation rate of $283 .21 for pe1manent partial disability and permanent total disability compensation.

7. Temporary total disability benefits were not provided to the employee by the employer.

8. The employer/insurer provided medical treatment to the employee, having paid $3,620.86 in medical expenses.

9. Based upon the evidence presented at the hearing, the employee reached maximum medical improvement as of April 29, 2010.

10. Employee's attorney, Jennifer Newman, seeks an attorney fee of25 percent.

The issues to be resolved by hearing are as follows:

1. Whether or not employee's work duties with the employer produced an occupational disease that was compensable, specifically whether or not the employee's occupational exposure was the prevailing factor in causing both the resulting medical condition and disability of the employee, pursuant to §287.067.1, RSMo?

2. Whether employee sustained any permanent disability as a consequence of his occupational disease while employed with employer, and if so, what is the nature and extent of the permanent disability?

3. Whether if the employee is deemed to be permanently and totally disabled, is the pe1manent total disability the result of the last injury (or occupational disease) alone?

4. Whether the Treasurer of Missouri, as custodian of the Second Injury Fund, is liable for payment of permanent pat1ial disability compensation or permanent total disability compensation?

5. Whether or not the employer is liable for future medical?

EVIDENCE PRESENTED

The employee testified at the evidentiary hearing in support of his case. Also, the employee offered for admission the following exhibits:

Re\ise<l Form 31 (3/97) Page 4

Issued by DIVISION OF WORKERS· COMPENSATION

Employee: Manuel Duaite Injury No : 09-111523

Exhibit 1

Exhibit 2 Exhibit 3

Catalog of medical records which are subcategorized as follows:

1. Dr. Estep - prior 2. M&T Dermatology - prior 3. Dr. Freita - prior 4. Dr. Joseph- prior 5, Dr. Joseph - not related 6. Dr. Ogden 7. Dr. Reeves - not related 8. Midwest Orthopedic Surgery 9. Midwest Imaging - not related 10. Midwest Allergy & Arthritis Center

Deposition - Dr. David Volarich Deposition - Phillip Eldred

The exhibits were received and admitted into evidence.

The employer/insurer did not present any witnesses at the hearing. The employer/insurer did offer for admission the following exhibits:

Exhibit A Exhibit B Exhibit C

Exhibit D Exhibit E Exhibit F Exhibit G ExhibitH

Deposition of employee taken February 14, 2012 Deposition of employee taken September 2, 2014 Notice ofintent to rely upon medical report of Dr. J. Timothy Ogden dated May 6, 2009. Records from the Division of Employment Security Notice ofintent to Rely on report of Dr. Parmet dated Februaty 20, 2015 Notice ofintent to Rely on report of Dr. Patmet dated January 16, 2015 Notice ofintent to Rely on report of Dr. Parmet dated April 21, 2012 Deposition of Michael J. Dreiling

The exhibits were received and admitted into evidence.

The Second Injmy Fund did not present any witnesses or offer any additional exhibits at the hearing of this case._

In addition, the parties stipulated to several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned Administrative Law Judge took administrative or judicial notice of those documents contained in the Legal File.

All exhibits appear as the exhibits that were received and admitted into evidence at the evidentiaty hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned Administrative Law Judge.

Re\ised Form 31 (3/97} Page 5

Issued by DIVISION OF WORKER:,· COMPENSATION

Employee: Manuel Duaiie Injmy No : 09-111523

FINDINGS AND CONCLUSIONS OF LAW

I-BACKGROUND

The employee, Manuel Duarte, is seventy-six years of age, having been born on August 12, 1940. Mr. Duatte would have been sixty-eight years of age at the time of the alleged exposure/accident date of March 31, 2009. Mr. Duarte speaks very little of the English language. He can only read or write a very small amount of the English language. He is right hand dominate. His native language is Spanish. Mr. Duarte was born in Lima, Peru. Mr. Duarte does not have a driver's license in the United States. He has no license or certification recognized in the United States.

Mr. Dua1te testified that he attended Federico VillatTeal University in his native country of Peru and got a degree in "law." It is clear this was not a law degree equivalent to an American Juris Doctorate degree, but instead it was more akin to a paralegal certificate/degree or some other type of legal professional degree/certificate. Later in his testimony, Mr. Duarte stated he had completed a "degree" in political science. Once again, this degree would have been obtained in Peru.

As for Mr. Duarte's work history, he stated he began working as an accountant at a textile manufacturing company in Peru. He worked there for approximately six years, from the time he was 18 years of age to 24 years of age. He left that employment because he had completed his college degree.

Mr. Duarte then went to work at the "Palace of Justice" in Lima, Peru. Mr. Duarte stated he worked as a secreta1y, which consisted of him reading criminal files and doing investigations of "delinquents" which he described as criminal offenses. He did this work for approximately six years. He believes he would have been 30 years of age to 32 years of age when he left this employment. He left this employment to statt his own business.

Mr. Duarte stated that when he was in his early 30s, he did start his own business. This business consisted of him selling copy machines and other office supplies. In addition, he also owned a restaurant at approximately the same time. He stated he did this work for approximately ten years. His testimony was somewhat confusing, because Mr. Dumte then stated that he actually owned his own businesses until he was in his early sixties.

Mr. Dua1te stated he immigrated to the United States in 2003. Mr. Duarte believed he would have then been sixty-three years of age when immigrated to the United States. Mr. Duatte testified that he came to the United States because the remainder of his family already lived in this countty.

Revise.I Form 31 (3197) Psige- 6

Issued by DIVISION OF WORKER» COMPENSATION

Employee: Manuel Duarte lnjmyNo: 09-111523

Upon on aniving in the United States, Mr. Duatte stated his first job was with a florist in Catthage, Missouri. Mr. Duarte states this job last approximately six months. Mr. Dua1te's next job was at a "cereal manufacturing company" in Joplin, Missouri. Mr. Duarte stated he worked on the production line, and that he would move boxes with his hands. Mr. Duarte testified he did this for approximately eight months. Mr. Duarte stated he left this job and went to work for the employer, Butterball, Inc.

Mr. Duaite stated that he did not have any problems with his right shoulder prior to going to work with employer in 2006.

Mr. Duatte stated his first job with the employer was on the "skeletal line." It was a little unclear, probably due to the different language and/or translation as to how long Mr. Duarte actually worked in the "skeletal line" with employer. It seems as though he probably did this job until approximately 2008. This job consisted of turkey carcasses coming down a line, which were hanging by some type of cone. Mr. Dumte testified the turkey carcasses would be at nose level. They would be coming at him at 58 birds a minute. With his left hand, Mr. Dua1te would pull the skin down off the neck of the turkey, and with his right hand, he had a knife which would he would then cut the meat from the neck. Mr. Duarte stated he would do this job exclusively, five days a week, fotty hours a week. At some point while he was doing this job, both his right hand and his left hand started hutting.

In approximately 2008 Mr. Duarte was transferred by the employer to the "meat extraction line" where he would use a knife in his right hand and make a forceful slashing movement downward with his right arm, beginning above Mr. Duarte's head and down to about Mr. Duarte's chest level. He would then use his left hand and grab the meat that was cut and finished tearing it off the neck of the turkey. Mr. Duarte testified he did this job for approximately six months, and began experiencing pain and swelling in his right shoulder. Mr. Duarte believes he began experiencing this pain in his right shoulder in Januaty of 2009.

Mr. Duarte stated that he did report the pain in his shoulder to his supervisors. Mr. Duatte testified that he was told by his supervisors to put ice on his right shoulder. In fact, at' one point his supervisor told him to ice his shoulder every two hours. Mr. Duarte would go to the employer's "infirmm·y" to have his shoulder iced. He would go on his break every two hours.

Mr. Duatte also testified he notified the nurse in the infirmary about his right shoulder

pain.

Mr. Duarte did testify that he asked his supervisors at the employer to rotate his jobs, so that he was not doing the same job repetitively, day in and day out. Mr. Duatte testified that he was told by his supervisors that the employer did not rotate job duties.

Mr. Duarte was very adamant in that he had had no problems with his right shoulder prior to 2009. Specifically, he testified that he had had not problems with his right shoulder before he began doing this last job with the employer.

Re,ised Form 31 (3197) Page 7



Mr. Duarte's last date of employment was March 31, 2009, with the employer. Mr. Dua1te has not worked at any employment since leaving the employer.

Mr. Duarte testified that he did specifically request medical treatment from the employer in regard to his right shoulder. Mr. Duarte testified that he was not approved for any medical treatment, but it should be noted the employer/insurer stipulated to paying medical expenses totaling $3,620.86.

Prior to pain developing in Mr. Duaite's right shoulder, Mr. Duaite was already receiving treatment from Dr. Michael Joseph, a rheumatologist. This was in regard to Mr. Duarte having a psoriasis condition. Dr. Joseph's records of April 16, 2009, note that Mr. Duarte was complaining of right shoulder pain. Dr. Joseph ordered an MRI of the right shoulder. On April 30, 2009, Dr. Joseph reviewed the MRI and noted that the MRI revealed a rotator cuff tear, impingement, capsulitis and bursitis. Dr. Joseph refened Mr. Duarte to an orthopedist.

Mr. Duarte testified he did not have any physical or mental condition which in any way hindered or impaired him in his work prior to the injmy to this right shoulder in 2009.

Mr. Dua1te did see Dr. Timothy Ogden on May 6, 2009. Dr. Ogden reviewed the previous MRI on the same date. Dr. Ogden noted the MRI revealed a pattial thickness tear with impingement of osteophytes, and a spur at the anterior acromion and diagnosed an AC joint osteoaithritis, chronic tear of the rotator cuff and c!n·onisity due to a1tln·itis. Dr. Ogden recommended an artln·oscopic surgery.

Mr. Duarte then saw Dr. Robert Lieurance on June 9, 2009. Dr. Lieurance noted that Mr. Duarte had right shoulder pain since approximately April I, 2009. Dr. Lieurance noted that there had been no trauma, but he did note an increase work load which caused increased pain. Mr. Duaite informed Dr. Lieurance that when he moved to the "meat extraction line" the pace originally was less than 58 birds per minute, but soon thereafter it increased to 58 birds per minute. Dr. Lieurance obtained x-rays of the right shoulder which were read to show a type 2 acromion. Dr. Lieurance diagnosed right shoulder impingement, capsulitis, bursitis, and a full thickness tear. Dr. Lieurance also recommended surgery.

Dr. Lieurance did, in fact, do surgery on June 24, 2009. Specifically Dr. Lieurance performed a right shoulder ait!n·oscopic rotator cuff repair and subacromial decompression.

Post surge1y Dr. Lieurance recommended physical therapy. On September 10, 2009, it was noted that Mr. Dna1te was having increased pain, and on November 24, 2009, Mr. Duarte was offered an injection. Mr. Duarte declined the injection. It should be noted that Dr. Lieurance was allowing Mr. Duarte to work "light duty." Evidently, this duty was not provided to Mr. Duatte by the employer.

On February 17, 2010, it should be noted that Dr. Lieurance did administer an injection that provided only minimal relief. There were specific physical work restrictions.

ReYised fonn 31 {3197) Page 8

Issued by DIVISION OF WORKER;:, COMPENSATION

Employee: Manuel Duarte Injmy No : 09-111523

On March 31, 2010, Dr. Lieurance noted the injection provided relief for only about ten days. Dr. Lieurance did another injection on that date. He noted that if symptoms did not improve, Dr. Lieurance might recommend further surge1y.

On April 21, 2010, Dr. Lieurance performed a second surgery. Specifically, Dr. Lieurance performed a right shoulder artlu·oscopic distal clavicle excision and biceps tenotomy. At that time, the operative note stated there was "fraying of the tendon of the long head of the biceps." Dr. Lieurance recommended range of motion exercises. Unfortunately, no fu1iher records were offered into evidence in regard treatment by Dr. Lieurance.

A Dr. Mitchell Mullins performed an independent medical evaluation on November 2, 2011. While this independent medical evaluation of Dr. Mullins is a pati of the record of records provided to both Dr. Volarich and Dr. Parmet, it was not offered into evidence as a separate exhibit.

Dr. Parmet performed, evidently an independent medical evaluation, on April 20, 2012, and a reevaluation on Januaiy 16, 2015.

Mr. Dua1ie's is currently under no active treatment. He denies any new or prior injuries to his right shoulder.

As previously stated, Mr. Duarte has not worked since March 31, 2009. It should be noted that Mr. Duarte did collect unemployment benefits from the State of Missouri for some time, evidently in 2010. In looking at the records from the Division of Employment Security (Exhibit D), evidently Mr. Duarte was attempting to find employment at various employers during the time period that he was receiving unemployment compensation. Mr. Duarte testified that he was unsuccessful in finding employment.

Mr. Duatie is currently not receiving any benefits of any type or nature.

Mr. Duatie has testified that since the second surgery, his right shoulder is in constant pain. He describes it as always hurting and as a "deep, constant pain." Mr. Duarte testified he cannot lift any weight without his shoulder hurting. It should be noted Mr. Duatie has a 15-pound lifting restriction. He testified he cannot lift his right arm up over face level. Mr. Duatie demonstrated in comi that he could not lift his arm above face level.

Mr. Duarte testified that he tried to go to work at other places, and that he had applied for jobs through Penmac, which is a tempora1y personnel agency. He testified that he could not work because of the limitations to his right shoulder.

Mr. Duatie experiences difficulty reaching to wash his back with his right arm. He performs household chores, but only briefly before he must stop and take a break due to increased symptoms in his right shoulder. Mr. Duatie testified that he wakes at night, approximately tlu·ee times each night, only sleeps for two to three hours at a time. He states this is due to the pain in his right shoulder and his preexisting prostrate condition. Mr. Duarte exercises less than in the past and does not walk long distances like he did prior to March 31,

Re,ised Form 31 {3197) Page 9

Issued by DIVISION OF WORKER" COMPENSATION

Employee: Manuel Duaiie Injury No : 09-111523

2009, because his gait, including the swinging of his arms while he walks causes him increased pain.

Mr. Duarte takes Naproxen and Tylenol to control the pain in his right shoulder. He also receives injections in his right shoulder every two months. Mr. Duarte did testify to other medications he is cmTently taking, these medications include Remicade, prednisone, and methotrexate. Evidently, these are all prescribed by Dr. Joseph, Mr. Duarte's rheumatologist. These medications do not directly relate to the injmy to his right shoulder.

MEDICAL OPINIONS

David T. Volarich, D.O.

Dr. David T. Volarich testified by way of deposition. Dr. Volarich performed an independent medical examination at the request of Mr. Dumte's attorney on June 12, 2013. Dr. Volarich testified consistent with his report, specifically, Dr. Volarich went through the history of Mr. Dumte's employment at the employer from 2006 through March 31, 2009, specifically, outlining Mr. Duarte's specific job duties, and when he stmted developing pain in his right shoulder. Dr. Volarich then went through Mr. Duarte's medical treatment subsequent to March 31, 2009.

It should be noted that Dr. Volarich lays a great deal of emphasis on his eventual conclusions in noting that Mr. Dua1te would work eight hours a day, five to six days a week, and usually average fo1ty hours a week prior to March of 2009. Mr. Duarte only had a 30-minute lunch break, no other formal breaks during the day.

Dr. Volarich then went through Mr. Duarte's current pain complaints, which would be consistent as to how Mr. Dumte testified.

Dr. Volarich did note that Mr. Duarte did have medical conditions predating his right shoulder pain of early 2009. These conditions included cataracts, psoriasis, prostatic cancer, degenerative disk disease of the lumbar and cervical spine.

On Dr. Volarich's physical examination, in the right shoulder, he noted a 25 to 30 percent loss of motion as evaluated by the Apley scratch test with circumduction. Impingement testing remained mild to moderately positive. Apprehension, clunk and Addison's testing were negative: O'Brien's testing caused pain in the right shoulder, but Dr. Volarich could not elicit a click. There was weakness when testing the deltoid and rotator cuff at 4/5 with external rotation and abduction. The remaining muscle groups of the rotator cuff are strong at 5/5. The right bicep is weak at 4/5 and cramping occurs when Dr. Volarich resisted flexion of the bicep. The tricep was strong at 5/5. There was 2/4 crepitus in the right shoulder joint with circumduction. There was 2/5 atrophy of the deltoid and rotator cuff. Arthroscopic puncture scars from the surgical repair were noted. There was a Popeye deformity of the right bicep.

Dr. Volarich diagnosed the injury to the right shoulder as a repetitive trauma injury/exposure causing rotator cuff tear and impingement, which later resulted in arthroscopic

Re,ised fonn 31 (3/97) Page 10

Issued by DIVISION OF WORKER~· COMPENSATION

Employee: Manuel Duaite Injury No: 09-111523

rotator cuff repair and subacromial decompression. By further diagnosis, Dr. Volarich noted persistent right shoulder pain, the cause of which led to the mthroscopic distal clavicle excision with biceps tenotomy.

It was Dr. Volarich's opinion that repetitive nature of Mr. Dumte's work with employer, as described in the histo1y Mr. Duarte gave to Dr. Volm·ich, and specifically, Mr. Duarte's job duties of using a knife in his right hand performing a slashing maneuver forcefully pushing down with a knife on a turkey carcass, as the substantial contributing factor as well as the prevailing or primary factor in causing right shoulder rotator cuff tear, impingement and bicep fraying that required the two separate surgical repairs. Specifically, Dr. Volarich found the work injury was the prevailing factor in causing Mr. Duarte's symptoms, his need for treatment and resulting disabilities,

Dr. Volarich did testify that Mr. Duarte was a maximum medical improvement, but did not give a specific date.

As to the issue of permanent disability, Dr. Volarich found that Mr. Duarte's employment with employer with the listed injury date of March 31, 2009, resulting in a permanent partial disability of 40 percent of the right shoulder, rated at the shoulder due to the rotator cuff tear, impingement and biceps fraying that required two separate mthroscopic surgical repairs. The rating also accounted for the ongoing pain, lost motion, weakness, crepitus, and atrophy of the dominate mm.

In addition, Dr. Volarich found disabilities preexisting the claimed injury to the right shoulder of March 31, 2009. It was Dr. Volarich's opinion that Mr. Duarte had a preexisting 15 percent permanent partial disability to the left upper extremity rated at the wrist, due to the flexor tendonitis. Dr. Volarich did not testify as to how this disability affected, hindered, or impaired Mr. Duarte's work duties. Dr. Volarich did not find any permanent pmtial disability in regard to the psoriasis.

Dr. Volarich further found that medical should be left open for Mr. Duarte to be provided ongoing care for his pain syndrome using modalities including, but not limited to narcotics and non-narcotic medications, muscle relaxants, physical therapy, and similar treatments as directed by the current standard of medical practice for symptomatic relief of Mr. Duarte's complaints.

In addition, Dr. Volarich gave the following permanent restrictions in regard to Mr. Dumte's right shoulder.

1. He should avoid all overhead use of the right arm and prolonged use of the right arm away from the body, especially above chest level.

2. He should minimize pushing, pulling, and pmticularly traction maneuvers with the right upper extremity. He is advised on the proper ergonomic use of the upper extremities.

3. He should not handle weights greater than about 5 pounds with the right mm extended away from the body or overhead, and limit these tasks to as tolerated.

Revised Form 31 (J/97) Page II

Issued by DIVISION OF WORKERc, COMPENSATION


4. He can handle weight to tolerance with right arm dependant, assuming proper lifting techniques, but in general I would recommend 20 pounds with the right arm alone.

5. He is advised to pursue an appropriate stretching, strengthening, and range of motion exercise program daily for the right shoulder to tolerance.

Allen Parmet, M.D.

Dr. Parmet's testimony came in by way of three separate reports offered by the employer. The first report was dated April 21, 2012, the second report was dated Janumy 16, 2015, and the third report was dated February 20, 2015.

It appears as though Mr. Duarte actually saw Dr. Parmet on April 20, 2012, and January 16, 2015.

Dr. Parmet, in his first report of April 21, 2012, also goes through Mr. Dumie's medical history. Dr. Parmet notes that in 2006, specifically June 5, 2006, and June 6, 2006, Mr. Duarte was seen at "ConAgra nursing." He was complaining of right shoulder pain caused by lifting carcasses and shoveling them into boxes. He was given Ibuprofen and a cold pack. He reported not history or arthritis.

Dr. Parm et reviews Mr. Duarte's medical treatment prior to January 1, 2009. He outlines a note from Dr. John B. Freitas, dated October 19, 2016, in which Mr. Duarte repo1ied pain in both hands and was placed on a 50-pound lifting limit. Evidently, Mr. Duarte stated he got atihritis from working at a previous employer. Also, Dr. Parmet sets out a treatment note from Dr. Estep dated October 19, 2006, which indicated that Mr. Duarte had been transfe11"ed to a new job at his employer two weeks earlier. He had developed discomfort in his shoulder area and transferred to a line job. It was fmiher noted he had swelling in the back of his hands. On examination, Mr. Duarte had a subungual hematoma on the left index finger, and capillaty refill was slow in both hands. He edema in both lower extremities when he stood for long periods of time. There was significant discoloration demonstrating vascular insufficiency and edema in both legs.

It should be noted through medical records of 2007 and 2008, there does not seem to be any medical treatment to Mr. Duarte's right shoulder.

Dr. Pannet then went through Mr. Duarte's treatment since March 31, 2009.

It was Dr. Parmet's diagnosis in 2012 that Mr. Duarte had degenerative arthritis of the right shoulder with secondary rotator .cuff tear. In discussing this diagnosis, Dr. Parmet noted that Mr. Duarte had a "sedentary lifestyle" until immigrating to the United States in 2003. He further notes that Mr. Duarte had a "somewhat late in life" need to undertake manual labor, but then notes that Mr. Dumie was able to perform this manual labor in the workplace for a number of years.

Revised Form 31 (3197} Page 12

Issued by DIVISION OF WORKER::, COMPENSATION

Employee: Manuel Duarte lnju1y No : 09-111523

Dr. Parmet found that Mr. Duarte had preexisting degenerative change with impinging osteophytes, but did note that Mr. Duarte's workplace would "aggravate the shoulder." It was his opinion this was not something that just occurred, but developed over a long period of time. He emphasized that the "operative photographs" by Dr. Lieurance showed a "frayed rotator cuff and not an acute tear." According to Dr. Parmet this was consistent with the degenerative process. It was his opinion that the subsequent observations and the second surgery demonstrated additional, progressive degenerative fraying of the biceps tendon even though Mr. Duarte was not longer working.

It was further Dr. Parmet's opinion that age alone was a significant risk factor in the development of rotator cuff tear, and that older patients with type 2 acromion have an incidence of 40 percent full thickness tears by age 50. Further, Dr. Pannet noted that Mr. Duarte was a tobacco user, and according to him, this increased the risk for developing rotator cuff tear by 50 percent.

In conclusion, it was Dr. Parmet's opinion that Mr. Duarte's work activities with the employer were not the prevailing factor in bringing about the condition to his right shoulder that required surgical treatment. In his opinion, the prevailing was Mr. Duarte's age and preexisting mthritis.

It is interesting to note that Dr. Pannet did find that Mr. Duarte had a permanent partial disability of 20 percent at 232 week level of the right shoulder, " ... of which 15 percent at the 232 level was sustained from the earlier degenerative changes resulting in the 2009 surgery and subsequent degenerative changes and fraying of the biceps tendon and progression of the a1thritis resulting in the 2010 surgety." It is unknown as to the remaining 5 percent of the pennanent pattial disability found by Dr. Pa1met. Specifically, it is unknown as to whether or not Dr. Parmet does directly relate that to Mr. Duarte's employment with the employer. In any event, it was also Dr. Parmet's opinion that Mr. Duarte's continuing complaints were clearly attributable to ongoing atthritic changes.

Dr. Parmet saw Mr. Duarte again on January 16, 2015, at this time, Dr. Pmmet had the records of Dr. Volarich and vocational records of Phillip Eldred.

Dr. Parmet went tln·ough the medical records/medical repmts/ vocational repo1ts of Dr. Volarich and Phillip Eldred. He further conducted a physical examination. He then opined that Mr. Duatte's "work alone" as not the prevailing factor in the development of his degenerative artln·itis and secondary rotator cuff tear. Dr. Parmet noted that Mr. Duatte had reduced range of motion in his right shoulder compared to his evaluation of three years prior, and he now assessed 30 percent permanent partial disability at the 232 week level due to increasing restrictions from ongoing arthritic changes and a frozen shoulder.

It was Dr. Patmet's opinion that Mr. Duarte should be treated by conservative means only. He believed he was capable of functioning at the light to medium level of labor but cannot perform overhead activities with his right arm at all and was quite limited with this left arm due to a preexisting attln·itis. Dr. Parmet fmther noted progressive symptomatology in regard Mr. Duarte's peripheral vascular disease as well as intervening left ankle fracture. He noted that Mr.

Re-.ir.ed Forni 3 ! (3197) Page 13

Issued by DIVISION OF WORKEk.-,· COMPENSATION

Employee: Manuel Duarte lnjmy No : 09-111523

Duarte had "quite severe" stasis dermatitis and peripheral edema in his legs, and believed that put him at a functional sedentary level of labor. It was Dr. Parmet's opinion that Mr. Duarte could return to his previous employment as a legal secretaty, but did not that it would be Spanish language only.

In regard to disabilities prior to March 2009, Dr. Parmet stated that Mr. Duarte had a preexisting permanent partial disability of 50 percent of both eyes. This was from, evidently, bilateral cataract surgery. On the basis of psoriasis and peripheral vascular disease, Dr. Parmet found an additional 25 percent to the body as a whole, although he noted that this clearly had progressed since 2009, and there was a notable increase since his prior evaluation of 2012. As such, Dr. Parmet thought that Mr. Duatte was marginal for sedentaty activities.

Dr. Parmet's repo1t of February 20, 2015, mainly concerns additional medical records he received from Dr. Thomas McClain. These records pertain to a fall sustained by Mr. Duatte on February 9, 2014, in which he had a fracture of his left ankle, and Dr. McClain subsequently performed bimalleolar open reduction and internal fixation of the left ankle. Otherwise, non of Dr. Parmet's findings have changed.

VOCATION OPINIONS Phillip Eldred, CRC

Philip Eldred testified at the hearing by deposition. Mr. Eldred is a ce1tified rehabilitation counselor. He conducted a vocational evaluation of Mr. Duarte, at the request of Mr. Dua1te's attorney, on April 24, 2014. Mr. Eldred's repo1t, prepared following that evaluation, was admitted into evidence thtough Mr. Eldred's deposition.

In regard to Mr. Duarte's medical histo1y prior to March 31, 2009, it was his opinion Mr. Duarte did not have an impaitment, which was vocationally disabling such as to constitute a hindrance or obstacle to employment. On both direct and cross examination, Mr. Eldred noted that Mr. Duarte, prior to 2009, could sit five hours, stand eight hours, walk one hour, and as far as lifting and carrying, could lift and carry 21 to 50 pounds frequently. He noted, pursuant to the Dictionaiy of Occupational Titles, this would put Mr. Duarte at "ve1y heavy" work prior to 2009.

In Mr. Eldred's vocational evaluation, he asked Mr. Duarte the severity of his medical problems. Mr. Duarte only noted the right shoulder pain.

Mr. Eldred did administer the Purdue Pegboard test to Mr. Duarte. Mr. Duarte scored at less than one percent on the national percentile of the both the right hand and left hand.

Mr. Eldred further noted using the OASYS occupational access system, looking at 12,761 occupations defined in the Dictiona,y of Occupational Titles, that he was unable to identify any sedentary occupations to which Mr. Duatte's skills would transfer if he were capable of working in sedentary work. Mr. Eldred felt that Mr. Duatte had vocational restrictions at the sedentary work level only.

Revised form 31 {3197) Page 14

Issued by DIVISION OF WORKEk~· COMPENSATION


Mr. Eldred noted that Mr. Duarte was unable to return to his previous occupations because the requirements of his previous occupations were at the light, medium, and heavy work levels. Further, as previously stated, Mr. Duarte had no transfenable job skills.

Mr. Eldred did believe that Mr. Duarte, in looking at his worker trait profile, could be trained.

In addition, Mr. Eldred did not believe that Mr. Duarte had any placement potential, which is the ability of a potential worker to complete the job seeking, application, and interview process to obtain employment. Specifically, Mr. Eldred believed that it was unlikely that an employer in the normal course of business would consider employing Mr. Dumte.

It was Mr. Eldred's conclusion that Mr. Dumte would not be able to return to competitive, gainful employment. It was Mr. Eldred's opinion that Mr. Duarte was permanently and totally disabled as a result of the injury to his right shoulder, in isolation, with the claim date of March 31, 2009.

Michael J. Dreiling, Vocational Consultant

Michael J. Dreiling testified at the hearing in this matter by deposition. Mr. Dreiling is a vocational consultant. He conducted a vocational evaluation of Mr. Duarte, at the request of the attorney for the employer on October 20, 2015.

After reviewing Mr. Duatte's medical records, the medical reports and vocational report of Mr. Eldred, and then conducting an interview of Mr. Duarte, it was Mr. Dreiling's opinion that no employer in the usual course of business seeking persons to perform duties of employment in the usual and custommy way would reasonable be expected to employ Mr. Duarte in his condition as presented to Mr. Dreiling.

It was further Mr. Dreiling's opinion that the medical restrictions and concerns pettaining to Mr. Duarte's right shoulder alone would not remove Mr. Dumte from the labor market entirely. Specifically, it was Mr. Dreiling's opinion that the restrictions for the right shoulder alone do not impact his ability to perform long standing or walking.

SUPPLEMENTAL FINDINGS, CONCLUSIONS AND RULINGS OF LAW

I ACCIDENT AND INJURY

A claimant in a workers' compensation claim has burden of proving all elements of a claim to a reasonable probability. Cardwell v. Treasurer of State of A1issouri, 949 S.W.3d 902, 911 (Mo.App. E.D. 2008). When a claimant has alleged permanent and total disability, he or she must prove inability to return to any employment and not merely mean ability to return to the employment in which the employee was engaged at the time of the accident. §287.020.6 RSMo. Cum. Supp. 2005. In determining whether claimant can return to employment, Missouri law allows consideration of employee's age, education, along with physical disabilities. BAXI v. united Technologies Automotive, 956 S.W.2d 340 (Mo. App. E.D. 1997). The central question is

Revised Form JI (3197) Page 15

Issued by DIVISION OF WORKEk0 COMPENSATION


whether, in the ordinary course of business, would an employer reasonable b expected to hire claimant in his or her physical condition. Ransburg v. Great Plains Drilling, 22 S.W.3d 726, 732 (Mo.App. W.D. 2000), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.2d 220 (Mo. Banc 2003).

The first issue to be resolved is whether or not Mr. Duarte's work duties at the employer produced an occupational disease that was compensable, and specifically whether or not Mr. Duarte's occupational exposure was the prevailing factor in causing both the resulting medical condition and the disability of Mr. Duarte, pursuant to §287.067 RSMo.

§ 287.067.1 RSMo. and §287.067.3 state in relevant part as follows:

(1) "Occupational Disease" is defined as ... an identifiable disease ansmg with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

(3) An injury due to repetitive motion is recognized as an occupational disease for purposes ofthis chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure 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. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

It is clear the Mr. Duarte's repetitive work with employer caused injury to his right shoulder leading up to the claimed injury date of March 31, 2009. Mr. Duarte's right shoulder injmy is an occupational disease. To prove an occupationally induced disease, rather than ordinary disease oflife, involves two factors:

1. Whether there was an exposure to the disease which was greater than or different from which affects the public generally; and

2. Whether there was a recognizable link between the disease and some distinctive feature of the employee's which was common to all jobs of that sort. Townser v. First Data Corp, 215 S.W.3d 237, 241-242 (Mo.App. E.D.2007).

Claimant must establish generally through expert testimony, the probability of the occupational disease was caused by conditions in the work place. Townser, at 242. A single

Revised Form 31 (3/97) Page 16

Issued by DIVISION OF WORKEI<~' COMPENSATION


medical opinion will support a finding of compensability even where the causes of the disease are intermediate, Townser at 242. The opinion may be based upon a written opinion alone. Townser at 242.

Manipulations and flexions, iterated and reiterated within a concentrated time, are unusual conditions, and if they adhere in an employment task being performed by an employee, they expose the employee who performs them to a risk not shared by the public generally and to which the employee would not have been exposed outside of employment, and thus qualify for compensation pursuant to the law, Collins v. Neevel Luggage Manufacturing Co., 481 S.W.2d 548,555 (Mo. App. W.D. 1972).

Mr. Duatte pulled on the turkeys and removed meat from 58 turkeys per minute, or almost One (1) a second, leading up to March of 2009. The employer did not rotate Mr. Duarte to work on different lines or in different areas, Mr. Duarte testified that he exclusively worked on this line removing meat from the turkeys from 2008 through March 31, 2009.

Dr. Volarich opined that the repetitive nature of Mr. Dua1te's work with employer, particularly using a knife in his right hand performing a slashing maneuver forcefully pushing down with the knife on a turkey carcass was the prevailing factor causing the right shoulder rotator cuff tear, impingement, and bicep fraying that required Two (2) separate surgical repairs, Dr. Parm et assigned a Twenty Percent (20%) permanent partial disability of the right shoulder, of which 15% was sustained from earlier degenerative changes. Dr. Parmet did not address the remaining Five Percent (5%) of permanent partial disability to the right shoulder. Therefore, I must assume that Dr. Parm et' s opinion was that that Mr. Duatte sustained Five Percent ( 5%) disability to the right shoulder from the work injmy on March 31, 2009. Dr. Parm et opines that the prevailing factor of Mr. Dumte's medical condition is not his work duties with Employer. I disagree with Dr. Parmet's opinion in that he does not account for the remaining Five Percent (5%) of disability to Mr. Duarte's right shoulder. I find Dr. Volarich's opinion more credible than Dr. Parmet's opinion.

I find that Mr. Duarte's job duties with Employer exposed him to a greater risk than the general public, in that he perfo1ms far more repetitive motions and movements than those outside of his occupation, I find and agree with Dr. Volarich's conclusion that work is the prevailing factor to.cause Mr. Duarte's right shoulder condition. Based on Mr. Duarte's credible testimony that his job duties were repetitive in nature and the medical repo1ts from Dr, Volarich, I find Mr. Duatie has met his burden of proof to show that his repetitive work duties were the prevailing factor to cause his right shoulder condition and need for treatment for cure and relieve the effects of the work injmy. Therefore, I find and conclude that Mr. Duarte sustained an occupational disease, which arose out of and in the course and scope of his employment with Employer and is medically causally related to his work activities.

II MEDICAL CARE

Mr. Duatte seeks an award for future medical care. The adjudication of this issue requires consideration of §287.140 RSMo,, which provides, in pertinent part:

Revised Form 31 (3197) Page 17

Issued by DIVISION OF WORKEka, COMPENSATION


1. The employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonable be required after the injury or disability, to cure and relieve from the effects of the injury.

In order to receive an award of future medical benefits under Chapter 287, RSMo. an employee does not need to show "conclusive evidence" of a need for future medical treatment. Instead, the employee need only show a "reasonable probability" that because of his work-related injuty, future medical treatment will be necessary. Stevens v. Citizens Jyfemorial Healthcare Foundation, 244 S.W.3d 234, 237 (Mo.App. S.D. 2008). In this context, it must be shown that need for future medical care "flows from the accident." Landers v. Ch1ysler Corp., 963 S.W.2d 275 (Mo.App. 1997). Further, the phrase "to cure and relieve" has been construed to mean treatment that "gives comfort even though restoration to soundness is beyond avail." Mathia v. Contract Freighters, Inc. 929 S.W.2d 271,277 (Mo.App. S.D. 1996).

Mr. Duarte has hardware in place in his right shoulder following his two shoulder surgeries. §287.140 RSMo. requires leaving future medical left open when hardware or a prosthetic device is in place. It is reasonably necessary that Mr. Duarte's hardware may need to be removed or replaced in the future. Mr. Duarte's hardware may require further intervention. It is reasonable probable that Mr. Duarte may require medical treatment in the future. Therefore, the credible and most persuasive evidence supports an award of future medical treatment to cure and relieve the effects of the work injury of March 31, 2009. I find and conclude that there is competent and substantial evidence to find that the employer/insurer is ordered to provide Mr. Duarte with future medical treatment for his right shoulder.

III PERMANENT DISABILITY COMPENSATION

The next issue is whether Mr. Duarte sustained any permanent disability as a consequence of his occupational disease while employed with employer, and if so, what the nature and extent of the permanent disability.

In addition, in determining the extent of permanent disability attributable to the employer and/or the Second Injury Fund, the extent of the compensable injury must be determined first. Roller v. The Treasurer of the State of Missouri, 935 S.W.2d, 739,742-743 (Mo. App. 1996). If the compensable injury results in permanent total disability, no further inquiry into Second Injury Fund liability is made. Roller at 743. Since the Second Injury Fund can only have liability if the last in results in permanent partial disability, employee's last injury must be closely evaluated and scrutinized to determine if it alone is enough to result in permanent total disability, thereby eliminating any Second Injuty Fund liability. Roller at 743.

In detennining permanent total disability, the court may weigh several factors, including, employee's age, education, physical condition, work history, job skills, pain, and employee's own opinion, expe1t medical opinions, expe1t vocational opinions, and any histo1y of work following the alleged work accident. Fletcher v. Second Injury Fund, 922 S.W.2d 402, 405 (Mo.App. 2013) (ovennled on other grout1ds). Life factors are not ratable disabilities and are not subject to liability from the Fund. Fletcher, at 405.

Revised Form JI {3197) Page IS

Issued by DIVISION OF WORKEi,._.., COMPENSATION


The question of disability is not purely a medical one. Gonzales v. Butterball, 457 S.W.3d 880, 888 (Mo.App. 2015). In Gonzales, the court, affirming decisions of the LIRC and the Division, found that a significant injmy to the employee's dominant hand was sufficient to render a sixty-seven year old employee, who was a non-English speaking immigrant with a history of working primarily manual labor, to be permanently and totally disabled. Gonzales at 890.

Following the order of scrutiny required in Roller and looking at Mr. Duarte's last injury, a full thickness tear of the right rotator cuff, and the resulting permanent effects of that injmy, I find Mr. Duaite permanently and totally disabled as a result of his last injury alone. Mr. Duaite was very limited in the types of work he could perform when he immigrated to the United States at the age of sixty-three. Fu1ther, his last injury has resulted in significant permanent pain, weakness, limited range of motion, and other restrictions as set forth in this award.

Since the occupational disease claim of March 31, 2009, Mr. Duarte is no longer able to reach overhead or repetitively with his right arm and must limit his lifting to 15 pounds. For an individual who was already only capable of performing manual labor tasks due not to preexisting disabilities but rather due to his age, education, and other life factors, the last injury is sufficient to render him permanently and totally disabled.

Mr. Duaite attempted to return to the employer in 2010, but was turned away because of his restrictions due to his right shoulder injury. Mr. Duarte also attempted to obtain employment through Penmac, but testified that he was not hired "due to [his] shoulder."

The vocational expe1ts in this case all agree that Mr. Duaite was limited in his ability to access the open labor market prior to the last injmy due to life factors that are not preexisting permanent disabilities that would be considered against the Fund. Dr. Volarich found that Mr. Duarte's right shoulder injury and resultant disability is the only condition requiring permanent restrictions at the time that the saw Mr. Duarte in 2014. The restrictions placed ori Mr. Duarte's dominant arm eliminate Mr. Duarte having any transferable skills and his additional life factors prevent him from being retrained for other employment. To the extent necessary, I find the testimony of Phillip Eldred to be credible and persuasive. Mr. Eldred repeatedly and unequivocally opined that Mr. Duarte would not be able to perform any job in the open labor market, and that Mr. Duaite was permanently and totally disabled as a result of the injmy to his right shoulder, in isolation, from the last injury alone, and the employer, not the Fund, is therefore liable for permanent paitial disability benefits.

With the above finding, the question then becomes when Mr. Duarte achieved maximum medical improvement. Candidly, it is unclear from the medical records when Mr. Duarte achieved maximum medical improvement from his work injury of March 31, 2009. It is clear that Mr. Duarte underwent a second surgery on his right shoulder on April 21, 2010, performed by Dr. Lieurance. The last medical record available in evidence from Dr. Lieurance's office was his medical note dated April 29, 2010. While it makes no substantive difference since I have found Mr. Duaite was permanently and totally disabled as a result of the injmy to his right shoulder, in isolation, from the last injmy alone, so as to distinguish the period of temporary total

Re•ised Form) I {3/97) Page 19

Issued by DIVISION OF WORKE1'v COMPENSATION


disability from pennanent total disability, I find and conclude that based upon the medical records admitted into evidence at the hearing, that Mr. Duarte achieved maximum medical improvement April 29, 2010. As such, Mr. Duarte is entitled to past temporary total disability benefits from the employer/insurer for the time period of April 1, 2009, through April 29, 2010, which I calculate to be 56 1/7 weeks, which at Mr. Duarte's compensation rate of $283.21, totals $15,900.22. Based upon the date of maximum medical improvement, I then find that Mr. Duarte is entitled to permanent total disability benefits from the employer/insurer beginning April 30, 2010, at the rate of$283.21 per week for Mr. Duatte's lifetime.

IV LIABILITY OF SECOND INJURY FUND

For the reasons set forth in the preceding Section III, I find the Treasurer of Missouri, as custodian of the Second lnjmy Fund, is not liable for the payment of any permanent partial disability compensation or pe1manent total disability compensation.

V ATTORNEY'S LIEN

The compensation awarded to Mr. Duarte shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of Jennifer Newman, Esquire, for necessary and reasonable legal services rendered to employee.

This award is subject to review and modification as provided b)! law 1 /;

Interest mil be

paid as provided by la~ \ '1 I certify that on 0 \ ~ \ I delivered a copy o the foregoing award to the parties to the case. A complete record of the method of delivel)' and dale of service Jon each party is retained with :ye exe~ award in the Division's case file.

Re\ised Form JI (J/~7)

Andre Administrative Law Judge Division of Workers' Compensation

Pllge 20

issued by the labor and industrial relations commission final award … · 2019-06-13 · final...

Documents