Court of Appeals of Missouri, Western District, Third Division
FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
Karen King Mitchell, Presiding Judge, Victor C. Howard, Judge
and Gary D. Witt, Judge.
C. HOWARD, JUDGE.
Maryville R-II School District (School District) appeals the
judgment of the Labor and Industrial Relations Commission
(Commission). It complains on appeal that the
Commission's decision is against the weight of the
evidence. It also says the Second Injury Fund (the Fund) is
responsible for some portion of the compensation.
judgment is affirmed.
Payton is a 58 year old high school graduate with training
and certification in heating, ventilation, and air
conditioning mechanical work (HVAC). He was hired by the
School District on April 21, 2004. In 2014, he held the title
of Assistant Supervisor of Building and Grounds. The work
required the ability to lift 50 pounds or more.
case involves a history of injuries. Payton had arthroscopic
surgery on his left knee on March 23, 2009 and on his right
knee on December 6, 2010. Payton received Synvisc injections
in his left knee in 2011. He had rotator cuff surgery on his
right shoulder on November 7, 2011. Following each of these
procedures, Payton returned to his regular, full duty work
with no restrictions.
January 30, 2014, Payton was evaluated by Effie Martinez, a
nurse practitioner. At that visit, Payton reported left
shoulder pain, especially in the evenings. The pain was a 0
to 1 on a 0 to 10 pain scale. The pain was described as
"aching and throbbing." A left shoulder x-ray was
negative for fracture, dislocation, or acute bony
abnormality. He was diagnosed with chronic left shoulder
pain. Payton continued working.
March 4, 2014, Payton experienced left shoulder pain of 0 to
1 after lifting a 20-25 pound plastic tote of Christmas
ornaments. He scheduled another appointment with Ms. Martinez
for March 13, 2014. He continued working his full duty job.
March 10, 2014, Payton was assisting a coworker with the
assembly of a soccer goal. He estimated the goal weighed at
least 200 pounds. As he lifted the goal upright near the top
of his head, he felt and heard a loud pop in his left
shoulder and experienced sudden, severe pain as if a knife
had been shoved into his left shoulder.
reported the injury that day, and the School District sent
him to the St. Francis Hospital Emergency Room for treatment.
The Report of Injury indicates the Initial Treatment was an
"Emergency Case." At the hospital, Payton recounted
the incident with the soccer goal and described his pain as
"cramping and aching." His pain was documented as a
5 out of 10 severity. His physical examination was negative
for numbness, muscle weakness, loss of sensation, or
tingling. X-rays were negative for an acute fracture or
dislocation. The impression was mild osteoarthritis. Payton
was prescribed pain medication, placed in a sling, and
advised to follow up with Dr. Thomas DiStefano.
saw Dr. DiStefano on March 11, 2014. Dr. DiStefano is a board
certified orthopaedic surgeon. Payton reported to him the
accident with the soccer goal. He also reported the prior
incident where he bent over to pick up a tote and felt a
"pop" in his left shoulder with mild pain. During
his examination by Dr. DiStefano, Payton denied numbness or
tingling. He rated his pain as a 7 or 8 on a scale of 0 to 10
with use. Based on the medical history and physical exam, Dr.
DiStefano stated: "I do not feel like the incident as
described by the patient on March 10, 2014 is the prevailing
cause of his current condition." Dr. Stefano later
reiterated this opinion in a report dated June 1, 2015. Based
on this opinion, the School District denied coverage for the
treatment under worker's compensation.
then sought treatment on his own from Dr. Thomas Atteberry.
Because he saw Dr. Atteberry on March 12, 2014, he did not
keep the March 13, 2014 appointment with Ms. Martinez. On
April 8, 2014, he underwent an MRI which revealed a full
rotator cuff tear in the left shoulder. Dr. Atteberry
surgically repaired the torn rotator cuff on May 12, 2014.
symptoms persisted and he underwent a second MRI on September
3, 2014. That MRI revealed a recurrent full thickness tear of
the left rotator cuff. On September 17, 2014, Dr. Atteberry
advised that surgical repair would be difficult given the
severe retraction on the MRI. Payton chose not to pursue
Atteberry released Payton from treatment with a five pound
lifting restriction which the School District could not
accommodate. Payton's employment was terminated on
September 25, 2014. He has not been employed in the open
labor market since.
filed a Claim for Compensation with the Missouri Department
of Labor and Industrial Relations Division of Workers'
Compensation. The case proceeded to a hearing before an
Administrative Law Judge (ALJ). A significant amount of
evidence was presented at the hearing.
was evaluated by Dr. P. Brent Koprivica, who is board
certified in Occupational Medicine. He is a Fellow in the
American Academy of Disability Evaluating Physicians and is a
certified Independent Medical Examiner by the American Board
of Independent Medical Examiners. Dr. Koprivica found the
March 10, 2014 soccer goal accident to be the prevailing
factor in Payton's left shoulder injury and resulting
disability. He opined that there was no pre-existing
disability of the left shoulder before March 10, 2014. Dr.
Koprivica found Payton to be permanently and totally disabled
due to the compensable March 10, 2014 left shoulder injury.
He concluded the following work restrictions were necessary:
no use of the left upper extremity vocationally except with
arm adducted to his side on a very limited basis as a support
only; no lifting at all with the left arm; and the need to
recline and take naps during the day on an unpredictable but
frequent basis. Dr. Koprivica found that the need to lie down
because of left shoulder pain resulted from the March 10,
2014 injury. He determined that Payton is not medically
reliably able to work 8 hours per day, 5 days per week, and
52 weeks per year at any substantial gainful employment. Dr.
Koprivica opined that he would consider the permanent total
disability to arise based on the restrictions necessitated by
the March 10, 2014 work injury. He stated, "I believe
the left shoulder alone is totally disabling."
Dreiling, a vocational expert, found that Payton was
permanently and totally disabled. He opined that Payton's
unemployability was due to the March 10, 2014 accident, given
Dr. Koprivica's restrictions. Mr. Dreiling concurred with
Dr. Koprivica's opinion that Payton is unemployable
because of his need to lie down 3-4 times per day as a result
of the March 10, 2014 accident. Mr. Dreiling concluded that
the March 10, 2014 accident in isolation rendered Payton
Cordray, the School District's vocational expert,
testified that there are a limited number of jobs in the open
labor market that Payton is able to perform. But, if Payton
is not able to secure one of those jobs, then Payton's
unemployability was due to the March 10, 2014 injury in
combination with the prior bilateral knee and right shoulder
conditions. On cross examination, Mr. Cordray agreed that the
restrictions from Dr. Koprivica, which resulted from the
March 10, 2014 accident, prevented Payton from competing in
the open labor market.
lay witnesses also testified at trial. These witnesses
included Payton's brother and wife as well as two others.
The witnesses corroborated Payton's testimony with regard
to his behavior and physical abilities before and after March
10, 2014. Specifically, they gave examples of the physical
activities Payton engaged in before March 10, 2014 and his
inability to continue to do so after March 10, 2014. Both
Payton's wife and brother corroborates his need to lie
down during the day after the March 10, 2014 accident.
found in part that:
I believe [Payton's] testimony that when he got the goal
to the top of his head, he heard a loud pop and felt
excruciating pain in his left shoulder.
On March 4, 2014, [Payton] lifted a tote at home that weighed
between 20 and 25 pounds. His pain was a 0 to 1 on a scale of
0 to 10. He did not go to the Emergency Room at that time. He
did not schedule an appointment to see a doctor. He did
schedule an appointment to see a nurse on March 14, 2014.
[Payton] worked full time without restrictions prior to
… March 10, 2014. He regularly lifted 50 pounds at
work. He went to work on March 5, 2014 and lifted a
refrigerator tank at work on March 5, 2014 that weighed
between 60 and 70 pounds. He was able to lift that by
himself. The lifting of the refrigerator tank did not cause
any more shoulder pain. [Payton] worked eight hours on March
5, March 6, and March 7, 2014. March 7 was a Friday. [Payton]
did not see a doctor or go to the Emergency Room over the
weekend of March 8 or 9, 2014. An MRI was not done between
March 4 and March 10, 2014.
Dr. Koprivica testified the March 10, 2014 incident resulted
in a massive rotator cuff tear on the left…. Dr.
Koprivica did not believe [Payton] would have been able to
carry and assemble the soccer goal parts, and lift the
assembled soccer goal weighing 200 pounds with a co-worker if
he had the preexisting condition.
I find Dr. Koprivica's explanations on his opinions
regarding causation are credible and persuasive.
It is Dr. DiStefano's opinion that the March 10, 2014
accident is not the prevailing factor in the cause of
[Payton's] current condition and left shoulder injury. I
find this opinion not credible or persuasive. Dr. DiStefano
did not explain the basis of his opinion. He did not identify
the records he reviewed. His opinion is inconsistent with the
history of [Payton's] March 10, 2014 injury.
I find the opinions of Dr. Koprivica are more persuasive that
the opinions of Dr. DiStefano regarding the cause of
[Payton's] left ...