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Maryville R-II School District v. Payton

Court of Appeals of Missouri, Western District, Third Division

April 11, 2017



          Before Karen King Mitchell, Presiding Judge, Victor C. Howard, Judge and Gary D. Witt, Judge.


         The 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.

         The judgment is affirmed.


         Daniel 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.

         This 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.

         On 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.

         On 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.

         On 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.

         Payton 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.

         Payton 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.

         Payton 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.

         Payton's 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 further surgery.

         Dr. 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.

         Payton 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.[1]

         Payton 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."

         Michael 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 totally disabled.

         Terry 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.

         Several 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.

         The ALJ found[2] 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 ...

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