Comparato v. Lyn Flex W.

611 S.W.3d 913

Constance COMPARATO, Appellant,

v.LYN FLEX WEST, et al., Respondent.

No. ED 108870

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: November 3, 2020

FOR APPELLANT: Ronald D. Edelman, 9510 Gravois Road, St. Louis, Missouri 63123.

FOR RESPONDENT: John D. Dietrick, Holtkamp, Liese, Schultz & Kafoury, P.C., 217 North 10^th Street, Suite 400, St. Louis, Missouri 63101, David L. McCain, Jr., PO Box 899, Jefferson City, Missouri 65102, Deidre F. Wood, PO Box 899, Jefferson City, Missouri 65102.

Philip M. Hess, Judge

Introduction

Constance Comparato ("Claimant") appeals the Labor and Industrial Relations Commission's ("Commission") decision affirming the Administrative Law Judge's ("ALJ") denial of Workers’ Compensation benefits for Claimant's left shoulder injury. Claimant was a factory worker for Lyn Flex-West ("Employer"). Claimant reported pain in her shoulder to Employer for the first time on March 4, 2013. Claimant underwent shoulder surgery on November 21, 2013.

Following a hearing on July 9, 2019, the ALJ denied Claimant's claim, finding Claimant failed to prove her shoulder injury was caused by her work for Employer. The Commission affirmed the ALJ's decision by a 2-1 vote and provided a supplemental written opinion. The dissenting Commissioner would have reversed the ALJ's judgment.

On appeal, Claimant argues the Commission erred in denying benefits to Claimant for three reasons. In Point I, Claimant argues the Commission erred by finding she did not meet her burden of proof she sustained an occupational disease as the result of her work for Employer because "the Commission formed its own medical opinion of causation and added an element of proof to causation." In Point II, Claimant argues the Commission erred in finding Doctor Strege's testimony more credible than Doctor Poetz's opinion and claims Doctor Strege's opinion is not supported by competent and substantial evidence. In Point III, Claimant argues the Commission erred in finding Claimant could not recover benefits from Employer and the Second Injury Fund ("SIF") (together "Respondents") because the Commission's award was against the overwhelming weight of the evidence.

Point I is denied because we review the decision of the Commission not the ALJ. The Commission independently weighed competing expert causation testimony, it did not increase Claimant's burden of proof. Points II and III are denied because Claimant failed to follow the mandatory analytical formula required to establish the Commission's findings were unsupported by substantial and competent evidence. Further, Claimant's arguments would have failed even if she followed the formula because the Commission's findings were supported by substantial and competent evidence. We affirm.

Factual and Procedural History

Claimant began working for Employer in 1998 and worked full-time until her alleged injury in 2013. Claimant's job was to produce and assemble shoe parts. Her duties consisted of operating several machines. Some machines required Claimant to stand, while others required her to sit. Claimant is 5 feet, 2 inches tall and sometimes had to stand on a skid to have enough height to work. Most of Claimant's tasks involved repetitive motion and sometimes required her to work at shoulder-height or above. Claimant took turns operating each machine with her coworkers depending on where she was needed from day to day.

Claimant asserts seven machines contributed to her shoulder injury. She operated a laminating machine, which required her to repeatedly lift, push, and pull at shoulder level while standing. She claims the machine would sometimes vibrate or jerk, which put additional stress on her arms. Claimant operated a hot glue machine, which required her to continuously move her arms while seated. Claimant operated a stamping machine, which required her to rapidly stamp sizes into shoe soles with her left hand. She testified operating the stamper caused significant arm pain. Claimant operated an embossing machine, which required her to reach up and push knobs above shoulder-level. Claimant also operated a skiving machine, which required her to quickly push shoe components into the machine with her left hand. Claimant operated a cutting machine, which required her to operate the knobs with her arms continuously above shoulder-height. Finally, Claimant used a six-pound spray gun, which she operated at shoulder-height or above. She testified the spray gun was the most painful task for her shoulder.

Claimant first sought treatment for her shoulder on March 4, 2013. On July 15, 2013, Dr. Christian Linz diagnosed Claimant with degenerative osteolysis of the acromioclavicular joint and impingement syndrome. Claimant was treated with a cortisone injection in her left shoulder. Dr. David Strege examined Claimant on Employer's behalf on August 7, 2013. Dr. Strege diagnosed Claimant with rotator cuff tendinitis and impingement syndrome but did not believe further treatment was required. Dr. Strege also did not believe Claimant's work duties were the prevailing factor or cause of her injury, noting Claimant's movements at work, while repetitive, were generally not strenuous.

On October 7, 2013 Claimant returned to Dr. Linz. Dr. Linz diagnosed Claimant with left shoulder impingement syndrome with acromioclavicular syndrome, acromioclavicular joint osteoarthritis, and rotator cuff tendinitis /partial thickness tearing. An MRI revealed Claimant had a torn supraspinatus muscle and infraspinatus tendon, with partial tears in the distal aspect of the supraspinatus tendon and deltoid muscle. Claimant also had degenerative changes in the acromioclavicular joint, glenohumeral joint, and greater tuberosity. Dr. Linz performed surgery on Claimant's shoulder on November 21, 2013. Claimant underwent physical therapy until February 3, 2014 and returned to work on March 3, 2014.

Upon returning to work, Claimant had to reduce her hours and sit more frequently than before her injury to manage her shoulder pain. On May 8, 2014 Dr. Robert Poetz examined Claimant and concluded her shoulder had 35% Permanent Partial Disability ("PPD") after her surgical repair. Dr. Poetz opined the pace of the job and excessive repetitive motion exposed Claimant's arms to an abnormal level of stress and were the substantial and prevailing factor causing the injury. Noting Claimant's preexisting physical conditions,¹ Dr. Poetz imposed permanent restrictions on Claimant's ability to push, pull, lift, use her upper extremities overhead, excessively or repetitively use her upper extremities, or use equipment that vibrates, impacts the upper extremities, or creates torque. These restrictions effectively precluded Claimant from continuing to work in her position with Employer.

Dr. Strege reexamined Claimant on August 24, 2014. He agreed Dr. Linz properly performed surgery on Claimant's shoulder and concluded Claimant could return to work with Employer. Doctors Poetz and Strege disagreed about the cause of Claimant's injury. Dr. Poetz opined Claimant's activities as a factory worker subjected her shoulder to excessive strain beyond what most people experience in their day-to-day lives. Dr. Strege noted Claimant's shoulder condition is normal in individuals around Claimant's age and testified her condition likely was caused by regular activity over time rather than a workplace injury.

The ALJ heard Claimant's claim for compensation on July 9, 2019 and issued an award denying benefits on September 12, 2019. Claimant was sixty-eight years old when the hearing was held. The ALJ found Claimant did not prove she had an occupational disease resulting from her work for Employer. The ALJ also found Claimant failed to specify what repetitive motion caused her shoulder injury or identify the type and duration of activity responsible for her injury.

Because Claimant was found not to have an occupational disease, the ALJ concluded Respondents were not liable to her.

Claimant appealed the ALJ's award to the Commission. On March 27, 2020 the Commission issued its Final Award, affirming the ALJ. The Commission modified the ALJ's award, specifically finding Dr. Strege's opinion more credible than Dr. Poetz's opinion. This appeal follows.

Claimant raises three points on appeal. In Point I, Claimant argues the Commission acted in excess of its powers and erred as a matter of law by finding Claimant did not meet her burden of proof to establish she sustained an occupational disease from her work for Employer. Claimant argues the Commission improperly formed its own medical opinion of causation and added an element of proof to the causation standard. In Point II, Claimant argues the Commission erred by finding Dr. Strege more credible than Dr. Poetz. Claimant argues the Commission could not have found Dr. Strege's opinion more credible because it was inconsistent and incomplete. Finally, Claimant argues the Commission erred in its conclusion that Claimant is ineligible for compensation because the Final Award is not supported by substantial and competent evidence.

Standard of Review

This Court's review of the Commission's Final Award is governed by section 287.495.1 of the Missouri Revised Statutes.² We review only questions of law and may only modify, reverse, remand, or set aside an award if (1) the Commission acted without or in excess of its powers, (2) the award was procured by fraud, (3) the facts found by the Commission do not support the award, or (4) there was not sufficient competent evidence in the record to warrant making the award. Id. To determine whether the Commission's factual determinations were supported by sufficient competent evidence, we decide "whether, considering the whole record, there is sufficient competent and substantial evidence to support the award." Hampton v. Big Boy Steel Erection , 121 S.W.3d 220, 223 (Mo. banc 2003).

The Commission's factual findings are binding and conclusive only to the extent they are supported...