Goerlich v. Tpf, Inc.
| Decision Date | 17 September 2002 |
| Docket Number | No. ED 80563.,ED 80563. |
| Citation | 85 S.W.3d 724 |
| Parties | Reimund GOERLICH, Respondent, v. TPF, INC. & Tony Prince Carpet Co., Appellants. |
| Court | Missouri Court of Appeals |
George T. Floros, Mary Anne Lindsey, co-counsel, Evans & Dixon, L.L.C., St. Louis, MO, for appellants.
B. Michael Korte, Korte & Smallwood, St. Louis, MO, for respondent.
TPF, Inc. & Tony Price Carpet Co. appeal the Labor and Industrial Relations Commission's final award, which reversed the ALJ's decision and awarded compensation to Reimund Goerlich. The Commission found that an accident arising out of and in the course of employment caused injury to Goerlich's shoulder. The Commission awarded Goerlich past medical expenses temporary total disability and permanent partial disability.
Goerlich worked for TPF as a floor layer. In 1997, Goerlich was refurbishing a dormitory floor on the 9:00 p.m. to 5:30 a.m. shift. Between 4:00 and 4:30 a.m., Goerlich was applying a conditioner to the floor underneath a radiator. He was on his hands and knees, "sideways with" or "parallel" to the radiator. He used his left hand to support his body as he crouched down and, with a rag in his right hand, stretched his right arm out sideways from his right side to apply the conditioner under the radiator. Goerlich heard a popping sound and immediately felt pain and weakness in his right shoulder. He described the pain as sharp and throbbing and stated that it felt like his right arm was out of joint. On a scale of zero to ten, he rated the pain an eight. Goerlich had difficulty moving his right arm in certain positions and decided to leave work early. The symptoms worsened while he cleaned up his work area and put away his tools.
Goerlich said the pain reminded him of the pain he experienced when he dislocated his right shoulder in 1983. He felt that pain immediately too, but waited about two hours before he went to the emergency room. Goerlich testified that this was his only other shoulder injury, besides normal soreness from everyday working conditions as a floor layer.
Goerlich did not immediately seek medical attention for the injury in 1997 either, explaining that he did not know the severity of the injury at the time he left work. So he drove home and took some aspirin. The pain eased, and Goerlich thought it might be just more everyday soreness. He tried to sleep, but could not. Goerlich realized that the problem was getting worse and decided to have his father take him to the emergency room around 10:00 a.m.
Goerlich told emergency room personnel that his shoulder bothered him when he came home from work and that he had tried to sleep but was unable to do so due to the increasing pain. The history noted on the emergency room records states that he dislocated his shoulder while sleeping — that he awoke to a severe pain after turning over in his sleep. The records also indicated that Goerlich had dislocated his shoulder four times before. Goerlich testified that he did not recall telling anyone that he had dislocated his right shoulder while he was asleep, or that he had dislocated his shoulder four times. He admitted that he did not give the details of what happened at work, explaining that he did not know that it was necessary to tell them how the injury occurred. After three attempts, the shoulder was reset.
Goerlich completed an injury report, and TPF referred him to a doctor. The doctor gave Goerlich pain medicine and referred him to Dr. William Stetson, an orthopedist. Dr. Stetson recommended physical therapy and put Goerlich on light duty. Dr. Stetson performed arthroscopic stabilization surgery on the shoulder. The surgery helped, but Goerlich testified that he still experiences intermittent soreness. After a second course of physical therapy, Dr. Stetson released him to regular duty. Goerlich has been working full time ever since and has not lost any more time from work due to the shoulder.
In 1999, Dr. Shawn Berkin, a family practitioner, examined Goerlich at his attorney's request. He said that Goerlich told him that he reached under the radiator, his shoulder popped and dislocated and he went to the emergency room. Dr. Berkin did not know what position Goerlich was in when he reached under the radiator, but understood that his arm was "in an extended or abducted fashion[,] which is a reasonable mechanism to cause that type of injury." Dr. Berkin diagnosed a dislocated shoulder with recurrent instability and a tear of the glenoid labrum in the right shoulder. Based on his examination of Goerlich and a review of his medical records, he concluded that the incident at work was the substantial factor causing this injury. He rated Goerlich's injury as a 40% permanent partial disability — 10% due to pre-existing conditions, and 30% due to the 1997 work injury.
Dr. Berkin did not know before his deposition that Goerlich went home and tried to sleep before going to the emergency room or that his medical history indicated multiple dislocations in the past. After being asked to assume these facts, Dr. Berkin testified that "[i]t would appear that there are explanations other than what the patient told me that may have caused his problems," but that he still stood by his opinion that the work incident was a substantial factor in causing the shoulder injury. At most, Dr. Berkin speculated that perhaps the maneuver at work loosened the shoulder and then something Goerlich did in his sleep "carried it over," but it could not have dislocated from the sleeping alone. He agreed that it was "more than likely" that the shoulder would not have been in the same condition when Goerlich left work as it was at the time he arrived in the emergency room. And, even assuming that Goerlich had a chronic problem with dislocations and that something after the work incident may have happened, he felt comfortable assigning 30% of Goerlich's disability to the work injury.
In 2000, Dr. Michael Nogalski, an orthopedic physician, examined Goerlich at TPF's request. Goerlich described and demonstrated the movements he made at work while reaching under the radiator, which the doctor recounted as "an internal rotation and forward flexion maneuver with his arm and shoulder with possibly slight abduction." Forward flexion is "an arm held straight out in front of the body with the tip of the elbow up at about shoulder level and pointing straight forward." At first, Dr. Nogalski could not recall if Goerlich said he was facing the radiator or was along side of it, but he believed that "more of his body chest would be facing the face of that radiator surface that he had to go underneath rather than facing away to the side or perpendicular to the area."
He concluded that it was impossible that this type of maneuver could cause the type of dislocation Goerlich suffered. Dr. Nogalski also believed that the delay in seeking treatment "did not really make sense at all," because he would expect "most people" in that type of pain to go to the emergency room right away. Dr. Nogalski explained that he had seen patients who dislocated a shoulder in their sleep, but that is highly unlikely unless the shoulder is already grossly unstable. Nonetheless, he believed that here it was more likely that Goerlich's dislocation occurred in his sleep and not at work. Dr. Nogalski assigned a 10% permanent partial disability to Goerlich's shoulder injury-4% of which pre-existed the 1997 injury.
Goerlich filed a claim for workers compensation, alleging a right shoulder and upper extremity injury. TPF denied that Goerlich sustained an accidental injury arising out of and in the course of his employment. At the hearing before the ALJ, Goerlich testified live, and the depositions of Dr. Berkin and Dr. Nogalski were admitted, along with the medical records of Dr. Stetson, the emergency room and other medical providers. Goerlich introduced unpaid medical bills totaling $18,889.83. The ALJ found that Goerlich suffered an accident arising out of and in the course of his employment and that he had a 17% permanent partial disability attributable to the 1997 shoulder injury. But he did not award any compensation because Goerlich failed to establish that his work activities were a substantial factor causing the injury. The ALJ relied on the notes in the emergency room records and Dr. Nogalski's testimony in concluding that Goerlich dislocated his shoulder in his sleep at home.
Goerlich and TPF appealed to the Commission. The Commission agreed that Goerlich suffered an accident arising out of and in the course of employment, but also found that the accident caused the injury. The Commission relied on the testimony of Dr. Berkin and Goerlich. The Commission agreed with the ALJ's determination of 17% permanent partial disability and also awarded Goerlich temporary disability benefits and $18,889.83 for past medical expenses. TPF appeals.
On appeal from a decision in a workers compensation case, we "shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the award was procured by fraud;
(3) That the facts found by the commission do not support the award;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award."
Section 287.495.1 RSMo 2000.1
Where the Commission has reversed the ALJ, we conduct this review in two steps. In the first step, we examine Davis v. Research...
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