Amber Dockery v Dierbergs Markets Inc.
June 7, 2018
A 64-year old meat cutter employed more than 20 years established her cuff tear arose from repetitive trauma in part from cutting up to 400 slices of meat and cheese during a shift and "continuously" using her arm to cut meat and lift boxes, according to the Commission in a 2-1 award, which reversed a denial of benefits.
The ALJ noted claimant's evolving history of a work related event until after an MRI identified a cuff tear with her shoulder, and she had originally attributed to sleeping on her arm "funny.". The ALJ deferred to the opinion of Dr. Nogalski who found the claimant's condition arose from degenerative changes not impacted by her job duties or any lifting accident. The ALJ noted Dr. Nogalski's expertise as an orthopedic surgeon who currently performs shoulder surgeries, unlike claimant's expert.
The Commission reversed on its de novo assessment of credibility of the experts. It found Dr. Nogalski's opinion was less persuasive because it was based on incomplete factual information about her job duties such as how often she lifted boxes or "the weight of the slicing machine" and his personal observation of meat cutters in stores. Dr. Schlafly, claimant's expert, attributed the cause of her cuff and biceps pathology was from progressive tearing.
The Commission awarded more than $51,000 in bills, 12 and 4/7 weeks in TTD and PPD of 35%, noting the absence of any PPD opinion offered by the employer. Dr. Schlafly rated the shoulder at 40% PPD.
The new commissioner Forrester wrote a short dissent indicating he would have affirmed the original award without further explanation.
ALJ Keaveny
Atty: Hoener, Kowert
Experts: Schlafly, Nogalski
Treater: Sigmund
