Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge) Injury No.: 18-057914 Employee: Jeannie E Harper Employer: Springfield Rehab and Health Care Center/ NHC Health Insurer: Premier Group Insurance Company Corvel Enterprise Company, Inc. (TPA) Additional Party: Treasurer of Missouri as Custodian of the Second Injury Fund This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. On February 10, 2021, the administrative law judge (ALJ) issued an amended award allowing compensation in this workers' compensation case. Employer/insurer filed a timely application for review with the Labor and Industrial Relations Commission (Commission). 1 On July 19, 2021, after all parties filed their briefs, employer/insurer filed a Request for Judicial Notice (Judicial Notice Request). Employer/insurer asked the Commission to "take judicial notice of all prior workers' compensation claims and settlements involving the above-named Claimant, Jeannie Harper (DOB 1-11-51, SSN xxx-xx-8510)." The Employee and the Second Injury Fund each filed Objections to and Suggestions in Opposition to the employer/insurer's Judicial Notice Request. We construe employer/insurer's Judicial Notice Request as a motion to submit additional evidence to the Commission. Commission Rule 8 CSR 20-3.030(2) governs the submission of additional evidence and provides as follows: (2) Additional Evidence. (A) After an application for review has been filed with the commission, any interested party may file a motion to submit additional evidence to the commission. The hearing of additional evidence by the commission shall not be granted except upon the ground of newly discovered evidence which with reasonable diligence could not have been produced at the hearing before the administrative law judge. The motion to submit additional evidence shall set out specifically and in detail— 1. The nature and substance of the newly discovered evidence; 2. Names of witnesses to be produced; 3. Nature of the exhibits to be introduced; 4. Full and accurate statement of the reason the testimony or exhibits reasonably could not have been discovered or produced at the hearing before the administrative law judge; 5. Newly discovered medical evidence shall be supported by a medical report signed by the doctor and attached to the petition, 1 Employer/insurer’s application for review incorrectly references the date of the ALJ’s amended award as February 18, 2021. This typographical error does not affect our ability to consider employer/insurer’s application for review of the ALJ’s award.
Transcript
Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge)
Injury No.: 18-057914 Employee: Jeannie E Harper Employer: Springfield Rehab and Health Care Center/ NHC Health Insurer: Premier Group Insurance Company Corvel Enterprise Company, Inc. (TPA) Additional Party: Treasurer of Missouri as Custodian of the Second Injury Fund This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. On February 10, 2021, the administrative law judge (ALJ) issued an amended award allowing compensation in this workers' compensation case. Employer/insurer filed a timely application for review with the Labor and Industrial Relations Commission (Commission).1 On July 19, 2021, after all parties filed their briefs, employer/insurer filed a Request for Judicial Notice (Judicial Notice Request). Employer/insurer asked the Commission to "take judicial notice of all prior workers' compensation claims and settlements involving the above-named Claimant, Jeannie Harper (DOB 1-11-51, SSN xxx-xx-8510)." The Employee and the Second Injury Fund each filed Objections to and Suggestions in Opposition to the employer/insurer's Judicial Notice Request. We construe employer/insurer's Judicial Notice Request as a motion to submit additional evidence to the Commission. Commission Rule 8 CSR 20-3.030(2) governs the submission of additional evidence and provides as follows:
(2) Additional Evidence. (A) After an application for review has been filed with the commission,
any interested party may file a motion to submit additional evidence to the commission. The hearing of additional evidence by the commission shall not be granted except upon the ground of newly discovered evidence which with reasonable diligence could not have been produced at the hearing before the administrative law judge. The motion to submit additional evidence shall set out specifically and in detail—
1. The nature and substance of the newly discovered evidence; 2. Names of witnesses to be produced; 3. Nature of the exhibits to be introduced; 4. Full and accurate statement of the reason the testimony or exhibits reasonably could not have been discovered or produced at the hearing before the administrative law judge; 5. Newly discovered medical evidence shall be supported by a medical report signed by the doctor and attached to the petition,
1 Employer/insurer’s application for review incorrectly references the date of the ALJ’s amended award as February 18, 2021. This typographical error does not affect our ability to consider employer/insurer’s application for review of the ALJ’s award.
Injury No.: 18-057914 Employee: Jeannie E Harper
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shall contain a synopsis of the doctor's opinion, basis for the opinion and the reason for not submitting same at the hearing before the administrative law judge; and 6. Tender of merely cumulative evidence or additional medical examinations does not constitute a valid ground for the admission of additional evidence by the commission.
(B) The commission shall consider the motion to submit additional evidence and any answer of opposing parties without oral argument of the parties and enter an order either granting or denying the motion. If the motion is granted, the opposing party(ies) shall be permitted to present rebuttal evidence. As a matter of policy, the commission is opposed to the submission of additional evidence except where it furthers the interests of justice. Therefore, all available evidence shall be introduced at the hearing before the administrative law judge.
Employer/Insurer does not claim it could not have produced the records referenced in its Judicial Notice Request at the time of hearing. Nor does employer/insurer assert that it newly discovered this alleged evidence. Employer/insurer fails to specifically describe the records broadly referenced in its Judicial Notice Request. For these reasons, we deny employer/insurer's Judicial Notice Request for failure to comply with Commission Rule 8 CSR 20-3.030(2)
We now address the merits of employer/insurer's application for review. Having reviewed the evidence, read the briefs, and considered the whole record, we find that the award of the ALJ allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the ALJ's award and decision. Decision We deny employer/insurer's Request for Judicial Notice. We affirm and adopt the February 10, 2021, award and decision of Administrative Law Judge Victorine R. Mahon, which we attach and incorporate herein. The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable. Any past due compensation shall bear interest as provided by law.
Injury No.: 18-057914 Employee: Jeannie E Harper
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Given at Jefferson City, State of Missouri, and this 13th day of September 2021. LABOR AND INDUSTRIAL RELATIONS COMMISSION Robert W. Cornejo, Chairman DISSENTING OPINION FILED Reid K. Forrester, Member Shalonn K. Curls, Member Attest: Secretary
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Injury No.: 18-057914 Employee: Jeannie E Harper
DISSENTING OPINION
I have read the administrative law judge's award, the employer/insurer's application for review, the briefs filed by the parties, employer/insurer's Request for Judicial Notice, and other parties' objections to and suggestions in opposition thereto. I concur with the majority's denial of the employer/insurer's Request for Judicial Notice. However, based on my review of the evidence and my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I disagree with the majority's decision to adopt the conclusions of law and award as rendered by the administrative law judge (ALJ). Employee's pushing of a wheeled cart one to two feet against the wall did not constitute a compensable accident under § 287.020.2 RSMo because it was not "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence that produced at the time objective symptoms of an injury caused by a specific event during a single work shift [emphasis added]" as the statute requires. Employee did not slip, trip or fall. Employee consistently testified that she never felt the immediate onset of pain or discomfort after moving the cart, but that "something developed later in her shift when she was walking. Based both on employee's deposition and hearing testimony it is uncontroverted that she did not suffer any traumatic event. Employee merely rolled a cart one to two feet against the wall and went about her business. She could not identify any specific event because she admitted that lifting and transferring patients throughout her shift that day produced no low back pain or discomfort. The ALJ erroneously awarded lifetime weekly benefits based on speculation that the cart event was an "unusual strain." In response to her own attorney's question, employee testified, "Yes, I just leaned against it [the cart], that's the last thing I can remember doing, but I did nurse work that night so it could have been anything [emphasis added]."2 Tr. 118. Employee admitted to lifting and assisting patients to and from the toilet, as well as in and out of wheelchairs and did not experience any pain, discomfort or injury from those activities after the cart-pushing event. In the absence of a traumatic event or unusual strain, employee proves only an unknown or idiopathic onset of discomfort. Using the "more likely than not" standard, employee sustained a nonspecific, uncertain, triggering or precipitating event, which the Missouri Workers' Compensation Law specifically deems not compensable. Section 287.020.3.(2) RSMo. Furthermore, the Law's definition of "injury" requires proof of violence to the physical structure of the body. Section 287.020.3(5) RSMo. The ALJ determined there was no traumatic injury. Based on everyday common experience, the pushing of a wheeled cart one to two feet without evidence of any obstruction or commensurate trauma does not rise to the level of "violence" to the physical structure of the body. Employee testified the event produced no pain, and she considered it a minor or "small" thing. Employee further acknowledged that she didn't miss a step in continuing her duties. The ALJ struggled with the facts in trying to equate the symptoms described at trial as a "pull" sensation to represent objective signs of "injury." This proposition fails because it is uncontroverted that the onset of employee's symptoms began later, while walking. Employee's alleged low back pain was not even experienced upon lifting and transferring patients. The ALJ based her award on a description of a "pull" that Dr. Brent Koprivica concluded was more than a soft tissue injury and who added a psychological component that was not plead or proven by medical expert testimony. Dr. Koprivica's opinion must be disregarded. 1 Transcript, 118.
Injury No.: 18-057914 Employee: Jeannie E Harper
- 2 - The expert opinions regarding causation as to the onset and nature of symptoms of pain and discomfort were inconsistent and conflicting. Dr. Russell Cantrell concluded there was no evidence of trauma or injury from moving the cart. The law provides that "objective" medical findings shall prevail over subjective medical findings. Section 287.190.6.(2). Since all the medical experts uniformly treated subjective presentations of low back pain, without objective diagnostic or clinical evidence of any work injury, employee's claim remains non-compensable. The most logical inference, supported by the employee's testimony, is that merely walking while at work aggravated or precipitated her preexisting, chronic low back condition, consistent with her 2013 post-surgery rehabilitation, relearning to walk, and Dr. Laura Kresta's ordering a handicapped parking plate in 2017. The employee failed to prove by convincing evidence that pushing a cart one to two feet without any evidence of trauma was the prevailing factor causing any injury or that it did not come from a hazard or risk unrelated to the employment to which employee would have been equally exposed outside of and unrelated to her employment in normal non-employment life. Even assuming a compensable accident occurred employee's testimony, actions, and the medical evidence establish that little if any residual permanent partial disability (PPD) resulted from a minor "pull." The alleged event did not cause employee to miss time from work for over four months at which time she voluntarily retired at age sixty-eight. Employee had walking, stamina, and occasional flare-ups of low back pain both before and after returning to work for employer. Her injury did not result in a change in shift, a change in work hours, or a change in duties. Employee's actions undermine Dr. Koprivica's theory that the work event caused preexisting, structural changes in her back at the time that became disabling. If this were an accurate medical extrapolation based on subjective presentations, employee would have developed immediate pain generators and been unable to work much closer in time to her alleged injury. Dr. Cantrell identified preexisting spondylolisthesis and degenerative disk disease and ongoing cervical myelopathy, none of which was work related. The treating and evaluating physician records, reports, and testimony address and treat the same subjective presentations independent of direct trauma associated with any work event. Employee's subjective symptoms presented at trial included the back, but also neck, arms, shoulders, and lower extremities. These symptoms represent the same intermittent, chronic pain syndrome documented after employee's 2013 surgery. They are unrelated to any event on June 22, 2018. None of the findings and conclusions of Dr. Koprivica are timely or accurate based on employee's work regimen and dedication. The employee simply decided to retire. The ALJ concluded that the employee reached maximum medical improvement (MMI) on August 22, 2018. This MMI date, while continuing to work full duty is consistent with a minor injury. The ALJ and medical experts cited psychological components that inserted non-work-related collateral issues not plead in employee's claim and not the employer/insurer's responsibility. Even assuming a compensable back strain, employee should only be awarded PPD consistent with employee who suffer similar soft tissue low back strains that do not miss time from work for over four months and continue to work full duty with overtime/double shift work. EE should receive between 1-7% of the body as a whole, if any PPD at all. The ALJ further erred in ordering the employer/insurer to be responsible for future medical treatment to cure and relieve the effects of a June 22, 2018, work injury. The ALJ's award of future medical to "cure and relieve" unspecified pain symptoms arbitrarily attributed to a work
Injury No.: 18-057914 Employee: Jeannie E Harper
- 3 - injury that did not result in any lost time from work, superimposed on preexisting degenerative conditions, along with employee's advanced age, is purely based on speculation. The ALJ properly concluded that employee reached MMI in a short period, on August 22, 2018, following a soft tissue "pull" resulting in de minimis PPD. There is insufficient competent medical evidence based on a reasonable degree of medical and scientific diagnostic proof and objective clinical findings upon which to order future medical care as directly causally related to and necessitated by an isolated muscle-pulling event on June 22, 2018. For all of the above reasons, the conclusions of law and award as rendered by the ALJ should not be adopted. Because the majority finds otherwise, I respectfully dissent. Reid K. Forrester, Member
S DIVISION OF WORKERS' COMPENSATION
3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE:(573) 526-8983 FAX:(573) 751-2012
www.labor.mo.gov/DWC + FEBRUARY 10, 2021
18-057914 Scan Copy
Injury No : 18-057914 142 Injury Date : 06-22-2018
Insurance No. : WC49262018029282
*Employee .. 13317222 4
*Employer . 13317223 1
, JEANNIE E HARPER 725 W TALMAGE ST SPRINGFIELD, MO 65803
, SPRINGFIELD REHAB & HEALTHCARE CENT 2800 S FORT AVE SPRINGFIELD, MO 65807
*Employer . , SPRINGFIELD REHABILITATION & HEALTH 13317225 5 2800 S FORT AVE
SPRINGFIELD, MO 65807-3480 *Insurer . , PREMIER GROUP INSURANCE COMPANY
13317227 9 c/o CORVEL ENTERPRISE COMP INC PO BOX 13285 OVERLAND PARK, KS 66282
#Asst Atty General: ATTY GENERAL ERIC SCHMITT 149 PARK CENTRAL SQ STE 1017 SPRINGFIELD, MO 65806
#Employee Attorney, RANDY C ALBERHASKY 415 N BOONVILLE AVE SPRINGFIELD, MO 65806
*Employer. . : NHC HEALTHCARE SPRINGFIELD 13317224 8 2800 S FORT AVE
PO BOX 3438 GS SPRINGFIELD, MO 65807-3480
*Insurer . . : PREMIER GROUP INSURANCE COMPANY 13317226 2 PO BOX 1122
MURFREESBORO, TN 37133 #Insurer Attorney: KEVIN M LEAHY
3890 S. LINDBERGH, SUITE 250 ST LOUIS, MO 63127
# Denotes that the Division sent a copy of the Award by electronic mail to the email address that the party provided. The Certificate of Service for this document is maintained in the Division ·s records.
Enclosed is a copy of the Award on Hearing made in the above case.
Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:
Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599
Continued AWARD ON HEARING NL
18-057914
If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.
Please reference the above Injury Number in any correspondence with the Division or Commission.
DIVISION OF WORKERS' COMPENSATION
Please visit our website at www.labor.mo.gov/DWC
MISSOURI DEPARTMENT OF LABOR & INDUSTRIAL RELATIONS
WC-142 (06-15) AWARD ON HEARING NLP Relay Missouri: 800-735-2966
Missouri Division of Workers' Compensation is an equal, opportunity empl.oyerlprogram. Auxiliary aids and services are available upon request to individuals with disabilities.
Issued by DIVISION OF WORKERS' COMPENSATION
Employee:
Dependents:
Employer:
AMENDED A WARD
Jeannie Harper
Not applicable
Springfield Rehab and Health Care Center/ NHC Health
Additional Party: Treasurer of Missouri as Custodian of the Second Injury Fund
Insurer: Premier Group Insurance Co. Corvel Enterprise Company, Inc. (TPA)
Hearing Date: November 2, 2020
FINDINGS OF FACT AND RULINGS OF LAW
1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: June 22, 2018.
Injury No. 18-057914
Before the
DIVISION OF WORKERS' COMPENSATION
Department of Labor and Industrial
Relations of Missouri Jefferson City, Missouri
Checked by: VRM/bh
5. State location where accident occurred or occupational disease was contracted: Springfield, Greene County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was injured attempting to move a medication cart with her hip.
12. Did accident or occupational disease cause death? No. Date of death? Not applicable.
13. Part(s) of body injured by accident or occupational disease: Body as a whole.
14. Nature and extent of any permanent disability: Permanent and Total Disability.
15. Compensation paid to-date for temporary disability: None.
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Issued by DIVISION OF WORKERS' COMPENSATION Employee: Jeannie Harper Injury No. 18-057914
16. Value necessary medical aid paid to date by employer/insurer? $1,650.00.
17. Value necessary medical aid not furnished by employer/insurer? None.
18. Employee's average weekly wages: Sufficient to yield the following rates of compensation:
Beginning November 15, 2018, and continuing for the remainder of her lifetime, Employer/Insurer shall pay Claimant Jeannie Harper the weekly sum of $923.01, for permanent and total disability.
Employer/Insurer is liable to Claimant for all future medical care to cure and relieve the effects of the work injury of June 22, 2018.
The benefits awarded herein are to begin immediately. Interest shall be paid as provided by law.
This Award is subject to review and modification as provided by law.
The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: The Alberhasky Law Firm, PC.
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Issued by DIVISION OF WORKERS' COMPENSATION Employee: Jeannie Harper lnjuryNo. 18-057914
FINDINGS OF FACT AND RULINGS OF LAW:
Employee:
Dependents:
Employer:
Jeannie Harper
Not applicable
Springfield Rehab and Health Care Center/ NHC Health
Additional Party: Treasurer of Missouri as Custodian of the Second Injury Fund
Insurer: Premier Group Insurance Co. Carvel Enterprise Company, Inc. (TPA)
Hearing Date: November 2, 2020
INTRODUCTION
Injury No. 18-057914
Before the
DIVISION OF WORKERS' COMPENSATION
Department of Labor and Industrial Relations of Missouri
Jefferson City, Missouri
Checked by: VRM/bh
The undersigned Administrative Law Judge convened a Final Hearing in Springfield, Missouri, in the above referenced case on November 2, 2020. Jeannie Harper (Claimant) appeared in person and with her attorney, Randy Alberhasky. Attorney Kevin Leahy appeared on behalf of Springfield Rehab and Health Care Center (Employer), Premier Group Insurance Company (Insurer), and Corvel Enterprise Company, Inc. (TPA). Assistant Attorney General Skyler Burks represented the Treasurer of the State of Missouri as Custodian of the Second Injury Fund (SIF). At the request of Employer/Insurer, the record remained open 30 days for the submission of additional evidence. That evidence was received timely and the record closed on December 2, 2020. The parties stipulated to certain facts and narrowed the issues, as follows:
STIPULATIONS
1. On June 22, 2018, Claimant Jeannie Harper was an employee of Springfield Rehab and Health Care Center and was subject to the Missouri Worker's Compensation Law.
2. On June 22, 2018, Springfield Rehab and Health Care Center was an employer subject to the Missouri Worker's Compensation Law and was fully insured.
3. Employer received proper notice of the alleged accident.
4. The claim for compensation was filed within the time allowed by law.
5. The average weekly wage on the date of the alleged injury was sufficient to yield a compensation rate of $923.01 for temporary total disability (TTD) and permanent total disability (PTD), and $483.48 for permanent partial disability (PPD).
6. Employer paid medical expenses of $1,650.00, and paid no temporary disability.
7. The employment was in Springfield, Greene County, Missouri, where the alleged accident was to have occurred, thus making venue and jurisdiction appropriate.
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Issued by DIVISION OF WORKERS' COMPENSATION Employee: Jeannie Harper Injury No. 18-057914
ISSUES
l. Did Claimant sustain an accident as that term is defined in Missouri Workers' Compensation Law? 2. Did Claimant sustain an injury that arose out of and in the course of employment? 3. Were the claimed injuries medically and causally related to the work for Employer? 4. How much, if any, TTD is owed? 5. What is the nature and extent of any permanent disability to which Claimant is entitled from
Employer/Insurer? 6. What is the liability of the Second Injury Fund? 7. If Claimant is permanently and totally disabled, what is the date of maximum medical improvement
(MMI)? 8. Is Employer/Insurer liable for future medical care to cure and relieve the effects of the alleged work
injury? 9. Counsel for employee seeks an attorney fee of 25 percent.
EXHIBITS
Unless otherwise noted, the following exhibits were offered and received into evidence without objection:
Issued by DIVISION OF WORKERS' COMPENSATION Employee: Jeannie Harper
22. Answer (Amended Claim) - Second Injury Fund dated 01.09.19 23. Claim File 24. Letter pursuant to§ 287.210 RSMo, dated 08.26.19 25. Letter pursuant to§ 287.210 RSMo, dated 10.16.19 26. Deposition - Dr. Koprivica (with Deposition Exhibits 1 - 5)
Employer/Insurer's Exhibits
A. Report of Injury B. Attendance Records C. Mercy Urgent Care Records D. Mercy Neurosurgery Records E. (Withdrawn) F. Deposition - Dr. Russell Cantrell G. Report-Bob Hosutt H. Deposition - Bob Hosutt I. Picture of Cart
Second Injury Fund's Exhibits
I. Deposition - Claimant Jeannie Harper, taken June 3, 2019
FINDINGS OF FACT
Injury No. 18-057914
Claimant Jeannie Harper credibly testified live at the hearing. She currently is 69 years old. She has two adult children. Claimant had been a registered nurse for nearly 30 years, working the last 10 years in extended-care facilities.
In 2013, Claimant suffered an injury to her cervical spine that required posterior laminectomies and arthrodesis with fusion from C3 to C7. The surgery was complicated by the finding of a meningioma (tumor) at C2 that had to be removed. The effects of the injury left her in a wheelchair for one year. She received social security disability while recovering and relearning how to walk. During a portion of this time she lived in Georgia with her daughter, Ann Lewis. She and her daughter returned to Missouri in 2016. In the fall of 2017, Claimant had recovered sufficiently to return to work. She obtained a position as a charge nurse at Manor Care in Springfield. When her hours were significantly reduced, she obtained fulltime work with Springfield Rehab Health Care Center (Employer). This latter job had greater physical demands.
The Accident
On Friday, June 22, 2018, as Claimant was exiting a patient room, there was a large medicine cart weighing about 100 pounds that partially obstructed her way. Because of her prior neck surgery, she had limited strength in her arms so she used her hip to push the cart. She felt a "pull" in her back but continued with her 12-hour night shift. Within a few hours, however, she had difficulty walking, which became increasingly worse throughout the shift. Once home from her shift, Claimant took Tylenol and went to bed
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Issued by DIVISION OF WORKERS' COMPENSATION Employee: Jeannie Harper Injury No. 18-057914
due to her discomfort. Her condition deteriorated and on Monday, she reported the injury to her supervisor and completed a report of injury. She was sent to Dr. Gil's ImMEDiate Care for authorized care on June 26, 2018, but continued to work despite her pain.
In her deposition, taken on June 3, 2019, Claimant was asked if she felt immediate "pain" when she pushed the medicine card. She testified that she did not feel immediate "pain" but rather the pain began as she was walking later in the shift and it progressively made it more difficult for her to walk. She was not asked if she felt a "strain" or a "pull" in her back at the time she pushed the cart. At the hearing, she was asked on direct what she felt when she pushed the medicine cart. She testified that she felt a "pull" or a "strain" in her back. She later was asked if that "pull" was like a "pain" and she said "to me it is."
Initial Medical Treatment
Dr. Gil, in his contemporaneous medical records, wrote in part:
It has been 6/22/18 since the onset of Pain. She describes it as sharp and deep. She considers it severe. Jeannie says that it seems to be constant. 6/22/18 patient states she was pushing a med cart against a wall and pushed it with her hip to get it into place. Upon doing so, she felt a pull in her lower right back. Later that night she took Tylenol and went to bed.
(Ex. 11, p. 2). During a follow-up visit with Dr. Gil's on June 29, 2018, Claimant received a IO-pound weight restriction. A week later on July 6, 2018, she was released to full duty after having reported improvement from an epidural. She also received prescriptions for medication and physical therapy. On July 13, 2018, when she returned to Dr. Gil's, she had pain in her lower right side of her back with a ball or knot in the back, depending on her activity. By then, she was taking hydrocodone, Flexeril, Tylenol and prednisone for pain. The diagnosis remained: "strain of muscle, fascia and tendon of low back." She continued to work full-time with the aid of medication. Claimant had some improvement in the latter part of July, but on August 6, 2018, Claimant's pain was aggravated by walking at work. Because of this setback, she was given a muscle relaxant, ordered restricted duty, and administered an MRI.
The lumbar MRI performed on August 17, 2018, revealed broad based disk bulges at L2-3 and L3-4 with encroachment on the foraminal zones causing mild bilateral neural foraminal narrowing. The impression was chronic degenerative spondylosis of the lumbar spine. She was diagnosed with strain of muscle, fascia and tendon of lower back. Authorized care ceased and she was referred to the primary care physician.
Claimant continued to work but she found it increasingly difficult to complete all of her job duties in a single shift. During the week of November 13, 2018, after three days of being bed-ridden with low back pain, she voluntarily terminated her employment effective November 14, 2018. She began collecting social security retirement benefits. On December 11, 2018, she electronically filed a claim for workers' compensation alleging injury to her back as a result of pushing a cart on June 22, 2018. Employer filed an answer to the claim signed and dated January 18, 2019.
Claimant followed-up with her personal physician, Dr. Kresta, on December 13, 2018, for back pain and spasms. She was prescribed Flexeril and referred to pain specialist Dr. Gledd on December 31, 2018, for
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Issued by DIVISION OF WORKERS' COMPENSATION Employee: Jeannie Harper InjuryNo. 18-057914
both lumbar and cervical pain. She underwent epidural injections beginning January 22, 2019, attended a psychological consultation, and participated in physical therapy. On July 18, 2019, Dr. Lee recommended a spinal cord stimulator for treatment of the lumbar pain, which Claimant declined.
Lay Testimony
Claimant's friend and former co-worker- Pat Reynolds - testified that she never detected Claimant having difficulty performing her job as a nurse at any time prior to June 22, 2018. While she was not working with Claimant as of June 22, 2018, Ms. Reynolds continued to maintain a social relationship with Claimant. She observed Claimant having mobility problems and declining social engagements only after June 22, 2018. Ms. Reynolds' testimony supplemented that of Claimant and Claimant's daughter who similarly testified regarding Claimant's physical condition before and after June 22, 2018.
Preexisting Back "Issues"
In 2013, following her cervical fusion, Claimant had continued complaints of numbness with difficulty walking. A lumbar MRI did reveal lumbar anterolesthesis, but there is no documentation of low back pain. There also was no follow-up for low back treatment at any time from 2013 through 2017. In 2017, Claimant obtained a handicapped placard due to difficulty walking long distances, but this related to her fused neck. There were no low back complaints. On May 21, 2018, Claimant had visited a Mercy Clinic with flu-like symptoms such as nausea, vomiting, cough, chills, and back pain for three days. She was given a chest xray and diagnosed with a urinary tract infection. These symptoms resolved and Claimant returned to work as usual with no ongoing complaints of low back pain until June 22, 2018.
Expert Opinion Evidence
Dr. P. Brent Koprivica found that Claimant was permanently and totally disabled when he saw her on July 15, 2019. On exam, Dr. Koprivica found two of five Waddell criteria to be positive. But as Dr. Koprivica explained, the Waddell's test did not tell him that Claimant was a malingerer. Instead, it revealed whether there was some exaggeration which signaled a psychological component in Claimant's condition. Dr. Koprivica believed the work injury resulted in new pain generators as a result of an injury to the facette joints and soft tissue, with myofascial pain and radiculitis from contribution to lateral recess stenosis. Absent the spinal cord stimulator suggested by Dr. Lee, she was at maximum medical improvement. Dr. Koprivica testified that the accident in which she was pushing the cart in June of 2018, was the prevailing factor in causing her back injury and disability, explaining:
Well, she had structural changes in her back at the time of the injury that at least from the information I have available were not symptomatic disabling symptoms. So the structural change was there but not disabling. She had an injury that resulted in new stenosis and new pain generators in low back that she didn't have before. I believe she likely has myofascial trigger points, facette pathology where she has symptoms in her facette joint from a sprained injury that is producing pain, but she also had annular injury that contributes to the extent of the stenosis where she is now having some intermittent radicular symptoms.
(Ex. 26, p. 43). Page 7
Issued by DIVISION OF WORKERS' COMPENSATION Employee: Jeannie Harper lnjuryNo. 18-057914
Dr. Koprivica restricted Claimant to lifting less than 10 pounds with the need to change positions at will. Claimant was lying down unpredictably throughout the day, which Dr. Koprivica believed was medically appropriate, although it was not a restriction he imposed. He opined that her total disability, including a psychological response following the injury, resulted from the last work injury in isolation. Significantly, during the course of his six-hour examination, Dr. Koprivica found Claimant's presentation to be consistent. As to future medical treatment, Dr. Koprivica opined that Claimant needed indefinite and ongoing multidisciplinary pain management, monitoring, and possible psychological support.
Dr. Koprivica said if the Administrative Law Judge disagreed with his assessment that the last injury alone made Claimant permanently and totally disabled, then Claimant still would be permanently and totally disabled, but it would be the result of her prior cervical condition synergistically combining with the work injury to the lumbar spine, and not because the preexisting neck aggravated or accelerated the low back injury. He also would apportion a 25 percent permanent partial disability to the low back if Claimant was determined not to be permanently and totally disabled from the last injury in isolation.
Regarding her prior neck surgery and disability, Dr. Koprivica assigned 35 percent permanent partial disability to the body as a whole. He noted ongoing limitations. He said that even with the surgery, Claimant continued to be symptomatic in the treatment records. She subjectively had weakness and selflimited to lifting and carrying to 20 pounds due to her neck He noted that a lifting limit of 20 pounds was consistent with the nature of her pathology and that she should be limited to light physical demand due to the neck. She was actually out of the work force for a number of years associated with this treatment. She went to vocational rehabilitation in an effort to return to the open labor market. While she selfaccommodated in employment because of the deficits from her neck surgery, Dr. Koprivica found that she expressed no preexisting limitations for her low back. While acknowledging that she had preexisting spondylolisthesis at L4-5, Dr. Koprivica said there had been "no dynamic instability" associated with the spondylolisthesis at that area (Ex. 26, p. 23).
Dr. Koprivica adamantly disagreed with Dr. Cantrell's conclusion that Claimant had cervical myelopathy.
The upper extremity is a Hoffman's test, and you will get repeated muscle contractions because you have lost the inhibition of the upper motor neuron being intact. It's looking for a lesion in the spinal cord or in the brain. Somewhere the upper motor neuron is disrupted some way. She didn't have it. It was normal. So on that test, I didn't find it. Reflexes being increased like I described can be a sign of loss of upper motor neuron inhibition. But the other things that I looked at, I didn't see it.. .. I think there may be some psychological contribution to how she's reacting on the reflex testing, but I don't think it's because she's got spinal cord pathology or brain pathology.
(Ex. 26, p. 76).
Dr. Russell Cantrell is a physical medicine and rehabilitation physician who performed an IME at the request of Employer/Insurer on December 30, 2019. He concluded there was no accident or injury. He claimed that Claimant did not report pain from pushing the cart until the next day, after she went home and woke up from sleeping. Dr. Cantrell denied that a "pulling" sensation in the muscle was evidence of injury. According to the history taken by Dr. Cantrell on December 30, 2019, Claimant did not feel any pain until
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Issued by DIVISION OF WORKERS' COMPENSATION Employee: Jeannie Harper Injury No. 18-057914
after she went home following her shift, went to sleep and then woke up with "mild discomfort in her lower back." Based upon this history of having no pain complaints until after going home and sleeping, Dr. Cantrell opined that there is no evidence of a specific event during a single work shift that would constitute a specific injury having occurred on June 22, 2018.
Dr. Cantrell believed Claimant's back pain is preexisting in nature, due to preexisting spondylosthesis and degenerative disk disease. He suggested her more recent back pain resulted from a urinary tract infection with coughing in May of 2018, also was indicia of a preexisting back condition. He testified that Claimant's clinical presentation was consistent with cervical myelopathy and not related to any work injury. Although denying that there was any work accident, Dr. Cantrell conceded that the treatment Claimant received from Dr. Gil's could be considered reasonable for a temporary aggravation of a preexisting condition, but her subsequent treatment was not work related. He opined that Claimant had reached maximum medical improvement when released by Dr. Gil's on August 22, 2018. He concluded that the following was consistent with a preexisting cervical myelopathic process from her cervical fusion:
Abnormalities on her examination that relate to a preexisting condition include a gait deviation, surgical scarring in her posterior neck, forward head carriage, and limitations in cervical range of motion, as well as limitations in range of motion of her shoulders, in addition to ratchety give-way weakness in both upper and lower extremities and hyperreflexia in both upper and lower extremities.
(Ex. F, Depo. Ex. A). He assigned a 30 percent permanent partial disability to the body as a whole due to the preexisting disability for the cervical spine. He assigned no disability as a result of the June 22, 2018 alleged work injury. He rendered no opinions regarding depression and psychiatric conditions.
In deposition, Dr. Cantrell said Claimant had give-way weakness in her legs due to cervical myelopathy, as evidenced by clonus and hyperflexia in the arms and legs. He denied that Claimant had a traumatic event or unusual strain identifiable by time and place of the occurrence on June 22, 2018. He hinged this opinion on his finding that Claimant had no symptoms when she pushed the medicine cart. He concluded that Claimant's alleged symptoms were no different than she had experienced a month before when she had a urinary tract infection; and there was no radiographic indication of acute pathology that could be attributed to the June 22, 2018 event. He said Claimant told him she did not have any pain complaints when she pushed the cart and only felt pain the next day after going home and waking up. 1
Dr. Cantrell admitted that the medical records from Dr. Gil's, four days after the cart-pushing incident, substantiate that Claimant felt a "pull" in her lower right back at the time. Dr. Cantrell, however, distinguished a "pull" from "pain" and iterated that she told him she did not experience immediate pain. He testified that a "pulling sensation doesn't in my opinion constitute an injury." (Ex. F, p. 62). On crossexamination, however, Dr. Cantrell acknowledged that Dr. Gil's medical records document that 1) Claimant took Tylenol at the end of her shift before going to bed; and 2) she had been having trouble walking prior
1 Claimant averred that Dr. Cantrell was wrong on the facts. She was adamant in her testimony at the hearing that she felt a pull at the time she moved the medicine cart and told Dr. Cantrell that she felt something at the time. Having observed Claimant's demeanor, and having found her credible, I resolve this factual dispute in Claimant's favor.
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Issued by DIVISION OF WORKERS' COMPENSATION Employee: Jeannie Harper InjuryNo. 18-057914
to the end of her shift. But, he still attributed all of Claimants' leg complaints to her preexisting cervical condition. He admitted that he could not recall any diagnosis of clonus in the feet prior to her work injury. Nor could he find or cite an instance of give-way weakness in the legs prior to the work injury. Dr. Cantrell believed Claimant was employable in the open labor market despite having trouble standing and walking, necessitating breaks if she was on her feet. He was sure, however, that Claimant could perform sedentary work, which he defined as having the ability to lift "10 pounds or less." (Ex. F. p. 76).
Phillip Eldred is Claimant's vocational expert. He issued reports on January 3, 2020 and September 7, 2020. He testified at the hearing. He said considering Dr. Koprivica's restrictions and limitations, Claimant would be permanently and totally disabled based upon the back injury in isolation. He noted that Claimant was 67 at the time of the injury and had been unemployed for two years at the time of the hearing. These factors negatively impact a work search, particularly if she walked with a cane. He noted that Dr. Koprivica had assessed her with less than sedentary work restrictions because of her need to change positions and sit/stand ad hoc. If she needed to lie down as needed in an eight-hour work day, that by itself, made her unemployable as no employer would be likely accommodate that requirement.
Bob Hosutt is a vocational expert whose opinion is in evidence by both report and deposition. He interviewed Claimant on May 26, 2020. Mr. Hosutt found that Claimant had transferable typing and computer skills. He believed Claimant had a good ability to concentrate, but lacked confidence. He opined that Claimant's advanced academic achievements and practical experience in the medical field qualified her to work in a sedentary capacity in a number of occupational areas. These included legal secretarial work, nurse case management, and reviewing medical or billing records. Thus, Mr. Hosutt believed Claimant was capable of work in the open labor market. He admitted that the work Claimant performed for Employer in her last position at Springfield Rehab was "at least light, maybe medium level of - of physical activities" and was "probably exceeding, may, perhaps, what she should have been doing at that time." (Ex. H, p. 4 7). While Mr. Hosutt did not believe age prevented Claimant from employability, he conceded that "there's some of the age bias that possibly can happen from employers." (Ex. H, p. 51 ). Mr. Hosutt admitted that the inability to ambulate well, and her inability to perform physically demanding work that she previously had performed, could be obstacles to work. He acknowledged that due to her age, preexisting disabilities, and degenerative process, Claimant should not return to work in her former nursing duties.
Mr. Hosutt had not reviewed the depositions of the IME physicians, and thus, was unaware of Dr. Koprivica's testimony that 1) Claimant was not capable of full sedentary work, and 2) it was medically appropriate for Claimant to lie down during the day to relieve pain.
Credibility Finding
All lay witnesse.s are credible. As discussed below, I find Dr. Koprivica more credible and persuasive than Dr. Cantrell. I find Phillip Eldred's vocational opinion more persuasive than that of Bob Hosutt.
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Issued by DIVISION OF WORKERS' COMPENSATION Employee: Jeannie Harper Injury No. 18-057914
RULINGS OF LAW
Burden of Proof
Claimant has the burden of establishing her entitlement to compensation. § 287.808 RSMo; Cardwell v. Treasurer, 249 S.W.3d 902, 911 (Mo. App. E.D. 2008). Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially and resolve factual conflicts without giving the benefit of the doubt to any party, and shall construe strictly the provisions. § 287 .800 RS Mo; Dunn v. Second Injury Fund, 272 S.W.3d 267,275 (Mo. App. E.D. 2008). I find and conclude that Claimant has met her burden of proof entitling her to workers' compensation benefits from Employer/Insurer.
Compensability
Determining whether Claimant suffered an accidental injury in the course and scope of employment is a two-step process. Pursuant to§ 287.020 RSMo,2 one must examine first whether an "accident" occurred:
2. The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.
Claimant felt a "pull" in her lower back when she shoved the heavy medication cart with her hip. Shortly thereafter, she had difficulty walking. Once she finished her shift, she took Tylenol and went to bed due to pain in her low back. This is consistent with what she told the physician from Dr. Gil's just four days after the injury. This is consistent with the notification acknowledged in the report of injury given to Employer on July 6, 2018, and every medical record other than the history recorded by Dr. Cantrell, a year and a half after the injury. Given the initial notes of Dr. Gil that she felt a "pull" in her lower back when pushing the cart and suffered pain necessitating over-the-counter medication at the end of the shift, I find the most contemporary description of the injury to be the most credible. I conclude that Claimant suffered an "unusual strain" in her lower back when she pushed the heavy medicine cart on June 22, 2018 at work, which produced objective symptoms of injury.
In § 287.020.3 RSMo, the second prong for determining compensability is whether the event was the prevailing factor in causing both the medical condition and disability and whether there was a risk to which the employee was equally exposed in her non-employment life:
(1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.
(2) An injury shall be deemed to arise out of and in the course of the employment only if:
(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and
2 Unless otherwise noted, all statutory references are to the laws in effect on the date of the work injury. Page 11
Issued by DIVISION OF WORKERS' COMPENSATION Employee: Jeannie Harper Injury No. 18-057914
(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal non-employment life.
(3) An injury resulting directly or indirectly from idiopathic causes is not compensable.
"Medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause." Malam v. State, 492 S.W.3d 926, 930 (Mo. bane 2016) (citations omitted). The Administrative Law Judge and the Commission cannot "overlook" the "unequivocal" meaning of the doctor's testimony and ignore the most credible medical opinion on a complex medical issue. Malam at 930. Here, with a back injury superimposed upon preexisting stenosis, the medical issues are not straightforward. The Administrative Law Judge must defer credible expert opinion. I have found Dr. Koprivica more credible than Dr. Cantrell for a number of reasons.
Dr. Cantrell opined that an injury could not have occurred from pushing the medicine cart because Claimant did not feel immediate pain. Claimant, however, has described a "pull" in her back and experienced increasingly severe symptoms through the work shift, interfering with her ability to walk. At the end of her shift she took Tylenol to address this discomfort immediately before going to bed. This was the same morning that her work shift ended. Dr. Cantrell admitted on cross-examination that he did not ask Claimant about feeling a "pull" when she pushed the cart, but argued that feeling a "pull" would not be consistent with injury. That contention is incompatible with the legal definition of an accident. Section 287.020.2 RSMo, references an "unusual strain"; and not, an "unusual pain." Moreover, Dr. Cantrell's contention that Claimant felt no pain until awaking the following day is inconsistent with Claimant having taking Tylenol for her discomfort or pain immediately after the work shift and before going to sleep.
Having a fundamental misunderstanding of how the injury occurred undermines Dr. Cantrell's opinions expressed about causation. Dr. Cantrell also testified that Claimant's back pain was preexisting in nature, due to preexisting spondylosthesis and degenerative disk disease and specifically suggested her back pain from a urinary tract infection with coughing in May of 2018 were somehow indicia of a preexisting condition. In the end, even Dr. Cantrell tacitly acknowledged the existence of an injury when he concluded that the treatment Claimant received from Dr. Gil's could be considered reasonable in the context of a temporary aggravation of a preexisting condition, and stated that Claimant had reached maximum medical improvement when released by Dr. Gil's on August 22, 2018.
Dr. Koprivica's opinions were more credible because they were based upon the more accurate history of the injury, a comparison of objective imaging studies, and his examination. He specifically ruled out, through testing in his physical exam, Dr. Cantrell's theory that Claimant suffered from preexisting cervical myelopathy. I have found and conclude that Dr. Koprivica's opinion that the accident was the prevailing factor in causing the injury and disability is more credible and persuasive. Her medical condition for which she seeks benefits is medically and causally related to the accident. Moreover, Claimant did not push large medical carts outside of her employment in her normal nonemployment life, so there is no question that she was unequally exposed to the risk of injury at work. The claim is compensable under§ 287.020.3 RSMo.
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Issued by DIVISION OF WORKERS' COMPENSATION Employee: Jeannie Harper
Nature and Extent of Permanent Disability
Injury No. 18-057914
Claimant alleges she is permanently and totally disabled from the last accident alone. The credible expert opinions of Dr. Koprivica and Mr. Eldred support such finding and conclusion.
Employability is a matter within the expertise of the Administrative Law Judge and the Labor and Industrial Relations Commission. Schussler v. Treasurer, 393 S.W.3d 90, 95-96 (Mo. App. W.D. 2012); Stewart v. Zweifel, 419 S.W.3d 915 (Mo. App. S.D. 2014). The test for permanent total disability is whether, given the employee's situation and condition, she is competent to compete in the open labor market. Laturno v. Carnahan, 640 S.W.2d 470, 472[3, 4] (Mo. App. E.D.1982). This test measures the worker's prospects for returning to employment. Patchin v. National Super Markets, Inc., 738 S.W.2d 166, 167[3] (Mo. App. E.D.1987). "The central question is whether any employer in the usual course of business would reasonably be expected to employ the employee in his present physical condition." Id. It means both being able to find and keep employment, "whether an employer can reasonably be expected to hire this employee, given his present physical condition, and reasonably expect him to successfully perform the work." Gordon v. TriState Motor Transit Co., 908 S.W.2d 849,853 (Mo. App. S.D. 1995); Sutton v. Vee Jay Cement Contracting Co., 37 S.W .3d 803 (Mo. App. E.D. 2000). Total disability does not require that the employee be completely inactive or inert. Underwood v. High Road Indus., LLC, 369 S.W.3d 59, 66 (Mo. App. S.D.2012).
After she was injured on June 22, 2018, Claimant continued working at her employment while receiving authorized treatment. Even after her release from treatment, she worked until she no longer could tolerate the pain. She was not able to perform all of the essential functions of her job. She took narcotics for pain relief and was concerned for her patients. She quit her job and did not return to work after November 14, 2018.
Employer/Insurer argues that ifthere was a work accident, then Claimant suffered nothing more than a "soft tissue" injury, noting that there is no herniated disc or structural defect warranting surgery. Employer/Insurer suggests that Claimant merely took a well-deserved retirement when she quit work on November 14, 2018. Using sports analogies, this is a "close-call", and certainly is not what one would describe as a "slam-dunk" case. But as explained by Dr. Koprivica, this is more than a soft tissue injury. There is a psychological component. Dr. Koprivica found that Claimant is not malingering. He imposed a severe lifting restriction of less than 10 pounds. Moreover, in the past, Claimant had rehabilitated from a severe cervical disability to return to full-time work as a nurse. She also attempted to continue working after her release from Dr. Gil's. Such industriousness hardly suggests that she simply was desirous of retirement. Taking into consideration all of the factors of this case, and having found credible the testimonies of Claimant and her lay witnesses, as well as the opinions of Dr. Koprivica and Mr. Eldred, I find and conclude that Claimant is permanently and totally disabled from the last work accident in isolation.
Maximum Medical Improvement
Section 287.020.12 RSMo Supp. 2017, defines "maximum medical improvement" within a reasonable degree of medical certainty, that point at which the injured employee's medical condition has stabilized and will not improve with additional medical care. Dr. Koprivica reported that Claimant was at MMI when he saw her on July 15, 2019, after she had completed a course of epidurals on her own and elected not to pursue the spinal cord stimulator. Dr. Cantrell opined that Claimant reached MMI after her authorized care through Dr. Gil's facility was terminated on August 22, 2018. While Claimant continued to obtain medical treatment on her own after August 22, 2018, the evidence demonstrates that her medical condition did not
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Issued by DIVISION OF WORKERS' COMPENSATION Employee: Jeannie Harper Injury No. 18-057914
materially improve. Although Claimant continued to work through November 14, 2018, she admitted she was not performing the job as was expected and she was concerned for her patients. Given all of these factors, I find and conclude that she reached MMI when she was released from Dr. Gil's care on August 22, 2018. Because Claimant continued to work through November 14, 2018, she is not entitled to permanent and total disability until November 15, 2018. Beginning that date, and continuing for the remainder of her lifetime, Employer and Insurer shall pay Claimant $923.01 each week for permanent and total disability.
Temporary Total Disability
Temporary total disability covers an injured employee's healing period and such awards are owed until the employee can find employment or the condition has reached the point of maximum medical progress. Pruett v. Fed. Mogul Corp., 365 S.W.3d 296,308 (Mo. App. S.D. 2012). Here, Claimant continued to work during her healing period. Given that she had employment, no temporary benefits are due.
Second Injury Fund Liability
Since the award of permanent and total disability is based upon the last injury in isolation, no compensation from the SIF is due or awarded. If a reviewing Commission of appellate court would determine that Claimant was not permanently and totally disabled from the last injury in isolation, the Second Injury Fund still would have no liability under the law in effect on the date of Claimant's injury.
Section 287.220.3(2)(a)a(i)- (iv) RSMo, requires that Claimant have "a medically documented preexisting disability" equaling at least 50 weeks of permanent partial disability that is:
(i) A direct result of active military duty in any branch of the United States Armed Forces; or (ii) A direct result of a compensable injury as defined in Section 287 .020; or (iii) Not a compensable injury, but such preexisting disability directly and significantly
aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent workrelated injury; or
(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear ....
Claimant sustained no injuries as a result of military service (subsection (i)). She has no preexisting disability to an extremity or eye, or loss of hearing (subsection (iv)). Thus, if the SIF is liable in this case, the facts must fall within the confines of subsections (ii) or (iii) of the above statute.
On February 8, 2013, Claimant underwent a cervical fusion surgery with Dr. Ceola. During the operation, it was discovered that she actually had an intradural meningioma at the C2 level, which was resected. Claimant had a noncancerous tumor in her spinal canal. There is no credible evidence that this neck disability was work related. The record is absent any report of injury or claim for compensation for the cervical spine. The prior cervical spine issue does not qualify for SIF liability under §287.220.3(2)(a)a(ii).
The preexisting cervical disability also does not qualify for SIF liability under§ 287.220.3(2)(a)a(iii), which requires that the preexisting disability directly and significantly aggravate or accelerate the subsequent
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Issued by DIVISION OF WORKERS' COMPENSATION Employee: Jeannie Harper Injury No. 18-057914
work-related injury. Dr. Koprivica explicitly testified in his November 22, 2019 deposition that the preexisting neck condition did not aggravate or make worse the subsequent work-related injury (Ex. 26, pp 48-52). Dr. Cantrell's opinion is that there was no new structural injury on June 22, 2018, to aggravate or accelerate. I have found credible the opinion of Dr. Koprivica. Therefore, Claimant does not meet the requirements for §287.220.3(2)(a)a(iii). There can be no SIP liability in this case.
Future Medical Expenses
Section 287 .140 RSMo, requires Employer/Insurer to provide medical care as reasonably may be required to cure and relieve the effects of the work-related injury. To "cure and relieve" means treatment that will give comfort, even though restoration to soundness is beyond avail. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 249 (Mo. bane 2003). Once it is determined there is a compensable accident, Claimant need only prove that the treatment and medication flow from the work injury. Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. W.D. 2011). Dr. Koprivica opined that Claimant needed indefinite and ongoing multidisciplinary pain management, monitoring and possible psychological support. Claimant satisfied her burden to obtain future medical benefits from Employer/Insurer.
SUMMARY
• Beginning November 15, 2018, and continuing for the remainder of her lifetime, Employer/Insurer shall pay to Claimant Jeannie Harper, the sum for $923.01 per week in permanent total disability.
• Employer/Insurer shall provide future medical treatment to cure and relieve the effects of the work injury of June 22, 2018.
• No temporary total disability is owed.
• The SIP has no liability.
This Award is subject to modification and review as provided by law.
The benefits awarded herein are to begin immediately. Interest shall be paid as provided by law.
The compensation awarded to Claimant shall be subject to a lien in the amount of 25 percent of all benefits awarded in favor of the following attorney: The Alberhasky Law Firm, PC.
I certify that on /2_ /t O I {lo :1 / , I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.
Chief Administrative Law Judge Division of Workers' Compensation
