Cheryl Jennings v. Station Casino St. Charles

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers’ Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 7, 2004. The award and decision of Administrative Law Judge Leslie E. H. Brown, as issued December 7, 2004, is attached and incorporated by this reference.

The Commission finds that the ALJ correctly weighed and evaluated the lay and medical testimony in reaching her conclusions as to the issues in this case, including disability, causation, past and future medical care and expense, and the liability of the Second Injury Fund. Reese v. Gary & Roger Link, Inc., 5 S.W.3d 522 (Mo. App. E.D. 2002), Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879 (Mo. App. S.D. 2001), Landman v. Ice Cream Specialties, Inc.,107 S.W.3d 240 (Mo. banc 2003).

This matter is before the Commission on employee’s review of a Final Award as above indicated. An earlier Temporary or Partial Award had been issued on March 4, 2002, by a different ALJ. The Temporary Award required employer/insurer to provide employee with a “specific medical procedure.” Several medical experts presented testimony/opinions at the hearing for the Final Award that the “specific medical procedure” was not necessary nor recommended.

Employer/insurer complied with the requirements of the Temporary Award, provided medical treatment and made substantial payments. No party contends that the Temporary or Partial Award is res judicata. Diallo v. City of Maryland Heights, 996 S.W.2d 675 (Mo. App. E.D. 1999), rehearing and/of transfer denied.

The Final Award determined that the earlier ordered procedure was not causally related to the injury in question and held that the medical expenses and disability stemming from that procedure were not compensable. As indicated, we agree. Putnam-Heisler v. Columbia Foods, 989 S.W.2d 257, 261 (Mo. App. W.D. 1999).

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.

Given at Jefferson City, State of Missouri, this 4th day of August 2005.

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest: John J. Hickey, Member

I submit this concurring opinion to disclose the fact that I was previously employed as a partner in the law firm of Evans \& Dixon. While I was a partner, the instant case was assigned to the law firm for defense purposes. I had no actual knowledge of this case while a partner with Evans \& Dixon. However, recognizing that there may exist the appearance of impropriety because of my previous status with the law firm of Evans \& Dixon, I undertook no involvement or participation in the decision in this case until a stalemate was reached between the other two members of the Commission. As a result, pursuant to the rule of necessity, I am compelled to participate in this case as there is no other mechanism in place to resolve the issues in the claim. Barker v. Secretary of State's Office, 752 S.W.2d 437 (Mo. App. W.D. 1988).

Having reviewed the evidence and considered the whole record, I join in and adopt the award and decision of the ALJ awarding benefits.

William F. Ringer, Chairman

I must respectfully disagree with the opinion of the majority of the Commission.

Following the issuance of the Temporary Award, employer/insurer undertook the ordered course of treatment in an effort to cure and relieve this employee's back injury. They are not to be applauded for fulfilling their statutory obligation. Williams v. City of Ava, 982 S.W.2d 307 (Mo. App. S.D. 1998).

Employer/insurer was ordered to provide a discogram. Unfortunately, the procedure resulted in extensive

infection, discitis, bone erosion and a lumbar fusion. This flowed from a lawful order of an administrative law judge (ALJ) and was undertaken to cure and relieve employee from the effects of her injury at the recommendation of a qualified physician. Section 287.140 RSMo. It is well settled law that where, without fault of employee, the primary injury is aggravated by medical treatment, there is a causal connection between the original injury and the resulting disability. Wilson v. Emery Bird Thayer Co., 403 S.W.2d 953 (Mo. App. W.D. 1966).

The majority would disregard the impact of the Temporary Award on employee. Instead, they emphasize the effect upon employer/insurer. The majority would have us not penalize employer/insurer for providing the ordered treatment. Instead, they would penalize employee for undergoing the physician recommend and ALJ ordered course of treatment.

Undoubtedly, the procedure had a significantly injurious effect. Undoubtedly, employee is without fault in this aggravation of her primary injury by the medical treatment. To hold employee was wrong to follow her doctor's advice and the order of the ALJ is unconscionable.

Employer/insurer would have us believe that they expended over $\ 200,000.00 in medical treatment, all the while knowing that this was only a case of a low back sprain/strain.

The majority refers to several medical experts who did not recommend the procedure ordered by the initial ALJ, namely a discogram. The implication in that statement is that the physicians recommended against the procedure. This is not the case. Only after the procedure and subsequent infection did the second guessing begin. Before the first hearing, the physicians were concerned with a method to alleviate employee's pain complaints and define the problem. One recommended a discogram. This is the placing of a needle in the disc and pumping in fluid to demonstrate whether there is a tear. Another thought that myelogram could show bulging discs or a larger herniation. The myelogram procedure involves insertion of a needle and interthecal injection of radiopaque contrast medium. Another physician was leaning toward steroid injections and CT studies. All involve needles into the back and all carry the risk of infection.

The majority improperly places the burden on compliance with the initial award on employee. This is contrary to the spirit and letter or the Workers' Compensation law

which statutorily requires a liberal construction of the law with a view to the public welfare. Section 287.800 RSMo.

The focus, here, should not be on employer/insurer. Rather, the focus should be on employee who did as she was lawfully ordered with disastrous consequences. Do we now tell her that the law provides no avenue for redress? That she was wrong to do as ordered?

I would reverse the Award of Administrative Law Judge Brown and enter an Award for past and future medical aid and temporary and permanent disability in accord with the findings and decision of the Temporary Award in this matter.

John J. Hickey, Member

Employee: Cheryl Jennings

Injury No. 97-433205

Dependents:

Before the

Director: Station Casino St. Charles

DIVISION OF WORKERS'

COMPENSATION

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: September 16, 1997
5. State location where accident occurred or occupational disease was contracted: St. Charles, 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 walking through casino boat construction on way to work on the casino boat and fell.
12. Did accident or occupational disease cause death? No Date of death? ---- 13. Part(s) of body injured by accident or occupational disease: low back 14. Nature and extent of any permanent disability: 30% permanent partial disability referable to the low back 15. Compensation paid to-date for temporary disability: $19,558.48 16. Value necessary medical aid paid to date by employer/insurer? $200,548.19 17. Value necessary medical aid not furnished by employer/insurer? Past medical expenses, See Award 18. Employee's average weekly wages: 380.00 19. Weekly compensation rate: 253.34/$253.34 20. Method wages computation: by agreement of the parties

1. Amount of compensation payable:

Unpaid medical expenses: See Award

Future medical care : See Award

---- weeks of temporary total disability (or temporary partial disability)

re: Body as a whole, 30 % permanent partial disability from Employer, or . . . . . . . . \$30,400.80

---- weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning ----, for Claimant's lifetime

1. Second Injury Fund liability: Yes X No Open \$10,133.68

weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits

Permanent total disability benefits from Second Injury Fund:

weekly differential () payable by SIF for weeks beginning

and, thereafter, for Claimant's lifetime

TOTAL: PAST MEDICAL EXPENSES;

FUTURE MEDICAL CARE (SEE AWARD);

AND $\ 40,534.40

1. Future requirements awarded: Yes, See Award

Said payments to begin as of the date of this Award and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Dean L. Christianson, Attorney for Claimant

Employer: Station Casino St. Charles

This is a hearing for a Final Award in Injury Number 97-433205. The claimant, Cheryl Jennings, appeared in person and by counsel, Attorney Dean L. Christianson; the employer/insurer appeared by and through counsel, Attorney Tim Tierney; the Second Injury Fund appeared by and through Assistant Attorney General Barb Toepke.

The parties entered into certain stipulations, and agreements as to the complex issues and evidence to be presented in this hearing.

On or about September 16, 1997: a. the claimant while in the employment of Station Casino St. Charles sustained an injury by accident arising out of and in the course of her employment occurring in St. Charles Cou