Vernon Cypher v. Independent Plumbing and Interior Electric

is suffering from all these unverifiable medical problems.

Dr. James Thompson, Dr. Arifa Salam, Dr. Logan, and Dr. Koprivica concluded that employee suffers from post traumatic stress disorder, panic disorder, chronic anxiety, depression, and fibromyalgia. Consequently, although none of these doctors believed that employee was suffering any physiological problems as the result of his medication reaction, they believed that he believed he was suffering from these various maladies. All of these medical experts who specifically considered and addressed employee's psychological problems in addition to his on-going back problems concluded that employee was permanently totally disabled.

The administrative law judge reached the following conclusions: employee sustained a 35\% permanent partial disability to his body as a whole solely as a result of his back injury; employee reached maximum medical improvement on June 13, 2003; employee was temporarily totally disabled and entitled to previously unpaid temporary total disability benefits totaling $\ 2,785.13 for the period February 1, 2002, through March 4, 2002; employer had no liability for employee's emotional disabilities attributable to his medication reaction because they did not arise out of and in the course and scope of his employment by employer; commutation of employee's benefits was not warranted under section 287.530 RSMo since employee did not prove sufficiently "unusual circumstances"; and employee would receive only certain future medical treatment connected with his back injury.

Employee filed an Application for Review (Application) with the Commission. Employee's Application cites error in each of these conclusions, except the administrative law judge's determination concerning temporary total disability benefits totaling $\ 2,785.13.

After reviewing the entire record, the Commission affirms the findings and legal conclusions of the administrative law judge as to the following issues: employee's maximum medical improvement date; employee was temporarily totally disabled from November 30, 2001, through July 17, 2003, and entitled to previously unpaid temporary total disability benefits totaling $\ 2,785.13 for the period February 1, 2002, through March 4, 2002; and commutation of employee's benefits is not warranted under section 287.530 since employee did not prove sufficiently "unusual circumstances." As to the remaining issues, the Commission disagrees with the conclusions that the administrative law judge reached and modifies the decision as set forth below.

The decision states as follows: "If we assume that all of the psychiatric disability Mr. Cypher exhibits is related to his workers' compensation injury, he is likely permanently and totally disabled." The evidence supports that conclusion. The administrative law judge concluded that employee was not permanently totally disabled, though, because he found that the ibuprofen reaction and its attendant physical, but primarily psychological harm did not arise out of and in the course of his employment. He stated the following:

In this case, Mr. Cypher's exposure to ibuprofen just happened to have occurred at the time he was treating for his back injury. The exposure, however, could have just as easily occurred accidentally at any other time. It is not the role of workers' compensation to insure an employee against all harm that occurs to him when only tangentially related to his employment.

We disagree with this thinking. In Larson's treatise on workers' compensation law, the author explores the range of compensable consequences that can result after the primary injury occurs.

A distinction must be observed between causation rules affecting the primary injury . . . and causation rules that determine how far the range of compensable consequences is carried, once the primary injury is causally connected with the employment. . . . [W]hen the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based upon the concepts of "direct and natural results," and of claimant's own conduct as an independent intervening cause.

The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury.

The simplest application of this principle is the rule that all the medical consequences and sequelae that flow from the primary injury are compensable.

1. A. Larson, Larson's Workers' Compensation Law, section 10.01.

In other subsections of this same chapter, the author looks more specifically at various circumstances that are compensable.

[1] - Compensability of Aggravation by Treatment

It is now uniformly held that aggravation of the primary injury by medical or surgical treatment is compensable. Examples include exacerbation of the claimant's condition, or death, resulting from . . . pain killers, and other medications . . . .

When the injury sustained during treatment or examination is not an aggravation of the work-related injury, but injury to another part of the body, courts have also found the injury to be compensable.

[2] - Irrelevance of Fault or Malpractice of Doctor

Fault on the part of physicians . . . , even if it might amount to actionable tortiousness, does not break the chain of causation. . . .

[3] - Irrelevance of Fault of Others Involved in Treatment

Similarly, injuries due to the negligence of persons other than physicians, connected with the process of treatment . . . , are within the compensable range of consequences.

1. A. Larson, Larson's Workers' Compensation Law, section 10.09.

In the case at hand, we find no negligence on employee's part that acted as an independent intervening cause for the ibuprofen reaction. Furthermore, as noted in Larson's treatise, the potential negligence of the medical personnel connected with employee's treatment does not break the causation chain. Properly analyzed, employee sought medical care at the Medical Center at employer's instruction and as the direct result of the undisputed primary injury to his back the day before. The medication reaction and the physical and emotional problems that occurred were, thus, the direct and natural result of the compensable primary injury. Therefore, employee's panoply of medical and emotional problems and the total disability they create, together with the primary disabilities, arose out of and in the course of employee's employment.

Missouri courts support our conclusion. In Lahue v. Missouri State Treasurer, 820 S.W.2d 561, 562 (Mo. App. W.D. 1991)(citations omitted), the employee fell off a chair and injured her right hip and low back while she was undergoing whirlpool therapy for an ankle injury that occurred during the course of her employment. The court stated as follows:

"The law is well settled, that where a claimant sustains injury arising out of and in the course of her employment, every natural consequence that flows from the injury, including a distinct disability in another area of the body is compensable as a direct and natural result of the primary or original injury." The same rule is recognized in Missouri. Injuries sustained during authorized medical treatment of a prior compensable injury are the natural and probable consequence of the compensable injury and the employer is liable for all resulting disability.

Other jurisdictions faced with similar facts have reached the same conclusion. In Moretto v. Samaritan Health System, 198 Ariz. 192, 8 P.3d 380 (Ct. App. 2000), the employee had surgery to his knee for a compensable injury. He then underwent physical therapy. During a therapy session and as a result of the alleged negligence of the physical therapist, the employee fell to the floor and injured his back. Citing Larson's treatise, the court held tha