Maurnita White v. Baden Christian Child Care Center

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-081916

Employee: Maurnita White

Employer: Baden Christian Child Care Center

Insurer: Argonaut Great Central Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Dismissed)

Date of Accident: August 11, 2003

Place and County of Accident: St. Louis City, Missouri

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 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 January 19, 2006. The award and decision of Administrative Law Judge John Howard Percy, issued January 19, 2006, is attached and incorporated by this reference.

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 $\qquad 10^{\mathrm{TH}} \qquad$ day of August 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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: August 11, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis City, Mo.
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:

Chair collapsed while employee was sitting in it. 12. Did accident or occupational disease cause death? No Date of death? N/A 13. Part(s) of body injured by accident or occupational disease: Neck, upper back, both shoulders, low back 14. Nature and extent of any permanent disability: 10 % permanent partial disability of body as a whole referable to neck and upper back 15. Compensation paid to-date for temporary disability: $\ 2,030.23 16. Value necessary medical aid paid to date by employer/insurer? $\ 17,881.54

Employee: Maurnita White Injury No.: 03-081916 17. Value necessary medical aid not furnished by employer/insurer? See Findings 18. Employee's average weekly wages: $\ 176.17 TTD/\210.00 PPD 19. Weekly compensation rate: \ 117.45 TTD/\$140.00 PPD 20. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: See Findings

1. Second Injury Fund liability: No

TOTAL: UNDETERMINED

1. Future requirements awarded: None

Said payments to begin immediately 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 $675.64 in favor of the following attorney for necessary legal services rendered to the claimant:

Andrew Weigley

A hearing in this proceeding was held on August 9, 23, September 13, 23, October 27, and November 28, 29, 2005 pursuant to Employee's request for a temporary award as provided in Section 287.510*Mo. Rev. Stat.* (2000). The hearing date was advanced on the docket pursuant to Employee's request made under the provisions of Section 287.450. Employee requested additional medical treatment and reimbursement for incurred medical expenses as provided in Section 287.140 and an award of compensation for temporary total disability pursuant to Section 287.170. Both parties submitted proposed awards on December 20, 2005.

The parties stipulated that on or about August 11, 2003:

1. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
2. the employer's liability was insured by Argonaut Great Central Insurance Co.;
3. the employee's average weekly wage was $\ 176.17 for temporary disability purposes and $\ 210.00 for permanent disability purposes;
4. the rate of compensation for temporary total disability was $\ 117.45 and the rate of compensation for permanent partial disability and permanent total disability was $\ 140.00; and
5. the employee sustained an injury by accident arising out of and in the course of employee's employment occurring in St. Louis City, Missouri.

The parties further stipulated that:

1. the employer had notice of the injury and a claim for compensation was filed within the time prescribed by law;
2. compensation has been paid in the amount of $\ 2,030.23 representing $17-2 / 7$ weeks of benefits covering the period from August 12 through December 10, 2003; and
3. employer/insurer have paid $\ 17,881.54 in medical expenses.

The issues to be resolved in this proceeding are:

1. whether the cysts in claimant's spine were caused or aggravated by the work-related accident of August 11, 2003;
2. if the employee sustained a compensable injury, whether employee is entitled pursuant to Section 287.140 Mo. Rev. Stat. (2000) to be reimbursed for the medical bills set forth in employee's Exhibits JJ and LLL;
3. if the employee sustained a compensable injury, whether the employee should be provided with any additional medical treatment;
4. if the employee sustained a compensable injury, whether employee is entitled pursuant to Section 287.170 Mo. Rev. Stat. (2000) to any additional temporary total disability compensation subsequent to December 10, 2003;
5. if the employee sustained a compensable injury, whether and to what extent employee sustained any permanent partial disability which would entitle her to an award of compensation; and
6. the amount of any attorney's lien.

There is no dispute that claimant sustained low back, neck and left shoulder strains as a result of the work-related injury. Maurnita White, employee herein, also claims that the two cysts in her thoracic spine were either caused or aggravated by the work-related accident of August 11, 2003. Employer/insurer contend that the spinal cysts were preexisting conditions and were not aggravated by the work-related accident.

The employee must establish a causal connection between the accident and the claimed injuries. Davies v. Carter Carburetor Div., 429 S.W.2d 738 (Mo. 1968); McGrath v. Satellite Sprinkler Systems, 877 S.W.2d 704, 708 (Mo. App. 1994); Blankenship v. Columbia Sportswear, 875 S.W.2d 937, 942 (Mo. App. 1994); Fisher v. Archdiocese of St. Louis, 793 S.W.2d 195, 198 (Mo. App. 1990); Cox v. General Motors Corp., 691 S.W.2d 294 (Mo. App. 1985); Griggs v. A.B. Chance Company, 503 S.W.2d 697, 703 (Mo. App. 1974); Smith v. Terminal Transfer Company, 372 S.W.2d 659, 664 (Mo. App. 1963).

Amendments made to Section 287.020 .2 in 1993 require that the injury be "clearly work related" for it to be compensable. An injury is clearly work related "if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor." The Supreme Court held in Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo. 1999) that the foregoing language overruled the holdings in Wynn v. Navajo Freight Lines, Inc., 654 S.W.2d 87 (Mo. 1983), Bone v. Daniel Hamm Drayage Company, 449 S.W.2d 169 (Mo. 1970), and many other cases which had allowed an injury to be compensable so long as it was "triggered or precipitated" by work. Injuries which are triggered or precipitated by work may nevertheless be compensable if the work is found to be a "substantial factor" in causing the injury. Kasl, supra at 853. A substantial factor does not have to be the primary or most significant causative factor. Bloss v. Plastic Enterprises, 32 S.W.3d 666, 671 (Mo. App. 2000); Cahall v. Cahall, 963 S.W.2d 368, 372 (Mo. App. 1998). An accident may be both a triggering event and a substantial factor in causing an injury. Id. Subsection 2 also provides that an injury must be incidental and not independent of employment relationship and that "ordinary, gradual deterioration or progressive degeneration of the body caused by aging" is not

compensable unless it "follows as an incident of employment." The extent to which the 1993 amendments have further modified prior caselaw will be determined by the appellate courts. See Cahall, supra at 372 .

The quantum of proof is reasonable probability. Davies, supra at 749; Downing v. Willamette Industries, Inc., 895 S.W.2d 650, 655 (Mo. App. 1995); White v. Henderson Implement Co., 879 S.W.2d 575, 577 (Mo. App. 1994); Fischer at 199; Banner Iron Works v. Mordis, 664 S.W.2d 770, 773 (Mo. App. 1983);Griggs at 703. "Probable means founded on reason and experience which inclines the mind to believe but leaves room to doubt." Tate v. Southwestern Bell Telephone Co., 715 S.W.2d 326, 329 (Mo. App. 1986); Fischer at 198.

Such proof is made only by competent and substantial evidence. It may not rest on speculation. Griggs v. A. B. Chance Company, 503 S.W.2d 697, 703 (Mo. App. 1974). Expert testimony may be required where there are complicated medical issues. Goleman v. MCI Transporters, 844 S.W.2d 463, 466 (Mo. App. 1993); Griggs at 704; Downs v. A.C.F. Industries, Incorporated, 460 S.W.2d 293, 295-96 (Mo. App. 1970). Expert testimony is required where the cause and effect relationship between the claimed injury or condition and the alleged cause is not within the realm of common knowledge. McGrath v. Satellite Sprinkler Systems, 877 S.W.2d 704, 708 (Mo. App. 1994); Brundige v. Boehringer Ingelheim, 812 S.W.2d 200, 202 (Mo. App. 1991). Expert testimony is essential where the issue is whether a preexisting condition was aggravated by a subsequent injury. Modlin v. Sun Mark, Inc., 699 S.W.2d 5 (Mo. App. 1985). The fact finder may accept only part of the testimony of a medical expert and reject the remainder of it. Cole v. Best Motor Lines, 303 S.W.2d 170, 174 (Mo. App. 1957). Where the opinions of medical experts are in conflict, the fact finding body determines whose opinion is the most credible. Hawkins v. Emerson Electric Co., 676 S.W.2d 872, 877 (Mo. App. 1984). Where there