Lillie Newson v. BJC Health System

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-081686

Employee: Lillie M. Newson

Employer: BJC Health System

Insurer: Self-insured

Date of Accident: March 1, 2002

Place and County of Accident: St. Louis County, 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 April 27, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued April 27, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 9^{\text {th }} \qquad$ day of March 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

CONCURRING OPINION FILED

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I submit this concurring opinion to disclose the fact that I was previously employed as a partner in the law firm of Evans and 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 as a partner with Evans and Dixon. However, recognizing that there may exist the appearance of impropriety because of my previous status with the law firm of Evans and Dixon, I had 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 because 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. 1988).

Having reviewed the evidence and considered the whole record, I join in and adopt the award and decision of the administrative law judge denying benefits.

William F. Ringer, Chairman

AWÄRD

Employee: Lillie Newson

Injury No.: 02-081686

Dependents: N/A

Before the

Department of Labor and Industrial

Additional Party: N/A

Relations of Missouri

Jefferson City, Missouri

Insurer: Self-Insured

Hearing Date: February 6, 2006

Checked by: JED:tr

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: (alleged March 1, 2002)
5. State location where accident occurred or occupational disease was contracted: St. Louis 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? Undetermined
8. Did accident or occupational disease arise out of and in the course of the employment? No
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: N/A
12. Did accident or occupational disease cause death? N/A Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

Employee: Lillie Newson

Injury No.:

02-081686

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 334.40
3. Weekly compensation rate: $\$ 222.93 / \ 222.93
4. Method wages computation: Stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

TOTAL:

-0-

1. Future requirements awarded: N/A

Said payments to begin N/A 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

$\mathrm{N} / \mathrm{A}$

Employee: Lillie Newson

Dependents: N/A

Employer: BJC Health System

Additional Party: N/A

Injury No.: 02-081686

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

This case involves a disputed cervical disc surgery resulting to Claimant with the alleged onset date of March 1, 2002. The Employer admits Claimant was employed on said date and that any liability was fully self-insured. The Second Injury Fund is not a party to this claim. Both parties are represented by counsel.

1. notice;
2. incidence of occupational disease (medical causation/exposure);
3. temporary total disability; and,
4. permanent partial disability.

1. Claimant began work for Employer in June 2000 performing medical records data entry work for jobs described as "claims department" and, subsequently, "EOB."
2. A significant part of her job required her to take forms from a printer, tear the perforated [tracking] edges off of the forms, and then match the forms with another set of records (or "EOB") for a given doctor.
3. Claimant testified that by the end of the year 2000, she began to feel a "crick" in her neck. Within a few weeks, she began to feel a burning sensation from the back of her neck, going down into her fingers. She later began to feel numbness in her fingers and pain in her arms.
4. Claimant treated a few times with Dr. Poetz for pain in her neck and arms during 2001. By June 2002 her symptoms had become worse and she was referred to Dr. Barry Singer, a neurologist, who then referred her to Dr. Neill Wright, a neurosurgeon. Surgical [fusion] was performed in July 2002.
5. Claimant testimony at hearing asserted that she always knew her problems were due to the repetitive task of ripping HCFA forms at her job.
6. She testified that Sandy Morris, who had previously performed the same job as Claimant and developed the "same" medical problems as she.
7. Claimant did not demand treatment and did not report the medical problem to Employer as work related until after the surgery. She notified her supervisor, Lynn Miller, that she was taking medical leave for surgery in July 2002. Claimant took six weeks off work and used her sick leave to cover a portion of her time off.

1. Patrick Venditti, manager of Employer's workers' compensation department, testified he performed a computer search for any reported work injuries or claims filed by Sandy Morris, Claimant's predecessor in her position.
2. His search revealed Sandy Morris has not reported any work injuries or filed any workers' compensation claims while working for BJC.

1. Dr. Poetz's notes contain histories during 2001 referencing arthritis and course of symptoms without reference to work (Exhibit B, pp. 1-11).

1. Dr. Singer's report in June 2002 contains histories referencing moderate to severe multi-level cervical stenosis with a two month history of right arm radiculopathy without reference to work (Exhibit E).
2. Dr. Wright's initial notes on June 2002 contain one year history of aches and pains in the neck and diagnoses of degenerative disc disease, cervical spondylosis and disc herniation at C4-5 without reference to work (Exhibit F, p. 2). Surgery occurred on July 11, 2002.
3. Interim post-surgical references by Dr. Wright include, "I encouraged her to seek other employment as her current job involves heavy manual labor." In September 2002, "She has found a new job in which she no longer has the repeated stress on her neck and arms." No enunciation of what "stress" existed may be found which might explain what ergonomics Dr. Wright contemplated. (Exhibit F, pp. 6-7, duplicated in Exhibit B).
4. Dr. Wright believed most of Claimant's symptomotology was from her cervical spondylosis which may be compounded by herniation at C4-5 (Exhibit F, p. 4, duplicated in Exhibit B).
5. Claimant did not seek workers' compensation benefits in 2000-2002 but used her group health insurance continuously to cover her medical expense, which included several months follow-up with Healthsouth (Exhibits H and I).

1. Claimant's expert, Dr. Raymond Cohen, a neurologist, testified that Claimant's repetitive work caused a cumulative trauma disorder in her cervical spine, and attributes the disc herniation to this cumulative trauma disorder.
2. During direct examination and again on cross examination he said he relied on ergonomic descriptions provided by Claimant including the tearing of 400 to 600 forms per day and, additionally, did not know how many pages she tore at one time.
3. On cross examination, he testified this was the first patient he has seen where he opined the clerical job duty of tearing forms caused a disc herniation.
4. He testified other cases he has seen involving clerical workers with disc herniations involved some lifting in their work.
5. He specifically acknowledged that Claimant did not describe any overhead lifting.

1. Employer's expert, Dr. John Krettek is a neurosurgeon in practice for twenty years. He testified that Claimant's repetitive work duties did not cause the herniated disk in Claimant's neck and her medical treatment.
2. Dr. Krettek testified that Claimant's medical profile and work did not produce the type of cervical condition she exhibits.
3. He stated the repetitive stress could cause Claimant to have other disorders, such as carpal tunnel syndrome or deQuervain's syndrome as a result of [pinching] required to tear paper.
4. Dr. Krettek did not see a connection between the Claimant's repetitive use of her arms and hands and her cervical disc herniation.
5. Dr. Krettek found Claimant had no disability related to her work.

Claimant alleges her job duties with Employer caused her to develop a cervical disc herniation. The review of the medical evidence and testimony at trial does not support this contention. Claimant must establish that the occupational disease was caused by conditions in the workplace. Dawson v. Associated Electric, 885 S.W.2d 712 (Mo. App. 1994). Work must be a substantial factor in causing the resulting medical condition or disability. Section 287.020.2 RSMo (2000). The medical expert's opinion must establish a recognizable link between the work and the disease. Hayes v. Hudson Foods, Inc., 818 S.W.2d 296 (Mo. App. 1991). Here, the record of evidence does not prove that claimant's condition is work related.

Claimant's testimony contained inconsistencies with prior statements and treatment records. Claimant testified at trial that she tore forms in sets of five or six forms at one time. On cross-examination, she was impeached with her deposition testimony wherein she declared the forms had a thickness of two sheets of paper. At the hearing she also testified that she tore many more forms than described in her deposition. Claimant asserted that the deposition transcript contained a typographical error. (It is noted that Dr. Cohen's testimony and report relies on Claimant's representation.)

Claimant was again impeached with her deposition testimony after she stated at trial that she performed lifting for her job with BJC from 2000-2002. When asked about her deposition testimony, she acknowledged her answer was "no." Also, while asserting at trial that she has many symptoms related to her cervical spine and has not benefited from surgery with Dr. Wright, her deposition testimony reveals her earlier belief that she had benefited from the surge