Susan Van Winkle v. Lewellens Professional Cleaning, Inc.

Compensation Law, I believe the decision of the administrative law judge should be reversed.

The administrative law judge makes several findings of fact which are not supported by the evidence.

- "I find that the physical movement Claimant associated with the 'pop' was benign."

Dr. Levy believes the twisting motion was traumatic, meaning it was an event that was out of the ordinary and caused a problem. Far from believing the twisting movement was benign, Dr. Levy believes that the motion was the prevailing factor resulting in employee's pain and subsequent medical condition.

Dr. Oh stated, "I have no reason to doubt that she turned and heard something pop and that caused her pain." When asked if the employee's twisting caused her pain, Dr. Oh responded, "If that's what she says, I don't dispute what she says."

- "I find that Claimant's symptoms are coming from the Tarlov cysts, and not from an injury to a disc, vertebra, muscle, or tendon."

Although Dr. Levy believes a change in pathology of the cysts contributed to employee's initial symptoms because the cysts were impinging on a nerve root, Dr. Levy does not believe the cysts are causing employee's ongoing symptoms. Dr. Levy believes that employee suffers from a chronic lumbrosacral strain.

Dr. Oh stated that if the cysts were the cause of the pain, he would see mass effect on the myelogram. "I have no reason to doubt that she turned and heard something pop and that caused her pain....I don't think it caused the cyst." "[T]he structural lesions that were identified were addressed and they did not make a difference after surgery". "I did not think the perineural cysts were related to her pain." "I would characterize a symptomatic perineural cyst as rare". "I'm not denying her pain or suffering. I'm just saying that I don't think the cyst had anything to do with it."

Both medical experts conclude that the pain employee is currently experiencing is not the result of the cysts. The administrative law judge concludes otherwise. In the face of uncontradicted expert testimony, I believe the administrative law judge erred in concluding employee's symptoms are coming from the Tarlov cysts.

The Commission may not arbitrarily disregard and ignore competent, substantial and undisputed evidence of witnesses who are not shown by the record to have been impeached, and the Commission may not base their finding upon conjecture or their own mere personal opinion unsupported by sufficient competent evidence. Houston v. Roadway Express, Inc., 133 S.W.3d 173, 179 (Mo. App. 2004). "Causation is established by medical testimony. The commission cannot find there is no causation if the uncontroverted medical evidence is otherwise." Hayes v. Compton Ridge Campground, Inc., 135 S.W.3d 465, 470 (Mo. App. 2004), citing Elliott v. Kansas City, Mo., School Dist., 71 S.W.3d 652, 657-58 (Mo. App. 2002). Nor should the Commission find there is causation from a particular source - here the cysts -- if the uncontroverted medical evidence is otherwise.

- "It is clear that it was only a matter of time, and a very short time at that, before the Tarlov cysts would become symptomatic."

This conclusion is contrary to all of the expert testimony. Drs. Levy and Oh both testified that it is uncommon for Tarlov cysts to become symptomatic.

Dr. Levy said, "many people have these all their life and don't have any symptoms."

Dr. Oh testified that he, "discussed with [employee] that these arachnoid cysts or perineural cysts are congenital findings usually and are most often asymptomatic" "There are a lot of people that walk around with perineural / arachnoid cysts, and most of these are asymptomatic."

The administrative law judge award reveals several misstatements of law.

- "The requirement that the event happen 'violently' suggests that some significant force be applied to the body for an 'accident' to occur. There is no proof whatsoever that any significant force was applied to Claimant's body in the 'event,' and, in fact, the evidence proves that there was minimal, if any, force applied to Claimant's body."

The administrative law judge ignores over 70 years of case law when he suggests that some significant force must be applied to the body for an "accident" as defined in $\S 287.020$ RSMo to occur. The Missouri Supreme Court considered and rejected the administrative law judge's analysis of the "suddenly and violently" requirement in 1932 and the analysis has been repeatedly rejected ever since:

What the statute means is that something must happen which, at the time, is sufficiently violent to produce an effect that can be noticed or observed by human senses. The objective symptoms of an injury, as that term is understood, were also present in this case. The employee became so ill that it was necessary to take him home.

Objective symptoms of an injury have been held to include:

"'. . . weakness, pallor, faintness, sickness, nausea, expressions of pain clearly involuntary, or any other symptoms indicating a deleterious change in the bodily condition may constitute objective symptoms as required by the statute.'"

Schulz v. Great Atlantic \& Pacific Tea Co., 331 Mo. 616, 623 (Mo. 1932).

"Violently" is a relative term having a connotation sufficiently broad to cover causes found in that vast area between the most minor compensable injury and accidental death, and is properly descriptive of any cause efficient in producing a harmful result.

Raef v. Stock-Hartis, Inc., 416 S.W.2d 201, 205 (Mo. App. 1967).

[A] strain is compensable even though the work being performed at the time of the injury was routine and the strain was not unusual or abnormal...Where the performance of the usual and customary duties of an employee leads to physical breakdown or a change in pathology, the injury is compensable.

Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781, 784 (Mo. 1983).

[T]he injury need not result from any unusual or abnormal event. Rather, it is sufficient to show only that the performance of usual and customary duties led to a breakdown or a change in pathology. The worsening of a preexisting condition is a 'change in pathology.'

Bennett v. Columbia Health Care, 80 S.W.3d 524, 529 (Mo. App. 2002).

The administrative law judge erred in questioning the occurrence of an accident based upon a flawed understanding of the meaning of "violently."

- "Keeping the 'violently' requirement in mind, can it be seen that Claimant's injury followed as a natural incident of her work? Claimant's physical movement preceding the "pop" and subsequent pain was benign, and in no way violent. Is it 'natural' that such a benign movement would cause such a significant disability as Claimant now suffers? Logic and common sense certainly lead me to believe that it would be unnatural for such a benign physical movement to cause such a significant disability."

Both medical experts testified that employee's twisting movement could cause employee's lumbar pain. In fact, Dr. Levy believes the movement was the prevailing factor in causing employee's low back condition. The unanimous opinion of the medical experts that the twisting movement could have caused employee's low back condition makes clear that the administrative law judge reliance on "logic and common sense" to reach a contrary opinion was error. Medical causation of employee's symptoms is not uncomplicated. The

commission may not substitute the administrative law judge's personal opinion on the question of medical causation of the symptoms for the uncontradicted testimony of a qualified medical expert. See Wright v. Sports Associated, 887 S.W.2d 596, 600 (Mo.banc 1994)

"It is clear that Claimant's injury did 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 nonemployment life (if, indeed, such a benign physical movement can be characterized as a 'hazard' or 'risk' at all). Any worker, outside of his or her employment life, would perform the same benign physical movement dozens of times each day - getting into and out of a vehicle, getting into and out of bed, getting into and out of the bathtub, getting into or out of a seated position, and many others."

Though the administrative law judge's observations may be true, they have little place in the analysis of this claim. Missouri case law is clear. To arise out of the employment, the injury must be incidental to and not independent of the employment relationship. Drewes v. Trans World Airlines, Inc., 984 S.W.2d 512, 514 (Mo.banc 1999). There is no question that changing linens was not independent of employee's employment relationship with employer. It was one of employee's primary duties. Once again, "the injury need not result from any unusual or abnormal event. Rather, it is sufficient to show only that the performance of usual and customary duties led to a breakdown or a change in pathology." Bennett, 80 S.W.3d at 529.

- "Dr. Jerome Levy, who testified on Claimant's behalf, agreed that Claimant's physical movement could have happened anywhere, at any time. He testified:

Q. One question I was going to ask you is given your testimony that there was nothing unusual about this twisting on April 4, 2003, could this have happened to her anywhere at any time?

A. Sure. She could have twisted in the garden or something, but that's not the history. Had she twisted somewhere else or she was bathing or something, sure, that could have triggered the cyst, but it's not the history that she gave me.

Q. Well, but my question was it could have happened anywhere, any time, and your answer is yes?

A. Yes.

Q. Could have been in the bathtub at home, making a bed at home?

A. It could have been.

Q. Or grocery shopping?

A. Sure.

The quoted testimony of Dr. Levy also makes it clear that the benign physical movement which occurred at Claimant's workplace on April 4, 2003, was no more than a mere "triggering or precipitating factor" in causing her disability. It is clear that it wa