Kim Hulsey v. Hawthorne Restaurants

the administrative law judge erred in concluding that employee failed to meet the burden of proof on the issues of accident and medical causation with regard to her lower back injury.

Employee has the burden of proving all the essential elements of a claim for workers' compensation benefits by reasonable probability, not absolute certainty. McDermott v. City of Northwoods Police Dep't, 103 S.W.3d 134, 138 (Mo.App. E.D. 2002). Employee must prove not only that the accident arose out of and in the course of his employment, but that the alleged injury was directly caused by the accident. Landers v. Chrysler Corp., 963 S.W.2d 275, 279 (Mo.App. E.D. 1997) (overruled on other grounds).

The administrative law judge found that employee proved that she suffered an accident on December 1, 2000; however, found that her back injury and later fusion were not medically causally related to the alleged accident. Competent and substantial evidence supports a finding that employee did suffer a back injury on December 1, 2000 and that her later fusion was a direct result of that injury.

Employee consistently reported an onset of symptoms that occurred following the injury, including severe back pain as well as a numb sensation that radiated down through her lower extremities, predominantly on the right. Furthermore, employee has established through medical evidence that the work injury sustained on December 1, 2000, was the substantial factor in the cause of employee's back injury.

An MRI taken after the accident on July 23, 2001 showed a dominant disc protrusion at L5-S1 centrally within the canal as well as smaller focal protrusions centrally at L4-5 and L3-4. The MRI of the sacroiliac joints showed no specific sacroiliac pathology. Employee underwent physical therapy as well as trigger point and epidural steroid injections which provided some alleviation of her symptoms temporarily. Employee experienced re-exacerbation of her symptoms when she bent over and experienced a snapping sensation in her back. As a result, employee was taken to the emergency room where x-rays were taken of her spine and an injection was administered.

Employee's surgeon, Dr. Raskas, ordered another MRI performed on August 27, 2003 which revealed multilevel degenerative disc and facet disease; a small focal central protrusion at L5-S1; and a mild protrusion that lateralizes slightly to the right at L2-3. The myelogram CT revealed a bulging disk at the L4-5 level. After reviewing her MRI and CT, Dr. Raskas recommended surgery which was performed on May 14, 2004. Employee underwent a complete discectomy as well as an anterior lumbar interbody fusion at L4-5 and L5-S1.

However, postoperatively employee developed a hematoma of her left groin which caused acute left pelvic deep venous thrombosis of the iliac system. She was placed on medication and treated with anticoagulant and thrombolytic therapy.

Dr. Cohen opined that employee's herniated disc at L5-S1, right lumbosacral myofacial pain disorder, right lumbar radiculitis, and deep venous thrombosis were causally related to her work-related accident. He further opined that her work injury was a substantial factor in her disability and that she was in need of additional treatment. Dr. Cohen acknowledged that employee did suffer from degenerative disc disease; however stated that employee's back surgery was performed as a result of employee's back trauma due to her work accident. Dr. Cohen based his opinion on employee's medical records as well as his examinations of employee and a thorough medical history. Dr. Cohen's testimony was credible as he gave a thorough and reasonable explanation for the expert medical opinion he rendered.

I find the medical opinion offered by Dr. Cohen more persuasive than that of Dr. Lange. Dr. Lange evaluated employee at the request of employer and opined that employee suffered a right sacroiliac joint injury as a result of falling on the side of her pelvis. Dr. Lange acknowledged that his diagnosis of sacroiliac joint injury could prove to be incorrect in the event the fusion resolved employee's pain complaints. Dr. Raskas's notes indicate that after her surgery employee reported significant improvement with regard to her condition including a decrease in her pain levels.

Despite the compelling evidence, the administrative law judge found that employee was not entitled to unpaid or future medical benefits. However, employee was able to show that her back surgery was necessary to cure and relieve her from the effects of her injury and that there is a reasonable probability that she may need additional medical treatment by reason of her work-related accident. Consequently, employee is entitled to reimbursement

for expenses associated with employee's treatment including back surgery and post-operative complications as well as future medical care necessitated by her condition.

Employee has met her burden of proof by establishing that she suffered a work-related injury on December 1, 2000 and that her back condition, as well as subsequent venous thrombosis, is medically causally related to the work-related injury. Accordingly, I would modify the decision of the administrative law judge to award compensation for her back and related conditions as well as unpaid and future medical benefits.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission to deny compensation for her back and subsequent conditions.

John J. Hickey, Member

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: $12 / 01 / 00$
5. State location where accident occurred or occupational disease was contracted: Franklin 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? 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 suffered body as a whole injury at work after falling off of a chair
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: body as a whole
14. Nature and extent of any permanent disability: 20 % permanent partial disability of the body as a whole, referrable to sacroiliac joint

1. Compensation paid to-date for temporary disability: None
2. Value necessary medical aid paid to date by employer/insurer? None
3. Value necessary medical aid not furnished by employer/insurer? None/See Award
4. Employee's average weekly wages: $\ 300.00 per week
5. Weekly compensation rate: $\$ 200.00 / \ 200.00
6. Method wages computation: by application of the law to the facts

1. Amount of compensation payable:

The issue as to past medical expense is found in favor of the employer. See Award.

1 and $1 / 7 weeks of temporary total disability at \ 200.00 per week . . . . . . . . . . $\ 228.58

80 weeks of permanent partial disability from Employer at $\ 200.00 per week . . . . $\ 16,000.00

TOTAL:

$\ 16,228.58

1. Future requirements awarded: Issue as to future medical found in favor of employer. 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:

Lawrence O. Willbrand