Doris Lacy v. Federal Mogul

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

After a review of the entire record as a whole, and consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

The administrative law judge found that employee failed to prove that her cervical and lumbar conditions were a result of her work related injury. However, competent and substantial evidence shows that employee did suffer aggravation of her cervical condition as well as a back injury on May 17, 2001.

The administrative law judge found that these issues boil down to a question of credibility and neither the medical records nor the other evidence corroborated employee's assertion that her back condition and worsened cervical condition were a result of the accident on May 17, 2001. The administrative law judge called employee's credibility into question because he believed that employee was inconsistent in reporting her injury.

However, employee consistently reported symptoms following her May 17, 2001 injury, including back pain as well as an increase in the intensity of the pain in her neck. The medical records and injury reports do in fact corroborate employee's version of the May $17^{\text {th }}$ accident. As a result, I find employee to be credible and worthy of belief.

Employee's initial injury report states that employee sustained injuries to her neck and back while she was in the course of performing her usual and customary work duties. Employee testified that she reported the injury to her supervisor promptly after the accident. Another co-worker witnessed the slip and fall accident and was present when she reported the injury to employer. Employee provided consistent testimony with regard to her injury stating that she slipped and fell at work and felt immediate discomfort in her back and neck. The administrative law judge made reference to a delay in seeking treatment for her conditions; however, employee sought treatment within a month of the injury.

Employee testified that she sought treatment from her treating family doctor, Dr. Campbell, who then referred employee to neurosurgeon, Dr. Yingling. Employee reported the injury to her treating doctors and underwent an MRI of the cervical spine which revealed a bulging disc at C4-5. Dr. Yingling recommended physical therapy and prescribed her pain medication. Employee testified that she requested medical treatment from employer during this time period which was denied. The medical record shows that employee complained of low back pain in July of 2001 and continued to report problems with her back thereafter. Employee went to Dr. Burns, a pain management specialist who treated her for her condition. Employee had never sought treatment for back problems before the 2001 accident. The medical record supports employee's assertion as it does not reference any complaints regarding back problems prior to May 17, 2001.

The record shows that employee had a pre-existing cervical condition, a cervical fracture as a result of a motor vehicle accident on March 12, 1999. However, aggravation of a pre-existing condition is compensable if employee establishes a direct causal link between her job duties and the aggravated condition. Smith v. Climate Engineering, 939 S.W.2d 429, 433-34 (Mo.App. E.D. 1996) (overruled on other grounds).

Employee received medical care and treatment for her pre-existing cervical condition; however, employee's workrelated injury clearly caused her established cervical condition to worsen. Employee continued to work for a period of five months including overtime following her cervical fracture. As a result of her 2001 slip and fall injury, employee experienced a change in her condition. Employee experienced an immediate onset of pain after her 2001 injury, and reported the accident to employer the same day. The symptoms produced as a result of her injury, primarily intense pain, prevented employee from performing the job duties that she had been able to perform prior to her 2001 injury. Employee subsequently sought care from multiple physicians for her exacerbated cervical condition. Employee testified that she had never felt pain with regard to her neck similar to that which she experienced following her 2001 injury.

Employee's testimony was supported by the expert opinion of employee's treating doctor, Dr. Campbell, who testified that employee's chronic pain was made worse by level and intensity after the May 2001 event. He testified that employee required stronger and probably more frequent medication following the 2001 accident. Additionally, Dr. Volarich testified that as a result of the May 17, 2001 accident, employee suffered a 20\% permanent partial disability to the body as a whole rated at the cervical spine as well as a 20\% permanent partial disability to the body as a whole rated at the lumbosacral spine.

Competent and substantial evidence establishes that employee is entitled to permanent total disability benefits. Under the Missouri Workers' Compensation Law employee is considered totally disabled if he is unable to return to any employment, not merely the employment in which he was engaged at the time of the accident. § 287.020.7, RSMo. The test for permanent-total disability is whether employee is able to competently compete in the open labor market given his condition and situation. Reiner v. Treasurer of State of Missouri, 837 S.W.2d 363, 367 (Mo.App. E.D. 1992).

Employee's vocational expert, Ms. Shea, as well as employer's vocational expert, Mr. England, both testified to the fact that employee was not employable in the open labor market. In addition, Dr. Volarich, placed restrictions on employee that would prevent employee from competing in the open labor market, including the need to change positions frequently to maximize comfort as well as resting in a supine fashion if needed. The record clearly shows that employee meets the standard for permanent total disability.

Furthermore, employer had notice of employee's accident and injuries and failed to offer employee medical treatment. Employer thus waived its right to direct medical care and treatment and is responsible for any treatment sought by employee to cure and relieve the symptoms of her injuries. Employer is also responsible for future medical treatment. Dr. Campbell testified that employee was in constant need of pain medication. Dr. Volarich opined that employee's condition would require ongoing treatment for her pain syndrome including, but not limited to anti-inflammatory medications, muscle relaxants, physical therapy and similar treatments. He recommended ongoing treatment at a pain clinic with trigger injections, epidural steroid injections and similar treatments to control her myofascial pain syndrome. This constitutes competent and substantial evidence demonstrating the need for future medical care which justifies the award of future medical benefits.

Therefore, employee has met her burden by establishing that she suffered a work-related injury on May 17, 2001, that her condition is medically causally related to the work-related injury, and that she is permanently totally disabled as a result. Employee has also established entitlement for associated unpaid medical costs, as well as, the need for ongoing treatment justifying an award of future medical benefits. Accordingly, I would reverse the decision of the administrative law judge and award compensation.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission to deny compensation.

John J. Hickey, Member

ISSUED BY DIVISION OF WORKERS' COMPENSATION

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? N/A
5. State location where accident occurred or occupational disease contracted: N/A
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? N/A
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 happened or occupational disease contracted: N/A.
12. Did accident or occupational disease cause death? N/A
13. Parts 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 total disability: None.
16. Value necessary medical aid paid to date by employer-insurer? N/A.
17. Value necessary medical aid not furnished by employer-insurer? N/A.
18. Employee's average weekly wage: $\ 529.50.
19. Weekly compensation rate: $\ 353.00 for total disability. $\ 314.26 for permanent disability.
20. Method wages computation: By Agreement.
21. Amount of compensation payable: None.

Second Injury Fund liability: None.

Future requirements awarded: None.

Said payments to begin (see findings) and be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subje