Wanda Farmer v. Advanced Circuitry Division of Litton

I agree with the administrative law judge's finding that employee is entitled to compensation in this claim. However, I disagree with the administrative law judge's finding that employee is entitled to an award of future medical care and treatment.

The administrative law judge found that employee was entitled to future medical care as employee met her burden of proof by reasonable probability that she was in need of such care based on Dr. Volarich's opinion regarding her need for future medical care. However, I don't believe employee has shown that any future medical care was reasonably required to cure and relieve the effects of her 1983 injury. Competent and substantial evidence shows that any treatment received subsequent to her 1983 injury was due to either separate injuries or to the 1975 injury. Employee was not able to show that her need for future medical care stemmed from her 1983 injury.

Employee had a prior injury in 1975 as well as several injuries following her 1983 injury. Dr. Volarich testified that employee experienced pre-existing disability as a result of her 1975 injury. The record shows that employee had ongoing complaints leading up to her 1983 injury with regard to her low back and lower extremity. She also avoided lifting heavy objects, repetitive bending, twisting, pushing, pulling and carrying; had trouble with fixed positions such as sitting and standing for extended periods of time; and took frequent breaks while performing household chores. Subsequent to her 1983 injury, the medical record shows that employee on three separate occasions fell due to ice and bad weather and experienced significant pain in her back as a result of the three distinct falls. She also had increased symptoms after being involved in an automobile accident. The record shows other aggravating events during the more than twenty year time span of employee's case.

Furthermore, I find that employee is not credible as she was not consistent in her testimony. Employee's statements and testimony varied with regard to her symptoms following her 1975 injury. She maintained during her 1995 deposition and in the history provided to Dr. Vale that she did not experience back pain or avoid activities after her 1975 injury. However, in the history taken by Dr. Volarich and testimony at trial, employee maintained that she did experience ongoing back pain following her 1975 injury. Employee completely contradicts her earlier sworn testimony and therefore, I find her to be lacking credibility.

Employee's need for future medical care must flow from her 1983 injury and not from any subsequent or prior injuries. Because employee was unable to show that any future medical care directly flowed from her 1983 injury, employee has failed to show that future medical care was reasonably required in her case.

Based upon my review of all the evidence, I find employee did not meet her burden of proof with regard to an award of future medical care and treatment. Accordingly, I would modify the decision of the administrative law judge and deny employee an award of future medical care and treatment for her 1983 injury.

For the foregoing reasons, I respectfully dissent from the portion of the majority's decision awarding future medical care and treatment.

Alice A. Bartlett, Member

Employee: Wanda Farmer

Employer: Advanced Circuitry Division of Litton

Additional Party: Second Injury Fund

Insurer: Constitution State Services

Injury No. 83-002257

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: 1-29-1983
5. State location where accident occurred or occupational disease was contracted: Advanced Circuitry Division of Litton -- Springfield, Greene 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:
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Back
14. Nature and extent of any permanent disability: 35 % body as a whole
15. Compensation paid to-date for temporary disability: $\ 24,922.43-- 169 weeks
16. Value necessary medical aid paid to date by employer/insurer?
17. Value necessary medical aid not furnished by employer/insurer?
18. Employee's average weekly wages: $\ 221.20
19. Weekly compensation rate: $\quad \ 147.47
20. Method wages computation: By agreement

1. Amount of compensation payable:

The employer/insurer are ordered to provide claimant with such future medical care as is necessary to cure and relieve her from the effects of her injury.

23 weeks of permanent partial disability from Employer (140 weeks of permanent partial disability less credit of 117 weeks.)

1. Second Injury Fund liability: 0

TOTAL:

$\ 3,391.81

1. Future requirements awarded: Future medical

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 25 % of all payments hereunder in favor of the following attorney for

Employee: Wanda Farmer

Injury No: 83-002257

Dependents:

Employer: Advanced Circuitry Division of Litton

Additional Party: Second Injury Fund

Insurer: Constitution State Services

Checked by: $\mathrm{RHH} / \mathrm{meb}$

The parties presented evidence at a hearing on November 29, 2006. Appearing at that hearing were claimant and her attorney, Gregory Groves; Raymond Whiteaker and Kevin Rapp for employer/insurer; and Cara Harris for the Second Injury Fund. At that hearing the parties presented the following issues for determination:

1. Whether claimant is entitled to future medical benefits.
2. The nature and extent of claimant's disability, with claimant alleging permanent total dsability.
3. The liability of the Second Injury Fund for any permanent disability.

The parties agree that the workers' compensation rate was $\ 147.47, and claimant's average weekly wage was $\ 221.20.

The parties additionally agree that employer/insurer have paid to claimant $\ 24,922.43, representing 169 weeks of compensation. The parties additionally agree that a 52 -week healing period applies to this case which equates to $\ 7,668.44. The parties additionally agree that employer/insurer is entitled to a credit toward any permanent disability for the remainder of the payments made to claimant which total $\ 17,253.99.

Two witnesses testified at the hearing, claimant (whose deposition was also admitted into evidence) and Phillip Eldred, a certified rehabilitation counselor hired by claimant's attorney. The parties additionally presented into evidence claimant's medical records for her 1975 injury and her 1983 injury. In addition, the depositions of Dr. David Volarich, an occupational medicine specialist who is an examining and rating physician hired by claimant, and Michael Lala, a certified rehabilitation counselor, hired by the Second Injury Fund, were admitted into evidence.

Claimant's accidental injury occurred on January 21, 1983, whenshe slipped and fell while at work for Advanced Circuitry Division of Litton in Springfield, Greene County, Missouri. Claimant fell on her right hip, her back, and the back of her head. She began treatment almost immediately and has continued to treat for her condition through the date of the hearing. Claimant's treating doctors have provided her with conservative care (including prescriptive medications, injection therapy and blocks, and a chymopapin injection), a surgery on March 21, 1983, by Dr. Harmon, who performed a "[l]aminectomy L4-L5 interspace with removal of a herniated 4th lumbar disc and adhesiolysis of L5 interspace," and a second surgery, also performed by Dr. Harmon, on March 8, 1993, for "[b]ilateral decompressive laminectomy with foraminotomies, L4 and L5.

Claimant has been rated by Dr. Harmon, Dr. Janie Vale, and Dr. Volarich. On April 11, 1986, Dr. Harmon initially rated claimant as having a 20 percent disability to the body as a whole for her 1983 injury. On December 6, 1988, Dr. Harmon rated claimant as follows: "Please be advised that her over all disability, I think, is about 35 percent. In regards to after her first operation for disc removal it would have been in the neighborhood of 15 precent but having a resected herniated disc without significant sequela she now totals about 35 percent. I think this is not going to appreciably change with time." Later, on January 26, 1993, Dr. Harmon rated claimant's disability for the 1983 injury alone as follows: "The above named patient has been under my care due to a work related injury sustained on January 21, 1983, whileemployed with Litton Industries. Her overall disability as a result of this injury, is about 35 % in regard to her first operation for disc removal. It would have been in the neighborhood of 15 %, but having a resected disc without significant sequela, she now totals 35 %. I do not think that this will change appreciably with time." He did not again rate claimant even though he later performed surgery on her back on March 8, 1993, and continued to treat claimant thereafter for several years (through April 12, 1999).

On March 29, 1988, Dr. Janie Vale assessed claimant's disability from the 1983 injury alone as being 25 percent to the body a