The administrative law judge correctly listed the aforementioned definition, but she did not correctly include what a claimant must prove to prevail on a theory of occupational disease. In examining occupational diseases, the courts have made clear that the claimant must prove by substantial and competent evidence that:
- She has contracted an occupational disease and not an ordinary disease of life by showing that:
- a. her work creates exposure to the disease greater than or different from that which affects the public generally; and
- b. there is a recognizable link between the disease and a feature of jobs of claimant's job type.
- A probability that the occupational disease was caused by conditions in the workplace.
See *Smitth v. Climate Engineering*, 939 S.W.2d 429, 433 (Mo. App. 1996).
In this case, Dr. Wagner opined that the onset of symptoms experienced by employees in June 2001, and the cervical surgery she underwent in December 2001, were the result of degenerative cervical disease, and that nothing employee did, while working for employer, aggravated this disease, caused the onset of symptoms she experienced in June 2001, or hastened the need for her cervical fusion.
Further, Dr. Coyle testified that he believes that the medical treatment for the cervical spine that employee received on or after July 1, 2001, was necessitated by a progressive deteriorating degenerative condition and not due to any incident or work activity at either employee's previous job, or with employer.
Dr. Cohen opined that employee sustained an overuse disorder of the cervical spine and chronic pain syndrome, which resulted in permanent neck disability, work limitations, and the need for medical treatment, due to her injury on or about June 27, 2001, and her work with employer. Dr. Cohen attributed no medical treatment, disability, or work limitations to employee's previous job.
Finally, Dr. Hoffman included in a letter dated August 12, 2002, that it was his opinion that employee had "aggravation of pre-existing problems with her occupation both at [her previous job and with employer]."
The most persuasive fact in determining whether Dr. Wagner and Dr. Coyle's opinions should be found more credible than Dr. Cohen and Dr. Hoffman's is that the history employee gave Dr. Cohen and Dr. Hoffman is directly contradicted by employee's medical records.
Employee told Dr. Cohen that after she experienced a burning feeling in her neck for about five minutes after lifting a patient at her previous job on April 1, 2000, and that she had no symptoms at all in her neck until June 27, 2001. Employee also told Dr. Cohen that she previously had some neck discomfort from doing typing work, but the pain was not significant and resolved after she went home and applied lcy Hot. Employee also told Dr. Cohen that the only medical treatment she received for neck discomfort before June 27, 2001, was the lcy Hot she applied at home.
Likewise, employee told Dr. Hoffman that before the June 2001, onset of symptoms, she had experienced some problems off and on for years, but the symptoms would subside within a day or so. Dr. Hoffman performed surgery on employee and provided his August 12, 2002, opinion letter without ever having seen any of employee's MRIs.
As the administrative law judge stated, employee's medical records show that for at least four years before June 27, 2001, employee had bouts of pain that were severe enough and lasted long enough for her to seek medical evaluation, chiropractic treatment, physical therapy, and prescription medication as late as July 2000, when she was given a prescription for Flexeril (with three refills).
Dr. Cohen testified that employee's history was critical, and that he would determine causation from the history given to him by the patient.
On the other hand, Dr. Wagner and Dr. Coyle had employee's pre-2001 treatment records, which showed the history of medical treatment and evaluations for neck pain. In addition, when employee saw Dr. Coyle on February 16, 2005, she admitted that she had had flare-ups of neck pain over the years for a long period of time, but that the symptoms would go away for a spell and then would hurt again. Dr. Coyle also took notice that employee testified that her intermittent bouts of neck pain were not precipitated by work activities.
Drs. Wagner and Coyle had the benefit of employee's pre-2001 medical records in determining that employee's condition is more accurately diagnosed as degenerative cervical disease and not an occupational disease, whereas Drs. Cohen and Hoffman based their opinions off of the inaccurate self-serving history given to them by employee.
For the foregoing reasons, we find, as did the administrative law judge, that the opinions of Drs. Wagner and Coyle are more credible than the opinions of Drs. Cohen and
Hoffman. Therefore, we find that even if it is somehow found that employee proved by substantial and competent evidence that her work created an exposure to her cervical disease greater than or different from that which affects the public generally; and that there is a recognizable link between her cervical disease and her job with employer, she still does not prevail on a theory of occupational disease because she failed to prove a probability that her cervical problems were caused by conditions in her workplace. The overwhelming weight of the evidence suggests that employee suffers from degenerative cervical disease that began far before her employment with employer and that it is this degenerative disease that is the cause of her cervical problems, not her work employer.
As stated above, the Commission agrees with the conclusions reached by the administrative law judge and affirms with supplementation as provided herein. Thus, employee's claim for past medical expenses, future medical treatment, temporary total disability benefits, and permanent total or partial disability benefits, is denied.
The award and decision of Administrative Law Judge Vicky Ruth, issued July 8, 2009, is affirmed, and is attached and incorporated by this reference.
Given at Jefferson City, State of Missouri, this $25^{\text {th }}$ day of February 2010.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
NOT SITTING
William F. Ringer, Chairman
Alice A. Bartlett, Member
John J. Hickey, Member
Attest:
Secretary