John Wilken v. Qualserv Corporation

sustained a burn to his lower back. Employee testified that between his back pain and the burn, he was basically immobile. Employee testified that he was directed by medical personnel not to move around. Employee stated that, due to his back pain and burn, he could not lie down or sit back to sleep. Instead, he slept sitting on the edge of a chair resting his head and hands on his cane.

On February 26, 2006, employee developed deep vein thrombosis that caused a pulmonary embolism. Based upon conversations with his physicians, employee understands that the pulmonary embolism was caused by his immobility. Employee was hospitalized three times due to the pulmonary embolism.

Drs. Koprivica and MacMillan agree that employee had significant and serious preexisting conditions of ill related to his back and spine. In particular, employee suffered from preexisting multi-level degenerative disc disease, moderate stenosis the length of his lumbar spine, and severe stenosis at L5-S1 with spondylolisthesis. Both doctors believe employee is not a surgical candidate. Both doctors believe employee is permanently and totally disabled.

Dr. Koprivica testified that if employee's history that he had no preexisting back symptoms is accurate, Dr. Koprivica believes that the February 6, 2006, incident was the prevailing factor in aggravating employee's spondylolisthesis. Dr. Koprivica believes the back pain from the February 6 incident combined with the treatment burn were the prevailing factors leading to employee's immobility; employee's immobility led to employee's development of deep venous thrombosis; employee's deep venous thrombosis led to the pulmonary embolism; the pulmonary embolism led to the development of pulmonary hypertension and secondary atrial dilation with chronic atrial fibrillation which constitute employee's ongoing cardiopulmonary disease. Dr. Koprivica believes that employee will need ongoing medical care for his cardiopulmonary disease. Finally, Dr. Koprivica believes that the February 6, 2006, incident was the prevailing factor in rendering employee permanently and totally disabled.

Dr. MacMillan questions employee's history that he had no preexisting back symptoms in light of what Dr. MacMillan describes as a "train wreck" of a spine. Even if he were to accept employee's history as accurate, Dr. MacMillan does not believe the February 6, 2006, incident caused a structural change in employee's back that constitutes an injury. Further, Dr. MacMillan does not believe the February 6, 2006, incident is the prevailing factor in employee's back condition or permanent total disability. Rather, Dr. MacMillan believes the prevailing factor in causing employee's back condition and disability was employee's developmental, congenital and agerelated degenerative spinal conditions. Dr. MacMillan agrees that the sequela of employee's injury developed as described by the treating physicians, which is consistent with Dr. Koprivica's opinion.

Section 287.020.2 RSMo, defines "accident" for purposes of the Workers' Compensation Law.

The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

We believe employee experienced pain during the 2006 work mishaps described above. Pain can be a symptom of an injury. Both of employee's early 2006 work mishaps constitute accidents under the above definition.

Section 287.020.5 defines "injury": "The terms 'injury' and 'personal injuries' shall mean violence to the physical structure of the body... and such disease or infection as naturally results therefrom."

287.020.3 RSMo, describes when an injury is compensable:

(1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not 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.

(3) An injury resulting directly or indirectly from idiopathic causes is not compensable.

Missouri courts have had occasion to interpret the meaning of the above-quoted section in the context of work aggravations of preexisting conditions.

[U]nder current law, in order for an event that arises out of and in the course of one's employment to entitle an employee who has a prior disability to additional benefits, the event must be a prevailing factor that

results in further disability. It is not sufficient that the event simply aggravates a preexisting condition. § 287.020; Gordon v. City of Ellisville, 268 S.W.3d at 459.

Johnson v. Ind. Western Express, Inc., 281 S.W.3d 885, 892-893 (Mo. App. 2009), citing Gordon v. City of Ellisville, 268 S.W.3d 454 (Mo. App. 2008).

We find credible Dr. MacMillan's medical opinions. We do not believe the work incidents caused a change in the physiology of employee's spine; that is, we do not believe that the work incidents caused "violence to the physical structure" of employee's spine. In short, employee did not sustain an injury as that term is defined in the Workers' Compensation Law.

We agree with the opinion of Dr. MacMillan that neither the January 24, 2006, incident nor the February 6, 2006, incident was the prevailing factor in causing employee's resulting back condition, its sequela, or employee's resultant disability. Employee's back injury did not arise out of or in the course of his employment.

We reverse the award of the administrative law judge. We deny compensation. All other issues are moot.

Given at Jefferson City, State of Missouri, this $16^{\text {th }}$ day of March 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed.

I believe employee's testimony that his back was asymptomatic before the work accidents. I agree with the administrative law judge that twisting while lifting and/or stepping is a mechanism known to cause back injuries. Employee suffered pain immediately upon twisting. The twisting was the primary factor, in relation to any other factor, in causing the back pain, that led to the treatment, that led to the burn, that led to the immobility, that led to the deep vein thrombosis, that led to the pulmonary embolism, that led to the cardiopulmonary disease, that led to the permanent and total disability and the need for medical care.

"Under current law in order for an event that arises out of and in the course of one's employment to entitle an employee who has a prior disability to additional benefits, the event must be a prevailing factor that results in further disability." Johnson v. Ind. Western Express, Inc., 281 S.W.3d 885, 892-893 (Mo. App. 2009).

"Disability" is defined as "inability to do something"; "deprivation or lack of esp. of physical, intellectual, or emotional capacity or fitness"; "the inability to pursue an occupation or perform services for wages because of physical or mental impairment"; "a physical or mental illness, injury, or condition that incapacitates in any way." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1976).

Loven v. Greene County, 63 S.W.3d 278, 284 (Mo. App. 2001), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

The evidence in this case overwhelmingly establishes that the work accident of February 6, 2006, and its sequela resulted in employee suffering more disability than he did before the incident. After the unfortunate cascade of medical events initiated by the February 6 incident, employee had a marked decline in his physical ability and was unable to perform services for wages. Since employee could work without difficulty before the February 6 incident, surely his complete inability to work after the incident is a "further disability" sufficient to satisfy the test laid out in Johnson.

I would affirm the award of the administrative law judge. I respectfully dissent from the decision of the majority of the Commission to deny benefits in this case.

Employee: JOHN WILKEN

Injury No.: 06-009468

Employer: QUALSERV CORPORATION

Additional Party: THE TREASURER OF THE STATE OF MISSOURI AS CUSTODIAN OF THE SECOND INJURY FUND

Insurer: TWIN CITY FIRE INSURANCE COMPANY

Hearing Date: MAY 12, 2009

Checked by: NGA

FINDINGS OF FACT AND RULINGS OF LAW

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 dise