Billie Salzman v. Tiffany Care Centers, Inc.

Employee: Billie Salzman

Injury No. 07-001329

Dependents:

Before the

DIVISION OF WORKERS'

Employer: Tiffany Care Centers, Inc.

Additional Party: Second Injury Fund

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Missouri Employers Mutual Insurance Co.

Hearing Date: October 26, 2009

Checked by: RJD/cs

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: January 8, 2007.
5. State location where accident occurred or occupational disease contracted: Pilot Grove, Cooper County, Mo.
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 happened or occupational disease contracted: Employee and a co-worker were lifting a patient, who had fallen onto the floor, into bed. Patient began to fall again and Employee restricted the patient injuring Employee's low back and resulting in left L5 nerve root impingement.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Parts of body injured by accident or occupational disease: Low back, left leg.
14. Compensation paid to-date for temporary disability: Unknown.
15. Value necessary medical aid paid to date by employer/insurer? Unknown.
16. Value necessary medical aid not furnished by employer/insurer? Unknown.

Employee: Billie Salzman

1. Employee's average weekly wages: Not in issue at this time.
2. Weekly compensation rate: Not in issue at this time.
3. Method wages computation: N/A.

1. Amount of compensation payable: Employer and Insurer are ordered to provide Employee with additional medical treatment as set forth more fully herein.

Each of said payments to begin immediately and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

Employee: Billie Salzman

Injury No: 07-001329

Dependents:

Employee: Billie Salzman

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relationships of Missouri

Department of Missouri

Address of Missouri

Jefferson City, Missouri

Injury No: 07-001329

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Address of Missouri

Jefferson City, Missouri

An evidentiary hearing was held in these cases (Injury No. 07-001329 and Injury No. 07040878) in Jefferson City on October 26, 2009, on Claimant's request for a hardship hearing. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on November 12, 2009. The evidentiary hearing was held to decide the following issues:

1. (In Injury No. 07-001329) Whether Claimant sustained an accident arising out of and in the course of her employment with Tiffany Care Center, Inc. on January 8, 2007;
2. (In Injury No. 07-001329) Whether the work-related accident of January 8, 2007 (if sustained) is the prevailing factor in the cause of any or all of the injuries and/or conditions alleged by Claimant;
3. (In Injury No. 07-040878) Whether Claimant sustained an accident arising out of and in the course of her employment with Tiffany Care Center, Inc. on May 10, 2007;
4. (In Injury No. 07-040878) Whether the work-related accident of May 10, 2007 (if sustained) is the prevailing factor in the cause of any or all of the injuries and/or conditions alleged by Claimant;
5. (In both cases) Whether Employer shall be ordered to provide Claimant with additional medical treatment pursuant to Section 287.140, RSMo;
6. (In both cases) Whether costs shall be awarded pursuant to Section 287.560, RSMo.

The parties stipulated as follows:

1. The Division of Workers' Compensation has jurisdiction over these cases;
2. Venue for the hearing is proper in Cooper County and adjoining counties; the parties agree on the record to holding the hearing in Cole County;

1. The claims are not barred by Section 287.430 or Section 287.420;
2. Both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times; and
3. Missouri Employers Mutual Insurance Company fully insured the Missouri Workers Compensation liability, if any, of Tiffany Care Center, Inc. at all relevant times.

The evidence consisted of the testimony of Claimant, Billie Salzman, medical records, the narrative medical report of Dr. Daniel L. Kitchens, the deposition testimony of Dr. Daniel Kitchens taken September 1, 2009, the medical reports of Dr. David Robson, and the deposition testimony of Dr. David Robson taken December 13, 2007 and May 21, 2009.

Billie Salzman ("Claimant") was born on December 26, 1964, and is currently 44 years of age. Claimant is a certified nurses' aide ("CNA") who worked for Employer, Tiffany Care Centers, Inc. at its facility known as "Katy Manor" in Pilot Grove, Cooper County, Missouri. Claimant's work as a CNA included bathing and feeding residents, assisting residents with use of the toilet, dressing and changing residents, and transferring residents.

Claimant is 5'4" tall and weighed 250 pounds at the time of the hearing. She weighed 260 pounds in 2007 at the time of the alleged accidents. Claimant is trying to lose weight. Claimant has been a smoker for almost 35 years and was smoking a pack a day at the time of the hearing. Claimant has been trying, unsuccessfully, to quit smoking. Claimant has also been an insulin-dependent diabetic for many years.

In 2005 Claimant was treated for back pain with right lower extremity symptoms. An August 2005 lumbar MRI was interpreted as showing degenerative changes at L4-5 and L5-S1 and a possible tiny annular tear at L4-5. As will be discussed below, Dr. Robson believes this MRI was of such poor diagnostic quality as to be basically unreadable. In 2006 Claimant was treated for left hip pain. A February 2006 left hip MRI was interpreted as showing minimal hypertrophic degenerative arthritis.

On January 8, 2007, a large resident had fallen on the floor and Claimant and a co-worker were lifting the resident back into bed. When the resident was on the edge of the bed, the resident began to fall again and Claimant grabbed the resident to keep her from falling and to lift her back into bed. Upon doing so, Claimant felt a burning pain in her back and down her left leg. Claimant reported the incident, was sent home, and was seen by Dr. Ann McDowell at the office of Dr. Robert Koch, the "company doctor", on January 10, 2007. Dr. McDowell diagnosed Claimant with a lumbar strain, had Claimant take off work for a few days and prescribed flexeril and ultram. On January 24, 2007, Claimant saw Dr. McDowell again and

physical therapy was prescribed. Claimant saw her personal provider, nurse-practitioner Laurie Beach, who had Claimant undergo an MRI on January 29, 2007 in Columbia. The radiologist interpreted the MRI as showing:

1. Degenerative disc disease at L4-5 and L5-S1 with posterior annular tears and circumferential disc bulges. No significant central canal stenosis.
2. Left-sided subarticular neuroforaminal narrowing at L5-S1 which does appear to contact and slightly deform the exiting left L5 nerve root.
3. Bilateral facet arthropathy at L2-3 through L5-S1, worse in the lower lumbar spine.

Claimant was seen by Dr. Robert Koch on February 1, 2007 and Dr. Koch reviewed either the MRI films or the radiologist's report. Dr. Koch noted: "(t)he patient was advised that I did not really feel like the bulging disc was necessarily the cause of the pain at this time." Dr. Koch did recommend a referral to an orthopedic surgeon.

On February 12, 2007, Claimant was seen by Dr. Craig Kuhns of the University of Missouri orthopedics. Dr. Kuhns believed there was "no significant neurologic compression". He also believed the reported work incident caused annular tears at L4-5 and L5-S1. Dr. Kuhns recommended physical therapy, smoking cessation, light duty work, and a follow-up with Dr. Joel Jeffries. On March 6, 2007, Claimant saw Dr. Joel Jeffries, also of University of Missouri orthopedics. A portion of Dr. Jeffries' note reads:

I have discussed situation with Ms. Salzman and it is my opinion that the increase in the patient's back pain was a result of her work-related injury and as such her work-related injury was the failing (sic) factor. Obviously, the patient's lumbar degenerative disease was not produced by the patient's work-related injury.

Dr. Jeffries also prescribed an aggressive rehabilitation program and restricted duty work. Dr. Jeffries saw Claimant again on April 4, 2007 and continued her on physical therapy and restricted duty work. Dr. Jeffries saw Claimant again on April 25, 2007 and noted her continuing symptoms and reviewed the MRI films from 1/29/07. Dr. Jeffries stated on that date: "We discussed the fact that it is difficult to explain the totality of her symptoms based upon the MRI that I am able to review. I do not think that there is significant compression of the neural elements." Dr. Jeffries discontinued the physical therapy and recommended a functional capacity evaluation ("FCE"). The FCE was performed on May 1, 2007 and Dr. Jeffries reviewed it with Claimant on May 9, 2007. Dr. Jeffries felt that Claimant was at maximum medical improvement, that she did not require surgical intervention, and that she could work with medium-duty restrictions.

On May 10, 2007, Claimant was assisting a resident, Cecile Brumback, with her shower. One of the wheels fell off Cecile's shower chair, and Claimant grabbed the arm of the shower chair to keep Cecile from falling. Claimant felt back pain, reported the incident, and was sent to see Dr. Koch. Claimant was referred back to Dr. Joel Jeffries. Before Claimant saw Dr. Jeffries, another lumbar MRI was ordered by nurse-practitioner Laurie Beach, and was performed in Columbia on June 4, 2007.

Dr. Jeffries saw Claimant on July 23, 2007 and placed Claimant on work restrictions and recommended that she return to night shift. When Claimant was seen by Dr. Jeffries on September 4, 2007, Dr. Jeffries noted extreme left leg pain and requested electrodiagnostic studies of the left lower extremity. Left lower extremity electrodiagnostic studies were done on September 18, 2007 and interpreted as normal. Dr. Jeffries saw Claimant again on October 18, 2007 and released her to medium-duty work.

At the request of her attorney, Claimant was evaluated on July 19, 2007 by Dr. David Robson, a St. Louis spine surgeon. Dr. Robson reviewed the lumbar MRI films from 8/11/05, 1/29/07 and 6/4/07. Dr. Robson stated that the latter two MRIs were "virtually identical"; he also stated that the 8/11/05 MRI was "of very poor quality" and "is almost ininterpretable". Dr. Robson opined that "a high-intensity zone lesion at L4-5" and "some loss of filling around the left L4-5 facet joint" could indicate a synovial cyst; he also noted that the left L4-5 area "correlates with her left leg symptoms". Dr. Robson recommended a CT myelogram be performed.

The case was set for a hardship hearing before Administrative Law Judge Ronald Harris on June 4, 2008; the parties appeared for the hearing and discussed the case outside of Judge Harris's presence, and reported that the hearing was unnecessary as they had reached a tentative agreement regarding treatment.

On June 26, 2008, a lumbar CT myelogram was done in St. Louis. Claimant saw Dr. Robson the same day. Dr. Robson reviewed the films, and stated:

Review of the films show a filling defect at the left L5 nerve root. It is a combination of bulging disc and possible synovial cyst at the medial aspect of the L5-5 facet joint. This defect has remained on her MRI's from 2007, and her symptoms have remained consistent throughout.

Dr. Robson recommended a micro-decompressive laminectomy and exploration of the left L4-5 disc. He also opined that the need for the surgery related directly to the January 8, 2007 injury.

At the request of Employer-Insurer, Claimant was evaluated on October 7, 2008 by Dr. Daniel Kitchens, a St. Louis neurosurgeon. Dr. Kitchens reviewed the 2007 lumbar MRIs and concluded there was no neural foraminal narrowing, nor nerve root compression. Dr. Kitchens' report concluded:

It is my opinion, within a reasonable degree of certainty, that the work incident of January 8, 2007 led to a musculoskeletal strain and is not the prevailing factor in her current complaints of chronic back pain from degenerative disc disease. It is my opinion, within a reasonable degree of certainty, that she reached maximum medical improvement in the spring of 2007. She was placed on permanent work restrictions in the mediumduty work category per the FCE. It is my opinion, within a reasonable degree of certainty, that the work restrictions are needed with regard to her preexisting condition of degenerative disc disease and are not related to her work injury of January 8, 2007.

Claimant's counsel asked Dr. Robson to review Dr. Kitchens' 10/7/08 report. In a letter of December 5, 2008, Dr. Robson stated that Dr. Kitchens' report did not change any of his (Robson's) opinions, and, in fact, strengthened them as "Dr. Kitchens' reiteration of the history demonstrates again that her complaints have been very consistent throughout and involve back pain, left hip, buttocks, leg radiating pain, numbness and tingling. These complaints have never wavered since her injury dated January 2007."

Dr. Kitchens' deposition testimony was consistent with his 10/7/08 report. Additionally, he testified that Claimant's diabetes could be a cause of Claimant's left lower extremity complaints and that Claimant's smoking could accelerate her degenerative disc disease. Dr. Kitchens also testified that he did not discern a synovial cyst on the MRIs, and that a synovial cyst is not caused by trauma.

Dr. Robson's deposition testimony was consistent with his reports. Additionally, he testified that Claimant has impingement of the L5 nerve root likely caused by a synovial cyst, and that the cyst was caused by the trauma of the (alleged) work-related accident of January 8, 2007. He also explained the significance of the "filling defect" noted on the myelogram, in that the L5 nerve root did not fill with the dye that was injected, which indicated that the L5 nerve root was blocked by some sort of extrinsic pressure. Dr. Robson believes that the pressure comes from the synovial cyst. Dr. Robson also testified that it is quite unlikely that Claimant's left lower extremity symptoms can be explained by her diabetes, since bi-lateral peripheral neuropathies would be expected from diabetes (not left-sided only), and Claimant's left lower extremity complaints cannot be explained by peripheral neuropathy alone. Dr. Robson reiterated that Claimant's left lower extremity symptoms are completely indicative of L5 nerve root impingement, and that the objective testing (MRI, CT, myelogram) confirm the L5 nerve root impingement.

Accident. Employer denies that Claimant sustained a compensable accident on January 8, 2007 or on May 10, 2007. Section 287.020.2 defines "accident" as follows:

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.

Section 287.020.3(1) and (2) define "injury". Those subsections read as follows:

(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.

The January 8, 2007 incident clearly meets all of the definitional requirements of "accident" and "injury". There was clearly an unexpected traumatic event or unusual strain identifiable by time and place of occurrence. That event produced objective symptoms of an injury. The event, the injury and the symptoms were promptly reported. The doctors, including Dr. Jeffries, treated Claimant for the injury and the symptoms. On March 6, 2007, Dr. Jeffries wrote:

I have discussed situation with Ms. Salzman and it is my opinion that the increase in the patient's back pain was a result of her work-related injury and as such her work-related injury was the failing (sic) factor.

It is obvious to me that the work "failing" is a mis-transcription of the word "prevailing". Drs. McDowell and Jeffries both took Claimant off work or restricted her duties as a result of the accident. Therefore, even disregarding, for the moment, Dr. Robson's opinions, there is no question that the January 8, 2007 incident is, indeed, a compensable "accident".

As to whether Claimant sustained a compensable accident on May 10, 2007, the issue is not as clear. There was an unexpected traumatic event or unusual strain identifiable by time and place of occurrence. It was promptly reported and additional medical treatment was rendered. However, it is unclear as to whether the remaining requirements of "accident" are met, particularly since Dr. Robson, Claimant's medical expert, testified that the 1/29/07 and 6/4/07 MRIs were "virtually identical", and attributed the L5 nerve root impingement solely to the January 8,2007 accident.

Prevailing factor; need for additional treatment. There is no question that Claimant is obese, has been a smoker for decades, and has been an insulin-dependent diabetic for several years. Nor is there any question that Claimant had lumbar degenerative disc disease that preexisted the January 8, 2007 accident. Dr. Kitchens cites all of these as potential factors in Claimant's complaints (although Dr. Kitchens considered Claimant's smoking as being an insignificant factor in the symptoms per se, but did cite smoking as a significant risk factor in consideration of surgery).

However, the evidence is also quite clear that Claimant did not complain of left lower extremity problems (other than the left hip pain in 2006, which Dr. Kitchens did not consider to be a factor in Claimant's current problems) prior to January 8, 2007, and that the left lower extremity complaints have been consistent, constant and severe since the January 8, 2007 accident. It is also clear that Claimant's left lower extremity symptoms are wholly consistent with left L5 nerve root impingement. Dr. Kitchens' testimony that certain symptoms "could" be caused by Claimant's obesity or diabetes fails to address the issue of why Claimant has left lower extremity symptoms consistent with left L5 nerve root impingement. Why did those symptoms start immediately after the accident and not before? Claimant's obesity and diabetes were present and significant prior to the accident. Why does Claimant not have similar symptoms in her right lower extremity if obesity and diabetes are the cause?

Dr. Robson's opinions appear to be much more consistent with Claimant's clinical symptoms, and are also consistent with the objective testing. The CT myelogram demonstrated, objectively, extrinsic pressure on the left L5 nerve root. The MRIs objectively evidence a leftsided defect at L4-5. Dr. Robson's opinions that Claimant developed a synovial cyst in that area, causing the extrinsic pressure on the left L5 nerve root, and that the synovial cyst was caused by the January 8, 2007 accident are consistent with Claimant's symptoms and the MRI and CT myelogram. Therefore, I find such medical opinions to be more credible than those of Dr. Kitchens.

Claim for costs. Section 287.560 states, in part:

All costs under this section shall be approved by the division and paid out of the state treasury from the fund for the support of the Missouri division of workers' compensation; provided, however, that if the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them.

Case law has interpreted this language to include an award of litigation costs and attorney's fees, payable from one party to the other, if it is found that a party brought, prosecuted or defended the case without reasonable ground. The defense in this case was based wholly upon Dr. Kitchens' clear and unequivocal testimony. Dr. Kitchens is a qualified neurosurgeon. I simply found Dr. Robson's testimony on the crucial issues in the case to be more credible than that of Dr. Kitchens. The testimony of Dr. Kitchens clearly was reasonable ground for the defense. There is no basis for an award of costs.

In addition to those facts to which the parties stipulated, I find the following facts:

1. Claimant sustained an accident arising out of and in the course of her employment with Employer on January 8, 2007 when Claimant restrained a resident from falling back onto the floor from her bed, causing Claimant to experience immediate burning pain in her low back and left lower extremity;
2. Prior to January 8, 2007, Claimant had lumbar degenerative disc disease;
3. Prior to January 8, 2007, Claimant had experienced left hip pain;
4. Claimant's February 2006 left hip MRI was interpreted as showing minimal hypertrophic degenerative arthritis;
5. The testimony of Dr. David Robson was credible, persuasive, and consistent with Claimant's clinical symptoms and the objective testing;
6. Subsequent to the work-related accident of January 8, 2007, Claimant has had constant and consistent left lower extremity pain, consistent with left L5 nerve root impingement;

1. Objective testing conducted subsequent to the January 8, 2007 accident, i.e., two lumbar MRIs and a CT myelogram, evidence extrinsic pressure on the left L5 nerve root, likely caused by a synovial cyst;
2. Claimant requires surgery to relieve the pressure on the left L5 nerve root;
3. The work-related accident of January 8, 2007 is the prevailing factor in the cause of the pressure on the left L5 nerve root;
4. The work-related accident of January 8, 2007 is the prevailing factor in the cause of Claimant's symptoms of left L5 nerve root impingement;
5. The work-related accident of January 8, 2007 is the prevailing factor in the cause of Claimant's current need for surgery;
6. Claimant promptly reported a possible work-related injury on May 10, 2007;
7. Claimant received medical treatment immediately after the May 10, 2007 incident; and
8. It is unclear at this time whether the May 10, 2007 incident caused any injury to Claimant, that is, any injury above and beyond that caused by the January 8, 2007 accident.

In addition to those legal conclusions to which the parties stipulated, I make the following rulings of law in Injury No. 07-001329:

1. Claimant sustained an accident arising out of and in the course of her employment with Employer on January 8, 2007 when Claimant restrained a resident from falling back onto the floor from her bed, causing Claimant to experience immediate burning pain in her low back and left lower extremity;
2. The work-related accident of January 8, 2007 is the prevailing factor in the cause of the pressure on the left L5 nerve root, Claimant's symptoms of left L5 nerve root impingement, and Claimant's current need for surgery;
3. Employer and Insurer should be ordered to provide Claimant with additional medical treatment, including, but not limited to, the surgery recommended by Dr. David Robson; and
4. No grounds exist for an award of costs pursuant to Section 287.560.

In addition to those legal conclusions to which the parties stipulated, I make the following rulings of law in Injury No. 07-040878:

1. It is unclear at this time whether the May 10, 2007 incident caused any injury to Claimant, that is, any injury above and beyond that caused by the January 8, 2007 accident; and
2. As a request for a temporary award has been made, and no request for a final award has been requested, it is appropriate to issue a temporary award, awarding no compensation at this time, and allowing the parties to present additional evidence in the case if and when another hearing is requested.

In Injury No. 07-001329, Employer and Insurer are hereby ordered to provide Billie Salzman with medical treatment to cure and relieve her from the effects of her work related accident of January 8, 2007, including, but not limited to, surgery as recommended by Dr. David Robson.

In Injury No. 07-040878, no award of compensation is made at the present time.

This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the cases kept open until a final award can be made.

Date: December 14, 2009

Made by: Robert J. Dierkes

ROBERT J. DIERKES

Chief Administrative Law Judge

A true copy. Attest:

/s/Naomi Pearson

Naomi Pearson

Division of Workers' Compensation