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 a