Nancy Brown v. Missouri Department of Corrections

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-132379

Employee: Nancy Brown

Employer: Missouri Department of Corrections

Insurer: Self-Insured - Central Accident Reporting Office

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 22, 2009. The award and decision of Administrative Law Judge Victorine R. Mahon, issued December 22, 2009, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $18^{\text {th }}$ day of May 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

SEPARATE OPINION FILED

John J. Hickey, Member

Attest:

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, as the majority concluded, that the decision of the administrative law judge should be affirmed with regard to the awarding of benefits for employee's permanent partial disability referable to her thoracic and lumbar spine. However, I dissent from the majority's decision as to the denial of benefits referable to employee's cervical spine.

As argued in employee's brief, there is persuasive evidence to conclude that her work in the mail room aggravated preexisting spondylosis that then led to the C6-8 radiculopathy.

Because this injury occurred prior to the 2005 amendments to Missouri Workers' Compensation Law, the standard for medical causation is whether the work environment was a "substantial factor" in producing the medical conditions for which benefits are sought. Cahall v. Cahall, 963 S.W.2d 368, 372-73 (Mo. App. 1998).

It is obvious from the record that employee had some problems with her cervical spine prior to working for employer. However, it is also obvious that employee's repeated lifting of mail bags and carts, weighing between 30 to 100 pounds, aggravated her cervical condition. In fact, Dr. Joann Mace indicated in her report that she believed employee's mail room lifting activities were not only the substantial factor, but also "the prevailing factor causing the aggravation of her prior cervical spine condition (fusion C56) including the C4-5 left paracentral disc protrusion and C6-7 impingement upon the neural foramen."

Missouri recognizes that repetitive trauma may accelerate a personal degenerative or arthritic condition and result in a compensable injury. Kelley v. Banta and Stude Constr. Co., Inc., 1 S.W.3d 43, 48 (Mo. App. 1999). Essentially, pre-2005 Missouri Workers' Compensation Law holds that a work environment which accelerates a personal degenerative or arthritic condition meets the standard of a substantial factor. Winsor v. Lee Johnson Constr. Co., 950 S.W.2d 504, 509 (Mo. App. 1997).

Although employee had a history of neck problems prior to her work for employer, it is illogical to conclude that her constant lifting of heavy mail bags and carts was not a substantial factor in causing her to have to undergo a cervical diskectomy and fusion at C4-7 on April 11, 2005. Dr. Mace affirmatively stated that employee's work for employer was the substantial and prevailing factor in causing the aggravation of her cervical spine condition. Further, even Dr. Koprivica (employer's expert) admitted that employee's work in the mail room placed her at a heightened risk of developing a musculoskeletal disease such as this radiculopathy.

Based on the above, I believe that employee has carried her burden of proving that her work for employer was a substantial factor in causing the aggravation of her cervical

spine condition. Therefore, I find that employee should not only be awarded benefits for her thoracic and lumbar spine conditions, but also for her cervical spine condition.

For the foregoing reasons, I respectfully concur in part and dissent in part from the decision of the majority of the Commission.

John J. Hickey, Member

Issued by Division of Workers' Compensation

Employee: Nancy Brown

Injury No.: 03-132379

1. Nature and extent of any permanent disability: 15 percent Permanent Partial Disability to the body as a whole due to the low back and thoracic spine from the work injury.
2. Compensation paid to-date for temporary disability: None.
3. Value of necessary medical aid paid to date by employer/insurer? $\ 5,350.77.
4. Value necessary medical aid not furnished by employer/insurer? None.
5. Employee's average weekly wages: $\ 360.23.
6. Weekly compensation rate: $\ 240.15.
7. Method of wage computation: By agreement.

1. Amount of compensation payable from Employer:

For Permanent Partial Disability: $\mathbf{\$ 1 4 , 4 0 9 . 0 0}.

(60 weeks x \$ 240.15=\ 14,409.00 )

1. Second Injury Fund liability:

For enhanced Permanent Partial Disability, using a 10 percent load: $\mathbf{\$ 5 , 0 4 3 . 1 5 .}

(21 weeks x \$ 240.15=\ 5,043.15 )

1. Future requirements awarded: None.

The compensation awarded to the claimant shall be subject to a lien of 25 percent of all payments in favor of the following attorney for necessary legal services rendered to the claimant: Patrick Platter.

Employee: Nancy Brown

Injury No. 03-132379

Dependents: N/A

Employer: Missouri Department of Corrections

Additional Party: Treasurer of Missouri, as custodian of the Second Injury Fund

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Self-Insured - Central Accident Reporting Office

Hearing Date: November 4, 2009

Checked by: VRM/db

This workers' compensation claim was heard before the undersigned Administrative Law Judge on November 4, 2009 in West Plains, Missouri. Nancy Brown (Claimant) appeared in person and with her attorney Patrick Platter. Assistant Attorney General Cara Harris appeared on behalf of the Missouri Department of Corrections and the Central Accident Reporting Office (Employer). Assistant Attorney General Heather Rowe appeared on behalf of the Treasurer of Missouri, as custodian of the Second Injury Fund.

1. On or about December 29, 2003, the Missouri Department of Corrections was operating subject to the Missouri Workers' Compensation Law.
2. Employer's liability is self-insured.
3. Claimant was a covered employee, working subject to the Missouri Workers' Compensation Law.
4. Venue and jurisdiction appropriate in West Plains, Missouri. The onset of the occupational Disease by repetitive trauma is to have occurred at the correctional center in Texas County, Missouri.
5. Employee did sustain an injury that occurred within the course and scope of employment.
6. The parties agree that Claimant's average weekly wage yields a Temporary Total Disability and Permanent Partial Disability rate of $\ 240.15.
7. Employer has provided $\ 5,350.77 in medical aid and no Temporary Total Disability.
8. Employer has paid $\ 488.73 in mileage.
9. Attorney Patrick Platter requests a fee of 25 percent of award, except for future medical.

1. What is the nature and extent of permanent disability?
2. Is Claimant's permanent disability medically and causally related to her work?
3. Is Claimant entitled to six weeks of Temporary Total Disability?
4. Is Claimant entitled to additional medical aid totaling $\ 53,217.80 ?
5. Is Claimant entitled to additional mileage reimbursement for 2449 miles?
6. Is Claimant entitled to future medical treatment?
7. Does the Second Injury Fund have liability?

The following exhibits submitted by Claimant and admitted:

A. Dr. Joann Mace

M. Dr. Sudhir Batchu

C. Claimant

D. Dr. Sudhir Batchu

E. St. John's Regional Health Center

F. TCMH Family Clinic

G. Whiteside Adult Medicine (Dr. Scott Ellis)

H. St. John's Clinic - Houston, Missouri

I. Texas County Memorial Hospital

J. Dr. Fred McQueary

K. Springfield Neurological \& Spine

L. Phelps County Regional Medical Center

N. Dr. David Myers

B. Claim for Compensation

O. Medical Bills

P. Summary of Medical Expenses

Q. Correspondence from Healthcare Recoveries

The following documents were submitted by Employer and admitted:

1. Deposition - Dr. Brent Koprivica
2. Workers' Compensation Worksheet

No exhibits were admitted on behalf of the Second Injury Fund.

Nancy Brown is a high school graduate and has completed about 30 hours of college coursework. She has worked more in the title insurance industry, as a tax collector on a contractual basis, and as a store cashier. She began her employment with the Missouri Department of Corrections (Employer) in August 2002.

Initially Claimant worked for Employer in a number of clerical positions at the South Central Correctional Center in Licking, Missouri. In September 2003, she accepted a transfer to the mail room. The job required that she could lift up to 20 to 25 pounds, walk, and distribute mail into various slots. Claimant is five foot-five inches in height. She had to retrieve heavy, vinyl mail bags, sling them onto the table top before sorting the mail. Claimant estimated the actual weight of the mail bags varied between 20 to 75 pounds. There could be as many as 13 or 14 bags. Although she occasionally had assistance in lifting the bags, she worked the first 30 minutes of her shift by herself. She also lifted boxes or cartons of mail that each weighed 25 to 30 pounds.

After thr