Jantzer Washington v. Meridian Medical Tech

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. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to section 286.090 RSMo, we issue this award denying compensation by separate opinion. The award and decision of Administrative Law Judge Matthew D. Vacca issued September 14, 2009, is attached solely for reference and is not incorporated by this decision.

The issues stipulated at trial were the nature and extent of any permanent disability resulting from a November 2001 work accident sustained by employee; the appropriate rate of temporary total disability payments; whether employee sustained an occupational disease in 2001 arising out of and in the course of her employment; medical causation as to the alleged occupational disease; the nature and extent of any permanent disability resulting from the alleged occupational disease; and the appropriate rate of permanent partial disability payments.

The administrative law judge denied compensation for the November 2001 work accident on findings that claimant's testimony and her proffered medical evidence lacked credibility; made no findings as to the 2001 occupational disease claim; and awarded $\ 1,000.00 to the Second Injury Fund on a finding that employee prosecuted a claim for synergistic disability without reasonable ground.

Employee submitted a timely Application for Review with the Commission alleging the following claims of error: the administrative law judge erred in granting employer's motion to have employee examined by Dr. David Brown; the administrative law judge should have recused himself from the case due to "unprofessional loss of composure"; there was insufficient evidence to support the findings and award of the administrative law judge; the administrative law judge erred in denying employee's claim for medical expenses; and the administrative law judge erred in awarding $\ 1,000.00 to the Second Injury Fund.

For the reasons set forth in this award and decision, the Commission affirms in part, and reverses in part, the award of the administrative law judge.

On November 27, 2001, employee was sitting in a chair performing her work duties as a syringe inspector when the chair suddenly dropped down to its lowest setting, resulting in immediate pain to employee's low back. Employee previously injured her low back in 2000, when her chair rolled out from under her and she fell to the floor. Although employee provided extensive treatment records relating to the 2000 chair accident, the record contains no treatment records for the primary injury of 2001. We note that the treatment records for the 2000 low back injury

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reveal that the diagnosis was lumbar contusion/sprain; treatment included physical therapy, muscle relaxants, nonsteroidal anti-inflammatory medications, and heating pads; and employee was released for full duty as of July 20, 2000.

With regard to the primary injury of 2001, employee testified that her treatment included physical therapy for three weeks, hot pads, and "some kind of like electroshock that they put on the back for about 15 to 20 minutes." Employee continued to work during the three weeks of physical therapy, and was released to full duty without restrictions.

Although the pain from the 2000 injury has never gone away in her low back, employee claims that the 2001 accident aggravated her low back pain.

Dr. Robert Poetz examined employee on June 24, 2003. Employee complained of lower back pain with pain shooting down into the right leg. Dr. Poetz diagnosed lumbar strain with exacerbation of degenerative disc disease and degenerative joint disease. Dr. Poetz rendered this diagnosis without elaboration of any kind, and included this diagnosis in a list of 19 separate diagnoses relating to employee's numerous other complaints and past injuries. Dr. Poetz opined that employee suffered from a 10% permanent partial disability of the body as a whole referable to the low back in connection with pre-existing conditions; 10% permanent partial disability of the body as a whole referable to the low back for an injury in 1994; and 20% permanent partial disability of the body as a whole referable to the low back for the two chair injuries. Dr. Poetz was unable to make any distinction between the 2000 and 2001 chair injuries.

Occupational Disease

Employee's claim for compensation alleges occupational disease based on "years of hard heavy work causing arthritis in spine and knees." Employee, 53 years old at the time of hearing, is 5 feet and 3 inches tall, and weighs 250 pounds. Employee sought treatment for back pain and radicular right leg pain in 2006 and 2007. Treating doctors from January to July 2006 and in June 2007 diagnosed degenerative lumbar disease with osteoarthritis, spondylosis, and radiculopathy manifesting in the right leg; treatment included ordering an MRI and EMG, home therapy with ice, and three depo medrol injections. With regard to her knees, employee testified that she sustained knee injuries in 1987, when she slipped on a bedspread, and in 1999, when she fell forward onto metal stairs. Employee was treated for bilateral knee pain in 1996, 1997, and 1999; employee was diagnosed as having degenerative arthritis of her bilateral knees and underwent conservative treatment. On June 30, 2005, x-rays revealed moderate osteoarthritis of the right knee with osteophytes in the medial compartment and small joint effusion, and moderate to severe osteoarthritis of the left knee, particularly in the medial compartment with osteophytes. In 2008, treating doctors diagnosed arthritis of the left knee; claimant treated with a knee brace, anti-inflammatory medications, and physical therapy.

Employee's testimony as to her work duties is puzzling. Employee began working for employer in 1990. At various times in her career with employer, employee worked as an assembler, inspector, and housekeeper, but there is no evidence as to when, or for how long, employee was engaged in these various positions. Employee's work duties as an inspector required her to take syringes from a pan on a conveyer belt and shake the syringes to see if there were any particles in the syringes. Apparently, employee sat in a chair while performing this task. Employee rotated every hour from this task to packing pans of syringes into boxes. The pans weighed between 25 and 30 pounds. There is no evidence as to what type of work duties employee performed while engaged as an assembler or housekeeper.

When employee saw Dr. Poetz on June 24, 2003, she complained of lower back pain with pain shooting down into the right leg; pain, popping, and swelling in the knees; and shooting pains up both legs. Dr. Poetz opined that employee's work duties including "prolonged standing, walking, bending, kneeling, and squatting," caused her degenerative diseases of the knees and back. Dr. Poetz admitted that employee did not tell him her job duties, and acknowledged his opinion could change if he knew the amount of time employee was sitting versus standing. Dr. Poetz acknowledged that employee's obesity could aggravate her pre-existing degenerative disc and joint diseases.

Dr. Poetz believed employee to be disabled due to her degenerative arthritis of the back and knees. Dr. Poetz opined that employee suffered from a 5\% permanent partial disability of the bilateral knees in connection with degenerative conditions; 10\% permanent partial disability of the bilateral knees in connection with injury events in 1987 and 1989; 10\% permanent partial disability of the right knee in connection with an injury event in 1994; and 10\% permanent partial disability of the right knee and 15\% permanent partial disability of the left knee in connection with an injury event in 1999. Dr. Poetz also opined that employee suffered disability of her low back; his ratings are noted in the foregoing section. Dr. Poetz opined that the combination of present and prior disabilities resulted in a total which exceeded the simple sum by 15 %.

Employee testified that the pain never went away from the 2000 chair injury, and Dr. Poetz assigned permanent disability stemming from that incident. Accordingly, we conclude that employee suffered from a pre-existing disability of her low back on November 27, 2001, when she sustained the low back injury that is the subject of this claim. Where such is the case, it is the employee's burden to offer expert medical evidence to establish the extent of pre-existing disability, in order to determine what portion of disability is attributable to the injury that is the basis of the claim. Plaster v. Dayco Corp., 760 S.W.2d 911, 913 (Mo. App. 1988). Failure to do so bars the claim. Id.

Here, employee's evidence as to permanent disability attributable to the November 2001 injury is analogous to that of the employee in the case of Moriarty v. Treasurer of Mo., 141 S.W.3d 69, 73 (Mo. App. 2004). There, the court reversed an award of permanent partial disability where the employee's expert was unable to assign separate disability ratings as between two different exposures to a harmful compound. Id. at 74. The Moriarty employee offered the opinion of Dr. Volarich:

On cross-examination, Dr. Volarich answered "Correct" when asked, "And not unlike the PPD, you couldn't tell us what restrictions went to which particular '01 claims." Specifically, Dr. Volarich testified that "the overall fifty percent disability rating ... is due to the combination of those two [exposures]," and that it is "impossible to break those [two exposures] out." As such, Moriarty failed to prove the nature and extent of each separate pending disability claim ...

Moriarty, 141 S.W.3d at 73.

Here, Dr. Poetz acknowledged that he was unable to apportion disability as between the 2000 and 2001 chair accidents. Because employee failed to present evidence apportioning the disability attributable solely to the 2001 chair accident, we must deny her claim for permanent disability.

To prevail on a theory of occupational disease, an "employee must provide substantial and competent evidence that he has contracted an occupationally induced disease rather than an ordinary disease of life." Kelley v. Banta \& Stude Constr. Co., Inc., 1 S.W.3d 43, 48 (Mo. App. 1999) (citations omitted). This requires a showing that the employee's work creates exposure to the disease greater than or different from that which affects the public generally, and that there is a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort. Id.

We find employee's evidence insufficient to support her claim for occupational disease. Employee failed to establish the "years of hard and heavy work" that she claims exposed her to the risk of developing arthritis in her spine and knees. Employee's evidence as to her work duties lacks probative detail and fails to explain when and how she was exposed to the risk of arthritis.

Dr. Poetz opined that employee's degenerative diseases were caused by "prolonged standing, walking, bending, kneeling, and squatting," but acknowledged that employee never told him what her job duties entailed, other than the fact that she was an assembly line inspector. Dr. Poetz further admitted that his opinion could change if he knew the amount of time employee was sitting versus standing. This testimony reveals that Dr. Poetz was unaware of even the most basic physical activities involved in employee's work for emplo