Donna Moorman v. Boehringer Ingelheim Corporation

In the mid-1980s, employee suffered two separate back injuries that resulted in two surgeries; employee settled two workers' compensation claims, each for 15\% permanent partial disability referable to her low back. Employee testified that her back never returned to 100 % and that she had good days and bad days.

Employee's claim for compensation alleges employee engaged in an unusual strain and effort and felt sudden pain when pulling a pallet of bottled water with a pallet jack on August 1, 2005, and that the injury was also a culmination of 8 years of performing repetitive work tasks. At her deposition of September 19, 2007, employee testified that she believed she actually hurt her shoulder on August 1, 2005, and that she didn't hurt her back until sometime in mid-August 2005. Employee's deposition testimony conflicts with her hearing testimony, in which she testified that she hurt her back on August 1, 2005.

At the hearing, employee testified that on August 1, 2005, she was at work pulling a pallet with a pallet jack when something happened in her back; employee described it as a sudden event that felt like a pinched nerve. Employee admitted that she didn't tell anyone at work about the incident on August 1, 2005, although she complained about generalized back pain to coworkers. Employee did not miss any work immediately following the alleged August 1, 2005, incident. In fact, employee continued working full duty from August 1, 2005, up until May 2006, except for a brief period during which she was off work for shoulder surgery.

Employee initially testified that her back pain after August 1, 2005, was different and more intense than the pain she suffered on a daily basis following her back injuries in the 1980s. Later, employee contradicted herself. When asked whether she was having more problems after her alleged back injury in August 2005 than she had before, she answered, "I guess. I don't know." This is just one example of many instances during the hearing in which employee admitted she couldn't remember facts related to her back condition before and after August 2005.

Given the inconsistencies between her deposition and hearing testimony, and her poor recollection at the hearing, we find employee's testimony unreliable as to the circumstances of the alleged August 1, 2005, incident, and her resulting low back condition.

On October 25, 2005, employee first sought treatment for her low back with her family physician, Dr. Ahmad. A radiology report of the lumbar spine dated October 25, 2005, includes the evaluating radiologist's impression of "anterior listhesis of L4 onto L5, most likely degenerative in nature." The report includes no mention of an injury or traumatic event in August 2005. An MRI of the lumbar spine dated February 20, 2006, revealed L4 spondylolisthesis with large left-sided disk herniation. The clinical history states: "Reason for exam low back pain with left leg radiculopathy for three months no recent injury." Employee eventually sought surgery, which was performed by Dr. Olson on May 11, 2006. Dr. Olson's notes contain no mention of an injury or traumatic event in August 2005.

Dr. Parmet provided an independent medical evaluation on behalf of the employer. Dr. Parmet diagnosed degenerative joint disease of employee's lumbar spine. Dr. Parmet did not find evidence of an acute injury. Dr. Parmet explained that employee's low back condition is not due to any occupational event, but rather employee's genetic background, back surgeries in the 1980s, and generalized osteoarthritis, which combine to result in accelerated degenerative changes and collapse of the lumbar spine. Dr. Parmet noted that there's no contemporary record or evaluation regarding an acute event in August 2005. Dr. Parmet also noted that there apparently was no event that was of such an acute nature as to raise the specter of a work-related injury in employee, who delayed having her low back evaluated for several months and waited even longer to report the injury as workrelated. Dr. Parmet noted that this was despite employee's familiarity with reporting of workers' compensation injuries. Ultimately, Dr. Parmet opined that employee's work was not a prevailing or a substantial factor in the development of her low back condition.

Dr. Koprivica provided an independent medical evaluation on behalf of employee. Dr. Koprivica believed the herniation was present as of August 1, 2005. Dr. Koprivica did not attribute employee's disk herniation to any specific event, rather, he opined that employee's work activities were a substantial factor resulting in progressive injuries leading up to August 1, 2005.

Dr. Prostic provided an independent medical evaluation on behalf of employee. Dr. Prostic opined that employee's repetitive work, as well as the injury of August 1, 2005, were substantial contributing factors to her low back condition requiring surgery in 2006.

We find Dr. Parmet more credible than Dr. Prostic and Dr. Koprivica. Especially in light of employee's lack of credibility regarding the alleged August 1, 2005, incident, we are convinced that employee's low back condition was the result of non-work-related factors, such as her two back surgeries in the 1980s and her generalized osteoarthritis and associated degenerative changes. This is also consistent with employee's initial failure to report any acute event to her employer or treating doctors, and the fact that she continued working full-duty all the way up until her surgery in May 2006. Dr. Parmet's opinion more convincingly takes these factors into account.

Accordingly, we find that employee's work was not a prevailing or a substantial factor in the development of her low back condition or disability.

The 2005 amendments

The administrative law judge applied the 2005 amendments to the Missouri Workers' Compensation Law to employee's claim, on findings that employee's injuries were not manifested until after August 28, 2005, the date on which the amendments went into effect. In her appeal to this Commission, employee argues that the administrative law judge erred in retroactively applying the amendments-and their more rigorous burdens of proof-to her claim.

We disagree with the administrative law judge's application of the 2005 amendments to this claim. Employee filed a claim for compensation alleging a date of injury predating August 28, 2005, and all of employee's evidence was dedicated to establishing that she sustained an injury by accident or occupational disease on August 1, 2005. We find it

inappropriate to apply the law as it existed after August 28, 2005, to a claim for compensation on an injury that employee avers occurred on August 1, 2005. Accordingly, we have applied to employee's claim the law as it existed on August 1, 2005.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the fund in "all cases of permanent disability where there has been previous disability." Here, employee seeks an award of permanent partial or permanent total disability benefits from the Second Injury Fund. The Second Injury Fund is liable for permanent partial or permanent total disability benefits as follows:

If any employee who has a preexisting permanent partial disability ... receives a subsequent compensable injury resulting in additional permanent partial disability ... the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability ... the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the "Second Injury Fund" ...

Section 287.220.1 RSM