Odessa Current v. Little Hills Health Care, LLC

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-009996

Employee: Odessa Current

Employer: Little Hills Health Care, LLC (Settled)

Insurer: Travelers Commercial Casualty Company (Settled)

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 February 9, 2011. The award and decision of Administrative Law Judge Edwin J. Kohner, issued February 9, 2011, 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 $26^{\text {th }}$ day of July 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., 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 the decision of the administrative law judge (ALJ) should be modified and employee should be awarded permanent total disability benefits against the Second Injury Fund.

First, there is no dispute that employee suffered an accident that arose out of and in the course of her employment on February 6, 2004, and that the injuries resulting from said accident combined with employee's preexisting disabilities to trigger Second Injury Fund liability. The issue is whether the combination of employee's primary injury and preexisting disabilities resulted in employee's permanent and total disability, irrespective of any alleged post-accident worsening of her preexisting condition.

The ALJ found that employee is permanently and totally disabled, but not solely due to the combination of her primary injury with her preexisting disabilities. Instead, the ALJ found that employee's total disability resulted from the combination of her primary injury, her preexisting disabilities, and the degeneration of her cervical spine months after the work-related accident. Therefore, the ALJ only awarded enhanced permanent partial disability benefits against the Second Injury Fund and denied employee's claim for permanent total disability benefits. I find that the competent and substantial evidence establishes that the combination of employee's primary injury and preexisting disabilities, alone, caused employee's permanent total disability.

Although employee did suffer from a preexisting cervical condition, there was no competent and substantial evidence presented at the hearing, nor in the transcript and medical records, to suggest that any post-accident worsening of this preexisting condition contributed to employee's permanent total disability.

The ALJ largely bases his award on a finding that employee's cervical disc herniation was caused by the post-accident worsening of employee's preexisting degenerative cervical condition. However, Dr. Volarich credibly opined that the primary injury was the substantial factor as well as the prevailing or primary factor causing the disc herniation at C4-5 as well as the aggravation of degenerative disc disease and degenerative joint disease at C4-5, C5-6, C6-7, all of which required extensive repair in the form of a 3-level anterior cervical discectomy with fusion and instrumentation. Dr. Volarich noted that employee's "symptoms changed dramatically after she fell on the steps February 6, 2004 and what was found on the subsequent imaging studies correlate with the kind of problem she had from that fall and after the fall." Dr. Volarich ultimately opined that employee is permanently and totally disabled as a direct result of the primary injury in combination with her preexisting conditions.

The ALJ relied on Dr. Rutz' opinion that employee's herniated disc was the natural progression of her preexisting condition. However, the ALJ's reliance on the opinion of Dr. Rutz is misplaced in that Dr. Rutz only had 75 pages of medical records concerning employee, where her total medical records number in the hundreds of pages. Dr. Rutz

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did not have the benefit of a full copy of Dr. Kantor's records, a full copy of the Barnes Jewish-St. Peters emergency room record from the day of the incident, the Health South records, or employee's June 2004 MRI report, which is significant in that it clearly evidences complaints related to employee's left upper extremity. Because Dr. Rutz lacked the aforementioned medical records, he was under the impression that employee's complaints had significantly changed when she came to see him. If he had reviewed all of the medical records he would have known that this was not the case. Dr. Rutz' opinions are based on a mere portion of the medical records chronicling the treatment employee received for the primary injury and, therefore, it cannot be said that his medical causation opinions are more credible than those of Dr. Volarich, who reviewed all of employee's medical records.

I find that the ALJ's reliance on Dr. Rutz' opinions is misplaced and that employee's permanent total disability is the result of his primary injury combining with his preexisting disabilities, irrespective of any post-accident worsening of any alleged preexisting degenerative condition. As such, I would modify the award of the administrative law judge merely awarding employee permanent partial disability benefits and award employee permanent total disability benefits against the Second Injury Fund.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

Curtis E. Chick, Jr., Member

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: February 6, 2004
5. State location where accident occurred or occupational disease was contracted: St. Charles County, Missouri
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 occurred or occupational disease contracted: The claimant, an assistant supervisor of housekeeping for a nursing facility, slipped and fell on an icy surface while disposing of trash.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Left shoulder and cervical spine
14. Nature and extent of any permanent disability: 32 \frac{1}{2} % permanent partial disability to the cervical spine
15. Compensation paid to-date for temporary disability: $\ 2,346.52
16. Value necessary medical aid paid to date by employer/insurer: $\ 5,732.20

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Odessa Current

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 424.80
3. Weekly compensation rate: $\ 283.20
4. Method wages computation: By agreement

1. Amount of compensation payable:

Previously settled

1. Second Injury Fund liability: Yes

26.2 weeks of permanent partial disability from Second Injury Fund

$\ 7,419.84

Permanent total disability benefits from Second Injury Fund:

weekly differential () payable by SIF for weeks beginning

and, thereafter, for Claimant's lifetime

TOTAL:

$\ 7,419.84

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Anthony M. Pugliese, Esq.

Employee: Odessa Current

Injury No.: 04-009996

Dependents: N/A

Employer: Little Hills Health Care, LLC (Settled)

Additional Party: Second Injury Fund

Insurer: Travelers Commercial Casualty Company (Settled)

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/ch

This workers' compensation case requires a determination of Second Injury Fund liability arising out of a work related injury in which the claimant, an assistant supervisor in housekeeping for a nursing facility, suffered a neck injury while taking trash to a trash container on an icy surface. The issues for determination are (1) Medical causation and (2) Second Injury Fund liability. The evidence compels an award for the claimant for permanent total disability benefits.

At the hearing, the claimant testified in person and offered depositions of David T. Volarich, D.O., and William M. England, records from the Division of Workers' Compensation, and voluminous medical records. The defense offered a deposition of Kevin D. Rutz, M.D.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident was alleged to have occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

On February 6, 2004, this fifty-six year old claimant, an assistant supervisor of housekeeping for a nursing facility, slipped and fell on an icy surface while disposing of trash striking her head and neck on the concrete steps. She developed pain in her head, neck, and low back. The claimant went by ambulance to Barnes-Jewish Hospital in St. Peters with complaints of head and neck pain with immediate onset after the fall. See Exhibit G. X-rays revealed moderate degenerative changes of the cervical spine but no evidence of acute fracture. See Exhibit G. She received a diagnosis of multiple contusions and prescription medications on discharge.

Dr. Tate provided follow up care for myofascial pain syndrome and provided trigger point injections, heat, stretching, physical therapy, Celebrex, and Flexeril. See Exhibit K. On April 5, 2005, Dr. Tate examined the claimant and founded

Neck is supple. There is no paravertebral muscle spasm or tenderness. Cervical range of motion is intact. Foraminal encroachment is negative bilaterally. There are no longer any trigger points identified. There is no significant tightness. ... Musculoskeletal examination of the upper extremities reveals shoulder range of motion to be 80 % of normal. There is no increased pain with resisted should