Linda Thompson v. Lone Star S & S of S Missouri

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 10-026132

Employee: Linda Thompson

Employer: Lone Star S \& S of S Missouri

Insurer: Zurich American Insurance Co.

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 briefs, and considered the whole record. Pursuant to section 286.090 RSMo, we issue this final award and decision modifying the August 5, 2011, award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

We agree that employee met her burden of proving she is entitled to medical treatment from the employer. We are concerned, however, with the form in which the administrative law judge awarded medical treatment. Specifically, we find it inappropriate to award medical treatment "with a qualified surgeon ... other than Dr. Chabot." Award, page 8. The administrative law judge cited § 287.140.2, RSMo, which provides as follows:

If it be shown to the division or the commission that the [employee's medical treatment] requirements are being furnished in such manner that there is reasonable ground for believing that the life, health, or recovery of the employee is endangered thereby, the division or the commission may order a change in the physician, surgeon, hospital or other requirement.

We find no showing at this stage of the proceedings that employer has furnished medical treatment in such manner that there are grounds (reasonable or otherwise) to believe that employee's life, health, or recovery have been endangered thereby. As a result, we conclude that $\S 287.140 .2$ is not implicated in this matter. Accordingly, we must modify the award to give effect to the appropriate statutory language pertaining to employer's obligation to provide medical treatment. Section 287.140.1, RSMo, provides, in relevant part, as follows:

In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

We find and conclude that employee is entitled to, and employer is obligated to provide, that medical treatment which may reasonably be required to cure and relieve the effects of the injury of March 8, 2010.

We modify the award of the administrative law judge. We find that employee is entitled to such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, which may reasonably be required to cure and relieve from the effects of the injury of March 8, 2010.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of section 287.510 RSMo.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued August 5, 2011, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $8^{\text {th }}$ day of November 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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:
5. State location where accident occurred or occupational disease contracted: St. Louis County
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 was waiting tables when she injured her low back lifting a rack of drinking glasses.
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
14. Compensation paid to-date for temporary disability: -0 -
15. Value necessary medical aid paid to date by employer/insurer? -0 -
16. Value necessary medical aid not furnished by employer/insurer? Unknown

Employee: Linda Thompson

1. Employee's average weekly wages: Unknown
2. Weekly compensation rate: \$
3. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses:

Unknown

temporary total disability (or temporary partial disability)

None

TOTAL:

-0-

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.

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:

S. Todd Hamby

Employee: Linda Thompson

Dependents: N/A

Employer: Lone Star S \& S of S Missouri

Additional Party: Second injury Fund (open)

Insurer: Zurich American Insurance Co.

Hearing Date: June 7, 2011

Injury No.: 10-026132

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED/sw

This case involves a disputed low back injury resulting to Claimant with the reported accident date of March 8, 2010. Employer admits Claimant was employed on said date and that any liability was fully self-insured. The Second Injury Fund is a party to this claim but remains open for a determination of liability at a future date. Both parties are represented by counsel. This matter proceeds pursuant to Hardship Petition requesting tender of benefits.

1. Accident;
2. whether injury arose out of and in the course of employment;
3. medical causation/maximum medical improvement (MMI).

Claimant currently works as a server for Employer. On the reported accident date, Claimant was lifting a full rack of 25 glass ice tea glasses. Claimant bent over to lift a rack of large drinking glasses from the floor to a position just above her head. While performing this task, Claimant felt an immediate onset of sharp pain in her low back. The pain was so intense that Claimant stopped working and rested.

Co-worker Doug Garces witnessed the accident (Exhibit C). Claimant told Mr. Garces that she was experiencing pain in her low back. Claimant told Mr. Garces she could not move due to the onset of severe low back pain. She stopped working for a short while and Mr. Garces checked her customer tables. He confirmed that the rack of glasses weighed about 25 lbs . and that he saw Claimant lifting the glasses. Mr. Garces testified that while Claimant had previously complained of low back discomfort, she had never before had pain that caused her to take a break from work and that the subject incident was immediately preceded by the lifting of the glass rack

as describe above. Further, Mr. Garces was asked to identify the managers which included Jamie [Jordan]. Mr. Garces identified her as a shift leader, or "stand-in" manager. He knew Claimant had reported the injury because Jamie Jordan asked him about the incident and he told her that Claimant had low back pain after lifting the glass rack. This testimony was cogent and unrebutted.

Claimant finished her shift. She continued to work but noticed a worsening of her symptoms and shortly thereafter the pain began radiating into her right leg. Claimant stated she had some low back symptoms about ten years ago. She never had pain radiating into her lower extremities. Claimant's testimony was credible, corroborated and unrebutted.

On March 24, 2010, she presented to her primary care physician at SSM DePaul Medical Group. The diagnosis was right leg neuropathy and low back pain. A lumbar MRI on March 29, 2010 revealed at T12-L2 a small bulging disc. At L4-5, there was noted to be a moderate disc protrusion extending into the inferior aspect of the right neuroforamen. At L5-S1, there was a moderately large right paracentral disc extrusion with inferiorly migrated disc fragment abutting the thecal sac and the right S1 nerve root compression (according to medical records).

On March 31, 2010, she saw a chiropractor complaining of right low back pain and right leg pain. Claimant reported that her pain and numbness in her back, leg and foot began three weeks ago. (Group Exhibit A2, p. 15). He noted an inability to dorsiflex her right foot and numbness in the right foot. He prescribed myofascial and therapeutic exercises and electrical muscle stimulation. On April 1, 2010, she presented to St. John's Mercy Medical Center Emergency Room complaining of low back pain with right lower extremity radicular symptoms. Exam there revealed a positive straight leg raise on the right at $45^{\circ}. In addition, there was 3 / 5$ right tibialis anterior, extensor digitorum and extensor hallucis longus and peroneus longus. There was also diminished sensation in the right L5-S1 dermatomes and 1/4 deep tendon reflex at the right heel. They recommended pain management.

On April 7, 2010, she underwent right L5-S1 transforaminal epidural steroid injection by Dr. Ahmad and on April 20, 2010, underwent the second injection. Claimant told Dr. Volarich that the injections helped considerably with the pain, but did nothing for the foot drop. On April 28, 2010 Claimant told Dr. Ahmad she started having pain in her back and it started to radiate down into her right leg around March 8, 2010. (Group Exhibit A3, p. 28). On May 7, 2010, she saw Dr. DeGrange. His diagnosis was herniated nucleus pulposus and he recommended an AFO for the right foot.

Claimant offered the deposition and report of David T. Volarich, D.O., as Group Exhibit B. In August 2011, Dr. Volarich examined Claimant and reviewed the medical record. Dr. Volarich diagnosed Claimant with a herniated nucleus pulposus, L4-5 to the right, causing the

right leg L5 radiculopathy with foot drop and herniated nucleus pulposus at L5-S1 to the right, causing right S1 paresthesias and weakness. Dr. Volarich further testified that Claimant had preexisting minor lumbar strain from the 1990s that had resolved and was asymptomatic. (p. 18.) Dr. Volarich testified that within a reasonable degree of medical certainty Claimant's low back symptoms were caused by the reported accident. Dr. Volarich testified that the March 8, 2010 accident was the prevailing factor in causing the disc herniations. Dr. Volarich test