Sandra Moore v. Missouri Baptist Medical Center

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-071282

Employee: Sandra Moore

Employer: Missouri Baptist Medical Center

Insurer: Self-Insured

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 § 287.480 RSMo. Having reviewed the evidence and briefs, and considered the whole record, the Commission finds that the award of the administrative law judge (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the ALJ dated July 8, 2011, as corrected below.

In the first sentence on page 3 of the ALJ's award, the ALJ lists the injury number for this matter as "(\#02-148591)." We find that this is incorrect and that the correct injury number for this matter is 05-071282. Therefore, we find that the ALJ's award shall be corrected and "\#02-148591" shall be deleted from the aforementioned sentence and "\#05-071282" shall be added in its place.

Based upon the foregoing, the award and decision of Administrative Law Judge Joseph E. Denigan, issued July 8, 2011, is affirmed, as corrected herein, and is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $25^{\text {th }}$ day of January 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, 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 reversed and employee should be awarded permanent partial disability benefits against employer and permanent total disability benefits against the Second Injury Fund.

The ALJ denied employee's claim on a finding that employee failed to meet her burden of proof that she sustained any permanent partial disability attributable to the reported injury. I disagree with the ALJ and find that the competent and substantial evidence establishes that employee did in fact sustain permanent partial disability as a result of her July 25, 2005, work injury.

On July 25, 2005, employee injured her left hip and left hamstring. Employee credibly testified that on that date she was sitting down at work when a doctor asked her to retrieve something. Employee got up and turned to her left to retrieve the item; but while doing so, her left foot became caught in computer cords. Employee lost her balance and started to fall, but the doctor grabbed employee to break her fall. Employee did not fall all the way to the floor, but she felt a "pop" in her left leg, which was followed by the immediate onset of pain. Employee testified that when she sat down afterwards it felt like she was sitting on a rock in the back of her left leg.

Employee reported the injury to her supervisor and was sent to the emergency room for treatment. Employee was treated by Dr. Patricia Hurford, who diagnosed a left hamstring muscle strain. Dr. Hurford noted that the muscle strain was caused by the July 25, 2005, accident. Dr. Hurford ordered physical therapy, a thigh sleeve, and placed employee on sedentary work activities.

Employee followed up with Dr. Hurford and was eventually released from her treatment on September 13, 2005, with no work restrictions. Employee was released from treatment on September 13, 2005, but Dr. Hurford did note that employee complained of intermittent symptoms in the ischial region with prolonged sitting, especially while driving.

After returning to work, employee's left hip and hamstring problems began combining with her preexisting back problems. Employee attempted to obtain further treatment for her left hip and hamstring by notifying her employer, but her requests were denied. Employee then retained an attorney to help her obtain further treatment. Employee quit her employment on February 11, 2006, because she could no longer endure the pain and problems associated with her left hip and hamstring and preexisting problems associated with her wrists, hands, and back.

Employee was seen again by Dr. Hurford on November 21, 2006. Employee reported persistent pain and numbness since her last office visit on September 13, 2005, in her left buttock, leg, and groin. Dr. Hurford ordered an MRI of the left side of employee's

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ischiam and pelvis. The MRI revealed severe tendinopathy of the left hamstring muscle. Dr. Hurford ordered more physical therapy.

Dr. Hurford saw employee for the last time on March 14, 2007. She noted that employee had no significant improvement and that there were really no other treatment options available to employee. Dr. Hurford released employee at maximum medical improvement.

On December 17, 2008, Dr. Volarich saw employee for an independent medical evaluation. Dr. Volarich noted that employee continued to complain of ongoing difficulties with her left leg and hip. Dr. Volarich stated that employee reported no preexisting problems with her left hamstring/thigh and that the July 25, 2005, accident was the "substantial contributing factor, as well as the prevailing or primary factor causing the severe left hamstring strain with associated severe tendinopathy that required conservative treatment." Dr. Volarich opined that as a result of the July 25, 2005, injury employee sustained 20 % permanent partial disability rated at the hip due to hamstring strain and severe tendinopathy. Dr. Volarich provided additional permanent disability ratings for employee's preexisting problems associated with her wrists, hands, and lumbar spine. Dr. Volarich ultimately concluded that employee is permanently and totally disabled as a direct result of employee's disabilities suffered from the July 25, 2005, injury combining with her preexisting disabilities.

On December 21, 2009, Dr. Cantrell saw employee for an independent medical evaluation. Dr. Cantrell reported the essential facts of how the July 25, 2005, injury occurred, employee's past medical treatment, and employee's ongoing complaints of left posterior hamstring pain. Dr. Cantrell states in his report that employee had difficulty distinguishing her left hip and thigh symptoms related to the July 25, 2005, injury from her preexisting lumbar back pain, prior hip pain and rheumatoid arthritis. Dr. Cantrell opined that the left hamstring tendinopathy was not caused by a specific injury and suggested it was the result of degenerative changes. Dr. Cantrell concluded that employee did not sustain any permanent partial disability as a result of the hamstring strain diagnosis.

After reviewing employee's testimony, the medical evidence, and the record as a whole, I find that Dr. Volarich's opinions more accurately assess employee's permanent disability than Dr. Cantrell's. Dr. Volarich's opinions are fully supported by Dr. Hurford's treatment records and properly account for employee's ongoing left hip and hamstring complaints. Dr. Cantrell, on the other hand, ignores the consistency of the record in finding that employee sustained no permanent partial disability as a result of the July 2005 injury. For example, Dr. Cantrell states in his report that employee had difficulty distinguishing her July 25, 2005, injury complaints from her preexisting problems; however, he goes on to state in the very next paragraph that employee reported that "as a result of her injury in July of 2005, she has difficulty with prolonged sitting[,] particularly on firm surfaces, ambulates with a limp[,] ... no longer able to ride a motorcycle or a riding lawnmower[,] ... no longer able to walk in the park because of pain in her leg, ... [and] she must 'walk it out' to relieve pain and cramping that occurs with sitting or standing or sleeping." Dr. Cantrell's statement regarding employee's difficulty distinguishing the source of her complaints is not an accurate assessment of the facts presented to him.

Engloyee: Sandra Moore

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Based upon the foregoing, I find that Dr. Volarich's opinions are more credible than Dr. Cantrell's. I find that as a result of the July 25, 2005, injury employee sustained 20% permanent partial disability. I further find, in accordance with Dr. Volarich's opinions, that employee is permanently and totally disabled as a result of the July 2005 injury combining with employee's preexisting disabilities. I would award to employee 20% permanent partial disability benefits against employer and permanent total disability benefits against the Second Injury Fund. Consequently, I would reverse the award of the administrative law judge.

Therefore, I respectfully dissent from the decision of the majority of the Commission.

Curtis E. Chick, Jr., Member

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: July 25, 2005
5. State location where accident occurred or occupational disease was contracted: N/A
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? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? N/A
11. Describe work employee was doing and how accident occurred or occupational disease contracted: N/A
12. Did accident or occupational disease cause death? N/A Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: left leg
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? \$7,103.79

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: unknown
3. Weekly compensation rate: $\ 309.54 TTD/PPD
4. Method wages computation: Stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

Total: $\quad-0-$

1. Future requirements awarded: N/A

Said payments to begin N/A and to be payable and be subject to modification and review as provided by law.

The compensation awarded to Claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to Claimant:

$\mathrm{N} / \mathrm{A}$

This case involves two separate Claims for alleged injury to Claimant with