Rita Pease v. Stockton R1 Public School

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we issue this final award and decision supplementing and modifying the 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.

Employee suffered significant injury to her right knee when she fell at work in August 2007. Treatment included surgery, after which employee used a walker consistent with the treating doctor's recommendations. In April 2008, employee fell again when she lost control of the walker while trying to open a door; employee suffered injury to her left knee and left elbow as a result of this fall. The administrative law judge found that the April 2008 fall was a natural consequence of the 2007 injury, and included the effects of the 2008 fall in his determination as to the nature and extent of employer's liability for the 2007 work injury.

On appeal before this Commission, employer argues that because employee filed a separate claim for compensation in connection with the 2008 fall, and because the 2008 fall meets the criteria for an "accident" under the applicable provision of the Missouri Workers' Compensation Law, employee is thereby precluded from proving a causal connection between the 2007 and 2008 events. Employer fails to cite any authority supporting this proposition.

Employer's argument fails. The courts have held where a compensable work injury (like employee's 2007 right knee injury) is found to have occurred, "every natural consequence that flows from the injury, including a distinct disability in another area of the body, is compensable as a direct and natural result of the primary or original injury." Pace v. City of St. Joseph, 367 S.W.3d 137, 147 (Mo. App. 2012). Employer fails to acknowledge the cases discussing what constitutes a "natural consequence" of a compensable work injury. We find the recent Pace decision to be analogous to the facts at issue in this case. In Pace, the court determined that an employer was liable for permanent total disability benefits where an employee suffered a knee injury at work in 2002, and thereafter suffered two additional falls in 2004 when the injured knee collapsed. Id. at 140. The Pace court noted that employee filed separate claims for compensation for the 2002 and 2004 incidents; clearly, the Pace court was not under the impression that employee was somehow prohibited from showing a causal connection between the incidents simply because separate claims for compensation were filed with the Division of Workers' Compensation. Id. at 141-42.

We conclude that employee was entitled to make her case that the 2008 fall was a natural consequence of the 2007 work injury, despite filing claims for compensation in connection with both the 2007 and 2008 incidents. Likewise, we conclude that employee's filing two claims does not restrict our analysis herein with regard to the nature and extent of employer's liability for the 2007 work injury. Meanwhile, employer was free to argue that an "independent intervening cause" was the source of employee's subsequent injury. See Wilson v. Emery Bird Thayer Co., 403 S.W.2d 953, 958 (Mo. App. 1966). But employer has failed to identify any intervening cause, and fails to challenge or even directly address Dr. Koprivica's medical testimony on the issue.

Dr. Koprivica opined that the 2008 fall was a natural consequence and continuation of the 2007 work injury. Dr. Koprivica explained that the severity of the 2007 injury necessitated employee's use of a walker, and employee's losing control of the walker was what led directly to her fall in 2008. Meanwhile, employer's expert Dr. Lennard agreed that it was much less likely that employee would have fallen in 2008 if she had not suffered the work injury in 2007, yet nevertheless insisted that the 2007 work injury was "less than" a prevailing factor in causing her subsequent injuries. Neither party asked Dr. Lennard to explain this position. We note that Dr. Lennard appeared confused when he testified: "I don't know that I understand the question as far as 'natural consequence." Transcript, page 717.

Dr. Koprivica's testimony makes more logical sense to us. Especially in the absence of any argument from employer as to why we should accept Dr. Lennard's opinions on the issue over those of Dr. Koprivica, we agree with the administrative law judge that Dr. Koprivica provides the more credible testimony and that employee's 2008 fall was a natural consequence of the 2007 work injury, and is compensable herein as a continuation of the work injury.

We agree with the administrative law judge that employer is liable for permanent total disability benefits. But the administrative law judge determined that employer's liability for permanent total disability benefits begins on June 1, 2008, the day following employee's resignation. Absent a showing that employee had reached maximum medical improvement on June 1, 2008, any finding as to the nature and extent of employee's permanent disability as of that date is premature:

Courts have used various terms to determine when an employee's condition has reached the point where further progress is not expected, including the term maximum medical improvement. Vinson v. Curators of the University of Missouri, 822 S.W.2d 504, 508 (Mo. App. E.D. 1991) (interpreting a doctor's testimony of employee's maximum treatment potential to mean maximum medical improvement); Cooper, 955 S.W.2d at 575 (using the term maximum medical progress to define the point where no further progress is expected for an employee's condition).

After reaching the point where no further progress is expected, it can be determined whether there is either permanent partial or permanent total disability and benefits may be awarded based on that determination. One cannot determine the level of permanent disability associated with an

injury until it reaches a point where it will no longer improve with medical treatment. ...

Although the term maximum medical improvement is not included in the statute, the issue of whether any further medical progress can be reached is essential in determining when a disability becomes permanent and thus, when payments for permanent partial or permanent total disability should be calculated.

Cardwell v. Treasurer of Mo., 249 S.W.3d 902, 910 (Mo. App. 2008).

As the foregoing quotation makes clear, the timing of permanent total disability payments is linked to the concept of maximum medical improvement; employee's date of resignation is irrelevant. In a note dated September 10, 2008, Dr. Miller (the physician who provided treatment following the 2008 fall) found employee to be at maximum medical improvement. We find that employee reached maximum medical improvement from the effects of the work injury on September 10, 2008. We find that employee was permanently and totally disabled as of September 10, 2008, and that employer's liability for weekly payments of permanent total disability benefits begins on that date.

We supplement the analysis of the administrative law judge on the issue of whether employee's fall in 2008 was a natural consequence of the work injury. We also modify the date of commencement of employer's liability for payment of permanent total disability benefits.

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.

The award and decision of Administrative Law Judge Robert H. House, issued January 20, 2012, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $19^{\text {th }}$ day of September 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

STATE OF MISSOURI

DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS

DIVISION OF WORKERS' COMPENSATION

3315 WEST TRUMAN BLVD, P.O. BOX 58, JEFFERSON CITY, MO 65102 (573) 751-4231

JANUARY 20, 2012

07-080701

Scan Copy

*Employee . . . . : RITA PEASE

191871230 2542 EAST 1900 ROAD

JERICO SPRINGS, MO 64756

*Employer . . . . : STOCKTON R I SCHOOL DIST

191871247 1400 SOUTH ST

PO BOX 190

STOCKTON, MO 65785

*Insurer Attorney : MICHAEL D MAYES

1717 E REPUBLIC RD

STE C

SPRINGFIELD, MO 65804

*Employee Attorney: DARREN J MORRISON

1736 EAST SUNSHINE

PLAZA TOWERS SUITE 104

SPRINGFIELD, MO 65804

*Insurer . . . . : MISSOURI UNITED SCHOOL INSURAN

191871254 c/o GALLAGHER BASSETT SERVICES

1630 DES PÈRES RD STE 200

ST LOUIS, MO 63131-1849

*Asst Atty General: ATTY GENERAL CHRIS KOSTER

191871223 149 PARK CENTRAL SQ STE 1017

SPRINGFIELD, MO 65806

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission

PO Box 599

Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Please visit our website at www.labor.mo.gov/DWC

Employee: Rita Pease

Injury No. 07-080701 \& 08-039220

Dependents: N/A

Employer: Stockton R1 Public School

Additional Party: Second Injury Fund

Insurer: MUSIC c/o Gallagher Bassett Services

Hearing Date: September 28, 2011

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by:

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: $8 / 14 / 07 and 4 / 16 / 08$
5. State location where accident occurred or occupational disease was contracted: STOCKTON, MO
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: FUFILLING DUTIES AS A TEACHER
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease: RIGHT KNEE, LEFT KNEE, LEFT ARM
14. Nature