**Employee:** Elizabeth Downing
**Injury No:** 05-140864 and 06-079039
authorization for surgery. Nevertheless, on June 23, 2006, claimant proceeded with surgery without authorization. The surgery consisted of a right L5-S1 micro diskectomy. Claimant continued to have complications and a second surgery was performed by Dr. Ipsen on June 25, 2006, with a complete L5-S1 laminectomy and diskectomy. At the time of the surgeries there was a concern as to whether or not claimant had a malignancy at that area. That was found not to be the case. Employer/insurer paid for Dr. Ipsen's treatment prior to claimant's surgery.
Claimant continues to have problems with her back. She has severe pain going down her left leg with numbness from the waist down to her foot. She continues to have some problems with numbness on the right through the right leg, but that is only intermittent. She continues to have right leg pain. Claimant has stated that her left foot feels like she is always stepping on a rock at her heel and that she continues to have some pain in her lower back.
Claimant obtained the services of Dr. P. Brent Koprivica, an occupational medicine specialist, who opined that claimant has sustained a permanent partial disability in the amount of 25 percent to the body as a whole as a result of her back and leg problems. He noted claimant's pain and numbness in her legs, problems with her balance and her walking with a limp. He further opined that the initial annular injuries likely occurred on August 6, 2005, when she was bending over a table but that her ongoing work activities aggravated the problem and progressed the injury to the point where her condition became disabling. In effect, he found that claimant's disability was a result of a repetitive injury and occupational disease through her work which concluded on June 12, 2006. He found that the repetitive injury is what necessitated the need for her surgeries. He further found that the care and treatment that she received including her surgeries were reasonable and necessary as a result of her occupational disease. Dr. Koprivica further found that claimant was temporarily and totally disabled from June 13, 2006, until October 2006 following her diagnosis of the need for and the completion of surgery.
It is clear from the evidence in this case that claimant suffered an event on August 6, 2005, when she was leaning over a table to clean it off. She felt pain as she returned to a standing position. There is no evidence to the contrary. Apparently claimant, in passing mentioned her injury to Jim Vaughn, the manager, of the Sirloin Stockade, without any details or
a specific assertion of relation to work. Mr. Vaughn did not specifically remember that happening, and claimant throughout her testimony by deposition and at trial stated that the "notice" of her injury was not specific. Nevertheless, Mr. Vaughn admitted in his deposition that that notice may well have occurred since he often pats or rubs on the waitresses who complain about their various pains, including back pain. However, based upon the entire tenor of claimant's testimony along with that of the various witnesses for the employer, I cannot find that claimant gave a sufficient specific notice of her accident to place employer on notice of a specific and identifiable injury on August 6, 2005. Apparently, neither claimant nor the employer placed any significance to the injury at the time it occurred sufficient for claimant to seek treatment or employer to report the incident to the insurer or to the state. Indeed, although claimant suffered immediate pain and continued to have pain on and off thereafter, she apparently was unaware of the seriousness of her injury until later when the pain became significant radiating pain into her legs with numbness into her legs. Claimant later sought treatment on her own from a chiropractor noting right hip and radicular pain along with low back pain as noted in Dr. Webb's records. At some point in time, months after the accident, she had conversations with Jim Vaughn, the manager, and Terry McDonald, the employer, regarding her problems sufficient for Mr. Vaughn to visit with LuAnn Henderson, an adjuster for the employer/insurer's workers' compensation insurance company. Exactly what kind of notice was provided at that time is difficult to determine based upon the testimony of all of the witnesses in this case including claimant. Nevertheless, at some point in time, and certainly by May 18, 2006, the insurance company was aware of claimant's injury, and claimant was sent to Occumed with authorization for treatment provided directly by LuAnn Henderson. Employer denies authorizing any treatment prior to that of LuAnn Henderson. From the record, however, it is certain that claimant received authorized treatment from Occumed during which an EMG and MRI was provided. Occumed referred claimant to Dr. Ipsen who recommended surgery. When Dr. Ipsen recommended surgery, the employer/insurer decided not to authorize the surgery pending further investigation and informed both claimant and Dr. Ipsen of that fact. Nevertheless, claimant on her own decided to go forward with the first surgery which Dr. Ipsen performed. She underwent a second surgery by Dr. Ipsen two days later. Employer/insurer have denied the claim indicating that they were willing to provide treatment as needed. At trial employer/insurer denied both the '05 and the '06 claims.
Based upon all of the evidence presented in this case I find and conclude as follows: Claimant provided notice to the employer of the '05 injury without any specific details on August 6, 2005. The notice that claimant gave on the date of the injury was insufficient for employer to be put on notice of claimant's accidental injury since it appears that neither employee nor employer/insurer believed at that time that that event was of any significance. No additional information was provided to employer/insurer until after claimant received treatment from her chiropractor and months later sought additional medical care from employer/insurer that included an EMG and an MRI. It was at that time the parties were aware of the significance of her condition and the work relatedness.
There was concern by Dr. Estep at Occumed and the employer/insurer of the work relatedness of claimant's condition. In the occupational health clinic notes from Occumed on June 5, 2006, Dr. Estep stated the following:
Recommend orthopedic spine neurosurgical opinion. However upon calling the insurance company, the insurance company is questioning whether or not this is related to the injury on 8/6/05. To help differentiate and expedite the issue, it is recommended at this time that an EMG of the right lower extremity to help differentiate whether or not this is new or old be proceeded with. If the EMG shows an acute radiculopathy with less than three to six months worth of time frame, this may in fact be a new injury versus if it does show chronic issues with greater than six months of age, then it would be consistent with the injury on 8/6/05. This was discussed openly with the insurance company and they did express understanding and agreement. Recommend at this time that an EMG be immediately proceeded with. Arrangements are made at this time. She may return to work with no lifting over 15 pounds, minimize bending or twisting. We will see her after the EMG and then be able to discuss whether or not to proceed with neurosurgical evaluation under a work related issue or whether or not it is non-work related.
After the EMG was performed and the results evaluated, Dr. Estep on June 8, 2006, wrote the following:
SUBJECTIVE: She is seen for re-evaluation for an L4-L5 disc with radiculopathy and right lower extremity atrophy. She states she is still having pain. She now presents for an evaluation.
She has undergone electromyelographical evaluation by Dr. Robbie yesterday. Dr. Robbie does note an L5-S1 radiculopathy on the right lower extremity shown to be chronic in nature. It is mild in nature, but it is definitely chronic. It has been there at least greater than six months.
OBJECTIVE: She continues to show atrophy associated with her right lower extremity associated with the calf. She walks with a mild atelectatic gait.
IMPRESSION: 1) RIGHT L4-L5 DISC WITH RADICULOPATEY.
2) RIGHT LOWER EXTREMITY ATROPHY.
PLAN: Recommend a surgical opinion at this time. Recommend no lifting over 15 pounds, minimize bending and twisting, alternate sit/stand/walk every 15-20 minutes.
From the June 5, 2006, and June 8, 2006, records of Dr. Estep, it is clear that it was his opinion claimant's condition was work related since it was not a new injury but a chronic injury of greater than six months. Upon that basis, he recommended a surgical opinion. At that time claimant was referred to Dr. Ipsen, an orthopedic surgeon, which was authorized by Luann Henderson for employer's workers' compensation insurance carrier for an evaluation. Clearly neither employer nor claimant were aware of the work relatedness of her injury until the opinion of Dr. Estep and later by Dr. Koprivica. Claimant's injury was insignificant except as to immediate pain at the time it occurred on August 6, 2005. Her condition worsened over time to the point that she need additional treatment in March of 2006 from her chiropractor, Dr. Webb,
and later by the doctors at Occumed, and Dr. Ipsen. This is similar in circumstance to the facts in Messersmith v. University of Missouri-Columbia/Mt. Rehabilitation Center, 43 SW3d 829 (Mo banc 2001). The Missouri Supreme Court in Messersmith found that Messersmith's failure to provide notice as required under $\S 287.420$, RSMo. which at the time of the August 6, 2005, injury would have been not later than 30 days after the accident was excused by good cause because of the nature of her injury. As stated by the Court in Messersmith, "Messersmith's injury is the type of latent injury that this Court has held to be good cause for an innocent delay in filing an injury report with an employer." Citing State exhibit rel. Buttiger v. Haid, 330 Mo. 1030, 51 SW2d 1008. Messersmith, 43 SW3d 832. As stated in Messersmith by applying Buttiger, "The failure to give the required notice has been excusable for good cause where at the time the accident occurred the injury appeared trivial to the employee and its seriousness did not become apparent until more than 30 days had elapsed." That is clearly the situation in this case. Indeed, neither the claimant nor her employer believed that her injury was significant at the time it occurred when she gave no details of an injury to her employer on August 6, 2005, but merely indicated back pain with or without a mention of a specific event of lifting dishes and clearing tables as part of her duties as a waitress. Claimant's testimony varies as to precisely what she may have stated and the manager of her employer's business indicated that she may have given details but he doesn't recall. Based upon the Supreme Court's decision in Messersmith, I find that claimant in all likelihood did not give specific enough notice on August 6, 2005, or within 30 days thereafter to put the employer on notice of her injury, but that there is good cause for that failure based upon the circumstances of this case and the latent nature of her injury. Moreover, there is no indication within the record that failure to report the accident earlier resulted in any prejudice to the employer or had it initiated its investigation earlier. It is clear from the testimony of Mr. Vaughn, the manager for the employer's business, that he was well aware of waitresses, including claimant, having back problems and complaints from their heavy lifting without reporting any of those situations. Additionally, there is no medical evidence that submitting claimant's treatment to a doctor earlier would have changed her condition or the need for any treatment. As a result, I find that there is good cause excusing claimant from specific notice of an injury at work from August 6, 2005, and I find and conclude that there is no prejudice to the employer as a result thereof.
Employer/insurer also deny the 2005 case based upon a lack of medical causation for claimant's current condition. It is clear from the opinions of Dr. Koprivica and the findings of Dr. Estep at Occumed, that claimant's condition was caused by her work. Dr. Estep, albeit without any direct use of the word caused by or causation in his report indicated the work-related nature of the injury based upon it being at least six months old. Dr. Koprivica was more specific in finding the work relatedness of the original event on August 6, 2005, but finding a specific occupational injury (as claimed in the 2006 claim) as being the ultimate determinant of claimant's disability. Consequently, I find that claimant's initial injury was caused her event on August 6, 2005, as noted by Dr. Koprivica without any contradiction by other physicians in the record, and indeed confirmed by Dr. Estep.
Employer/insurer have also denied the '06 claim in which claimant alleges an occupational disease or repetitive trauma injury. It is clear from claimant's testimony as well as that of Jim Vaughn that the waitresses at Sirloin Stockade have complained often about their backs. It is also clear from the testimony of claimant and Jim Vaughn that as a waitress claimant had to clean tables, lift dishes, glasses and other items of a heavy nature on a repetitive basis. Indeed, there is no evidence to the contrary. Based upon that set of circumstances, Dr. Koprivica has opined that claimant suffered an occupational disease, repetitive trauma injury. He found that the prevailing factor resulting in the large disc herniation at L5-S1 was her bending and lifting task as a waitress over time. He concluded that the initial annular tear is likely to have occurred on August 6, 2005, but that claimant's ongoing work activities further aggravated and progressed her initial injury to the point that it became disabling and necessitated medical care. In effect, Dr. Koprivica found that that repetitive injury or occupational disease was a result of her work and exposure to the hazard of an occupational disease. There is no medical or other expert evidence to the contrary and I find his opinion to be credible. It is clear from the medical records and the EMG as analyzed by Occumed that claimant had sustained an injury to her back which the physicians at Occumed sufficiently believed was work related so that they referred her to Dr. Ipsen for treatment. The Occumed doctors did not indicate work-relatedness through an occupational disease. That was solely the conclusion of Dr. Koprivica. Based upon claimant's testimony, along with all of the evidence in this case, including the uncontradicted opinions of Dr. Koprivica, I find that claimant sustained an injury by occupational disease arising out of and
in the course and scope of employment that is the prevailing factor in causing her condition and disability and that she was exposed to the hazards of an occupational disease through her bending and lifting activities at work over time. As a result, I find and conclude that claimant's herniated disc and the need for treatment as a result thereof were caused by her occupational disease and that she was exposed to the hazards of an occupational disease. That is ultimately the conclusion of Dr. Koprivica, which I find to be credible.
Employer/insurer have denied the compensability of this case because claimant did not provide notice of the occupational disease. I find and conclude that the evidence is sufficient and credible that claimant was injured August 6, 2005. However, there is insufficient evidence to find that her continuing problems were from that injury alone. I find Dr. Koprivica credible, persuasive, and uncontradicted in his conclusions that following the August 6, 2005, event, claimant continued to work and was exposed to the hazards of an occupational disease. It was not until Dr. Koprivica's report beginning on June 11, 2007, that claimant was aware through an expert opinion that her pain, including radiating pain from her back to her legs (with numbness) was a result of an occupational disease from her work. Section 287.420, RSMo., states that "[n]o proceedings for compensation for any occupational disease or repetitive trauma under this chapter shall be maintained unless written notice ... has been given to the employer no later than 30 days after the diagnosis of the condition[.]" However, Allcorn v. TAP Enterprises, Inc., 277, SW3d 823 (Mo.App. SD 2009), holds that notice is not necessary until a physician relates a diagnosis of a condition as an occupational disease or repetitive trauma from work. That did not occur in this case until the opinion of Dr. Koprivica, long after claimant had filed her claim in this case. As a result, I find that claimant has provided sufficient notice under Missouri law in injury number 06-079039 pursuant to the interpretation of $\S 287.420$, RSMo., as provided in Allcorn.
Claimant has sought the payment of medical bills from Webb Chiropractic, Dr. Brian Ipsen, and Freeman Hospital. All of the bills from Webb Chiropractic deal with treatment prior to notice to employer/insurer and prior to any authorization provided by employer/insurer. The bills from Dr. Ipsen relate to surgical treatment following employer's denial of surgery. Claimant clearly was informed of the lack of authorization for her surgery by an adjuster for the insurer and
Let proceed with the surgery anyway. Employer/insurer had provided authorized treatment by Occumed and later by Dr. Ipsen. Employee clearly was aware that the employer/insurer desired to investigate further the claim prior to authorization of surgical treatment, yet decided to have that treatment performed anyway. Employer/self-insurer denied past medical care on the basis of lack of authorization. Employer/self-insurer also generally denied this claim. When there is a general denial of benefits, a claimant may seek medical care on his own. *Wiedower v. ACF Industries, Inc.*, 657 S.W.2d 71 (Mo.App. E.D. 1983); *Beatty v. Chandeysson Electric Company*, 238 Mo.App. 868, 190 S.W.2d 648 (Mo.App. 1945). The general denial found in the Answer is not a full reflection of the circumstances of this case especially since employer/insurer in its Answer stated their willingness to provide treatment. It is unlike the situation in *Wiedower* in which a general denial of treatment entitled the claimant to obtain his own medical care and be reimbursed for those costs. This is more like the set of circumstances found in *Anderson v. Parrish*, 472 S.W.2d 452 (Mo.App. 1971), in which at the time of the accident the claimant was sent to a physician by employer, and the claimant "therefore, knew that the employer was ready and willing to furnish him medical treatment. . . . The Act gives the employee the right to employee's own physician at his own expense, and it only when the employer has notice that the employee needs treatment or demand is made on the employer to furnish medical treatment, and the employer refuses or fails and neglects to provide needed treatment, that the employer is held liable for the medical treatment procured by the employee." *Anderson*, 472 S.W.2d 457.
There is no indication within the records of Dr. Ipsen or within the report of Dr. Koprivica that the need for either of claimant's surgeries was required on an "emergency" basis. Although Dr. Ipsen noted on June 25, 2006 that "Claimant proceeded to both surgeries without giving the employer/insurer the opportunity to investigate the claim further or be given the opportunity to either accept or decline surgical treatment later. They did not authorize either surgery. *Hayes v. Compton*, 135 S.W.3d 465, 471 (Mo.App. S.D. 2004). In effect, that was a decision by claimant to seek treatment on her own when employer/insurer did not authorize such care pending investigation. As a result, I deny claimant's request for the treatment provided by Dr. Ipsen for his two surgeries and additionally the services provided by Freeman Hospital thereafter for the dates of service of June 23, 2006, June 25, 2006, and August 16, 2006. Additionally, I deny the request for treatment from Southwest Anesthesiology which also was as
a result of the surgeries which were not authorized. I additionally deny the treatment at Webb Chiropractic since employer was not given the opportunity to provide treatment to claimant at that time.
Claimant had additional services from the emergency room at Freeman Hospital on June 13, 2006, and June 15, 2006, during the period of time that claimant was under authorized care by the employer/insurer. Although it is unclear from the records that those services were specifically authorized by the employer, it is clear from claimant's testimony and the medical records that that treatment was required on an emergency basis. Since I have found that claimant's occupational disease injury was compensable, I order employer/insurer to pay to Freeman Healthcare System the bills for the dates of service to Freeman Hospital for the emergency room care of $\ 1,105.79 for the date of service on June 13, 2006, and $\ 1,116.53 for the emergency room care for the date of service of June 15, 2006.
There is an underlying medical fee dispute number 06-00764 filed by Freeman Healthcare system for those two emergency room visits. The healthcare provider indicates that there were authorizations from two individuals, specifically Jim Vaughn and Amy Clements for the two bills. However, the testimony of those two witnesses indicated they did not authorize such treatment nor request that any bills be sent to them. I find their testimony to be credible. However, at that time medical care was being authorized by LuAnn Henderson, an adjuster for the insurance company. There is no indication that she authorized those bills. As a result, I deny the medical fee dispute based upon the lack of authorization. Curry v. Ozark Electric Corporation, 39 SW3d 494 (Mo bank 2001). However, since I have ordered the bills to be paid in the underlying claim, it is clear that the result is the same -- that Freeman Health System should be paid for its services.
Claimant has sought temporary total disability benefits for the time frame that she was recovering from her surgery. Although I have denied the specific payment of the past medical bills relating to her surgeries, it is clear that from the testimony of Dr. Koprivica and the medical records in this cases that claimant was temporarily and totally disabled from June 13, 2006, until October 2006. However, it is unclear that Dr. Ipsen released her in October of 2006, since he