Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am convinced that the decision of the administrative law judge denying benefits is in error, and should be reversed.
Employee worked for employer for about three and a half years. Employee worked in two different locations. Her duties at the first location, known as the "Westport location," included collecting trash, vacuuming, and general housekeeping. Employee cleaned 26 bathrooms in a 12 level building. Employee picked up trash, vacuumed, mopped the floors, wiped down mirrors, sinks, faucets, and dusted. Her duties required her to constantly bend, lift heavy trash bins, put trash into dumpsters, and mop floors. Employee collected trash from several restrooms into a barrel, then tied the trash into a large bag. Employee then had to lift the bag out of the barrel. The bags weighed between 30 and 35 pounds. Employee also daily lifted 6-7 bags of trash overhead into a dumpster.
Employee worked at the Westport location for about 2 years until employer assigned her to work at the "Delmar location." Employee's duties at the Delmar location included vacuuming, emptying trash, wiping the restrooms down, dusting, and taking out the trash. The work at the Delmar location was even heavier; for instance, the trash weighed more, and the vacuum cleaner was heavier than the one at the Westport location.
The foregoing duties caused employee to suffer symptoms of low back pain. Employee never had back problems before she worked for employer. Employee went to see her doctor, who prescribed medications, injections, pain patches, and a back brace. Employee left her employment with employer owing to the severity of her symptoms; she also had to leave a subsequent job owing to pain and problems with depression.
Section 287.067.2 RSMo provides, as follows:
An injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.
In the context of occupational disease, the courts have clarified that:
A claimant must submit medical evidence establishing a probability that working conditions caused the disease, although they need not be the sole cause. Even where the causes of the disease are indeterminate, a single medical opinion relating the disease to the job is sufficient to support a decision for the employee.
Vickers v. Mo. Dep't of Pub. Safety, 283 S.W.3d 287, 292 (Mo. App. 2009)(citations omitted)(emphasis in original).
Employee presented expert medical testimony from Dr. Thomas Musich. Dr. Musich opined that employee suffered an occupational disease affecting her low back and both of her lower extremities. Dr. Musich opined that employee's work for employer is the prevailing factor in the development of acute and severe low back pain and radiculopathy which has resulted from multilevel lumbar disk bulging, bilateral sacroiliac joint dysfunction, and bilateral pyriformis syndromes. Dr. Musich rated employee's permanent partial disability at 25% of the body as a whole referable to her lumbosacral symptomatic pathology.
Employer presented expert medical testimony from Dr. David Lange. Dr. Lange opined that employee's work was not the prevailing factor causing her low back complaints. Dr. Lange premised his opinion on the facts that employee did not suffer any particular traumatic event, and because her MRI was not "particularly exciting." Transcript, page 536. Dr. Lange explained that all adults have degenerative changes, and employee's MRI appeared to show degenerative changes. Dr. Lange does not believe that employee's experiencing the onset of symptoms for the first time during her back-intensive work for employer is important. In other words, Dr. Lange wrote off employee's symptoms in favor of his view that employee must either experience a specific accident, or provide an MRI showing something other than degenerative changes. I strongly disagree with this view because I believe it finds no support in the Missouri Workers' Compensation Law.
First, as the majority has noted, there is no requirement that employee identify a particular traumatic event because this is an occupational disease case. Second, Dr. Lange's opinion requiring a change on MRI and discounting employee's pain complaints misconstrues employee's burden of proof. The version of § 287.800 RSMo applicable to this case requires that we strictly construe the provisions of the Missouri Workers' Compensation Law. Strictly construing the language of § 287.067.2 set forth above, I find no requirement that employee prove that her occupational exposure is the prevailing factor in causing a change on her MRI. Dr. Lange would discount employee's pain complaints because her MRI reveals the type of degenerative changes that he says every adult has in their spine. But pain is unquestionably a "medical condition," and as the circumstances of this case make abundantly clear, pain can result in "disability."
Dr. Musich, on the other hand, provided a medical opinion that meets employee's burden of establishing a probability that working conditions caused her low back pain. I do not find that his factual errors materially detract from the logic and good sense of his causation opinion. I find Dr. Musich's opinions in this matter to be credible.
In sum, I would reverse the award of the administrative law judge and award employee the temporary total disability benefits, past medical expenses, future medical expenses, and permanent disability benefits to which she is entitled. Because the majority has determined otherwise, I respectfully dissent.
Curtis E. Chick, Jr., Member