Rick Sutberry v. Trans World Airlines, Inc.

of the body as a whole referable to employee's coronary artery disease. (We find less persuasive Dr. Schuman's competing opinion that employee did not suffer any functional disability or impairment referable to coronary artery disease prior to the primary injury.) We also find persuasive Dr. Cohen's opinion that employee's preexisting conditions of ill constituted hindrances or obstacles to employment.

The parties stipulated that the cost of employee's past medical treatment, including his low back surgery, is $\ 82,588.03. Employee argues that employer is liable for these expenses, relying on Dr. Cohen's testimony that employee's treatment was reasonable and necessary to cure and relieve the effects of the work injury. Employer, on the other hand, presents testimony from Dr. Kitchens, but Dr. Kitchens never provided an opinion whether employee's surgery was reasonably required to cure and relieve the effects of the work injury; instead, he opined that the worsening of employee's underlying preexisting condition is the substantial factor in the need for surgery. Dr. Kitchens' testimony thus fails to address the relevant statutory test. See Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511 (Mo. App. 2011). It appears, therefore, that the only remaining question is whether Dr. Cohen's opinion applying the appropriate standard with regard to past medical expenses lacks credibility.

We acknowledge that employee suffered from a serious preexisting low back condition in the form of an L5-S1 spondylolisthesis, as well as the evidence demonstrating that employee initially experienced a good result from the conservative medical treatment he received following the work injury. But employer has failed to provide a competing medical expert opinion to explain why we should not rely on Dr. Cohen's opinion that employee's back surgery was reasonably required to cure and relieve the effects of the work injury. After careful consideration, we find Dr. Cohen's opinion on the issue to be persuasive. We find that employee's low back surgery was reasonably required to cure and relieve the effects of the work injury.

Dr. Cohen also opined that employee will need pain medications as a result of his work injury; Dr. Kitchens did not address the issue of future medical treatment. We find persuasive Dr. Cohen's findings and opinion as to the issue whether employee will need future medical care as a result of the work injury.

Following his low back injury, employee worked until about August 1, 2003. At the hearing before the administrative law judge, employee identified low back pain as the primary reason he left work on that date. At his deposition, however, employee identified both low back pain and heart problems as reasons for leaving work, and testified that his heart problems took precedence. When confronted with his deposition testimony, employee agreed that at that time he felt his heart problems were more important than his back in causing him to be off work.

We find that employee left work about August 1, 2003, because of back pain and heart problems. We find that employee's coronary artery disease took precedence in causing him to leave work. On September 23, 2003, employee saw Dr. Piper, who advised him

to consider a fusion surgery for his low back. But employee did not undergo surgery until October 23, 2006. Employee suggests that he was unable to undergo the recommended surgery until he obtained a clearance from his cardiologist, and requests a finding that he was temporarily and totally disabled from working due to his low back condition during the entire three year time period between Dr. Piper's surgical consultation and the procedure.

Dr. Cohen did not address the question of temporary total disability in either his report or his deposition. Neither of the vocational experts addressed the issue of temporary total disability. We have searched the medical records and we can find no indication that the reason for the delay in surgery was because employee needed a clearance from his cardiologist. Dr. Nordlicht's records from November 2003 and February 2004 demonstrate employee underwent myocardial imaging to rule out ischemia; there is no mention of a need for a surgical clearance. Dr. Piper's records from January 2004 indicate that surgery had been scheduled, but that it was cancelled after it was discovered that disability insurance wouldn't pay for the procedure. Dr. Santiago's January 21, 2005, treatment record reveals the doctor's preference that employee undergo a fusion surgery, but that employee wanted to try conservative treatment first; the record contains no mention of a cardiac clearance. Dr. Piper's records in September 2006 contain the doctor's second surgical recommendation, with no mention of any cardiac clearance, or of the intervening treatment employee received for his coronary artery disease.

Given the lack of any medical evidence in support, we find unpersuasive employee's testimony that his back surgery was delayed so that he could obtain a cardiac clearance. If employee expected to prove his entitlement to temporary total disability benefits for this three year period on the theory that he was prevented from obtaining needed treatment owing to his heart problems, he could have inquired of his experts on the issue.

Instead, we find the medical records to support a finding that employee was medically unable to work owing to his low back condition beginning with his fusion surgery on October 23, 2006. The parties stipulate that employee reached maximum medical improvement on August 14, 2007, the day Dr. Piper released employee from his care.

The vocational experts who testified in this matter agree as to the issue of permanent total disability. Stephen Dolan and Kimberly Gee each opined that employee is permanently and totally disabled as a result of the work injury in combination with employee's preexisting conditions of ill. Dr. Cohen also believes employee is permanently and totally disabled owing to a combination of his preexisting conditions of ill and the effects of the work injury. Dr. Kitchens did not address the issue of permanent total disability.

We modify the findings of the administrative law judge on this issue. We find most persuasive the expert opinions from Dr. Cohen, Mr. Dolan, and Ms. Gee that employee is permanently and totally disabled as a result of the work injury in combination with employee's preexisting conditions of ill.

Section 287.020.2 RSMo sets forth the standard for medical causation applicable to this claim and provides, in relevant part, as follows:

An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability.

We have found persuasive and adopted the testimony from Dr. Cohen that the work injury resulted in an aggravation of employee's lumbar spine condition and caused him to suffer a new injury and associated permanent partial disability. We conclude that the accident of July 17, 2000, was a substantial factor in causing the resulting medical condition and disability referable to employee's low back.

Section 287.140.1 RSMo provides, 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.

The courts have made clear that "once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury. The fact that the medication or treatment may also benefit a non-compensable or earlier injury or condition is irrelevant." Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 519 (Mo. App. 2011)(citations omitted).

We have found persuasive and adopted Dr. Cohen's opinion that the medical care and treatment rendered to employee for his low back condition, including the fusion surgery, was reasonable and required to cure and relieve the effects of employee's work injury. Accordingly, we conclude employee is entitled to the stipulated amount of $\ 82,588.03 in past medical expenses for treatment that was reasonably required to cure and relieve from the effects of the work injury.

Section 287.170 RSMo provides for temporary total disability benefits to cover the employee's healing period following a compensable work injury. The test for temporary total disability is whether, given employee's physical condition, an employer in the usual course of business would reasonably be expected to employ him during the time period claimed. Cooper v. Medical Ctr. of Independence, 955 S.W.2d 570, 575 (Mo. App. 1997). Accordingly, we look to the evidence of employee's physical condition following the work injury.

We have rejected employee's argument that employer should pay temporary total disability benefits for the three years that elapsed between Dr. Piper's first surgical recommendation in September 2003 and the pr