Based on my review of the evidence and consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am convinced that the majority errs in affirming the administrative law judge's award in favor of the employee.
Dr. Coyle, Dr. Polinsky, and Dr. Woiteshek indicate that employee's condition and disability would improve if she were to have a surgical fusion of her L4-5. Employee previously underwent that surgery at the expense of employer, however the union was unsuccessful. Dr. Coyle and Dr. Polinsky opined that the first surgery was likely unsuccessful because of employee's nicotine use from smoking cigarettes. Dr. Coyle, Dr. Polinsky, and Dr. Bartlett recommend that employee discontinue smoking so that the second surgery will be more successful. Dr. Polinsky states that the success rate for the fusion surgery would only be 10-20\% if she continues to smoke, but it would be as good as 70-80 % if she quits smoking first. For this reason, Dr. Coyle refuses to perform the second surgery, and Dr. Polinsky would not recommend the second surgery, until employee discontinues her nicotine usage. Based on these medical opinions, employer agrees to pay for the second surgery but only if employee stops smoking first. Given the low chances of success if employee were to continue smoking, I find that employer's position is reasonable.
Employee testified that she wants to quit smoking and she wants to have this second surgery. However, employee contends that she is unable to quit smoking because she is addicted. Employer contends that employee's continuing usage of nicotine constitutes an unreasonable refusal of medical treatment, and therefore it should only be liable for permanent partial disability rather than permanent total disability. Thus, the issue in this case is whether employee's continuing use of nicotine, against the recommendation of all medical experts, thereby rendering herself ineligible for a surgery that could alleviate her condition and lessen her disability, reduces employer's liability for employee's permanent disability benefits.
Section 287.140.5 RSMo ${ }^{1}$ states that "No compensation shall be payable for the death or disability of an employee, if and insofar as the death or disability may be caused, continued or aggravated by any unreasonable refusal to submit to any medical or surgical treatment or operation, the risk of which is, in the opinion of the division or the commission, inconsiderable in view of the seriousness of the injury."
Since employee's ongoing use of nicotine is the reason employee is not able to have surgery at this time with any reasonable chance of success, I find that she is continuing and aggravating her own disability. The question then becomes whether employee's continuing use of nicotine is equivalent to an unreasonable refusal to submit to medical or surgical treatment pursuant to $\S 287.114 .5$.
I am not persuaded that employee is absolutely unable to overcome her smoking addiction. Although employee listed numerous cessation techniques she has tried,
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[^0]: ${ }^{1}$ All statutory references are to Revised Statutes of Missouri (2005) unless otherwise indicated.
Injury No.: 06-135790
Employee: Angela Miller
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there is insufficient testimony and evidence as to when each of the techniques were tried, how long she tried each technique, and whether there were other factors contributing to the attempts being unsuccessful. Further, none of the medical experts opined that employee was unable to quit smoking.
I also do not believe it is unreasonable to require employee to quit smoking for this surgical procedure. There are no risks or negative outcomes to smoking cessation. Instead, not only would employee be able to have this surgery which could greatly improve her disability and condition, but also her health in general would likely improve after becoming a non-smoker. And, employer has offered and continues to offer to pay for smoking cessation treatments.
Importantly, employee has not alleged any concerns about the risks of surgical intervention. Her position is only that she cannot quit smoking to be able to get this surgery. Again, I am not persuaded by that. I find that employer has done everything it can to optimize employee's disability and condition, and at this point it is employee who must take the next step forward. It was employee's smoking which likely caused the failure of the first surgery, and her disability continues and is aggravated now because she has not quit smoking.
Under these circumstances, I find that employer should not be liable for the continued and aggravated disability caused by employee's ongoing smoking. I would reverse the award of permanent total disability and instead award only permanent partial disability pursuant to § 287.114.5. Because the majority has determined otherwise, I respectfully dissent.
James G. Avery, Jr., Member