Elizabeth Blake v. Best Buy

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 08-123984

Employee: Elizabeth Blake

Employer: Best Buy

Insurer: New Hampshire Insurance Co.

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, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we reverse the award and decision of the administrative law judge.

The parties submitted the following issues for determination by the administrative law judge: (1) accident or occupational disease; (2) notice; (3) medical causation; (4) liability for past medical expenses in the amount of $\ 86,867.70; (5) past temporary total disability for a period covering March 10, 2009, through April 22, 2009; and (6) nature and extent of permanent partial disability.

The administrative law judge rendered the following findings and conclusions: (1) employee's alleged injury is properly characterized as an accident; (2) Dr. Kitchens's opinion is credible; and (3) employee's work-related lifting activities on September 5, 2008, were a triggering or precipitating factor in her need for treatment and therefore employee's claim is not compensable.

Employee filed a timely Application for Review with the Commission alleging the administrative law judge erred: (1) in making selective use of portions of physical therapy notes while ignoring the medical opinions from both treating doctors; (2) in asserting her own medical conclusions based on her misreading of the MRIs; and (3) because her conclusion fails to take into account the uncontested nature of the factual assertion that employee was capable of work without restrictions or medications in the months leading up to the work injury.

For the reasons set forth herein, we reverse the administrative law judge's award and decision.

In March 2006, employee saw her family practitioner, Dr. Douglas Pogue, for neck pain and occasional numbness in her hands. An MRI of March 17, 2006, revealed a left-sided disc herniation at C4-5, encroaching upon the cervical subarachnoid space, abutting the anterolateral surface of the spinal cord on the left, and encroaching on the left-sided foramen, as well as some disc bulging posterolaterally to the right, causing mild foraminal encroachment. The MRI also revealed a symmetric Luschka joint degenerative change with some foraminal narrowing bilaterally at C5-6, but no soft disc herniation or encroachment of the spinal canal at that level. For about three months, employee

**Injury No.:** 08-123984

- received physical therapy and chiropractic treatments, after which her symptoms resolved. Employee sought no further treatment for her neck until September 2008.

Employee worked for employer as a sales associate. On September 5, 2008, employee was working for employer performing a task called "down-stacking," which involved moving merchandise from overhead racks onto lower shelving so that the merchandise could be accessed by customers. On this occasion, employee was down-stacking microwave ovens, which employee believes weighed between 50 and 100 pounds. After employee down-stacked 4 or 5 microwaves, she began to feel pain at the base of her neck.

Employee worked the next few days but continued to have problems in her neck. By September 8, 2008, employee's condition deteriorated to the point she began to feel numbness in her arms. On September 9, 2008, employee saw Dr. Pogue, who diagnosed an overhead lifting injury, took employee off work for 4 days, and prescribed Vicodin and Medrol for pain. Dr. Pogue restricted employee from performing lifting work until her neck was pain free.

On September 10, 2008, employee took the work restrictions from Dr. Pogue to the store manager. Employee informed the store manager that she was experiencing pain in her neck as a result of her down-stacking work. The store manager did not fill out a Report of Injury, nor did he direct employee to any particular medical provider for evaluation and treatment. As a result, employee continued to see medical providers of her own choosing. Employer permitted employee to work light duty up until sometime in December 2008, after which employee returned to full duty work and experienced a return of neck pain and related symptoms.

On December 16, 2008, employee saw a nurse practitioner in Dr. Pogue's office who recorded employee's neck pain was worse after returning to full duty work. The nurse practitioner ordered physical therapy, but this did not provide any significant relief to employee. On February 27, 2009, an MRI revealed a small right posterolateral disc herniation at C4-5, as well as a moderate broad-based right posterolateral disc herniation at C5-6. Employee sought a surgical consultation with Dr. David Raskas, who ordered a myelogram which confirmed the disc protrusions at both C4-5 and C5-6. Dr. Raskas opined that employee's work activities in September 2008 were the prevailing factor causing employee's neck pain and the conditions requiring surgical intervention. Employee subsequently underwent a two-level discectomy, partial vertebrectomy, and fusion at C4-5 and C5-6. Dr. Raskas took employee off work from March 10, 2009, the date of the surgery, through April 22, 2009, the date he released her to return to work with a 20-pound lifting restriction.

Employee provided her medical bills incurred in the course of the above-described treatment for her cervical spine condition, the medical records reflecting the treatments giving rise to the bills, and provided her own testimony describing her course of treatment. Employer did not provide any evidence that would suggest employee is not liable to pay the charges reflected in the bills.

We note that employee's Exhibit N, containing employee's medical bills, also includes a document entitled "Medical Bill Summary" which lists certain bills that are not included in the exhibit. Specifically, the "Medical Bill Summary" claims employee incurred $\ 396.00 in charges from "Gateway ER Physicians" and $\ 441.00 in charges from "St. Luke's CDI," but Exhibit N does not contain bills in these amounts from these providers. After our own careful review of the medical bills themselves, we find that the total amount of employee's past medical expenses is $\ 86,030.70, rather than the amount of $\ 86,867.70 claimed by employee in the "Medical Bill Summary" and at the hearing before the administrative law judge.

Employee discontinued her work for employer following her cervical spine surgery, because she no longer felt comfortable moving merchandise down from overhead racks, and feared she would injure herself again. Employee continues to experience pain in her neck and a recurring numbness in her hands. Employee also experiences difficulty sleeping owing to her neck symptoms. Employee can no longer push a lawnmower, and must rely on her husband's help to perform basic household chores. Employee feels a sharp pain in her neck whenever she attempts to reach overhead.

Dr. Daniel Kitchens evaluated employee at the request of employer. Dr. Kitchens opined that employee suffered from preexisting degenerative disc disease of the cervical spine, and that employee's work activities did not cause her symptoms. Dr. Kitchens appears to have premised his opinion on a belief that Dr. Pogue's records do not confirm a specific incident or injury that occurred at work. When confronted, on cross-examination, with a note from Dr. Pogue identifying specific lifting activities at work as a source of employee's complaints, Dr. Kitchens announced his belief that overhead lifting activities cannot cause neck pain.

Dr. David Volarich provided an independent medical examination on behalf of the employee. Dr. Volarich opined that employee's work of down-stacking microwaves in September 2008 was the prevailing factor causing her to suffer cervical bilateral upper extremity radiculopathy that required surgical intervention at both C4-5 and C5-6. Dr. Volarich explained that the type of overhead lifting employee was performing for employer is non-ergonomic, and can put stress on the neck and back. Dr. Volarich pointed to the February 2009 MRI, which revealed a somewhat larger herniation at C4-5 than shown on the previous MRI of March 2006, and also revealed a new right-sided herniation at C5-6 causing C6 nerve root impingement. Dr. Volarich rated employee's disability resulting from the September 2008 injury at 40 % of the body as a whole referable to the cervical spine. Dr. Volarich opined that, as a result of the work injury, there is a reasonable probability employee will require future treatment in the form of prescription medications, muscle relaxants, trigger point injections, and physical therapy.

We have found, based on employee's credible testimony, that she suffered a specific lifting incident at work on September 5, 2008, that coincided with the onset of neck pain. In light of our findings, Dr. Kitchens's emphasis on the purported absence of a specific incident or injury at work tends to undermine the probative force of his opinions. Nor are we at all persuaded by Dr. Kitchens's testimony that overhead lifting cannot cause

neck pain. Especially in light of the changes seen on the February 2009 MRI, we find Dr. Volarich's opinions more persuasive.

Accordingly, we adopt Dr. Volarich's opinion (and so find) that employee's work of downstacking microwaves on September 5, 2008, was the prevailing factor causing her to suffer cervical bilateral upper extremity radiculopathy that required surgical intervention at both C4-5 and C5-6. We also adopt Dr. Volarich's opinion (and so find) that there is a reasonable probability employee will require future treatment in the form of prescription medications, muscle relaxants, trigger point injections, and physical therapy.

Section 287.020.2 RSMo provides, as follows:

The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

We have found, based on employee's credible testimony, that on September 5, 2008, employee was performing down-stacking duties for employer when she experienced the onset of pain at the base of her neck. We are persuaded that these facts satisfy each of the foregoing criteria set forth above, and we therefore conclude that employee suffered an "accident" for purposes of $\S 287.020 .2$.

Section 287.420 RSMo sets forth the requirements for the notice employees must provide employers regarding a work injury, and provides, in relevant part, as follows:

No proceedings for compensation for any accident under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the accident, unless the employer was not prejudiced by failure to receive the notice.

Employee did not advance any evidence to suggest that she provided to employer a written notice meeting all of the requirements of the above-quoted section no later than thirty days after September 5, 2008. Accordingly, the next question is whether employee proved that employer was not prejudiced by her failure to provide the written notice specified by statute. We have found that on September 10, 2008, employee told the store manager that she'd hurt her neck performing down-stacking duties, and that she was receiving treatment and had work restrictions from Dr. Pogue.

It is well settled in Missouri that notice of a potentially compensable injury acquired by a supervisory employee is i